Exhibit 4.5
CONFORMED COPY
SUBSIDIARY
GUARANTY
THIS GUARANTY
(this “Guaranty”) dated as of October 15, 2007 is made
by each of the undersigned (each being a “Guarantor”),
in favor of the holders from time to time of the Notes hereinafter
referred to and their respective successors and assigns
(collectively, the “Holders” and each individually, a
“Holder”).
W I T N
E S S E T H :
WHEREAS, UNITED
STATIONERS SUPPLY CO., an Illinois corporation (the
“Company”), UNITED STATIONERS INC., a Delaware
corporation and the owner of all of the issued and outstanding
stock of the Company (the “Parent”), and the initial
Holders have entered into a Master Note Purchase Agreement dated as
of October 15, 2007 (the Master Note Purchase Agreement as amended,
supplemented, restated or otherwise modified from time to time in
accordance with its terms and in effect, the “Note Purchase
Agreement”);
WHEREAS, the Note
Purchase Agreement contemplates the issuance by the Company of
Notes (as defined in the Note Purchase Agreement) in one or more
series and tranches;
WHEREAS, the
Parent or Company directly or indirectly owns all of the issued and
outstanding capital stock of each Guarantor and, by virtue of such
ownership and otherwise, such Guarantor has derived or will derive
substantial benefits from the purchase by the Holders of the
Notes;
WHEREAS, it is a
requirement of the Note Purchase Agreement that each Guarantor
execute and deliver this Guaranty to the Holders; and
WHEREAS, each
Guarantor desires to execute and deliver this Guaranty to satisfy
the requirement described in the preceding paragraph;
NOW, THEREFORE, in
consideration of the premises and other benefits to each Guarantor,
and of the purchase of the Notes by the Holders, and for other good
and valuable consideration, the receipt and sufficiency of which
are acknowledged, each Guarantor makes this Guaranty as
follows:
SECTION
1
Definitions . Any capitalized terms not otherwise herein
defined shall have the meanings attributed to them in the Note
Purchase Agreement.
SECTION
2
Guaranty . Each Guarantor, jointly and severally with each
other Guarantor, unconditionally and irrevocably guarantees to the
Holders the due, prompt and complete payment by the Company of the
principal of, Make-Whole Amount, if any, LIBOR Breakage Amount, if
any, and interest on (including interest accruing or
becoming owing subsequent to the commencement of any bankruptcy,
reorganization or similar proceeding involving the Company), and
each other amount due under, the Notes and the Note Purchase
Agreement, when and as the same shall become due and payable
(whether at stated maturity or by required or optional prepayment
or by declaration or otherwise) in accordance with the terms
of the Notes and
the Note Purchase Agreement (the Notes and the Note Purchase
Agreement being sometimes hereinafter collectively referred to as
the “Note Documents” and the amounts payable by the
Company under the Note Documents (including any reasonable
attorneys’ fees and expenses), being sometimes collectively
hereinafter referred to as the “Obligations”). This
Guaranty is a guaranty of payment and not just of collectibility
and is in no way conditioned or contingent upon any attempt to
collect from the Company or upon any other event, contingency or
circumstance whatsoever. If for any reason whatsoever the Company
shall fail or be unable duly, punctually and fully to pay such
amounts as and when the same shall become due and payable, each
Guarantor, without demand, presentment, notice of
acceleration, notice of intent to accelerate, protest or notice of
any kind, will forthwith pay or cause to be paid such amounts to
the Holders under the terms of such Note Documents, in lawful money
of the United States, at the place specified in the Note Purchase
Agreement, or perform or comply with the same or cause the same to
be performed or complied with, together with interest (to the
extent provided for under such Note Documents) on any amount due
and owing from the Company. Each Guarantor, promptly after demand,
will pay to the Holders the reasonable costs and expenses of
collecting such amounts or otherwise enforcing this Guaranty,
including, without limitation, the reasonable fees and expenses of
counsel. Notwithstanding the foregoing, the right of recovery
against each Guarantor under this Guaranty is limited to the extent
it is judicially determined with respect to any Guarantor that
entering into this Guaranty would violate Section 548 of the United
States Bankruptcy Code or any comparable provisions of any state
law, in which case such Guarantor shall be liable under this
Guaranty only for amounts aggregating up to the largest amount that
would not render such Guarantor’s obligations hereunder
subject to avoidance under Section 548 of the United States
Bankruptcy Code or any comparable provisions of any state law.
SECTION
3.
Guarantor’s Obligations Unconditional . The
obligations of each Guarantor under this Guaranty shall be primary,
absolute and unconditional obligations of each Guarantor, shall not
be subject to any counterclaim, set-off, deduction, diminution,
abatement, recoupment, suspension, deferment, reduction or defense
based upon any claim each Guarantor or any other Person may have
against the Company or any other Person, and to the full extent
permitted by applicable law shall remain in full force and effect
without regard to, and except as provided in Section 9.7(b) of the
Note Purchase Agreement, shall not be released, discharged or in
any way affected by, any circumstance or condition whatsoever other
than indefeasibly payment in full of the Obligations (whether or
not each Guarantor or the Company shall have any knowledge or
notice thereof), including:
(a)
any termination, amendment or modification of or deletion from or
addition or supplement to or other change in any of the Note
Documents or any other instrument or agreement applicable to any of
the parties to any of the Note Documents;
(b)
any furnishing or acceptance of any security, or any release of any
security, for the Obligations, or the failure of any security or
the failure of any Person to perfect any interest in any
collateral;
(c)
any failure, omission or delay on the part of the Company to
conform or comply with any term of any of the Note Documents or any
other instrument or agreement referred to in paragraph (a) above,
including, without limitation, failure to give
notice to any Guarantor
of the occurrence of a “Default” or an “Event of
Default” under any Note Document;
(d)
any waiver of the payment, performance or observance of any of the
obligations, conditions, covenants or agreements contained in any
Note Document, or any other waiver, consent, extension, indulgence,
compromise, settlement, release or other action or inaction under
or in respect of any of the Note Documents or any other instrument
or agreement referred to in paragraph (a) above or any obligation
or liability of the Company, or any exercise or non-exercise of any
right, remedy, power or privilege under or in respect of any such
instrument or agreement or any such obligation or
liability;
(e)
any failure, omission or delay on the part of any of the Holders to
enforce, assert or exercise any right, power or remedy conferred on
such Holder in this Guaranty, or any such failure, omission or
delay on the part of such Holder in connection with any Note
Document, or any other action on the part of such
Holder;
(f)
any voluntary or involuntary bankruptcy, insolvency,
reorganization, arrangement, readjustment, assignment for the
benefit of creditors, composition, receivership, conservatorship,
custodianship, liquidation, marshaling of assets and liabilities or
similar proceedings with respect to the Company, any Guarantor or
to any other Person or any of their respective properties or
creditors, or any action taken by any trustee or receiver or by any
court in any such proceeding;
(g)
any discharge, termination, cancellation, frustration,
irregularity, invalidity or unenforceability, in whole or in part,
of any of the Note Documents or any other agreement or instrument
referred to in paragraph (a) above or any term hereof;
(h)
any merger or consolidation of the Company or any Guarantor into or
with any other corporation, or any sale, lease or transfer of any
of the assets of the Company or any Guarantor to any other
Person;
(i)
any change in the ownership of any shares of capital stock of the
Company or any change in the corporate relationship between the
Company and any Guarantor, or any termination of such
relationship;
(j)
any release or discharge, by operation of law, of any Guarantor
from the performance or observance of any obligation, covenant or
agreement contained in this Guaranty; or
(k)
any other occurrence, circumstance, happening or event whatsoever,
whether similar or dissimilar to the foregoing, whether foreseen or
unforeseen, and any other circumstance which might otherwise
constitute a legal or equitable defense or discharge of the
liabilities of a guarantor or surety or which might otherwise limit
recourse against any Guarantor.
SECTION
4.
Full Recourse Obligations . The obligations of each
Guarantor set forth herein constitute the full recourse obligations
of such Guarantor enforceable against it to the full extent of all
its assets and properties.
SECTION
5.
Waiver . Each Guarantor unconditionally waives, to the
extent permitted by applicable law, (a) notice of any of the
matters referred to in Section 3, (b) notice to such Guarantor
of the incurrence of any of the Obligations, notice to such
Guarantor or the Company of any breach or default by such Company
with respect to any of the Obligations or any other notice that may
be required, by statute, rule of law or otherwise, to preserve any
rights of the Holders against such Guarantor, (c) presentment
to, notice of acceleration of, notice of intent to
accelerate or demand of payment from the Company or the Guarantor
with respect to any amount due under any Note Document or protest
for nonpayment or dishonor, (d) any right to the enforcement,
assertion or exercise by any of the Holders of any right, power,
privilege or remedy conferred in the Note Purchase Agreement or any
other Note Document or otherwise, (e) any requirement of
diligence on the part of any of the Holders, (f) any
requirement to exhaust any remedies or to mitigate the damage
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