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
2
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
3
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
4
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
i
