Exhibit 10.4


 


PERFORMANCE GUARANTEE


 


THIS PERFORMANCE GUARANTEE
(this “Guarantee”), dated
as of March 3, 2009, is executed by United Stationers Inc., an Delaware
corporation (the “Performance Guarantor”)
in favor of United Stationers Receivables, LLC, an Illinois limited liability
company (together with its successors and assigns, “Recipient”).


 


RECITALS


 


1.                                       United
Stationers Supply Co., an Illinois corporation (the “Originator”) and United Stationers
Financial Services LLC, an Illinois limited liability company (the “Seller”) have entered into a
Receivables Sale Agreement, dated as of March 3, 2009 (as amended,
restated or otherwise modified from time to time, the “Sale Agreement”), pursuant to which
the Originator, subject to the terms and conditions contained therein, is
selling and/or contributing its respective right, title and interest in its
accounts receivable to the Seller.


 


2.                                       The Seller and
Recipient have entered into a Receivables Purchase Agreement, dated as of March 3,
2009 (as amended, restated or otherwise modified from time to time, the “Purchase Agreement”), pursuant to
which the Seller, subject to the terms and conditions contained therein, is
selling and/or contributing its right, title and interest in its accounts
receivable (consisting of the accounts receivable acquired by the Seller from
the Originator pursuant to the Sale Agreement) to Recipient.


 


3.                                       Performance
Guarantor owns (directly or indirectly) one hundred percent (100%) of the
capital stock and/or membership interests, as the case may be, of the
Originator, the Seller and Recipient, and each of the Originator and the
Seller, and accordingly, Performance Guarantor, is expected to receive
substantial direct and indirect benefits from the sale or contribution of
receivables to Recipient pursuant to the Purchase Agreement (which benefits are
hereby acknowledged).


 


4.                                       As an inducement
for Recipient to acquire such accounts receivable, Performance Guarantor has
agreed to guaranty the due and punctual performance by the Originator and the
Seller of their respective obligations under the Sale Agreement and the
Purchase Agreement, as well as the Seller’s Servicing Related Obligations (as
hereinafter defined).


 


5.                                       Performance
Guarantor wishes to guaranty the due and punctual performance by the Originator
and the Seller of their respective obligations under or in respect of the Sale
Agreement and the Purchase Agreement and Seller’s Servicing Related
Obligations, as provided herein.


 


AGREEMENT


 


NOW, THEREFORE, Performance Guarantor hereby
agrees as follows:


 

















 


Section 1.  Definitions.  Capitalized terms used herein and not defined
herein shall the respective meanings assigned thereto in the Agreements (as
hereinafter defined).  In addition:


 


Guaranteed Obligations:  Collectively: 
(a) all covenants, agreements, terms, conditions and indemnities to
be performed and observed by the Originator or the Seller under and pursuant to
the Sale Agreement and each other document executed and delivered by the
Originator or the Seller pursuant to the Sale Agreement or any other
Transaction Document, including, without limitation, the due and punctual
payment of all sums which are or may become due and owing by the Originator or
the Seller under the Sale Agreement, whether for fees, expenses (including
counsel fees), indemnified amounts or otherwise, whether upon any termination
or for any other reason, (b) all covenants, agreements, terms, conditions
and indemnities to be performed and observed by the Seller under and pursuant
to the Purchase Agreement and each other document executed and delivered by the
Seller pursuant to the Purchase Agreement or any other Transaction Document,
including, without limitation, the due and punctual payment of all sums which
are or may become due and owing by the Originator or the Seller under the
Purchase Agreement, whether for fees, expenses (including counsel fees),
indemnified amounts or otherwise, whether upon any termination or for any other
reason and (c) all obligations (i) of the Seller as Servicer under
the Transfer and Administration Agreement, dated as of March 3, 2009 by
and among Recipient, the Originator, the Seller, Enterprise Funding Company,
LLC, Market Street Funding, LLC, PNC Bank, National Association and Bank of
America, National Association, as Agent (as amended, restated, modified,
supplemented, replaced or waived, the “TAA” and,
together with the Sale Agreement and the Purchase Agreement, the “Agreements”) or (ii) of the
Seller which arise pursuant to Section 7.2 or Section 9.6 of the TAA
following its termination as Servicer which relates to acts or omissions of it
as Servicer (all such obligations under this clause (c), collectively,
the “Servicing Related Obligations”).


 


Section 2.  Guaranty of
Performance of Guaranteed Obligations. 
Performance Guarantor hereby guarantees to Recipient, the full and
punctual payment and performance by the Originator and the Seller of their
respective Guaranteed Obligations.  This
Guarantee is an absolute, unconditional and continuing guaranty of the full and
punctual performance of all Guaranteed Obligations of the Originator and the
Seller under the Agreements and each other document executed and delivered by
the Originator or the Seller pursuant to the Agreements and is in no way
conditioned upon any requirement that Recipient first attempt to collect any
amounts owing by the Originator to the Seller or by the Seller to Recipient,
the Agent or any Investor from any other Person or resort to any collateral
security, any balance of any deposit account or credit on the books of
Recipient, the Agent or any Investor in favor of the Originator or the Seller
or any other Person or other means of obtaining payment.  Should the Originator or the Seller default
in the payment or performance of any of its Guaranteed Obligations, Recipient
(or its assigns) may cause the immediate performance by Performance Guarantor
of the Guaranteed Obligations and cause any payment Guaranteed Obligations to
become forthwith due and payable to Recipient (or its assigns), without demand
or notice of any nature (other than as expressly provided herein), all of which
are hereby expressly waived by Performance Guarantor.  Notwithstanding the foregoing, this Guarantee
is not a guarantee of the collection of any of the Receivables and Performance
Guarantor shall not be responsible for any Guaranteed Obligations to the extent
the failure to perform such Guaranteed Obligations by the Originator or the
Seller results from Receivables being uncollectible on account of the
insolvency, bankruptcy or lack of creditworthiness of the related Obligor; provided
that nothing herein shall relieve the Originator 


 


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or the Seller from performing in full its
Guaranteed Obligations under the Agreements or Performance Guarantor of its
Guarantee hereunder with respect to the full performance of such duties.


 


Section 3.  Performance
Guarantor’s Further Agreements to Pay. 
Performance Guarantor further agrees, as the principal obligor and not
as a guarantor only, to pay to Recipient (and its assigns), forthwith upon
demand in funds immediately available to Recipient, all reasonable costs and
expenses (including court costs and reasonable legal expenses) incurred or
expended by Recipient in connection with the Guaranteed Obligations, this
Guarantee and the enforcement thereof and of this Guarantee and the Guaranteed
Obligations, together with interest on amounts recoverable under this Guarantee
from the time when such amounts become due until payment, at a rate of interest
(computed for the actual number of days elapsed based on a 360 day year) equal
to the Prime Rate plus 2% per annum, such rate of interest changing when and as
the Prime Rate changes.


 


Section 4.  Waivers by
Performance Guarantor.  Performance
Guarantor waives notice of acceptance of this Guarantee, notice of any action
taken or omitted by Recipient (or its assigns) in reliance on this Guarantee,
and any requirement that Recipient (or its assigns) be diligent or prompt in
making demands under this Guarantee, giving notice of any Termination Event,
Potential Termination Event, other default or omission by the Originator or the
Seller or asserting any other rights of Recipient under this Guarantee.  Performance Guarantor warrants that it has
adequate means to obtain from the Originator and the Seller, on a continuing
basis, information concerning the financial condition of the Originator and the
Seller, and that it is not relying on Recipient to provide such information,
now or in the future.  Performance
Guarantor also irrevocably waives all defenses (1) that at any time may be
available in respect of the Guaranteed Obligations by virtue of any statute of
limitations, valuation, stay, moratorium law or other similar law now or
hereafter in effect or (2) that arise under the law of suretyship,
including impairment of collateral. 
Recipient (and its assigns) shall be at liberty, without giving notice
to or obtaining the assent of Performance Guarantor and without relieving
Performance Guarantor of any liability under this Guarantee, to deal with the
Originator and with each other party who now is or after the date hereof
becomes liable in any manner for any of the Guaranteed Obligations, in such
manner as Recipient in its sole discretion deems fit, and to this end Performance
Guarantor agrees that the validity and enforceability of this Guarantee,
including without limitation, the provisions of Section 7 hereof,
shall not be impaired or affected by any of the following:  (a) any extension, modification or
renewal of, or indulgence with respect to, or substitutions for, the Guaranteed
Obligations or any part thereof or any agreement relating thereto at any time; (b) any
failure or omission to enforce any right, power or remedy with respect to the
Guaranteed Obligations or any part thereof or any agreement relating thereto,
or any collateral securing the Guaranteed Obligations or any part thereof; (c) any
waiver of any right, power or remedy or of any Termination Event, Potential
Termination Event, or default with respect to the Guaranteed Obligations or any
part thereof or any agreement relating thereto; 
(d)  any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any other
obligation of any person or entity with respect to the Guaranteed Obligations
or any part thereof; (e) the enforceability or validity of the Guaranteed
Obligations or any part thereof or the genuineness, enforceability or validity
of any agreement relating thereto or with respect to the Guaranteed Obligations
or any part thereof; (f) the 


 


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application of payments received from any
source to the payment of any payment obligations of the Originator or the
Seller or any part thereof or amounts which are not covered by this Guarantee
even though Recipient (or its assigns) might lawfully have elected to apply
such payments to any part or all of the payment obligations of the Originator
or the Seller to amounts which are covered by this Guarantee; (g) the
existence of any claim, setoff or other rights which Performance Guarantor may
have at any time against the Originator or the Seller in connection herewith or
any unrelated transaction; (h) any assignment or transfer of the
Guaranteed Obligations or any part thereof; or (i) any failure on the part
of the Originator or the Seller to perform or comply with any term of the
Agreements or any other document executed in connection therewith or delivered
thereunder, all whether or not Performance Guarantor shall have had notice or
knowledge of any act or omission referred to in the foregoing clauses (A) through
(I) of this Section 4.


 


Section 5.  Unenforceability
of Guaranteed Obligations Against Originator.  Notwithstanding (a) any change of
ownership of the Originator or the Seller or the insolvency, bankruptcy or any
other change in the legal status of the Originator or the Seller; (b) the
change in or the imposition of any law, decree, regulation or other
governmental act which does or might impair, delay or in any way affect the
validity, enforceability or the payment when due of the Guaranteed Obligations;
(c) the failure of the Originator or the Seller or Performance Guarantor
to maintain in full force, validity or effect or to obtain or renew when
required all governmental and other approvals, licenses or consents required in
connection with the Guaranteed Obligations or this Guarantee, or to take any
other action required in connection with the performance of all obligations
pursuant to the Guaranteed Obligations or this Guarantee; or (d) if any of
the moneys included in the Guaranteed Obligations have become irrecoverable
from the Originator or the Seller for any other reason other than final payment
in full of the payment obligations in accordance with their terms, this
Guarantee shall nevertheless be binding on Performance Guarantor.  This Guarantee shall be in addition to any
other guaranty or other security for the Guaranteed Obligations, and it shall
not be rendered unenforceable by the invalidity of any such other guaranty or
security.  In the event that acceleration
of the time for payment of any of the Guaranteed Obligations is stayed upon the
insolvency, bankruptcy or reorganization of the Originator or the Seller or for
any other reason with respect to the Originator or the Seller, all such amounts
then due and owing with respect to the Guaranteed Obligations under the terms
of the Agreements, or any other agreement evidencing, securing or otherwise
executed in connection with the Guaranteed Obligations, shall be immediately
due and payable by Performance Guarantor.


 


Section 6.  Representations
and Warranties.  Performance
Guarantor hereby represents and warrants to Recipient that:


 


(a)                         Existence
and Standing.  It (1) is a
corporation duly organized, validly existing and in good standing under the
laws of Delaware, which is its sole jurisdiction of formation, (2) 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 (3) is
duly qualified to do business and is 


 


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in good standing in every other 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)                        Authorization,
Execution and Delivery; Binding Effect; No Conflict.  The execution, delivery and performance by it
of this Guarantee and any other Transaction Document to which it is a party is (1) within
its organizational powers, (2) have been duly authorized by all necessary
organizational action, (3) require no action by or in respect of, or
filing with, any Official Body or official thereof, (4) 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 (5) 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
to the extent such failure would not be reasonably expected to have a Material
Adverse Effect. This Guarantee and the other Transaction Documents to which it
is a party have been duly executed and delivered and constitutes its legal,
valid and binding obligation, enforceable against it in accordance with its
terms, except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
limiting rights of creditors generally and by general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or law).


 


(c)                         Financial
Statements.  Its consolidated
financial statements furnished by it to the Recipient for purposes of or in
connection with this Guarantee or any transaction contemplated hereby, taken as
a whole, is, and all such information hereafter furnished by it to the
Recipient 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.


 


(e)                         Taxes.  It has (1) timely filed all tax returns
(federal, state and local) required to be filed, (2) paid or made adequate
provision for the payment of all taxes, assessments and other governmental
charges except such taxes, if any, as are being contested in good faith and as
to which adequate reserves have been provided. No federal or state tax liens
have been filed and no claims are being asserted with respect to any such
taxes.


 


(f)                           Litigation
and Contingent Obligations.  Except
as disclosed in the filings made with the Securities and Exchange Commission,
it is 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 on it or its Subsidiaries. 
There are no actions, suits, litigation or proceedings pending, or to
its knowledge, threatened, against or affecting it or any of its Material
Subsidiaries or their properties, in or before any Official Body or arbitrator,
which may, individually or in the aggregate, have a Material Adverse 


 


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Effect on its or its Subsidiaries.  It does not have any material Contingent
Obligations not provided for or disclosed in the financial statements referred
to in Section 6(c).


 


(g)                        Disclosure
of the Transaction. The Performance Guarantor makes the representations and
agrees to the covenants set forth in Schedule 6.1(g) which are
incorporated herein by reference.


 


Section 7.  Subrogation;
Subordination.  Notwithstanding
anything to the contrary contained herein, until the Guaranteed Obligations are
paid in full Performance Guarantor:  (a) will
not enforce or otherwise exercise any right of subrogation to any of the rights
of Recipient, the Agent or any Investor against the Originator or the Seller, (b) hereby
waives all rights of subrogation (whether contractual, under Section 509
of the United States Bankruptcy Code, at law or in equity or otherwise) to the
claims of Recipient, the Agent and any Investor against the Originator or the
Seller and all contractual, statutory or legal or equitable rights of
contribution, reimbursement, indemnification and similar rights and “claims”
(as that term is defined in the United States Bankruptcy Code) which
Performance Guarantor might now have or hereafter acquire against the
Originator or the Seller that arise from the existence or performance of
Performance Guarantor’s obligations hereunder, (c) will not claim any
setoff, recoupment or counterclaim against the Originator or the Seller in
respect of any liability of Performance Guarantor to the Originator and (d) waives
any benefit of and any right to participate in any collateral security which
may be held by Recipient, the Agent or any Investor.  The payment of any amounts due with respect
to any indebtedness of the Originator or the Seller now or hereafter owed to
Performance Guarantor is hereby subordinated to the prior payment in full of
all of the Guaranteed Obligations. 
Performance Guarantor agrees that, after the occurrence of any default
in the payment or performance of any of the Guaranteed Obligations, Performance
Guarantor will not demand, sue for or otherwise attempt to collect any such
indebtedness of the Originator or the Seller to Performance Guarantor until all
of the Guaranteed Obligations shall have been paid and performed in full.  If, notwithstanding the foregoing sentence,
Performance Guarantor shall collect, enforce or receive any amounts in respect
of such indebtedness while any obligations are still unperformed or
outstanding, such amounts shall be collected, enforced and received by
Performance Guarantor as trustee for Recipient (and its assigns) and be paid
over to Recipient (or its assigns) on account of the Guaranteed Obligations
without affecting in any manner the liability of Performance Guarantor under
the other provisions of this Guarantee. 
The provisions of this Section 7 shall be supplemental to
and not in derogation of any rights and remedies of Recipient under any
separate subordination agreement which Recipient may at any time and from time
to time enter into with Performance Guarantor.


 


Section 8.  Termination
of Performance Guarantee. 
Performance Guarantor’s obligations hereunder shall continue in full
force and effect until all Aggregate Unpaids are finally paid and satisfied in
full and the TAA is terminated, provided  that this Guarantee
shall continue to be effective or shall be reinstated, as the case may be, if
at any time payment or other satisfaction of any of the Guaranteed Obligations
is rescinded or must otherwise be restored or returned upon the bankruptcy,
insolvency, or reorganization of the Originator or the Seller or otherwise, as
though such payment had not been made or other satisfaction occurred, whether
or not Recipient (or its assigns) is in possession of this Guarantee.  No invalidity, irregularity or
unenforceability by reason of the federal bankruptcy code or any insolvency or
other similar law, or any law or order of any government or agency thereof
purporting to reduce, amend or otherwise affect the 


 


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Guaranteed Obligations shall impair, affect,
be a defense to or claim against the obligations of Performance Guarantor under
this Guarantee.


 


Section 9.  Effect of Bankruptcy.  This Guarantee shall survive the insolvency
of the  Originator or the Seller and the
commencement of any case or proceeding by or against the Originator or the
Seller under the federal bankruptcy code or other federal, state or other
applicable bankruptcy, insolvency or reorganization statutes.  No automatic stay under the federal
bankruptcy code with respect to the Originator or the Seller or other federal,
state or other applicable bankruptcy, insolvency or reorganization statutes to
which the Originator or the Seller is subject shall postpone the obligations of
Performance Guarantor under this Guarantee.


 


Section 10.  Setoff.  Regardless of the other means of obtaining
payment of any of the Guaranteed Obligations, Recipient (and its assigns) is
hereby authorized at any time and from time to time, without notice to
Performance Guarantor (any such notice being expressly waived by Performance
Guarantor) and to the fullest extent permitted by law, to set off and apply any
deposits and other sums against the obligations of Performance Guarantor under
this Guarantee, whether or not Recipient (or any such assign) shall have made
any demand under this Guarantee and although such obligations may be contingent
or unmatured.


 


Section 11.  Taxes. 
All payments to be made by Performance Guarantor hereunder shall be made
free and clear of any deduction or withholding. 
If Performance Guarantor is required by law to make any deduction or
withholding on account of tax or otherwise from any such payment, the sum due
from it in respect of such payment shall be increased to the extent necessary
to ensure that, after the making of such deduction or withholding, Recipient
receive a net sum equal to the sum which they would have received had no
deduction or withholding been made.


 


Section 12.  Further Assurances.  Performance Guarantor agrees that it will
from time to time, at the request of Recipient (or its assigns), provide
information relating to the business and affairs of Performance Guarantor as
Recipient may reasonably request. 
Performance Guarantor also agrees to do all such things and execute all
such documents as Recipient (or its assigns) may reasonably consider necessary
or desirable to give full effect to this Guarantee and to perfect and preserve
the rights and powers of Recipient hereunder.


 


Section 13.  Successors and Assigns.  This Guarantee shall be binding upon
Performance Guarantor, its successors and permitted assigns (to the extent
permitted under the Agreements), and shall inure to the benefit of and be
enforceable by Recipient and its successors and assigns. Performance Guarantor
may not assign or transfer any of its obligations hereunder without the prior
written consent of each of Recipient and the Agent. Without limiting the
generality of the foregoing sentence, Recipient may, in accordance with the
Transaction Documents, assign or otherwise transfer the Agreements, any other
documents executed in connection therewith or delivered thereunder or any other
agreement or note held by them evidencing, securing or otherwise executed in
connection with the Guaranteed Obligations, or sell participations in any
interest therein, to any other entity or other person, and such other entity or
other person shall thereupon become vested, to the extent set forth in the
agreement evidencing such assignment, transfer or participation, with all the
rights in respect thereof granted to the Recipient herein.


 


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Section 14.  Amendments and Waivers.  No amendment or waiver of any provision of
this Guarantee nor consent to any departure by Performance Guarantor therefrom
shall be effective unless the same shall be in writing and signed by Recipient,
the Agent and Performance Guarantor.  No
failure on the part of Recipient to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right.


 


Section 15.  Notices.  All notices and other communications provided
for hereunder shall be made in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be addressed as
follows:  if to Performance Guarantor, at
the address set forth beneath its signature hereto, and if to Recipient, at the
addresses set forth beneath its signature hereto, or at such other addresses as
each of Performance Guarantor or any Recipient may designate in writing to the
other.  Each such notice or other communication
shall be effective (i) if given by telecopy, upon the receipt thereof, (ii) if
given by mail, three (3) Business Days after the time such communication
is deposited in the mail with first class postage prepaid or (iii) if
given by any other means, when received at the address specified in this Section 15.


 


Section 16.  GOVERNING LAW.  THIS GUARANTEE 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).


 


Section 17.  CONSENT TO JURISDICTION.  EACH OF PERFORMANCE GUARANTOR AND RECIPIENT
HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED
STATES FEDERAL OR NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTEE, THE
AGREEMENTS OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION THEREWITH OR DELIVERED
THEREUNDER AND EACH OF THE PERFORMANCE GUARANTOR AND RECIPIENT HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE
HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW
OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.


 


Section 18.  Bankruptcy Petition.  Performance Guarantor hereby covenants and
agrees that, prior to the date that is one year and one day after the payment
in full of all outstanding senior indebtedness of the Conduit Investor, it will
not institute against, or join any other Person in instituting against, the
Conduit Investor any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other similar proceeding under the laws of the
United States or any state of the United States.


 


Section 19.  Miscellaneous.  This Guarantee constitutes the entire
agreement of Performance Guarantor with respect to the matters set forth
herein. The rights and remedies


 


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herein provided are cumulative and not
exclusive of any remedies provided by law or any other agreement, and this
Guarantee shall be in addition to any other guaranty of or collateral security
for any of the Guaranteed Obligations. 
The provisions of this Guarantee are severable, and in any action or
proceeding involving any state corporate law, or any state or federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of Performance Guarantor hereunder
would otherwise be held or determined to be avoidable, invalid or unenforceable
on account of the amount of Performance Guarantor’s liability under this
Guarantee, then, notwithstanding any other provision of this Guarantee to the
contrary, the amount of such liability shall, without any further action by
Performance Guarantor or Recipient, be automatically limited and reduced to the
highest amount that is valid and enforceable as determined in such action or
proceeding.  Any provisions of this Guarantee
which are prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.  Unless otherwise specified, references herein
to “Section” shall mean a reference to sections of this Guarantee.


 


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IN WITNESS WHEREOF, Performance Guarantor has caused this Guarantee to
be executed and delivered as of the date first above written.


 


	
   

  	
  UNITED STATIONERS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


 


Address for Notices:


 


United Stationers Inc.


One Parkway North,


Suite 100


Deerfield, Illinois 60015


Attention: Robert J. Kelderhouse, Treasurer


with a copy to: Eric A. Blanchard, General Counsel


Telephone: (847) 627-2585


Facsimile: (847) 627-7111


 


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SCHEDULE 6.1(g)


 


Performance Guarantor—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 the Transactions will be addressed in notes relating to Performance
Guarantor’s securitization activities in its financial statements.


 


2.                        The footnotes that describe
Performance Guarantor’s securitization activities (which include the
Transactions) in Performance Guarantor’s consolidated financial statements
(which will include the Originator, the 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.                        Performance Guarantor 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, Performance
Guarantor 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 Performance Guarantor.


 


Terms of the Transactions


 


4.                        Performance Guarantor’s
believes that its guaranty in the Performance Guarantee does not cause
Performance Guarantor 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 unlikely to occur. 
The guaranty is not intended to cover material liabilities that are
reasonably likely to occur.


 


5.                        There are no agreements or
understandings between the SPV, on one hand, and Performance Guarantor, Seller
or 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 Performance Guarantor 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 Performance Guarantor
and the SPV


 


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


 

















 


7.                        Performance Guarantor 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.


 


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


 


9.                        Performance Guarantor believes
that the consolidation of Performance Guarantor’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.


 


10.                  Performance Guarantor 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.  Performance Guarantor does
not maintain joint bank accounts or other the SPV accounts to which the SPV has
independent access.


 


11.                  An integration of business functions
between Performance Guarantor 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.  Performance Guarantor 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.


 


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


 


13.                  Performance Guarantor 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).


 


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


 


15.                  Performance Guarantor does not
currently, and does not intend to, guaranty, and is not otherwise obligated to
repay, the SPV’s liabilities.


 


16.                  At closing, Performance Guarantor
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,
Performance Guarantor is intended to (and is reasonably believed to) be able to
survive as a stand-alone entity.


 


17.                  Performance Guarantor 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 Performance Guarantor 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.


 


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


 


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