Exhibit 10.1


 


EXECUTION COPY


 


TRANSFER AND ADMINISTRATION
AGREEMENT


 


 


by and among


 


UNITED STATIONERS RECEIVABLES,
LLC,


 


UNITED STATIONERS SUPPLY CO.,


as Originator,


 


UNITED STATIONERS FINANCIAL
SERVICES LLC,


as Seller and Servicer,


 


ENTERPRISE FUNDING COMPANY LLC,


as a Conduit Investor,


 


MARKET STREET FUNDING LLC,


as a Conduit Investor,


 


BANK OF AMERICA, NATIONAL
ASSOCIATION,


as Agent, as a Class Agent
and as an Alternate Investor,


 


PNC BANK, NATIONAL ASSOCIATION,


as a Class Agent and as an
Alternate Investor,


 


and


 


THE OTHER ALTERNATE INVESTORS


FROM TIME TO TIME PARTIES HERETO


 

















 


Table of Contents


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  Article I

  	
  Definitions

  	
   

  	
  1

  
	
  Section 1.1

  	
  Certain Defined Terms

  	
   

  	
  1

  
	
  Section 1.2

  	
  Other Terms

  	
   

  	
  21

  
	
  Section 1.3

  	
  Computation of Time Periods; Calculations

  	
   

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  Article II

  	
  Purchases and Settlements

  	
   

  	
  22

  
	
  Section 2.1

  	
  Transfer of Affected Assets; Intended Characterization

  	
   

  	
  22

  
	
  Section 2.2

  	
  Purchase Price

  	
   

  	
  23

  
	
  Section 2.3

  	
  Investment Procedures

  	
   

  	
  23

  
	
  Section 2.4

  	
  IS SPECIFIED IN SCHEDULE I, WHICH IS INCORPORATED HEREIN BY REFERENCE

  	
   

  	
  26

  
	
  Section 2.5

  	
  Yield, Fees and Other Costs and Expenses

  	
   

  	
  26

  
	
  Section 2.6

  	
  Deemed Collections

  	
   

  	
  26

  
	
  Section 2.7

  	
  Reductions in Net Investment; Payments and Computations, Etc.

  	
   

  	
  27

  
	
  Section 2.8

  	
  Reports

  	
   

  	
  27

  
	
  Section 2.9

  	
  Collection Account

  	
   

  	
  28

  
	
  Section 2.10

  	
  Sharing of Payments, Etc.

  	
   

  	
  28

  
	
  Section 2.11

  	
  Right of Setoff

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  Article III

  	
  Additional Alternate Investor Provisions

  	
   

  	
  29

  
	
  Section 3.1

  	
  Assignment to Alternate Investors

  	
   

  	
  29

  
	
  Section 3.2

  	
  Downgrade of Alternate Investor

  	
   

  	
  31

  
	
  Section 3.3

  	
  Non-Renewing Alternate Investors

  	
   

  	
  33

  
	
  Section 3.4

  	
  New Alternate Investors and Liquidity Banks

  	
   

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
  Article IV

  	
  Representations and Warranties

  	
   

  	
  34

  
	
  Section 4.1

  	
  Representations and Warranties of the Originator, the SPV, the Seller
  and the Servicer

  	
   

  	
  34

  
	
  Section 4.2

  	
  Additional Representations and Warranties of the Servicer

  	
   

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
  Article V

  	
  Conditions Precedent

  	
   

  	
  41

  
	
  Section 5.1

  	
  Conditions Precedent to Closing

  	
   

  	
  41

  
	
  Section 5.2

  	
  Conditions Precedent to All Investments and Reinvestments

  	
   

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
  Article VI

  	
  Covenants

  	
   

  	
  46

  
	
  Section 6.1

  	
  Affirmative Covenants of the SPV and Servicer

  	
   

  	
  46

  
	
  Section 6.2

  	
  Negative Covenants of the SPV and Servicer

  	
   

  	
  51

  
	
  Section 6.3

  	
  IS SPECIFIED IN SCHEDULE 6.3, WHICH IS INCORPORATED HEREIN BY
  REFERENCE

  	
   

  	
  53

  
	
   

  	
   

  	
   

  	
   

  
	
  Article VII

  	
  Administration and Collections

  	
   

  	
  53

  
	
  Section 7.1

  	
  Appointment of Servicer

  	
   

  	
  53

  
	
  Section 7.2

  	
  Duties of Servicer.

  	
   

  	
  55

  
							



 


i

















 


	
  Section 7.3

  	
  Blocked Account Arrangements

  	
   

  	
  56

  
	
  Section 7.4

  	
  Enforcement Rights After Designation of New Servicer

  	
   

  	
  56

  
	
  Section 7.5

  	
  Servicer Default

  	
   

  	
  57

  
	
  Section 7.6

  	
  Servicing Fee

  	
   

  	
  58

  
	
  Section 7.7

  	
  Protection of Ownership Interest of the Investors

  	
   

  	
  58

  
	
   

  	
   

  	
   

  	
   

  
	
  Article VIII

  	
  Termination Events

  	
   

  	
  59

  
	
  Section 8.1

  	
  Termination Events

  	
   

  	
  59

  
	
  Section 8.2

  	
  Termination

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  
	
  Article IX

  	
  Indemnification; Expenses; Related Matters

  	
   

  	
  62

  
	
  Section 9.1

  	
  Indemnities by the SPV and the Servicer

  	
   

  	
  62

  
	
  Section 9.2

  	
  Indemnity for Taxes, Reserves and Expenses

  	
   

  	
  65

  
	
  Section 9.3

  	
  Taxes

  	
   

  	
  67

  
	
  Section 9.4

  	
  Other Costs and Expenses; Breakage Costs

  	
   

  	
  67

  
	
  Section 9.5

  	
  [Reserved]

  	
   

  	
  68

  
	
  Section 9.6

  	
  Indemnities by the Servicer

  	
   

  	
  68

  
	
  Section 9.7

  	
  Accounting Based Consolidation Event

  	
   

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
  Article X

  	
  The Agent

  	
   

  	
  69

  
	
  Section 10.1

  	
  Appointment and Authorization of Agent

  	
   

  	
  69

  
	
  Section 10.2

  	
  Delegation of Duties

  	
   

  	
  69

  
	
  Section 10.3

  	
  Liability of Agent

  	
   

  	
  69

  
	
  Section 10.4

  	
  Reliance by Agent

  	
   

  	
  70

  
	
  Section 10.5

  	
  Notice of Termination Event, Potential Termination Event or Servicer
  Default

  	
   

  	
  70

  
	
  Section 10.6

  	
  Credit Decision; Disclosure of Information by the Agent

  	
   

  	
  71

  
	
  Section 10.7

  	
  Indemnification of the Agent

  	
   

  	
  71

  
	
  Section 10.8

  	
  Agent in Individual Capacity

  	
   

  	
  72

  
	
  Section 10.9

  	
  Resignation of Agent

  	
   

  	
  72

  
	
  Section 10.10

  	
  Payments by the Agent

  	
   

  	
  72

  
	
  Section 10.11

  	
  Appointment and Authorization of Class Agents

  	
   

  	
  73

  
	
  Section 10.12

  	
  Delegation of Duties

  	
   

  	
  73

  
	
  Section 10.13

  	
  Reliance by Class Agents

  	
   

  	
  73

  
	
  Section 10.14

  	
  Notice of Termination Event, Potential Termination Event or Servicer
  Default

  	
   

  	
  74

  
	
  Section 10.15

  	
  Credit Decision; Disclosure of Information by the Class Agents

  	
   

  	
  74

  
	
  Section 10.16

  	
  Indemnification of the Class Agent

  	
   

  	
  75

  
	
  Section 10.17

  	
  Class Agent in Individual Capacity

  	
   

  	
  75

  
	
  Section 10.18

  	
  Resignation of Class Agent

  	
   

  	
  76

  
	
  Section 10.19

  	
  Liability of Agent and the Class Agents

  	
   

  	
  76

  
	
   

  	
   

  	
   

  	
   

  
	
  Article XI

  	
  Miscellaneous

  	
   

  	
  76

  
	
  Section 11.1

  	
  Term of Agreement.

  	
   

  	
  76

  
	
  Section 11.2

  	
  Waivers; Amendments

  	
   

  	
  77

  
	
  Section 11.3

  	
  Notices; Payment Information

  	
   

  	
  77

  
					



 


ii

















 


	
  Section 11.4

  	
  Governing Law; Submission to Jurisdiction; Appointment of Service
  Agent

  	
   

  	
  78

  
	
  Section 11.5

  	
  Integration

  	
   

  	
  79

  
	
  Section 11.6

  	
  Severability of Provisions

  	
   

  	
  79

  
	
  Section 11.7

  	
  Counterparts; Facsimile Delivery

  	
   

  	
  79

  
	
  Section 11.8

  	
  Successors and Assigns; Binding Effect

  	
   

  	
  79

  
	
  Section 11.9

  	
  Waiver of Confidentiality

  	
   

  	
  82

  
	
  Section 11.10

  	
  Confidentiality Agreement

  	
   

  	
  82

  
	
  Section 11.11

  	
  No Bankruptcy Petition Against the Conduit Investors

  	
   

  	
  83

  
	
  Section 11.12

  	
  No Recourse Against Conduit Investors

  	
   

  	
  83

  



 


Schedules


 


	
  Schedule I

  	
  Yield and Rate Periods

  
	
  Schedule II

  	
  Specified Ineligible Receivables

  
	
  Schedule III

  	
  Settlement Procedures

  
	
  Schedule 4.1(g)

  	
  List of Actions and Suits

  
	
  Schedule 4.1(i)

  	
  Location of Certain Offices and Records

  
	
  Schedule 4.1(j)

  	
  List of Subsidiaries, Divisions and Tradenames; FEIN

  
	
  Schedule 4.1(r)

  	
  List of Blocked Account Banks and Blocked Accounts

  
	
  Schedule 4.1(bb)

  	
  Disclosure
  Representations and Covenants

  
	
  Schedule 6.3

  	
  Financial Covenants

  
	
  Schedule 11.3

  	
  Address and Payment Information

  



 


Exhibits


 


	
  Exhibit A

  	
  Form of Assignment and Assumption Agreement

  
	
  Exhibit B

  	
  [Reserved]

  
	
  Exhibit C

  	
  Credit and Collection Policies
  and Practices

  
	
  Exhibit D

  	
  Form of Investment Request

  
	
  Exhibit E

  	
  Form of Blocked Account
  Agreement

  
	
  Exhibit F

  	
  Form of Servicer Report

  
	
  Exhibit G

  	
  Form of SPV Secretary’s
  Certificate

  
	
  Exhibit H

  	
  Forms of
  Originator/Servicer/Seller Secretary’s Certificate

  
	
  Exhibit I

  	
  Form of Opinion of Counsel
  for the SPV, Originator, Seller and Servicer

  
	
  Exhibit J

  	
  Scope of Agreed Upon Procedures

  
	
  Exhibit K

  	
  Form of Compliance
  Certificate

  



 


iii

















 


TRANSFER AND ADMINISTRATION AGREEMENT


 


This TRANSFER AND ADMINISTRATION AGREEMENT (as
amended, modified, supplemented, restated or replaced, this “Agreement”), dated as of March 3,
2009, by and among United Stationers Receivables, LLC, an Illinois limited
liability company (the “SPV”),
United Stationers Supply Co., an Illinois corporation (the “Originator”), United Stationers
Financial Services LLC, an Illinois limited liability company (the “Seller”) and as Servicer, Enterprise
Funding Company LLC, a Delaware limited liability company (“Enterprise Funding”), as a Conduit
Investor, Market Street Funding LLC, a Delaware limited liability company (“Market Street”, each of Enterprise
Funding and Market Street a “Conduit Investor”
and, collectively, the “Conduit Investors”),
Bank of America, National Association, a national banking association (“Bank of America”), as Agent, as a Class Agent
and as an Alternate Investor, PNC Bank, National Association (“PNC Bank”), as a Class Agent
and as an Alternate Investor, and the financial institutions from time to time
parties hereto as Alternate Investors.


 


Article I


 


Definitions


 


Section 1.1                                   Certain Defined Terms.


 


As used in
this Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the
terms defined):


 


Accounting
Based Consolidation Event: Solely to the extent such
entity is not consolidated with such Indemnified Party on or prior to the date
hereof, the consolidation, for financial and/or regulatory accounting purposes,
of all or any portion of the assets and liabilities of any Conduit Investor
that is the subject of this Agreement or any other Transaction Document with
all or any portion of the assets and liabilities of the Agent or any Alternate
Investor in such Conduit Investor’s Class or any of their Affiliates as
the result of the occurrence of any change after the date hereof in accounting
standards or the issuance of any pronouncement, interpretation or release, by
any accounting body or any other governmental body charged with the
promulgation or administration of accounting standards, including the Financial
Accounting Standards Board, the International Accounting Standards Board, the
American Institute of Certified Public Accountants, the Federal Reserve Board
of Governors and the Securities and Exchange Commission.


 


Additional
Costs:  As
defined in Section 9.2(d).


 


Adverse Claim:  Except for Permitted Liens, any lien,
security interest, charge or encumbrance, or other right or claim in, of or on
any Person’s assets or properties in favor of any other Person.


 


Advertising
Receivable: Any Receivable which arises from the
Originator’s business of selling catalogs and related advertising materials to
its customers, which Receivables are indicated as “advertising” on the Originator’s
receivables aging books and records.


 


Affected
Assets: 
Collectively, (i) the Receivables, (ii) the Related Security, (iii) all
rights and remedies of the SPV under the Second Tier Agreement, together with
all financing statements 


 

















 


filed by the
SPV against the Originator and the Seller in connection therewith, (iv) all
Blocked Accounts and all funds and investments therein and all Blocked Account
Agreements, and (v) all proceeds of the foregoing.


 


Affiliate:  As to any Person, any other Person which,
directly or indirectly, owns, is in control of, is controlled by, or is under
common control with, such Person, in each case whether beneficially, or as a
trustee, guardian or other fiduciary.  A
Person shall be deemed to control another Person if the controlling Person
possesses, directly or indirectly, the power to direct or cause the direction
of the management or policies of the other Person, whether through the
ownership of voting securities or membership interests, by contract, or
otherwise.


 


Agent:  Bank of America, in its capacity as agent for
the Investors, and any successor thereto appointed pursuant to Article X.


 


Agent-Related
Persons:  The
Agent, or any Class Agent, as the case may be, together with its
Affiliates, and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and their respective Affiliates.


 


Aggregate
Unpaids:  At any
time, an amount equal to the sum of (i) the aggregate unpaid Yield accrued
and to accrue to maturity with respect to all Rate Periods at such time, (ii) the
Net Investment at such time and (iii) all other amounts owed (whether or
not then due and payable) hereunder and under the other Transaction Documents
by the SPV, the Seller and the Originator to the Agent, the Class Agents,
the Investors or the Indemnified Parties at such time.


 


Agreement:  As defined in the Preamble.


 


Alternate
Investor Percentage: 
At any time with respect to any Alternate Investor, the percentage
equivalent of a  fraction the numerator
of which is equal to the Commitment of such Alternate Investor on such day and
the denominator of which is equal to the related Class Facility Limit on
such day.


 


Alternate
Investors:  With
respect to (a) the Enterprise Funding Class, Bank of America and each
other financial institution identified as a member of the Enterprise Funding Class on
the signature pages hereof and any other financial institution that shall
become a party to this Agreement pursuant to Section 11.8 and who
are identified as a being a member of the Enterprise Funding Class, (b) the
Market Street Class, PNC Bank and each other financial institution identified
as a member of the Market Street Class on the signature pages hereof
and any other financial institution that shall become a party to this Agreement
pursuant to Section 11.8 and who are identified as a being a member
of the Market Street Class and (c) any other Class, each financial
institution identified as a member of such Class on the signature pages hereof
and any other financial institution that shall become a party to this Agreement
pursuant to Section 11.8 and who are identified as a being a member
of such Class.


 


Alternate Rate:  As defined in Section 2.4.


 


Asset Interest:  As defined in Section 2.1(b).


 


2

















 


Assignment
Amount:  With
respect to an Alternate Investor at the time of any assignment pursuant to Section 3.1,
an amount equal to the least of (i) such Alternate Investor’s Alternate
Investor Percentage of the portion of the related Class Net Investment
requested by the related Conduit Investor to be assigned at such time; (ii) such
Alternate Investor’s unused Commitment (minus the unrecovered principal amount
of such Alternate Investor’s investments in the Asset Interest pursuant to the
Program Support Agreement to which it is a party); and (iii) in the case
of an assignment on or after the Conduit Investment Termination Date, such
Alternate Investor’s Alternate Investor Percentage of the Investor Percentage
of the related Conduit Investor of the sum of (A) the aggregate Unpaid
Balance of the Receivables (other than Defaulted Receivables), plus (B) all
Collections received by the Servicer but not yet remitted by the Servicer to
the Agent, plus (C) any amounts in respect of Deemed Collections
required to be paid by the SPV at such time.


 


Assignment and
Assumption Agreement: 
An Assignment and Assumption Agreement substantially in the form of Exhibit A.


 


Assignment
Date:  As
defined in Section 3.1(a).


 


Bank of
America:  As
defined in the Preamble.


 


Bankruptcy
Code:  The
Bankruptcy Reform Act of 1978, 11 U.S.C. 
§§ 101 et seq.


 


Base Rate:  As defined in Section 2.4.


 


Blocked
Account:  Any
account maintained by the SPV at a Blocked Account Bank into which Collections
are received or deposited, as set forth in Schedule 4.1(s), or any
account added as a Blocked Account pursuant to and in accordance with Section 4.1(s) and
which, if not maintained at and in the name of the Agent, is subject to a
Blocked Account Agreement.


 


Blocked
Account Agreement: 
An agreement among the SPV, the Agent and a Blocked Account Bank in
substantially the form of Exhibit E or in form and substance
reasonably satisfactory to the Agent.


 


Blocked
Account Bank: 
Each of the banks set forth in Schedule 4.1(s), as such Schedule 4.1(s) may
be modified pursuant to Section 4.1(s).


 


Business Day:  Any day excluding Saturday, Sunday and any
day on which banks in New York, New York and Charlotte, North Carolina, are
authorized or required by law to close, and, when used with respect to the
determination of any Offshore Rate or any notice with respect thereto, any such
day which is also a day for trading by and between banks in United States
dollar deposits in the London interbank market.


 


Capitalized
Lease:  Of a
Person, means any lease of property by such Person as lessee which would be
capitalized on a balance sheet of such Person prepared in accordance with GAAP.


 


Charged-off
Receivable:  Any
Receivable that is, or should have been, charged-off in accordance with the
Credit and Collection Policy.


 


3

















 


Class:
Each group of Investors consisting of the related Class Agent, one or more
related Conduit Investors and the related Alternate Investors, and their
respective successors and permitted assigns. 
Initially, there are 2 classes, the Enterprise Funding Class and
the Market Street Class.


 


Class Agent:  With respect to (i) the Enterprise
Funding Class, Bank of America and its successors and permitted assigns and (ii) the
Market Street Class, PNC Bank and its successors and permitted assigns, and (iii) any
other Class, the Person specified in any supplement to this Agreement as the
class agent for such Class and such Person’s successors and permitted
assigns.


 


Class Facility
Limit:  With
respect to the Enterprise Funding Class, $102,000,000, (ii) with respect
to the Market Street Class, $51,000,000 and (iii) with respect to any
other Class, the amount specified in any supplement to this Agreement as the Class Facility
Limit for such Class; provided, however, that the Class Facility Limit
with respect to any Class shall not at any time exceed the aggregate
Commitments for the related Alternate Investors.


 


Class Maximum
Net Investment: 
At any time for any Class, an amount equal to the related Class Facility
Limit divided by 1.02.


 


Class Net
Investment:  At
any time with respect to any Class, the excess, if any of (a) the sum,
without duplication, of (i) the cash amounts paid by the related Class Agent
on behalf of the Investors in the related Class to the SPV pursuant to Sections
2.2 and 2.3 and (ii) the amount of any funding under a Program
Support Agreement related to such Class that is allocated to the Interest
Component related to such Class at the time of such funding over (b) the
aggregate amount of Collections theretofore received and applied by such Class Agent
to reduce the related Class Net Investment pursuant to Section 2.12;
provided that the Class Net Investment of a Class shall be
restored and reinstated in the amount of any Collections so received and
applied if at any time the distribution of such Collections is rescinded or
must otherwise be returned for any reason; provided  further, that
the Class Net Investment of a Class shall be increased by the amount
described in Section 3.1(b) as described therein.


 


Class Pro
Rata Share: With respect to any Class on any
date, the percentage equivalent of a fraction, the numerator of which is the
related Class Facility Limit as of such date and the denominator of which
is the Facility Limit as of such date.


 


Class Termination
Date:  For any
Class, unless the related Class Agent elects otherwise, the date of
termination of the commitment of any Program Support Provider under a Program
Support Agreement with respect to such Class, it being understood that as of
the Closing Date, the commitment termination dates for the Liquidity Agreements
for each Class are the Commitment Termination Date.


 


Closing Date:  March 3, 2009.


 


Code:  The Internal Revenue Code of 1986, as
amended.


 


Collateral
Agent:  Bank of
America, as collateral agent for any Program Support Provider, the holders of
Commercial Paper and certain other parties.


 


Collection
Account:  As
defined in Section 2.9.


 


4

















 


Collections:  With respect to any Receivable, all cash
collections and other cash proceeds of such Receivable, including (i) all
scheduled interest and principal payments, and any applicable late fees, in any
such case, received and collected on such Receivable, (ii) all proceeds
received by virtue of the liquidation of such Receivable, net of necessary and
reasonable expenses incurred in connection with such liquidation, (iii) all
proceeds received (net of any such proceeds which are required by law to be
paid to the applicable Obligor) under any damage, casualty or other insurance
policy with respect to such Receivable, (iv) all cash proceeds of the
Related Security related to or otherwise attributable to such Receivable, (v) any
repurchase payment received with respect to such Receivable pursuant to any
applicable recourse obligation of the Servicer, the Seller or the Originator
under this Agreement or any other Transaction Document and (vi) all Deemed
Collections received with respect to such Receivable.


 


Commercial
Paper:  The
promissory notes issued or to be issued by any Conduit Investor (or its related
commercial paper issuer if any Conduit Investor does not itself issue
commercial paper) in the commercial paper market.


 


Commitment:  With respect to each Alternate Investor, as
the context requires, (i) the commitment of such Alternate Investor to
make Investments and to pay Assignment Amounts in accordance herewith in an
amount not to exceed the amount described in the following clause (ii),
and (ii) the dollar amount set forth opposite such Alternate Investor’s
signature on the signature pages hereof under the heading “Commitment” (or
in the case of an Alternate Investor which becomes a party hereto pursuant to
an Assignment and Assumption Agreement, as set forth in such Assignment and
Assumption Agreement), minus the dollar amount of any Commitment or
portion thereof assigned by such Alternate Investor pursuant to an Assignment
and Assumption Agreement, plus the dollar amount of any increase to such
Alternate Investor’s Commitment consented to by such Alternate Investor prior
to the time of determination; provided, however,
that, except as otherwise provided in Section 3.3(b), in the
event that the Facility Limit is reduced, the Commitment of each Alternate
Investor shall be reduced by a pro rata
amount of such reduction.


 


Commitment
Termination Date: 
November 23, 2009, or such later date to which the Commitment
Termination Date may be extended by the SPV, the Agent, the Class Agents
and some or all of the Alternate Investors (in their sole discretion).


 


Concentration
Factor:  On any
day, the product of (a) 5 and (b) the percentage set forth in the
definition of Concentration Limit for Non-Investment Grade Obligors.


 


Concentration
Limit:  The
aggregate amount of Receivables with respect to a single Obligor and such
Obligor’s Subsidiaries and Affiliates that constitute more than 4.05% of the
aggregate amount of Eligible Receivables; provided, however, that individual
Obligor concentration limits may exceed 4.05%, subject to specific Obligor
ratings as set forth below:


 


	
  S&P / Moody’s

  	
   

  	
  Concentration Limits

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  AA-/Aa3 or
  better

  	
   

  	
  10.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  A/A2 or
  better

  	
   

  	
  10.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  BBB+/Baa1 or
  better

  	
   

  	
  9.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  BBB-/Baa3 or
  better

  	
   

  	
  6.75

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Non-Investment
  Grade Obligors

  	
   

  	
  4.05

  	
  %

  



 


5

















 


provided, further, that (i) if any
Obligor is rated by both Moody’s and S&P, the rating for determining the
applicable Concentration Limit will be the lower of the two ratings and (ii) if
any Obligor is not rated by either S&P or Moody’s, the applicable
Concentration Limit shall be the Concentration Limit applicable to
Non-Investment Grade Obligors.


 


Conduit
Assignee:  With
respect to any Class, any special purpose entity that finances its activities
directly or indirectly through asset backed commercial paper and is
administered by the Class Agent for such Class and designated by such
Class Agent from time to time to accept an assignment from the related
Conduit Investor of all or a portion of the portion of the related Class Net
Investment funded by such Conduit Investor.


 


Conduit
Investment Termination Date:  With respect to any Conduit Investor, the
date of the delivery by such Conduit Investor to the SPV of written notice that
such Conduit Investor elects, in its sole discretion, to commence the
amortization of the related Class Net Investment funded by it or otherwise
liquidate its interest in the Asset Interest.


 


Conduit
Investors: 
Enterprise Funding, Market Street, any other special purpose entity that
finances its activities directly or indirectly through asset backed commercial
paper that becomes a party to this Agreement 
in accordance with the terms hereof and any Conduit Assignee of any of
the foregoing.


 


Contract:  In relation to any Receivable, any and all
contracts, instruments, agreements, leases, invoices, notes, or other writings
pursuant to which such Receivable arises or which evidence such Receivable or
under which an Obligor becomes or is obligated to make payment in respect of
such Receivable.


 


Contractual
Dilution:  With
respect to any Receivable and any Obligor, the portion of the Unpaid Balance of
such Receivable that is subject to reduction as a result of any rebate,
discount or other reduction pursuant to any provision of the related Contract
or otherwise pursuant to any program of the Originator or the Seller that is in
effect on or before the date such Receivable is acquired by the SPV, regardless
of whether the Originator, the Seller, the SPV or the Servicer has accrued or
established a reserve therefor.  For the
avoidance of doubt, (i) any reference in this Agreement or any other
Transaction Document to the amount of any Contractual Dilution shall be to the
greater of the reduction that may apply to such Receivable and the accrual or
reserve established by the Originator, the Seller, the Servicer or the SPV, as
applicable, in respect of any such reduction and (ii) Contractual
Dilutions do not include any reduction in the Unpaid Balance of any Receivable
to the extent such reduction is a Dilution.


 


CP Rate:  As defined in Section 2.4.


 


6

















 


Credit and
Collection Policy: 
The Originator’s credit and collection policy or policies and practices,
relating to Contracts and Receivables as in effect on the Closing Date and set
forth in Exhibit C, as modified, from time to time, in compliance
with Sections 6.1(a)(vii) and 6.2(c).


 


Days Sales
Outstanding: 
For any Monthly Period means the number of calendar days equal to the
product of (a) 91 and (b) the amount obtained by dividing (i) the
aggregate Unpaid Balance of Receivables as of the last day of the immediately
preceding Monthly Period by (ii) the aggregate amount of sales by
the Originator giving rise to Receivables during the three (3) consecutive
Monthly Periods immediately preceding such monthly Report Date.


 


Deemed
Collections: 
Any Collections on any Receivable deemed to have been received pursuant
to Sections 2.6.


 


Default Rate:  On any day, a rate per annum
equal to the Base Rate plus 2.00%.


 


Default Ratio:  For any Monthly Period, the ratio (expressed as a
percentage) computed as of the related Month End Date next preceding the first
day of such Monthly Period by
dividing (i) the sum of (a) the aggregate Unpaid Balance of all
Receivables which are 61-90 days past due as of such Month End Date and (b) the
aggregate Unpaid Balance of all Receivables which became Charged-off
Receivables during such Monthly Period, by (ii) the aggregate
amount of sales by Originator giving rise to Receivables for the 3rd preceding month.


 


Defaulted
Receivable: 
Without double counting for any Charged-off Receivable, a Receivable (i) as
to which any payment, or part thereof, remains unpaid for more than 60 days
from the original due date for such Receivable; (ii) as to which an Event of
Bankruptcy has occurred and is continuing with respect to the Obligor thereof; (iii) which
has been identified by the SPV, the
Originator or the Servicer as uncollectible; or (iv) which, consistent
with the Credit and Collection Policy, should be written off as uncollectible; provided,
however, a Receivable that is a Charged-off Receivable shall not be a Defaulted
Receivable.


 


Defaulting
Alternate Investor: 
As defined in Section 2.3(f).


 


Delinquency
Ratio:  For any
Monthly Period, the ratio (expressed as a percentage) computed as of the related Month End Date next
preceding the first day of such Monthly Period by dividing (i) the aggregate Unpaid Balance of all
Delinquent Receivables and Disputed Receivables at such time, by (ii) the
aggregate Unpaid Balance of all Receivables at such time.


 


Delinquent
Receivable:  A
Receivable:  (i) as to which any
payment, or part thereof, remains unpaid for more than sixty (60) days from the
original due date for such Receivable and (ii) which is not a Disputed
Receivable.


 


Dilution:  With respect to any Receivable on any date,
an amount equal to the sum, without duplication, of the aggregate reduction
effected on such day in the Unpaid Balance of such Receivable attributable to
any non-cash items including credits, rebates, billing errors, sales or similar
taxes, cash discounts, volume discounts, allowances, disputes (it being
understood that a Receivable is “subject to dispute” only if and to the extent
that, in the reasonable good faith judgment of the Originator (which shall be
exercised in the ordinary course of business) the Obligor’s obligation in
respect of such Receivable is reduced on account of any performance 


 


7

















 


failure on the
part of the Originator), set-offs, counterclaims, chargebacks, returned or
repossessed goods, sales and marketing discounts, warranties, any unapplied
credit memos and other adjustments that are made in respect of Obligors; provided,
that Contractual Dilutions, Charged-off Receivables, Disputed Receivables,
Advertising Receivables and other write-offs related to an Obligor’s bad credit
shall not constitute Dilutions.


 


Dilution
Horizon Ratio: 
For any Monthly Period, the ratio (expressed as a percentage) computed
as of the related Month End Date immediately preceding the first day of such
Monthly Period by dividing (a) the aggregate amount of sales by Originator
giving rise to Receivables for the most recent 2 months, by (ii) the
aggregate Unpaid Balance of all Eligible Receivables as of such Month End Date.


 


Dilution Ratio:  For any Monthly Period, the ratio (expressed
as a percentage) computed as of the Month End Date immediately preceding the
first day of such Monthly Period by dividing (a) the aggregate Dilutions
incurred during the month ended on such Month End Date by (b) the
aggregate amount of sales by the 
Originator giving rise to Receivables in the month that occurs prior to
the month ended on such Month End Date.


 


Dilution
Reserve Ratio: 
For any Monthly Period, the sum of (a) the product of (i) the
Stress Factor and (ii) the Expected Dilution Ratio and (b) the
product of (i) the excess, if any, of the Dilution Spike over the Expected
Dilution Ratio, (ii) the Dilution Spike divided  by the
Expected Dilution Ratio multiplied  by (c) the Dilution
Horizon Ratio, in each case, for such Monthly Period.


 


Dilution Spike:  For any Monthly Period, the highest one-month
Dilution Ratio for the twelve months ending on the Month End Date next
preceding the first day of such Monthly Period.


 


Disputed
Receivable:  A Receivable (other than a Delinquent
Receivable, a Defaulted Receivable or a Receivable subject to a Contractual
Dilution), as to which, in the reasonable good faith judgment of the
Originator, the Seller or the Servicer (which shall be exercised in the
ordinary course of business), the Unpaid Balance thereof has been reduced (or
should be reduced) on account of any performance failure on the part of the
Originator, the Seller or the Servicer. 
For the avoidance of doubt, (i) any reference in this Agreement or
any other Transaction Document to the amount of any Disputed Receivable shall
be to the greater of the reduction that may apply to such Receivable and the
accrual or reserve established by the Originator, the Seller, the Servicer or
the SPV, as applicable, in respect of any such reduction and (ii) Disputed
Receivable does not include any reduction in the Unpaid Balance of any
Receivable to the extent such reduction is a Dilution.


 


Dollar
or $:  The lawful currency of the
United States.


 


Downgrade
Collateral Account: 
As defined in Section 3.2(a).


 


Downgrade Draw:  As defined in Section 3.2(a).


 


Eligible
Investments: 
Highly rated short-term debt or the other highly rated liquid
investments in which the Conduit Investors are permitted to invest cash
pursuant to their respective commercial paper program documents.


 


8

















 


Eligible
Receivable:  At
any time, any Receivable:


 


(i)                                     which was originated by the Originator in the
ordinary course of its business;


 


(ii)                                  (A)                              which, arises pursuant to a Contract with
respect to which each of the Originator and the SPV has performed all
obligations required to be performed by it thereunder, including shipment of
the merchandise and/or the performance of the services purchased thereunder; (B) which
has been billed to the relevant Obligor; and (C) which according to the Contract related thereto, is
required to be paid in full within 51 days of the original billing date
therefor;


 


(iii)                               which satisfies all applicable requirements
of the Credit and Collection Policy;


 


(iv)                              which
has been sold or contributed to the SPV pursuant to (and in accordance with)
the Second Tier Agreement, and by the Originator to the Seller pursuant to (and
in accordance with) the First Tier Agreement (other than the Receivables
acquired by the Seller in respect of the termination of the existing
receivables securitization on or prior to the date of the initial funding
hereunder) which does not arise from the sale of any inventory subject to any
Adverse Claim unless such Receivable has upon the transfer thereof been
released from such Adverse Claim and to
which the SPV has good and marketable title, free and clear of all Adverse
Claims;


 


(v)                                 the Obligor of which is a United States
resident, is not an Affiliate or employee of any of the parties hereto, and is
not an Official Body;


 


(vi)                              as
to which amount due on such Receivable has not been extended;


 


(vii)                           the
Obligor of which has been directed to make all payments to a Blocked Account;


 


(viii)                        which under the related Contract and
applicable Law is assignable without the consent of, or notice to, the Obligor
thereunder unless such consent has been obtained and is in effect or such
notice has been given;


 


(ix)                                which, together with the related Contract, is
in full force and effect and constitutes the legal, valid and binding
obligation of the related Obligor enforceable against such Obligor in
accordance with its terms and is not subject to any litigation, dispute,
offset, counterclaim or other defense;


 


(x)                                   which is denominated and payable only in
Dollars in the United States;


 


(xi)                                which is neither a Defaulted Receivable nor a
Charged-off Receivable;


 


(xii)                             which
is not due from an Obligor which is more than 60 days past due on more than
twenty-five percent (25%) of the aggregate Unpaid Balances of Receivables of
which it is the Obligor;


 


9

















 


(xiii)                          which has not been compromised, adjusted or modified (including by the
extension of time for payment or the granting of any discounts, allowances or
credits); provided, however, that only such portion of such
Receivable that is the subject of such compromise, adjustment or modification
shall be deemed to be ineligible pursuant to the terms of this clause (xiii);


 


(xiv)                         which is an “account” and is not evidenced by
an instrument within the meaning of Article 9 of the UCC of all applicable
jurisdictions;


 


(xv)                            which
is an “eligible asset” as defined in Rule 3a-7 under the Investment
Company Act of 1940;


 


(xvi)                         which, together with the Contract related
thereto, does not contravene in any material respect any Laws applicable
thereto (including Laws relating to truth in lending, fair credit billing, fair
credit reporting, equal credit opportunity, fair debt collection practices and
privacy);


 


(xvii)                      the assignments of which under the First Tier
Agreement by the Originator to the Seller, the Second Tier Agreement by the
Seller to the SPV and hereunder by the SPV to the Agent do not violate,
conflict or contravene any applicable Law or any contractual or other
restriction, limitation or encumbrance;


 


(xviii)                   which (together
with the Related Security related thereto) has been the subject of either a
valid transfer and assignment from, or the grant of a first priority perfected
security interest therein by, the SPV to the Agent, on behalf of the Investors,
of all of the SPV’s right, title and interest therein (unless repurchased by
the SPV at an earlier date pursuant to this Agreement)


 


(ixx)                           which
is not a Specified Ineligible Receivable, an Advertising Receivable or a Set
Aside Receivable; and


 


(xx)                              which
has been sold or contributed to the Seller pursuant to the First Tier Agreement
in a “true sale” or “true contribution” transaction and which has been  subsequently sold or contributed by the
Seller to the SPV in a “true sale” or “true contribution” transaction.


 


Enterprise
Funding:  As
defined in the Preamble.


 


Enterprise
Funding Class: 
The Class initially consisting of Enterprise Funding and Bank of
America (in its capacities as a Class Agent and an Alternate Investor) and
their respective successors and assigns.


 


ERISA:  The U.S. 
Employee Retirement Income Security Act of 1974, as amended and any
regulations promulgated and rulings issued thereunder.


 


ERISA
Affiliate:  With
respect to any Person, any corporation, partnership, trust, sole proprietorship
or trade or business which, together with such Person, is treated as a single 


 


10

















 


employer under
Section 414(b) or (c) of the Code or, with respect to any
liability for contributions under Section 302(c) of ERISA, Section 414(m) or
Section 414(o) of the Code.


 


Eurocurrency
Liabilities:  As
defined in Section 2.4.


 


Event of
Bankruptcy: 
With respect to any Person or Performance Guarantor, (i) that such
Person or Performance Guarantor (A) shall generally not pay its debts as
such debts become due or (B) shall admit in writing its inability to pay
its debts generally or (C) shall make a general assignment for the benefit
of creditors; (ii) any proceeding shall be instituted by or against such
Person or Performance Guarantor seeking to adjudicate it as bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee or other similar official for it or any substantial part of its
property; or (iii) such Person or Performance Guarantor shall take any
corporate, partnership or other similar appropriate action to authorize any of
the actions set forth in the preceding clauses (i) or (ii).


 


Exception
Funding Period: As defined in Section 5.2.


 


Excluded Taxes:  As defined in Section 9.3.


 


Expected
Dilution Ratio: 
For any Monthly Period, the average of the Dilution Ratios for the
twelve months ending on the Month End Date next preceding the first day of such
Monthly Period.


 


Facility Fee:
(i) With respect to the Enterprise Funding, the fee payable by the SPV to
Bank of America, the terms of which are set forth in the related Fee Letter; (ii) with
respect to the Market Street Class, the fee payable by the SPV to PNC Bank, the
terms of which are set forth in the related Fee Letter; and (iii) with
respect to any other Class, the fee specified in any supplement to this
Agreement or any separate fee letter as the facility fee payable by the SPV to
the related Class Agent.


 


Facility Limit:  As of any date, the sum of the Class Facility
Limits as of such date, which amount shall not exceed $153,000,000.


 


Federal Funds
Rate:  As
defined in Section 2.4.


 


Fee Letter:  As the context may require, any or all of: (i) with
respect to the Enterprise Funding Class, a confidential letter agreement, among
the SPV, the Originator, the Servicer, Enterprise Funding, and the related Class Agent
with respect to the fees to be paid by the SPV, the Servicer and the
Originators; (ii) with respect to the Market Street Class, a confidential
letter agreement, among the SPV, the Originator, the Servicer, Market Street,
and the related Class Agent with respect to the fees to be paid by the
SPV, the Servicer and the Originators; and (iii) with respect to any other
Class, a confidential letter agreement with respect to the fees to be paid by
the SPV, the Servicer and the Originators.


 


11
















 


Final Payout
Date:  The date,
after the Termination Date, on which the Net Investment has been reduced to
zero, all accrued Servicing Fees have been paid in full and all other Aggregate
Unpaids have been paid in full in cash.


 


First Tier
Agreement:  The
sale agreement dated as of the date hereof between the Originator and the
Seller, as amended, modified, supplemented, restated or replaced from time to
time.


 


Fitch:
Fitch Ratings, Inc. or any successor that is a nationally recognized
statistical rating organization.


 


GAAP:  Generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board in effect from time
to time.


 


Guaranty:  With respect to any Person, any agreement by
which such Person assumes, guarantees, endorses, contingently agrees to
purchase or provide funds for the payment of, or otherwise becomes liable upon,
the obligation of any other Person, or agrees to maintain the net worth or
working capital or other financial condition of any other Person or otherwise
assures any other creditor of such other Person against loss, including any
comfort letter, operating agreement or take-or-pay contract and shall include
the contingent liability of such Person in connection with any application for
a letter of credit.


 


Indebtedness:  Without duplication, with respect to any
Person such Person’s (i) obligations for borrowed money, (ii) obligations
representing the deferred purchase price of property other than accounts
payable arising in the ordinary course of such Person’s business on terms
customary in the trade, (iii) obligations, whether or not assumed, secured
by liens or payable out of the proceeds or products of property now or
hereafter owned or acquired by such Person, (iv) obligations which are
evidenced by notes, acceptances (including bankers acceptances), or other
instruments, (v) Capitalized Lease obligations, (vi) obligations for
which such Person is obligated pursuant to a Guaranty, (vii) reimbursement
obligations with respect to any letters of credit and (viii) any other
liabilities which would be treated as indebtedness in accordance with GAAP.


 


Indemnified
Amounts:  As
defined specified in Section 9.1.


 


Indemnified
Parties:  As
defined in Section 9.1.


 


Intercreditor
Agreement:  The
Intercreditor Agreement, dated as of October 15, 2007, by and among
JPMorgan Chase Bank, N.A., the Noteholders (as defined therein) and the Lenders
(as defined therein) and acknowledged by the Performance Guarantor and the
Originator.


 


Interest
Component:  At
any time of determination, the aggregate Yield accrued and to accrue through
the end of the current Rate Period for the Portion of Investment accruing Yield
calculated by reference to the CP Rate at such time (determined for such
purpose using the CP Rate most recently determined by the related Class Agent).


 


Investment:  As defined in Section 2.2(a).


 


12

















 


Investment
Date:  As
defined in Section 2.3(a).


 


Investment
Deficit:  As
defined in Section 2.3(f).


 


Investment
Request:  Each
request substantially in the form of Exhibit D.


 


Investor:  The Conduit Investors and/or the Alternate
Investors, as the context may require.


 


Investor
Percentage:  At
any time with respect to any Investor, the percentage equivalent of a fraction
the numerator of which is equal to the portion of the Net Investment owned by
such Investor on such day and the denominator of which is equal to the Net
Investment on such day.


 


Law:  Any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree,
judgment or award of any Official Body.


 


Liquidity Agreement:  For any Class, any agreement entered into by
any related Conduit Investor (or any commercial paper issuer that finances such
Conduit) providing for the sale by such Conduit Investor (or any commercial
paper issuer that finances such Conduit) of interests in its investment in the
Asset Interest and the portion of the Class Net Investment funded by such
Conduit Investor (or any commercial paper issuer that finances such Conduit)
(or portions thereof), or the making of loans or other extensions of credit to
such Conduit Investor (or any commercial paper issuer that finances such
Conduit) secured by security interests such Conduit Investor’s (or any
commercial paper issuer that finances such Conduit) interest in the Asset
Interest and the portion of the Class Net Investment funded by such
Conduit Investor, to support all or part of such Conduit Investor’s (or any
commercial paper issuer that finances such Conduit) payment obligations under
its Commercial Paper or to provide an alternate means of funding such Conduit
Investor’s investments in accounts receivable or other financial assets, in
each case as amended, modified, supplemented, restated or replaced from time to
time.


 


Liquidity Bank:  Includes the various financial institutions
that are, or may become, parties to a Liquidity Agreement, as a purchaser or
lender thereunder.


 


Loss Horizon
Ratio:  For any
Monthly Period, the ratio, expressed as a percentage, of (a) the aggregate amount of sales by
Originator giving rise to Receivables
for the most recent 5 months preceding the related Month End Date, divided
by (b) the aggregate Unpaid Balance of all Eligible Receivables as of
such recent Month End Date.


 


Loss Reserve
Ratio:  For any Monthly Period, the product of
(i) Stress Factor, (ii) the highest three-month average Default Ratio
during the most recent 12 month period, and (iii) the Loss Horizon Ratio
for such Monthly Period.


 


Majority
Investors:  At
any time, those Alternate Investors which hold Commitments aggregating in
excess of 2/3 of the Facility Limit as of such date; provided that at
any time when there is 2 or fewer Conduit Investors, shall mean 100% of the
Alternate Investors.


 


Market Street:  As defined in the Preamble.


 


13

















 


Market Street
Class:  The Class consisting
initially of Market Street and PNC Bank (in its capacities as a Class Agent
and an Alternate Investor) and their respective successors and assigns.


 


Master Note
Purchase Agreement: 
The Master Note Purchase Agreement, dated as of October 15, 2007,
by and among the Performance Guarantor, the Originator and the Purchasers (as
defined therein).


 


Material
Adverse Effect: 
With respect to any Person, any event or condition which is reasonably
likely to have a material adverse effect on (i) the collectibility of the
Receivables, (ii) the condition (financial or otherwise), businesses or
properties of the SPV, the Servicer or the Originator, (iii) the ability
of the SPV, the Servicer or the Originator to perform its respective
obligations under the Transaction Documents to which it is a party, or (iv) 
the status, perfection or priority of the security interests of the Agent, any Class Agent
or any Investors under the Transaction Documents.


 


Material
Subsidiary: At any time, shall mean Lagasse, Inc and
ORS Nasco, Inc.


 


Maturity Date:  November 23, 2013.


 


Maximum Net
Investment:  At
any time, an amount equal to the Facility Limit divided by 1.02.


 


Minimum
Reserve Ratio: 
For any Monthly Period, the sum of (a) the Concentration Factor for
such Monthly Period and (b) the product of the (i) the Expected
Dilution Ratio for such Monthly Period and (ii) the Dilution Horizon Ratio
for such Monthly Period.


 


Month End Date:  The last day of each calendar month.


 


Monthly Period:  The period from the Closing Date to and
including the first Month End Date after the Closing Date and each subsequent
calendar month until the Final Payout Date.


 


Moody’s:  Moody’s Investors Service, Inc., or any
successor that is a nationally recognized statistical rating organization.


 


Multiemployer
Plan:  As
defined in Section 4001(a)(3) of ERISA.


 


Net Investment:  At any time, the sum of the Class Net
Investments on such day.


 


Net Pool
Balance:  At any
time, (i) the aggregate Unpaid Balances of Eligible Receivables at such
time, minus (ii) the sum of (a) the aggregate amount of the
portion of the Unpaid Balances of Eligible Receivables in excess of the
applicable Concentration Limits, (b) the then-current aggregate amount of
Contractual Dilutions related to all Eligible Receivables, (c) the
then-current aggregate amount of all sales and other taxes included in the
Unpaid Balances of all Eligible Receivables, (d) the then-current amount
of reductions to the Unpaid Balance of all Receivable that are Disputed
Receivables and (e) the aggregate amount of all offsetting specific  reserves established by any of the
Originator, the Seller, the Servicer and the SPV in respect of all Eligible
Receivables that are Reserve Receivables.


 


14

















 


Non-Defaulting
Alternate Investor: 
As defined in Section 2.3(f).


 


Obligor:  With respect to any Receivable, the Person
obligated to make payments in respect of such Receivable pursuant to a
Contract.


 


Official Body:  Any government or political subdivision or
any agency, authority, bureau, central bank, commission, department or
instrumentality of any such government or political subdivision, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or domestic.


 


Offshore Rate:  As defined in Section 2.4.


 


Opinion:  That certain opinion of Mayer Brown LLP,
special counsel to the SPV, the Seller, the Performance Guarantor and the
Originator, dated the Closing Date and delivered with respect to the
transactions contemplated by this Agreement and covering certain bankruptcy and
insolvency matters i.e.  “true sale” and
nonconsolidation.


 


Originator:  As defined in the Preamble.


 


Other SPV:  Any Person other than the SPV that has
entered into a receivables purchase agreement, loan and security agreement,
note purchase agreement, transfer and administration agreement or any other
similar agreement with the Conduit Investors.


 


Pension Plan:  An employee pension benefit plan as defined
in Section 3(2) of ERISA, which is subject to Title IV of ERISA (other
than a Multiemployer Plan) and to which the Originator, the SPV or an ERISA
Affiliate of either has, or is reasonably expected to have, any liability,
including any liability by reason of having been a substantial employer within
the meaning of Section 4063 of ERISA or by reason of being deemed to be a
contributing sponsor under Section 4069 of ERISA.


 


Performance Guarantee: The Performance
Guarantee Agreement, dated as of the date hereof, by the Performance Guarantor
and the SPV, as amended, modified, supplemented, restated or replaced from time
to time.


 


Performance
Guarantor: 
United Stationers, Inc, an Delaware corporation.


 


Permitted
Investment Date: 
Any Business Day prior to the Termination Date.


 


Permitted
Liens: Any of (i) the liens of the Agent, on
behalf of the Investors, created pursuant to the Transaction Documents and (ii) liens
created with the consent of the Agent and Majority Investors.


 


Person:  An individual, partnership, limited liability
company, corporation, joint stock company, trust (including a business trust),
unincorporated association, joint venture, firm, enterprise, Official Body or
any other entity.


 


15

















 


Pledge
Agreement:  The
Pledge Agreement, dated as of May 21, 2003, by and among the Originator,
the Performance Guarantor and other Subsidiaries of the Performance Guarantor
(as set forth on the signature page thereto) and Bank One, NA.


 


PNC Bank:  As defined in the Preamble.


 


Portion of
Investment:  As
defined in Section 2.4(a).


 


Potential
Termination Event: 
An event which but for the lapse of time or the giving of notice, or
both, would constitute a Termination Event.


 


Principal
Collections: 
For any Monthly Period, (i) all Collections received during such
Monthly Period other than finance charges and (ii) all payments received
on Eligible Investments for such Monthly Period.


 


Pro Rata Share:  For any Alternate Investor, the Commitment of
such Alternate Investor, divided by the sum of the Commitments of all
Alternate Investors (or, if the Commitments shall have been terminated, its pro
rata share of the Alternate Investor Percentage of the related Class Net
Investment).


 


Program Fee:
As defined in the Fee Letter.


 


Program
Support Agreement: 
Any agreement, including any Liquidity Agreement, entered into by any
Program Support Provider providing for the issuance of one or more letters of
credit for the account of a Conduit Investor (or any related commercial paper
issuer that finances the Conduit Investor), the issuance of one or more surety
bonds for which any Conduit Investor (or such related issuer) is obligated to
reimburse the applicable Program Support Provider for any drawings thereunder,
the sale by any Conduit Investor (or such related issuer) to any Program
Support Provider of the Asset Interest (or portions thereof or participations
therein) and/or the making of loans and/or other extensions of credit to any
Conduit Investor (or such related issuer) in connection with such Conduit
Investor’s commercial paper program, together with any letter of credit, surety
bond or other instrument issued thereunder.


 


Program
Support Provider: 
Any Person, including any Liquidity Bank, now or hereafter extending
credit or having a commitment to extend credit to or for the account of, or to
make purchases from, any Conduit Investor (or any related commercial paper
issuer that finances the Conduit Investor) or issuing a letter of credit,
surety bond or other instrument to support any obligations arising under or in
connection with such Conduit Investor’s (or such related issuer’s) commercial
paper program.


 


Purchase
Termination Date: 
As defined in Section 8.1 of the Second Tier Agreement.


 


Rate Period:  As defined in Section 2.4.


 


Rate Type:  As defined in Section 2.4.


 


Rating
Agencies:  Collectively,
Fitch, Moody’s and S&P.


 


16

















 


Receivable:  Any indebtedness and other obligations owed
by any Obligor to the Originator (without giving effect to any transfer under
the First Tier Agreement and Second Tier Agreement) under a Contract or any
right of the SPV to payment from or on behalf of an Obligor, whether
constituting an account, chattel paper, instrument or general intangible,
arising in connection with the sale or lease of goods or the rendering of
services, in either case, by the Originator, and includes the obligation to pay
any finance charges, fees and other charges with respect thereto.


 


Recipient:  As defined in Section 2.10.


 


Records:  All Contracts and other documents, purchase
orders, invoices, agreements, books, records and any other media, materials or
devices for the storage of information (including tapes, disks, punch cards,
computer programs and databases and related property) maintained by the SPV,
the Originator or the Servicer with respect to the Receivables, any other
Affected Assets or the Obligors.


 


Reinvestment:  As defined in Section 2.2(b).


 


Reinvestment
Period:  The
period commencing on the Closing Date and ending on the Termination Date.


 


Related
Security:  With
respect to any Receivable, all of the Originator’s (without giving effect to
any transfer under the First Tier Agreement and the Second Tier Agreement) or
the SPV’s rights, title and interest in, to and under:


 


(i)                                     all
other security interests or liens and property subject thereto from time to
time, if any, purporting to secure payment of such Receivable, whether pursuant
to the Contract related to such Receivable or otherwise, together with all
financing statements and other filings signed by an Obligor relating thereto;


 


(ii)                                  the
Contract and all guarantees, indemnities, warranties, insurance (and proceeds
and premium refunds thereof) or other agreements or arrangements of any kind
from time to time supporting or securing payment of such Receivable, whether
pursuant to the Contract related to such Receivable or otherwise;


 


(iii)                              all
Records related to such Receivable; and


 


(iv)                              all
Collections on and other proceeds of any of the foregoing.


 


Reportable
Event:  Any
event, transaction or circumstance which is required to be reported with
respect to any Pension Plan under Section 4043 of ERISA and the applicable
regulations thereunder.


 


Reporting Date:  As defined in Section 2.8.


 


Required
Downgrade Assignment Period:  As defined in Section 3.2(a).


 


17

















 


Required
Notice Days: 
With respect to any reduction of the Net Investment pursuant to the
provisions of Section 2.7(a) or Section 2.13, (i) two
(2) Business Days in the case of a reduction of Net Investment of less
than $10,000,000 and (ii) five (5) Business Days in the case of a
reduction of Net Investment of at least $20,000,000.


 


Required
Reserves:  At
any time other than during an Exception Funding Period, the sum of (i) the
Net Pool Balance on such date of calculation multiplied by the greater of (a) the
sum of the Loss Reserve Ratio on such date of calculation and the Dilution
Reserve Ratio on such date of calculation; and (b) the Minimum Reserve
Ratio on such date of calculation; (ii) the Yield Reserve on such date of
calculation; and (iii) the Servicing Fee Reserve on such date of
calculation (such sum, the “Standard Reserves”).  At any time during an Exception Funding
Period, the greater of (i) the Standard Reserves on such date of
calculation and (ii) 50% of the Net Pool Balance on such date of
calculation.


 


Reserve
Receivable:  Any
Receivable for which the Originator, the Seller, the Servicer or the SPV has
established an offsetting specific reserve for such Receivable or the related
Obligor.


 


Responsible
Officer:  With
respect any Person, the Chairman of the Board, President, Chief Financial
Officer, any Vice President, Treasurer, Assistant Treasurer, Secretary or
Assistant Secretary of such Person.


 


Restricted
Payments:  As
defined in Section 6.2(k).


 


Revolving Credit
Agreement:  As
defined in Section 6.3.


 


Sale
Termination Date: 
As defined in Section 8.1 of the First Tier Agreement.


 


Second Tier
Agreement:  The
purchase agreement dated as of the date hereof between the Seller and SPV, as
amended, modified, supplemented, restated or replaced from time to time.


 


Seller:
As defined in the Preamble.


 


Servicer:  As defined in Section 7.1.


 


Servicer
Default:  As
defined in Section 7.5.


 


Servicer
Report:  A
report, in substantially the form attached hereto as Exhibit F or
in such other form as is mutually agreed to by the SPV, the Servicer and the
Agent, furnished by the Servicer pursuant to Section 2.8.


 


Servicing Fee:  The fees payable to the Servicer from
Collections, in an amount equal to either (a) at any time when the
Servicer is the Seller or any of its Affiliates, the Servicing Fee Rate on (i) the
sum of (x) the Unpaid Balance of Receivables as of the last day of the
current calendar month, plus (y) the Unpaid Balance of Receivables as of
the last day of the immediately preceding calendar month, divided by (ii) 2,
or (b) at any time when the Servicer is not the Seller or any of its
Affiliates, the amount agreed between such Servicer and the Agent, payable in
arrears on each Settlement Date from Collections pursuant to, and subject to
the priority of payments set forth in, Section 2.12.  With respect to any Portion of Investment,
the Servicing Fee 


 


18

















 


allocable
thereto shall be equal to the Servicing Fee determined as set forth above, times
a fraction, the numerator of which is the amount of such Portion of Investment
and the denominator of which is the Net Investment.


 


Servicing Fee
Rate: 1.0% per  annum


 


Servicing Fee
Reserve:  At any
time, an amount equal to the product of (i) the Servicing Fee Rate (ii) a
fraction having Days Sales Outstanding as the numerator, and 360 as the
denominator and (iii) the aggregate Unpaid Balance of all Receivables on
such date of calculation.


 


Set-Aside
Receivable:  Any
Receivable with respect to which the Originator, the Seller or the Servicer at
any time evidences the payment obligation of the related Obligor by a note or
other instrument and agrees to any extended payment date.


 


Settlement
Date:  (i) Prior
to the Termination Date, the 20th day of each calendar month (or, if such day is
not a Business Day, the immediately succeeding Business Day) or such other day
as the SPV and the Agent may from time to time mutually agree, and (ii) for
any Portion of Investment for any Class on and after the Termination Date,
each day selected from time to time by the related Class Agent (it being
understood that the Class Agents may select such Settlement Dates to occur
as frequently as daily) or, in the absence of any such selection, the date
which would be the Settlement Date for such Portion of Investment pursuant to clause (i) of
this definition.


 


S&P:  Standard & Poor’s Ratings Services,
a division of The McGraw-Hill Companies, Inc., or any successor that is a
nationally recognized statistical rating organization.


 


Specified
Ineligible Receivable: 
(i) On and after the Closing Date, each Receivable the Obligor of
which is listed on Schedule II hereto and (ii) from time to time after the
Closing Date, each Receivable, the Obligor of which is identified by the
Servicer to the Class Agents in writing (it being understood that for
purposes of this clause (ii), the Servicer shall not designate as Specified
Ineligible Receivables, the Receivables of more than two Obligors per
year).  Any designation by the Servicer
of a Receivable as a Specified Ineligible Receivable shall be effective
beginning with the Monthly Period immediately following the date of such
designation.  Any Receivable that has
been designated as an Specified Ineligible Receivable shall not become an
Eligible Receivable without the prior written consent of the Agent.


 


SPV:  United Stationers Receivables, LLC, an
Illinois limited liability company.


 


Stress Factor:  2.75.


 


Sub-Servicer:  As defined in Section 7.1(d).


 


Subsidiary:  With respect to any Person, any corporation
or other Person (i) of which securities or other ownership interests
having ordinary voting power to elect a majority of the board of directors or
other Persons performing similar functions are at the time directly or indirectly
owned by such Person or (ii) that is directly or indirectly controlled by
such Person within the meaning of control under Section 15 of the
Securities Act of 1933.


 


19

















 


Taxes:  As defined in Section 9.3.


 


Termination
Date:  The
earliest of (i) the latest occurring Class Termination Date, (ii) the
day upon which the Termination Date is declared or automatically occurs
pursuant to Section 8.2, (iii) the Commitment Termination
Date, (iv) the Sale Termination Date, (v) the Purchase Termination
Date, and (vi) and the Maturity Date.


 


Termination
Event:  As
defined in Section 8.1.


 


Transaction
Costs:  As
defined in Section 9.4(a).


 


Transaction
Documents: 
Collectively, this Agreement, the First Tier Agreement, the Second Tier
Agreement, the Fee Letter, the Blocked Account Agreements, and all of the other
instruments, documents and other agreements executed and delivered by the
Servicer, the Originator or the SPV in connection with any of the foregoing.


 


Trigger Delinquency
Ratio:  For any
Monthly Period, the ratio (expressed as a percentage) computed as of the
related Month End Date next preceding the first date of such Monthly Period by
dividing (i) the aggregate Unpaid Balance of all Receivables (other than
Specified Ineligible Receivables) which are Delinquent Receivables (other than
Specified Ineligible Receivables which are Delinquent Receivables) plus
Disputed Receivables (other than Specified Ineligible Receivables which are
Disputed Receivables), by (ii) the aggregate Unpaid Balance of all
Receivables (other than Specified Ineligible Receivables) at such time.


 


Trigger
Default Ratio:  For
any Monthly Period, the ratio (expressed as a percentage) computed as of the
related Month End Date next preceding the first date of such Monthly Period by
dividing (i) the sum of (a) the aggregate Unpaid Balance of all
Receivables (other than Specified Ineligible Receivables) which are 61-90 days
past due as of such Month End Date and (b) the aggregate Unpaid Balance of
all Receivables which became Charged-off Receivables during such Monthly Period
(other than Specified Ineligible Receivables which are Defaulted Receivables), by
(ii) the aggregate amount
of sales by Originator giving rise to Receivables for the 3rd most preceding month.


 


Trigger Dilution Ratio: For any Monthly Period,
the ratio (expressed as a percentage) computed as of the related Month
End Date next preceding the first date of such Monthly Period by dividing (i) the aggregate reduction
in the original balance of all Receivables attributable to Dilutions during
such month, by (ii) the aggregate amount of sales by the Originator
in the most recent prior month.


 


UCC:  The Uniform Commercial Code as in effect in
the applicable jurisdiction or jurisdictions.


 


Unpaid Balance:  Of any Receivable means at any time the
unpaid principal amount thereof.


 


U.S.  or United States:  The United States of America.


 


Yield:  As defined in Section 2.4.


 


Yield Payment
Date:  The last
day of each Rate Period.


 


20

















 


Yield Reserve:
At any time, an amount equal to (a) the product of (i) 2.5 multiplied
by the Days Sales Outstanding as of such day and (ii) the Default Rate in
effect as of such day, divided by (b) 360, as applicable, multiplied by
the Net Pool Balance.


 


Section 1.2                                   Other
Terms.


 


All terms
defined directly or by incorporation herein shall have the defined meanings
when used in any certificate or other document delivered pursuant hereto unless
otherwise defined therein.  For purposes
of this Agreement and all such certificates and other documents, unless the
context otherwise requires:  (a) accounting
terms not otherwise defined herein, and accounting terms partly defined herein
to the extent not defined, shall have the respective meanings given to them
under, and shall be construed in accordance with, GAAP; (b) terms used in Article 9
of the UCC in the State of New York, and not specifically defined herein, are
used herein as defined in such Article 9; (c) references to any amount
as on deposit or outstanding on any particular date means such amount at the
close of business on such day; (d) the words “hereof,” “herein” and “hereunder”
and words of similar import refer to this Agreement (or the certificate or
other document in which they are used) as a whole and not to any particular
provision of this Agreement (or such certificate or document); (e) references
to any Section, Schedule or Exhibit are references to Sections, Schedules
and Exhibits in or to this Agreement (or the certificate or other document in
which the reference is made) and references to any paragraph, subsection,
clause or other subdivision within any Section or definition refer to such
paragraph, subsection, clause or other subdivision of such Section or
definition; (f) the term “including” means “including without limitation”;
(g) references to any Law refer to that Law as amended from time to time
and include any successor Law; (h) references to any agreement refer to
that agreement as from time to time amended or supplemented or as the terms of
such agreement are waived or modified in accordance with its terms; (i) references
to any Person include that Person’s successors and permitted assigns; and (j) headings
are for purposes of reference only and shall not otherwise affect the meaning
or interpretation of any provision hereof.


 


Section 1.3                                   Computation
of Time Periods; Calculations.


 


(a)                                  Unless
otherwise stated in this Agreement, in the computation of a period of time from
a specified date to a later specified date, the word “from” means “from and
including”, the words “to” and “until” each means “to but excluding”, and the
word “within” means “from and excluding a specified date and to and including a
later specified date”.


 


(b)                                 With
respect to Set-Aside Receivables, all calculations of triggers, reserves and
ratios herein shall be made based on the dates such Receivable or portion
thereof became a Set-Aside Receivable.


 


21
















 


Article II


 


Purchases and Settlements


 


Section 2.1                                   Transfer of
Affected Assets; Intended Characterization.


 


(a)                                  Sale
of Asset Interest.  In consideration
of the payment by the Agent (on behalf of the Conduit Investors or the related
Alternate Investors as determined pursuant to Section 2.3) of the
amount of the initial Net Investment on the Closing Date and the Agent’s
agreement (on behalf of the Conduit Investors or the related Alternate
Investors as determined below) to make payments to the SPV from time to time in
accordance with Section 2.2, effective upon the SPV’s receipt of
payment for such initial Net Investment on the Closing Date, the SPV hereby
sells, conveys, transfers and assigns to the Agent, on behalf of the Investors,
as their interests may from time to time appear, (i) all Receivables
existing on the Closing Date or thereafter arising or acquired by the SPV from
time to time prior to the Final Payout Date, and (ii) all other Affected
Assets, whether existing on the Closing Date or thereafter arising at any time.


 


(b)                                 Purchase
of Asset Interest.  Subject to the
terms and conditions hereof, the Agent (on behalf of the Investors) hereby
purchases and accepts from the SPV the Receivables and all other Affected
Assets sold, assigned and transferred pursuant to subsection (a).  The Agent’s right, title and interest in and
to the Receivables and all other Affected Assets hereunder is herein called the
“Asset Interest”.  The Agent shall hold the Asset Interest on
behalf of the Conduit Investors and the Alternate Investors, as applicable pro
rata in accordance with their respective Investor Percentages.


 


(c)                                  Obligations
Not Assumed.  The foregoing sale,
assignment and transfer does not constitute and is not intended to result in
the creation, or an assumption by the Agent, the Class Agent or any
Investor, of any obligation of the SPV, the Seller, the Originator, or any
other Person under or in connection with the Receivables or any other Affected
Asset, all of which shall remain the obligations and liabilities of the SPV,
the Seller and the Originator, as applicable.


 


(d)                                 Intended
Characterization; Grant of Security Interest.


 


(i)                                     The
SPV, the Agent, the Class Agents and the Investors intend that the sale,
assignment and transfer of the Affected Assets to the Agent (on behalf of the
Conduit Investors and/or the Alternate Investors as applicable) hereunder shall
be treated as a sale for all purposes, other than federal and state income tax
and accounting purposes.  If
notwithstanding the intent of the parties, the sale, assignment and transfer of
the Affected Assets to the Agent (on behalf of the Investors) is not treated as
a sale for all purposes, other than federal and state income tax and accounting
purposes, the sale, assignment and transfer of the Affected Assets shall be
treated as the grant of, and the SPV hereby does grant, a security interest in
the Affected Assets to secure the payment and performance of the SPV’s
obligations to the Agent (on behalf of the Conduit Investors and/or the
Alternate Investors as applicable) hereunder and under the other Transaction
Documents or as may be determined in connection therewith by applicable Law.


 


22

















 


(ii)                                  Each of the parties hereto further expressly
acknowledges and agrees that the Commitments of the Alternate Investors
hereunder, regardless of the intended true sale nature of the overall
transaction, are financial accommodations (within the meaning of Section 365(c)(2) of
the Bankruptcy Code) to or for the benefit of SPV.


 


Section 2.2                                   Purchase Price.


 


Subject to the terms and
conditions hereof, including Article V, in consideration for the
sale, assignment and transfer of the Affected Assets by the SPV to the Agent
(on behalf of the Conduit Investors and/or the Alternate Investors, as
applicable) hereunder:


 


(a)                                  Investments.  On the Closing Date, and thereafter from time
to time during the Reinvestment Period, on request of the SPV in accordance
with Section 2.3, each Class Agent (on behalf of the related
Conduit Investors or the related Alternate Investors, as determined pursuant to
Section 2.3) shall pay to the SPV an amount equal, in each
instance, to the lesser of (i) the related Class Pro Rata Share of
the amount requested by the SPV under Section 2.3(a), and (ii) the
largest amount that will not cause (A) the Class Net Investment to
exceed the Class Maximum Net Investment, (B) the sum of the Class Net
Investment and the related Class Pro Rata Share of the Required Reserves
to exceed the related Class Pro Rata Share of the Net Pool Balance and (C) if
such Investment Date occurs during the period beginning on the Closing Date
through and including the Reporting Date in June 2009, the Net Investment
to exceed $150,000,000.  Each such
payment is herein called an “Investment”.


 


(b)                                 Reinvestments.  On each Business Day during the Reinvestment
Period the Servicer, on behalf of each Class Agent (for the benefit of the
related Conduit Investors and/or the related Alternate Investors, as
applicable), shall apply out of Collections of Receivables, the amount
available for Reinvestment in accordance with Section 2.14.  Each such payment is hereinafter called a “Reinvestment”.  All Reinvestments shall be made ratably on
behalf of each Investor that has funded any portion of the Net Investment pro  rata in accordance with
its respective Investor Percentage.


 


(c)                                  SPV
Payments Limited to Collections. 
Notwithstanding any provision contained in this Agreement to the
contrary, the Agent and the Class Agents shall not, and shall not be
obligated (whether on behalf of the Conduit Investors or the Alternate
Investors), to pay any amount to the SPV as the purchase price of Receivables
pursuant to subsection (b) above except to the extent of
Collections on Receivables available for distribution to the SPV in accordance
with this Agreement.  Any amount which
the Agent or any Class Agent (whether on behalf of the related Conduit
Investors or the related Alternate Investors) does not pay pursuant to the
preceding sentence shall not constitute a claim (as defined in §101 of the
Bankruptcy Code) against, or corporate obligation of, the Agent or such Class Agent
for any such insufficiency unless and until such amount becomes available for
distribution to the SPV under Section 2.12.


 


Section 2.3                                   Investment
Procedures.


 


(a)                                  Notice.  The SPV shall request an Investment
hereunder, by request to the Agent and each Class Agent given by facsimile
in the form of an Investment Request at least two (2) Business Days prior
to the proposed date of any Investment (including the initial Investment).  


 


23

















 


Each such
Investment Request shall specify (i) the desired amount of such Investment
(which shall be at least $2,000,000 or an integral multiple of $100,000 in
excess thereof or, to the extent that the then available unused portion of the
Maximum Net Investment is less than such amount, such lesser amount equal to
such available unused portion of the Maximum Net Investment) and (ii) the
desired date of such Investment (the “Investment
Date”) which shall be a Permitted Investment Date.


 


(b)                                 Conduit
Investor Acceptance or Rejection; Investment Request Irrevocable.


 


(i)                                     Each
Class Agent will promptly notify the related Investors of its receipt of
any Investment Request with respect to its Class.  If the Investment Request is received prior
to the Conduit Investment Termination Date, each Conduit Investor shall
instruct the related Class Agent to accept or reject such Investment
Request by notice given to the related Class Agent by telephone or
facsimile by no later than the close of its business on the Business Day
following its receipt of any such Investment Request.  Following receipt of such instructions from
the related Conduit Investors, each Class Agent shall promptly notify the
SPV and the related Alternate Investors of the acceptance or rejection by the
related Conduit Investors of the Investment Request.


 


(ii)                                  Each
Investment Request shall be irrevocable and binding on the SPV, and the SPV
shall indemnify each Investor against any loss or expense incurred by such
Investor, either directly or indirectly (including, in the case of any Conduit
Investor, through a Program Support Agreement) as a result of any failure by
the SPV to complete such Investment, including any loss (including loss of
profit) or expense incurred by any Class Agent and any related Investor,
either directly or indirectly (including, in the case of any Conduit Investor,
pursuant to a Program Support Agreement) by reason of the liquidation or
reemployment of funds acquired by such Investor (or the applicable Program
Support Provider(s)) (including funds obtained by issuing commercial paper or
promissory notes or obtaining deposits or loans from third parties) in order to
fund such Investment.


 


(c)                                  Alternate
Investors’ Commitment.  Subject to
the satisfaction of the conditions precedent set forth in Sections  5.1
and 5.2 and the other terms and conditions hereof, each Alternate
Investor hereby agrees to make available its Alternate Investor Percentage of
the related Class Pro Rata Share of each Investment during the period from
and including the Closing Date to but not including the Commitment Termination
Date in an amount up to its Commitment. 
Subject to Section 2.2(b) concerning Reinvestments, at
no time will the Conduit Investors have any obligation to fund an Investment or
Reinvestment.  At all times on and after
the Conduit Investment Termination Date, all Investments and Reinvestments
shall be made by the related Class Agent on behalf of the related
Alternate Investors.  In addition, at any
time when a Conduit Investor has rejected a request to fund its Class Pro
Rata Share of an Investment, the related Class Agent shall so notify the
related Alternate Investors and such Alternate Investors shall make available
their respective Alternate Investor Percentages of the related Class Pro
Rata Share of such Investment. 
Notwithstanding anything contained in this Section 2.3(c) or
elsewhere in this Agreement to the contrary, no Alternate Investor shall be
obligated to provide the related Class Agent or the SPV with funds in
connection with an Investment or Reinvestment in an amount that would result in
the portion of the related Class Net Investment then funded by 


 


24

















 


it (after giving
effect to any Investment to be funded on such day) exceeding its Commitment
then in effect (minus the unrecovered principal amount of such Alternate
Investor’s investments in the Asset Interest pursuant to the Program Support
Agreement to which it is a party).  The
obligation of each Alternate Investor to remit its Alternate Investor
Percentage of any such Class Pro Rata Share of any Investment or
Reinvestment shall be several from that of each other Alternate Investor, and
the failure of any Alternate Investor to so make such amount available to the
related Class Agent shall not relieve any other Alternate Investor of its
obligation hereunder.


 


(d)                                 Payment
of Investment.  On any Investment
Date, each Conduit Investor or the related Alternate Investor, as the case may
be, shall remit its pro  rata share of the aggregate amount of
such Investment (determined pursuant to Section 2.2(a)) to the
account of the SPV specified therefor from time to time by the Agent by notice
to such Persons by wire transfer of same day funds.


 


(e)                                  Agent
May Advance Funds.  Unless the
Agent shall have received notice from any Investor that such Person will not
make its share of any Investment available on the applicable Investment Date
therefor, the Agent may (but shall have no obligation to) make any such
Investor’s share of any such Investment available to the SPV in anticipation of
the receipt by the Agent of such amount from the applicable Investor.  To the extent any such Investor fails to
remit any such amount to the Agent after any such advance by the Agent on such
Investment Date, such Investor, and if such Investor does not, upon the request
of the Agent, the SPV, shall be required to pay such amount to the Agent for
payment to the Agent for its own account, together with interest thereon at a per
annum rate equal to the Federal Funds Rate, in the case of such
Investor, or the Base Rate, in the case of the SPV, to the Agent for payment to
such Agent (provided that no Conduit Investor shall have any obligation
to pay such interest amounts except to the extent that it shall have sufficient
funds to pay the face amount of its respective Commercial Paper in full).  Until such amount shall be repaid, such
amount shall be deemed to be Net Investment paid by the Agent and the Agent
shall be deemed to be the owner of an interest in the Asset Interest hereunder
to the extent of such Investment.  Upon
the payment of such amount to the Agent (i) by the SPV, the amount of the
Net Investment shall be reduced by such amount or (ii) by such Investor,
such payment shall constitute such Person’s payment of its share of the
applicable Investment.  Notwithstanding
the foregoing, each of the parties hereto agrees that, prior to the Termination
Date, any amount to be paid by the SPV under this Section 2.3(e) will
be payable on the next succeeding Settlement Date pursuant to and in accordance
with the priorities for payment set forth in Section 2.12 hereof.


 


(f)                                    Defaulting
Alternate Investor.  If, by 2:00 p.m.
(New York City time), whether or not the Agent has advanced the amount of the
applicable Investment, one or more Alternate Investors with respect to a Class (each,
a “Defaulting Alternate Investor”,
and each Alternate Investor with respect to such Class other than any
Defaulting Alternate Investor being referred to as a “Non-Defaulting Alternate Investor”)
fails to make either (1) its Alternate Investor Percentage of the related Class Pro
Rata Share of any Investment available to the Agent pursuant to Section 2.3(d) or
(2) any Assignment Amount payable by it pursuant to Section 3.1
(the aggregate amount not so made available to the Agent being herein called in
either case the “Investment Deficit”),
then the related Class Agent shall, by no later than 2:30 p.m. (New
York City time) on the applicable Investment Date or the applicable Assignment
Date, as the case may be, instruct each Non-Defaulting Alternate Investor to
pay, by no later than 3:00 p.m. (New York 


 


25

















 


City time), in
immediately available funds, to the account designated by the related Class Agent,
an amount equal to the lesser of (i) such Non-Defaulting Alternate
Investor’s proportionate share (based upon the relative Commitments of the
Non-Defaulting Alternate Investors) of the Investment Deficit and (ii) its
unused Commitment.  A Defaulting
Alternate Investor shall forthwith, upon demand, pay to the related Class Agent
for the ratable benefit of the Non-Defaulting Alternate Investors all amounts
paid by each Non-Defaulting Alternate Investor on behalf of such Defaulting
Alternate Investor, together with interest thereon, for each day from the date
a payment was made by a Non-Defaulting Alternate Investor until the date such
Non-Defaulting Alternate Investor has been paid such amounts in full, at a rate
per  annum equal to the Default Rate.  In addition, if, after giving effect to the
provisions of the immediately preceding sentence, any Investment Deficit with
respect to any Assignment Amount continues to exist, each such Defaulting
Alternate Investor shall pay interest to the related Class Agent, for the
account of the related Conduit Investor, on such Defaulting Alternate Investor’s
portion of such remaining Investment Deficit, at a rate per  annum,
equal to the Default Rate, for each day from the applicable Assignment Date
until the date such Defaulting Alternate Investor shall pay its portion of such
remaining Investment Deficit in full to such Conduit Investor.


 


Section 2.4                                   IS
SPECIFIED IN SCHEDULE I, WHICH IS INCORPORATED HEREIN BY REFERENCE.


 


Section 2.5                                   Yield, Fees and
Other Costs and Expenses.


 


Notwithstanding any limitation
on recourse herein, the SPV shall pay, as and when due in accordance with this
Agreement, all fees hereunder and under the Fee Letters, Yield, all amounts
payable pursuant to Article IX, if any, and the Servicing
Fees.  On each Settlement Date, to the
extent not paid pursuant to Section 2.12 for any reason, the SPV
shall pay to each Class Agent, on behalf of the Conduit Investors or the
Alternate Investors, as applicable, an amount equal to the accrued and unpaid
Yield for the related Rate Period. 
Nothing in this Agreement shall limit in any way the obligations of the
SPV to pay the amounts set forth in this Section 2.5.


 


Section 2.6                                   Deemed
Collections.


 


(a)                                  Dilutions.  If on any day the Unpaid Balance of a
Receivable is reduced or such Receivable is canceled as a result of any
Dilution, the SPV shall be deemed to have received on such day a Collection of
such Receivable in the amount of the Unpaid Balance (as determined immediately
prior to such Dilution) of such Receivable (if such Receivable is canceled) or,
otherwise in the amount of such reduction, and the SPV shall pay to the
Servicer an amount equal to such Deemed Collection and such amount shall be
applied by the Servicer as a Collection in accordance with Section 2.12.


 


(b)                                 Breach
of Representation or Warranty.  If on
any day any of the representations or warranties in Article IV was
or becomes untrue with respect to a Receivable (whether on or after the date of
transfer thereof to the Agent, for the benefit of the Investors, as
contemplated hereunder), the SPV shall be deemed to have received on such day a
Collection of such Receivable in full and the SPV shall on such day pay to the
Servicer an amount equal to the Unpaid Balance of such Receivable and such
amount shall be allocated and applied by the Servicer as a Collection in
accordance with Section 2.12.


 


26

















 


(c)                                  Any
payment by the SPV required to made under this Section 2.6 shall be
paid as soon as possible from the SPV’s share of Collections and, in any event,
shall become due and payable on the earlier to occur of (i) the next
Settlement Date after the obligation to make such payment arises and (ii) the
Termination Date.


 


Section 2.7                                   Reductions in Net
Investment; Payments and Computations, Etc.


 


(a)                                  The
SPV may, on any Settlement Date occurring at least the Required Notice Days
after the date of the SPV’s notice to the Agent and each Class Agent,
reduce all or any portion of the outstanding Net Investment at such time
(together with any accrued and unpaid interest thereon at such time and, in
connection with a reduction of all of the Net Investment, together with all
other Aggregate Unpaids).  Any such
reduction shall be accomplished by payment by the SPV to each Class Agent,
in reduction of the Net Investment, the related Class Pro Rata Share of
the amount of such reduction (together with any accrued and unpaid interest
thereon at such time and, in connection with a reduction of all of the Net
Investment, together with all other Aggregate Unpaids) (it being understood
that neither the Net Investment nor any Class Net Investment shall be
deemed reduced by such payment unless and until, and then only to the extent
that, such amount is finally paid to the related Class Agent); provided
that the amount of such repayment shall not be less than $1,000,000.


 


(b)                                 All
amounts to be paid or deposited by the SPV or the Servicer hereunder shall be
paid or deposited in accordance with the terms hereof no later than 12:00 p.m.
(noon) (New York City time) on the day when due in immediately available funds;
if such amounts are payable to the Agent (whether on behalf of any Investor or
otherwise) they shall be paid or deposited in the account indicated under the
heading “Payment Information” in Section 11.3, until otherwise
notified by the Agent.  The SPV shall, to
the extent permitted by Law, pay to the Agent, for the benefit of the
Investors, upon demand, interest on all amounts not paid or deposited when due
hereunder at a rate equal to the Default Rate. 
All computations of Yield and all per  annum fees hereunder
shall be made on the basis of a year of 360 days for the actual number of days
(including the first but excluding the last day) elapsed.  Any computations by the Agent of amounts
payable by the SPV hereunder shall be binding upon the SPV absent manifest
error.


 


Section 2.8                                   Reports.


 


By no later than 4:00 p.m.
(New York City time) on the 15th day of each calendar month, or if such day is
not a Business Day then on the next succeeding Business Day (and, after the
occurrence of a Termination Event, within two (2) Business Days after a
request from the Agent or any Class Agent) (each, a “Reporting Date”), Servicer shall
prepare and forward to the Agent and each Class Agent a Servicer Report,
certified by the Originator, the Seller and the Servicer.  Prior to the Closing Date and once a calendar
year, the Servicer, at its expense, will cause to be prepared a report by an
accounting firm or other firm specializing in due diligence matters, which firm
shall be satisfactory to the Agent, setting forth the results of such firm’s
application of the agreed upon procedures set forth on Exhibit J.


 


The Agent may require the
Servicer to prepare more frequent reports. 
Upon receipt of such request for more frequent reporting, the Servicer
shall provide to the Agent and each Class 


 


27

















 


Agent all
reports regarding the Receivables and Collections that are available to the
Servicer in accordance with its then current accounts receivable system without
the Servicer manually preparing such reports. 
The  Agent acknowledges that such
additional reports may not include all of the information provided in the
monthly Servicer Reports.


 


Section 2.9                                   Collection
Account.


 


The Agent shall establish in
its name on the day of the initial Investment hereunder and shall maintain a
segregated account (the “Collection
Account”), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Agent, on behalf of the
Investors.  The Agent shall have
exclusive dominion and control over the Collection Account and all monies,
instruments and other property from time to time in the Collection
Account.  On and after the occurrence of
a Termination Event or a Potential Termination Event, the Servicer shall remit
within two Business Days of receipt to the Collection Account all Collections
received.  Funds on deposit in the
Collection Account (other than investment earnings) shall be invested by the
Agent, in the name of the Agent, in Eligible Investments that will mature so
that such funds will be available so as to permit amounts in the Collection Account
to be paid and applied on the next Settlement Date and otherwise in accordance
with the provisions of Section 2.12; provided that such
funds shall not reduce the Net Investment or accrued Yield hereunder until so
applied under Section 2.12. 
On each Settlement Date, all interest and earnings (net of losses and
investment expenses) on funds on deposit in the Collection Account shall be
applied as Collections in accordance with Section 2.12.  On the Final Payout Date, any funds remaining
on deposit in the Collection Account shall be paid to the SPV.


 


Section 2.10                            Sharing of Payments, Etc.


 


If any Investor (for purposes
of this Section only, being a “Recipient”)
shall obtain any payment (whether voluntary, involuntary, through the exercise
of any right of setoff, or otherwise) on account of the portion of the Asset
Interest owned by it (other than pursuant to the Fee Letter, Section 3.3(b) or
Article IX and other than as a result of the differences in the
timing of the applications of Collections pursuant to Section 2.12
and other than a result of the different methods for calculating Yield) in
excess of its ratable share of payments on account of the Asset Interest
obtained by the Investors entitled thereto, such Recipient shall forthwith
purchase from the Investors entitled to a share of such amount participations
in the portions of the Asset Interest owned by such Persons as shall be
necessary to cause such Recipient to share the excess payment ratably with each
such other Person entitled thereto; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
Recipient, such purchase from each such other Person shall be rescinded and
each such other Person shall repay to the Recipient the purchase price paid by
such Recipient for such participation to the extent of such recovery, together
with an amount equal to such other Person’s ratable share (according to the
proportion of (a) the amount of such other Person’s required payment to (b) the
total amount so recovered from the Recipient) of any interest or other amount
paid or payable by the Recipient in respect of the total amount so recovered.


 


28

















 


Section 2.11                            Right of Setoff.


 


Without in any way limiting the
provisions of Section 2.10, each Class Agent and each Investor
is hereby authorized (in addition to any other rights it may have) at any time
after the occurrence of the Termination Date due to the occurrence of a
Termination Event or during the continuance of a Potential Termination Event to
set-off, appropriate and apply (without presentment, demand, protest or other
notice which are hereby expressly waived) any deposits and any other
indebtedness held or owing by such Class Agent or such Investor to, or for
the account of, the SPV against the amount of the Aggregate Unpaids owing by
the SPV to such Person or to the Agent on behalf of such Person (even if
contingent or unmatured).


 


THE REMAINDER OF ARTICLE II
IS SPECIFIED IN SCHEDULE III (SETTLEMENT PROCEDURES), WHICH PROVISIONS
ARE INCORPORATED HEREIN BY REFERENCE.


 


Article III


 


Additional Alternate Investor Provisions


 


Section 3.1                                   Assignment to
Alternate Investors.


 


(a)                                  Assignment
Amounts.  At any time on or prior to
the Commitment Termination Date, if any Class Agent on behalf of the
related Conduit Investors so elects, by written notice to the Agent, the SPV
hereby irrevocably requests and directs that such Conduit Investors assign, and
each Conduit Investor does hereby assign effective on the Assignment Date referred
to below, all or such portions as may be elected by such Conduit Investor of,
the related Class Net Investment and the Asset Interest at such time to
the related Alternate Investors pursuant to this Section 3.1 and
the SPV hereby agrees to pay the amounts described in Section 3.1(b);
provided, however, that unless such assignment is an assignment
of all of such Class Net Investment, including the portion of the Asset
Interest related thereto, in whole on or after the Conduit Investment
Termination Date, no such assignment shall take place pursuant to this Section 3.1
if a Termination Event described in Section 8.1(g) shall then
exist; and provided, further, that no such assignment shall take
place pursuant to this Section 3.1 at a time when an Event of Bankruptcy
with respect to such Conduit Investor exists. 
No further documentation or action on the part of the Conduit Investors
or the SPV shall be required to exercise the rights set forth in the
immediately preceding sentence, other than the giving of the notice by a Class Agent
on behalf of the related Conduit Investor to the Agent and the delivery by the
related Class Agent of a copy of such notice to each related Alternate
Investor (the date of the receipt by the related Class Agent of any such
notice being the “Assignment Date”).  Each Alternate Investor hereby agrees,
unconditionally and irrevocably and under all circumstances, without setoff,
counterclaim or defense of any kind, to pay the full amount of its Assignment
Amount on such Assignment Date to the related Conduit Investor in immediately
available funds to an account designated by the related Class Agent.  Upon payment of its Assignment Amount, such
Alternate Investor shall acquire an interest in the related Class Net
Investment (and the portion of the Asset Interest related thereto) equal to its
pro  rata share (based on the
outstanding portions of such Class Net Investment funded by it) of the
related Class Net Investment.  Upon
any assignment in whole by any Conduit Investor to the related Alternate
Investors on or after the Conduit 


 


29

















 


Investment
Termination Date as contemplated hereunder, such Conduit Investor shall cease
to make any additional Investments or Reinvestments hereunder.  At all times prior to the Conduit Investment
Termination Date, nothing herein shall prevent any Conduit Investor from making
a subsequent Investment or Reinvestment hereunder, in its sole discretion,
following any assignment pursuant to this Section 3.1 or from making
more than one assignment pursuant to this Section 3.1.


 


(b)                                 SPV’s
Obligation to Pay Certain Amounts; Additional Assignment Amount.  The SPV shall pay to the related Class Agent,
for the account of the related Conduit Investor, in connection with any assignment
by such Conduit Investor to the related Alternate Investors pursuant to this Section 3.1,
an aggregate amount equal to all Yield to accrue through the end of the current
Rate Period to the extent attributable to the portion of the Class Net
Investment so assigned to the related Alternate Investors (which Yield shall be
determined for such purpose using the CP Rate most recently determined by the
related Class Agent) (as determined immediately prior to giving effect to
such assignment), plus all other Aggregate Unpaids (other than the Class Net
Investment and other than any Yield not described above) related to such
Class.  If the SPV fails to make payment
of such amounts at or prior to the time of assignment by a Conduit Investor to
the related Alternate Investors, such amount shall be paid by the related
Alternate Investors (in accordance with their respective Alternate Investor
Percentages) to such Conduit Investor as additional consideration for the
interests assigned to such Alternate Investors and the amount of the related Class Net
Investment shall be increased by an amount equal to the additional amount so
paid by the Alternate Investors (which increase shall be allocated pro rata to the Alternate Investors
that have funded such amounts, based upon the proportion that the amount funded
by each such Alternate Investor bears to the aggregate of such amounts).  Any payment by the SPV required to made under
this Section 3.1(b) shall be paid as soon as possible from the
SPV’s share of Collections and, in any event, shall become due and payable on
the earlier to occur of (i) the next Settlement Date after the obligation
to make such payment arises and (ii) the Termination Date.


 


(c)                                  Administration
of Agreement after Assignment from Conduit Investor to Alternate Investors
following the Conduit Investment Termination Date.  After any assignment in whole by a Conduit
Investor to the related Alternate Investors pursuant to this Section 3.1
at any time on or after the Conduit Investment Termination Date (and the
payment of all amounts owing to such Conduit Investor in connection therewith),
all rights of the related Class Agents or the related Collateral Agent set
forth herein shall be given to the related Class Agent on behalf of the
Alternate Investors instead of either such party.


 


(d)                                 [Reserved].


 


(e)                                  Recovery
of Net Investment.  In the event that
the aggregate of the Assignment Amounts related to any Class paid by the
related Alternate Investors pursuant to this Section 3.1 on any
Assignment Date occurring on or after the Conduit Investment Termination Date
is less than the portion of the Class Net Investment owned by the related
Conduit Investor on such Assignment Date, then to the extent Collections
thereafter received by the Agent hereunder in respect of such Class Net
Investment exceed the aggregate of the unrecovered Assignment Amounts for such Class and
the Class Net Investment funded by the related Alternate Investors (other
than any portion thereof attributable to such Assignment Amounts), such excess
shall be 


 


30

















 


remitted by the
related Class Agent to the related Conduit Investor for the account of the
related Conduit Investor.


 


Section 3.2                                   Downgrade of
Alternate Investor.


 


(a)                                  Downgrades
Generally.  If at any time on or
prior to the Commitment Termination Date, the short term debt rating of any
Alternate Investor shall be “A-2” or “P-2” from S&P or Moody’s,
respectively, with negative credit implications, such Alternate Investor, upon
request of the related Class Agent, shall, within thirty (30) days of such
request, assign its rights and obligations hereunder to another financial
institution (which institution’s short term debt shall be rated at least “A-2”
or “P-2” from S&P or Moody’s, respectively, and which shall not be so rated
with negative credit implications and which is acceptable to the related
Conduit Investor and the related Class Agent and subject to Section 3.4.  If the short term debt rating of an Alternate
Investor shall be “A-3” or “P-3”, or lower, from S&P or Moody’s,
respectively (or such rating shall have been withdrawn by S&P or Moody’s),
such Alternate Investor, upon request of the related Class Agent, shall,
within five (5) Business Days of such request, assign its rights and obligations
hereunder to another financial institution (which institution’s short term debt
shall be rated at least “A-2” or “P-2”, from S&P or Moody’s, respectively,
and which shall not be so rated with negative credit implications and which is
acceptable to the related Conduit Investor and the related Class Agent and
subject to Section 3.4).  In
either such case, if any such Alternate Investor shall not have assigned its
rights and obligations under this Agreement within the applicable time period
described above (in either such case, the “Required
Downgrade Assignment Period”), the related Class Agent on
behalf of the related Conduit Investor shall have the right to require such
Alternate Investor to pay upon one (1) Business Day’s notice at any time
after the Required Downgrade Assignment Period (and each such Alternate
Investor hereby agrees in such event to pay within such time) to such Class Agent
an amount equal to such Alternate Investor’s unused Commitment (a “Downgrade Draw”) for deposit by such Class Agent
into an account, in the name of such Class Agent (a “Downgrade Collateral Account”), which
shall be in satisfaction of such Alternate Investor’s obligations to make
Investments and to pay its Assignment Amount upon an assignment from such
Conduit Investor in accordance with Section 3.1; provided, however,
that if, during the Required Downgrade Assignment Period, such Alternate
Investor delivers a written notice to such Class Agent of its intent to
deliver a direct pay irrevocable letter of credit pursuant to this proviso in
lieu of the payment required to fund the Downgrade Draw, then such Alternate
Investor will not be required to fund such Downgrade Draw.  If any Alternate Investor gives the related Class Agent
such notice, then such Alternate Investor shall, within one (1) Business
Day after the Required Downgrade Assignment Period, deliver to such Class Agent
a direct pay irrevocable letter of credit in favor of such Class Agent in
an amount equal to the unused portion of such Alternate Investor’s Commitment,
which letter of credit shall be issued through an United States office of a
bank or other financial institution (i) whose short-term debt ratings by
S&P and Moody’s are at least equal to the ratings assigned by such
statistical rating organization to the Commercial Paper of the related Conduit
Investor and (ii) that is acceptable to such Conduit Investor and such Class Agent.  Such letter of credit shall provide that the
Agent may draw thereon for payment of any Investment or Assignment Amount payable
by such Alternate Investor which is not paid hereunder when required, shall
expire no earlier than the Commitment Termination Date and shall otherwise be
in form and substance acceptable to such Class Agent.


 


31
















 


(b)                                 Application
of Funds in Downgrade Collateral Account. 
If any Alternate Investor shall be required pursuant to Section 3.2(a) to
fund a Downgrade Draw, then the related Class Agent shall apply the monies
in the Downgrade Collateral Account applicable to the related Alternate
Investor Percentage of the related Class Pro Rata Share of Investments
required to be made by the Alternate Investors of the related Class, to any
Assignment Amount payable by such Alternate Investor pursuant to Section 3.1
and to any purchase price payable by such Alternate Investor pursuant to Section 3.3(b) at
the times, in the manner and subject to the conditions precedent set forth in
this Agreement.  The deposit of monies in
such Downgrade Collateral Account by such Alternate Investor shall not
constitute an Investment or the payment of any Assignment Amount (and such
Alternate Investor shall not be entitled to interest on such monies except as
provided below in this Section 3.2(b), unless and until (and then
only to the extent that) such monies are used to fund Investments or to pay any
Assignment Amount or purchase price pursuant to Section 3.3(b) pursuant
to the first sentence of this Section 3.2(b).  The amount on deposit in such Downgrade
Collateral Account shall be invested by the related Class Agent in
Eligible Investments and such Eligible Investments shall be selected by such Class Agent
in its sole discretion.  Such Class Agent
shall remit to such Alternate Investor, on the last Business Day of each month,
the income actually received thereon. 
Unless required to be released as provided below in this subsection,
Collections received by such Class Agent in respect of such Alternate
Investor’s portion of the related Class Net Investment shall be deposited
in the Downgrade Collateral Account for such Alternate Investor.  Amounts on deposit in such Downgrade
Collateral Account shall be released to such Alternate Investor (or the stated
amount of the letter of credit delivered by such Alternate Investor pursuant to
subsection (a) above may be reduced) within one Business Day after
each Settlement Date following the Termination Date to the extent that, after
giving effect to the distributions made and received by the related Investors
on such Settlement Date, the amount on deposit in such Downgrade Collateral
Account would exceed the related Alternate Investor Percentage of the related Class Pro
Rata Share (determined as of the day prior to the Termination Date) of the sum
of the related Class Net Investment then funded by the related Conduit
Investor, plus the related Interest Component.  All amounts remaining in such Downgrade
Collateral Account shall be released to such Alternate Investor no later than
the Business Day immediately following the earliest of (i) the
effective date of any replacement of such Alternate Investor or removal of such
Alternate Investor as a party to this Agreement, (ii) the date on which
such Alternate Investor shall furnish the related Class Agent with
confirmation that such Alternate Investor shall have short-term debt ratings of
at least “A-2” or “P-2” from S&P and Moody’s, respectively, without
negative credit implications, and (iii) the Commitment Termination Date
(or if earlier, the Commitment Termination Date in effect prior to any renewal
pursuant to Section 3.3 to which such Alternate Investor does not
consent, but only after giving effect to any required purchase pursuant to Section 3.3(b)).  Nothing in this Section 3.2 shall
affect or diminish in any way any such downgraded Alternate Investor’s
Commitment to the SPV or the related Conduit Investor or such downgraded
Alternate Investor’s other obligations and liabilities hereunder and under the
other Transaction Documents.


 


(c)                                  Program
Support Agreement Downgrade Provisions. 
Notwithstanding the other provisions of this Section 3.2, an
Alternate Investor shall not be required to make a Downgrade Draw (or provide
for the issuance of a letter of credit in lieu thereof) pursuant to Section 3.2(a) at
a time when such Alternate Investor has a downgrade collateral account (or
letter of credit in lieu thereof) established pursuant to the Program Support
Agreement relating to the transactions 


 


32

















 


contemplated by
this Agreement to which it is a party in an amount at least equal to its unused
Commitment, and the related Class Agent may apply monies in such downgrade
collateral account in the manner described in Section 3.3(b) as
if such downgrade collateral account were a Downgrade Collateral Account.


 


Section 3.3                                   Non-Renewing
Alternate Investors.


 


(a)                                  The
SPV may request that the Alternate Investors renew their Commitments hereunder
by providing written request for renewal to each Alternate Investors no more
than 60 days and not less than 45 days prior to the then-current Commitment
Termination Date.


 


(b)                                 If
at any time the SPV so requests that the Alternate Investors renew their
Commitments hereunder and some but less than all the Alternate Investors
consent to such renewal within 15 days prior to the then-current Commitment
Termination Date, the SPV may arrange for an assignment to one or more
financial institutions of all the rights and obligations hereunder of each such
non-consenting Alternate Investor in accordance with Section 11.8.  Any such assignment shall become effective on
the then-current Commitment Termination Date. 
Each Alternate Investor which does not so consent to any renewal shall
cooperate fully with the SPV in effectuating any such assignment.


 


(c)                                  If
at any time the SPV requests that the Alternate Investors extend the Commitment
Termination Date hereunder and some but less than all the Alternate Investors
consent to such extension within 15 days prior to the then-current Commitment
Termination Date, and if none or less than all the Commitments of the
non-renewing Alternate Investors are assigned as provided in Section 3.3(b),
then (without limiting the obligations of all the Alternate Investors to make
Investments and pay any Assignment Amount prior to the Commitment Termination
Date in accordance with the terms hereof) any related Conduit Investor may sell
an interest in the portion of the related Class Net Investment funded by
it (including the related interest in the Asset Interest) for an aggregate
purchase price equal to the lesser of (i) the maximum aggregate Assignment
Amounts which would be payable if such Conduit Investor assigned its entire
interest in the Asset Interest at that time under Section 3.1, and (ii) the
aggregate unused Commitments of the non-renewing Alternate Investors in such
Class, which purchase price shall be paid solely by such non-renewing Alternate
Investors, pro  rata according to
their respective Commitments.  Following
the payment of such purchase price, (i) the extended Commitment
Termination Date shall be effective with respect to the renewing Alternate
Investors, (ii) the related Class Facility Limit shall automatically
be reduced by the aggregate of the Commitments of all non-renewing Alternate
Investors (it being understood that amounts necessary to reduce the related Class Facility
Limit shall be payable solely in accordance with Section 2.12 and
shall not be an immediate payment obligation of the SPV) and (iii) this
Agreement and the Commitments of the renewing Alternate Investors shall remain
in effect in accordance with their terms notwithstanding the expiration of the
Commitments of the non-renewing Alternate Investors.  Prior to the Termination Date, all amounts
which, under Section 2.12 are to be applied in reduction of the
related Class Net Investment, up to the aggregate Class Net
Investment sold to the non-renewing Alternate Investors as described above in
this subsection, shall be distributed to the non-renewing Alternate Investors
ratably according to the aggregate Investments held by them, in reduction of
such Investments.  On and after the
Termination Date, each non-renewing Alternate Investor shall be entitled to
receive distributions 


 


33

















 


as otherwise
provided in Section 2.12, such that all distributions of
Collections pursuant to Section 2.12 thereafter shall be allocated
among the non-renewing Alternate Investors and the other Alternate Investors in
accordance with each such Alternate Investor’s pro
rata share (based on the portion of the Net Investment funded by it
as of the Termination Date) of the Alternate Investor Percentage of the related
Class Net Investment.  When (after
the expiration of the Commitments of the non-renewing Alternate Investors) the
aggregate of the Investments described above in this subsection shall have been
reduced to zero and all accrued Yield allocable thereto and all other Aggregate
Unpaids owing to such non-renewing Alternate Investors shall have been paid to
such Alternate Investors in full, then such non-renewing Alternate Investors
shall cease to be parties to this Agreement for any purpose.


 


Section 3.4                                   New Alternate
Investors and Liquidity Banks.


 


Notwithstanding anything to the
contrary herein contained, (i) any Alternate Investor may assign any
portion or all of its Commitment and its investment in the related Class Net
Investment to any other Person, (ii) any Liquidity Bank may assign any
portion or all of its commitment under its Liquidity Agreement and its
investment in the related Class Net Investment to any other Person and (iii) each
Conduit Investor may add new Liquidity Banks to its Liquidity Agreement
relating to the Transactions contemplated hereby; provided, however, in
the case of clauses (i), (ii) and (iii) if such assignment or
addition occurs prior to the occurrence of any Termination Event, and the
assignee or new Liquidity Bank is not at the time a party to this Agreement,
the consent of the SPV to such assignment shall be required (such consent not
to be unreasonably withheld or delayed); provided, however, such
consent of the SPV shall not be required in the case of an assignment to Bank
of America or an Affiliate of  Bank of
America or to PNC Bank or an Affiliate of PNC Bank (or, for the avoidance of
doubt, in the case of a sale of a participation interest that does not affect
the rights or obligations of such Alternate Investor hereunder and does not
permit such participant to vote on any matters hereunder).


 


Article IV


 


Representations and Warranties


 


Section 4.1                                   Representations
and Warranties of the Originator, the SPV, the Seller and the Servicer.


 


Each of the Originator, the
SPV, the Seller and the Servicer represents and warrants to the Agent, the Class Agents
and the Investors, as to itself, that, on the Closing Date and on each Investment
Date and Reinvestment Date:


 


(a)                                  Corporate
Existence and Power.  It (i) is
duly organized, validly existing and in good standing under the laws of
Illinois, which, in each case is its sole jurisdiction of formation, (ii) has
all corporate power and all licenses, authorizations, consents and approvals of
all Official Bodies required to carry on its business in each jurisdiction in
which its business is now and proposed to be conducted (except where the
failure to have any such licenses, authorizations, consents and approvals would
not individually or in the aggregate have a Material Adverse Effect) and (iii) is
duly qualified to do business and is in good standing in every other 


 


34

















 


jurisdiction in
which the nature of its business requires it to be so qualified, except where
the failure to be so qualified or in good standing would not have a Material
Adverse Effect.


 


(b)                                 Corporate
and Governmental Authorization; Contravention.  The execution, delivery and performance by it
of this Agreement and the other Transaction Documents to which it is a party
are (i) within the its organizational powers, (ii) have been duly
authorized by all necessary organizational action, (iii) require no action
by or in respect of, or filing with, any Official Body or official thereof
(except as contemplated by Sections 5.1(f), 5.1(g) and 7.7,
all of which have been (or as of the Closing Date will have been) duly made and
in full force and effect), (iv) do not contravene or constitute a default
under (A) its organizational documents, (B) any Law applicable to it,
(C) any contractual restriction binding on or affecting it or its property
or (D) any order, writ, judgment, award, injunction, decree or other
instrument binding on or affecting it or its property, or (v) result in
the creation or imposition of any Adverse Claim upon or with respect to its
property or the property of any of its Subsidiaries (except as contemplated
hereby), for purposes of clause (iv) hereof except (other than with
respect to the SPV) to the extent such failure would not be reasonably expected
to have a Material Adverse Effect.


 


(c)                                  Binding
Effect.  Each of this Agreement and
the other Transaction Documents to which it is a party has been duly executed
and delivered and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, moratorium or other similar laws affecting the rights
of creditors generally.


 


(d)                                 Perfection.
 In the case of the SPV, it is the owner
of all of the Receivables and other Affected Assets, free and clear of all
Adverse Claims (other than any Adverse Claim arising hereunder) and upon the
making of the initial Investment on the Closing Date and at all times
thereafter until the Final Payout Date, all financing statements and other
documents required to be recorded or filed in order to perfect and protect the
interest of the Agent on behalf of the Investors in the Asset Interest against
all creditors of and purchasers from the SPV and the Originator will have been
duly filed in each filing office necessary for such purpose and all filing fees
and taxes, if any, payable in connection with such filings shall have been paid
in full.


 


(e)                                  Accuracy
of Information.  All information
heretofore furnished by it (including the Servicer Reports, any other reports
delivered pursuant to Section 2.8 and its financial statements) to
any Investor, any Class Agent or the Agent for purposes of or in
connection with this Agreement or any transaction contemplated hereby, taken as
a whole, is, and all such information hereafter furnished by it to any
Investor, any Class Agent or the Agent will be, true, complete and
accurate in every material respect, on the date such information is stated or
certified, and no such item contains or will contain any untrue statement of a
material fact or omits or will omit to state a material fact necessary in order
to make the statements contained therein, in the light of the circumstances under
which they were made, not misleading.


 


(f)                                    Tax
Status.  It has (i) timely filed
all tax returns (federal, state and local) required to be filed, (ii) paid
or made adequate provision for the payment of all taxes, assessments and other
governmental charges except with respect to the Originator, the Seller and the
Servicer, in the case of clauses (i) and (ii), for taxes which are being
contested in good faith and for which appropriate reserves are maintained in
accordance with GAAP and (iii) in the case of the SPV, 


 


35

















 


accounted for the
sale of the Asset Interest hereunder, in its books and financial statements as
sales, consistent with GAAP (except to the extent that the SPV is consolidated
for financial accounting purposes with the Seller or its Affiliates).


 


(g)                                 Action,
Suits.  The SPV is not in violation
of any order of any Official Body or arbitrator.  The Originator, the Seller and the Servicer
are not in violation of any order of any Official Body or arbitrator, except
where such violation would not be reasonably expected to have a Material
Adverse Effect.  Except as set forth in Schedule
4.1(g), there are no actions, suits, litigation or proceedings pending, or
to its knowledge, threatened, against or affecting it or any of its Affiliates
or their respective properties, in or before any Official Body or arbitrator,
which may, individually or in the aggregate, have a Material Adverse Effect.


 


(h)                                 Use
of Proceeds.  In the case of the SPV,
the Seller and the Originator, no proceeds of any Investment or Reinvestment
will be used by it (i) to acquire any security in any transaction which is
subject to Section 13 or 14 of the Securities Exchange Act of 1934, (ii) to
acquire any equity security of a class which is registered pursuant to Section 12
of such act or (iii) for any other purpose that violates applicable Law,
including Regulations U or X of the Federal Reserve Board.


 


(i)                                     Principal
Place of Business; Chief Executive Office; Location of Records.  Its principal place of business, chief
executive office and the offices where it keeps all its Records, are located at
the address(es) described on Schedule 4.1(i) or such other
locations notified to the Conduit Investors in accordance with Section 7.7
in jurisdictions where all action required by Section 7.7 has been
taken and completed.


 


(j)                                     Subsidiaries;
Tradenames, Etc.  In the case of the
SPV, as of the Closing Date:  (i) it
has only the Subsidiaries and divisions listed on Schedule 4.1(j); and (ii) it
has, within the last five (5) years, operated only under the tradenames
identified in Schedule 4.1(j), and, within the last five (5) years,
has not changed its name, merged with or into or consolidated with any other
Person or been the subject of any proceeding under the Bankruptcy Code, except
as disclosed in Schedule 4.1(j).  Schedule
4.1(j) also lists the correct Federal Employer Identification Number
of the SPV.


 


(k)                                  Good
Title.  In the case of the SPV, upon
each Investment and Reinvestment, the Agent shall acquire a valid and
enforceable perfected first priority ownership interest or a first priority
perfected security interest in each Receivable and all other Affected Assets
that exist on the date of such Investment or Reinvestment, with respect
thereto, free and clear of any Adverse Claim. 
In the case of the Seller, upon each transfer to the SPV pursuant to the
terms of the Second Tier Agreement, the SPV shall acquire a valid and
enforceable perfected first priority ownership interest in each Receivable and all
other Affected Assets that exist on the date of such transfer, with respect
thereto, free and clear of any Adverse Claim. 
In the case of the Originator, upon each transfer to the Seller pursuant
to the terms of the First Tier Agreement, the Seller shall acquire a valid and
enforceable perfected first priority ownership interest in each Receivable and
all other Affected Assets that exist on the date of such transfer, with respect
thereto, free and clear of any Adverse Claim.


 


36

















 


(l)                                     Nature
of Receivables.  Each Receivable (i) represented
by it to be an Eligible Receivable in any Servicer Report or other report
delivered pursuant to Section 2.8 or (ii)included in the
calculation of the Net Pool Balance in fact satisfies at such time the
definition of “Eligible Receivable” set forth herein.


 


(m)                               Coverage
Requirement.  In the case of the SPV,
the sum of (i) the Net Investment and (ii) the Required Reserves does
not exceed the Net Pool Balance.


 


(n)                                 Credit
and Collection Policy.  Since February 2,
2009, there have been no material changes in the Credit and Collection Policy
other than in accordance with this Agreement. 
It has at all times complied with the Credit and Collection Policy in
all material respects with regard to each Receivable.


 


(o)                                 No
Termination Event or Potential Termination Event.  In the case of the SPV, no event has occurred
and is continuing and no condition exists, or would result from any Investment
or Reinvestment or from the application of the proceeds therefrom, which
constitutes a Termination Event or a Potential Termination Event.


 


(p)                                 Not
an Investment Company or Holding Company. 
It is not, and is not controlled by, an “investment company” within the
meaning of the Investment Company Act of 1940, or is exempt from all provisions
of such act.


 


(q)                                 ERISA.  Each employee benefit plan sponsored,
maintained or contributed to by the SPV, the Originator or any ERISA Affiliate
which plan is tax qualified under Section 401(a) of the Code is in compliance
in all respects with the applicable provisions of ERISA, the Code and any
regulations and published interpretations thereunder or, if not, any such
non-compliance does not have a Material Adverse Effect.  Neither the SPV nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability to the Pension Benefit
Guaranty Corporation under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA)
that would have a Material Adverse Effect. Neither the SPV nor any ERISA
Affiliate sponsors, maintains,  makes
contributions to, is obligated to make contributions to, or, during the
preceding six (6) plan years, has made or been obligated to make
contributions to, a Multiemployer Plan.


 


(r)                                    Blocked
Accounts.  The names and addresses of
all the Blocked Account Banks, together with the account numbers of the Blocked
Accounts at such Blocked Account Banks, are specified in Schedule 4.1(r) (or
at such other Blocked Account Banks and/or with such other Blocked Accounts as
have been notified to the Class Agents and the Collateral Agent and for
which Blocked Account Agreements have been executed in accordance with Section 7.3
and delivered to the Agent).  All Blocked
Accounts not maintained at, and in the name of the Agent, are subject to
Blocked Account Agreements.  All Obligors
have been instructed to make payment to a Blocked Account and only Collections
are deposited into the Blocked Accounts.


 


(s)                                  Bulk
Sales.  In the case of the SPV, no
transaction contemplated hereby or by the Second Tier Agreement requires
compliance with any bulk sales act or similar law.


 


(t)                                    Transfers
Under First Tier Agreement.  In the
case of the Seller (except for the Receivables acquired by the Seller in respect
of the termination of the existing receivables 


 


37

















 


securitization on
or prior to the date of the initial funding hereunder), each Receivable has
been purchased by it from the Originator pursuant to, and in accordance with,
the terms of the First Tier Agreement.


 


(u)                                 Transfers
Under Second Tier Agreement.  In the
case of the SPV, each Receivable has been purchased by it from the Seller
pursuant to, and in accordance with, the terms of the Second Tier Agreement.


 


(v)                                 Fair
Value By SPV.  In the case of the
SPV, it shall have given reasonably equivalent value to the Seller in
consideration for the transfer to it of the Affected Assets from the Seller,
and each such transfer shall not have been made for or on account of an
antecedent debt owed by the Seller to it and no such transfer is or may be
voidable under any section of the Bankruptcy Code.


 


(w)                               Fair
Value By Seller.  In the case of the
Seller, it shall have given reasonably equivalent value to the Originator in
consideration for the transfer to it of the Affected Assets from the
Originator, and each such transfer shall not have been made for or on account
of an antecedent debt owed by the Originator to it and no such transfer is or
may be voidable under any section of the Bankruptcy Code.


 


(x)                                   Nonconsolidation.  The SPV is operated in such a manner that the
separate corporate existence of the SPV, on the one hand, and the Originator or
any Affiliate thereof, on the other, would not be disregarded in the event of
the bankruptcy or insolvency of the Originator or any Affiliate thereof and,
without limiting the generality of the foregoing:


 


(i)                                     the
SPV is a limited purpose entity whose activities are restricted in its limited
liability company agreement to activities related to purchasing or otherwise
acquiring receivables (including the Receivables) and related assets and rights
and conducting any related or incidental business or activities it deems
necessary or appropriate to carry out its primary purpose, including entering
into agreements like the Transaction Documents;


 


(ii)                                  the
SPV has not engaged, and does not presently engage, in any activity other than
those activities expressly permitted hereunder and under the other Transaction
Documents, nor has the SPV entered into any agreement other than this
Agreement, the other Transaction Documents to which it is a party, and with the
prior written consent of the Investors and the Agent, any other agreement
necessary to carry out more effectively the provisions and purposes hereof or
thereof;


 


(iii)                               (A) the
SPV maintains its own deposit account or accounts, separate from those of any
of its Affiliates, with commercial banking institutions, (B) the funds of
the SPV are not and have not been diverted to any other Person or for other
than the corporate use of the SPV and (C) except as may be expressly
permitted by this Agreement, the funds of the SPV are not and have not been
commingled with those of any of its Affiliates;


 


(iv)                              to
the extent that the SPV contracts or does business with vendors or service
providers where the goods and services provided are partially for the benefit
of 


 


38

















 


any other Person, the costs incurred in so doing are
fairly allocated to or among the SPV and such entities for whose benefit the
goods and services are provided, and each of the SPV and each such entity bears
its fair share of such costs; and  all material transactions between the
SPV and any of its Affiliates shall be only on an arm’s-length basis;


 


(v)                                 the
SPV maintains a principal executive and administrative office through which its
business is conducted and a telephone number and stationery through which all
business correspondence and communication are conducted, in each case separate
from those of the Originator and its Affiliates (provided it may be within the
same offices as the Originator and its Affiliates);


 


(vi)                              the
SPV conducts its affairs strictly in accordance with its organizational
documents and observes all necessary, appropriate and customary corporate
formalities, including (A) holding all regular and special members’ and
managers’ meetings appropriate to authorize all corporate action, (B) keeping
separate and accurate minutes of such meetings, (C) passing all resolutions
or consents necessary to authorize actions taken or to be taken, and (D) maintaining
accurate and separate books, records and accounts, including intercompany
transaction accounts;


 


(vii)                           all
decisions with respect to its business and daily operations are independently
made by the SPV (although the officer making any particular decision may also
be an employee, officer or director of an Affiliate of the SPV) and are not
dictated by any Affiliate of the SPV (it being understood that the Servicer, which
is an Affiliate of the SPV, will undertake and perform all of the operations,
functions and obligations of it set forth herein and it may appoint
Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such
operations, functions and obligations);


 


(viii)                        the SPV
acts solely in its own corporate name and through its own authorized officers
and agents, and no Affiliate of the SPV shall be appointed to act as its agent,
except as expressly contemplated by this Agreement;


 


(ix)                                no
Affiliate of the SPV advances funds to the SPV, other than as is otherwise
provided herein or in the other Transaction Documents, and no Affiliate of the
SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided,
however, that an Affiliate of the SPV may provide funds to the SPV in
connection with the capitalization of the SPV;


 


(x)                                   other
than organizational expenses and as expressly provided herein, the SPV pays all
expenses, indebtedness and other obligations incurred by it;


 


(xi)                                the
SPV does not guarantee, and is not otherwise liable, with respect to any
obligation of any of its Affiliates;


 


(xii)                             any
financial reports required of the SPV comply with generally accepted accounting
principles and are issued separately from, but may be consolidated with, any
reports prepared for any of its Affiliates;


 


39

















 


(xiii)                          at all
times the SPV is adequately capitalized to engage in the transactions
contemplated in its certificate of incorporation;


 


(xiv)                         the financial
statements and books and records of the SPV and the Originator reflect the
separate corporate existence of the SPV;


 


(xv)                            the
SPV does not act as agent for the Originator or any Affiliate thereof, but
instead presents itself to the public as a corporation separate from each such
member and independently engaged in the business of purchasing and financing
Receivables;


 


(xvi)                         the SPV
maintains a three-person board of managers, including at least one independent
manager, who has never been, and shall at no time be a stockholder, member,
manager, officer, employee or associate, or any relative of the foregoing, of
the Originator or any Affiliate thereof (other than the SPV and any other
bankruptcy-remote special purpose entity formed for the sole purpose of
securitizing, or facilitating the securitization of, financial assets of the
Originator or any Affiliate thereof), all as provided in its certificate or
articles of incorporation, and is otherwise reasonably acceptable to the
Investors and the Agent; and


 


(xvii)                      the limited
liability company agreement of the SPV requires the affirmative vote of its
independent manager before a voluntary petition under Section 301 of the
Bankruptcy Code may be filed by the SPV, and requires the SPV to maintain
correct and complete books and records of account and minutes of the meetings
and other proceedings of its member and board of managers.


 


(y)                                 Solvency.
In the case of the SPV, on the date of any Investment or Reinvestment,  the SPV is solvent before and after giving effect
to such Investment or Reinvestment.


 


(z)                                   Receivables
Purchase Facility.  (i) The
transactions contemplated by the Transaction Documents constitute a “Receivables
Purchase Facility” (as defined in the Revolving Credit Agreement and the Master
Note Purchase Agreement, as such documents are in effect on each date as of
which this representation is made) and is permitted under the Revolving Credit
Agreement and the Master Note Purchase Agreement, as such documents are in
effect on the date as of which this representation is made and (ii) it has
not entered into any additional Receivables Purchase Facilities (as defined in
the Revolving Credit Agreement and the Master Note Purchase Agreement, as such
documents are in effect on the date as of which this representation is made).


 


(aa)                            Notice
of Amendment to Existing Credit Documents. 
It shall provide copies of  any
proposed  amendments, modifications or
supplements to the Revolving Credit Agreement, Master Note Purchase Agreement,
Intercreditor Agreement and Pledge Agreement to the Agent. Upon receipt
thereof, the Agent shall have 15 days to notify the SPV and the Servicer if it
reasonably believes that any such amendment or supplement would adversely
affect rights of it, any Purchaser Agent, or any Investor or cause a breach of
any representation, warranty or other term or provision hereof.


 


40

















 


(bb)                          Disclosure
of the Transaction.  The Performance
Guarantor, the Originator, the Seller and SPV each make the representations set
forth in Schedule 4.1 (bb) applicable to it which are incorporated
herein by reference.


 


(cc)                            Representations
and Warranties in other Related Documents. 
In the case of the SPV, each of the representations and warranties made
by it contained in the Transaction Documents (other than this Agreement) is
true, complete and correct in all respects and it hereby makes each such
representation and warranty to, and for the benefit of, the Agent, the Class Agents
and the Investors as if the same were set forth in full herein.


 


(dd)                          No
Servicer Default.  In the case of the
Servicer, no event has occurred and is continuing and no condition exists, or
would result from a purchase in respect of, or Reinvestment in respect of the
Asset Interest, any Investment or from the application of the proceeds
therefrom, which constitutes a Servicer Default.


 


Section 4.2                                   Additional
Representations and Warranties of the Servicer.


 


The Servicer represents and
warrants on the Closing Date and on each Investment Date and Reinvestment Date
to the Agent, the Class Agents and the Investors, which representation and
warranty shall survive the execution and delivery of this Agreement, that each
of the representations and warranties of the Servicer (whether made by the
Servicer in its capacity as the Seller or as the Servicer) contained in any
Transaction Document is true, complete and correct on such date (unless such
statement specifically applies to an earlier date) and, if made by the Servicer
in its capacity as the Seller or other applicable capacity, applies with equal
force to the Servicer in its capacity as the Servicer, and the Servicer hereby
makes each such representation and warranty to, and for the benefit of, the
Agent, the Class Agents and the Investors as if the same were set forth in
full herein.


 


Article V


 


Conditions Precedent


 


Section 5.1                                   Conditions
Precedent to Closing.


 


The occurrence of the Closing
Date and the effectiveness of the Commitments hereunder shall be subject to the
conditions precedent that (i) the SPV or the Originator shall have paid in
full (A) all amounts required to be paid by either of them on or prior to
the Closing Date pursuant to the Fee Letter and (B) the fees and expenses
described in clause (i) of Section 9.4 and invoiced
prior to the Closing Date, and (ii) the Agent shall have received, for
itself and each of the Investors and the Agent’s counsel, an original (unless
otherwise indicated) of each of the following documents, each in form and
substance satisfactory to the Agent.


 


(a)                                  A
duly executed counterpart of this Agreement, the First Tier Agreement, the
Second Tier Agreement, the Fee Letter and each of the other Transaction
Documents executed by the Originator, the SPV, the Seller and the Servicer, as
applicable.


 


41
















 


(b)                                 A
certificate, substantially in the form of Exhibit G, of the
secretary or assistant secretary of the SPV, certifying and (in the case of clauses
(i) through (iii)) attaching as exhibits thereto, among other
things:


 


(i)                                     the
articles of incorporation, charter or other organizing document (including a
limited liability company agreement, if applicable) of the SPV, the Servicer,
the Seller, the Originator and the Performance Guarantor (certified by the
Secretary of State or other similar official of the respective jurisdiction of
incorporation or organization, as applicable, as of a recent date);


 


(ii)                                  resolutions
of the board of managers or other governing body of the SPV, the Servicer, the
Seller, the Originator and the Performance Guarantor authorizing the execution,
delivery and performance of this Agreement and the other Transaction Documents
to be delivered by the SPV, the Servicer, the Seller, the Originator and the
Performance Guarantor hereunder or thereunder and all other documents
evidencing necessary corporate action (including shareholder consents, if
applicable) and government approvals, if any; and


 


(iii)                               the
incumbency, authority and signature of each officer of the SPV, the Servicer,
the Seller, the Originator and the Performance Guarantor executing the
Transaction Documents or any certificates or other documents delivered
hereunder or thereunder on behalf of the SPV, the Servicer, the Seller, the
Originator and the Performance Guarantor.


 


(c)                                  A
certificate, substantially in the form of Exhibit H of the
secretary or assistant secretary of the Originator, the Servicer, the Seller
and the Performance Guarantor certifying and (in the case of clauses (i) through
(iii)) attaching as exhibits thereto, among other things:


 


(i)                                     the
articles of incorporation, certificate of formation, charter or other
organizing document (including a limited liability company agreement, if
applicable) of the Originator, the Servicer, the Seller and the Performance
Guarantor (certified by the Secretary of State or other similar official of its
respective jurisdiction of incorporation or organization, as applicable, as of
a recent date);


 


(ii)                                  the
by-laws and/or operating agreement of the Originator, the Servicer, the Seller
and the Performance Guarantor;


 


(iii)                               resolutions
of the board of directors or managers or other governing body of the
Originator, the Servicer, the Seller and the Performance Guarantor authorizing
the execution, delivery and performance by it of this Agreement and the other
Transaction Documents to be delivered by it hereunder or thereunder and all
other documents evidencing necessary corporate action (including shareholder
consents) and government approvals, if any; and


 


(iv)                              the
incumbency, authority and signature of each officer of the Originator, the
Servicer, the Seller and the Performance Guarantor executing the Transaction
Documents or any certificates or other documents delivered hereunder or
thereunder on its behalf.


 


42

















 


(d)                                 A
good standing certificate for the SPV issued by the Secretary of State or a
similar official of the SPV’s jurisdiction of incorporation or organization, as
applicable, and certificates of qualification as a foreign corporation issued
by the Secretaries of State or other similar officials of each jurisdiction
where such qualification is material to the transactions contemplated by this
Agreement and the other Transaction Documents, in each case, dated as of a
recent date.


 


(e)                                  A
good standing certificate for each of the Originator, the Servicer and the
Seller  issued by the Secretary of State
or a similar official of its jurisdiction of incorporation or organization, as
applicable, and certificates of qualification as a foreign corporation issued
by the Secretaries of State or other similar officials of each jurisdiction
where such qualification is material to the transactions contemplated by this
Agreement and the other Transaction Documents, in each case, dated as of a
recent date.


 


(f)                                    Acknowledgment
copies or other evidence of filing acceptable to the Agent of proper financing
statements (Form UCC-1), filed on or before the initial Investment Date
naming the SPV, as debtor, in favor of the Agent, as secured party, for the
benefit of the Investors or other similar instruments or documents as may be
necessary or in the reasonable opinion of the Agent desirable under the UCC of
all appropriate jurisdictions or any comparable law to perfect the Agent’s
ownership or security interest in all Receivables and the other Affected Assets.


 


(g)                                 Acknowledgment
copies or other evidence of filing acceptable to the Agent of proper financing
statements (Form UCC-1), filed on or before the initial Investment naming
the Originator, as the debtor, in favor of the SPV, as secured party, and the
Agent, for the benefit of the Investors, as assignee, or other similar
instruments or documents as may be necessary or in the reasonable opinion of
the Agent desirable under the UCC of all appropriate jurisdictions or any
comparable law to perfect the SPV’s ownership interest in all Receivables and
the other Affected Assets.


 


(h)                                 Acknowledgment
copies or other evidence of filing acceptable to the Agent of proper financing
statements (Form UCC-1), filed on or before the initial Investment naming
the Seller, as the debtor, in favor of the SPV, as secured party, and the
Agent, for the benefit of the Investors, as assignee, or other similar
instruments or documents as may be necessary or in the reasonable opinion of
the Agent desirable under the UCC of all appropriate jurisdictions or any
comparable law to perfect the SPV’s ownership interest in all Receivables and
the other Affected Assets.


 


(i)                                     Copies
of proper financing statements (Form UCC-3), if any, filed on or before
the initial Investment Date necessary to terminate all security interests and
other rights of any Person in Receivables or the other Affected Assets
previously granted by SPV.


 


(j)                                     Copies
of proper financing statements (Form UCC-3), if any, filed on or before
the initial Investment Date necessary to terminate all security interests and
other rights of any Person in Receivables or the other Affected Assets
previously granted by the Originator.


 


(k)                                  Certified
copies of requests for information or copies (Form UCC-11) (or a similar
search report certified by parties acceptable to the Agent) dated a date
reasonably near


 


43

















 


the date of the initial
Investment listing all effective financing statements which name the SPV, the
Seller or the Originator (under their respective present names and any previous
names) as debtor and which are filed in jurisdictions in which the filings were
made pursuant to clauses (f) or (g) above and such
other jurisdictions where the Agent may reasonably request together with copies
of such financing statements (none of which shall cover any Receivables, other
Affected Assets or Contracts unless such filings have been terminated or
released pursuant to paragraphs (i) or (j) above or unless such
Receivables, other Affected Assets or Contracts have been released under the
terms of the related agreement as contemplated in Section 4.1(z) above),
and similar search reports with respect to federal tax liens and liens of the
Pension Benefit Guaranty Corporation in such jurisdictions, showing no such
liens on any of the Receivables, other Affected Assets or Contracts.


 


(l)                                     Executed
copies of the Blocked Account Agreements relating to each of the Blocked
Accounts.


 


(m)                               [Reserved].


 


(n)                                 (i) A
favorable opinion of Mayer Brown LLP, special counsel to the SPV, the Seller,
the Servicer, the Performance Guarantor and the Originator, covering the
matters set forth in Exhibit I, including non-contravention as to
the material agreements (including the Revolving Credit Agreement and the
Master Note Purchase Agreement and all related documents), the creation,
attachment, perfection and priority of the interests created pursuant to each
of the First Tier Agreement, the Second Tier Agreement, and this Agreement, the
enforceability of each of the Transaction Documents against each of the
Originator, the Seller, the SPV and the Performance Guarantor and as to such
other matters as the Agent may reasonably request and (ii) a favorable
opinion of the general counsel to the Originator covering certain corporate
matters, each of the foregoing to be in form and substance acceptable to the
Agent.


 


(o)                                 A
favorable opinion of Mayer Brown LLP, special counsel to the SPV, the Seller,
the Performance Guarantor and the Originator, covering certain bankruptcy and
insolvency matters i.e.  “true sale” and nonconsolidation in form and substance
satisfactory to the Agent and Agent’s counsel.


 


(p)                                 [Reserved].


 


(q)                                 Satisfactory
results of a review and audit of the Originator’s collection, operating and
reporting systems, Credit and Collection Policy, historical receivables data
and accounts, including satisfactory results of a review of the Originator’s
operating location(s) and satisfactory review and approval of the Eligible
Receivables in existence on the date of the initial purchase under the First
Tier Agreement and Second Tier Agreement and a written outside audit report of
a nationally-recognized accounting firm as to such matters.


 


(r)                                    A
Servicer Report as of January 31, 2009 showing the calculation of the Net
Investment, each Class Net Investment and Required Reserves after giving
effect to the initial Investment.


 


(s)                                  Evidence
of the appointment of CT Corporation Systems as agent for process as required
by Section 11.4.


 


44

















 


(t)                                    [Reserved].


 


(u)                                 Evidence
of the termination of the existing receivables securitization facility and the
release of all liens related thereto.


 


(v)                                 Such
other approvals, documents, instruments, certificates and opinions as the
Agent, any Class Agent or any Investor, may reasonably request.


 


Section 5.2                                   Conditions
Precedent to All Investments and Reinvestments.


 


Each Investment and
Reinvestment hereunder (including the initial Investment) shall be subject to
the conditions precedent that (a) the Closing Date shall have occurred, (b) if
the Agent shall have requested, in accordance with any provision of this
Agreement, any additional information, report, document or filing, it has
received such information, report or document or such filing as been made, and (c) on
the date of such Investment and Reinvestment the following statements shall be
true (and the SPV by accepting the amount of such Investment or Reinvestment
shall be deemed to have certified that):


 


(i)                                     The
representations and warranties contained in Sections 4.1 and 4.2
are true, complete and correct on and as of such day as though made on and as
of such day and shall be deemed to have been made on such day,


 


(ii)                                  In
the case of a Reinvestment, the amount of the Reinvestment will not exceed the
amount available therefor under Section 2.12, and in the case of an
Investment, the amount of such Investment will not exceed the amount available
therefor under Section 2.2 and after giving effect thereto, the sum
of the Net Investment and Required Reserves will not exceed the Net Pool
Balance,


 


(iii)                               In
the case of an Investment, the Agent shall have received an Investment Request,
appropriately completed, within the time period required by Section 2.3,


 


(iv)                              In
the case of an Investment, the Agent shall have received a Servicer Report
dated no more than 31 days (or such other date at the Agent’s request) prior to
the proposed Investment Date and the information set forth therein shall be
true, complete and correct,


 


(v)                                 The
Termination Date has not occurred,


 


(vi)                              No
Termination Event or Potential Termination Event has occurred or has not been
waived by the Agent,


 


(vii)                           The
three-month average Trigger Delinquency Ratio does not exceed 5.50%,


 


(viii)                        The
three-month average Trigger Default Ratio does not exceed 1.75%,


 


(ix)                                The
three-month average Trigger Dilution Ratio has not exceeded 7.50%,


 


45

















 


(x)                                   The
Days Sales Outstanding does not equal or exceed 50 days, and


 


(xi)                                Any
challenge by any of the parties to the Revolving Credit Agreement or the Master
Note Purchase Agreement that the transactions contemplated by the Transaction
Documents are not a Receivable Purchase Facility (as defined in the Revolving
Credit Agreement or the Master Note Purchase Agreement, as such document is in
effect on the date as of the date of this Agreement) or are not permitted under
the Revolving Credit Agreement or the Master Note Purchase Agreement, as such
document is in effect on the date as of which this representation is made.


 


No Investments
or Reinvestments shall be made until all of the above conditions have been
satisfied or waived by each Class Agent and, if the conditions to the
continued Investment or Reinvestment that were not satisfied include those set
forth in any of the clauses (vii), (viii), (ix) or (x) then a new
Servicer Report has been received by the Class Agents, which Servicer
Report indicates that such conditions have been satisfied.  Following the occurrence and continuance of a
failure to satisfy one or more of the above conditions, the Collections
received shall be applied on the next Settlement Date in accordance with the
provisions of Section 2.12; provided, however, that
solely during the failure to satisfy the conditions set forth in clauses (vii),
(viii) and (ix) of this Section 5.2 (and for as long as
such ratios have not exceeded the respective levels set forth in the
Termination Events therefor), once a Servicer Report has been received by each
of the Class Agents indicating that the Net Investment has been reduced to
or below $50,000,000, Investments and Reinvestments shall resume (such period
of time being an “Exception Funding Period”)
to the extent that (1) the Net Investment does not exceed $50,000,000 and (2) all
other conditions (other than clauses (vii), (viii) and (ix) of this Section 5.2)
to such Investment or Reinvestment are satisfied; provided, further,
that no Investments or Reinvestments shall be made during an Exception Funding
Period unless (x) all representations and warranties are true and correct
and (y) the Servicer has delivered a Servicer Report (as of the date
reporting period covered by such report) showing that after giving effect to
such requested Investment or Reinvestment, the sum of the Net Investment and
the Required Reserves do not exceed the Net Pool Balance (as of the date
reporting period covered by such report).


 


Any Exception
Funding Period shall terminate upon delivery to each Class Agent by the
Servicer of a Servicer Report evidencing that the conditions described in
clauses (vii), (viii) and (ix) of this Section 5.2 have
been satisfied.


 


Article VI


 


Covenants


 


Section 6.1                                   Affirmative
Covenants of the SPV and Servicer.


 


At all times from the date
hereof to the Final Payout Date, unless the Class Agents shall otherwise
consent in writing:


 


(a)                                  Reporting
Requirements.  The SPV and the
Performance Guarantor shall maintain, for itself and each of its Subsidiaries,
a system of accounting established and administered in accordance with GAAP,
and furnish to the Agent and each Class Agent:


 


46

















 


(i)                                     Annual
Reporting.


 


(a) Within ninety
(90) days after the close of the SPV’s and the Performance Guarantor’s fiscal
years, audited financial statements, prepared by in accordance with GAAP on a
consolidated basis for (A) the SPV and (B) for the Performance
Guarantor and its Subsidiaries, in each case, including balance sheets as of
the end of such period, related statements of operations, shareholder’s equity
and cash flows, accompanied by an unqualified audit report certified by
independent registered public accountants of national or regional recognition,
acceptable to the Agent, prepared in accordance with GAAP and by a certificate
of said accountants that, in the course of the foregoing, they have obtained no
knowledge of any Termination Event or Potential Termination Event, or if, in
the opinion of such accountants, any Termination Event or Potential Termination
Event shall exist, stating the nature and status thereof, and


 


(b)  Within one
hundred twenty-five (125) days after the close of the Seller and the Servicer
fiscal years, financial statements, prepared in accordance with GAAP on a
consolidated basis for the Seller and the Servicer, in each case, including
balance sheets as of the end of such period, related statements of operations,
shareholder’s equity and cash flows, all certified by an appropriate
Responsible Officer and a certificate of a Responsible Officer that, in the
course of the foregoing, they have obtained no knowledge of any Termination
Event or Potential Termination Event, or if, in the opinion of such Responsible
Officer, any Termination Event or Potential Termination Event shall exist,
stating the nature and status thereof;


 


(ii)                                  Quarterly
Reporting.  Within forty-five (45)
days after the close of the first three quarterly periods of each of the SPV’s,
the Seller’s, the Servicer’s and the Performance Guarantor’s fiscal years, for (A) the
SPV, the Seller and the Servicer and (B) for Performance Guarantor and its
Subsidiaries, in each case, consolidated unaudited balance sheets as at the
close of each such period and consolidated related statements of operations,
shareholder’s equity and cash flows for the period from the beginning of such
fiscal year to the end of such quarter, all certified by its chief financial
officer. Each such report by the Performance Guarantor shall include a
certification that it and its Affiliates are in compliance with all financial
covenants under the Revolving Credit Agreement and shall include calculations
in reasonable detail evidencing such compliance.


 


(iii)                               Compliance
Certificate.  Together with the
financial statements required hereunder, a compliance certificate in
substantially the form set forth on Exhibit K signed by the SPV’s
or the Performance Guarantor’s, as applicable, chief financial officer stating
that (A) the attached financial statements have been prepared in
accordance with GAAP and accurately reflect the financial condition of the SPV
or the Performance Guarantor and its Subsidiaries as applicable (which in the
case of quarterly financial statements may be subject to normal year-end audit
adjustments) and (B) to the best of such Person’s knowledge, no
Termination Event or Potential Termination Event exists, or if any Termination
Event or Potential Termination Event exists, stating the nature and status
thereof.


 


47

















 


(iv)                              Shareholders
Statements and Reports.  Promptly
upon the furnishing thereof to the shareholders of the SPV, the Originator or
the Performance Guarantor, copies of all financial statements, reports and
proxy statements so furnished.


 


(v)                                 SEC
Filings.  Promptly upon the filing
thereof, copies of all registration statements and annual, quarterly, monthly
or other regular reports which the Originator or any Subsidiary of the
Originator or the Performance Guarantor or such Person files with the
Securities and Exchange Commission.


 


(vi)                              Notice
of Termination Events or Potential Termination Events; Etc.  (A) as soon as possible and in any event
within two (2) Business Days after the occurrence of each Termination
Event or Potential Termination Event, a statement of a Responsible Officer of
the SPV setting forth details of such Termination Event or Potential Termination
Event and the action which the SPV proposes to take with respect thereto, which
information shall be updated promptly from time to time; (B) promptly
after the SPV obtains knowledge thereof, notice of any litigation,
investigation or proceeding that may exist at any time between the SPV and any
Person that could reasonably be expected to result in a Material Adverse Effect
or any litigation or proceeding relating to any Transaction Document; and (C) promptly
after the occurrence thereof, notice of a Material Adverse Effect.


 


(vii)                           Change
in Credit and Collection Policy and Debt Ratings.  Within ten (10) Business Days after the
date any material change in or amendment to the Credit and Collection Policy is
made, a copy of the Credit and Collection Policy then in effect indicating such
change or amendment.  Within five (5) days
after the date of any change in the Servicer’s, the Seller’s, the Originator’s
or the Performance Guarantor’s public or private debt ratings by any Rating
Agency, if any, a written certification of the SPV’s or the Originator’s and
private debt ratings after giving effect to any such change.


 


(viii)                        Credit
and Collection Policy.  Within ninety
(90) days after the close of each of the Originator’s and the SPV’s fiscal
years, a complete copy of the Credit and Collection Policy then in effect.


 


(ix)                                ERISA.  Promptly after the filing, giving or
receiving thereof, copies of all reports and notices with respect to any
Reportable Event pertaining to any Pension Plan and copies of any notice by any
Person of its intent to terminate any Pension Plan, and promptly upon the
occurrence thereof, written notice of any contribution failure with respect to
any Pension Plan sufficient to give rise to a lien under Section 302(f) of
ERISA.


 


(x)                                   Change
in Accountants or Accounting Policy. 
Promptly, notice of any change in the accountants or any material change
(other than as a result of the application of a change in standards by the
Financial Accounting Standards Board or the American Institute of Certified
Public Accountants) in accounting policy of either the SPV or the Performance
Guarantor.


 


48

















 


(xi)                                Agreed
Upon Procedures.  No later than 60
days prior to November 23rd of each calendar year, the Servicer, at its
expense, will cause to be prepared a report prepared by a firm satisfactory to
the Agent setting forth the results of such firm’s application of the agreed
upon procedures set forth on Exhibit J.


 


(xii)                             Other
Information.  Such other information
(including non-financial information) as the Agent or any Class Agent may
from time to time reasonably request with respect to the Originator, the SPV,
the Seller or the Performance Guarantor.


 


(b)                                 Conduct
of Business; Ownership.  Each of the
SPV and the Servicer shall carry on and conduct its business in substantially
the same manner and in substantially the same fields of enterprise as it is
presently conducted and do all things necessary to remain duly organized,
validly existing and in good standing as a domestic limited liability company
in its jurisdiction of organization and maintain all requisite authority to
conduct its business in each jurisdiction in which its business is
conducted.  The SPV shall at all times be
a wholly-owned Subsidiary of the Seller.


 


(c)                                  Compliance
with Laws, Etc.  Each of the SPV and
the Servicer shall comply in all material respects with all Laws to which it or
its respective properties may be subject and preserve and maintain its
corporate existence, rights, franchises, qualifications and privileges.


 


(d)                                 Furnishing
of Information and Inspection of Records. 
Each of the SPV and the Servicer shall furnish to the Agent from time to
time such information with respect to the Affected Assets as the Agent may
reasonably request, including listings identifying the Obligor and the Unpaid
Balance for each Receivable available to the Servicer in accordance with its
then current accounts receivable system without the Servicer manually preparing
such reports.  Each of the SPV and the
Servicer shall, at any time and from time to time during regular business
hours, as reasonably requested  with
reasonable prior notice by the Agent or any Class Agent, permit the Agent,
or its agents or representatives, (i) to examine and make copies of and
take abstracts from all books, records and documents (including applicable
computer systems following a Potential Termination Event or Termination Event)
relating to the Receivables or other Affected Assets, including the related
Contracts and (ii) to visit the offices and properties of the SPV, the
Originator or the Servicer, as applicable, for the purpose of examining such
materials described in clause (i), and to discuss matters relating
to the Affected Assets or the SPV’s, the Originator’s or the Servicer’s
performance hereunder, under the Contracts and under the other Transaction
Documents to which such Person is a party with any of the officers, directors,
managers, employees or independent public accountants of the SPV, the
Originator or the Servicer, as applicable, having knowledge of such matters;
provided, however that the Seller and Servicer shall only be responsible for
the costs and expenses associated with one such review per year unless a
Termination Event or Potential Termination Event has occurred.


 


(e)                                  Keeping
of Records and Books of Account. 
Each of the SPV and the Servicer shall maintain and implement
administrative and operating procedures (including an ability to recreate
records evidencing Receivables and related Contracts in the event of the
destruction of the originals thereof), and keep and maintain, all documents,
books, computer tapes, disks, records and other information reasonably
necessary or advisable for the collection of all Receivables (including records
adequate to permit the daily identification of each new


 


49

















 


Receivable and all
Collections of and adjustments to each existing Receivable).  Each of the SPV and the Servicer shall give
the Agent prompt notice of any material change in its administrative and
operating procedures referred to in the previous sentence.


 


(f)                                    Performance
and Compliance with Receivables and Contracts and Credit and Collection Policy.  Each of the SPV and the Servicer shall, (i) at
its own expense, timely and fully perform and comply in all material respects
with all provisions, covenants and other promises required to be observed by it
under the Contracts related to the Receivables; and (ii) timely and fully
comply in all material respects with the Credit and Collection Policy in regard
to each Receivable and the related Contract.


 


(g)                                 Notice
of Agent’s Interest.  In the event
that the SPV or the Originator shall sell or otherwise transfer any interest in
accounts receivable or any other financial assets (other than as contemplated
by the Transaction Documents), any computer tapes or files or other documents
or instruments provided by the Servicer in connection with any such sale or
transfer shall disclose the SPV’s ownership of the Receivables and the Agent’s
interest therein.


 


(h)                                 Collections.  Each of the SPV and the Servicer shall
instruct all Obligors to cause all Collections to be deposited directly to a
Blocked Account or to post office boxes to which only Blocked Account Banks
have access and shall cause all items and amounts relating to such Collections
received in such post office boxes to be removed and deposited into a Blocked
Account on a daily basis.


 


(i)                                     Collections
Received.  Each of the SPV and the
Servicer shall hold in trust, and deposit, immediately, but in any event not
later than two (2) Business Days of its receipt thereof, to a Blocked
Account or, if required by Section 2.9, to the Collection Account,
all Collections received by it from time to time.


 


(j)                                     Blocked
Accounts.  Each Blocked Account shall
at all times be subject to a Blocked Account Agreement.


 


(k)                                  Sale
Treatment.  The SPV shall not (i) record
in its books (other than for accounting and tax purposes), or otherwise treat,
the transactions contemplated by the Second Tier Agreement in any manner other
than as a sale of Receivables by the Seller to the SPV, or (ii) record in
its books (other than for tax or accounting purposes) or otherwise treat the
transactions contemplated hereby in any manner other than as a sale of the
Asset Interest by the SPV to the Agent on behalf of the Investors.  In addition, the SPV shall disclose (in a
footnote or otherwise) in all of its financial statements (including any such
financial statements consolidated with any other Persons’ financial statements)
the existence and nature of the transaction contemplated hereby and by the
Second  Tier Agreement and the interest
of the SPV (in the case of the Originator’s financial statements) and the
Agent, on behalf of the Investors, in the Affected Assets.  Notwithstanding anything to the contrary
herein, each of the parties hereto hereby understands and agrees that for
accounting purposes, the SPV may be consolidated with any Affiliates of the
Originator.


 


(l)                                     Separate
Business; Nonconsolidation.  The SPV
shall not (i) engage in any business not permitted by its limited
liability company agreement as in effect on the Closing


 


50

















 


Date or (ii) conduct
its business or act in any other manner which is inconsistent with Section 4.1(x).  The officers and managers of the SPV (as
appropriate) shall make decisions with respect to the business and daily
operations of the SPV independent of and not dictated by Originator or any
other controlling Person.


 


(m)                               Corporate
Documents.  The SPV shall only amend,
alter, change or repeal its limited liability company agreement with the prior
written consent of the Agent.


 


(n)                                 [Reserved].


 


(o)                                 Ownership
Interest, Etc.  The SPV shall, at its
expense, take all action necessary or desirable to establish and maintain a
valid and enforceable ownership or security interest in the Receivables, the
Related Security and proceeds with respect thereto, and a first priority
perfected security interest in the Affected Assets, in each case free and clear
of any Adverse Claim, in favor of the Agent for the benefit of the Investors,
including taking such action to perfect, protect or more fully evidence the
interest of the Agent, as the Agent may reasonably request.


 


(p)                                 Enforcement
of First Tier Agreement.  The Seller,
on its own behalf and on behalf of the Agent and each Investor, shall promptly
enforce all covenants and obligations of the Originator contained in the First
Tier Agreement.  The Seller shall deliver
consents, approvals, directions, notices, waivers and take other actions under
the First Tier Agreement as may be directed by the Agent.


 


(q)                                 Enforcement
of Second Tier Agreement.  The SPV,
on its own behalf and on behalf of the Agent and each Investor, shall promptly
enforce all covenants and obligations of the Seller contained in the Second
Tier Agreement.  The SPV shall deliver
consents, approvals, directions, notices, waivers and take other actions under
the Second Tier Agreement as may be directed by the Agent.


 


(r)                                    Notice
of Amendment.  The SPV or the
Originator shall promptly notify the Agent of any amendment, modification or
supplement to the Revolving Credit Agreement, Master Note Purchase Agreement,
Intercreditor Agreement or the Pledge Agreement that could have any effect on
the transactions contemplated by the Transaction Documents.


 


(s)                                  Disclosure
of the Transaction. The Performance Guarantor, the Originator, the Seller
and the SPV each agree to the covenants set forth on Schedule 4.1 (bb)
applicable to it which are incorporated herein by reference.


 


Section 6.2                                   Negative
Covenants of the SPV and Servicer.


 


At all times from the date
hereof to the Final Payout Date, unless the Agent and each Class Agent
shall otherwise consent in writing:


 


(a)                                  No
Sales, Liens, Etc.  (i) Except
as otherwise provided herein and in the Second Tier Agreement, neither the SPV
nor the Servicer shall, or shall permit the Seller or the Originator to, sell,
assign (by operation of law or otherwise) or otherwise dispose of, or create or


 


51
















 


suffer to exist any
Adverse Claim upon (or the filing of any financing statement) or with respect
to (A) any of the Affected Assets, or (B) any inventory or goods, the
sale of which may give rise to a Receivable, or assign any right to receive
income in respect thereof (except to the extent the Receivables have been
excluded or otherwise excepted or released from such transaction on or before
the date such Receivables are transferred by the Originator and by the Seller)
and (ii) the SPV shall not issue any security to, or sell, transfer or
otherwise dispose of any of its property or other assets (including the
property sold, transferred or assigned to it by the Seller) to, any Person
other than an Affiliate (which Affiliate is not a special purpose entity organized
for the sole purpose of issuing asset backed securities) or as otherwise
expressly provided for in the Transaction Documents.


 


(b)                                 No
Extension or Amendment of Receivables. 
Except as otherwise permitted in Section 7.2, neither the
SPV nor the Servicer shall extend, amend or otherwise modify the terms of any
Receivable, or amend, modify or waive any term or condition of any Contract
related thereto.


 


(c)                                  No
Change in Business or Credit and Collection Policy.  Neither the SPV nor the Servicer shall make
any change in the character of its business or in the Credit and Collection
Policy, which change would, in either case, have a Material Adverse Effect.


 


(d)                                 No
Subsidiaries, Mergers, Etc.  The SPV
shall not consolidate or merge with or into, or sell, lease or transfer all or
substantially all of its assets to, any other Person. The Servicer shall not
shall not consolidate or merge with or into, or sell, lease or transfer all or
substantially all of its assets to, any other Person, unless either (i) the
Servicer is the surviving entity or (ii) the surviving entity is a
wholly-owned subsidiary of the Performance Guarantor.  The SPV shall not form or create any
Subsidiary.


 


(e)                                  Change
in Payment Instructions to Obligors. 
Neither the SPV nor the Servicer shall add or terminate any bank as a
Blocked Account Bank or any account as a Blocked Account to or from those
listed in Schedule 4.1(s) or make any change in its instructions to
Obligors regarding payments to be made to any Blocked Account, unless (i) such
instructions are to deposit such payments to another existing Blocked Account
or to the Collection Account or (ii) the Agent shall have received written
notice of such addition, termination or change at least thirty (30) days prior
thereto and the Agent shall have received a Blocked Account Agreement executed
by each new Blocked Account Bank or an existing Blocked Account Bank with
respect to each new Blocked Account, as applicable.


 


(f)                                    Deposits
to Lock-Box Accounts.  Neither the
SPV nor the Servicer shall deposit or otherwise credit, or cause or permit to
be so deposited or credited, to any Blocked Account or the Collection Account,
cash or cash proceeds other than Collections.


 


(g)                                 Change
of Name, Etc.  The SPV shall not
change its name, identity or structure (including by merger), its jurisdiction
of formation or the location of its chief executive office or any other change
which could render any UCC financing statement filed in connection with this
Agreement or any other Transaction Document to become “seriously misleading”
under the UCC, unless at least thirty (30) days prior to the effective date of
any such change the SPV delivers to the Agent (i) such documents,
instruments or agreements, executed by the SPV as are


 


52

















 


necessary to reflect such
change and to continue the perfection of the Agent’s ownership interests or
security interests in the Affected Assets, including an opinion of counsel that
after giving effect to such change, the Agent’s interest in the Receivables and
the Related Security shall continue unaffected by such change and (ii) new
or revised Blocked Account Agreements executed by the Blocked Account Banks
which reflect such change and enable the Agent to continue to exercise its rights
contained in Section 7.3.


 


(h)                                 Amendment
to First or Second Tier Agreement. 
The SPV shall not and shall not permit the Seller or the Originator to
amend, modify, or supplement the First Tier Agreement or the Second Tier
Agreement or waive any provision thereof, in each case except with the prior
written consent of the Agent.


 


(i)                                     Other
Debt.  Except as provided herein, the
SPV shall not create, incur, assume or suffer to exist any indebtedness whether
current or funded, or any other liability other than (i) indebtedness of
the SPV representing fees, expenses and indemnities arising hereunder or under
the Second Tier Agreement for the purchase price of the Receivables and other
Affected Assets under the Second Tier Agreement, and (ii) other
indebtedness incurred in accordance with the Transaction Documents.


 


(j)                                     Payment
to the Seller.  The SPV shall not
acquire any Receivable other than through, under, and pursuant to the terms of,
the Second Tier Agreement.


 


(k)                                  Restricted
Payments.  The SPV shall not (i) purchase
or redeem any of its membership interest, (ii) prepay, purchase or redeem
any Indebtedness, (iii) lend or advance any funds or (iv) repay any
loans or advances to, for or from any of its Affiliates (the amounts described
in clauses (i) through (iv) being referred to as “Restricted Payments”), except that the
SPV may (A) make Restricted Payments out of funds received pursuant to Section 2.2  and/or otherwise permitted pursuant to the
Transaction Documents and (B) may make other Restricted Payments
(including the payment of dividends) if, after giving effect thereto, no
Termination Event or Potential Termination Event shall have occurred and be
continuing.


 


Section 6.3                                   IS
SPECIFIED IN SCHEDULE 6.3, WHICH IS INCORPORATED HEREIN BY REFERENCE.


 


Article VII


 


Administration and Collections


 


Section 7.1                                   Appointment of
Servicer.


 


(a)                                  The
servicing, administering and collection of the Receivables shall be conducted
by the Person (the “Servicer”)
so designated from time to time as Servicer in accordance with this Section 7.1.  Each of the SPV, the Class Agents, the
Agent and the Investors hereby appoints as its agent the Servicer, from time to
time designated pursuant to this Section, to enforce its respective rights and
interests in and under the Affected Assets. 
To the extent permitted by applicable law, each of the SPV, the
Originator and the Seller (to the extent not then acting as Servicer hereunder)
hereby grants to any Servicer appointed hereunder an irrevocable power of
attorney to take any and all steps in the SPV’s, the Originator’s and/or the
Seller’s name and on


 


53

















 


behalf of the SPV, the
Originator or the Seller as necessary or desirable, in the reasonable
determination of the Servicer, to collect all amounts due under any and all
Receivables, including endorsing the SPV’s and/or the Originator’s name on
checks and other instruments representing Collections and enforcing such
Receivables and the related Contracts and to take all such other actions set
forth in this Article VII. 
Until the Agent gives notice to the Servicer (in accordance with this Section 7.1)
of the designation of a new Servicer, the Seller is hereby designated as, and
hereby agrees to perform the duties and obligations of, the Servicer pursuant
to the terms hereof.  Upon the occurrence
of a Servicer Default, the Agent may, and upon the direction of the Class Agents
shall, designate as Servicer any Person (including itself) to succeed the
Seller or any successor Servicer, on the condition in each case that any such
Person so designated shall agree to perform the duties and obligations of the
Servicer pursuant to the terms hereof; provided, however, that if
a Servicer Default occurs solely as a result of the occurrence of a Termination
Event and, on or after the 60th day after such
occurrence the Net Investment exceeds zero, then a successor Servicer may, or
upon the direction of the Majority Investors, shall, be appointed by the Agent.


 


(b)                                 Upon
the designation of a successor Servicer as set forth above, the Seller agrees
that it will terminate its activities as Servicer hereunder in a manner which
the Agent determines will facilitate the transition of the performance of such
activities to the new Servicer, and the Seller shall cooperate with and assist
such new Servicer.  Such cooperation
shall include access to and transfer of records and use by the new Servicer of
all records, licenses, hardware or software (except to the extent any such
licenses or other items are not assignable and/or may not be shared or
assigned) necessary or desirable to collect the Receivables and the Related
Security.


 


(c)                                  The
Seller acknowledges that the SPV, the Class Agents, the Agent and the
Investors have relied on the Seller’s agreement to act as Servicer hereunder in
making their decision to execute and deliver this Agreement.  Accordingly, the Seller agrees that it will
not voluntarily resign as Servicer.


 


(d)                                 The
Servicer may not delegate any of its rights, duties or obligations hereunder,
or designate a substitute Servicer, without the prior written consent of the
Agent, and provided that the Servicer shall continue to remain solely
liable for the performance of the duties as Servicer hereunder notwithstanding
any such delegation hereunder.  The
Servicer may delegate its duties and obligations hereunder to any Affiliate
subservicer (each, a “Sub-Servicer”);
provided that, in each such delegation, (i) such Sub-Servicer shall
agree in writing to perform the duties and obligations of the Servicer pursuant
to the terms hereof, (ii) the Servicer shall remain primarily liable to
the SPV, the Agent, the Class Agents and the Investors for the performance
of the duties and obligations so delegated, (iii) the SPV, the Agent, the Class Agents
and the Investors shall have the right to look solely to the Servicer for
performance and (iv) the terms of any agreement with any Sub-Servicer
shall provide that the Agent may terminate such agreement upon the termination
of the Servicer hereunder by giving notice of its desire to terminate such
agreement to the Servicer (and the Servicer shall provide appropriate notice to
such Sub-Servicer).


 


(e)                                  The
Seller hereby irrevocably agrees that if at any time it shall cease to be the
Servicer hereunder, it shall act (if the then current Servicer so requests) as
the data-processing agent of the Servicer and, in such capacity, the Seller
shall conduct the data-processing functions


 


54

















 


of the administration of
the Receivables and the Collections thereon in substantially the same way that
the Seller conducted such data-processing functions while it acted as the
Servicer.


 


Section 7.2                                   Duties of
Servicer.


 


(a)                                  The
Servicer shall take or cause to be taken all such action as may be necessary or
advisable to collect each Receivable from time to time, all in accordance with
this Agreement and all applicable Law, with reasonable care and diligence, and
in accordance with the Credit and Collection Policy.  The Servicer shall set aside (and, if applicable,
segregate) and hold in trust for the accounts of the SPV, the Agent and the
Investors the amount of the Collections to which each is entitled in accordance
with Article II.  So long as
no Termination Event or Potential Termination Event shall have occurred and is
continuing, the Servicer may, in accordance with the Credit and Collection
Policy, extend the maturity or adjust the Unpaid Balance of any Defaulted
Receivable, Delinquent Receivable or any Receivable that is otherwise not an
Eligible Receivable as the Servicer may determine to be appropriate to maximize
Collections thereof; provided, however, that (i) such
adjustment shall not alter, subject to Section 1.3(b), the status
of such Receivable as a Defaulted Receivable or a Delinquent Receivable or
limit the rights of the SPV, the Investors or the Agent under this Agreement
and (ii) if a Termination Event or Potential Termination Event has
occurred and the Seller is still acting as Servicer, the Seller may make such
adjustment only upon the prior written approval of the Agent.  The SPV shall deliver to the Servicer and the
Servicer shall hold in trust for the SPV and the Agent, on behalf of the
Investors, in accordance with their respective interests, all Records which
evidence or relate to any Affected Asset. 
Notwithstanding anything to the contrary contained herein, the Agent
shall have the absolute and unlimited right to direct the Servicer (whether the
Seller or any other Person is the Servicer) to commence or settle any legal
action to enforce collection of any Receivable or to foreclose upon or
repossess any Affected Asset.  The
Servicer shall not make the Class Agents, the Agent or any of the
Investors a party to any litigation without the prior written consent of such
Person.  At any time when a Termination
Event exists, the Agent may notify any Obligor of its interest in the
Receivables and the other Affected Assets.


 


(b)                                 The
Servicer shall, as soon as practicable following receipt thereof, turn over to
the Seller or the Originator, as determined by the Servicer, all collections
from any Person of indebtedness of such Person which are not on account of a
Receivable.  Notwithstanding anything to
the contrary contained in this Article VII, the Servicer, if not
the Seller, the Originator or any Affiliate of the Seller or the Originator,
shall have no obligation to collect, enforce or take any other action described
in this Article VII with respect to any indebtedness that is not
included in the Asset Interest other than to deliver to the Seller or the
Originator the Collections and documents with respect to any such indebtedness
as described above in this Section 7.2(b).


 


(c)                                  Any
payment by an Obligor in respect of any indebtedness owed by it to the
Originator shall, except as otherwise specified by such Obligor, required by
contract or law or clearly indicated by facts or circumstances (including by
way of example an equivalence of a payment and the amount of a particular
invoice), and unless otherwise instructed by the Agent, be applied as a Collection
of any Receivable of such Obligor (starting with the oldest such


 


55

















 


Receivable) to the extent
of any amounts then due and payable thereunder before being applied to any
other receivable or other indebtedness of such Obligor.


 


Section 7.3                                   Blocked Account
Arrangements.


 


Prior to the initial purchase
hereunder the Servicer and SPV shall enter into Blocked Account Agreements with
all of the Blocked Account Banks, and deliver original counterparts thereof to
the Agent.  Upon the occurrence of a
Termination Event or a Potential Termination Event, the Agent may at any time
thereafter give notice to each Blocked Account Bank that the Agent is
exercising its rights under the Blocked Account Agreements to do any or all of
the following:  (a) to have the
exclusive ownership and control of the Blocked Account Accounts transferred to
the Agent and to exercise exclusive dominion and control over the funds
deposited therein, (b) to have the proceeds that are sent to the
respective Blocked Accounts be redirected pursuant to its instructions rather
than deposited in the applicable Blocked Account, and (c) to take any or
all other actions permitted under the applicable Blocked Account
Agreement.  Each of the Servicer and SPV
hereby agrees that if the Agent, at any time, takes any action set forth in the
preceding sentence, the Agent shall have exclusive control of the proceeds
(including Collections) of all Receivables and each of the Servicer and SPV
hereby further agrees to take any other action that the Agent may reasonably
request to transfer such control.  Any
proceeds of Receivables received by the Seller, as Servicer or otherwise, or
the SPV thereafter shall be sent immediately to the Agent.  The parties hereto hereby acknowledge that if
at any time the Agent takes control of any Blocked Account, the Agent shall not
have any rights to the funds therein in excess of the unpaid amounts due to
SPV, the Agent and the Investors or any other Person hereunder and the Agent shall
distribute or cause to be distributed such funds in accordance with Section 7.2(b) (including
the proviso thereto) and Article II (in each case as if such funds
were held by the Servicer thereunder); provided, however, that
the Agent shall not be under any obligation to remit any such funds to the
Seller or any other Person unless and until the Agent has received from the
Seller or such Person evidence satisfactory to the Agent that the Seller or
such Person is entitled to such funds hereunder and under applicable Law.


 


Section 7.4                                   Enforcement
Rights After Designation of New Servicer.


 


(a)                                  At
any time following the occurrence of a Termination Event and the designation of
a Servicer (other than the Seller or an Affiliate of the Seller) pursuant to Section 7.1:


 


(i)                                     the
Agent may direct the Obligors that payment of all amounts payable under any
Receivable be made directly to the Agent or its designee;


 


(ii)                                  the
SPV shall, at the Agent’s request and at the SPV’s expense, give notice of the
Agent’s, the SPV’s, and/or the Investors’ ownership of the Receivables and (in
the case of the Agent) interest in the Asset Interest to each Obligor and
direct that payments be made directly to the Agent or its designee, except that
if the SPV fails to so notify each obligor, the Agent may so notify the
Obligors; and


 


(iii)                               the
SPV shall, at the Agent’s request, (A) assemble all of the Records and
shall make the same available to the Agent or its designee at a place selected
by the Agent or its designee, and (B) segregate all cash, checks and other
instruments received


 


56

















 


by it from time to time constituting Collections of
Receivables in a manner acceptable to such Agent and shall, promptly upon
receipt, remit all such cash, checks and instruments, duly endorsed or with
duly executed instruments of transfer, to such Agent or its designee.


 


(b)                                 Each
of the SPV and the Seller hereby authorizes the Agent, and irrevocably appoints
the Agent as its attorney-in-fact with full power of substitution and with full
authority in the place and stead of the SPV or the Seller, as applicable, which
appointment is coupled with an interest, to take any and all steps following
the occurrence of a Termination Event or the occurrence and continuation of a
Potential Termination Event, in the name of the SPV or the Seller, as
applicable, and on behalf of the SPV or the Seller, as applicable, necessary or
desirable, in the determination of the Agent, to collect any and all amounts or
portions thereof due under any and all Receivables or Related Security,
including endorsing the name of the Seller on checks and other instruments
representing Collections and enforcing such Receivables, Related Security and
the related Contracts.  Notwithstanding
anything to the contrary contained in this subsection (b), none of the
powers conferred upon such attorney-in-fact pursuant to the immediately
preceding sentence shall subject such attorney-in-fact to any liability if any
action taken by it shall prove to be inadequate or invalid, nor shall they
confer any obligations upon such attorney-in-fact in any manner whatsoever.


 


Section 7.5                                   Servicer Default.


 


The occurrence of any one or
more of the following events shall constitute a “Servicer Default”:


 


(a)                                  The
Servicer (i) shall fail to make any payment or deposit required to be made
by it hereunder when due and such failure continues for one (1) Business
Day or the Servicer shall fail to observe or perform any term, covenant or
agreement on the Servicer’s part to be performed under Sections 6.1(b) (conduct
of business, ownership), 6.1(f) (performance and compliance with
receivables, contracts and credit and collection policy), 6.1(h) (obligor
payments), 6.1(i) (handling collections), 6.2(a) (no
sales or liens), 6.2(c) (no change in business or credit and
collection policy), 6.2(d) (no subsidiaries, mergers, etc.), 6.2(e) (change
in payment instructions to obligors), or 6.2(f) (deposits to
lock-box accounts) (any of the preceding parenthetical phrases in this clause
(i) are for purposes of reference only and shall not otherwise affect
the meaning or interpretation of any provision hereof) and such failure
continues for two (2) Business Days, (ii) shall fail to observe or
perform any other term, covenant or agreement to be observed or performed by it
under Sections 2.8, 2.9, 2.12 or 2.15 and such
failure continues for two (2) Business Days, or (iii) shall fail to
observe or perform in any material respect any other term, covenant or
agreement hereunder or under any of the other Transaction Documents to which
such Person is a party or by which such Person is bound and such failure shall
remain unremedied for thirty (30) days after the earlier to occur of (1) receipt
of notice thereof from any Class Agent, any Investor or the Agent or (2) the
date a Responsible Officer of the Servicer first becomes aware of such failure;
or


 


(b)                                 any
representation, warranty, certification or statement made by the Servicer in
this Agreement, the First Tier Agreement, the Second Tier Agreement or in any
of the other Transaction Documents or in any certificate or report delivered by
it pursuant to any of the


 


57

















 


foregoing shall prove to
have been incorrect in any material respect when made or deemed made and shall
remain unremedied for 30 days after the earlier to occur of (1) receipt of
notice thereof from any Class Agent, any Investor or the Agent or (2) the
date a Responsible Officer of the Servicer first becomes aware of such failure;
or


 


(c)                                  failure
of the Servicer or any of its Subsidiaries (other than the SPV) to pay when due
any amounts due under any agreement under which any outstanding Indebtedness
greater than $25,000,000 is governed; or the default (beyond the applicable
grace period with respect thereto, if any) by the Servicer or any of its
Subsidiaries (other than the SPV) in the performance  of any term, provision or condition contained
in any agreement under which any such Indebtedness greater than $25,000,000
outstanding was created or is governed, regardless of whether such event is an “event
of default” or “default” under any such agreement; or any Indebtedness of the
Servicer or any of its Subsidiaries greater than $25,000,000 outstanding shall
be declared to be due and payable or required to be prepaid (other than by a
regularly scheduled payment) prior to the scheduled date of maturity thereof;
or


 


(d)                                 any
Event of Bankruptcy shall occur with respect to the Servicer; or


 


(e)                                  failure of the Servicer to deliver any
Servicer Report when due and such failure remains unremedied for 2 Business
Days; or


 


(f)                                    subject to Section 7.1(a), a
Termination Event.


 


Section 7.6                                   Servicing Fee.


 


The Servicer shall be paid a
Servicing Fee in accordance with Schedule III and subject to the
priorities therein.  If the Servicer is
not the SPV or the Seller or an Affiliate of the SPV or the Seller, the
Servicer, by giving three (3) Business Days’ prior written notice to the Class Agents,
may revise the percentage used to calculate the Servicing Fee so long as the
revised percentage will not result in a Servicing Fee that exceeds 110% of the
reasonable and appropriate out-of-pocket costs and expenses of such Servicer
incurred in connection with the performance of its obligations hereunder as
documented to the reasonable satisfaction of the Class Agents; provided,
however, that at any time after the sum of (1) the Net Investment
and (2) the Required Reserves exceeds the Net Pool Balance, any
compensation to the Servicer in excess of the Servicing Fee initially provided
for herein shall be an obligation of the SPV and shall not be payable, in whole
or in part, from Collections allocated to the Investors.


 


Section 7.7                                   Protection of
Ownership Interest of the Investors.


 


Each of the Originator, the
Seller and the SPV agrees that it shall, from time to time, at its expense,
promptly execute and deliver all instruments and documents and take all actions
as may be necessary or as the Agent may reasonably request in order to perfect
or protect the Asset Interest or to enable the Agent or the Investors to
exercise or enforce any of their respective rights hereunder.  Without limiting the foregoing, each of the
Originator and the SPV shall, upon the request of the Agent or any of the Investors,
in order to accurately reflect this purchase and sale transaction, (a) execute
and file such financing or continuation statements or amendments thereto or
assignments thereof (as otherwise permitted to be executed and filed pursuant
hereto) as may be requested by the Agent or any of the Investors and (b) mark
its respective master data


 


58

















 


processing records and other
documents with a legend describing the conveyance to the to the Agent, for the
benefit of the Investors, of the Asset Interest.  Each of the Originator, the Seller and the
SPV (i) shall, upon request of the Agent or any of the Investors, obtain
such additional search reports as the Agent or any of the Investors shall
request and (ii) hereby authorize the Agent to file continuation
statements and amendments thereto and assignments thereof without further
consent or action by any of the Originator, the Seller or the SPV.  Carbon, photographic or other reproduction of
this Agreement or any financing statement shall be sufficient as a financing
statement.  Neither the Originator nor
the SPV shall change its respective name, identity, corporate structure,
jurisdiction of formation unless it shall have: 
(i) given the Agent at least thirty (30) days prior notice thereof
and (ii) prepared at the SPV’s expense and delivered to the Agent all
financing statements, instruments and other documents necessary to preserve and
protect the Asset Interest or requested by the Agent in connection with such
change or relocation, including an opinion of counsel that after giving effect
to such change, the Agent’s interest in the Receivables and the Related
Security shall continue unaffected by such change.  All filings under the UCC or otherwise shall
be made at the expense of the SPV.


 


Article VIII


 


Termination Events


 


Section 8.1                                   Termination
Events.


 


The occurrence of any one or
more of the following events shall constitute a “Termination Event”:


 


(a)                                  (i) the
SPV, the Seller, the Originator, the Performance Guarantor or the Servicer
shall fail to make any payment or deposit required to be made by it hereunder
with respect to a reduction in the Net Investment; or (ii) the Seller, the
Originator, the Performance Guarantor or the Servicer shall fail to make any
payment or deposit required to be made by it hereunder other than in respect of
a reduction in the Net Investment when due and such failure continues for two (2) Business
Days; or


 


(b)                                 any
representation, warranty, certification or statement made or deemed made by the
SPV, the Seller, the Servicer, the Performance Guarantor or the Originator in
this Agreement, any other Transaction Document to which it is a party or in any
other information, report or document delivered pursuant hereto or thereto
shall prove to have been incorrect when made or deemed made or delivered and
shall remain unremedied for 30 days after the earlier to occur of (1) receipt
of notice thereof from any Class Agent, any Investor or the Agent or (2) the
date a Responsible Officer of the Servicer, the SPV, the Seller, the
Performance Guarantor or the Originator, as applicable, first becomes aware of
such failure; or


 


(c)                                  the
SPV, the Seller, the Originator or the Servicer shall default in the
performance of any undertaking (other than those covered by clause (a) above
or (p) below) (i) to be performed or observed under Sections
6.1(b) (conduct of business, ownership), 6.1(f) (performance
and compliance with receivables, contracts and credit and collection policy), 6.1(h) (obligor
payments), 6.1(i) (handling collections), 6.2(a) (no
sales or liens), 6.2(c) (no change in business or credit and
collection policy), 6.2(d) (no subsidiaries, mergers, etc.), 6.2(e) (no
change


 


59

















 


in payment instructions
to obligors) or 6.2(f) (deposits to lock-box accounts) (any of the
preceding parenthetical phrases in this clause (i) are for purposes
of reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof) and such failure continues for two (2) Business
Days, or (ii) shall fail to observe or perform under any other provision
of this Agreement (other than those covered by clause (a) above or Section 6.3)
or any provision of any other Transaction Document to which it is a party and
such default in the case of this clause (ii) shall continue for
thirty (30) days after the earlier to occur of (1) receipt of notice
thereof from any Class Agent, any Investor or the Agent or (2) the
date a Responsible Officer of the Servicer, the SPV, the Seller, the
Performance Guarantor or the Originator, as applicable, first becomes aware of
such failure; or


 


(d)                                 any
Event of Bankruptcy shall occur with respect to the SPV, the Seller, the
Originator, the Servicer, the Performance Guarantor or any Material Subsidiary;
or


 


(e)                                  the
Agent, on behalf of the Investors, shall for any reason fail or cease to have a
valid and enforceable perfected first priority ownership or security interest
in the Affected Assets, free and clear of any Adverse Claim; or


 


(f)                                    a
Servicer Default shall have occurred; or


 


(g)                                 on
any Settlement Date, the sum of (i) the Net Investment (as determined
after giving effect to all distributions pursuant to this Agreement on such
date) and (ii) the Required Reserves shall exceed the Net Pool Balance (as
such Required Reserves and Net Pool Balance are shown in the most recent
Servicer Report delivered on or prior to such date); or


 


(h)                                 failure
of the SPV, the Seller, the Originator, the Performance Guarantor or any
Subsidiary of the SPV or the Originator to pay when due any amounts due under
any agreement to which any such Person is a party and under which any
Indebtedness greater than $10,000 in the case of the SPV or any Subsidiary of
the SPV, or $25,000,000 outstanding, in the case of the Seller, the Performance
Guarantor, the Originator or any Subsidiary of any of the foregoing Persons
(other than the SPV) is governed; or the default (after any applicable grace
period, if any) by the SPV, the Seller, the Performance Guarantor, the
Originator or any Subsidiary of any of the foregoing Persons in the performance
of any term, provision or condition contained in any agreement to which any
such Person is a party and under which any Indebtedness owing by the SPV, the
Seller, the Performance Guarantor, the Originator or any Subsidiary of any of
the foregoing Persons greater than such respective amounts was created or is
governed, regardless of whether such event is an “event of default” or “default”
under any such agreement if the effect of such default is to cause, or to
permit the holder of such Indebtedness to cause, such Indebtedness to become
due and payable prior to its stated maturity; or any Indebtedness owing by the
SPV, the Seller, the Performance Guarantor, the Originator or any Subsidiary of
any of the foregoing Persons greater than such respective amounts shall be
declared to be due and payable or required to be prepaid (other than by a
regularly scheduled payment) prior to the date of maturity thereof; or


 


(i)                                     there
shall be a “change of control” with respect to the Servicer, the SPV, the
Seller, the Performance Guarantor or the Originator (for the purposes of this
clause only “change in control” means:


 


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(i)                                     the
failure of the Originator to own, free and clear of any Adverse Claim (other
than the pledge under the Revolving Credit Agreement) and on a fully diluted
basis, 100% of the equity interests in the SPV,


 


(ii)                                  the
lien on the equity interests in the SPV shall be foreclosed upon,


 


(iii)                               the
failure of the Performance Guarantor to own, directly or indirectly, 100% of
the equity interests in each of the Originator, the Seller, the Servicer and
the SPV, or


 


(iv)                              the
acquisition by any Person, or two or more Persons acting in concert, of
beneficial ownership (within the meaning of Rule 13d-3 of the Securities
and Exchange Commission under the Securities Exchange Act of 1934) of 20% or
more of the outstanding shares of voting stock of the Performance Guarantor; or


 


(j)                                     [Reserved];


 


(k)                                  any
material provision of this Agreement or any other Transaction Document to which
the Originator, the Seller, the Performance Guarantor or the SPV is a party
shall cease to be in full force and effect or the Originator, the Seller, the
Performance Guarantor or the SPV shall so state in writing; or


 


(l)                                     the three-month average Trigger Delinquency
Ratio shall exceed 6.25%; or


 


(m)                               the three-month average Trigger Default
Ratio shall exceed 2.25%; or


 


(n)                                 the three-month average Trigger Dilution
Ratio shall exceed 8.25%, or


 


(o)                                 the
Days Sales Outstanding equals or exceeds 60 days; or


 


(p)                                 a
breach of Section 6.3; or


 


(q)                                 the
Performance Guarantor shall default on any payment obligation under the
Performance Guaranty when due; or


 


(r)                                    the
SPV shall become required to register as an “investment company” under the
Investment Company Act of 1940, as amended, or the arrangements contemplated by
the Transaction Document shall require registration as an “investment company”
within the meaning of the Investment Company Act of 1940; or


 


(s)                                  the
Internal Revenue Service shall file notice of a lien pursuant to Section 6323
of the Code with regard to any assets of the SPV, the Seller or the Originator
and such lien shall not have been released within five (5) Business Days,
or the Pension Benefit Guaranty Corporation shall file notice of a lien
pursuant to Section 4068 of ERISA with regard to any of the assets of the
SPV, the Seller or the Originator and such lien shall not have been released
within five (5) Business Days; or


 


61
















 


(t)                                    (i) any
action or proceeding is commenced by any party to the Revolving Credit
Agreement or the Master Note Purchase Agreement claiming or asserting that the
transactions contemplated by the Transaction Documents are not a Receivable
Purchase Facility (as defined in the Revolving Credit Agreement or the Master
Note Purchase Agreement, as such document is in effect on the date as of which
this representation is made) or are not permitted under the Revolving Credit
Agreement or the Master Note Purchase Agreement, as such document is in effect
on the date as of which this representation is made or (ii) the Originator
or the Performance Guarantor have entered into an additional Receivable
Purchase Facility (as defined in the Revolving Credit Agreement or the Master
Note Purchase Agreement, as such document is in effect on the date as of which
this representation is made).


 


(u)                                 either
(i) a Default (as defined in the Revolving Credit Agreement) shall occur
and be continuing under Section 7.6 or 7.7 of the Revolving
Credit Agreement or (b) the Revolving Credit Agreement Agent shall deliver
notice under the Revolving Credit Agreement prohibiting dispositions of assets
by the Performance Guarantor or any of its Affiliates following the occurrence
and during the continuance of any Default (as defined in the Revolving Credit
Agreement) under clauses (i), (ii) or (iii) of Section 7.2
of the Revolving Credit Agreement.


 


If a Termination Event occurs,
the Agent shall have all rights of a secured party under the UCC and, by notice
to the SPV and the Servicer, may declare the Termination Date to occur, at
which time all Collections shall be applied in accordance with the provisions
of Section 2.12 and the Net Investment will accrue interest at the
Default Rate.


 


Section 8.2                                   Termination.


 


Upon the occurrence of any
Termination Event, the Class Agents may, or at the direction of the
Majority Investors shall, by notice to the SPV and the Servicer, declare the
Termination Date to have occurred; provided, however, that in the
case of any event described in Section 8.1(d), 8.1(e), 8.1(g),
8.1(o), 8.1(s) or 8.1(t), the Termination Date shall
be deemed to have occurred automatically upon the occurrence of such
event.  Upon any such declaration or
automatic occurrence, the Agent shall have, in addition to all other rights and
remedies under this Agreement or otherwise, all other rights and remedies
provided under the UCC of the applicable jurisdiction and other applicable
laws, all of which rights shall be cumulative. 
Upon the occurrence of the Termination Date, no Investments or
Reinvestments shall be made by any Investors and all Collections shall be
applied as set forth in Section 2.12.


 


Article IX


 


Indemnification; Expenses; Related Matters


 


Section 9.1                                   Indemnities by
the SPV and the Servicer.


 


Without limiting any other
rights which the Indemnified Parties may have hereunder or under applicable
Law, the SPV hereby agrees to indemnify the Investors, the Agent, each Class Agent,
the Collateral Agent, the Program Support Providers and their respective
officers, directors, employees, counsel and other agents (collectively, “Indemnified Parties”) from and against
any and all damages, losses, claims, liabilities, costs and expenses, including
reasonable 


 


62

















 


attorneys’
fees (which such attorneys may be employees of the Program Support Providers,
the Agent, the Collateral Agent or the Class Agents, as applicable) and
disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against
or incurred by any of them in any action or proceeding between the SPV and any
of the Indemnified Parties or between any of the Indemnified Parties and any
third party or otherwise arising out of or as a result of this Agreement, the
other Transaction Documents, the ownership or maintenance, either directly or
indirectly, by the Agent or any Investor of the Asset Interest or any of the
other transactions contemplated hereby or thereby, excluding, however, (x) Indemnified
Amounts to the extent resulting from gross negligence or willful misconduct on
the part of such Indemnified Party, as finally determined by a court of
competent jurisdiction, or (y) recourse (except as otherwise specifically
provided in this Agreement) for uncollectible Receivables.  Without limiting the generality of the
foregoing, the SPV shall indemnify each Indemnified Party for Indemnified
Amounts relating to or resulting from:


 


(a)                                  any
representation or warranty made by the SPV, the Originator, the Performance
Guarantor or the Seller (including, the Seller or any of its Affiliates in the
capacity as the Servicer) or any officers of the SPV, the Originator, the
Performance Guarantor or the Seller (including, in its capacity as the Servicer
or any Affiliate of the Seller acting as Servicer) under or in connection with
this Agreement, the First Tier Agreement, the Second Tier Agreement, any of the
other Transaction Documents, any Servicer Report or any other information or
report delivered by the SPV or the Servicer pursuant hereto, or pursuant to any
of the other Transaction Documents which shall have been incomplete, false or
incorrect in any respect when made or deemed made;


 


(b)                                 the
failure by the SPV, the Originator, the Performance Guarantor or the Seller
(including, in its capacity as the Servicer or any Affiliate of the Seller
acting as Servicer) to comply with any applicable Law with respect to any
Receivable or the related Contract, or the nonconformity of any Receivable or
the related Contract with any such applicable Law;


 


(c)                                  the
failure (i) to vest and maintain vested in the Agent, on behalf of the
Investors, a first priority, perfected ownership interest in the Asset Interest
free and clear of any Adverse Claim or (ii) to create or maintain a valid
and perfected first priority security interest in favor of the Agent, for the
benefit of the Investors, in the Affected Assets, free and clear of any Adverse
Claim;


 


(d)                                 the
failure to file, or any delay in filing, financing statements, continuation
statements, or other similar instruments or documents under the UCC of any
applicable jurisdiction or other applicable laws with respect to any of the
Affected Assets;


 


(e)                                  any
dispute, claim, offset or defense (other than discharge in bankruptcy) of the
Obligor to the payment of any Receivable (including a defense based on such
Receivable or the related Contract not being the legal, valid and binding
obligation of such Obligor enforceable against it in accordance with its
terms), or any other claim resulting from the sale of merchandise or services
related to such Receivable or the furnishing or failure to furnish such
merchandise or services, or from any breach or alleged breach of any provision
of the Receivables or the related Contracts restricting assignment of any
Receivables;


 


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(f)                                    any
failure of the SPV or the Servicer to perform its duties or obligations in
accordance with the provisions hereof;


 


(g)                                 any
products liability claim or personal injury or property damage suit or other
similar or related claim or action of whatever sort arising out of or in
connection with merchandise or services which are the subject of any
Receivable;


 


(h)                                 the
transfer of an interest in any Receivable other than an Eligible Receivable;


 


(i)                                     the
failure by the SPV, the Originator, the Performance Guarantor or the Seller
(individually or as Servicer) to comply with any term, provision or covenant
contained in this Agreement or any of the other Transaction Documents to which
it is a party or to perform any of its respective duties or obligations under
the Receivables or related Contracts;


 


(j)                                     the
sum of (i) the Net Investment and (ii) the Required Reserves shall
exceed the Net Pool Balance at any time;


 


(k)                                  the
failure of the SPV, the Originator or the Seller to pay when due any sales,
excise or personal property taxes payable in connection with any of the
Receivables;


 


(l)                                     any
repayment by any Indemnified Party of any amount previously distributed in
reduction of Net Investment which such Indemnified Party believes in good faith
is required to be made;


 


(m)                               the
commingling by the SPV, the Originator, the Seller or the Servicer or any of
their Affiliates of Collections of Receivables at any time with any other
funds;


 


(n)                                 any
investigation, litigation or proceeding related to this Agreement, any of the
other Transaction Documents, the use of proceeds of Investments by the SPV, the
Seller or the Originator, the ownership of the Asset Interest, or any Affected
Asset;


 


(o)                                 failure
of any Blocked Account Bank to remit any amounts held in the Blocked Accounts
or any related lock-boxes pursuant to the instructions of the Servicer, the
SPV, the Originator or the Agent (to the extent such Person is entitled to give
such instructions in accordance with the terms hereof and of any applicable
Blocked Account Agreement) whether by reason of the exercise of set-off rights
or otherwise;


 


(p)                                 any
inability to obtain any judgment in or utilize the court or other adjudication
system of, any state in which an Obligor may be located as a result of the
failure of the SPV, the Originator or the Seller to qualify to do business or
file any notice of business activity report or any similar report;


 


(q)                                 any
attempt by any Person to void, rescind or set-aside any transfer by the
Originator to the Seller or the Seller to the SPV of any Receivable or Related
Security under statutory provisions or common law or equitable action,
including any provision of the Bankruptcy Code or other insolvency law;


 


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(r)                                    any
action taken by the SPV, the Originator, or the Servicer (if the Originator or
any Affiliate or designee of the Originator) or any of their Affiliates in the
enforcement or collection of any Receivable;


 


(s)                                  the
use of the proceeds of any Investment or Reinvestment; or


 


(t)                                    the
transactions contemplated hereby being characterized as other than debt for the
purposes of the Code.


 


Section 9.2                                   Indemnity for
Taxes, Reserves and Expenses.


 


(a)                                  If
after the Closing Date, the adoption of any Law or bank regulatory guideline or
any amendment or change in the administration, interpretation or application of
any existing or future Law or bank regulatory guideline by any Official Body
charged with the administration, interpretation or application thereof, or the
compliance with any directive of any Official Body (in the case of any bank
regulatory guideline, whether or not having the force of Law):


 


(i)                                     shall
subject any Indemnified Party (or its applicable lending office) to any tax,
duty or other charge (other than Excluded Taxes) with respect to this
Agreement, the other Transaction Documents, the ownership, maintenance or
financing of the Asset Interest, or payments of amounts due hereunder, or shall
change the basis of taxation of payments to any Indemnified Party of amounts
payable in respect of this Agreement, the other Transaction Documents, the
ownership, maintenance or financing of the Asset Interest, or payments of
amounts due hereunder or its obligation to advance funds hereunder, under a
Program Support Agreement or the credit or liquidity support furnished by a
Program Support Provider or otherwise in respect of this Agreement, the other
Transaction Documents, the ownership, maintenance or financing of the Asset
Interest (except Excluded Taxes and for changes in the rate of general
corporate, franchise, net income or other income tax imposed on such
Indemnified Party by the jurisdiction in which such Indemnified Party’s
principal executive office is located);


 


(ii)                                  shall
impose, modify or deem applicable any reserve, special deposit or similar
requirement (including any such requirement imposed by the Board of Governors
of the Federal Reserve System) against assets of, deposits with or for the
account of, or credit extended by, any Indemnified Party or shall impose on any
Indemnified Party or on the United States market for certificates of deposit or
the London interbank market any other condition affecting this Agreement, the
other Transaction Documents, the ownership, maintenance or financing of the
Asset Interest, or payments of amounts due hereunder or its obligation to
advance funds hereunder, under a Program Support Agreement or the credit or
liquidity support provided by a Program Support Provider or otherwise in
respect of this Agreement, the other Transaction Documents, the ownership,
maintenance or financing of the Asset Interest; or


 


(iii)                               imposes
upon any Indemnified Party any other condition or expense (including any loss
of margin, reasonable attorneys’ fees and expenses, and expenses of litigation
or preparation therefor in contesting any of the foregoing) with respect to
this Agreement, the other Transaction Documents, the ownership, maintenance or
financing 


 


65

















 


of the Asset Interest, or payments of amounts due
hereunder or its obligation to advance funds hereunder under a Program Support
Agreement or the credit or liquidity support furnished by a Program Support
Provider or otherwise in respect of this Agreement, the other Transaction
Documents, the ownership, maintenance or financing of the Asset Interests,


 


and the result of any of the foregoing is to
increase the cost to or to reduce the amount of any sum received or receivable
by such Indemnified Party with respect to this Agreement, the other Transaction
Documents, the ownership, maintenance or financing of the Asset Interest, the
Receivables, the obligations hereunder, the funding of any purchases hereunder
or a Program Support Agreement, by an amount deemed by such Indemnified Party
to be material, then, within ten (10) days after demand in writing by such
Indemnified Party through the Agent, the SPV shall pay to the Agent, for the
benefit of such Indemnified Party, such additional amount or amounts as will
compensate such Indemnified Party for such increased cost or reduction.


 


(b)                                 If
any Indemnified Party shall have determined that the adoption after the date
hereof of any applicable Law or bank regulatory guideline regarding capital
adequacy, or any change therein, or any change after the hereof in the
interpretation or administration thereof by any Official Body, or any request
or directive regarding capital adequacy (in the case of any bank regulatory
guideline, whether or not having the force of law) of any such Official Body,
has or would have the effect of reducing the rate of return on capital of such
Indemnified Party (or its parent) as a consequence of such Indemnified Party’s
obligations hereunder or with respect hereto to a level below that which such
Indemnified Party (or its parent) could have achieved but for such adoption,
change, request or directive (taking into consideration its policies with
respect to capital adequacy) by an amount deemed by such Indemnified Party to
be material, then from time to time, within ten (10) days after demand in
writing by such Indemnified Party through the Agent, the SPV shall pay to the
Agent, for the benefit of such Indemnified Party, such additional amount or
amounts as will compensate such Indemnified Party (or its parent) for such
reduction.


 


(c)                                  The
Agent shall promptly notify the SPV of any event of which it has knowledge,
occurring after the date hereof, which will entitle an Indemnified Party to
compensation pursuant to this Section 9.2; provided that no
failure to give or any delay in giving such notice shall affect the Indemnified
Party’s right to receive such compensation. 
A notice by the Agent or the applicable Indemnified Party claiming
compensation under this Section and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error.  In determining such
amount, the Agent or any applicable Indemnified Party may use any reasonable
averaging and attributing methods.


 


(d)                                 Anything
in this Section 9.2 to the contrary notwithstanding, if any Conduit
Investor enters into agreements for the acquisition of interests in receivables
from one or more Other SPVs, such Conduit Investor shall allocate the liability
for any amounts under this Section 9.2 which are in connection with
a Program Support Agreement or the credit or liquidity support provided by a
Program Support Provider (“Additional
Costs”) to the SPV and each Other SPV; provided, however,
that if such Additional Costs are attributable to the SPV, the Originator or
the Servicer and not attributable to any Other SPV, the SPV shall be solely
liable for such Additional Costs or if such Additional Costs are attributable
to Other SPVs and not attributable to the SPV, the Originator or the Servicer,
such Other SPVs shall be solely liable for such Additional Costs.


 


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Section 9.3                                   Taxes.


 


All payments and distributions
made hereunder by the SPV or the Servicer (each, a “payor”) to any Investor or the Agent
(each, a “recipient”)
shall be made free and clear of and without deduction for any present or future
income, excise, stamp or franchise taxes and any other taxes, fees, duties,
withholdings or other charges of any nature whatsoever imposed by any taxing
authority on any recipient (or any assignee of such parties) (such non-excluded
items being called “Taxes”),
but excluding franchise taxes and taxes imposed on or measured by the recipient’s
net income or gross receipts (“Excluded
Taxes”).  In the event
that any withholding or deduction from any payment made by the payor hereunder
is required in respect of any Taxes, then such payor shall:


 


(a)                                  pay
directly to the relevant authority the full amount required to be so withheld
or deducted;


 


(b)                                 promptly
forward to the Agent an official receipt or other documentation satisfactory to
the Agent evidencing such payment to such authority; and


 


(c)                                  pay
to the recipient such additional amount or amounts as is necessary to ensure
that the net amount actually received by the recipient will equal the full
amount such recipient would have received had no such withholding or deduction
been required.


 


Moreover, if any Taxes are
directly asserted against any recipient with respect to any payment received by
such recipient hereunder, the recipient may pay such Taxes and the payor will
promptly pay such additional amounts (including any penalties, interest or
expenses) as shall be necessary in order that the net amount received by the
recipient after the payment of such Taxes (including any Taxes on such
additional amount) shall equal the amount such recipient would have received
had such Taxes not been asserted.


 


If the payor fails to pay any
Taxes when due to the appropriate taxing authority or fails to remit to the
recipient the required receipts or other required documentary evidence, the
payor shall indemnify the recipient for any incremental Taxes, interest, or
penalties that may become payable by any recipient as a result of any such
failure.


 


Section 9.4                                   Other Costs and
Expenses; Breakage Costs.


 


(a)                                  The
SPV and the Servicer agree, upon receipt of a written invoice, to pay or cause
to be paid, and to save the Investors and the Agent harmless against liability
for the payment of, all reasonable out-of-pocket expenses (including attorneys’,
accountants’ and other third parties’ fees and expenses, any filing fees and
expenses incurred by officers or employees of any Investor and/or the Agent) or
intangible, documentary or recording taxes incurred by or on behalf of the any
Investor or the Agent (i) in connection with the preparation, negotiation,
execution and delivery of this Agreement, the other Transaction Documents and
any documents or instruments delivered pursuant hereto and thereto and the
transactions contemplated hereby or thereby (including the perfection or
protection of the Asset Interest) and (ii) from time to time (A) relating
to any amendments, waivers or consents under this Agreement and the other
Transaction Documents, (B) arising in connection with any Investor’s, the
Collateral Agent’s or the Agent’s enforcement or preservation of rights
(including the perfection and protection of the Asset 


 


67

















 


Interest under
this Agreement), or (C) arising in connection with any rating agency
review, audit (which shall be limited to the associated cost of one audit per
calendar year unless a Termination Event or Potential Termination Event has
occurred), dispute, disagreement, litigation or preparation for litigation
involving this Agreement or any of the other Transaction Documents (all of such
amounts, collectively, “Transaction Costs”).


 


(b)                                 The
SPV shall pay the Agent for the account of the Investors, as applicable, on
demand, such amount or amounts as shall compensate the Investors for any loss
(including loss of profit), cost or expense incurred by the Investors  (as reasonably determined by the Agent) as a
result of any reduction of any Portion of Investment other than on the maturity
date of the Commercial Paper (or other financing source) funding such Portion
of Investment, such compensation to be (i) limited to an amount equal to
any loss or expense suffered by the Investors during the period from the date
of receipt of such repayment to (but excluding) the maturity date of such
Commercial Paper (or other financing source) and (ii) net of the income,
if any, received by the recipient of such reductions from investing the
proceeds of such reductions of such Portion of Investment.  The determination by the Agent of the amount
of any such loss or expense shall be set forth in a written notice to the SPV
in reasonable detail and shall be conclusive, absent manifest error.


 


Section 9.5                                   [Reserved].


 


Section 9.6                                   Indemnities by
the Servicer.


 


Without limiting any other
rights which the Agent or the Investors or the other Indemnified Parties may
have hereunder or under applicable law, the Servicer hereby agrees to indemnify
the Indemnified Parties from and against any and all Indemnified Amounts
arising out of or resulting from (whether directly or indirectly) (a) the
failure of any information contained in any Servicer Report as of the specified
date of such information to be true and correct as of the date of such Servicer
Report, or the failure of any other information provided to any Indemnified
Party by, or on behalf of, the Servicer to be true and correct as of the
specified date of such information, (b) the failure of any representation,
warranty or statement made or deemed made by the Servicer (or any of its officers)
under or in connection with this Agreement to have been true and correct as of
the date made or deemed made, (c) the failure by the Servicer to comply
with any applicable Law with respect to any Receivable or the related Contract,
(d) any dispute, claim, offset or defense of the Obligor to the payment of
any Receivable resulting from or related to the collection activities in
respect of such Receivable, or (e) any failure of the Servicer to perform
its duties or obligations in accordance with the provisions hereof.


 


Section 9.7                                   Accounting Based
Consolidation Event.


 


If an Accounting Based Consolidation Event shall at any time occur,
then, within ten (10) days after demand in writing by the Indemnified
Party affected thereby, through the related Class Agent, the SPV shall pay
to the relevant Class Agent, for the benefit of such Indemnified Party,
such amounts as such Indemnified Party reasonably determines will compensate or
reimburse the Indemnified Party for any resulting (i) fee, expense or
increased cost charged to, incurred or otherwise suffered by such Indemnified
Party or (ii) regulatory capital charge, internal capital charge or other
imputed cost determined by such Indemnified Party to be allocable to the 


 


68

















 


transactions contemplated under this Agreement or any Transaction
Document in connection therewith. 
Amounts under this Section 9.7 may be demanded at any time
without regard to the timing of issuance of any financial statement by any
Indemnified Party.


 


Article X


 


The Agent


 


Section 10.1                            Appointment and
Authorization of Agent.


 


Each Investor hereby
irrevocably appoints, designates and authorizes the Agent to take such action
on its behalf under the provisions of this Agreement and each other Transaction
Document and to exercise such powers and perform such duties as are expressly
delegated to the Agent by the terms of this Agreement and any other Transaction
Document, together with such other powers as are reasonably incidental thereto.  Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Transaction Document, the
Agent shall not have any duties or responsibilities, except those expressly set
forth in this Agreement, nor shall the Agent have or be deemed to have any
fiduciary relationship with any Investor, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Transaction Document or otherwise exist against the Agent.  Without limiting the generality of the
foregoing sentence, the use of the term “agent” in this Agreement with
reference to the Agent is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any
applicable Law.  Instead, such term is
used merely as a matter of market custom, and is intended to create or reflect
only an administrative relationship between independent contracting parties.


 


Section 10.2                            Delegation of Duties.


 


The Agent may execute any of
its duties under this Agreement or any other Transaction Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties.  The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.


 


Section 10.3                            Liability of Agent.


 


No Agent-Related Person shall (a) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Transaction Document or the
transactions contemplated hereby (except for its own gross negligence or
willful misconduct), or (ii) be responsible in any manner to any Investor
for any recital, statement, representation or warranty made by the SPV, the
Originator or the Servicer, or any officer thereof, contained in this Agreement
or in any other Transaction Document, or in any certificate, report, statement
or other document referred to or provided for in, or received by the Agent
under or in connection with, this Agreement or any other Transaction Document,
or the validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Transaction Document, or for any failure of the
SPV, the Originator, the Servicer or any other party to any Transaction
Document to perform its obligations hereunder or thereunder.  No Agent-Related Person shall be under any
obligation to any Investor to ascertain or to inquire as 


 


69

















 


to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Transaction Document, or to inspect the
properties, books or records of the SPV, the Originator or the Servicer or any
of their respective Affiliates.


 


Section 10.4                            Reliance by Agent.


 


(a)                                  The
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any writing, resolution, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by or on behalf of the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel to the SPV, the Originator
and the Servicer), independent accountants and other experts selected by the
Agent.  The Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Transaction Document unless it shall first receive such advice or
concurrence of the Majority Investors as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Investors
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action.  The Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Transaction Document in accordance with a request or consent of the
Conduit Investors or Majority Investors or, if required hereunder, all
Investors and such request and any action taken or failure to act pursuant
thereto shall be binding upon all of the Investors.


 


(b)                                 For
purposes of determining compliance with the conditions specified in Article V
on the Closing Date or the date of any Investment or Reinvestment, each
Investor that has executed this Agreement shall be deemed to have consented to,
approved or accepted or to be satisfied with, each document or other matter
either sent by the Agent to such Investor for consent, approval, acceptance or
satisfaction, or required thereunder to be consented to or approved by or
acceptable or satisfactory to such Investor.


 


Section 10.5                            Notice of Termination
Event, Potential Termination Event or Servicer Default.


 


The Agent shall not be deemed
to have knowledge or notice of the occurrence of a Potential Termination Event,
a Termination Event or a Servicer Default, unless the Agent has received
written notice from any Class Agent, any Investor, the Servicer or the SPV
referring to this Agreement, describing such Potential Termination Event,
Termination Event or Servicer Default and stating that such notice is a “Notice
of Termination Event or Potential Termination Event” or “Notice of Servicer
Default,” as applicable.  The Agent will
notify the Class Agents and the Investors of its receipt of any such
notice.  The Agent shall (subject to Section 10.4)
take such action with respect to such Potential Termination Event, Termination
Event or Servicer Default as may be requested by the Majority Investors or the Class Agents,
provided,  however, that, unless and until the Agent shall have
received any such request, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Potential
Termination Event, Termination Event or Servicer Default as it shall deem
advisable or in the best interest of the Investors.


 


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Section 10.6                            Credit Decision;
Disclosure of Information by the Agent.


 


Each Investor acknowledges that
none of the Agent-Related Persons has made any representation or warranty to
it, and that no act by the Agent hereinafter taken, including any consent to
and acceptance of any assignment or review of the affairs of the SPV, the
Servicer, the Originator or any of their respective Affiliates, shall be deemed
to constitute any representation or warranty by any Agent-Related Person to any
Investor as to any matter, including whether the Agent-Related Persons have
disclosed material information in their possession.  Each Investor, including any Investor by
assignment, represents to the Agent that it has, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the SPV, the Servicer, the Originator
or their respective Affiliates, and all applicable bank regulatory laws
relating to the transactions contemplated hereby, and made its own decision to
enter into this Agreement and to extend credit to the SPV hereunder.  Each Investor also represents that it shall,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Transaction Documents, and
to make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and
creditworthiness of the SPV, the Servicer or the Originator.  Except for notices, reports and other
documents expressly herein required to be furnished to the Investors by the
Agent herein, the Agent shall not have any duty or responsibility to provide
any Investor with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the SPV, the Servicer, the Originator or their respective
Affiliates which may come into the possession of any of the Agent-Related
Persons.


 


Section 10.7                            Indemnification of the
Agent.


 


Whether or not the transactions
contemplated hereby are consummated, the Alternate Investors shall indemnify
upon demand each Agent-Related Person (to the extent not reimbursed by or on
behalf of the SPV and without limiting the obligation of the SPV to do so), pro  rata, and hold harmless
each Agent-Related Person from and against any and all Indemnified Amounts
incurred by it; provided, however, that no Alternate Investor
shall be liable for the payment to any Agent-Related Person of any portion of
such Indemnified Amounts resulting from such Person’s gross negligence or
willful misconduct, as finally determined by a court of competent jurisdiction;
provided, however, that no action taken in accordance with the
directions of the Majority Investors shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section.  Without limitation of the foregoing, each
Alternate Investor shall reimburse the Agent upon demand for its ratable share
of any costs or out-of-pocket expenses (including attorney’s fees) incurred by
the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Transaction
Document, or any document contemplated by or referred to herein, to the extent
that the Agent is not reimbursed for such expenses by or on behalf of the
SPV.  The undertaking in this Section shall
survive payment on the Final Payout Date and the resignation or replacement of
the Agent.


 


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Section 10.8                            Agent in Individual
Capacity.


 


Bank of America (and any
successor acting as Agent) and its Affiliates may make loans to, issue letters
of credit for the account of, accept deposits from, acquire equity interests in
and generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with any of the SPV, the Originator and the
Servicer or any of their Subsidiaries or Affiliates as though Bank of America
were not the Agent or an Alternate Investor hereunder and without notice to or
consent of the Investors.  The Investors
acknowledge that, pursuant to such activities, Bank of America or its
Affiliates may receive information regarding the SPV, the Originator, the
Servicer or their respective Affiliates (including information that may be
subject to confidentiality obligations in favor of such Person) and acknowledge
that the Agent shall be under no obligation to provide such information to
them.  With respect to its Commitment,
Bank of America (and any successor acting as Agent) in its capacity as an
Alternate Investor hereunder shall have the same rights and powers under this
Agreement as any other Alternate Investor and may exercise the same as though
it were not the Agent or an Alternate Investor, and the term “Alternate
Investor” or “Alternate Investors” shall, unless the context otherwise
indicates, include the Agent in its individual capacity.


 


Section 10.9                            Resignation of Agent.


 


The Agent may resign as Agent
upon thirty (30) days’ notice to the Investors. 
If the Agent resigns under this Agreement, the Majority Investors shall
appoint from among the Alternate Investors a successor agent for the
Investors.  If no successor agent is
appointed prior to the effective date of the resignation of the Agent, the
Agent may appoint, after consulting with the Investors a successor agent from
among the Alternate Investors.  Upon the
acceptance of its appointment as successor agent hereunder, such successor
agent shall succeed to all the rights, powers and duties of the retiring Agent
and the term “Agent” shall mean such successor agent and the retiring Agent’s
appointment, powers and duties as Agent shall be terminated.  After any retiring Agent’s resignation
hereunder as Agent, the provisions of this 
Section 10.9 and Sections 10.3 and 10.7 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was the Agent under this Agreement. 
If no successor agent has accepted appointment as Agent by the date
which is thirty (30) days following a retiring Agent’s notice of resignation,
the retiring Agent’s resignation shall nevertheless thereupon become effective
and the Alternate Investors shall perform all of the duties of the Agent
hereunder until such time, if any, as the Majority Investors appoint a
successor agent as provided for above.


 


Section 10.10                     Payments by the Agent.


 


Unless specifically allocated
to an Alternate Investor pursuant to the terms of this Agreement, all amounts
received by the Agent on behalf of the Alternate Investors shall be paid by the
Agent to the related Class Agent (for distribution by such Class Agent
to the related Alternate Investors), pro rata in
accordance with their respective Class Pro Rata Shares on the Business Day
received by the Agent, unless such amounts are received after 12:00 noon (New
York City time) on such Business Day, in which case the Agent shall use its
reasonable efforts to pay such amounts to the related Class Agents on such
Business Day, but, in any event, shall pay such amounts to the related Class Agents
not later than the following Business Day.


 


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Section 10.11                     Appointment and Authorization
of Class Agents.


 


Each Investor hereby
irrevocably appoints, designates and authorizes the related Class Agent to
take such action on its behalf under the provisions of this Agreement and each
other Transaction Document and to exercise such powers and perform such duties
as are expressly delegated to the Agent by the terms of this Agreement and any
other Transaction Document, together with such other powers as are reasonably
incidental thereto.  Notwithstanding any
provision to the contrary contained elsewhere in this Agreement or in any other
Transaction Document, the Class Agents shall not have any duties or
responsibilities, except those expressly set forth in this Agreement, nor shall
the Class Agents have or be deemed to have any fiduciary relationship with
any Investor, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other
Transaction Document or otherwise exist against the Class Agents.  Without limiting the generality of the
foregoing sentence, the use of the term “agent” in this Agreement with
reference to the Class Agents is not intended to connote any fiduciary or
other implied (or express) obligations arising under agency doctrine of any
applicable Law.  Instead, such term is
used merely as a matter of market custom, and is intended to create or reflect
only an administrative relationship between independent contracting parties.


 


Section 10.12                     Delegation of Duties.


 


Each Class Agent may
execute any of its duties under this Agreement or any other Transaction
Document by or through agents, employees or attorneys in fact and shall be
entitled to advice of counsel concerning all matters pertaining to such
duties.  No Class Agent shall be
responsible for the negligence or misconduct of any agent or attorney in fact
that it selects with reasonable care.


 


Section 10.13                     Reliance by Class Agents.


 


(a)                                  Each
Class Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, resolution, notice, consent, certificate, affidavit,
letter, telegram, facsimile, telex or telephone message, statement or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by or on behalf of the proper Person or Persons, and upon
advice and statements of legal counsel (including counsel to the SPV, the
Originators and the Servicer), independent accountants and other experts
selected by such Class Agent.  Each Class Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Transaction Document unless it shall first receive such advice
or concurrence of the related Investors as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Investors
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action.  Each Class Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement
or any other Transaction Document in accordance with a request or consent of a
majority of the related Investors or, if required hereunder, all related
Investors and such request and any action taken or failure to act pursuant
thereto shall be binding upon all of the Investors.


 


(b)                                 For
purposes of determining compliance with the conditions specified in Article V
on the Closing Date or the date of any Investment or Reinvestment, each
Investor that 


 


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has executed this
Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter either sent by the relevant Class Agent
to such Investor for consent, approval, acceptance or satisfaction, or required
thereunder to be consented to or approved by or acceptable or satisfactory to
such Investor.


 


Section 10.14                     Notice of Termination Event,
Potential Termination Event or Servicer Default.


 


No Class Agent shall be
deemed to have knowledge or notice of the occurrence of a Potential Termination
Event, a Termination Event or a Servicer Default, unless such Class Agent
has received written notice from the Agent, any Investor, the Servicer or the
SPV referring to this Agreement, describing such Potential Termination Event,
Termination Event or Servicer Default and stating that such notice is a “Notice
of Termination Event or Potential Termination Event” or “Notice of Servicer
Default,” as applicable.  Each Class Agent
will notify the related Investors of its receipt of any such notice.  Each Class Agent shall (subject to Section 10.5)
take such action with respect to such Potential Termination Event, Termination
Event or Servicer Default as may be requested by a majority of related
Investors, provided, however, that, unless and until such Class Agent
shall have received any such request, such Class Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Potential Termination Event, Termination Event or Servicer
Default as it shall deem advisable or in the best interest of the related
Investors.


 


Section 10.15                     Credit Decision; Disclosure of
Information by the Class Agents.


 


Each Investor acknowledges that
none of the Agent Related Persons has made any representation or warranty to
it, and that no act by the related Class Agent hereinafter taken,
including any consent to and acceptance of any assignment or review of the
affairs of the SPV, the Servicer, any Originator or any of their respective
Affiliates, shall be deemed to constitute any representation or warranty by any
Agent-Related Person to any Investor as to any matter, including whether the
Agent Related Persons have disclosed material information in their
possession.  Each Investor, including any
Investor by assignment, represents to the related Class Agent that it has,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the SPV, the
Servicer, the Originators or their respective Affiliates, and all applicable
bank regulatory laws relating to the transactions contemplated hereby, and made
its own decision to enter into this Agreement and to extend credit to the SPV
hereunder.  Each Investor also represents
that it shall, independently and without reliance upon any Agent-Related Person
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Transaction
Documents, and to make such investigations as it deems necessary to inform
itself as to the business, prospects, operations, property, financial and other
condition and creditworthiness of the SPV, the Servicer or the
Originators.  Except for notices, reports
and other documents expressly herein required to be furnished to the Investors
by the related Class Agent herein, such Class Agent shall not have
any duty or responsibility to provide any Investor with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of the SPV, the Servicer, 


 


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the
Originators or their respective Affiliates which may come into the possession
of any of the Agent Related Persons.


 


Section 10.16                     Indemnification of the Class Agent.


 


Whether or not the transactions
contemplated hereby are consummated, the Alternate Investors shall indemnify
upon demand each Agent Related Person (to the extent not reimbursed by or on
behalf of the SPV and without limiting the obligation of the SPV to do so), pro rata, and hold harmless each
Agent Related Person from and against any and all Indemnified Amounts incurred
by it; provided, however, that no Alternate Investor shall be liable for the
payment to any Agent Related Person of any portion of such Indemnified Amounts
resulting from such Person’s gross negligence or willful misconduct, as finally
determined by a court of competent jurisdiction; provided, however, that no
action taken in accordance with the directions of the Majority Investors shall
be deemed to constitute gross negligence or willful misconduct for purposes of
this Section.  Without limitation of the
foregoing, each Alternate Investor shall reimburse the related Class Agent
upon demand for its ratable share of any costs or out of pocket expenses
(including attorney’s fees) incurred by such Class Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement, any other Transaction Document, or any document contemplated by
or referred to herein, to the extent that such Class Agent is not
reimbursed for such expenses by or on behalf of the SPV.  The undertaking in this Section shall
survive payment on the Final Payout Date and the resignation or replacement of
the Class Agents.


 


Section 10.17                     Class Agent in Individual
Capacity.


 


Bank of America (and any
successor acting as Class Agent for the Enterprise Funding Class) and its
Affiliates, PNC Bank (and any successor acting as a Class Agent for the
Market Street Class) and its Affiliates and any other Class Agent who
becomes a party to this Agreement (and any successor acting as a Class Agent
for any such Class) and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in
and generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with any of the SPV, the Originators and the
Servicer or any of their Subsidiaries or Affiliates as though Bank of America
or PNC Bank were not Class Agents or an Alternate Investor hereunder and
without notice to or consent of the Investors. 
The Investors acknowledge that, pursuant to such activities, the Class Agents
or their respective Affiliates may receive information regarding the SPV, the
Originators, the Servicer or their respective Affiliates (including information
that may be subject to confidentiality obligations in favor of such Person) and
acknowledge that the Class Agents shall be under no obligation to provide
such information to them.  With respect
to its Commitment, the Class Agents, respectively, (and any successor
acting as Class Agent) in its capacity as an Alternate Investor hereunder
shall have the same rights and powers under this Agreement as any other
Alternate Investor and may exercise the same as though it were not the Class Agent
or an Alternate Investor, and the term “Alternate Investor” or “Alternate
Investors” shall, unless the context otherwise indicates, include the Class Agents
in each in its individual capacity.


 


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Section 10.18                     Resignation of Class Agent.


 


Each Class Agent may
resign as Class Agent upon thirty (30) days’ notice to the related
Investors.  If a Class Agent resigns
under this Agreement, the majority of related Investors shall appoint from
among the related Alternate Investors a successor agent for the related
Investors.  If no successor agent is
appointed prior to the effective date of the resignation of any Class Agent,
such Class Agent may appoint, after consulting with the related Investors
a successor agent from among the related Alternate Investors.  Upon the acceptance of its appointment as
successor Class Agent hereunder, such successor agent shall succeed to all
the rights, powers and duties of the retiring Class Agent and the term “Class Agent”
shall mean such successor Class Agent and the retiring Class Agent’s
appointment, powers and duties as Class Agent shall be terminated.  After any retiring Class Agent’s
resignation hereunder as a Class Agent, the provisions of   Section 10.10 and Sections
10.16 and 10.18 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was the Class Agent under this
Agreement.  If no successor agent has
accepted appointment as Class Agent by the date which is thirty (30) days
following a retiring Class Agent’s notice of resignation, the retiring Class Agent’s
resignation shall nevertheless thereupon become effective and the Alternate
Investors shall perform all of the duties of the Class Agent hereunder
until such time, if any, as the majority of related Investors appoint a
successor agent as provided for above.


 


Section 10.19                     Liability of Agent and the Class Agents.


 


No Agent Related Person shall (a) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Transaction Document or the
transactions contemplated hereby (except for its own gross negligence or
willful misconduct), or (ii) be responsible in any manner to any Investor
for any recital, statement, representation or warranty made by the SPV, any
Originator or the Servicer, or any officer thereof, contained in this Agreement
or in any other Transaction Document, or in any certificate, report, statement
or other document referred to or provided for in, or received by the Agent or
any Class Agent under or in connection with, this Agreement or any other
Transaction Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Transaction
Document, or for any failure of the SPV, any Originator, the Servicer or any
other party to any Transaction Document to perform its obligations hereunder or
thereunder.  No Agent Related Person
shall be under any obligation to any Investor to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Transaction Document, or to inspect
the properties, books or records of the SPV, the Originators or the Servicer or
any of their respective Affiliates.


 


Article XI


 


Miscellaneous


 


Section 11.1                            Term of Agreement.


 


This
Agreement shall terminate on the Final Payout Date; provided, however,
that (a) the rights and remedies of the Agent, the Investors and the Class Agents
with respect to any representation and warranty made or deemed to be made by
the SPV on or prior to the Final 


 


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Payout Date pursuant to this Agreement, (b) the indemnification
and payment provisions of Article IX, (c) the provisions of Section 10.7
and Section 10.16 and (d) the agreements set forth in Sections
11.11 and 11.12, shall be continuing and shall survive any
termination of this Agreement.


 


Section 11.2                            Waivers; Amendments.


 


(a)                                  No
failure or delay on the part of the Agent, the Investors, any Class Agent
or any Alternate Investor in exercising any power, right or remedy under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude any other further exercise
thereof or the exercise of any other power, right or remedy.  The rights and remedies herein provided shall
be cumulative and nonexclusive of any rights or remedies provided by law.


 


(b)                                 Any
provision of this Agreement or any other Transaction Document may be amended or
waived if, but only if, such amendment or waiver is in writing and is signed by
the SPV, the Originator, the Servicer, the Agent and the Majority Investors; provided
that no such amendment or waiver shall, unless signed by each Investor directly
affected thereby, (i) increase the Commitment of any Alternate Investor, (ii) reduce
the Net Investment, any Class Net Investment (or portion thereof funded by
any Investor) or rate of Yield to accrue thereon or any fees or other amounts
payable hereunder, (iii) postpone any date fixed for the payment of any
scheduled distribution in respect of the Net Investment or Yield with respect
thereto or any fees or other amounts payable hereunder or for termination of
any Commitment, (iv) change the percentage of the Commitments of Alternate
Investors which shall be required for the Alternate Investors or any of them to
take any action under this Section or any other provision of this
Agreement, (v) release all or substantially all of the property with
respect to which a security or ownership interest therein has been granted
hereunder to the Agent or the Alternate Investors or (vi) extend or permit
the extension of the Commitment Termination Date (it being understood that a
waiver of a Termination Event  shall not
constitute an extension or increase in the Commitment of any Alternate
Investor); and provided, further, that the signature of the SPV
and the Originator shall not be required for the effectiveness of any amendment
which modifies the representations, warranties, covenants or responsibilities
of the Servicer at any time when the Servicer is not the Originator or any
Affiliate of the Originator or a successor Servicer is designated by the Agent
pursuant to Section 7.1.  In
the event the Agent or a Class Agent requests an Investor’s consent
pursuant to the foregoing provisions and such Agent or a Class Agent does
not receive a consent (either positive or negative) from such Investor within
ten (10) Business Days of such Investor’s receipt of such request, then
such Investor (and its percentage interest hereunder) shall be disregarded in
determining whether such Agent or a Class Agent shall have obtained sufficient
consent hereunder.


 


Section 11.3                            Notices; Payment
Information.


 


Except as provided below, all
communications and notices provided for hereunder shall be in writing
(including facsimile or electronic transmission or similar writing) and shall
be given to the other party at its address or facsimile number set forth in Schedule
11.3 or at such other address or facsimile number as such party may
hereafter specify for the purposes of notice to such party.  Each such notice or other communication shall
be effective (a) if given by 


 


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facsimile,
when such facsimile is transmitted to the facsimile number specified in this Section 11.3
and confirmation is received, (b) if given by mail, three (3) Business
Days following such posting, if postage prepaid, and if sent via U.S.  certified or registered mail, (c) if
given by overnight courier, one (1) Business Day after deposit thereof
with a national overnight courier service, or (d) if given by any other
means, when received at the address specified in this Section 11.3,
provided that an Investment Request shall only be effective upon receipt by the
applicable Class Agent.  The SPV
agrees to deliver promptly to the Investors or the Class Agents, as
applicable a written confirmation of each telephonic notice signed by an
authorized officer of SPV.  However, the
absence of such confirmation shall not affect the validity of such notice.  If the written confirmation differs in any
material respect from the action taken by the Investors or the Class Agents,
as applicable, the records of the Investors or the Class Agents, as
applicable shall govern.


 


Section 11.4                            Governing Law;
Submission to Jurisdiction; Appointment of Service Agent.


 


(a)                                  THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO THE
CONFLICTS OF LAW PRINCIPLES THEREOF OTHER THAN SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW).  EACH OF
THE PARTIES HERETO HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY
NEW YORK STATE COURT SITTING IN THE CITY OF NEW YORK FOR PURPOSES OF ALL LEGAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER TRANSACTION
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.  NOTHING IN THIS SECTION 11.4
SHALL AFFECT THE RIGHT OF THE INVESTORS, THE AGENT OR THE CLASS AGENTS TO
BRING ANY ACTION OR PROCEEDING AGAINST ANY OF THE SPV, THE ORIGINATOR, THE
SELLER OR THE SERVICER OR ANY OF THEIR RESPECTIVE PROPERTY IN THE COURTS OF
OTHER JURISDICTIONS.


 


(b)                                 EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHT TO
HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT,
TORT OR OTHERWISE, AMONG ANY OF THEM ARISING OUT OF, CONNECTED WITH, RELATING
TO OR INCIDENTAL TO THE RELATIONSHIP BETWEEN THEM IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS.


 


(c)                                  The
SPV, the Servicer, the Seller and the Originator each hereby appoint CT
Corporation System located at 111 Eighth Avenue, New York, New York 10011 as
the 


 


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authorized agent
upon whom process may be served in any action arising out of or based upon this
Agreement, the other Transaction Documents to which such Person is a party or
the transactions contemplated hereby or thereby that may be instituted in the
United States District Court for the Southern District of New York and of any
New York State court sitting in The City of New York by any Investor, any Class Agent,
the Agent, the Collateral Agent or any successor or assignee of any of them.


 


Section 11.5                            Integration.


 


This Agreement contains the
final and complete integration of all prior expressions by the parties hereto
with respect to the subject matter hereof and shall constitute the entire
Agreement among the parties hereto with respect to the subject matter hereof
superseding all prior oral or written understandings.


 


Section 11.6                            Severability of
Provisions.


 


If any one or more of the
provisions of this Agreement shall for any reason whatsoever be held invalid,
then such provisions shall be deemed severable from the remaining provisions of
this Agreement and shall in no way affect the validity or enforceability of
such other provisions.


 


Section 11.7                            Counterparts; Facsimile
Delivery.


 


This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
Agreement.  Delivery by facsimile of an
executed signature page of this Agreement shall be effective as delivery
of an executed counterpart hereof.


 


Section 11.8                            Successors and Assigns;
Binding Effect.


 


(a)                                  This
Agreement shall be binding on the parties hereto and their respective
successors and assigns; provided, however, that none of the SPV,
the Servicer or the Originator may assign any of its rights or delegate any of
its duties hereunder or under the First Tier Agreement, the Second Tier
Agreement or under any of the other Transaction Documents to which it is a
party without the prior written consent of the Agent and each Class Agent.  Except as provided in clause (b) below,
no provision of this Agreement shall in any manner restrict the ability of any
Investor to assign, participate, grant security interests in, or otherwise
transfer any portion of the Asset Interest.


 


(b)                                 Any
Alternate Investor may assign all or any portion of its Commitment and its
interest in the related Class Net Investment and the Asset Interest and
its other rights and obligations hereunder to any Person with the written
approval of the related Class Agent, on behalf of the related Conduit
Investor, and the Agent.  In connection
with any such assignment, the assignor shall deliver to the assignee(s) an
Assignment and Assumption Agreement, duly executed, assigning to such assignee
a pro  rata interest in such
assignor’s Commitment and other obligations hereunder and in the related Class Net
Investment, the Asset Interest and other rights hereunder, and such assignor
shall promptly execute and deliver all further instruments and documents, and
take all further action, that the assignee may reasonably request, in order to 


 


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protect, or more
fully evidence the assignee’s right, title and interest in and to such interest
and to enable the Agent, on behalf of such assignee, to exercise or enforce any
rights hereunder and under the other Transaction Documents to which such
assignor is or, immediately prior to such assignment, was a party.  Upon any such assignment, (i) the
assignee shall have all of the rights and obligations of the assignor hereunder
and under the other Transaction Documents to which such assignor is or,
immediately prior to such assignment, was a party with respect to such assignor’s
Commitment and interest in the related Class Net Investment and the Asset
Interest for all purposes of this Agreement and under the other Transaction
Documents to which such assignor is or, immediately prior to such assignment,
was a party and (ii) the assignor shall have no further obligations with
respect to the portion of its Commitment which has been assigned and shall
relinquish its rights with respect to the portion of its interest in the
related Class Net Investment and the Asset Interest which has been
assigned for all purposes of this Agreement and under the other Transaction
Documents to which such assignor is or, immediately prior to such assignment,
was a party.  No such assignment shall be
effective unless a fully executed copy of the related Assignment and Assumption
Agreement shall be delivered to the related Class Agent, the Agent and the
SPV.  All costs and expenses of the
related Class Agent and the Agent incurred in connection with the
preparation and execution of any documentation related to any assignment
hereunder shall be borne by the assignee. 
No Alternate Investor shall assign any portion of its Commitment
hereunder without also simultaneously assigning an equal portion of its
interest in the Program Support Agreement to which it is a party or under which
it has acquired a participation.


 


(c)                                  By
executing and delivering an Assignment and Assumption Agreement, the assignor
and assignee thereunder confirm to and agree with each other and the other
parties hereto as follows:  (i) other
than as provided in such Assignment and Assumption Agreement, the assignor
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
this Agreement, the other Transaction Documents or any other instrument or document
furnished pursuant hereto or thereto or the execution, legality, validity,
enforceability, genuineness, sufficiency or value or this Agreement, the other
Transaction Documents or any such other instrument or document; (ii) the
assignor makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the SPV, the Originator or the Servicer
or the performance or observance by the SPV, the Originator or the Servicer of
any of their respective obligations under this Agreement, the First Tier
Agreement, the Second Tier Agreement, the other Transaction Documents or any
other instrument or document furnished pursuant hereto; (iii) such
assignee confirms that it has received a copy of this Agreement, the First Tier
Agreement, the Second Tier Agreement, each other Transaction Document and such
other instruments, documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such Assignment and
Assumption Agreement and to purchase such interest; (iv) such assignee
will, independently and without reliance upon the Agent or any Class Agent,
or any of their respective Affiliates, or the assignor and based on such
agreements, documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement and the other Transaction Documents; (v) such assignee
appoints and authorizes the Agent and the related Class Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement,
the other Transaction Documents and any other instrument or document furnished
pursuant hereto or thereto as are delegated to the Agent or such Class Agent
by the terms hereof or thereof, together 


 


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with such powers
as are reasonably incidental thereto and to enforce its respective rights and
interests in and under this Agreement, the other Transaction Documents and the
Affected Assets; (vi) such assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of this
Agreement and the other Transaction Documents are required to be performed by
it as the assignee of the assignor; and (vii) such assignee agrees that it
will not institute against any Conduit Investor any proceeding of the type
referred to in Section 11.11 prior to the date which is one year
and one day after the payment in full of all Commercial Paper issued by such
Conduit Investor.


 


(d)                                 Without
limiting the foregoing, each Conduit Investor may, from time to time, with
prior or concurrent notice to the SPV, the Servicer and the Agent, in one
transaction or a series of transactions, assign all or a portion of the related
Class Net Investment and its rights and obligations under this Agreement
and any other Transaction Documents to which it is a party to a Conduit
Assignee.  Upon and to the extent of such
assignment by such Conduit Investor to a Conduit Assignee, (i) such
Conduit Assignee shall be the owner of the assigned portion of the related Class Net
Investment, (ii) the related administrator for such Conduit Assignee will
act as the Class Agent for such Conduit Assignee, with all corresponding
rights and powers, express or implied, granted to a Class Agent hereunder
or under the other Transaction Documents, (iii) such Conduit Assignee (and
any related commercial paper issuer, if such Conduit Assignee does not itself
issue commercial paper) and their respective liquidity support provider(s) and
credit support provider(s) and other related parties shall have the
benefit of all the rights and protections provided to the related Conduit
Investor and its Program Support Provider(s) herein and in the other
Transaction Documents (including any limitation on recourse against such
Conduit Assignee or related parties, any agreement not to file or join in the
filing of a petition to commence an insolvency proceeding against such Conduit
Assignee, and the right to assign to another Conduit Assignee as provided in
this paragraph), (iv) such Conduit Assignee shall assume all (or the
assigned or assumed portion) of the related Conduit Investor’s obligations, if
any, hereunder or any other Transaction Document, and such Conduit Investor
shall be released from such obligations, in each case to the extent of such
assignment, and the obligations of such Conduit Investor and such Conduit
Assignee shall be several and not joint, (v) all distributions in respect
of the related Class Net Investment shall be made to the applicable agent
or Agent, as applicable, on behalf of the related Conduit Investor and such
Conduit Assignee on a pro  rata
basis according to their respective interests, (vi) the definition of the
term “CP Rate” with respect to the portion of the related Class Net
Investment funded with commercial paper issued by the related Conduit Investor
from time to time shall be determined in the manner set forth in the definition
of “CP Rate” applicable to such Conduit Investor on the basis of the interest rate
or discount applicable to commercial paper issued by such Conduit Assignee (or
the related commercial paper issuer, if such Conduit Assignee does not itself
issue commercial paper) rather than the Conduit Investor, (vii) the
defined terms and other terms and provisions of this Agreement and the other
Transaction Documents shall be interpreted in accordance with the foregoing,
and (viii) if requested by the Agent or administrative agent with respect
to a Conduit Assignee, the parties will execute and deliver such further
agreements and documents and take such other actions as the Agent or such
administrative agent may reasonably request to evidence and give effect to the
foregoing.  No assignment by a Conduit
Investor to a Conduit Assignee of all or any portion of the related Class Net
Investment shall in any way diminish the related Alternate Investors’
obligation under Section 2.3 to fund any Investment not funded by
the related Conduit Investor or such Conduit Assignee or to acquire from such
Conduit Investor or 


 


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such Conduit
Assignee all or any portion of the related Class Net Investment pursuant
to Section 3.1.


 


(e)                                  In
the event that a Conduit Investor makes an assignment to a Conduit Assignee in
accordance with clause (d) above, the related Alternate
Investors:  (i) if requested by the
related Class Agent, shall terminate their participation in the applicable
Program Support Agreement to the extent of such assignment, (ii) if
requested by the related Class Agent, shall execute (either directly or
through a participation agreement, as determined by the related Class Agent)
the program support agreement related to such Conduit Assignee, to the extent
of such assignment, the terms of which shall be substantially similar to those
of the participation or other agreement entered into by such Alternate Investor
with respect to the applicable Program Support Agreement (or which shall be
otherwise reasonably satisfactory to the related Class Agent and the related
Alternate Investors), (iii) if requested by a related Conduit Investor,
shall enter into such agreements as requested by such Conduit Investor pursuant
to which they shall be obligated to provide funding to such Conduit Assignee on
substantially the same terms and conditions as is provided for in this
Agreement in respect of such Conduit Investor (or which agreements shall be
otherwise reasonably satisfactory to such Conduit Investor and the related
Alternate Investors), and (iv) shall take such actions as the Agent shall
reasonably request in connection therewith.


 


(f)                                    Each
of the SPV, the Servicer, the Seller and the Originator hereby agrees and
consents to the assignment by the Conduit Investor from time to time of all or
any part of its rights under, interest in and title to this Agreement and the
Asset Interest to any Program Support Provider. 
In addition, each of the SPV, the Servicer, the Seller and the
Originator hereby agrees and consents to the assignment by any Conduit Investor
from time to time of all or any part of its rights under, interest in and title
to this Agreement and the Asset Interest to the related Class Agent or the
related Collateral Agent.


 


Section 11.9                            Waiver of
Confidentiality.


 


Each of the SPV, the Servicer,
the Seller and the Originator hereby consents to the disclosure of any
non-public information with respect to it received by the Agent, any Investor
or the Class Agents to any other Investor or potential Investor, the
Agent, any nationally recognized statistical rating organization rating any
Conduit Investor’s Commercial Paper, any dealer or placement agent of or
depositary for such Conduit Investor’s Commercial Paper, any Class Agent,
any Collateral Agent, any Program Support Provider or any of such Person’s
counsel or accountants in relation to this Agreement or any other Transaction
Document if such Persons are informed of the confidential nature of such
information.


 


Section 11.10                     Confidentiality Agreement.


 


Each of the SPV, the Servicer,
the Seller and the Originator hereby agrees that it will not disclose the
contents of this Agreement or any other Transaction Document or any other
proprietary or confidential information of or with respect to any Investor, the
Agent, any Class Agent, any Collateral Agent or any Program Support
Provider to any other Person except (a) its auditors and attorneys,
employees or financial advisors (other than any commercial bank) and any
nationally recognized statistical rating organization, provided such auditors,
attorneys, 


 


82

















 


employees,
financial advisors or rating agencies are informed of the highly confidential
nature of such information or (b) as otherwise required by applicable law
(including securities laws and SEC filings) or order of a court of competent
jurisdiction.


 


Section 11.11                     No Bankruptcy Petition Against
the Conduit Investors.


 


Each of the SPV, the Servicer,
the Seller and the Originator hereby covenants and agrees that, prior to the
date which is one year and one day after the payment in full of all outstanding
Commercial Paper or other rated indebtedness of any Conduit Investor (or its
related commercial paper issuer), it will not institute against, or join any
other Person in instituting against, any Conduit Investor any proceeding of a
type referred to in the definition of Event of Bankruptcy.


 


Section 11.12                     No Recourse Against Conduit
Investors.


 


Notwithstanding anything to the
contrary contained in this Agreement, the obligations of each Conduit Investor
under this Agreement and all other Transaction Documents are solely the
corporate obligations of such Conduit Investor and shall be payable solely to
the extent of funds received from the SPV in accordance herewith or from any
party to any Transaction Document in accordance with the terms thereof in
excess of funds necessary to pay matured and maturing Commercial Paper.


 


[Signatures Follow]


 


83
















 


In Witness
Whereof, the parties hereto have executed and delivered this Agreement as of
the date first written above.


 


 


	
   

  	
  UNITED STATIONERS SUPPLY CO.,

  
	
   

  	
  as Originator

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


 


	
   

  	
  UNITED STATIONERS FINANCIAL
  SERVICES

  LLC, as Seller and Servicer

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


 


	
   

  	
  UNITED STATIONERS RECEIVABLES,
  LLC, 

  as SPV

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


[Signatures
Continued on Next Page]


 


[Signature page to Transfer and Administration Agreement]


 

















 


	
   

  	
  ENTERPRISE FUNDING, as a
  Conduit Investor

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


 


Commitment          $102,000,000


	
   

  	
  BANK OF AMERICA, NATIONAL

  ASSOCIATION, as Agent, as a Class Agent and as

  an Alternate Investor

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


[Signatures
Continued on Next Page]


 


[Signature page to Transfer and Administration
Agreement]


 

















 


	
   

  	
  MARKET STREET, as a Conduit
  Investor

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


 


Commitment          $51,000,000


	
   

  	
  PNC BANK, as a Class Agent
  and as an Alternate

  Investor

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


[End of
Signatures]


 


[Signature page to Transfer and
Administration Agreement]


 

















 


SCHEDULE I


 


Section 2.4 of this Agreement shall be
read in its entirety as follows:


 


Section 2.4             Determination
of Yield and Rate Periods.  (a) From
time to time, for purposes of determining the Rate Periods applicable to the
different portions of the related Class Net Investment and of calculating
Yield with respect thereto, each Class Agent shall allocate its related Class Net
Investment to one or more tranches (each a “Portion
of Investment”).  At any
time, each Portion of Investment shall have only one Rate Period and one Rate
Type.  For the avoidance of doubt, at any
time when the related Class Net Investment is not divided into more than
one portion, “Portion of Investment” means 100% of the related Class Net
Investment.


 


(b)           [Reserved].


 


(c)           As
used in this Section 2.4, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):


 


Alternate Rate:  For any Rate Period for any Portion of
Investment, an interest rate per  annum equal to 1.75% per  annum
above the Offshore Rate for such Rate Period; provided, however,
that in the case of:


 


(i)            any Rate Period which
commences on a date other than a Settlement Date or which commences prior to
the Agent receiving at least three (3) Business Days notice thereof, or


 


(ii)           any Rate Period
relating to a Portion of Investment which is less than $2,000,000,


 


the “Alternate
Rate” for each day in such Rate Period shall be an interest rate per  annum
equal to the Base Rate in effect on such day. 
The “Alternate Rate”
for any date on or after the declaration or automatic occurrence of Termination
Date pursuant to Section 8.2 shall be an interest rate equal to the
Default Rate in effect on such day.


 


Base Rate:  For any day a fluctuating rate per  annum
equal to the highest of (a) the Federal Funds Rate for such day, plus
..50%, (b) the rate of interest in effect for such day as publicly
announced from time to time by the Agent as its “prime rate” and (c) the
Offshore Rate for such day, plus 1.75%. 
The “prime rate” is a rate set by the Agent based upon various factors
including the Agent’s costs and desired return, general economic conditions and
other factors, and is used as a reference point for pricing some loans, which
may be priced at, above, or below such announced rate.  Any change in the prime rate announced by the
Agent shall take effect at the opening of business on the day specified in the
public announcement of such change.


 


CP Rate:  For any Conduit Investor and any Rate Period
for any Portion of Investment, the per  annum rate equivalent to
the weighted average cost (as determined by the related Class Agent and
which shall include commissions of placement agents and dealers, incremental carrying
costs incurred with respect to Commercial Paper related to the Conduit Investor
that is a member 


 


I - 1

















 


of such Class maturing
on dates other than those on which corresponding funds are received by such
Conduit Investor (or its related commercial paper issuer if the Conduit
Investor does not itself issue commercial paper), other borrowings by such
Conduit Investor (other than under any Program Support Agreement) and any other
costs associated with the issuance of Commercial Paper related to the Conduit
Investor that is a member of such Class) of or related to the issuance of
Commercial Paper related to the Conduit Investor that is a member of such Class that
is allocated, in whole or in part, by such Conduit Investor or the related Class Agent
to fund or maintain such Portion of Investment (and which may be also allocated
in part to the funding of other assets of such Conduit Investor); provided,
however, that if any component of such rate is a discount rate, in
calculating the “CP Rate”
for such Conduit Investor for such Portion of Investment for such Rate Period,
such Conduit Investor (or such related commercial paper issuer) shall for such
component use the rate resulting from converting such discount rate to an
interest bearing equivalent rate per  annum.


 


Federal Funds
Rate:  For any
day, the rate per  annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the Federal Reserve Bank
of New York on the Business Day next succeeding such day; provided that (a) if
such day is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is
so published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate charged to the Agent on such day on such
transactions as determined by it.


 


Offshore Rate:  For any Rate Period for any Portion of
Investment, a rate per  annum determined by the Agent pursuant to
the following formula:


 


	
  Offshore Rate =  

  	
  Offshore Base Rate

  	
   

  
	
   

  	
  1.00 - Eurodollar Reserve
  Percentage

  



 


Where,


 


Offshore Base
Rate:  For such
Rate Period:


 


(i)            the rate per  annum
(carried out to the fifth decimal place) equal to the rate determined by the
Agent to be the offered rate that appears on the page of the Reuters
Screen that displays an average British Bankers Association Interest Settlement
Rate (such page currently being page number LIBOR01) for deposits in
Dollars (for delivery on the first day of such Rate Period) with a term
equivalent to such Rate Period, determined as of approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Rate Period, or


 


(ii)           in the event the rate
referenced in the preceding subsection (a) does not appear on such page or
service or such page or service shall cease to be available, the rate per
annum (carried to the fifth decimal place) equal to the rate determined
by the Agent to be the offered rate on such other page or other service
that displays an average British Bankers Association Interest Settlement Rate
for deposits in Dollars (for delivery on the 


 


I - 2

















 


first day of such Rate Period) with a term equivalent to such Rate
Period, determined as of approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Rate Period, or


 


(iii)          in the event the rates
referenced in the preceding subsections (a) and (b) are
not available, the rate per  annum determined by the Agent as the
rate of interest at which Dollar deposits (for delivery on the first day of
such Rate Period) in same day funds in the approximate amount of the applicable
Portion of Investment to be funded by reference to the Offshore Rate and with a
term equivalent to such Rate Period would be offered by its London Branch to
major banks in the offshore dollar market at their request at approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Rate Period; and


 


Eurodollar
Reserve Percentage: 
For any day during any Rate Period, the reserve percentage (expressed as
a decimal, rounded upward to the next 1/100th of 1%) in effect on such day,
whether or not applicable to any Investor, under regulations issued from time
to time by the Board of Governors of the Federal Reserve System for determining
the maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as “eurocurrency liabilities”).  The Offshore Rate shall be adjusted
automatically as of the effective date of any change in the Eurodollar Reserve
Percentage.


 


Rate Period:  Unless otherwise mutually agreed by a Class Agent
for any Portion of Investment funded by the related Class and the SPV, (a) with
respect to any Portion of Investment funded by the issuance of Commercial
Paper, (i) initially the period commencing on (and including) the date of
the initial purchase or funding of such Portion of Investment and ending on
(and including) the last day of the current calendar month, and (ii) thereafter,
each period commencing on (and including) the first day after the last day of
the immediately preceding Rate Period for such Portion of Investment and ending
on (and including) the last day of the current calendar month; and (b) with
respect to any Portion of Investment not funded by the issuance of Commercial
Paper, (i) initially the period commencing on (and including) the date of
the initial purchase or funding of such Portion of Investment and ending on (but
excluding) the next following Settlement Date, and (ii) thereafter, each
period commencing on (and including) a Settlement Date and ending on (but
excluding) the next following Settlement Date; provided, that


 


(A)          any Rate Period with respect to any Portion
of Investment (other than any Portion of Investment accruing Yield at the CP
Rate) which would otherwise end on a day which is not a Business Day shall be
extended to the next succeeding Business Day; provided, however,
if Yield in respect of such Rate Period is computed by reference to the
Offshore Rate, and such Rate Period would otherwise end on a day which is not a
Business Day, and there is no subsequent Business Day in the same calendar
month as such day, such Rate Period shall end on the next preceding Business
Day;


 


(B)           in the case of any Rate Period for any
Portion of Investment which commences before the Termination Date and would
otherwise end on a date 


 


I - 3

















 


occurring after the Termination
Date, such Rate Period shall end on such Termination Date and the duration of
each Rate Period which commences on or after the Termination Date shall be of
such duration as shall be selected by the related Class Agent; and


 


(C)           any Rate Period in respect of which Yield is
computed by reference to the CP Rate may be terminated at the election of the Class Agent
for the Class funding the related Portion of Investment at any time, in
which case such Portion of Investment shall be allocated by the related Class Agent
to a new Rate Period commencing on (and including) the date of such termination
and ending on (but excluding) the next following Settlement Date, and shall
accrue Yield at the Alternate Rate.


 


Rate Type:  The Offshore Rate, the Base Rate or the CP Rate.


 


Yield:  For any Portion of Investment:


 


(i)            during any Rate Period
to the extent a Conduit Investor funds such Portion of Investment through the
issuance of Commercial Paper (directly or indirectly through a related
commercial paper issuer),


 


	
   

  	
  CPR x I x D

  	
   

  
	
   

  	
  360

  	
   

  



 


(ii)           funded by an Alternate
Investor and for any Portion of Investment to the extent a Conduit Investor
will not be funding such Portion of Investment through the issuance of
Commercial Paper (directly or indirectly through a related commercial paper
issuer),


 


	
   

  	
  AR x I x D

  	
   

  
	
   

  	
  360

  	
   

  



 


where:


 


	
   

  	
  AR

  	
   

  	
  =

  	
   

  	
  the Alternate Rate for such
  Portion of Investment for such Rate Period,

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CPR

  	
   

  	
  =

  	
   

  	
  the CP Rate for such Portion of
  Investment for such Rate Period (as determined by the related
  Class Agent on or prior to the fifth Business Day of the calendar month
  next following such Rate Period),

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  D

  	
   

  	
  =

  	
   

  	
  the actual number of days
  during such Rate Period, and

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  I

  	
   

  	
  =

  	
   

  	
  the weighted average of such
  Portion of Investment during such Rate Period

  



 


I - 4

















 


; provided
that no provision of the Agreement shall require the payment or permit the
collection of Yield in excess of the maximum permitted by applicable law; and provided,
further, that at all times after the declaration or automatic occurrence
of the Termination Date pursuant to Section 8.2, Yield for all
Portion of Investment shall be determined as provided in clause (ii) of
this definition.


 


(d)           Offshore Rate
Protection; Illegality.  (i) If
the Agent is unable to obtain on a timely basis the information necessary to
determine the Offshore Rate for any proposed Rate Period, then


 


(A)          the Agent shall forthwith notify the
Investors and the SPV that the Offshore Rate cannot be determined for such Rate
Period, and


 


(B)           while such circumstances exist, the
Investors, the Class Agents and the Agent shall not allocate any Portion
of Investment or reallocate any Portion of Investment to a Rate Period with
respect to which Yield is calculated by reference to the Offshore Rate.


 


(ii)           If, with respect to any
outstanding Rate Period, any Class Agent notifies the Agent that any of
the Investors that comprise any of its Class is unable to obtain matching
deposits in the London interbank market to fund its purchase or maintenance of
such Portion of Investment or that the Offshore Rate applicable to such Portion
of Investment will not adequately reflect the cost to the Person of funding or
maintaining such Portion of Investment for such Rate Period, then (A) the
Agent shall forthwith so notify the SPV and the Investors and (B) upon
such notice and thereafter while such circumstances exist the Agent, the Class Agents
and the Investors shall not allocate any Portion of Investment or reallocate
any Portion of Investment, to a Rate Period with respect to which Yield is
calculated by reference to the Offshore Rate and all Portions of Investment
that have been allocated to a Rate Period to which the Offshore Rate applies
shall be automatically allocated to a new Rate Period to which the Base Rate
applies and the Rate Period to which such Offshore Rate applied terminated on
such day.


 


(iii)          Notwithstanding any
other provision of this Agreement, if any Conduit Investor or any Alternate
Investor, as applicable, shall notify the Agent that such Person has determined
(or has been notified by any Program Support Provider) that the introduction of
or any change in or in the interpretation of any Law makes it unlawful (either
for such Conduit Investor, such Alternate Investor, or such Program Support
Provider, as applicable), or any central bank or other Official Body asserts
that it is unlawful, for such Conduit Investor, such Alternate Investor or such
Program Support Provider, as applicable, to fund the purchases or maintenance
of any Portion of Investment accruing Yield calculated by reference to the
Offshore Rate, then (A) as of the effective date of such notice from such
Person to the Agent, the obligation or ability of such Conduit Investor or such
Alternate Investor, as applicable, to fund the making or maintenance of any
Portion of Investment accruing Yield calculated by reference to the Offshore
Rate shall be suspended until such Person notifies the Agent that the
circumstances causing such suspension no longer exist and (B) each Portion
of Investment made or maintained by such Person accruing Yield calculated by
reference to 


 


I - 5

















 


the Offshore Rate shall be deemed to accrue Yield at the Base Rate from
the effective date of such notice until the end of such Rate Period.


 


I - 6

















 


SCHEDULE II


 


Specified Ineligible Receivables


 


II - 1
















 


SCHEDULE III


 


(Settlement Procedures)


 


Sections 2.12 through 2.15 of the
Agreement shall be read in their entirety as follows:


 


Section 
2.12          Settlement
Procedures.  (a) Daily
Procedure.  The Servicer, on behalf
of the SPV and for the benefit of the Agent, the Class Agents and the
Investors, shall on a daily basis manage the Collections of Receivables
received or deemed received by the SPV or the Servicer on such day in
accordance with the provisions of this Agreement and in such a manner that the
SPV shall have sufficient funds available (to the extent of the Collections of
Receivables received or deemed received) at all times, including on each
Settlement Date, to pay its obligations due on such day, including, without
limitation, managing Investments, Reinvestments and Deemed Collections and
setting aside an amount equal to the excess, if any, of (i) the greatest
of: (A) if the SPV shall have elected to reduce the Net Investment under Section 2.13,
the amount of the proposed reduction, (B) the amount, if any, by which the
sum of the Net Investment and Required Reserves shall exceed the Net Pool
Balance (minus any portion of the Required Reserves attributable to such
excess), together with the amount, if any, by which the Net Investment shall
exceed the Maximum Net Investment, and (C) if such day is on or after the
Termination Date, the Net Investment; over (ii) the aggregate of the
amounts theretofore set aside for such purposes.  To the extent and for so long as such
Collections may not be reinvested pursuant to Section 2.2(b), the
Servicer shall hold such Collections in trust for the benefit of the Agent.


 


(b)           Settlement Procedures.


 


(i)  The
Servicer shall deposit into each Class Agent’s account, on each Business
Day selected by the SPV for a reduction of the Net Investment under Section 2.13
the related Class Pro Rata Share of the amount of Collections held for the
Agent pursuant to Section 2.12(a)(ii).


 


(ii)  On
any date on or prior to the Termination Date, if the sum of the Net Investment
and Required Reserves exceeds the Net Pool Balance the Servicer shall
immediately pay to each Class Agent’s account from amounts set aside
pursuant to clause (ii) or clause (iii) of Section 2.12(a) an
amount equal to the related Class Pro Rata Share of such excess (minus
any portion of the Class Pro Rata Share of Required Reserves attributable
to such excess).


 


(iii)  On
each Settlement Date, the Servicer shall deposit to each Class Agent’s
account:


 


(A)          out of the amounts set aside pursuant to clause
(i) of Section 2.12(a) and not theretofore deposited
in accordance with Section 2.12(b), an amount equal to the accrued
and unpaid Yield, Servicing Fee, Program Fee and Facility Fee for the related
Rate Period together with any other Aggregate Unpaids (other than Net Investment)
then due to the related Class; and


 


III - 1

















 


(B)           out of the amount, if any, set aside
pursuant to clause (ii) and (to the extent not theretofore
reinvested) clause (iii) of Section 2.12(a) and
not theretofore deposited to such Class Agent’s account pursuant to this Section 2.12(b),
an amount equal to related Class Pro Rata Share of the lesser of such
amount and the Net Investment;


 


provided,
however, that if the Agent gives its consent (which consent may be
revoked at any time), the Servicer may retain amounts which would otherwise be
deposited in respect of accrued and unpaid Servicing Fee, in which case no
distribution shall be made in respect of such Servicing Fee under clause (c) below.  Any amounts set aside pursuant to Section 2.12(a) in
excess of the amount required to be deposited in the Class Agents’
accounts pursuant to this subsection (b) shall continue to be set
aside and held in trust by the Servicer for application on the next succeeding
Settlement Date(s).


 


(c)           Order of Application.  Upon receipt by a Class Agent on any
Yield Payment Date of funds deposited pursuant to subsection (b)(iii)(A),
such Class Agent shall distribute them to the Investors in its Class, pro  rata based on the amount of
accrued and unpaid Yield owing to each of them, in payment of the accrued and
unpaid Yield on the related Portions of Investment for the related Rate
Period.  Upon receipt by a Class Agent
of funds deposited pursuant to any other provision of subsection (b),
such Class Agent shall distribute them to the Persons, for the purposes
and in the order of priority set forth below:


 


(i)            to the related
Investors, pro  rata based on the
amount of accrued and unpaid Yield, Program Fee and Facility Fee owing to each of
them, in payment of the accrued and unpaid Yield, Program Fee and Facility Fee
on the Portions of Investment for the related Rate Period for such Class;


 


(ii)           if the Seller or any
Affiliate of the Originator is not then the Servicer, to the Servicer in payment
of the related Class Pro Rata Share of the accrued and unpaid Servicing
Fee payable on such Settlement Date;


 


(iii)          to the related
Investors, pro  rata based on
their respective interests in the Asset Interest (based upon the respective
portions of the Class Net Investment owned by each of them) except as
otherwise provided in Section 3.3(b), in reduction of the related Class Net
Investment;


 


(iv)          to the Agent, itself,
the related Investors or such other Person as may be entitled to such payment,
in payment of the related Class Pro Rata Share of any other Aggregate
Unpaids owed by the SPV hereunder to such Person (other than Net Investment,
Yield and Servicing Fee); and


 


(v)           if the Seller or any
Affiliate of the Originator is the Servicer, to the Servicer in payment of the
related Class Pro Rata Share of the accrued Servicing Fee payable on such
Settlement Date, to the extent not paid pursuant to clause (ii) above
or retained pursuant to subsection (b) above.


 


Section 2.13           Optional Reduction
of Net Investment.  The SPV may at
any time elect to cause the reduction of the Net Investment as follows:


 


III - 2

















 


(a)           the SPV shall instruct
the Servicer to (and the Servicer shall) set aside Collections and hold them in
trust for the Agent under clause (ii) of Section 2.12(a) until
the amount so set aside shall equal the desired amount of reduction; and


 


(b)           on each Settlement Date
occurring at least the Required Notice Days after the date of the SPV’s notice,
the Servicer shall pay to each Class Agent, in reduction of the Net
Investment, the related Class Pro Rata Share of the amount of such
Collections so held or, if less, the related Class Net Investment (it
being understood that neither the Net Investment nor any Class Net
Investment shall be deemed reduced by any amount set aside or held pursuant to
this Section 2.13 unless and until, and then only to the extent
that, such amount is finally paid to the related Class Agent as
aforesaid); provided that, the amount of any such reduction shall be not
less than $1,000,000.


 


Section 2.14  Application of Collections Distributable
to SPV.  Unless otherwise instructed
by the SPV, the Servicer shall allocate and apply, on behalf of the SPV,
Collections distributable to the SPV hereunder first, to the payment to
the Seller of the purchase price of new Receivables in accordance with the
Second Tier Agreement and/or to Reinvestments as described in Section 2.2(b),
second, to the payment or provision for payment of the SPV’s operating
expenses, as instructed by the SPV, third, to the repayment to the
Seller of Advances (as defined in the Second Tier Agreement) pursuant to Section 3.2(b)(i) of
the Second Tier Agreement, subject to Section 6.2(k), fourth,
to the payment of interest on Advances to the Seller pursuant to Section 3.2(b)(ii) of
the Second Tier Agreement, subject to Section 6.2(k) and fifth,
as directed from time to time by the SPV.


 


Section 2.15
Collections Held in Trust.  So
long as the SPV or the Servicer shall hold any Collections or Deemed
Collections then or thereafter required to be paid by the SPV to the Servicer
or by the SPV or the Servicer to the Agent, it shall hold such Collections in
trust, and, if requested by the Agent after the occurrence and during the continuance
of a Termination Event or Potential Termination Event, shall deposit such
Collections within one Business Day of receipt thereof into the Collection
Account.  The Net Investment shall not be
deemed reduced by any amount held in trust or in the Collection Account
pursuant to Section 2.12 unless and until, and then only to the
extent that, such amount is finally paid to the Agent in accordance with Section 2.12(b).


 


III - 3

















 


SCHEDULE 4.1(g)


 


List of Actions and Suits


 


None.


 


1

















 


SCHEDULE 4.1(i)


 


Location of Certain Offices and
Records


 


United Stationers Receivables, LLC


Jurisdiction of formation:  Illinois


Principal Place of Business:  One Parkway North Blvd., Deerfield, Illinois


President: 
Victoria J. Reich


Location of Records:  One Parkway North Blvd., Deerfield, Illinois


 


United Stationers Supply Co.


Jurisdiction of formation:  Illinois


Principal Place of Business:  One Parkway North Blvd., Deerfield, Illinois


Chief Executive Officer:  Richard W. Gochnauer


Location of Records:  One Parkway North Blvd., Deerfield, Illinois


 


United Stationers Financial Services LLC


Jurisdiction of formation:  Illinois


Principal Place of Business:  One Parkway North Blvd., Deerfield, Illinois


President: 
Victoria J. Reich


Location of Records:  One Parkway North Blvd., Deerfield, Illinois


 


1

















 


SCHEDULE 4.1(j)


 


List of Subsidiaries, Divisions
and Tradenames; FEIN


 


1)            United Stationers
Receivables, LLC


 


	
  Subsidiaries:

  	
  None

  
	
   

  	
   

  
	
  Divisions:

  	
  None

  
	
   

  	
   

  
	
  Tradenames:

  	
  None

  
	
   

  	
   

  
	
  Federal Employer Identification Number:

  	
  26-4146967

  
			



 


2)            United Stationers
Supply Co.


 


	
  Subsidiaries:

  	
  Azerty de Mexico, S.A. de C.V.

  
	
   

  	
  Lagasse, Inc

  
	
   

  	
  ORS Nasco, Inc.

  
	
   

  	
  United Stationers Receivables, LLC

  
	
   

  	
  United Stationers Financial Services LLC

  
	
   

  	
  United Stationers Technology Services LLC

  
	
   

  	
  United Stationers Hong Kong Limited

  
	
   

  	
  United Worldwide Limited

  
	
   

  	
   

  
	
  Divisions:

  	
  United Supply US

  
	
   

  	
  Azerty US

  
	
   

  	
   

  
	
  Tradenames:

  	
  None

  
	
   

  	
   

  
	
  Federal Employer Identification Number:

  	
  36-2431718

  
			



 


3)            United Stationers
Financial Services LLC


 


	
  Subsidiaries:

  	
  USS Receivables Company, Ltd.

  
	
   

  	
   

  
	
  Divisions:

  	
  None

  
	
   

  	
   

  
	
  Tradenames:

  	
  None

  
	
   

  	
   

  
	
  Federal Employer Identification Number:

  	
  36-4428313

  
			



 


1

















 


SCHEDULE 4.1(r)


 


List of Blocked Account Banks and
Blocked Accounts


 


	
  (1)

  	
  The following lockboxes and
  accounts maintained with PNC Bank, National Association:

  
	
   

  	
   

  
	
   

  	
  P.O. Box 3100-0284
  Pasadena, CA 91110

  
	
   

  	
  P.O. Box 7780-1724
  Philadelphia, PA 19182-1724

  
	
   

  	
  1708 Solutions Center Chicago,
  IL 60677-1007

  
	
   

  	
  P.O. Box 67602 Dallas, TX
  75267-6502

  
	
   

  	
  Demand Deposit Account #2149466

  
	
   

  	
   

  
	
  (2)

  	
  The following lockbox and
  account maintained with U.S. Bank National Association:

  
	
   

  	
   

  
	
   

  	
  Lockbox Number #952418

  
	
   

  	
  Deposit Account Number
  #199380226746

  
	
   

  	
   

  
	
  (3)

  	
  The following account
  maintained with Fifth Third Bank:

  
	
   

  	
   

  
	
   

  	
  Demand Deposit Account
  #7234544398

  
	
   

  	
   

  
	
  (4)

  	
  The following account
  maintained with The Northern Trust Company:

  
	
   

  	
   

  
	
   

  	
  Account Number #3510068

  



 


1

















 


SCHEDULE 4.1(bb)


 


Disclosure Representations and Covenants


 


Originator—Disclosure Representations and
Covenants


 


Disclosure of the Transactions


 


1.        The transactions referred
to in the Opinion (the “Transactions”) have been or will be publicly
disclosed as follows: (a) the Transactions will be addressed in notes
relating to Performance Guarantor’s securitization activities in its financial
statements (on which Originator is consolidated); and (b) UCC financing
statements will be filed to perfect the transfer (the “Transfer”) of
receivables (the “Receivables”) by Originator to United Stationers
Financial Services LLC (“Seller”) pursuant to the receivables sale
agreement referred to in the Opinion (the “Receivables Sale Agreement”).


 


2.        The footnotes that
describe Performance Guarantor’s securitization activities (which include the
Transactions) in Performance Guarantor’s consolidated financial statements
(which will include Originator, Seller and the SPV) will describe Performance
Guarantor’s securitization activities, will inform readers that securitized
assets (such as the Receivables) are isolated in special purpose entities and
support the securities issued by those entities.


 


3.        The computer records of
Seller, as servicer (in such capacity, the “Servicer”) relating to the
Receivables will be marked to reflect the Transfer.


 


4.        Originator will not
conceal any transfers contemplated by the agreements referred to on Schedule
II to the Opinion (the “Agreements”) from any interested party.  Although obligors on the Receivables will not
be affirmatively informed of the transfers of their obligations, Originator
will not conceal the transfers from any obligor that inquires.  Also, (other than certain rebates and
allowances in respect of Receivables) the obligors are not expected to be
material creditors of either Originator, Seller or the SPV.


 


Terms of the
Transactions


 


5.        In connection with the
Transactions: (a) certain investors in the Receivables rely on the
Receivables and the other assets of the Issuer in making their investment
decision; (b) certain investors in the Receivables will rely on the
Transfer being characterized as a true sale, so as to isolate the Receivables
from Originator’s creditors; and (c) the indirect sale of the Receivables
to the SPV and its creditors and their financing through the Transactions is
beneficial to Originator because it, among other things, increases the
liquidity of their assets and, to a lesser extent, diversifies the funding
sources for Originator’s business.


 


6.        The terms of the
Receivables Sale Agreement and other transactions between Originator and Seller
are (a) consistent with those of arm’s-length relationships and (b) fair
and equitable to each of the parties.


 


1

















 


7.        Originator intends the
Transfer to be a true sale by Originator to Seller that is absolute and
irrevocable and that provides Seller with the full benefits of ownership of the
Receivables.  Originator will convey the
Receivables as a result of the credit to Seller without recourse for
uncollectibility of the Receivables as a result of the creditworthiness of the
related Obligor and without any warranty of collectibility or any
unconventional warranty.


 


8.        To finance its purchase,
Originator will transfer the Receivables to the Seller, which in turn will
transfer the Receivables to the SPV.


 


9.        The consideration received
by Originator in the Transfer represents the fair market value of the Receivables.


 


10.      Immediately prior to the
Transfer, Originator owned the Receivables free and clear of any lien or other
adverse claim.


 


11.      Originator’s
representations, warranties, covenants and indemnities in the Receivables Sale
Agreement with respect to the Receivables: 
(a) cover matters ascertainable by Originator in the ordinary
course of business and (b) are intended to ensure that Seller will receive
the type of assets that it has bargained to purchase.  Originator believes that such
representations, warranties, covenants and indemnities do not cause Originator
to retain or assume the risk of nonpayment or other material financial risks of
the Receivables based in part on the belief that the matters covered are within
Originator’s control, are unlikely to occur, or both.  The representations, warranties and covenants
are not intended to cover material liabilities that are reasonably likely to
occur.


 


12.      There are no agreements or
understandings between the SPV, on one hand, and Originator or any of Originator’s
other affiliates that are relevant to the Transactions other than the
Agreements and any other agreements and understandings specifically referenced
in the Agreements.  In particular, there
are no other agreements or understandings pursuant to which Originator or
another of its other affiliates (a) is responsible for maintaining Seller’s
or the SPV’s solvency or (b) provides recourse, guarantees or otherwise
retains or assumes financial risks with respect to the Receivables.


 


Relationship
Between Originator and the SPV


 


13.      The SPV is a wholly-owned
subsidiary of Seller which is a wholly owned subsidiary of Originator, and the
SPV was formed for the special purpose of consummating the Transactions.


 


14.      Originator intends to act in
a manner that is consistent with the SPV’s separate and distinct existence and
will correct any known misunderstanding regarding its status as a separate
entity.


 


15.      Originator prepares and
maintains separate corporate and financial records from the SPV that accurately
reflect its assets, liabilities and financial affairs.  Originator’s 


 


2

















 


believes its assets and
liabilities can be readily and inexpensively segregated, ascertained and
identified separate from those of the SPV. 
All transactions between Originator and the SPV, including monetary
transactions, are and will be properly reflected in Originator’s books and
records and Originator believes that each transaction will be on terms and
conditions consistent with those of an arm’s length transaction.


 


16.      Originator believes that the
consolidation of Originator’s and the SPV’s business operations would not
result in any significant cost savings or in a significantly greater efficiency
or profitability of such combined business operation.


 


17.      Originator and the SPV do
not intend to commingle their assets and liabilities, except that Seller, as
Servicer of the Receivables: (a) may temporarily commingle collections
pending identification and transfer to a collection account for the
Transactions; and (b) will retain books and records pertaining to the
Receivables.  Originator does not
maintain joint bank accounts or other the SPV accounts to which the SPV has
independent access.


 


18.      An integration of business
functions between Originator and the SPV, if any, exists only to the extent
summarized in this paragraph.  The SPV is
operated for the exclusive purpose of purchasing Receivables from Seller.  The SPV will have no employees, and the SPV’s
day-to-day business operations with respect to the Receivables will be
conducted through Seller, in its capacity as Servicer, pursuant to the Transfer
and Administration Agreement and that under that agreement, Seller has limited
rights, in its capacity as Servicer, to enter into modifications of Receivables
on behalf of the SPV, and Seller is generally not permitted to resign as
Servicer.  Originator and the SPV may
share some expenses, but these are not expected to be material and, in any
event, will be allocated between the entities on a basis reasonably related to
the cost of the services involved and each entity’s actual use of such
services.  Obligors on the Receivables
transferred to the SPV will not be notified that their Receivables have been
transferred to the SPV.


 


19.      The SPV is held out to the
public as a separate entity apart from Originator, including as described under
Part I: Description of the Transactions in the Opinion.


 


20.      Originator maintains its own
stationery and other business forms separate from the SPV’s and conducts
business in its own name (including, without limitation, its contracts and
written communications).


 


21.      Originator adheres in all
material respects to corporate formalities in all transfers of assets and other
transactions between Originator and the SPV. 
In general, Originator observes appropriate corporate formalities under
applicable law.


 


22.      Originator does not
currently, and does not intend to, guaranty, and is not otherwise obligated to
repay, the SPV’s liabilities.


 


23.      At closing, Originator will:
(a) be solvent; (b) be adequately capitalized to conduct its business
and affairs as a going concern, considering the size and nature of its business



 


3

















 


and intended purposes and
taking into account pending and threatened claims; and (c) intends to, and
believes that it will be able to, pay its debts as they mature.  As a result, Originator is intended to (and
is reasonably believed to) be able to survive as a stand-alone entity.


 


24.      Originator does not pay the
SPV’s expenses, except as specifically provided in the Agreements.  Any allocations of direct, indirect or
overhead expenses for items shared between Originator and the SPV are made
among such entities to the extent practical on the basis of actual use or value
of services rendered and otherwise on a basis reasonably related to actual use
or the value of services rendered.


 


25.      Originator has not held
itself out, nor does it intend to do so in the future, as responsible for the
SPV’s debts.


 


4

















 


Seller—Disclosure
Representations and Covenants


 


Disclosure of the Transactions


 


1.        The transactions referred
to in the Opinion (the “Transactions”) have been or will be publicly
disclosed as follows: (a) the Transactions will be addressed in notes
relating to Performance Guarantor’s securitization activities in its financial
statements (on which Seller is consolidated); and (b) UCC financing
statements will be filed to perfect the transfer (the “Transfer”) of receivables
by the Originator to Seller pursuant to the receivables sales agreement
referred to in the Opinion (the “Receivables Sale Agreement”) and the
transfer of the Receivables together with a portfolio of additional receivables
previously acquired by Seller (the “Receivables”) from Seller to United
Stationers Receivables, LLC (the “SPV”) pursuant to the receivables
purchase agreement referred to in the Opinion (the “Receivables Purchase
Agreement”).


 


2.        The computer records of
Seller, as servicer (in such capacity, the “Servicer”) relating to the
Receivables will be marked to reflect the Transfer.


 


3.        Seller will not conceal
any transfers contemplated by the agreements referred to on Schedule II
to the Opinion (the “Agreements”) from any interested party.  Although obligors on the Receivables will not
be affirmatively informed of the transfers of their obligations, Seller will
not conceal the transfers from any obligor that inquires.  Also, (other than certain rebates and
allowances in respect of Receivables) the obligors are not expected to be
material creditors of either Seller or the SPV.


 


Terms of the
Transactions


 


4.        In connection with the
Transactions: (a) certain investors in the Receivables rely on the
Receivables and the other assets of the SPV in making their investment
decision; (b) certain investors in the Receivables will rely on the
Transfer being characterized as true sales, so as to isolate the Receivables
from Seller’s creditors; and (c) the sale of the Receivables to the SPV
and their financing through the Transactions is beneficial to Seller and its
creditors because it, among other things, increases the liquidity of their
assets.


 


5.        The terms of each of the
Receivables Sale Agreement and other transactions between Originator and Seller
and the Receivables Purchase Agreement and other transactions between Seller
and the SPV are (a) consistent with those of arm’s-length relationships
and (b) fair and equitable to each of the parties.


 


6.        Seller intends the
Transfer to be a true sale by Originator to Seller that is absolute and
irrevocable and that provides Seller with the full benefits of ownership of the
Receivables.  Seller will receive the
conveyance of the Receivables from Originator without recourse for
uncollectibility of the Receivables as a result of the creditworthiness of the
related Obligor and without any warranty of collectibility or any
unconventional warranty.


 


5
















 


7.        Seller intends the
Transfer to be a true sale by Seller to the SPV that is absolute and
irrevocable and that provides the SPV with the full benefits of ownership of
the Receivables.  Seller will convey the
Receivables to the SPV without recourse for uncollectibility of the Receivables
as a result of the creditworthiness of the related Obligor and without any
warranty of collectibility or any unconventional warranty.


 


8.        To finance its purchase,
Seller will transfer the Receivables to the SPV, which will transfer the
Receivables to Bank of America, National Association (for the benefit of
certain investors).


 


9.        The consideration received
from Originator in the Transfer represents the fair market value of the
Receivables.


 


10.      Immediately prior to the Transfer,
Seller owned the Receivables free and clear of any lien or other adverse claim.


 


11.      Seller purchases the
Receivables in good faith without knowledge of any adverse claim against,
interest in, lien on, or defense to payment of, such assets (other than any
adverse claim arising solely as a result of any action taken by Seller under
the Agreements).


 


12.      Originator’s
representations, warranties, covenants and indemnities in the Receivables Sale
Agreement with respect to the Receivables and Seller’s representations,
warranties, covenants and indemnities in the Receivables Purchase Agreement
with respect to the Receivables:  (a) cover
matters ascertainable by Originator or Seller, as applicable, in the ordinary
course of business and (b) are intended to ensure that Seller or the SPV,
as applicable, will receive the type of assets that it has bargained to
purchase.  Seller believes that such
representations, warranties, covenants and indemnities do not cause Originator
or Seller, as applicable, to retain or assume the risk of nonpayment or other
material financial risks of the Receivables based in part on the belief that
the matters covered are within Originator’s or Seller’s control, are unlikely
to occur, or both.  The representations,
warranties and covenants are not intended to cover material liabilities that
are reasonably likely to occur.


 


13.      There are no agreements or
understandings between the SPV or Seller or any of Seller’s other affiliates
that are relevant to the Transactions other than the Agreements and any other
agreements and understandings specifically referenced in the Agreements.  In particular, there are no other agreements
or understandings pursuant to which Seller or another of its other affiliates (a) is
responsible for maintaining Seller’s or the SPV’s solvency or (b) provides
recourse, guarantees or otherwise retains or assumes financial risks with
respect to the Receivables.


 


Relationship
Between Seller and the SPV


 


14.      The SPV is a wholly-owned
subsidiary of Seller and was formed for the special purpose of consummating the
Transactions.


 


6

















 


15.      Seller intends to act in a
manner that is consistent with the SPV’s separate and distinct existence and
will correct any known misunderstanding regarding its status as a separate
entity.


 


16.      Seller prepares and
maintains separate corporate and financial records from the SPV that accurately
reflect its assets, liabilities and financial affairs.  Seller believes that its assets and
liabilities can be readily and inexpensively segregated, ascertained and
identified separate from those of the SPV. 
All transactions between Seller and the SPV, including monetary
transactions, are and will be properly reflected in Seller’s books and records
and Seller believes that each transaction will be on terms and conditions
consistent with those of an arm’s length transaction.


 


17.      Seller believes the
consolidation of Seller’s and the SPV’s business operations would not result in
any significant cost savings or in a significantly greater efficiency or
profitability of such combined business operation.


 


18.      Seller and the SPV do not
intend to commingle their assets and liabilities, except that Seller, as
Servicer of the Receivables: (a) may temporarily commingle collections
pending identification and transfer to a collection account for the
Transactions; and (b) will retain books and records pertaining to the
Receivables.  Seller does not maintain
joint bank accounts or other the SPV accounts to which the SPV has independent
access.


 


19.      An integration of business
functions between Seller and the SPV, if any, exists only to the extent
summarized in this paragraph.  The SPV is
operated for the exclusive purpose of purchasing Receivables from Seller.  The SPV will have no employees, and the SPV’s
day-to-day business operations with respect to the Receivables will be
conducted through Seller, in its capacity as Servicer, pursuant to the Transfer
and Administration Agreement and that under that agreement, Seller has limited
rights, in its capacity as Servicer, to enter into modifications of Receivables
on behalf of the SPV, and Seller is generally not permitted to resign as
Servicer.  Seller and the SPV may share
some expenses, but these are not expected to be material and, in any event,
will be allocated between the entities on a basis reasonably related to the
cost of the services involved and each entity’s actual use of such
services.  Obligors on the Receivables
transferred to the SPV will not be notified that their Receivables have been
transferred to the SPV.


 


20.      The SPV is held out to the
public as a separate entity apart from Seller, including as described under Part I:
Description of the Transactions in the Opinion.


 


21.      Seller maintains its own
stationery and other business forms separate from the SPV’s and conducts
business in its own name (including, without limitation, its contracts and
written communications).


 


22.      Seller adheres in all
material respects to corporate formalities in all transfers of assets and other
transactions between Seller and the SPV. 
In general, Seller observes appropriate corporate formalities under
applicable law.


 


7

















 


23.      Seller does not currently,
and does not intend to, guaranty, and is not otherwise obligated to repay, the
SPV’s liabilities.


 


24.      At closing, Seller will: (a) be
solvent; (b) be adequately capitalized to conduct its business and affairs
as a going concern, considering the size and nature of its business and
intended purposes and taking into account pending and threatened claims; and (c) intends
to, and believes that it will be able to, pay its debts as they mature.  As a result, Seller is intended to (and is
reasonably believed to) be able to survive as a stand-alone entity.


 


25.      Seller does not pay the SPV’s
expenses, except as specifically provided in the Agreements.  Any allocations of direct, indirect or
overhead expenses for items shared between Seller and the SPV are made among
such entities to the extent practical on the basis of actual use or value of
services rendered and otherwise on a basis reasonably related to actual use or
the value of services rendered.


 


26.      Seller has not held itself
out, nor does it intend to do so in the future, as responsible for the SPV’s debts.


 


8

















 


SPV—Disclosure
Representations and Covenants


 


Disclosure of the Transactions


 


1.        The transactions referred
to in the Opinion (the “Transactions”) have been or will be publicly
disclosed by the SPV as follows: (a) the Transactions will be addressed in
notes relating to Performance Guarantor’s securitization activities in its
financial statements (on which the SPV is consolidated) and (b) UCC
financing statements will be filed to perfect the transfer (the “Transfer”)
of receivables (the “Receivables”) by the Originator to United
Stationers Financial Services LLC (“Seller”) pursuant to the receivables
sale agreement referred to in the Opinion (the “Receivables Sale Agreement”)
and subsequently the Receivables together with a portfolio of additional
receivables previously acquired by Seller (the “Receivables”) by Seller
to the SPV pursuant to the receivables purchase agreement referred to in the
Opinion (the “Receivables Purchase Agreement”).


 


2.        The SPV will not conceal
any transfers contemplated by the agreements referred to on Schedule II
to the Opinion (the “Agreements”) from any interested party.  Although obligors on the Receivables will not
be affirmatively informed of the transfers of their obligations, the SPV will
not conceal those transfers from any obligor that inquires.  Also, (other than certain rebates and
allowances in respect of Receivables) the obligors are not expected to be
material creditors of the SPV.


 


Terms of the Transactions


 


3.        In connection with the
Transactions: (a) the Investors rely on the Receivables and the other
assets of the SPV in making their investment decision and will rely on the
Transfers being characterized as true sales, so as to isolate the Receivables
from Performance Guarantor’s, Originator’s and Seller’s creditors.


 


4.        The terms of the
transactions between the SPV and each of Performance Guarantor, Originator and
Seller are (a) consistent with those of arm’s-length relationships and (b) fair
and equitable to each of the parties.


 


5.        The SPV intends the
Transfer to be a true sale by Seller to the SPV that is absolute and
irrevocable and that provides the SPV with the full benefits of ownership of
the Receivables.  The SPV will receive
the conveyance of the Receivables from Seller without recourse for bad debt or
uncollectibility of the Receivables and without any warranty of collectibility
or any unconventional warranty.


 


6.        The consideration received
by Seller in the Transfer is the fair market value of the Receivables.


 


7.        The SPV purchases the
Receivables in good faith without knowledge of any adverse claim against,
interest in, lien on, or defense to payment of, such assets (other than any
adverse claim arising solely as a result of any action taken by the SPV under
the Agreements).


 


9

















 


8.        Seller’s representations,
warranties, covenants and indemnities in the Receivables Purchase Agreement
with respect to the Receivables (a) cover matters ascertainable by Seller
in the ordinary course of business and (b) are intended to ensure that the
SPV will receive the type of assets that it has bargained to purchase.  Such representations, warranties, covenants
and indemnities do not cause Seller to retain or assume the risk of nonpayment
or other material financial risks of the Receivables.


 


9.        There are no agreements or
understandings between the SPV and Seller or any of Seller’s other affiliates
that are relevant to the Transactions other than the Agreements and any other
agreements and understandings specifically referenced in the Agreements.  In particular, there are no other agreements
or understandings pursuant to which Originator or another of its other
affiliates (a) is responsible for maintaining the SPV’s solvency or (b) provides
recourse, guarantees or otherwise retains or assumes financial risks with
respect to the Receivables.


 


Relationship
Between the SPV and Performance Guarantor, Originator and Seller


 


10.      The SPV is a wholly-owned
subsidiary of Seller and was formed for the special purpose of consummating the
Transactions and other similar transactions with respect to Seller’s
Receivables.  The SPV will comply with
all separateness covenants contained in the applicable Agreements, or in the
SPV’s limited liability company agreement.


 


11.      The SPV intends to act in a
manner that is consistent with the SPV’s separate and distinct existence and
will correct any known misunderstanding regarding its status as a separate
entity.


 


12.      The SPV prepares and
maintains separate corporate and financial records (which will be subject to
audit by independent public accountants) from Originator and Seller that
accurately reflect its assets, liabilities and financial affairs.  The SPV believes that its assets and
liabilities can be readily and inexpensively segregated, ascertained and
identified separate from those of Performance Guarantor, Originator and
Seller.  All transactions between the SPV
on the one hand and Performance Guarantor, Originator or Seller on the other
hand, including monetary transactions, are and will be properly reflected in
the SPV’s books and records and the SPV believes that each will be on terms and
conditions consistent with those of an arm’s length transaction.


 


13.      The consolidation of each of
Performance Guarantor’s, Originator’s or Seller’s and the SPV’s business
operations would not result in any significant cost savings or in a
significantly greater efficiency or profitability of such combined business
operation.


 


14.      The SPV and each of
Performance Guarantor, Originator and Seller will not commingle their assets
and liabilities, except that Seller, as Servicer of the Receivables: (a) may
temporarily commingle collections pending identification and transfer to a
collection account for the Transactions; and (b) will retain books and
records pertaining to the Receivables. 
The SPV does not otherwise maintain joint bank accounts or other the SPV
accounts to which either of Originator or Seller has independent access.


 


10

















 


15.      An integration of business
functions between any of Performance Guarantor, Originator or Seller and the
SPV, if any, exists only to the extent summarized in this paragraph.  The SPV is operated for the exclusive purpose
of purchasing Receivables from Seller. 
The SPV will have no employees, and the SPV’s day-to-day business
operations with respect to the Receivables will be conducted through Seller, in
its capacity as Servicer, pursuant to the Transfer and Administration
Agreement.  Under that agreement, Seller
has limited rights, in its capacity as Servicer, to enter into modifications of
Receivables on behalf of the SPV, and Seller is generally not permitted to
resign as Servicer.  Each of Performance
Guarantor, Originator, Seller and the SPV may share some expenses not reflected
in Servicer’s fees, but these are not expected to be material and, in any
event, will be allocated between the entities on a basis reasonably related to
the cost of the services involved and each entity’s actual use of such
services.  Obligors on the Receivables
transferred to the SPV will not be notified that their Receivables have been
transferred to the SPV.


 


16.      The SPV is held out to the
public as a separate entity apart from each of Originator and Seller, including
as described under Part I: Description of the Transactions in the Opinion.


 


17.      The SPV maintains its own
stationery and other business forms separate from Originator’s and conducts
business in its own name (including, without limitation, its contracts and
written communications).


 


18.      The SPV has its own office,
which is located in premises that are primarily occupied by Originator but is
separately demarcated and identified.


 


19.      The SPV will adhere in all
material respects to corporate formalities in all transfers of assets and other
transactions between the SPV and each of Originator and Seller.  In general, the SPV observes appropriate
limited liability company formalities under applicable law.


 


20.      The SPV will not guaranty,
or otherwise become obligated to repay, either Originator’s or Seller’s
liabilities, except to the extent that the SPV’s indemnities in the Agreements
may be considered guaranties.  To the
extent that those indemnities cover either Originator’s or Seller’s actions or
failures to act, the SPV considers the likelihood that the SPV will incur
liabilities under those indemnities to be remote and immaterial.


 


21.      At closing, the SPV will: (a) be
solvent; (b) be adequately capitalized to conduct its business and affairs
as a going concern, considering the size and nature of its business and
intended purposes and taking into account pending and threatened claims; and (c) intends
to, and believes that it will be able to, pay its debts as they mature.  As a result, the SPV is intended to (and is
reasonably believed to) be able to survive as a stand-alone entity.


 


22.      None of Performance
Guarantor, Originator nor Seller pays the SPV’s expenses, except as
specifically provided in the Agreements. 
Any allocations of direct, indirect or overhead expenses for items
shared between the SPV and Performance Guarantor, 


 


11

















 


Originator or Seller, which are
not expected to be material, are made among such entities to the extent
practical on the basis of actual use or value of services rendered and
otherwise on a basis reasonably related to actual use or the value of services
rendered.


 


23.      The SPV has not held itself
out, nor does it intend to do so in the future, as responsible for either
Performance Guarantor’s, Originator’s or Seller’s debts.


 


12

















 


SCHEDULE 6.3


 


(Financial Covenants)


 


Section 6.3 of this Agreement shall be
read in its entirety as follows:


 


Section 6.3             Financial
Covenants.  (a)  During the term
of this Agreement, unless the Agent shall otherwise consent in writing:


 


(i)  Leverage
Ratio.  The Performance Guarantor and
the Originator will not permit the ratio (the “Leverage Ratio”), determined as
of the end of each of its fiscal quarters, of (i) Consolidated Funded
Indebtedness to (ii) Consolidated EBITDA for the then most-recently ended
four fiscal quarters to be greater than 3.25 to 1.00.  The Leverage Ratio shall be calculated as of
the last day of each fiscal quarter of the Performance Guarantor based upon (a) for
Consolidated Funded Indebtedness, Consolidated Funded Indebtedness as of the
last day of each such fiscal quarter and (b) for Consolidated EBITDA, the
actual amount as of the last day of each fiscal quarter for the most recently
ended four consecutive fiscal quarters; provided that the Leverage Ratio shall
be calculated, with respect to Permitted Acquisitions, on a pro forma basis
reasonably satisfactory to the Agent, broken down by fiscal quarter in the
Performance Guarantor’s reasonable judgment;


 


(ii)           Minimum Consolidated
Net Worth.  The Performance Guarantor
and the Originator will at all times maintain positive Consolidated Net Worth
which shall not be less than (i) $550,000,000 minus (ii) amounts
expended by Performance Guarantor on or after July 1, 2007 in connection
with repurchases or redemptions of its capital stock under Section 6.10 in
the Revolving Credit Agreement plus (iii) 50% of Consolidated Net Income
(if positive) earned in each fiscal quarter beginning with the fiscal quarter
ending June 30, 2007, plus (iv) 50% of the net cash proceeds
resulting from issuances of the Performance Guarantor’s or any Subsidiary’s
capital stock from and after the Restatement Effective Date; and


 


(iii)          Capital Expenditures.  The Performance Guarantor and the Originator
will not, nor will they permit any Subsidiary to expend, for Consolidated
Capital Expenditures in the acquisition of fixed assets in any fiscal year in
the aggregate for the Performance Guarantor and its Subsidiaries, in excess of (i) $75,000,000
for the period from January 1, 2007 through December 31, 2007; and (ii) $75,000,000
for the period from January 1 through December 31 for each fiscal
year thereafter, plus any amount permitted to be expended in the immediately
preceding fiscal year (pursuant to the absolute dollar limitation for such
preceding fiscal year and not pursuant to any carryover provision from a prior
fiscal year) but not expended.


 


(b)           As used in this Section 6.3,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):


 


Acquisition: 
Any transaction, or any series of related transactions, consummated on
or after the Restatement Effective Date, by which the Performance Guarantor or
any of its


 


1
















 


Subsidiaries (i) acquires
any going concern business or all or substantially all of the assets of any
Person, or division thereof, whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires from one or more Persons
(in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the happening of a
contingency) or a majority (by percentage of voting power) of the outstanding
ownership interests of any Person.


 


Affiliate: 
With respect to any Person, any other Person directly or indirectly
controlling, controlled by or under common control with such Person.


 


Aggregate Commitment:  The aggregate of the Commitments of all the
Lenders, as increased or reduced from time to time pursuant to the terms
hereof.  The initial Aggregate Commitment
is Four Hundred Twenty-Five Million and 00/100 Dollars ($425,000,000).


 


Agreement Accounting Principles:  Generally accepted accounting principles as
in effect in the United States from time to time.


 


Assignment Agreement:  As defined in Section 12.3.1 of
the Revolving Credit Agreement.


 


Capital Expenditures:  Without duplication, any expenditures for any
purchase or other acquisition of any asset which would be classified as a fixed
or capital asset on a consolidated balance sheet of the Performance Guarantor
and its Subsidiaries prepared in accordance with Agreement Accounting
Principles, excluding (i) expenditures of insurance proceeds to rebuild or
replace any asset after a casualty loss, (ii) leasehold improvement
expenditures for which the Performance Guarantor or a Subsidiary is reimbursed
by the lessor, sublessor or sublessee, (iii) expenditures of net cash
proceeds of any asset sale permitted under Section 6.12 in the
Revolving Credit Agreement, and (iv) with respect to any Permitted
Acquisition, (a) the Purchase Price thereof and (b) any Capital
Expenditures expended by the seller or entity to be acquired in any Permitted
Acquisition prior to the date of such Permitted Acquisition.


 


Capitalized Lease:  With respect to any Person, any lease of
Property by such Person as lessee which would be capitalized on a balance sheet
of such Person prepared in accordance with Agreement Accounting Principles.


 


Capitalized Lease Obligations:  With respect to any Person, the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.


 


Commitment: 
For each Lender, including, without limitation, each LC Issuer, such
Lender’s obligation to make Loans to, and participate in Facility LCs issued
upon the application of, and each LC Issuer’s obligation to issue Facility LCs
for the account of, the Originator in an aggregate amount not exceeding the
amount set forth for such Lender on the Commitment Schedule or in an Assignment
Agreement delivered pursuant to Section 12.3 in the Revolving
Credit Agreement, as such amount may be modified from time to time pursuant to
the terms thereof.


 


2

















 


Commitment Schedule:  The Schedule identifying each Lender’s
Commitment as of the Restatement Effective Date attached hereto and identified
as such.


 


Consolidated Capital Expenditures:  With reference to any period, the Capital
Expenditures of the Performance Guarantor and its Subsidiaries calculated on a
consolidated basis for such period.


 


Consolidated EBITDA:  With respect to any period, Consolidated Net
Income for such period plus, to the extent deducted from revenues in
determining Consolidated Net Income for such period, (i) Consolidated
Interest Expense, (ii) expense for taxes paid or accrued, (iii) depreciation,
(iv) amortization, (v) losses attributable to equity in Affiliates, (vi) non-cash
charges related to employee compensation and (vii) any extraordinary
non-cash or nonrecurring non-cash charges or losses, minus, to the extent
included in Consolidated Net Income for such period, any extraordinary non-cash
or nonrecurring non-cash gains, all calculated for the Performance Guarantor
and its Subsidiaries on a consolidated basis.


 


Consolidated Funded Indebtedness: At any time,
with respect to any Person, without duplication, the sum of (i) the
aggregate dollar amount of Consolidated Indebtedness for borrowed money owing
by such Person or for which such Person is liable which has actually been
funded and is outstanding at such time, whether or not such amount is due or
payable at such time (other than obligations in respect of Rate Management
Transactions), plus (ii) the aggregate undrawn amount of all standby
Letters of Credit at such time for which such Person or any of its Subsidiaries
is the account party or is otherwise liable (other than standby Letters of
Credit in an amount up to $10,000,000 issued to support worker’s compensation
obligations of the Credit Parties and other than Letters of Credit supporting
any other component of this definition), plus (iii) the aggregate
principal component of Capitalized Lease Obligations owing by such Person and
its Subsidiaries on a consolidated basis or for which such Person or any of its
Subsidiaries is otherwise liable, plus (iv) all Off-Balance Sheet
Liabilities of such Person and its Subsidiaries on a consolidated basis, plus (v) all
Disqualified Stock of such Person and its Subsidiaries on a consolidated basis.


 


Consolidated Indebtedness:  At any time, with respect to any Person, the
Indebtedness of such Person and its Subsidiaries calculated on a consolidated
basis as of such time.


 


Consolidated Interest Expense:  With reference to any period, the interest
expense of the Performance Guarantor and its Subsidiaries calculated on a
consolidated basis for such period (net of interest income), including, without
limitation, yield or any other financing costs resembling interest which are
payable under any Receivables Purchase Facility.


 


Consolidated Net Income:  With reference to any period, the net income
(or loss) of the Performance Guarantor and its Subsidiaries calculated on a
consolidated basis for such period and on a FIFO basis of inventory valuation.


 


Consolidated Net Worth:  At any time, with respect to any Person, the
consolidated stockholders’ equity of such Person and its Subsidiaries
calculated on a consolidated basis and on a FIFO basis of inventory valuation
as of such time.


 


3

















 


Contingent Obligation:  With respect to any Person, any agreement,
undertaking or arrangement by which such Person assumes, guarantees, endorses,
contingently agrees to purchase or provide funds for the payment of, or
otherwise becomes or is contingently liable upon, the obligation or liability
of any other Person, or agrees to maintain the net worth or working capital or
other financial condition of any other Person, or otherwise assures any
creditor of such other Person against loss, including, without limitation, any
comfort letter, operating agreement, take or pay contract or the obligations of
any such Person as general partner of a partnership with respect to the
liabilities of the partnership unless the underlying obligation is expressly
made non-recourse to such general partner; provided, however, that the term
Contingent Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business.  The amount of any Contingent Obligation shall
be deemed to be an amount equal to the lesser of (a) an amount equal to
the stated or determinable amount of the primary obligation in respect of which
such Contingent Obligation is made and (b) the maximum amount for which
such guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Contingent Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of the Contingent Obligation shall be
such guaranteeing person’s reasonably anticipated liability in respect thereof
as determined by such Person in good faith.


 


Credit Party: 
Collectively, the Performance Guarantor, the Originator and each of the
Guarantors.


 


Disqualified Stock:  Any preferred or other capital stock that, by
its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the holder thereof, in whole or in part, on or
prior to the date that is ninety-one (91) days after the Facility Termination
Date.


 


Domestic Subsidiary:  Any Subsidiary of any Person that is not a
Foreign Subsidiary.


 


Facility LC: 
As defined in Section 2.20.1 of the Revolving Credit
Agreement.


 


Facility Termination Date:  The earlier of (a) July 5, 2012 and
(b) the date of termination in whole of the Aggregate Commitment pursuant
to Section 2.5 of the Revolving Credit Agreement or the Commitments
pursuant to Section 8.1 of the Revolving Credit Agreement.


 


Foreign Subsidiary:  (i) Any Subsidiary of any Person that is
not organized under the laws of a jurisdiction located in the United States of
America and (ii) any Subsidiary of a Person described in clause (i) hereof
that is organized under the laws of a jurisdiction located in the United States
of America.


 


Guarantor: 
Each of the Performance Guarantor’s Domestic Subsidiaries (other than
the Originator and any SPV) and all other Subsidiaries of the Performance
Guarantor which become Guarantors in satisfaction of the provisions of Section 6.23
in the Revolving Credit Agreement, in each case, together with their respective
permitted successors and assigns.


 


4

















 


Indebtedness: 
With respect to any Person, at any time, without duplication, such
Person’s (i) obligations for borrowed money which in accordance with
Agreement Accounting Principles would be shown as a liability on the
consolidated balance sheet of such Person, (ii) obligations representing
the deferred purchase price of Property or services (other than current
accounts payable arising in the ordinary course of such Person’s business
payable on terms customary in the trade and accrued expenses in connection with
the provision of services incurred in the ordinary course of such Person’s
business), (iii) Indebtedness of others, whether or not assumed, secured
by Liens or payable out of the proceeds or production from Property now or
hereafter owned or acquired by such Person (provided that the amount of any
such Indebtedness at any time shall be deemed to be the lesser of (a) such
Indebtedness at such time and (b) the fair market value of such Property,
as determined by such Person in good faith at such time), (iv) financial
obligations which are evidenced by notes, bonds, debentures, acceptances, or
other instruments, (v) obligations to purchase securities or other
Property arising out of or in connection with the sale of the same or
substantially similar securities or Property, (vi) Capitalized Lease
Obligations, (vii) Contingent Obligations of such Person in respect of any
Indebtedness, (viii) reimbursement obligations under Letters of Credit,
bankers’ acceptances, surety bonds and similar instruments, (ix) Off-Balance
Sheet Liabilities, (x) Net Mark-to-Market Exposure under Rate Management
Transactions and (xi) Disqualified Stock.


 


JPMorgan Chase:  JPMorgan Chase Bank, National Association, in
its individual capacity, and its successors.


 


LC Issuer: 
JPMorgan Chase (or any Subsidiary or Affiliate of JPMorgan Chase
designated by JPMorgan Chase) or any of the other Lenders, as applicable, in
its respective capacity as issuer of Facility LCs hereunder.


 


Lenders: 
The lending institutions listed on the signature pages of the
Revolving Credit Agreement and their respective successors and assigns.  Unless otherwise specified, the term “Lenders”
includes the Swing Line Lender and the LC Issuers.


 


Letter of Credit:  With respect to any Person, a letter of
credit or similar instrument which is issued upon the application of such
Person or upon which such Person is an account party or, without duplication,
for which such Person has a reimbursement obligation.


 


Lien: Any lien (statutory or other), mortgage,
pledge, hypothecation, assignment, deposit arrangement, encumbrance or
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever (including, without limitation, the interest of a
vendor or lessor under any conditional sale, Capitalized Lease or other title
retention agreement).


 


Net Mark-to-Market Exposure:  With respect to any Person, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Rate Management Transactions.  “Unrealized losses” means the fair market
value of the cost to such Person of replacing such Rate Management Transaction
as of the date of determination (assuming the Rate Management Transaction were
to be terminated as of that date), and “unrealized profits” means the fair
market value of the gain to such Person of replacing such Rate Management
Transaction as of the date of determination (assuming such Rate Management
Transaction were to be terminated as of that date).


 


5

















 


Off-Balance Sheet Liability:  With respect to any Person, without
duplication, the principal component of (i) any Receivables Purchase
Facility or any other repurchase obligation or liability of such Person with
respect to accounts or notes receivable sold by such Person (other than the
sale or disposition in the ordinary course of business of accounts or notes
receivable in connection with the compromise or collection thereof consistent
with customary industry practice (and not as part of any bulk sale or financing
of receivables)) or (ii) any liability under any so-called “synthetic
lease” or “tax ownership operating lease” transaction entered into by such Person;
provided that “Off-Balance Sheet Liabilities” shall not include the principal
component of the foregoing if such principal component (a) is otherwise
reflected as a liability on such Person’s consolidated balance sheet or (b) is
deducted from revenues in determining such Person’s consolidated net income but
is not thereafter added back in calculating such Person’s Consolidated EBITDA.


 


Permitted Acquisition:  As defined in Section 6.13.5 of
the Revolving Credit Agreement.


 


Person: 
Any natural person, corporation, firm, joint venture, partnership,
limited liability company, association, enterprise, trust or other entity or
organization, or any government or political subdivision or any agency,
department or instrumentality thereof.


 


Property: 
With respect to any Person, any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets
owned, leased or operated by such Person.


 


Purchase Price:  The total consideration and other amounts
payable in connection with any Acquisition, including, without limitation, any
portion of the consideration payable in cash, all Indebtedness incurred or
assumed in connection with such Acquisition, but exclusive of the value of any
capital stock or other equity interests of the Performance Guarantor, the
Originator or any Subsidiary issued as consideration for such Acquisition.


 


Rate Management Transaction: Any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into by the Performance Guarantor, the Originator or a Subsidiary which is a
rate swap, basis swap, forward rate transaction, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
forward transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction (including any
option with respect to any of these transactions) or any combination thereof,
whether linked to one or more interest rates, foreign currencies, commodity
prices or equity prices.


 


Receivables Purchase Documents:  Any series of receivables purchase or sale
agreements, servicing agreements and other related agreements generally
consistent with terms contained in comparable structured finance transactions
pursuant to which the Performance Guarantor, the Originator or any of its
Subsidiaries, in their respective capacities as sellers or transferors of any
receivables, sell or transfer, directly or indirectly, to SPVs all of their
respective right, title and interest in and to (but not their obligations
under) certain receivables for further sale or transfer (or granting of Liens
to other purchasers of or investors in such assets or interests therein (and
the other documents, instruments and agreements executed in connection 


 


6

















 


therewith)),
as any such agreements may be as amended, modified, supplemented, restated or
replaced from time to time therefor.


 


Receivables Purchase Facility:  Any securitization facility made available to
the Performance Guarantor, the Originator or any of its Subsidiaries, pursuant
to which receivables of the Performance Guarantor, the Originator or any of its
Subsidiaries are transferred, directly or indirectly, to one or more SPVs, and
thereafter to certain investors, pursuant to the terms and conditions of the
Receivables Purchase Documents.


 


Restatement Effective Date: July 5, 2007.


 


Revolving Credit Agreement: The Second Amended
and Restated Five-Year Revolving Credit Agreement, dated July 5, 2007, by
and among the Originator, the Performance Guarantor, the Lenders from time to
time parties thereto, PNC Bank, National Association, U.S. Bank National
Association, KeyBank National Association, LaSalle Bank, National Association
and JPMorgan Chase Bank, National Association as such agreement exists as of
the Closing Date without giving effect to any amendment, modification, waiver,
replacement or supplement thereto that is not consented to in writing by each Class Agent.


 


SPV: 
Any special purpose entity established for the purpose of purchasing
receivables in connection with a receivables securitization transaction
permitted under the terms of the Revolving Credit Agreement.


 


Subsidiary: 
With respect to any Person, (i) any corporation more than 50% of
the outstanding securities having ordinary voting power of which shall at the
time be owned or controlled, directly or indirectly, by such Person or by one
or more of its Subsidiaries or by such Person and one or more of its
Subsidiaries, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization more than 50% of
the ownership interests having ordinary voting power of which shall at the time
be so owned or controlled.  Unless
otherwise expressly provided, all references herein to a “Subsidiary” shall
mean a Subsidiary of the Performance Guarantor.


 


Swing Line Lender: JPMorgan Chase or such
other Lender which may succeed to its rights and obligations as Swing Line
Lender pursuant to the terms of the Revolving Credit Agreement.


 


7

















 


SCHEDULE 11.3


 


Address and Payment Information


 


If to the Conduit Investors:


 


(a) If to ENTERPRISE FUNDING:


 


	
   

  	
  Enterprise
  Funding Company LLC

  
	
   

  	
  c/o Global
  Securitization Services, LLC

  
	
   

  	
  68 South
  Service Road, Suite 120

  
	
   

  	
  Melville,
  New York 11747

  
	
   

  	
  Telephone:

  	
  (631)
  587-4700

  
	
   

  	
  Facsimile:

  	
  (212)
  302-8767

  



 


(with a copy to the related Class Agent)


 


Payment Information:


 


	
   

  	
  Bank:

  	
  Deutsche
  Bank (New York, NY)

  
	
   

  	
  Benf:

  	
  DTBCA as
  Agent for Enterprise Funding

  
	
   

  	
  ABA:

  	
  021 001
  033

  
	
   

  	
  A/C #:

  	
  01 476 289

  
	
   

  	
  Ref:

  	
  Client
  Name / Wire Description

  
	
   

  	
  Attn:

  	
  Orinthia
  Skeete

  



 


(b) If to MARKET STREET:


 


	
   

  	
  Market Street Funding LLC

  
	
   

  	
  c/o AMACAR
  Group, L.L.C.

  
	
   

  	
  6525 Morrison Boulevard, Suite 318

  
	
   

  	
  Charlotte, North Carolina 28211

  
	
   

  	
  Attention:

  	
  Doris Hearn

  
	
   

  	
  Telephone:

  	
  (704) 365-0569

  
	
   

  	
  Facsimile:

  	
  (704) 365-1362

  



 


(with a copy to the related Class Agent)


 


Payment
Information:


 


	
   

  	
  Bank:

  	
  PNC Bank,
  National Association

  
	
   

  	
  ABA:

  	
  043000096

  
	
   

  	
  Credit:

  	
   Market
  Street Funding LLC

  
	
   

  	
  A/C #:

  	
  1002422076

  
	
   

  	
  Ref:

  	
  United
  Stationers Receivables LLC

  



 


1

















 


If to
the SPV:


 


	
   

  	
  United Stationers Receivables,
  LLC

  
	
   

  	
  One Parkway North Boulevard

  
	
   

  	
  Deerfield, Illinois 60015-2559

  
	
   

  	
  Telephone:

  	
  (847) 627-7000

  
	
   

  	
  Facsimile:

  	
  (847) 627-7001

  



 


Payment
Information:


 


	
   

  	
  The Northern Trust Company

  
	
   

  	
  ABA 071-000-152

  
	
   

  	
  Account 3510068

  
	
   

  	
  Re: Credit United Stationers
  Receivables, LLC

  



 


If to
the Originator:


 


	
   

  	
  United Stationers Supply Co.

  
	
   

  	
  One Parkway North Boulevard

  
	
   

  	
  Deerfield, Illinois 60015-2559

  
	
   

  	
  Telephone:

  	
  (847) 627-7000

  
	
   

  	
  Facsimile:

  	
  (847) 627-7001

  



 


If to
the Seller or Servicer:


 


	
   

  	
  United Stationers Financial
  Services, LLC

  
	
   

  	
  One Parkway North Boulevard

  
	
   

  	
  Deerfield, Illinois 60015-2559

  
	
   

  	
  Telephone:

  	
  (847) 627-7000

  
	
   

  	
  Facsimile:

  	
  (847) 627-7001

  



 


If to
the Agent:


 


	
   

  	
  Bank of America, National
  Association,

  
	
   

  	
  as Agent

  
	
   

  	
  Bank of America Hearst Tower,
  19th Floor

  
	
   

  	
  Charlotte, North Carolina  28255

  
	
   

  	
  Attention:

  	
  Banc of America Securities, LLC
  Global Asset Backed Securitization Group; Portfolio Management

  
	
   

  	
  Telephone:

  	
  704/386-7922

  
	
   

  	
  Facsimile:

  	
  704/388-9169

  



 


2

















 


Payment
Information:


 


	
   

  	
  Bank of America

  
	
   

  	
  ABA: 026009593

  
	
   

  	
  Account #: 109360 0656600

  
	
   

  	
  Ref: United Stationers —
  Closing Fees

  
	
   

  	
  Attn: Sean Walsh

  



 


3
















 


Exhibit A


 


Form of Assignment and
Assumption Agreement


 


Reference is
made to the Transfer and Administration Agreement dated as of March 3,
2009 as it may be amended, modified, supplemented, restated or replaced from
time to time (as so amended or modified, the “Agreement”) by and among United Stationers Receivables,
LLC, an Illinois limited liability company (the “SPV”), United Stationers Supply Co., an Illinois
corporation (the “Originator”),
United Stationers Financial Services LLC, an Illinois limited liability company
(the “Seller”) and as Servicer, Enterprise
Funding Company LLC, a Delaware limited liability company (“Enterprise Funding”), as a Conduit
Investor, Market Street Funding, LLC, a Delaware limited liability company (“Market Street”, each of Enterprise
Funding and Market Street a “Conduit Investor” and, collectively, the “Conduit
Investors”), Bank of America, National Association, a national banking
association (“Bank of America”),
as Agent, as a Class Agent and as an Alternate Investor, PNC Bank,
National Association (“PNC Bank”),
as a Class Agent and as an Alternate Investor, and the financial
institutions from time to time parties hereto as Alternate Investors.  Terms defined in the Agreement are used
herein with the same meaning.


 


[                                      ]
(the “Assignor”) and [                                          ]
(the “Assignee”) agree as
follows:


 


1.             The Assignor hereby sells and
assigns to the Assignee, without recourse and without representation and
warranty, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to all of the Assignor’s rights and obligations under the
Agreement and the other Transaction Documents. 
Such interest expressed as a percentage of all rights and obligations of
the Alternate Investors, shall be equal to the percentage equivalent of a
fraction the numerator of which is $[                ]
and the denominator of which is the Facility Limit.  After giving effect to such sale and
assignment, the Assignee’s Commitment will be as set forth on the signature page hereto.


 


2.             [In consideration of the payment of
$[                      ],
being [      ]% of the existing Net Investment,
and of $[                      ],
being [      ]% of the aggregate unpaid accrued
Discount, receipt of which payment is hereby acknowledged, the Assignor hereby
assigns to the Agent for the account of the Assignee, and the Assignee hereby
purchases from the Assignor, a [      ]% interest
in and to all of the Assignor’s right, title and interest in and to the Net
Investment purchased by the undersigned on [                                ],
[20][    ] under the Agreement.]


 


3.             The Assignor (i) represents
and warrants that it is the legal and beneficial owner of the interest being
assigned by it hereunder and that such interest is free and clear of any
Adverse Claim; (ii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Agreement, any other Transaction Document or
any other instrument or document furnished pursuant thereto or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Agreement or the Receivables, any other Transaction Document or any other
instrument or document furnished pursuant thereto; and (iii) makes no
representation or warranty 


 


A - 1

















 


and assumes no responsibility with respect to the financial condition
of any of the SPV or the Servicer or the Originator or the performance or
observance by any of the SPV or the Servicer or the Originator of any of its
obligations under the Agreement, any other Transaction Document, or any
instrument or document furnished pursuant thereto.


 


4.             The Assignee (i) confirms that
it has received a copy of the Agreement, the First Tier Agreement and the
Second Tier Agreement together with copies of the financial statements referred
to in Section [    ] of the Agreement, to the extent
delivered through the date of this Assignment and Assumption Agreement (the “Assignment”), and such other documents
and information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment; (ii) agrees that it will,
independently and without reliance upon the Agent, any of its Affiliates, the
Assignor or any other Alternate Investor and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Agreement and any
other Transaction Document; (iii) appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under the Agreement and the other Transaction Documents as are delegated
to the Agent by the terms thereof, together with such powers and discretion as
are reasonably incidental thereto; (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Agreement are required to be performed by it as an Alternate Investor; and (v) specifies
as its address for notices and its account for payments the office and account
set forth beneath its name on the signature pages hereof[; and (vi) attaches
the forms prescribed by the Internal Revenue Service of the United States of
America certifying as to the Assignee’s status for purposes of determining
exemption from United States withholding taxes with respect to all payments to
be made to the Assignee under the Agreement or such other documents as are
necessary to indicate that all such payments are subject to such rates at a
rate reduced by an applicable tax treaty]. 
[To be included if the Assignee is
organized under the laws of a jurisdiction outside the United States]


 


5.             The effective date for this
Assignment shall be the later of (i) the date on which the Agent receives
this Assignment executed by the parties hereto and receives the consent of [the
SPV] and the Class Agents, on behalf of the Conduit Investors, and (ii) the
date of this Assignment (the “Effective
Date”).  Following the
execution of this Assignment and the consent of [the SPV and] the Class Agents,
on behalf of the Conduit Investors, this Assignment will be delivered to the
Agent for acceptance and recording.


 


6.             Upon such acceptance and recording,
as of the Effective Date, (i) the Assignee shall be a party to the
Agreement and, to the extent provided in this Assignment, have the rights and
obligations of an Alternate Investor thereunder and (ii) the Assignor
shall, to the extent provided in this Assignment, relinquish its rights and be
released from its obligations under the Agreement.


 


7.             Upon such acceptance and recording,
from and after the Effective Date, the Agent shall make all payments under the
Agreement in respect of the interest assigned hereby (including, without
limitation, all payments in respect of such interest in Net Investment,
Discount and fees) to the Assignee.  The
Assignor and Assignee shall make all appropriate adjustments in payments under
the Agreement for periods prior to the Effective Date directly between
themselves.


 


A - 2

















 


8.             The Assignee shall not be required
to fund hereunder an aggregate amount at any time outstanding in excess of $[                      ]
[This should match the commitment amount for
this Alternate Investor], minus the aggregate outstanding
amount of any interest funded by the Assignee in its capacity as a participant
under the Liquidity Provider Agreement.


 


9.             The Assignor agrees to pay the
Assignee its pro  rata share of fees
in an amount equal to the product of (a) [          ]
per  annum and (b) the [Commitment] [Should match fees in Section [    ]
of the Participation Agreement] during the period after the
Effective Date for which such fees are owing and paid by the SPV pursuant to
the Agreement.  Amounts paid under this
section shall be credited against amounts payable to the Assignee under Section [    ]
of the Participation Agreement dated as of [date] by and between [Bank of
America/PNC Bank] and [Alternate Investor] (and vice versa).


 


10.           THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REFERENCE TO THE CONFLICTS OF LAW PRINCIPLES THEREOF OTHER THAN SECTION 5-1401
OF THE NEW YORK GENERAL OBLIGATIONS LAW).


 


11.           This agreement contains the final and
complete integration of all prior expressions by the parties hereto with
respect to the subject matter hereof and shall constitute the entire Agreement
among the parties hereto with respect to the subject matter hereof superseding
all prior oral or written understandings.


 


12.           If any one or more of the covenants,
agreements, provisions or terms of this agreement shall for any reason
whatsoever be held invalid, then such covenants, agreements, provisions, or
terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this agreement and shall in no way affect the validity
or enforceability of the other provisions of this agreement.


 


13.           This agreement may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
agreement.  Delivery by facsimile of an
executed signature page of this agreement shall be effective as delivery
of an executed counterpart hereof.


 


14.           This agreement shall be binding on
the parties hereto and their respective successors and assigns.


 


A - 3

















 


IN WITNESS
WHEREOF, the parties hereto have caused this Assignment and Assumption
Agreement to be executed by their respective officers thereunto duly authorized
as of the date first above written


 


	
   

  	
   

  	
  [ASSIGNOR]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
  [ASSIGNEE]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
									



 


A - 4

















 


Address for notices and Account
for payments:


 


	
  For Credit Matters:

  	
  For Administrative Matters:

  
	
   

  	
   

  
	
  [NAME]

  	
   

  	
  [NAME]

  	
   

  
	
  Attention:

  	
   

  	
  Attention:

  	
   

  
	
  Telephone:

  	
  [(     )
        -        ]

  	
  Telephone:

  	
  [(     )
        -        ]

  
	
  Telefax:

  	
  [(     )
        -        ]

  	
  Telefax:

  	
  [(     )
        -        ]

  



 


Account for Payments:


 


	
  NAME

  	
   

  
	
  ABA Number:

  	
  [      -      -      ]

  
	
  Account Number:

  	
  [                      ]

  
	
  Attention:

  	
  [                            ]

  



 


Re:          [                                ]


 


Consented to this
[          ] day of         Accepted
this[           ] day of
[                                              ],
[20][    ]     [                                  ],
[20][    ]


 


	
  [                            ],
  as

  	
  [                            ],
  as Agent

  
	
  Class Agent

  	
   

  



 


	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [SPV]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
											



 


A - 5

















 


Exhibit B


 


[Reserved]


 


B - 1

















 


Exhibit C


 


Credit and Collection Policies
and Practices


 


The Originator’s
Credit and Collection Policy or Policies and practices, relating to Contracts
and Receivables, existing on the date hereof are as set forth in manuals that
were delivered by the SPV prior to the Closing Date to the Agent.


 


C - 1

















 


Exhibit D


 


Form of Investment Request


 


United
Stationers Receivables, LLC (the “SPV”),
pursuant to Section 2.2(a) of the Transfer and Administration
Agreement, dated as of March 3, 2009 (as amended, modified, supplemented,
restated or replaced from time to time, the “Agreement”), among the SPV, United Stationers Supply
Co., an Illinois corporation (the “Originator”),
United Stationers Financial Services LLC, an Illinois limited liability company
(the “Seller”) and as Servicer, Enterprise
Funding Company LLC, a Delaware limited liability company (“Enterprise Funding”), as a Conduit
Investor, Market Street Funding, LLC, a Delaware limited liability company (“Market Street”, each of Enterprise
Funding and Market Street a “Conduit Investor” and, collectively, the “Conduit
Investors”), Bank of America, National Association, a national banking
association (“Bank of America”),
as Agent, as a Class Agent and as an Alternate Investor, PNC Bank,
National Association (“PNC Bank”),
as a Class Agent and as an Alternate Investor, and the financial institutions
from time to time parties hereto as Alternate Investors, hereby requests that
the [Conduit Investors] [Alternate Investors] effect an Investment from it
pursuant to the following instructions:


 


Investment Date:                                                                        ]


Purchase Price:  [                                                                       ](1)


Funding Period(s):                                                                  ]


Account to be credited:


 


[bank
name]


ABA
No.[                                                                           ]


Account
No.  [                                                                  ]


Reference
No.[                                                               ]


 


Please credit
the above-mentioned account on the Investment Date.  Capitalized terms used herein and not
otherwise defined herein have the meaning assigned to them in the Agreement.


 


The SPV hereby
certifies as of the date hereof that the conditions precedent to such Investment
set forth in Section 4.2 of the Agreement have been satisfied, and
that all of the representations and warranties made in Section 3.1
of the Agreement are true and correct on and as of the Investment Date, both
before and after giving effect to the Investment.


 


	
   

  	
   

  	
  [SPV]

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
							



 






(1) At
least [$5,000,000] and in integral multiples
of [$1,000,000].


 


D - 1
















 


Exhibit E


 


Form of Blocked Account
Agreement


 


[Date]


 


[Name and Address of Blocked
Account Bank]


 


Re:                               [Name of the SPV]


Blocked
Account


No[s].  [                      ]


 


Ladies and Gentlemen:


 


[                                    ]
(the “Owner”) hereby notifies
you (the “Bank”) that in connection
with certain transactions involving its accounts receivable, it has transferred
exclusive ownership and dominion of its [blocked] [lock-box] account
no[s].  [                    ]
[and the related lock-boxes no[s].[              ]
maintained with you (collectively the “Accounts”)
to Bank of America, National Association, a national banking association, as
agent (the “Agent”), and
that the SPV will transfer exclusive control of the Accounts to the Agent
effective upon delivery to you of the Notice of Effectiveness (as hereinafter
defined).  Each of the parties hereto
agrees that, from and after the date you receive the Notice of Effectiveness,
you will comply with instructions originated by the Agent directing disposition
of the funds in the Accounts without further consent by the SPV.


 


In furtherance
of the foregoing, the Owner and the Agent hereby instruct you, beginning on the
date of your receipt of the Notice of Effectiveness substantially in the form
attached hereto as Annex I and
you agree, without further consent by the SPV (which consent the SPV hereby
irrevocably waives):  (i) to collect
the monies, checks, instruments and other items of payment mailed to the
Accounts; (ii) to deposit into the Accounts all such monies, checks,
instruments and other items of payment or all funds collected with respect
thereto (unless otherwise instructed by the Agent); and (iii) to transfer
all funds deposited and collected in the Accounts pursuant to instructions
given to you by the Agent from time to time.


 


You are hereby
further instructed and you agree, without further consent by the SPV (which
consent the SPV hereby irrevocably waives): 
(i) unless and until the Agent notifies you to the contrary at any
time after your receipt of the Notice of Effectiveness, to make such transfers
from the Accounts at such times and in such manner as the Owner, in its
capacity as collection agent for the Agent, shall from time to time instruct to
the extent such instructions are not inconsistent with the instructions set
forth herein, and (ii) to permit the Owner (in its capacity as collection
agent for the Agent) and the Agent to obtain upon request any information
relating to the Accounts, including, without limitation, any information regarding
the balance or activity of the Accounts.


 


E - 1

















 


The SPV also
hereby notifies you that, beginning on the date of your receipt of the Notice
of Effectiveness and notwithstanding anything herein or elsewhere to the
contrary, the Agent shall be irrevocably entitled to exercise, without further
consent by the SPV, any and all rights in respect of or in connection with the
Accounts, including, without limitation, the right to specify when payments are
to be made out of or in connection with the Accounts.  The Agent has a continuing interest in all of
the checks and their proceeds and all monies and earnings, if any, thereon in
the Accounts, and you shall be the Agent’s agent for the purpose of holding and
collecting such property.  The monies,
checks, instruments and other items of payment mailed to, and funds and wire
transfers deposited to, the Accounts will not be subject to deduction, set-off,
banker’s lien, or any other right in favor of any person other than the Agent
(except that you may set off (i) all amounts due to you in respect of your
customary fees and expenses for the routine maintenance and operation of the
Accounts, and (ii) the face amount of any checks which have been credited
to the Accounts but are subsequently returned unpaid because of uncollected or
insufficient funds).


 


This Agreement
may not be terminated at any time by the SPV or you without the prior written
consent of the Agent.  Neither this
Agreement nor any provision hereof may be changed, amended, modified or waived
orally but only by an instrument in writing signed by the Agent and the SPV.


 


You shall not
assign or transfer your rights or obligations hereunder (other than to the
Agent) without the prior written consent of the Agent and the SPV.  Subject to the preceding sentence, this
Agreement shall be binding upon each of the parties hereto and their respective
successors and assigns, and shall inure to the benefit of, and be enforceable
by, the Agent, each of the parties hereto and their respective successors and
assigns.


 


You hereby
represent that the person signing this Agreement on your behalf is duly
authorized by you to so sign.


 


You agree to
give the Agent and the SPV prompt notice if the Accounts become subject to any
writ, garnishment, judgment, warrant of attachment, execution or similar
process.


 


Any notice,
demand or other communication required or permitted to be given hereunder shall
be in writing and may be personally served or sent by facsimile or by courier
service or by United States mail and shall be deemed to have been delivered
when delivered in person or by courier service or by facsimile or three (3) Business
Days after deposit in the United States mail (registered or certified, with
postage prepaid and properly addressed). 
For the purposes hereof, (i) the addresses of the parties hereto
shall be as set forth below each party’s name below, or, as to each party, at
such other address as may be designated by such party in a written notice to
the other party and the Agent and (ii) the address of the Agent shall be:


 


	
  Bank of America, National
  Association

  	
   

  
	
  [231 South LaSalle Street, 16th
  Floor

  	
   

  
	
  Chicago, Illinois 60697

  	
   

  
	
  Attention:

  	
  Banc of America Securities,
  LLC

  
	
   

  	
  Asset Securitization Group;
  Portfolio Management

  
	
  Telephone:

  	
  312/828-6471

  
	
  Facsimile:

  	
  312/923-0273]

  
			



 


E - 2

















 


	
  [Bank of America Corporate
  Center, 10th Floor

  	
   

  
	
  Charlotte, North Carolina 28255

  	
   

  
	
  Attention:

  	
  Banc of America Securities, LLC

  
	
   

  	
  Global Asset Backed
  Securitization Group; Portfolio Management

  
	
  Telephone:

  	
  704/386-7922

  
	
  Facsimile:

  	
  704/388-9169]

  
			



 


, or at such
other address as may be designated by the Agent in a written notice to each of
the parties hereto.


 


Please agree
to the terms of, and acknowledge receipt of, this notice by signing in the
space provided below.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [SPV]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  Attention:

  
	
   

  	
  Facsimile:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, NATIONAL

  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  Attention:

  
	
   

  	
  Facsimile:

  
							



 


E - 3

















 


	
  ACKNOWLEDGED AND AGREED:

  	
   

  
	
   

  	
   

  
	
  [NAME OF BLOCKED ACCOUNT BANK]

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
  [Address]

  	
   

  
	
  Attention:

  	
   

  
	
  Facsimile:

  	
   

  
				



 


E - 4

















 


ANNEX 1


TO BLOCKED ACCOUNT AGREEMENT


 


[FORM OF NOTICE OF
EFFECTIVENESS]


 


DATED: [                                ],
[20][    ]


 


TO:                            [Name of Blocked Account Bank]


 


[Address]


ATTN: [                                            ]


 


Re:                               Blocked Account No[s].  [              ]


 


Ladies and Gentlemen:


 


We hereby give
you notice that effective on the date you receive this letter, exclusive
control of the above-referenced Blocked Account[s], as described in our letter
agreement with you dated [                                ],
[20][    ] shall be exercised by the Agent.  You are hereby instructed to comply
immediately with the instructions set forth in [that letter agreement] [as set
forth herein].


 


[Add
instructions regarding disposition of proceeds in Accounts.]


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, NATIONAL

  ASSOCIATION, as Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  Attention:

  
	
   

  	
  Facsimile:

  
	
   

  	
   

  
	
  ACKNOWLEDGED AND AGREED:

  	
   

  
	
  [NAME OF BLOCKED ACCOUNT BANK]

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
  Address:

  	
   

  
	
  Attention:

  	
   

  
	
  Facsimile:

  	
   

  
						



 


E - 5

















 


Exhibit F


 


Form of Servicer Report


 


F - 1

















 


Exhibit G


 


Form of SPV Secretary’s
Certificate


 


SECRETARY’S CERTIFICATE


 


[                                ],
[20][    ]


 


I, [                                    ],
the undersigned [                                ]
of [SPV] (the “SPV”), a [                ]
corporation, DO HEREBY CERTIFY that:


 


1.                                       Attached
hereto as Annex A is a true and complete copy of the [              ]
[Insert appropriate organizational document]
of the SPV as in effect on the date hereof.


 


2.                                       Attached
hereto as Annex B is a true and complete copy of the [By-laws] [Insert appropriate organizational document]
of the SPV as in effect on the date hereof.


 


3.                                       Attached
hereto as Annex C is a true and complete copy of the resolutions duly
adopted by the Board of Managers of the SPV [adopted by consent] as of [                                ],
[20][    ], authorizing the execution, delivery and
performance of each of the documents mentioned therein, which resolutions have
not been revoked, modified, amended or rescinded and are still in full force
and effect.


 


4.                                       The
below-named persons have been duly qualified as and at all times since [                                ],
[20][    ], to and including the date hereof have been
officers or representatives of the SPV holding the respective offices or
positions below set opposite their names and are authorized to execute on
behalf of the SPV the below-mentioned Transfer and Administration Agreement and
all other Transaction Documents (as defined in such Transfer and Administration
Agreement) to which the SPV is a party and the signatures below set opposite
their names are their genuine signatures:


 




	
  Name

  	
   

  	
  Signature

  	
   

  	
  Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  






 


[Remainder of Page Intentionally Left
Blank]


 


G - 1

















 


WITNESS my hand and seal of the SPV as of the
day first above written.


 


	
   

  	
   

  
	
   

  	
  Secretary

  



 


 


I, [                                ]
the undersigned, [Title] of the SPV, DO HEREBY CERTIFY that [                                          ]
is the duly elected and qualified Secretary of the SPV and the signature above
is his/her genuine signature.


 


WITNESS my
hand as of the day first above written.


 


	
   

  	
   

  
	
   

  	
  [Title]

  



 


G - 2

















 


Exhibit H


 


Form of
[Originator/Servicer/Seller] Secretary’s Certificate


 


SECRETARY’S CERTIFICATE


 


[                                ],
[20][    ]


 


I, [                                    ],
the undersigned [                                ]
of [Originator/Servicer/Seller] (the “[Originator/Servicer/Seller]”),
a [                ]
corporation, DO HEREBY CERTIFY that:


 


1.                                       Attached
hereto as Annex A is a true and complete copy of the [              ]
[Insert appropriate organizational document]
of the [Originator/Servicer/Seller] as in effect on the date hereof.


 


2.                                       Attached
hereto as Annex B is a true and complete copy of the [By-laws] [Insert appropriate organizational document]
of the [Originator/Servicer/Seller] as in effect on the date hereof.


 


3.                                       Attached
hereto as Annex C is a true and complete copy of the resolutions duly
adopted by the Board of Directors of the [Originator/Servicer/Seller] [adopted
by consent] as of [                                ],
[20][    ], authorizing the execution, delivery and
performance of each of the documents mentioned therein, which resolutions have
not been revoked, modified, amended or rescinded and are still in full force
and effect.


 


4.                                       The
below-named persons have been duly qualified as and at all times since [                                ],
[20][    ], to and including the date hereof have been
officers or representatives of the [Originator/Servicer/Seller] holding the
respective offices or positions below set opposite their names and are
authorized to execute on behalf of the [Originator/Servicer/Seller] the
below-mentioned [First Tier Agreement/Second Tier Agreement], the Transfer and
Administration Agreement dated as of March 3, 2009 among the United
Stationers Receivables, LLC, an Illinois limited liability company (the “SPV”), United Stationers Supply Co.,
an Illinois corporation (the “Originator”),
United Stationers Financial Services LLC, an Illinois limited liability company
(the “Seller”) and as Servicer, Enterprise
Funding Company LLC, a Delaware limited liability company (“Enterprise Funding”), as a Conduit
Investor, Market Street Funding, LLC, a Delaware limited liability company (“Market Street”, each of Enterprise
Funding and Market Street a “Conduit Investor” and, collectively, the “Conduit
Investors”), Bank of America, National Association, a national banking
association (“Bank of America”),
as Agent, as a Class Agent and as an Alternate Investor, PNC Bank,
National Association (“PNC Bank”),
as a Class Agent and as an Alternate Investor, and the financial
institutions from time to time parties hereto as Alternate Investors and
certain financial institutions named therein (the “Agreement”) and all other Transaction
Documents to which the [Originator/Servicer/Seller] is a party and the
signatures below set opposite their names are their genuine signatures:


 


H - 1

















 




	
  Name

  	
   

  	
  Signature

  	
   

  	
  Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  






 


WITNESS my
hand and seal of the [Originator/Servicer/Seller] as of the date first above
written.


 


	
   

  	
   

  
	
   

  	
  Secretary

  



 


 


I, the
undersigned, [Title] of the [Originator/Servicer/Seller], DO HEREBY CERTIFY
that [                                          ]
is the duly elected and qualified Secretary of the [Originator/Servicer/Seller]
and the signature above is his/her genuine signature.


 


WITNESS my
hand as of the date first above written.


 


	
   

  	
   

  
	
   

  	
  [Title]

  



 


H - 2
















 


Exhibit I


 


Form of Opinion of Counsel
for the SPV, Originator, Seller and Servicer


 


[                                ],
[20][    ]


 


Enterprise Funding Company LLC


c/o Global Securitization
Services, LLC


68 South Service Road, Suite 120


Melville, New York 11747


 


Market Street Funding LLC


[address]


 


Bank of America, National
Association


[231 South LaSalle Street


Suite 1611


Chicago, Illinois  60697]


[Bank of America Corporate
Center, 10th Floor


Charlotte, North Carolina  28255]


 


PNC Bank, National Association


[address]


 


Ladies and Gentlemen:


 


This opinion
is furnished to you pursuant to Section [5.1(m)] of the Transfer and
Administration Agreement dated as of March 3, 2009 (the “Agreement”) United Stationers
Receivables, LLC, an Illinois limited liability company (the “SPV”), United Stationers Supply Co.,
an Illinois corporation (the “Originator”),
United Stationers Financial Services LLC, an Illinois limited liability company
(the “Seller”) and as Servicer, Enterprise
Funding Company LLC, a Delaware limited liability company (“Enterprise Funding”), as a Conduit
Investor, Market Street Funding LLC, a Delaware limited liability company (“Market Street”, each of Enterprise
Funding and Market Street a “Conduit Investor” and, collectively, the “Conduit
Investors”), Bank of America, National Association, a national banking
association (“Bank of America”),
as Agent, as a Class Agent and as an Alternate Investor, PNC Bank,
National Association (“PNC Bank”),
as a Class Agent and as an Alternate Investor, and the financial
institutions from time to time parties hereto as Alternate Investors and
certain financial institutions from time to time parties hereto as Alternate
Investors.  Capitalized terms used herein
and not otherwise defined herein shall have the meanings given such terms in
the Agreement.


 


I - 1

















 


We have acted
as counsel to the Originator, the Seller and the SPV in connection with the
preparation of the Agreement, the First Tier Agreement, the Second Tier Agreement,
the other Transaction Documents and the transactions contemplated thereby.


 


We have
examined, on the date hereof, the Agreement and all exhibits thereto, the First
Tier Agreement, the Second Tier Agreement and all exhibits thereto,
certificates of public officials and of officers of the SPV, the Seller and the
Originator and certified copies of the Originator’s, the Seller’s and the SPV’s
[Modify the following for appropriate type
of entity] [certificate of incorporation, by-laws, the Board of
Directors’ resolutions] authorizing the Originator’s, the Seller’s and the SPV’s
participation in the transactions contemplated by the Agreement, the First Tier
Agreement, the Second Tier Agreement, the other Transaction Documents, copies
of each of the above having been delivered to you, copies of the financing
statements on Form UCC-1 filed in the filing offices listed in Schedule
I hereto executed by the Originator, as debtor, in favor of the SPV, as
secured party and showing the Agent, on behalf of the Conduit Investors and the
Alternate Investors, as the assignee of the secured party, substantially in the
form attached hereto as Exhibit A (the “Originator Financing Statements”) and
the Seller, as debtor, in favor of the SPV, as secured party and showing the Agent,
on behalf of the Conduit Investors and the Alternate Investors, as the assignee
of the secured party, substantially in the form attached hereto as Exhibit B
(the “Seller Financing Statements”)
and copies of the financing statements on Form UCC-1 filed in the filing
offices listed in Schedule II hereto executed by SPV, as debtor, in
favor of the Agent, on behalf of the Conduit Investor and the Alternate
Investors, as secured party, substantially in the form attached hereto as Exhibit C
[Should track the granting clause of the
Agreement or if the SPV will only be used for a single transaction a blanket
lien may be given by the SPV to the Agent covering:  all accounts, chattel paper, instruments,
general intangibles, inventory, investment property and other property of the
SPV, whether now or hereafter owned or existing, and all proceeds of the
foregoing] (the “SPV Financing
Statements”).  We have
also examined the closing documents delivered pursuant to the Agreement, the
First Tier Agreement, the Second Tier Agreement and copies of all such
documents and records, and have made such investigations of law, as we have
deemed necessary and relevant as a basis for our opinion.  With respect to the accuracy of material factual
matters which were not independently established, we have relied on
certificates and statements of officers of the Originator, the Seller and the
SPV.


 


On the basis
of the foregoing, we are of the opinion that:


 


1.             The SPV is a corporation duly
[incorporated], validly existing and in good standing under the laws of [                  ],
has the [corporate] power and authority to own its properties and to carry on
its business as now being conducted, and had at all relevant times, and now
has, all necessary power, authority, and legal right to acquire and own the
Receivables and other Affected Assets, and is duly qualified and in good
standing as a foreign [corporation] and is authorized to do business in each
jurisdiction in which the character of its properties or the nature of its
business requires such qualification or authorization.


 


2.             The Originator is a [corporation]
duly incorporated, validly existing and in good standing under the laws of [                  ],
has the [corporate] power and authority to own its properties and to carry on
its business as now being conducted, and had at all relevant times, and now
has, all necessary power, authority, and legal right to acquire and own the
Receivables and 


 


I - 2

















 


other Affected Assets, and is duly qualified and in good standing as a
foreign [corporation] and is authorized to do business in each jurisdiction in
which the character of its properties or the nature of its business requires
such qualification or authorization.


 


3.             The Seller is a [corporation] duly
incorporated, validly existing and in good standing under the laws of [                  ],
has the [corporate] power and authority to own its properties and to carry on
its business as now being conducted, and had at all relevant times, and now
has, all necessary power, authority, and legal right to acquire and own the
Receivables and other Affected Assets, and is duly qualified and in good
standing as a foreign [corporation] and is authorized to do business in each
jurisdiction in which the character of its properties or the nature of its
business requires such qualification or authorization.


 


4.             The SPV has the power, [corporate]
and other, and has taken all necessary [corporate] action to execute, deliver
and perform the Agreement and the other Transaction Documents to which it is a
party, each in accordance with its respective terms, and to consummate the
transactions contemplated thereby.  The
Transaction Documents to which the SPV is a party have been duly executed and
delivered by the SPV and constitute the legal, valid and binding obligations of
the SPV enforceable against the SPV in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency and other similar
laws affecting the enforcement of creditors’ rights generally and by general
equitable principles.


 


5.             The Originator has the power,
[corporate] and other, and has taken all necessary corporate action to execute,
deliver and perform the First Tier Agreement and the other Transaction Documents
to which it is a party, each in accordance with its respective terms, and to
consummate the transactions contemplated thereby.  The Transaction Documents to which the
Originator is a party have been duly executed and delivered by the Originator
and constitute the legal, valid and binding obligations of the Originator
enforceable against the Originator in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency and other similar
laws affecting the enforcement of creditors’ rights generally and by general
equitable principles.


 


6.             The Seller has the power,
[corporate] and other, and has taken all necessary corporate action to execute,
deliver and perform the Second Tier Agreement and the other Transaction Documents
to which it is a party, each in accordance with its respective terms, and to
consummate the transactions contemplated thereby.  The Transaction Documents to which the Seller
is a party have been duly executed and delivered by the Seller and constitute the
legal, valid and binding obligations of the Seller enforceable against the
Seller in accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency and other similar laws affecting the
enforcement of creditors’ rights generally and by general equitable principles.


 


7.             The execution, delivery and
performance in accordance with their terms by the SPV of the Agreement and the
other Transaction Documents and the consummation of the transactions
contemplated thereby, do not and will not (i) require (a) any
governmental approval or (b) any consent or approval of any stockholder of
the SPV that has not been obtained, (ii) violate or conflict with, result
in a breach of, or constitute a default under (a) the [certificate of incorporation
or the by-laws] of the SPV, (b) any other agreement to which the SPV is a
party or by which the SPV or any of its properties may be bound, or (c) any
Law applicable to the SPV of 


 


I - 3

















 


any court or of any Official Body having jurisdiction over the SPV or
any of its properties, or (iii) result in or require the creation or
imposition of any Adverse Claim upon any of the assets, property or revenue of
the SPV other than as contemplated by the Agreement.


 


8.             The execution, delivery and
performance in accordance with their terms by the Originator of the First Tier
Agreement and the other Transaction Documents and the consummation of the
transactions contemplated thereby, do not and will not (i) require (a) any
governmental approval or (b) any consent or approval of any stockholder of
the Originator that has not been obtained, (ii) violate or conflict with,
result in a breach of, or constitute a default under (a) the certificate
of incorporation or the by-laws of the Originator, (b) any other agreement
to which the Originator is a party or by which the Originator or any of its
properties may be bound, or (c) any Law applicable to the Originator of
any Official Body having jurisdiction over the Originator or any of its
properties, or (iii) result in or require the creation or imposition of
any Adverse Claim upon any of the assets, property or revenue of the Originator
other than as contemplated by the First Tier Agreement.


 


9.             The execution,
delivery and performance in accordance with their terms by the Seller of the
Second Tier Agreement and the other Transaction Documents and the consummation
of the transactions contemplated thereby, do not and will not (i) require (a) any
governmental approval or (b) any consent or approval of any stockholder of
the Originator that has not been obtained, (ii) violate or conflict with,
result in a breach of, or constitute a default under (a) the certificate
of incorporation or the by-laws of the Seller, (b) any other agreement to
which the Seller is a party or by which the Seller or any of its properties may
be bound, or (c) any Law applicable to the Seller of any Official Body
having jurisdiction over the Seller or any of its properties, or (iii) result
in or require the creation or imposition of any Adverse Claim upon any of the
assets, property or revenue of the Seller other than as contemplated by the
Second Tier Agreement.


 


10.           Except as set forth in the schedules
attached hereto, there are not, in any court or before any arbitrator of any
kind or before or by any governmental or non-governmental body, any actions,
suits, proceedings, litigation or investigations, pending or to the best of our
knowledge, after due inquiry, threatened, (i) against the SPV or the
business or any property of the SPV except actions, suits or proceedings that,
if adversely determined, would not, singly or in the aggregate, have a Material
Adverse Effect or (ii) relating to the Agreement or any other Transaction
Document.


 


11.           Except as set forth in the schedules
attached hereto, there are not, in any court or before any arbitrator of any
kind or before or by any governmental or non-governmental body, any actions,
suits, proceedings, litigation or investigations, pending or to the best of our
knowledge, after due inquiry, threatened, (i) against the Originator or
the business or any property of the Originator except actions, suits or
proceedings that, if adversely determined, would not, singly or in the
aggregate, have a Material Adverse Effect or (ii) relating to the First
Tier Agreement or any other Transaction Document.


 


12.           Except as set forth in
the schedules attached hereto, there are not, in any court or before any
arbitrator of any kind or before or by any governmental or non-governmental
body, any actions, suits, proceedings, litigation or investigations, pending or
to the best of our 


 


I - 4

















 


knowledge, after due inquiry, threatened, (i) against the Seller
or the business or any property of the Seller except actions, suits or
proceedings that, if adversely determined, would not, singly or in the
aggregate, have a Material Adverse Effect or (ii) relating to the Second
Tier Agreement or any other Transaction Document.


 


13.           The Receivables constitute [accounts]
[general intangibles][chattel paper] [instruments] [certificated securities]
[uncertificated securities] [investment property] as [that] [such] term[s] [is]
[are] defined in the Uniform Commercial Code as in effect in [Insert the state whose law governs]
[XYZ].


 


14.           The First Tier Agreement creates a
valid and enforceable security interest (as that term is defined in Section 1-201(37)
of the Uniform Commercial Code (including the conflict of laws rules thereof)
(the “UCC”) as in effect
in New York (the “New York UCC”)
and [              ]
(the “[XYZ] UCC”), under Article 9
of the New York UCC (“First Tier Security
Interest”) in favor of the SPV in the Receivables and other
Affected Assets and the proceeds thereof (except that the First Tier Security
Interest will attach to any Receivable created after the date hereof only when
the Originator possesses rights in such Receivable).  The internal laws of [XYZ] govern the
perfection by the filing of financing statements of the First Tier Security
Interest in the Receivables and the proceeds thereof.  The Originator Financing Statement(s) have
been filed in the filing office(s) located in [XYZ] listed in Schedule
I hereto, which [is] [are] the only office(s) in which filings are
required under the [XYZ] UCC to perfect the First Tier Security Interest in the
Receivables and the proceeds thereof, and accordingly the First Tier Security
Interest in each Receivable and the proceeds thereof will, on the date of the
initial transfer under the First Tier Agreement, be perfected under Article 9
of the [XYZ] UCC.  All filing fees and
all taxes required to be paid as a condition to or upon the filing of the
Originator Financing Statement(s) in [XYZ] have been paid in full.  As of the date hereof, there were no (i) UCC
financing statements naming the Originator as debtor, Originator or assignor
and covering any Receivables or other Affected Assets or any interest therein
or (ii) notices of the filing of any federal tax lien (filed pursuant to Section 6323
of the Internal Revenue Code) or lien of the Pension Benefit Guaranty
Corporation (filed pursuant to Section 4068 of the Employment Retirement
Income Security Act) covering any Receivable or other Affected Asset or any
interest therein.  The filing of the
Originator Financing Statement(s) in the filing offices listed in Schedule
I will create a first priority security interest in each Receivable.  Such perfection and priority will continue,
provided that appropriate continuation statements are timely filed where and
when required under the UCC.


 


15.           The Second Tier Agreement creates a
valid and enforceable security interest (as that term is defined in Section 1-201(37)
of the Uniform Commercial Code (including the conflict of laws rules thereof)
(the “UCC”) as in effect
in New York (the “New York UCC”)
and [              ]
(the “[XYZ] UCC”), under Article 9
of the New York UCC (“Second Tier
Security Interest”) in favor of the SPV in the Receivables and
other Affected Assets and the proceeds thereof (except that the Second Tier
Security Interest will attach to any Receivable created after the date hereof
only when the Seller possesses rights in such Receivable).  The internal laws of [XYZ] govern the
perfection by the filing of financing statements of the Second Tier Security
Interest in the Receivables and the proceeds thereof.  The Seller Financing Statement(s) have
been filed in the filing office(s) located in [XYZ] listed in Schedule
I hereto, which [is] [are] the only office(s) in which filings are
required under the [XYZ] UCC to perfect the Second Tier 


 


I - 5

















 


Security Interest in the Receivables and the proceeds thereof, and
accordingly the Second Tier Security Interest in each Receivable and the
proceeds thereof will, on the date of the initial transfer under the Second
Tier Agreement, be perfected under Article 9 of the [XYZ] UCC.  All filing fees and all taxes required to be
paid as a condition to or upon the filing of the Seller and/or Seller Financing
Statement(s) in [XYZ] have been paid in full.  As of the date hereof, there were no (i) UCC
financing statements naming the Seller as debtor, Seller or assignor and
covering any Receivables or other Affected Assets or any interest therein or (ii) notices
of the filing of any federal tax lien (filed pursuant to Section 6323 of
the Internal Revenue Code) or lien of the Pension Benefit Guaranty Corporation
(filed pursuant to Section 4068 of the Employment Retirement Income
Security Act) covering any Receivable or other Affected Asset or any interest
therein.  The filing of the Seller
Financing Statement(s) in the filing offices listed in Schedule I
will create a first priority security interest in each Receivable.  Such perfection and priority will continue,
provided that appropriate continuation statements are timely filed where and
when required under the UCC.


 


16.           The Agreement creates a valid and
enforceable security interest (as that term is defined in Section 1-201(37)
of the New York UCC and [              ]
the [Note that the states in this paragraph
11 may be different that the stated in paragraph 10] (
the “[ABC] UCC”), under Article 9
of the New York UCC (“Third Tier Security
Interest”) in favor of the Agent in each Receivable and other
Affected Assets (except that the Third Tier Security Interest will attach only
when the SPV possesses rights in such Receivable).  The internal laws of [ABC] govern the
perfection by the filing of financing statements of the Third Tier Security
Interest in the Receivables and the proceeds thereof.  The SPV Financing Statement(s) have been
filed in the filing office(s) located in [ABC] listed in Schedule II
hereto, which [is] [are] the only office(s) in which filings are required
under the [ABC] UCC to perfect the Third Tier Security Interest in the
Receivables and the proceeds thereof, and accordingly the Third Tier Security
Interest in each Receivable and the proceeds thereof will, on the date of the
initial transfer under the Agreement, be perfected under Article 9 of the
[ABC] UCC.  All filing fees and all taxes
required to be paid as a condition to or upon the filing of the SPV Financing
Statement(s) in [ABC] have been paid in full.  As of the date hereof, there were no (i) UCC
financing statements naming SPV as debtor, Originator or assignor and covering
any Receivables or other Affected Assets or any interest therein or (ii) notices
of the filing of any federal tax lien (filed pursuant to Section 6323 of
the Internal Revenue Code) or lien of the Pension Benefit Guaranty Corporation
(filed pursuant to Section 4068 of the Employment Retirement Income
Security Act) covering any Receivable or other Affected Assets or any interest
therein.  The filing of the SPV Financing
Statement(s) in the filing offices listed in Schedule II will
create a first priority security interest in each Receivable.  Such perfection and priority will continue,
provided that appropriate continuation statements are timely filed where and
when required under the UCC.  [If the Receivables constitute instruments,
certificated securities or uncertificated securities, this paragraph should be
redrafted to reflect different perfection requirements]


 


17.           Neither the SPV, the Seller nor the
Originator is, nor is controlled by, an “investment company” within the meaning
of the Investment Company Act of 1940, as amended.


 


In giving the
opinions in paragraphs 14, 15 and 16, we have assumed that the
Originator’s, the Seller’s and the SPV’s chief executive office will continue
to be located in 


 


I - 6

















 


[XYZ][ABC][, as applicable].  The
conclusions expressed in paragraphs 14, 15 and 16 are subject to
the accuracy of the personnel in the filing offices referred to above with
regard to the filing, indexing and recording of financing statements and
notices of Adverse Claim, and to the correctness of reports to us by [Insert
name of search company.] [                        ],
who performed the searches of such records and who made the filings on behalf
of the Originator, the Seller and the SPV in [XYZ][ABC][, as applicable].


 


In giving the
opinions set forth in paragraphs 14, 15 and 16, we have assumed
that all filings as appropriate in the event of a change in the name, identity
or corporate structure of the debtor (or the Originator or assignor) named in
any financing statements and all continuation statements necessary under the
UCC to maintain the perfection of the First Tier Security Interest and the
Second Tier Security Interest in the Receivables and the proceeds thereof will be
duly and timely filed.  In giving such
opinions, we also do not express any opinion as to (a) transactions
excluded from Article 9 of the UCC by virtue of Section 9-104 of the
UCC, (b) any security interest in proceeds except to the extent that the
validity and perfection of any interest in proceeds (as such term is defined
under the UCC) thereof that is covered by the Originator Financing Statements,
the Seller Financing Statements or the SPV Financing Statements or any duly
filed financing statement referred to above may be permitted by Section 9-306
of the UCC, and (c) any security interest that is terminated or released.


 


The foregoing
opinions and conclusions were given only in respect of the laws of [XYZ] [,
ABC], the State of New York and, to the extent specifically referred to herein,
the Federal laws of the United States of America.


 


This opinion
has been delivered at your request for the purposes contemplated by the
Agreement.  Without our prior written
consent, this opinion is not to be utilized or quoted for any other purpose and
no one other than you is entitled to rely thereon; provided, that any
Alternate Investor, any Program Support Provider [and any placement agent or
dealer of any Conduit Investor’s commercial paper] may rely on this opinion as
of it were addressed to them.


 


Very
truly yours,


 


I - 7

















 


Exhibit J


 


Scope of Agreed Upon Procedures


 


J - 1

















 


Exhibit K


 


Form of Compliance
Certificate


 


To:  Bank of America, National Association, as
Agent


 


This
Compliance Certificate (the ‘Certificate”) is furnished pursuant to Section 6.1(a)(iii) of
that certain Transfer and Administration Agreement dated as of March 3,
2009 as it may be amended or otherwise modified from time to time (as so
amended or modified, the “Agreement”)
by and among United Stationers Receivables, LLC, an Illinois limited liability
company (the “SPV”),
United Stationers Supply Co., an Illinois corporation (the “Originator”), United Stationers
Financial Services LLC, an Illinois limited liability company (the “Seller”) and as Servicer, Enterprise
Funding Company LLC, a Delaware limited liability company (“Enterprise Funding”), as a Conduit
Investor, Market Street Funding LLC, a Delaware limited liability company (“Market Street”, each of Enterprise
Funding and Market Street a “Conduit Investor” and, collectively, the “Conduit
Investors”), Bank of America, National Association, a national banking
association (“Bank of America”),
as Agent, as a Class Agent and as an Alternate Investor, PNC Bank,
National Association (“PNC Bank”),
as a Class Agent and as an Alternate Investor, and the financial
institutions from time to time parties hereto as Alternate Investors.
Capitalized terms used and not otherwise defined herein are used with the
meanings attributed thereto in the Agreement.


 


THE
UNDERSIGNED HEREBY CERTIFIES THAT:


 


1.             I am the duly elected                                     
[president] [treasurer] of the [SPV] [Performance Guarantor].


 


2.             I have reviewed the terms of the
Agreement and I have made, or have caused to be made under my supervision, a
detailed review of the transactions and conditions of the SPV and Performance
Guarantor during the accounting period covered by the attached financial
statements.


 


3.             The examinations described in
Paragraph 2 did not disclose, and I have no knowledge of, the existence of any
condition or event which constitutes a Termination Event or Potential
Termination Event during or at the end of the accounting period covered by the
attached financial statements or as of the date of this Certificate, except as
set forth in Paragraph 5 below.


 


4.             Schedule I attached hereto sets
forth financial data and computations evidencing the compliance with certain
covenants of the Agreement, including the financial covenants in Section 6.3
of the Agreement, all of which data and computations are true, complete and
correct and have been prepared in accordance with GAAP.


 


5.             Described below are the exceptions,
if any, to Paragraph 3 by listing, in detail, the nature of the condition or
event, the period during which it has existed and the action which the 


 


K - 1

















 


SPV or the Performance Guarantor has taken, is taking, or proposes to
take with respect to each such condition or event:


 


6.             [add for SPV certification:  As of the date hereof, the jurisdiction of
organization of the SPV is the State of Illinois, the place where the SPV is “located”
for the purposes of Section 9-307 of the UCC is the State of Illinois, and
the SPV has not changed its jurisdiction of organization or its “location” for
the purposes of Section 9-307 of the UCC since the date of the original
Agreement.]


 


The foregoing
certifications, together with the computations set forth in Schedule I hereto
and the financial statements delivered with this Certificate in support hereof,
are made and delivered this     day of                 
,      .


 


 


	
   

  	
  [SPV] [Performance Guarantor]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


K - 2

















 


SCHEDULE I TO COMPLIANCE CERTIFICATE


 


A.            Schedule
of Compliance as of
                            
,                
with Section        of the Agreement.


 


This schedule relates to the fiscal year ended:


 


K - 3