Exhibit
10.44


 


EXECUTION COPY


 


SECOND AMENDMENT TO THE


TRANSFER
AND ADMINISTRATION AGREEMENT


 


THIS SECOND AMENDMENT TO THE TRANSFER AND
ADMINISTRATION AGREEMENT, dated as of November 20, 2009 (this “Amendment”),
is entered into by and among (i) UNITED STATIONERS RECEIVABLES, LLC (the “SPV”),
(ii) UNITED STATIONERS SUPPLY CO., as Originator (the “Originator”),
(iii) UNITED STATIONERS FINANCIAL SERVICES LLC, as Seller (the “Seller”)
and as Servicer (the “Servicer”), (iv) ENTERPRISE FUNDING COMPANY
LLC, as a conduit investor (“Enterprise Funding”), (v) MARKET
STREET FUNDING LLC, as a conduit investor (“Market Street”), (vi) BANK
OF AMERICA, NATIONAL ASSOCIATION, as an Alternate Investor (an “Alternate
Investor”) and Agent (the “Agent”) and (vii) PNC BANK, NATIONAL
ASSOCIATION (“PNC Bank”), as an Alternate Investor (an “Alternate
Investor”).  Capitalized terms used
and not otherwise defined herein are used as defined in the Transfer and
Administration Agreement, including by reference therein, dated as of March 3,
2009 (as amended, amended and restated, supplemented or otherwise modified
through the date hereof, the “Transfer Agreement”), among the SPV, the
Originator, the Seller, the Alternate Investors party thereto, the Conduit
Investors party thereto, the Class Agents party thereto and the Agent.


 


WHEREAS, the parties hereto desire to amend the
Transfer Agreement to, among other things, terminate the rights and obligations
of Market Street as a conduit investor and PNC Bank as an Alternate Investor, as
further provided herein;


 


NOW THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:


 


SECTION 1.    Amendments to the Transfer
Agreement.  The following
amendments are made to the Transfer Agreement:


 


(a)           The definition of “Alternate Investors”
in Section 1.1 of the Transfer Agreement is hereby amended and restated in
its entirety as follows:


 


“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 and
(b) 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.”


 


(b)           The definition of “Class” in Section 1.1
of the Transfer Agreement is hereby amended and restated in its entirety as
follows:


 

















 


“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.”


 


(c)           The definition of “Class Agent” in Section 1.1
of the Transfer Agreement is hereby amended and restated in its entirety as
follows:


 


“Class Agent:  With respect to (i) the Enterprise
Funding Class, Bank of America and its successors and permitted assigns and (ii) 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.”


 


(d)           The definition of “Class Facility
Limit” in Section 1.1 of the Transfer Agreement is hereby amended and
restated in its entirety as follows:


 


“Class Facility
Limit:  With respect to (i) the
Enterprise Funding Class, $102,000,000 and (ii) 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.”


 


(e)           The definition of “Class Termination
Date” in Section 1.1 of the Transfer Agreement is hereby amended and
restated in its entirety as follows:


 


“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 November 20,
2009, the commitment termination date for the Liquidity Agreement for the
Enterprise Funding Class is January 22, 2010.”


 


(f)            The definition of “Commitment Termination
Date” in Section 1.1 of the Transfer Agreement is hereby amended and restated
in its entirety as follows:


 


“Commitment
Termination Date:  January 22,
2010, 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).”


 


(g)           The definition of “Conduit Investors” in Section 1.1
of the Transfer Agreement is hereby amended and restated in its entirety as
follows:


 


“Conduit Investors: 
Enterprise Funding and 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.”


 


(h)           Clause (ii)(C) of the definition of “Eligible
Receivable” in Section 1.1 of the Transfer Agreement is hereby amended and
restated in its entirety as follows:


 


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“(C) which according to the Contract related thereto, is required
to be paid in full within 60 days of the original billing date therefor;”


 


(i)            The definition of “Facility Fee” in Section 1.1
of the Transfer Agreement is hereby amended and restated in its entirety as
follows:


 


“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; and (ii) 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.”


 


(j)            The definition of “Fee Letter” in Section 1.1
of the Transfer Agreement is hereby amended and restated in its entirety as
follows:


 


“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; and (ii) 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.”


 


(k)           The definition of “Market Street” in Section 1.1
of the Transfer Agreement is hereby deleted in its entirety.


 


(l)            The definition of “Market Street Class”
in Section 1.1 of the Transfer Agreement is hereby deleted in its
entirety.


 


(m)          The definition of “PNC Bank” in Section 1.1
of the Transfer Agreement is hereby deleted in its entirety.


 


(n)           The first sentence of Section 2.8
of the Transfer Agreement is hereby amended and restated in its entirety as
follows:


 


“By no later than 4:00 p.m. (New York City time) on the 20th 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.”


 


(o)           Section 3.4 of the Transfer Agreement is hereby amended
and restated in its entirety as follows:


 


“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 


 


3

















 


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, 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).”


 


(p)           The first sentence of Section 10.17
of the Transfer Agreement is hereby amended and restated in its entirety as
follows:


 


“Bank of America (and any
successor acting as Class Agent for the Enterprise Funding 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 was not a Class Agent or an
Alternate Investor hereunder and without notice to or consent of the Investors.”


 


(q)           Schedule 11.3 attached hereto hereby replaces the
existing Schedule 11.3 to the Transfer Agreement.


 


SECTION 2.    Release
and Further Assurances.


 


(a)         Upon the receipt by PNC Bank as Class Agent
for the Market Street Class of all Facility Fees accrued through November 20,
2009 in the amount of $42,500 (the “Payoff Amount”)
by wire transfer in immediately available funds, all references to Market
Street and PNC Bank in the Transfer Agreement shall be deemed stricken and of
no further force or effect, Market Street shall cease to be a conduit investor
under the Transfer Agreement, PNC Bank shall cease to be an Alternate Investor
under the Transfer Agreement and Market Street and PNC Bank shall be released
from and shall have no further rights, duties, obligations or liabilities under
the Transfer Agreement, other than rights, duties, obligations or liabilities
accruing prior to the Effective Date; provided, further, that the indemnification
and payment provisions of Article IX and X of the Transfer Agreement shall
be continuing and shall survive after the Effective Date.


 


(b)        Each of Market Street and PNC Bank hereby
acknowledges and agrees that any and all amounts payable to Market Street and
PNC Bank have been paid in full as of the 


 


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Effective Date and
that the Fee Letter dated as of March 3, 2008, among PNC Bank, Market
Street, the Seller and the Servicer shall be terminated and have no further
force or effect.


 


SECTION 3.    Authorization to file financing
statements.  Market Street and
PNC Bank each hereby authorizes the Agent to file
financing statement amendments and termination statements in all jurisdictions
as may be necessary or, in the opinion of the Agent, desirable, under the Uniform
Commercial Code of all appropriate jurisdictions or any comparable law in order
to effect the provisions of Section 2 hereof.


 


SECTION 4.    Effective
Date.  This Amendment shall become effective as of the date (the “Effective Date”) that (a) the
Agent shall have received counterparts hereof duly executed by each of the
parties hereto, (b) the Agent shall have received counterparts of the
Amended and Restated Fee Letter Agreement for the Enterprise Funding Class,
dated as of date hereof, duly executed by each of the parties thereto, (c) the
Agent shall have received counterparts of the Amendment 1 to the Liquidity
Asset Purchase Agreement for the Enterprise Funding Class, dated as of date
hereof, duly executed by each of the parties thereto and (d) PNC Bank as Class Agent
for the Market Street Class has received the Payoff Amount.


 


SECTION 5.    Representations and Warranties.


 


Each of the Originator, the SPV, the Seller and the
Servicer hereby certifies that, subject to the effectiveness of this Amendment,
each of the representations and warranties set forth in the Transfer Agreement
is true and correct on the date hereof, as if each such representation and
warranty were made on the date hereof.


 


SECTION 6.    Transfer
Agreement in Full Force and Effect as Amended.


 


Except as specifically amended hereby, the Transfer
Agreement shall remain in full force and effect.  All references to the Transfer Agreement
shall be deemed to mean the Transfer Agreement as modified hereby.  The parties hereto agree to be bound by the
terms and conditions of the Transfer Agreement, as amended by this Amendment,
as though such terms and conditions were set forth herein.


 


SECTION 7.    Consent
of Performance Guarantor.


 


The Performance Guarantor
hereby consents to the amendments to the Transfer Agreement set forth in this
Amendment.


 


SECTION 8.    Miscellaneous.


 


8.1           This Amendment may be executed in any
number of counterparts, and by the different parties hereto on the same or
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original instrument but all of which together shall constitute
one and the same agreement.  Delivery of
an executed counterpart of a signature page by facsimile or other
electronic transmission shall be effective as delivery of a manually executed
counterpart of this Amendment.  This
Amendment shall become effective upon the Agent’s receipt of counterparts of
this Amendment, duly executed by all parties hereto (including the Performance
Guarantor).


 


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8.2           The descriptive headings of the various sections of
this Amendment are inserted for convenience of reference only and shall not be
deemed to affect the meaning or construction of any of the provisions hereof.


 


8.3           This Amendment may not be amended or otherwise
modified except as provided in the Transfer Agreement.


 


8.4           Any provision in this Amendment which is 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.


 


8.5           THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
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).


 


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IN
WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.


 


 


	
   

  	
  UNITED
  STATIONERS RECEIVABLES, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  UNITED
  STATIONERS SUPPLY CO., as Originator

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  UNITED
  STATIONERS FINANCIAL SERVICES LLC, as Seller and as Servicer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


[signatures
continued on next page]


 


S-1

















 


	
   

  	
  BANK
  OF AMERICA, NATIONAL ASSOCIATION, as an Alternate Investor and Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ENTERPRISE FUNDING, as a Conduit Investor

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


[signatures
continued on next page]


 


S-2

















 


	
   

  	
  PNC
  BANK, NATIONAL ASSOCIATION, as an Alternate Investor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MARKET STREET, as a Conduit Investor

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


[signatures
continued on next page]


 


S-3

















 


	
   

  	
  Acknowledged
  and consented to by:

  
	
   

  	
   

  
	
   

  	
  UNITED STATIONERS INC., as the Performance Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


[end
of signatures]


 


S-4

















 


SCHEDULE 11.3


 


Address
and Payment Information


 


If
to the Conduit Investors:


 


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


 


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


 


Payment Information:


 


Bank of America


ABA: 026009593


Account #: 109360 0656600


Ref: United Stationers –
Closing Fees


Attn: Sean Walsh