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EXHIBIT 10.1
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EXECUTION COPY
UNITED STATIONERS SUPPLY CO.,
UNITED STATIONERS FINANCIAL SERVICES LLC,
and
UNITED STATIONERS FINANCIAL SERVICES LLC,
as Servicer
AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT
Dated as of May 1, 2001
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AMENDED AND RESTATED RECEIVABLES
SALE AGREEMENT
TABLE OF CONTENTS
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PAGE
ARTICLE I
DEFINITIONS
Section 1.01 Certain Defined Terms................................................2
Section 1.02 Accounting and UCC Terms.............................................8
Section 1.03 Other Terms..........................................................9
Section 1.04 Computation of Time Periods..........................................9
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
Section 2.01 Purchase and Sale of Receivables.....................................9
Section 2.02 Purchase Price......................................................11
Section 2.03 Payment of Purchase Price...........................................11
Section 2.04 No Repurchase.......................................................13
Section 2.05 Rebates, Adjustments, Returns and Reductions; Modifications.........13
Section 2.06 Limited Repurchase Obligations......................................13
Section 2.07 Obligations Unaffected..............................................15
Section 2.08 Certain Charges.....................................................15
Section 2.09 Certain Allocations.................................................15
Section 2.10 Further Assurances..................................................15
Section 2.11 Additional Repurchase Obligations...................................16
ARTICLE III
CONDITIONS TO PURCHASES
Section 3.01 Conditions Precedent to USFS's Initial Purchase.....................17
Section 3.02 Conditions Precedent to the Addition of a Seller....................19
Section 3.03 Conditions Precedent to Each of USFS's Purchases of Receivables.....21
Section 3.04 Conditions Precedent to Each Seller's Obligations...................22
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
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Section 4.01 Representations and Warranties of USFS..............................23
Section 4.02 Representations and Warranties of the Sellers.......................24
ARTICLE V
GENERAL COVENANTS
Section 5.01 Affirmative Covenants of the Sellers................................31
Section 5.02 Reporting Requirements..............................................39
Section 5.03 Negative Covenants..................................................40
ARTICLE VI
PURCHASE TERMINATION EVENTS
Section 6.01 Purchase Termination Events.........................................42
Section 6.02 Additional Remedies.................................................45
ARTICLE VII
INDEMNIFICATION
Section 7.01 Indemnities by the Sellers..........................................45
Section 7.02 Indemnities by USFS.................................................48
ARTICLE VIII
USFS SUBORDINATED NOTE
Section 8.01 USFS Subordinated Note..............................................48
Section 8.02 Restrictions on Transfer of Contributed Note and USFS Subordinated
Note ...............................................................49
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ARTICLE IX
MISCELLANEOUS
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Section 9.01 Amendment...........................................................50
Section 9.02 Notices, Etc........................................................50
Section 9.03 No Waiver; Remedies.................................................50
Section 9.04 Successors and Assigns..............................................50
Section 9.05 Costs, Expenses and Taxes...........................................51
Section 9.06 Integration.........................................................51
Section 9.07 Captions and Cross References.......................................51
Section 9.08 Reserved............................................................52
Section 9.09 Reserved............................................................52
Section 9.10 Execution in Counterparts...........................................52
Section 9.11 Acknowledgment of Assignments.......................................52
Section 9.12 No Petition in Bankruptcy...........................................52
Section 9.13 Addition of Sellers.................................................52
Section 9.14 Treatment of Sellers other than USSC; Termination Thereof...........53
Section 9.15 Termination.........................................................54
Section 9.16 Waiver of Jury Trial; Submission of Jurisdiction; Other Waivers.....54
Section 9.17 GOVERNING LAW.......................................................55
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SCHEDULE I
SCHEDULE II
SCHEDULE III
SCHEDULE IV
SCHEDULE V
SCHEDULE VI
SCHEDULE VII
SCHEDULE VIII
Exhibit A - Form of USFS Subordinated Note
Exhibit B - Form of Additional Seller Supplement
Exhibit C - Form of UCC Certificate
Annex 1
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AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT
AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT, dated as of May 1, 2001
(as amended, supplemented or otherwise modified and in effect from time to time,
this "AGREEMENT"), among UNITED STATIONERS SUPPLY CO., an Illinois corporation
("USSC") (the "SELLER", and together with each other Subsidiary of UNITED
STATIONERS INC. from time to time added as a seller hereunder pursuant to
Section 9.13, the "SELLERS"); UNITED STATIONERS FINANCIAL SERVICES LLC, an
Illinois limited liability company ("USFS"); and USFS, in its capacity as
servicer (the "SERVICER").
W I T N E S S E T H :
WHEREAS, the Sellers, USS Receivables Company, Ltd. (the "COMPANY"), and
USSC and other Sellers have entered into a Receivables Sale Agreement dated as
of April 3, 1998 (the "ORIGINAL AGREEMENT");
WHEREAS, the Sellers, the Company and the Servicer desire to amend and
restate the Original Agreement for the purpose of substituting USFS for the
Company as purchaser of the Receivables and Receivables Property from the
Sellers;
WHEREAS, the Company, USSC and The Chase Manhattan Bank (the "TRUSTEE"),
have entered into a Servicing Agreement, dated as of April 3, 1998 (as amended,
supplemented or otherwise modified and in effect from time to time, the
"ORIGINAL SERVICING AGREEMENT"), pursuant to which USSC has acted as Servicer of
the Receivables and Receivables Property;
WHEREAS, pursuant to an Amended and Restated Servicing Agreement, dated as
of the date hereof, among the Company, USFS, USSC, as Support Provider, and the
Trustee, USFS has been substituted for USSC as Servicer of the Receivables and
Receivables Property and USSC has assumed the duties and obligations of Support
Provider;
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, USFS, the Company, and USFS, as Servicer, have entered into a USFS
Receivables Sale Agreement, dated as of the date hereof (as amended,
supplemented or otherwise modified and in effect from time to time, the "USFS
RECEIVABLES SALE AGREEMENT"), pursuant to which USFS will sell to the Company
and the Company will purchase from USFS Receivables and Receivables Property;
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WHEREAS, the Sellers intend to sell Receivables and Receivables Property to
USFS on the terms and subject to the conditions set forth in this Agreement;
WHEREAS, USFS desires to purchase Receivables and Receivables Property from
the Sellers on the terms and subject to the conditions set forth in this
Agreement;
WHEREAS, the Sellers and USFS desire the sale of Receivables and
Receivables Property from the Sellers to USFS to be a true sale providing USFS
with the full benefits of ownership of the Receivables.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 CERTAIN DEFINED TERMS. (a) 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):
"ABR" means, for any day, rate per annum equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. Any change in the ABR due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective as of the
opening of business on the effective day of such change in the Prime Rate or the
Federal Funds Effective Rate.
"ADDITIONAL SELLER SUPPLEMENT" means an instrument substantially in the
form of Exhibit B hereto pursuant to which a Subsidiary of United Stationers
Inc. becomes a Seller party hereto.
"AUTHORIZED OFFICERS" means those officers of the Sellers designated in
Schedule I hereto (or in such other Schedule as may be delivered by the Sellers
to the other parties hereto from time to time) as duly authorized to execute and
deliver this Agreement and any instruments or documents in connection herewith
on behalf of the Sellers and to take, from time to time, all other actions on
behalf of the Sellers in connection herewith.
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"CLOSING DATE" means May 1, 2001.
"CODE" means the Internal Revenue Code of 1986, and regulations promulgated
thereunder or any successor statute and related regulations.
"COMPANY" has the meaning specified in the recitals hereto.
"COMPANY SELLER REPURCHASE PAYMENT" has the meaning specified in subsection
2.06(b).
"CONTRACT" means a contract between any Seller and any Person pursuant to
or under which such Person shall be obligated to make payments to such Seller.
"CONTRIBUTED NOTE" means that certain subordinated promissory note executed
by the Company pursuant to the Original Agreement in favor of USSC and
contributed by USSC to USFS.
"DISCOUNTED PERCENTAGE" has the meaning specified in Schedule VII hereto.
"DOCUMENTS" has the meaning specified in subsection 5.01(r)(iv)(B).
"EARLY TERMINATION" has the meaning specified in Section 6.01.
"EFFECTIVE DATE" means (i) with respect to each Seller as of the Closing
Date, the Closing Date and (ii) with respect to any Subsidiary of United
Stationers Inc. added as a Seller pursuant to Section 9.13 hereof subsequent to
the date hereof, the Seller Addition Date with respect to each such Subsidiary.
"ERISA AFFILIATE" means, with respect to any Person, any trade or business
(whether or not incorporated) that is a member of a group of which such Person
is a member and which is treated as a single employer under Section 414 of the
Code.
"EXCLUDED RECEIVABLE" means any Receivable which, prior to the Closing
Date, was transferred by USSC to the Company pursuant to the Original Agreement;
PROVIDED that in the event any Excluded Receivable is included in a Required
Report, for the purposes of Section 2.01 hereof and Section 2.1 of the Pooling
Agreement and the definition of "Collections", such receivable shall not be an
Excluded Receivable.
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"EXCLUDED RECEIVABLES PAYMENT" means any payment made by an Obligor with
respect to an Excluded Receivable.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by The Chase Manhattan Bank from three federal funds
brokers of recognized standing selected by The Chase Manhattan Bank.
"INDEMNIFIED AMOUNTS" has the meaning specified in Section 7.01.
"INITIAL USFS SUBORDINATED NOTE AMOUNT" has the meaning specified in
subsection 8.01(b).
"LIEN" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, encumbrance, charge or security interest in or on such asset, (b)
the interest of a vendor or a lessor under any conditional sale agreement,
capital lease or title retention agreement relating to such asset and (c) in the
case of securities, any purchase option, call or other similar right of a third
party with respect to such securities; PROVIDED, HOWEVER, that if a lien is
imposed under Section 412(n) of the Code or Section 302(f) of ERISA for a
failure to make a required installment or other payment to a plan to which
Section 412(n) of the Code or Section 302(f) of ERISA applies, then such lien
shall not be treated as a "Lien" from and after the time any Person who is
obligated to make such payment pays to such plan the amount of such lien
determined under Section 412(n)(3) of the Code or Section 302(f)(3) of ERISA, as
the case may be, and provides to the Trustee, any Agent and each Rating Agency
written evidence reasonably satisfactory to the Rating Agencies of the release
of such lien, or such lien expires pursuant to Section 412(n)(4)(B) of the Code
or Section 302(f)(4)(B) of ERISA.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" (within the meaning of
Section 4001(a)(3) of ERISA) and to which such Person or any ERISA Affiliate of
such Person (other than one considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Section 414 of the Code) is making or accruing an
obligation to make contributions, or has within any of the preceding five years
made or accrued an obligation to make contributions.
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"NON-SECURITIZED RECEIVABLES" means any Receivable, exclusive of Excluded
Receivables hereunder, which either (i) arises from any Seller's advertising
business; (ii) is owed by a Person who is not a resident of the United States,
its territories or possessions and/or a payment obligation of a Person that is
not denominated and payable in U.S. Dollars in the United States; (iii) is owed
by a Governmental Authority; or (iv) the payment for which is evidenced or
required to be evidenced by a note or other promissory instrument; PROVIDED that
in the event any Non-Securitized Receivable is included in a Required Report,
for the purposes of Section 2.01 hereof and Section 2.1 of the Pooling Agreement
and the definition of "Collections", such receivable shall not be a Non-Excluded
Receivable.
"ORIGINAL AGREEMENT" has the meaning specified in the recitals hereto.
"OUTSTANDING SALE PRICE AMOUNT" means, at any time with respect to any
Seller, the aggregate Purchase Price received by such Seller from USFS or, prior
to the Closing Date, from the Company, with respect to the aggregate outstanding
Principal Amount at such time of the Purchased Receivables of such Seller.
"PBGC" means the Pension Benefit Guaranty Corporation.
"PAYMENT DATE" has the meaning specified in subsection 2.03(a).
"PLAN" means, with respect to any Person, any pension plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code which is maintained for employees of such Person or any ERISA
Affiliate of such Person.
"POOLING AGREEMENT" means the Amended and Restated Pooling Agreement, dated
as of the date hereof, among the Company, the Servicer and The Chase Manhattan
Bank, as Trustee and Securities Intermediary, as such agreement may be further
amended, supplemented, waived, or otherwise modified from time to time,
including, without limitation, the Series 1998-1 Supplement and the Series
2000-2 Supplement.
"POTENTIAL PURCHASE TERMINATION EVENT" means any condition or act specified
in Section 6.01 that, with the giving of notice or the lapse of time or both,
would become a Purchase Termination Event.
"PRIME RATE" means the rate of interest per annum publicly announced from
time to time by The Chase Manhattan Bank as its prime rate in effect at its
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principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"PURCHASE PRICE" has the meaning specified in Section 2.02.
"PURCHASE TERMINATION DATE" means, with respect to any Seller, the date on
which USFS's obligation to purchase Receivables from such Seller shall
terminate, which shall be the date on which an Early Termination occurs with
respect to such Seller.
"PURCHASE TERMINATION EVENT" has the meaning specified in Section 6.01.
"PURCHASED RECEIVABLE" means, at any time, any Receivable sold to (i) USFS
by any Seller pursuant to, and in accordance with the terms of, this Agreement
and not theretofore resold to such Seller pursuant to subsection 2.01(b) or
Section 2.06 or (ii) the Company by USSC pursuant to, and in accordance with,
the terms of the Original Agreement and not theretofore resold to USSC pursuant
to subsection 2.01(b) or Section 2.06 thereof.
"PURCHASED RECEIVABLES PERCENTAGE" means, with respect to any Seller as to
which USSC has submitted a Seller Termination Request, the percentage equivalent
of a fraction, the numerator of which is an amount equal to the aggregate
outstanding Principal Amount of Purchased Receivables sold by such Seller as of
the applicable Seller Termination Request Date, and the denominator of which is
an amount equal to the aggregate outstanding Principal Amount of all Purchased
Receivables as of such date.
"RECEIVABLE" means the indebtedness and payment obligations of any Person
to a Seller (including, without limitation, obligations constituting an account
or general intangible or evidenced by a note, instrument, contract, security
agreement, chattel paper or other evidence of indebtedness or security) arising
from a sale of merchandise or the provision of services by such Seller,
including, without limitation, any right to payment for goods sold or for
services rendered, and including the right to payment of any interest, sales
taxes, finance charges, returned check or late charges and other obligations of
such Person with respect thereto; PROVIDED that "Receivables" shall not include
Excluded Receivables.
"RECEIVABLES LIST" has the meaning specified in subsection 2.01(e).
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"RECEIVABLES PROPERTY" has the meaning specified in subsection 2.01(a).
"RELATED PROPERTY" means, with respect to each Receivable:
(a) all of the applicable Seller's interest in the goods (including
returned goods), if any, relating to the sale which gave rise to such
Receivable;
(b) all other security interests or Liens, and the applicable
Seller's interest in the property subject thereto from time to time purporting
to secure payment of such Receivable, together with all financing statements
signed by an Obligor describing any collateral securing such Receivable; and
(c) all guarantees, insurance, letters of credit and other
agreements or arrangements of whatever character from time to time supporting or
securing payment of such Receivable;
in the case of clauses (b) and (c), whether pursuant to the contract related to
such Receivable or otherwise or including without limitation, pursuant to any
obligations evidenced by a note, instrument, contract, security agreement,
chattel paper or other evidence of indebtedness or security and the proceeds
thereof.
"RELEVANT UCC STATE" means each jurisdiction in which the filing of a UCC
financing statement is necessary or desirable to perfect USFS's interest in the
Receivables.
"REPORTABLE EVENT" means any reportable event as defined in Section 4043(b)
of ERISA or the regulations issued thereunder with respect to a Plan (other than
a Plan maintained by an ERISA Affiliate which is considered an ERISA Affiliate
only pursuant to subsection (m) or (o) of Section 414 of the Code).
"SEC" means the United States Securities and Exchange Commission.
"SELLER ADDITION DATE" has the meaning specified in Section 3.02.
"SELLER ADJUSTMENT PAYMENT" has the meaning specified in Section 2.05.
"SELLER REPURCHASE PAYMENT" has the meaning specified in subsection
2.06(a).
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"SELLER TERMINATION REQUEST" has the meaning specified in subsection
9.14(a).
"SELLER TERMINATION REQUEST DATE" has the meaning specified in subsection
9.14(a).
"SERIES 1998-1 SUPPLEMENT" means the Second Amended and Restated Series
1998-1 Supplement, dated as of the date hereof, among the Company, the Servicer
and The Chase Manhattan Bank, as Funding Agent, Trustee, Securities Intermediary
and APA Bank, and Park Avenue Receivables Corporation, as Initial Purchaser, to
the Pooling Agreement, as each such agreement may be further amended,
supplemented or otherwise modified from time to time.
"SERIES 2000-2 SUPPLEMENT" means the Amended and Restated Series 2000-2
Supplement, dated as of the date hereof, among the Company, the Servcicer, The
Chase Manhattan Bank, as Trustee and Securities Intermediary, Market Street
Funding Corporation, as Committed Purchaser, and PNC Bank, National Association,
as Administrator, to the Pooling Agreement, as each such agreement may be
further amended, supplemented or otherwise modified from time to time.
"SUBORDINATED NOTE" has the meaning specified in Section 8.01 of the USFS
Receivables Sale Agreement.
"TRUSTEE" has the meaning specified in the recitals hereto.
"UCC CERTIFICATE" means a certificate substantially in the form of Exhibit
C hereto.
"USFS RECEIVABLES SALE AGREEMENT" has the meaning specified in the recitals
hereto.
"USFS SUBORDINATED NOTE" has the meaning specified in Section 8.01.
"WITHDRAWAL LIABILITIES" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
(b) All capitalized terms used herein and not otherwise defined have the
meanings assigned to such terms in Section 1.1 of the Pooling Agreement.
Section 1.02 ACCOUNTING AND UCC TERMS. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP; and all
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terms used in Article 9 of the UCC that are used but not specifically defined
herein are used herein as defined therein.
Section 1.03 OTHER TERMS. The words "herein", "hereof", and "hereunder" and
words of similar import refer to this Agreement as a whole, including the
exhibits and schedules hereto, as the same may from time to time be amended or
supplemented, and not to any particular section, subsection or clause contained
in this Agreement, and all references to Sections, subsections, Exhibits and
Schedules shall mean, unless the context clearly indicates otherwise, the
Sections and subsections hereof and the Exhibits and Schedules attached hereto,
the terms of which Exhibits and Schedules are hereby incorporated into this
Agreement. Whenever appropriate, in the context, terms used herein in the
singular also include the plural, and vice versa.
Section 1.04 COMPUTATION OF TIME PERIODS. 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" and the words "to" and "until" each
mean "to but excluding".
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
Section 2.01 PURCHASE AND SALE OF RECEIVABLES. (a) Each of the Sellers
hereby sells, assigns, transfers and conveys to USFS, without recourse (except
to the limited extent provided herein), all its respective right, title and
interest in, to and under (i) all Receivables now existing and hereafter arising
from time to time, (ii) all payment and enforcement rights (but none of the
obligations) with respect to such Receivables, (iii) all Related Property in
respect of such Receivables, (iv) all Collections with respect to the foregoing
clauses (i), (ii) and (iii) (including any such Collections in any Lockboxes or
Lockbox Accounts) (the payment and enforcement rights, Related Property and
Collections referred to in clauses (ii), (iii) and (iv) above are hereinafter
collectively referred to as the "RECEIVABLES PROPERTY") and (v) all proceeds (as
defined in Section 9-306 of the UCC) of the foregoing.
(b) On each applicable Effective Date and on the date of creation of each
newly created Receivable (but only so long as no Early Termination with respect
to the Seller which created such Receivable shall have occurred and be
continuing), all of the applicable Seller's right, title and interest in, to and
under (i) in the case of each such Effective Date, all then existing Receivables
and all Receivables Property in
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respect of such Receivables and (ii) in the case of each such date of
creation, all such newly created Receivables and all Receivables Property in
respect of such Receivables shall be immediately and automatically sold,
assigned, transferred and conveyed to USFS pursuant to paragraph (a) above
without any further action by such Seller or any other Person. If any Seller
shall not have received payment from USFS of the Purchase Price for any newly
created Receivable and the related Receivables Property on the Payment Date
therefor in accordance with the terms of subsection 2.03(b), such newly created
Receivable and the Receivables Property with respect thereto shall, upon receipt
of notice from the applicable Seller of such failure to receive payment,
immediately and automatically be sold, assigned, transferred and reconveyed by
USFS to such Seller without any further action by USFS or any other Person.
(c) The parties to this Agreement intend that the transactions
contemplated by subsections 2.01(a) and (b) hereby shall be, and shall be
treated as, a purchase by USFS and a sale by the applicable Seller of the
Purchased Receivables and the Receivables Property in respect thereof and not a
loan secured by such Purchased Receivables and Receivables Property. All sales
of Receivables and Receivables Property by any Seller hereunder shall be without
recourse to, or representation or warranty of any kind (express or implied) by,
any Seller, except as otherwise specifically provided herein. The foregoing
sale, assignment, transfer and conveyance does not constitute and is not
intended to result in a creation or assumption by USFS of any obligation of any
Seller or any other Person in connection with the Receivables, the Receivables
Property or any agreement or instrument relating thereto, including any
obligation to any Obligor. If this Agreement does not constitute a valid sale,
assignment, transfer and conveyance of all right, title and interest of each
Seller in, to and under the Purchased Receivables and the Receivables Property
in respect thereof despite the intent of the parties hereto, such Seller hereby
grants a "security interest" (as defined in the UCC) in the Purchased
Receivables, the Receivables Property in respect thereof and all proceeds
thereof to USFS and the parties agree that this Agreement shall constitute a
security agreement under the UCC. With respect to Purchased Receivbables and
Receivables Property (as such terms are defined in the Original Agreement) that
have been sold by USSC to the Company pursuant to the Orignal Agreement, the
security interest granted by USSC to the Company pursuant to subsection 2.01(c)
of the Original Agreement in all right, title and interest of USSC in, to and
under such Purchased Receivables and Receivables Property shall remain in full
force and effect.
(d) In connection with the foregoing conveyances, each Seller agrees
to record and file, at its own expense, financing statements (and continuation
statements with respect to such financing statements when applicable) with
respect to the Receivables and Receivables Property now existing and hereafter
acquired by
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USFS from the Sellers meeting the requirements of applicable state law in such
manner and in such jurisdictions as are necessary to perfect USFS's
ownership or security interest in the Receivables and Receivables Property, and
to deliver evidence of the execution and delivery of such financing statements
to USFS on or prior to the related Effective Date.
(e) In connection with the foregoing conveyances, each Seller agrees
at its own expense, as agent of USFS, (i) to indicate, or cause to be indicated,
on the computer files containing a master database of Receivables that all
Receivables included in such files and all Receivables Property, have been sold
to USFS in accordance with this Agreement and (ii) to deliver, or cause to be
delivered, to USFS computer files, microfiche lists, a typed or printed list or
other tangible evidence reasonably acceptable to USFS (a "RECEIVABLES LIST")
containing true and complete list (A) on the Closing Date, of (I) the Obligors
whose Receivables have been sold to the Company prior to the Closing Date and
the balance of the Receivables of each such Obligor as of the Closing Date and
(B) on each Effective Date (including the Closing Date) of Obligors whose
Receivables are to be sold to USFS on such Effective Date and the balance of the
Receivables of each such Obligor as of such Effective Date.
Section 2.02 PURCHASE PRICE. The amount payable by USFS to a Seller, (the
"PURCHASE PRICE") for Receivables and Receivables Property on any Payment Date
under this Agreement shall be equal to the product of (a) the aggregate
outstanding Principal Amount of such Receivables as set forth in the applicable
Required Report and (b) the Discounted Percentage with respect to such Seller.
Section 2.03 PAYMENT OF PURCHASE PRICE. (a) Upon the fulfillment of the
conditions set forth in Article III, the Purchase Price for Receivables and the
Receivables Property shall be paid or provided for by USFS in the manner
provided below on each day for which a Required Report is delivered pursuant to
Section 4.1 of the Servicing Agreement (each such day, a "PAYMENT DATE") in
respect of a Reported Period (which Required Report shall specify, by Seller,
the Principal Amount of Receivables being sold on such Payment Date, the
aggregate Purchase Price for such Receivables and the components of payment as
provided in paragraph (b) below). The Sellers hereby appoint the Servicer as
their agent to receive, for allocation by the Servicer to the Sellers, payments
of the Purchase Price of the Receivables and the Receivables Property sold to
USFS and hereby authorize USFS to make all such payments due to any Seller
directly to an account of, or as otherwise directed by, the Servicer. The
Servicer hereby accepts and agrees to such appointment. All payments under this
Agreement shall be made not later than 3:00 p.m. (New York City time) on the
date specified therefor in Dollars in same day
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funds or by check, as the Servicer shall elect, and to the bank account
designated in writing by the Servicer to USFS.
(b) The Purchase Price for Receivables and Receivables Property shall be
paid by USFS on each Payment Date as follows:
(i) by netting the amount of any Seller Adjustment Payments or Seller
Repurchase Payments pursuant to Section 2.05 or 2.06, respectively, against
such Purchase Price;
(ii) to the extent available for such purpose, in cash from the net
proceeds of transfers of interests in Purchased Receivables by USFS to
other Persons including, without limitation, the Company pursuant to the
USFS Receivables Sale Agreement;
(iii) at the option of USFS, by means of an addition to the principal
amount of the USFS Subordinated Note in an aggregate amount equal to the
remaining portion of the Purchase Price; PROVIDED, HOWEVER, that with
respect to any Seller, the outstanding principal amount of such Seller's
interest in the USFS Subordinated Note shall not at any time exceed 25% of
the Outstanding Sale Price Amount with respect to such Seller; PROVIDED
FURTHER that USFS may pay the Purchase Price by means of additions to the
principal amount of the USFS Subordinated Note only if, at the time of such
payment and after giving effect thereto, the fair market value of USFS's
assets, including, without limitation, amounts owed to USFS by the Company
under the Subordinated Note and the Contributed Note, is greater than the
amount of its liabilities including, without limitation, its liabilities
under the USFS Subordinated Note and any amounts due and payable by USFS
under the USFS Receivables Sale Agreement and the other Transaction
Documents. Any such addition to the principal amount of the USFS
Subordinated Note shall be allocated among the Sellers (PRO RATA according
to the Principal Amount of Receivables sold by each Seller) by the Servicer
in accordance with the provisions of this subsection 2.03(b)(iii) and
Section 8.01. The Servicer may evidence such additional principal amounts
by recording the date and amount thereof on the grid attached to such USFS
Subordinated Note, PROVIDED that the failure to make any such recordation
or any error in such grid shall not adversely affect any Seller's rights;
and
(iv) in cash from the proceeds of capital contributed by USSC to USFS,
if any, in respect of its equity interest in USFS.
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(c) The Servicer shall be responsible, in its sole discretion but in
accordance with the preceding subsection 2.03(b), for allocating among the
Sellers the payment of the Purchase Price for Receivables and any amounts netted
therefrom pursuant to subsection 2.03(b)(i), which allocation shall be, subject
to the first proviso contained in subsection 2.03(b)(iii), either in the form of
cash received from USFS or as an addition to the principal amount of a Seller's
interest in the USFS Subordinated Note.
(d) Whenever any payment to be made under this Agreement shall be stated to
be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day. Amounts not paid when due in accordance with the
terms of this Agreement shall bear interest at a rate equal at all times to the
ABR PLUS 2%, payable on demand.
Section 2.04 NO REPURCHASE. Except to the extent expressly set forth
herein, no Seller shall have any right or obligation under this Agreement, by
implication or otherwise, to repurchase from USFS any Purchased Receivables or
Receivables Property or to rescind or otherwise retroactively affect any
purchase of any Purchased Receivables or Receivables Property after the Payment
Date relating thereto.
Section 2.05 REBATES, ADJUSTMENTS, RETURNS AND REDUCTIONS; MODIFICATIONS.
From time to time, a Seller may make Dilution Adjustments to Receivables in
accordance with this Section 2.05 and subsection 5.03(c). The Sellers, jointly
and severally, agree to pay to USFS in cash, on the first Business Day
immediately succeeding the date of the grant of any Dilution Adjustment
(regardless of which Seller shall have granted such Dilution Adjustment), the
amount of any such Dilution Adjustment (a "SELLER ADJUSTMENT PAYMENT"); PROVIDED
that, prior to the occurrence of any Early Termination with respect to all
Sellers, any such Seller Adjustment Payment due to USFS on any Payment Date
shall, on such Payment Date, be netted against the Purchase Price of newly
created Receivables in accordance with subsection 2.03(b)(i) to the extent of
such Purchase Price and the remaining amount of such Seller Adjustment Payment
due to USFS after such netting, if any, shall be paid to USFS on such date in
cash. The amount of any Dilution Adjustment made with respect to any Reported
Period shall be set forth on the Required Report prepared with respect to such
Reported Period.
Section 2.06 LIMITED REPURCHASE OBLIGATIONS. (a) With respect to
Receivables conveyed to USFS on or after the date hereof, in the event that (i)
any representation or warranty contained in Section 4.02 in respect of any such
Receivable transferred to USFS is not true and correct in any material respect
on the
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applicable Payment Date, or (ii) there is a breach of any covenant contained in
subsection 5.01(d), (g) or (h) or Section 5.03 with respect to the Seller of any
such Receivable and such breach has a material adverse effect on USFS's interest
in such Receivable or (iii) USFS's interest in any such Receivable is not a
first priority perfected ownership or security interest at any time as a result
of any action taken by, or any failure to take action by, any Seller, then the
relevant Seller agrees to pay to USFS in cash an amount equal to the Purchase
Price of such Receivable (whether USFS paid such Purchase Price in cash or
otherwise) less Collections received by the Company in respect of such
Receivable pursuant to the Pooling Agreement, such payment to occur no later
than the Payment Date occurring on the 30th day (or, if such 30th day is not a
Payment Date, on the Payment Date immediately succeeding such 30th day) after
the day such breach or incorrectness becomes known (or should have become known
with due diligence) to such Seller (unless such breach or incorrectness shall
have been cured on or before such day); PROVIDED that, prior to any Early
Termination with respect to all Sellers, any such payment due and owing to USFS
on such Payment Date shall be netted against the Purchase Price of newly created
Receivables in accordance with subsection 2.03(b)(i) to the extent of such
Purchase Price and the remaining amount of such payment due to USFS after such
netting, if any, shall be paid to USFS in cash to the extent still unpaid on
such Payment Date. Any payment by any Seller pursuant to this subsection 2.06(a)
is referred to as a "SELLER REPURCHASE PAYMENT." The obligation to reacquire any
Receivable shall, upon satisfaction thereof, constitute the sole remedy with
respect to the event giving rise to such obligation available to USFS.
Simultaneously with any Seller Repurchase Payment with respect to any
Receivable, such Receivable and the Receivables Property with respect thereto
shall immediately and automatically be sold, assigned, transferred and conveyed
by USFS to the applicable Seller without any further action by USFS or any other
Person.
(b) With respect to Receivables conveyed to the Company prior to the
Closing Date, in the event that (i) any representation or warranty contained in
Section 4.02 of the Original Agreement in respect of any such Receivable
transferred to the Company pursuant to the Original Agreement is not true and
correct in any material respect on the applicable Payment Date, or (ii) there is
a breach of any covenant contained in subsection 5.01(d), (g) or (h) or Section
5.03 of the Original Agreement with respect to any such Receivable and such
breach has a material adverse effect on the Company's interest in such
Receivable or (iii) the Company's interest in any such Receivable is not a first
priority perfected ownership or security interest at any time as a result of any
action taken by, or any failure to take action by, USSC, then USSC agrees to pay
to the Company in cash an amount equal to the Purchase Price of such Receivable
(whether the Company paid such Purchase Price
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in cash or otherwise) less Collections received by the Company in respect of
such Receivable pursuant to the Pooling Agreement, such payment to occur no
later than the Payment Date occurring on the 30th day (or, if such 30th day is
not a Payment Date, on the Payment Date immediately succeeding such 30th day)
after the day such breach or incorrectness becomes known (or should have become
known with due diligence) to USSC (unless such breach or incorrectness shall
have been cured on or before such day). Any payment by USSC pursuant to this
subseection 2.06(b) is referred to as a "COMPANY SELLER REPURCHASE PAYMENT." The
obligation to reacquire any such Receivable shall, upon satisfaction thereof,
constitute the sole remedy respecting the event giving rise to such obligation
available to the Company. Simultaneously with any Company Seller Repurchase
Payment with respect to any Receivable, such Receivable and the Receivables
Property with respect thereto shall immediately and automatically be sold,
assigned, transferred and conveyed by the Company to USSC without any further
action by the Company or any other Person.
Section 2.07 OBLIGATIONS UNAFFECTED. The obligations of the Sellers to USFS
under this Agreement shall not be affected by reason of any invalidity,
illegality or irregularity of any Receivable or any sale of a Receivable.
Section 2.08 CERTAIN CHARGES. Each Seller and USFS agree that late charge
revenue, reversals of discounts, other fees and charges and other similar items,
whenever created, accrued in respect of Purchased Receivables shall be the
property of USFS notwithstanding the occurrence of an Early Termination and all
Collections with respect thereto shall continue to be allocated and treated as
Collections in respect of Purchased Receivables.
Section 2.09 CERTAIN ALLOCATIONS. The Sellers hereby agree that, following
the occurrence of an Early Termination, all Collections and other proceeds
received in respect of Receivables generated by USSC and sold to the Company
prior to the date hereof pursuant to the Original Agreement shall be applied,
FIRST to pay the outstanding Principal Amount of Purchased Receivables (as of
the date of such Early Termination) of the Obligor to whom such Collections are
attributable until such Purchased Receivables are paid in full and, SECOND to
USSC to pay Receivables of such Obligor not sold to the Company pursuant to the
Original Agreement; PROVIDED, HOWEVER, that notwithstanding the foregoing, if an
Obligor indicates that a particular Collection be applied to a specific
Receivable of such Obligor, then such Collection shall be applied to pay such
Receivable.
Section 2.10 FURTHER ASSURANCES. From time to time at the request of a
Seller, USFS shall deliver to such Seller such documents, assignments, releases
and instruments of termination as such Seller may reasonably request to evidence
the
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reconveyance by USFS to such Seller of a Receivable pursuant to the terms of
subsection 2.01(b) or Section 2.06, PROVIDED that USFS shall have been paid all
amounts due thereunder; and USFS and the Servicer shall take such action as such
Seller may reasonably request, at the expense of such Seller, to assure that any
such Receivable, the Related Property and Collections with respect thereto do
not remain commingled with other Collections hereunder.
Section 2.11 ADDITIONAL REPURCHASE OBLIGATIONS. (a) (i) With respect to
Receivables conveyed to USFS on or after the Closing Date, in the event of any
breach by any Seller of any of the representations and warranties set forth in
subsection 4.02(a), (b), (c), (e), (f) or (g), as of the date made, which breach
has a material adverse effect on the interests of USFS in such Receivables or
the related Receivables Property, then USFS, by notice then given in writing to
such Seller, may direct such Seller to purchase all Receivables and Receivables
Property sold by such Seller to USFS and such Seller shall be obligated to make
such purchase on the next Distribution Date occurring at least five Business
Days after receipt of such notice on the terms and conditions set forth in
subsection 2.11(b) below; PROVIDED, HOWEVER, that no such purchase shall be
required to be made if, by such Distribution Date, the representations and
warranties contained in subsections 4.02(a), (b), (c), (e), (f) or (g) shall be
true and correct in all material respects, and any material adverse effect on
USFS caused thereby has been cured.
(ii) With respect to Receivables conveyed to the Company pursuant to
the Original Agreement prior to the Closing Date, in the event of any breach by
USSC of any of the representations and warranties set forth in subsection
4.02(a), (b), (c), (e), (f) or (g) of the Original Agreement, as of the date
made, which breach has a material adverse effect on the interests of Company in
such Receivables or the related Receivables Property, then USSC, upon receipt of
notice from the Company, shall be obligated to purchase the Receivables and
Receivables sold by it to the Company pursuant to the Original Agreement on the
next Distribution Date occurring at least five Business Days after receipt of
such notice on the terms and conditions set forth in subsection 2.11(b) below;
PROVIDED, HOWEVER, that no such purchase shall be required to be made if, by
such Distribution Date, the representations and warranties contained in
subsections 4.02(a), (b), (c), (e), (f) or (g) of the Original Agreement shall
be true and correct in all material respects, and any material adverse effect on
the Company caused thereby has been cured.
(b) Such Seller or USSC, as the case may be, shall, as the purchase price
for the Receivables and Receivables Property to be purchased pursuant to
subsection 2.11(a) above, pay to USFS or the Company, as applicable, on the
Business Day preceding such Distribution Date, an amount equal to the Purchase
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Price of the relevant Purchased Receivables, less Collections received by the
Company pursuant to the Pooling Agreement in respect of such Purchased
Receivables, as of such Distribution Date. Upon payment of such amount, in
immediately available funds, to USFS or the Company, as applicable, the rights
of rights of USFS or the Company, as the case may be, with respect to such
Purchased Receivables shall terminate and such interest therein will be
transferred to such Seller or USSC, as applicable, and USFS or the Company, as
applicable, shall have no further rights with respect thereto. If USFS or the
Company, as the case may be, gives notice directing the Seller or USSC, as
applicable, to purchase the Purchased Receivables as provided above, the
obligation of such Seller or USSC, as applicable, to purchase the Purchased
Receivables pursuant to this Section 2.11 shall upon satisfaction thereof
constitute the sole remedy with respect to an event of the type specified in the
first sentence of each of subsection 2.11(a)(i) and 2.11(a)(ii) available to
USFS and the Company, respectively.
ARTICLE III
CONDITIONS TO PURCHASES
Section 3.01 CONDITIONS PRECEDENT TO USFS's INITIAL PURCHASE. The
obligation of USFS to purchase Receivables and Receivables Property hereunder on
the Effective Date from the Sellers is subject to the conditions precedent that
USFS shall have received on or before the date of such purchase the following,
each (unless otherwise indicated) dated the Closing Date of such sale and in
form and substance reasonably satisfactory to USFS:
(a) RESOLUTIONS. Copies of the resolutions of the Board of Directors
of each Seller approving this Agreement and the other Transaction Documents to
be delivered by such Seller and the transactions contemplated thereby, certified
by the Secretary or Assistant Secretary of such Seller;
(b) SECRETARY'S CERTIFICATE. A certificate of the Secretary or
Assistant Secretary of each Seller certifying the names and true signatures of
the officers authorized on behalf of such Seller to sign this Agreement and the
other Transaction Documents to be delivered by it (on which certificates USFS
may conclusively rely until such time as USFS shall receive from any such Seller
a revised certificate with respect to such Seller meeting the requirements of
this subsection (b));
(c) CORPORATE DOCUMENTS. The certificate or articles of incorporation
of each Seller, duly certified by the secretary of state of such Seller's
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jurisdiction of incorporation, as of a recent date acceptable to USFS, together
with a copy of the by-laws of such Seller, duly certified by the Secretary or an
Assistant Secretary of such Seller;
(d) UCC CERTIFICATE, UCC FINANCING STATEMENTS. (i) A UCC Certificate
duly executed by a Responsible Officer of the applicable Seller and dated such
date of purchase and (ii) executed copies of such proper financing statements,
in form suitable for filing, naming the applicable Seller as the seller, USFS as
the purchaser and the Company as assignee of the Receivables, the Receivables
Property and all proceeds thereof in each jurisdiction in which USFS (or any of
its assignees) deems it necessary or desirable to perfect USFS's ownership
interest in all Receivables and Receivables Property under the UCC or any
comparable law of such jurisdiction;
(e) UCC SEARCHES. A written search report listing all effective
financing statements that name the applicable Seller as debtor or assignor and
that are filed in the jurisdictions in which filings were made pursuant to
subsection 3.01(d) and in any other jurisdictions that USFS determines are
necessary or appropriate, together with copies of such financing statements
(none of which, except for those described in subsection 3.01(d) or the
financing statements previously executed by USSC in favor of the Company shall
cover any Receivables or Receivables Property), and tax and judgment lien
searches showing no such liens that are not permitted by the Transaction
Documents;
(f) OTHER TRANSACTION DOCUMENTS. Original copies, executed by each of
the parties thereto, of each of the other Transaction Documents to be executed
and delivered in connection herewith;
(g) Reserved.
(h) CONSENTS. Copies of all consents, if any (including, without
limitation, consents under loan agreements and indentures to which any Seller or
its Affiliates are parties), necessary to consummate the transactions
contemplated by the Transaction Documents;
(i) LEGAL OPINIONS. One or more legal opinions from counsel to the
Sellers and counsel to USFS to the effect that:
(A) the sales of Receivables by each Seller to USFS pursuant to
this Agreement are true sales and that such Receivables would not be property of
such Seller's bankruptcy estate;
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(B) a court should not order the substantive consolidation of the
assets and liabilities of the Company, on the one hand, with those of any Seller
or USFS, on the other hand;
(C) to the effect that each Seller and USFS, as applicable, has
all approvals, judicial, regulatory, legal or otherwise, needed to execute,
deliver and perform each Transaction Document to which it is a party and that no
conflict or default will occur as a result of the execution, delivery and
performance thereof;
(D) to the effect that USFS has a perfected ownership or security
interest in the Receivables and Receivables Property; and
(E) addressing other customary matters.
All of the legal opinions referred to in this subsection 3.01(i) shall be
addressed to the Trustee and any other Person reasonably requested by USFS.
(j) RESERVED.
(k) LIST OF OBLIGORS. A Receivables List containing the information
required by subsection 2.01(e)(ii).
Section 3.02 CONDITIONS PRECEDENT TO THE ADDITION OF A SELLER. No
Subsidiary of United Stationers Inc. approved by USFS as an additional Seller
pursuant to Section 9.13 shall be added as a Seller hereunder unless the
conditions set forth below shall have been satisfied on or before the date
designated for the addition of such Seller (the "SELLER ADDITION DATE"):
(a) ADDITIONAL SELLER SUPPLEMENT, UCC CERTIFICATE. USFS shall have
received (with a copy for the Trustee) (i) an Additional Seller Supplement duly
executed and delivered by such Seller and (ii) a UCC Certificate duly executed
by a Responsible Officer of such Seller and dated the related Seller Addition
Date.
(b) RESOLUTIONS. USFS shall have received copies of duly adopted
resolutions of the Board of Directors of such Seller as in effect on the related
Seller Addition Date and in form and substance reasonably satisfactory to USFS,
authorizing this Agreement, the documents to be delivered by such Seller
hereunder and the transactions contemplated hereby, certified by the Secretary
or Assistant Secretary of such Seller.
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(c) SECRETARY'S CERTIFICATE. USFS shall have received duly executed
certificates of the Secretary or an Assistant Secretary of such Seller, dated
the related Seller Addition Date, certifying the names and true signatures of
the officers authorized on behalf of such Seller to sign the Additional Seller
Supplement or any instruments or documents in connection with this Agreement.
(d) CORPORATE DOCUMENTS. USFS shall have received the certificate or
articles of incorporation (or equivalent charter document) of such Seller, duly
certified by the secretary of state of such Seller's jurisdiction of formation,
as of a recent date acceptable to USFS, together with a copy of the by-laws (or
equivalent governance document) of such Seller, duly certified by the Secretary
or an Assistant Secretary of such Seller.
(e) LOCKBOX AGREEMENT. A Lockbox Account with respect to Receivables
to be sold by such Seller shall have been established in the name of the Company
(or established in the name of such seller and assigned to USFS which will then
assign such Lockbox Account to the Company), and the Servicer shall have
delivered with respect to such Lockbox Account a Lockbox Agreement in
substantially the form of Exhibit A to the Pooling Agreement.
(f) UCC SEARCHES. USFS shall have received reports of UCC and other
searches of such Seller with respect to the Receivables and the Receivables
Property reflecting the absence of Liens thereon, except Permitted Liens and
Liens created in connection with a transfer by USFS of such Purchased
Receivables and except for Liens as to which USFS has received UCC termination
statements in proper form for filing.
(g) UCC FINANCING STATEMENTS. Such Seller shall have filed and
recorded, at its own expense, UCC-1 financing statements naming USFS as
purchaser and such Seller as seller with respect to the Receivables and the
Receivables Property (excluding returned merchandise) in such manner and in such
jurisdictions as are necessary or desirable to perfect USFS's ownership or
security interest therein under the UCC and delivered evidence of such filings
to USFS; and all other action necessary or desirable, in the opinion of USFS, to
perfect USFS's ownership or security interest in the Receivables and Receivables
Property shall have been duly taken.
(h) LIST OF OBLIGORS. Such Seller shall have delivered to USFS a a
Receivables List containing the information required by subsection 2.01(e)(ii).
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(i) OPINIONS. USFS shall have received (i) legal opinions on behalf of
such Seller as to general corporate matters of such Seller (including, without
limitation, an opinion as to the perfection and priority of USFS's interest in
the Purchased Receivables) and (ii) confirmation (A) as to the "true sale"
nature of the sale of Receivables of such Seller hereunder and (B) as to the
absence of substantive consolidation issues between such Seller, United
Stationers Inc., USSC and USFS on the one hand and the Company on the other
hand, all in form and substance reasonably satisfactory to USFS. Such legal
opinions and confirmation shall be addressed to the Trustee and any other Person
reasonably requested by the Company.
(j) Reserved.
(k) CONSENTS. USFS shall have received copies of all consents with
respect to such Seller, if any (including, without limitation, consents under
loan agreements and indentures to which such Seller or its Affiliates are
parties), necessary to consummate the transactions contemplated by the
Transaction Documents.
(l) GUARANTY. USSC shall have executed and delivered to USFS an
instrument in form and substance satisfactory to USFS, the Company, and the
Trustee, on behalf of the Holders, pursuant to which USSC shall guarantee the
obligations of such additional Seller under this Agreement.
Section 3.03 CONDITIONS PRECEDENT TO EACH OF USFS's PURCHASES OF
RECEIVABLES. The obligation of USFS to pay for any Receivable and the
Receivables Property with respect thereto on each Payment Date (including the
Effective Date) shall be subject to the further conditions precedent that, on
and as of such Payment Date:
(a) the following statements shall be true (and the acceptance by the
relevant Seller of the Purchase Price for such Receivable on such Payment Date
shall constitute a representation and warranty by such Seller that on such
Payment Date such statements are true):
(i) the representations and warranties of such Seller contained
in Section 4.02 shall be true and correct in all material respects on and
as of such Payment Date as though made on and as of such date except to the
extent any such representation or warranty is expressly made only as of
another date (in which case it shall be true and correct in all material
respects on and as of such other date);
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(ii) after giving effect to such purchase, no (A) Early
Termination with respect to such Seller or (B) Potential Purchase
Termination Event with respect to a Purchase Termination Event set forth in
clause (g)(ii) of Section 6.01 shall have occurred and be continuing; and
(iii) there has been no material adverse change since the date of
this Agreement in the collectibility of the Receivables taken as a whole;
(b) USFS and the Trustee shall be satisfied that such Seller's
systems, procedures and record keeping relating to the Purchased Receivables
remain in all material respects sufficient and satisfactory in order to permit
the purchase and administration of the Purchased Receivables in accordance with
the terms and intent of this Agreement;
(c) USFS shall have received payment in full of all amounts for which
payment is due from such Seller pursuant to Sections 2.05, 2.06 or 7.01;
(d) USFS shall have received such other approvals, opinions or
documents as USFS may reasonably request; and
(e) such Seller shall have complied with all of its covenants in all
material respects and satisfied all of its obligations in all material respects
under this Agreement required to be complied with or satisfied as of such date;
PROVIDED, HOWEVER, that the failure of such Seller to satisfy any of the
foregoing conditions shall not prevent such Seller from subsequently selling
Receivables upon satisfaction of all such conditions or exercising its rights
under subsection 2.01(b).
Section 3.04 CONDITION PRECEDENT TO EACH SELLER'S OBLIGATIONS. The
obligation of a Seller on each Payment Date (including on the Effective Date)
shall be subject to the condition precedent that, on such date, the following
statement shall be true (and the payment by USFS of the Purchase Price for such
Receivable on such date shall constitute a representation and warranty by USFS
that on such Payment Date such statement is true): (i) no Early Amortization
Event or Potential Early Amortization Event of a type, with respect to the
Company, set forth in subsection 7.1(a) of the Pooling Agreement shall have
occurred and be continuing and (ii) no Early Termination, as set forth in
Section 6 of the USFS Receivables Sale Agreement, shall have occurred.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 REPRESENTATIONS AND WARRANTIES OF USFS. USFS represents and
warrants as to itself for the benefit of the Sellers as follows:
(a) It (i) is a limited liability company duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
formation, and is duly qualified as a foreign limited liability company and is
in good standing in each jurisdiction in which the ownership of its property or
its business as conducted and proposed to be conducted require such
qualification or in which the failure to so qualify would not reasonably be
expected to have a Material Adverse Effect, (ii) has the requisite limited
liability company power and authority to effect the transactions contemplated
hereby, and (iii) has all requisite limited liability company power and
authority and the legal right to own, pledge, mortgage and operate its
properties, and to conduct its business as now or currently proposed to be
conducted.
(b) The execution, delivery and performance by it of this Agreement
and all instruments and documents to be delivered hereunder by it, and the
transactions contemplated hereby and thereby, (i) are within its limited
liability company powers, have been duly authorized by all necessary limited
liability company action and do not (A) contravene its certificate of formation
or limited liability company agreement, (B) violate any law or regulation or any
order or decree of any court or governmental instrumentality, (C) conflict with
or result in the breach of, or constitute a default under, any indenture,
mortgage or deed of trust or any material lease, agreement or other instrument
binding on or affecting it or any of its respective subsidiaries or any of its
material properties or (D) result in or require the creation or imposition of
any Lien EXCEPT as created or imposed hereunder or under the Pooling Agreement,
and no transaction contemplated hereby requires compliance on its part with any
bulk sales act or similar law, and (ii) do not require the consent of,
authorization by or approval of or notice to or filing or registration with, any
governmental body, agency, authority, regulatory body or any other Person other
than those which have been obtained or made EXCEPT for the filing of the
financing statements referred to in ARTICLE III hereof, which filings the
Sellers hereby represent shall have been duly made prior to or substantially
contemporaneously with any purchases of Receivables and other Receivables
Property and shall at all times be in full force and effect (except as they may
be terminated by USFS). This Agreement has been duly executed and delivered by
USFS and constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms except (A) as such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent
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conveyance, reorganization, moratorium or other similar laws now or hereafter in
effect affecting the enforcement of creditors' rights in general, and (B) as
such enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
Section 4.02 REPRESENTATIONS AND WARRANTIES OF THE SELLERS. Each Seller
hereby represents and warrants for the benefit of USFS and its assigns on the
Closing Date and on each Payment Date, as follows:
(a) ORGANIZATION AND GOOD STANDING. Such Seller (i) is an entity duly
organized or formed and validly existing as an entity in good standing under the
laws of the state of its incorporation or formation, as the case may be, (ii) is
duly qualified as a foreign entity and is in good standing in each jurisdiction
in which the failure to so qualify would reasonably be expected to have a
Material Adverse Effect and (iii) and has full power, authority and legal right
to own its properties and conduct its business as such properties are presently
owned and such business is presently conducted, and to execute, deliver and
perform its obligations under this Agreement.
(b) DUE QUALIFICATION. Such Seller has obtained all necessary licenses
and approvals in all jurisdictions in which the ownership or lease of property
or the conduct of its business requires such qualification, licenses or
approvals and where the failure to preserve and maintain such qualification,
licenses or approvals is reasonably likely to have a Material Adverse Effect.
(c) DUE AUTHORIZATION. The execution and delivery of this Agreement
and the other Transaction Documents to which it is a party and the consummation
of the transactions provided for therein have been duly authorized by such
Seller by all necessary action on its part.
(d) NO DEFAULT. Such Seller is not in default under or with respect to
any of its Contractual Obligations in any respect which would be reasonably
likely to have a Material Adverse Effect with respect to such Seller. No (i)
Early Termination or (ii) Potential Purchase Termination Event with respect to a
Purchase Termination Event set forth in clause (g)(ii) of Section 6.01, in each
case with respect to such Seller, has occurred and is continuing.
(e) VALID SALE; BINDING OBLIGATIONS. Each transfer of Receivables and
Receivables Property made pursuant to this Agreement shall constitute a valid
sale, transfer and assignment of the Receivables and the Receivables Property to
USFS which is perfected and of first priority under
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applicable law, enforceable against creditors of, and purchasers from, such
Seller; and this Agreement constitutes, and each other Transaction Document to
be signed by such Seller when duly executed and delivered will constitute, an
enforceable obligation of such Seller in accordance with its terms, except (A)
as such enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights in general,
and (B) as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity).
(f) NO VIOLATION. The execution, delivery and performance of, and the
consummation of the transactions contemplated by, this Agreement and the other
Transaction Documents and the fulfillment of the terms hereof and thereof will
not (i) conflict with, result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time or both) a default
(which, in the case of clauses (B) and (C) below would reasonably be expected to
cause a Material Adverse Effect) under, (A) the articles or certificate of
incorporation or by-laws of such Seller (or equivalent governance documents),
(B) any contract, indenture, loan agreement, mortgage, deed of trust, or, (C)
other material agreement or instrument to which such Seller is a party or by
which such Seller or any of its material properties is bound, (ii) result in the
creation or imposition of any Lien upon any of its properties pursuant to the
terms of any such contract, indenture, loan agreement, mortgage, deed of trust,
or other agreement or instrument, other than this Agreement and the other
Transaction Documents, or (iii) violate any law or any order, rule, or
regulation of any court or of any federal, state, local or other regulatory
body, administrative agency, or other governmental instrumentality of the United
States of America having jurisdiction over such Seller or any of its properties.
(g) NO PROCEEDINGS. There are no proceedings or investigations pending
or, to the knowledge of such Seller, threatened against such Seller before any
court, regulatory body, administrative agency, or other tribunal or governmental
instrumentality (i) asserting the invalidity of this Agreement or any other
Transaction Document, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or any other Transaction Document,
(iii) seeking any determination or ruling that, in the reasonable judgment of
such Seller, could materially and adversely affect the performance by such
Seller of its obligations under this Agreement or any other Transaction Document
or (iv) seeking any determination or ruling that could materially and adversely
affect the validity or enforceability of this Agreement or any other Transaction
Document.
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(h) BULK SALES ACT. No transaction contemplated by this Agreement or
any other Transaction Document with respect to such Seller requires compliance
with, or will be subject to avoidance under, any bulk sales act or similar law.
(i) GOVERNMENT APPROVALS. No authorization or approval or other action
by, and no notice to or filing with, any governmental authority or regulatory
body in the United States of America is required for the due execution, delivery
and performance by such Seller of this Agreement or any other Transaction
Document to which it is a party EXCEPT for the filing of the UCC financing
statements referred to in Article III, all of which, at the time required in
Article III, shall have been duly made and shall be in full force and effect.
(j) BONA FIDE RECEIVABLES. Each Receivable of such Seller is, or will
be, if transferred pursuant to this Agreement, or was, if transferred pursuant
to the Original Agreement, an account receivable arising out of such Seller's
performance in accordance with the terms of the Contract, if any, giving rise to
such Receivable. Such Seller has no knowledge of any fact which would lead it to
expect that such Eligible Receivable will not be paid in full when due. Each
Receivable sold by it under the Original Agreement or hereunder, as the case may
be, and designated on a Required Report to be an Eligible Receivable was or will
be, as the case may be, at its respective Payment Date, an Eligible Receivable.
The aggregate outstanding Principal Amount of Receivables so sold by such Seller
on any Payment Date and so designated as Eligible Receivables was or will be, as
the case may be, correctly set forth on the Required Report with respect to such
Payment Date.
(k) OFFICE. The principal place of business and the chief executive
office of such Seller are as indicated for such Seller on Schedule II hereto and
have not changed during the period of four consecutive months ending on such
date (unless otherwise indicated on the UCC Certificate delivered by such Seller
pursuant to subsection 3.01(d) or 3.02(a), as the case may be), and the offices
where such Seller keeps its records concerning the Receivables and related
Contracts and all purchase orders and other agreements related to the
Receivables are as indicated for such Seller on Schedule II hereto (or at such
other locations, notified to USFS in accordance with Section 5.01(i), in
jurisdictions where all action required by subsections 5.01(r)(1) has been taken
and completed).
(l) MARGIN REGULATIONS. No use of any funds obtained by such Seller
under this Agreement or the other Transaction Documents will conflict with or
contravene any of Regulations T, U and X promulgated by the Board of Governors
of the Federal Reserve System from time to time.
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(m) QUALITY OF TITLE. Each Seller is the legal and beneficial owner of
each Receivable and all Receivables Property which is to be transferred to USFS
by such Seller, and such Receivables and Receivables Property shall be
transferred by such Seller free and clear of any Lien (other than any Permitted
Lien or Lien arising under any other Transaction Document, arising solely as the
result of any action taken by USFS hereunder or any Permitted Lien); prior to
such transfer such Seller shall have made all filings under applicable law in
each relevant jurisdiction in order to protect and perfect USFS's ownership or
security interest in all Receivables and Receivables Property against all
creditors of, and purchasers from, such Seller; and USFS shall have acquired and
shall continue to have maintained a valid and perfected first priority ownership
or security interest in each Receivable and the Receivables Property free and
clear of any Lien (other than any Lien arising solely as the result of any
action taken by USFS hereunder or by the Trustee); and no effective financing
statement or other instrument similar in effect covering any Receivable, any
interest therein or any Receivables Property with respect thereto is on file in
any recording office except such as may be filed in favor of (i) such Seller in
accordance with the Contracts, (ii) USFS pursuant to this Agreement and (iii)
the Trustee pursuant to the Pooling Agreement.
(n) ACCURACY OF INFORMATION. All factual written information
heretofore or contemporaneously furnished by such Seller or its Affiliates
(other than USFS) to USFS for purposes of or in connection with any Transaction
Document or any transaction contemplated hereby or thereby is, and all other
such factual, written information hereafter furnished (if prepared by such
Seller or any Affiliate or, if not prepared by such Seller or any Affiliate, to
the extent that information contained therein was supplied by such Seller or any
Affiliate) by such Seller or any Affiliate (other than USFS) to USFS pursuant to
or in connection with any Transaction Document shall be, true and accurate in
every material respect on the date as of which such information is or will be
furnished (unless such information relates to another date), and such
information is not, and shall not be (as the case may be) incomplete by omitting
to state a material fact or any fact necessary to make the statements contained
therein not misleading as of such date.
(o) PROCEEDS BANKS, PAYMENT INSTRUCTIONS. The names and addresses of
all the Lockbox Processors, together with the account numbers of the Lockbox
Accounts into which collections are deposited at such institutions, are
specified in Schedule III. The Sellers have transferred all of their right,
title and interest in each Lockbox Account to USFS, which will in turn transfer
such interest to the Company. Each Lockbox Processor has executed and delivered
to the Company a Lockbox Agreement. Each Seller, or the Servicer on its behalf,
will
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instruct all Obligors to make all payments in respect of the Receivables
and Related Property in accordance with subsection 2.3(a) of the Servicing
Agreement.
(p) VALID TRANSFERS. No transfer of any Receivables or any Receivables
Property to USFS by such Seller constitutes a fraudulent transfer or fraudulent
conveyance or is otherwise void or voidable under similar laws or principles,
the doctrine of equitable subordination or for any other reason. The transfers
of Receivables and Receivables Property by such Seller to USFS pursuant to this
Agreement, and all other transactions between such Seller and USFS, have been
and will be made in good faith and without intent to hinder, delay or defraud
creditors of such Seller, and such Seller acknowledges that it has received and
will receive fair consideration and reasonably equivalent value for the
purchases by USFS of Receivables and Receivables Property hereunder. The
purchase of Receivables and Receivables Property by USFS from such Seller
constitutes a true sale of such Receivables and Receivables Property under
applicable state law.
(q) TRADE NAMES. Such Seller uses no trade name in the furnishing of
its products or services which generate Receivables other than its actual
corporate name and the trade names set forth for such Seller in Schedule VI and
in the case of trade names, only in the jurisdictions indicated on Schedule VI.
During the five years preceding the date hereof, except as set forth in Schedule
VI and in the case of trade names, only in the jurisdictions indicated on
Schedule VI, such Seller (i) has not been known by any legal name or trade name
other than its corporate name, and (ii) has not been the subject of any merger
or other corporate reorganization.
(r) COMPLIANCE WITH APPLICABLE LAWS. Such Seller is in material
compliance with the requirements of all applicable laws, rules, regulations, and
orders of all governmental authorities (federal, state, local or foreign, and
including, without limitation, environmental laws), a breach of any of which,
individually or in the aggregate, would be reasonably likely either (i) to have
a material adverse effect on (A) the business, operations, business prospects or
condition (financial or other) of such Seller or (B) the ability of such Seller
to perform its obligations under this Agreement and the other Transaction
Documents, or (ii) to impair the collectibility of any Receivables or any
Receivables Property or the enforceability or validity of any Contract.
(s) TAXES. Such Seller has filed all federal and all material state
and local tax returns required by law to be filed and has paid or made adequate
provision for the payment of all taxes, assessments and other governmental
charges due from such Seller or is contesting any such tax, assessment or other
governmental
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charge in good faith through appropriate proceedings, except where such failure
would not reasonably be expected to cause a Material Adverse Effect. Such Seller
knows of no basis for any material additional tax assessment for any fiscal year
for which adequate reserves have not been established.
(t) ACCOUNTING TREATMENT. Such Seller will not prepare any financial
statements that account for the transactions contemplated hereby in a manner
which is, nor will it in any other respect (except for tax purposes) account for
the transactions contemplated hereby in a manner which is, inconsistent with
USFS's ownership interest in the Receivables and Receivables Property.
(u) ERISA Matters.
(i) Except as specifically disclosed in Schedule VIII hereto,
such Seller and each of its ERISA Affiliates are in compliance in all
material respects with the applicable provisions of ERISA and the
regulations and published interpretations thereunder with respect to each
Plan of such Seller or any of its ERISA Affiliates, except for such
noncompliance which could not reasonably be expected to result in a
Material Adverse Effect with respect to such Seller.
(ii) No Reportable Event has occurred as to which such Seller or
any of its ERISA Affiliates was required to file a report with the PBGC,
other than reports for which the 30-day notice requirement is waived,
reports that have been filed and reports the failure of which to file would
not reasonably be expected to result in a Material Adverse Effect with
respect to such Seller.
(iii) Except as specifically disclosed in Schedule VIII hereto,
as of the Effective Date, the present value of all benefit liabilities
under each Plan of such Seller or any of its ERISA Affiliates (on an
ongoing basis and based on those assumptions used to fund such Plan) did
not, as of the last valuation report applicable thereto, exceed the value
of the assets of such Plan, except to the extent that such excess would not
have a Material Adverse Effect with respect to such Seller.
(iv) Neither such Seller nor any of its ERISA Affiliates has
incurred any Withdrawal Liability that could reasonably be expected to
result in a Material Adverse Effect with respect to such Seller.
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(v) Neither such Seller nor any of its ERISA Affiliates has
received any notification that any Multiemployer Plan is in reorganization
or has been terminated within the meaning of Title IV of ERISA, or that a
reorganization or termination has resulted or could reasonably be expected
to result, through increases in the contributions required to be made to
such Plan or otherwise, in a Material Adverse Effect with respect to such
Seller.
(v) CREDIT AND COLLECTION POLICIES. Schedule IV accurately describes
such Seller's Policies relating to Contracts and Receivables in effect on the
Closing Date.
(w) SOLVENCY. Both prior to and after giving effect to the
transactions contemplated by the Transaction Documents, (i) the assets of such
Seller, at fair valuation, will exceed its liabilities (including contingent
liabilities), (ii) the capital of such Seller will not be unreasonably small to
conduct its business, and (iii) such Seller will not have incurred debts, and
does not intend to incur debts, beyond its ability to pay such debts as they
mature.
(x) INVESTMENT COMPANY ACT. Neither such Seller nor any of such
Seller's Subsidiaries is (i) an "investment company" registered or required to
be registered under the 1940 Act, or (ii) a "holding company", or a "subsidiary
company" or an "affiliate" of a "holding company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
(y) OWNERSHIP. All of the issued and outstanding capital stock of such
Seller is owned, directly or indirectly, by United Stationers Inc.
(z) Reserved.
(aa) RECEIVABLES DOCUMENTS. Upon the delivery, if any, by such Seller
to USFS of licenses, rights, computer programs, related materials, computer
tapes, disks, cassettes and data relating to the administration of the Purchased
Receivables pursuant to subsection 5.01(r), USFS shall have been furnished with
all materials and data reasonably necessary to permit timely collection of the
Purchased Receivables without the participation of such Seller in such
collection.
(bb) RECEIVABLES LISTS. The Receivables Lists delivered pursuant to
subsection 2.01(e) set forth in all material respects an accurate and complete
listing as of the applicable Effective Date of all Receivables transferred or
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to be transferred to USFS on such Effective Date and the information contained
therein with respect to the identity and Principal Amount of each such
Receivable is true and correct in all material respects as of the applicable
Effective Date.
The representations and warranties set forth in this Section 4.02
shall survive the transfer and assignment of the respective Receivables to USFS
pursuant to this Agreement. Each Seller hereby represents and warrants to USFS,
as of the Effective Date and each Payment Date, that the representations and
warranties of such Seller set forth in Section 4.02 are true and correct in all
material respects as of such date, except for any representation and warranty
specifically made as of an earlier date, in which case such representation and
warranty shall be true and correct in all material respects as of such earlier
date. Upon discovery by any Seller or USFS of any material breach of any of the
foregoing representations and warranties, the party discovering such breach
shall give prompt written notice to the other.
ARTICLE V
GENERAL COVENANTS
Section 5.01 AFFIRMATIVE COVENANTS OF THE SELLERS. Each Seller covenants
that, until the Purchase Termination Date shall have occurred with respect to
such Seller and there are no amounts outstanding with respect to the Purchased
Receivables previously sold by such Seller to USFS (other than Charged-off
Receivables):
(a) PRESERVATION OF CORPORATE EXISTENCE AND NAME. Such Seller will
preserve and maintain in all material respects its existence, rights, franchises
and privileges in the jurisdiction of its incorporation or formation, as the
case may be, and qualify and remain qualified in good standing as a foreign
entity in each jurisdiction where the failure to preserve and maintain such
existence, rights, franchises, privileges and qualification could have a
Material Adverse Effect with respect to such Seller.
(b) MAINTENANCE OF PROPERTY. Such Seller will keep all material
property and assets useful and necessary in its business in good working order
and condition (normal wear and tear excepted), except to the extent that the
failure to do any of the foregoing with respect to any such property would not,
individually or in the aggregate, be reasonably likely to have a Material
Adverse Effect with respect to USFS.
(c) DELIVERY OF COLLECTIONS. In the event that such Seller receives
Collections, such Seller agrees to pay to the applicable Lockbox Account all
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payments received by such Seller in respect of the Receivables as soon as
practicable after receipt thereof by such Seller.
(d) COMPLIANCE WITH LAWS, ETC. Such Seller shall comply in all
material respects with all applicable laws, rules, regulations and orders
applicable to the Receivables and the Receivables Property, including, without
limitation, rules and regulations relating to truth in lending, fair credit
billing, fair credit reporting, equal credit opportunity, fair debt collection
practices and privacy, where failure to so comply could reasonably be expected
to have a materially adverse impact on the amount of Collections thereunder.
(e) VISITATION RIGHTS. At any reasonable time during normal business
hours and from time to time upon reasonable prior notice, such Seller shall
permit (i) USFS, or any of its assignees, agents or representatives, (A) to
examine and make copies of and abstracts from the records, books of account and
documents (including, without limitation, computer tapes and disks) of such
Seller relating to Receivables and Related Property owned or to be purchased by
USFS hereunder, including, without limitation, the related Contracts and
purchase orders and other agreements and (B) following the termination of the
appointment of USFS as Servicer, to be present at the offices and properties of
USFS to administer and control the collection of amounts owing on the Purchased
Receivables and (ii) USFS, or any of its assignees, agents or representatives,
or the Trustee (upon the giving of appropriate notice to such Seller) to visit
the properties of such Seller for the purpose of examining such records, books
of account and documents, and to discuss the affairs, finances and accounts of
such Seller relating to the Receivables or such Seller's performance hereunder
with any of its officers or directors and with its independent certified public
accountants;
PROVIDED, that USFS or its assignees, agents or representatives, as the case may
be, shall notify the Seller prior to any contact with such accountants and shall
give such Seller the opportunity to participate in such discussions.
(f) KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Such Seller will maintain
and implement administrative and operating procedures (including, without
limitation, an ability to recreate records evidencing Receivables and the
Receivables Property in the event of the destruction of the originals thereof),
and keep and maintain all documents, books, records and other information which,
in each case, in the reasonable discretion of USFS or its assignees, are
necessary or advisable for the collection of all Receivables and the Receivables
Property (including, without limitation, records adequate to permit the
identification of each new Receivable and all Collections of and adjustments to
each existing Receivable).
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(g) PERFORMANCE AND COMPLIANCE WITH POLICIES, RECEIVABLES AND
CONTRACTS. Such Seller will (i) perform its obligations in accordance with and
comply in all material respects with the Policies, as amended from time to time
in accordance with the Transaction Documents and (ii) at its expense, timely and
fully perform and comply with all material provisions, covenants and other
promises required to be observed by it under the Receivables and the Contracts
related to the Receivables and Related Property and all purchase orders and
other agreements related to such Receivables and Related Property.
(h) OBLIGATIONS. Such Seller shall pay, discharge or otherwise satisfy
at or before maturity or before they become delinquent, as the case may be, all
its other obligations of whatever nature, except where (a) the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on its books, or (b) the failure to so pay, discharge or satisfy all
such obligations would not, in the aggregate, be reasonably likely to have a
Material Adverse Effect in respect of such Seller and would not subject any of
its properties to any Lien prohibited by subsection 5.03(b).
(i) LOCATION OF RECORDS. Such Seller will keep its principal place of
business and chief executive office, and the offices where it keeps its records
concerning the Receivables, all Receivables Property, all Contracts and purchase
orders and other agreements related to such Receivables (and all original
documents relating thereto), at the addressees) of such Seller referred to in
Schedule II or, upon 30 days' prior written notice to USFS, at such other
locations in jurisdictions where all action required by subsection 5.01(r) shall
have been taken and completed; PROVIDED, HOWEVER, that the Rating Agency
Condition shall have been satisfied with respect to any changes in location of
such Seller's principal place of business or chief executive office and such
location is not in a state which is within the Tenth Circuit unless it delivers
an opinion of counsel reasonably acceptable to the Rating Agencies to the effect
that OCTAGON GAS SYSTEMS, INC. V. RIMMER, 995 F.2d 948 (10th Cir. 1993), is no
longer controlling precedent in the Tenth Circuit.
(j) FURNISHING COPIES, ETC. Such Seller shall furnish to USFS (i) upon
USFS's request, a certificate of a Responsible Officer with responsibilities
over the finances of such Seller certifying, as of the date thereof, that to
such Responsible Officer's knowledge, no Purchase Termination Event has occurred
and is continuing and setting forth the computations used by such Responsible
Officer in making such determination; (ii) as soon as possible and in any event
within two Business Days after a Responsible Officer of such Seller becomes
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aware of the occurrence of any Purchase Termination Event or Potential Purchase
Termination Event, a statement of a Responsible Officer of such Seller setting
forth in reasonable detail the particulars of such Purchase Termination Event or
Potential Purchase Termination Event and the action that such Seller proposes to
take or has taken with respect thereto; (iii) promptly after obtaining knowledge
that a Receivable was, at the time of USFS's purchase thereof, not an Eligible
Receivable, notice thereof; (iv) promptly after obtaining knowledge of any
threatened action or proceeding affecting such Seller or its Subsidiaries before
any court, governmental agency or arbitrator that may reasonably be expected to
materially and adversely affect the enforceability of this Agreement and the
other Transaction Documents, notice of such action or proceeding; and (v)
promptly following USFS's request therefor, such other information, documents,
records or reports with respect to the Receivables or the related Contracts or
the conditions or operations, financial or otherwise, of such Seller, as USFS
may from time to time reasonably request.
(k) OBLIGATION TO RECORD AND REPORT. Such Seller shall, to the fullest
extent permitted by GAAP and by applicable law, record each purchase of the
Purchased Receivables as a sale on its books and records, reflect each purchase
of Purchased Receivables in its financial statements and tax returns as a sale
and recognize gain or loss, as the case may be, on each purchase of Purchased
Receivables, except to the extent that such purchases are not reportable for tax
purposes due to the filing of tax forms of United Stationers Inc. on a
consolidated basis with those of the Sellers, USFS and the Company.
(l) CONTINUING COMPLIANCE WITH THE UNIFORM COMMERCIAL CODE. Such
Seller shall, without limiting the requirements of subsection 5.01(r), at its
expense, preserve, continue, and maintain or cause to be preserved, continued,
and maintained USFS's valid and properly perfected title to each Receivable and
the Receivables Property purchased hereunder, including, without limitation,
filing or recording UCC financing statements in each relevant jurisdiction.
(m) PROCEEDS OF RECEIVABLES. Such Seller shall use all reasonable
efforts to cause all payments made by Obligors in respect of Purchased
Receivables and Related Property to be made in accordance with subsection 2.3(a)
of the Servicing Agreement.
(n) Reserved.
(o) TAXES. Such Seller will file all federal and all material state
and local tax returns and reports required by law to be filed by it and will pay
all taxes and governmental charges thereby shown to be owing, except any such
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taxes or charges which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP
have been set aside on its books except where the failure to file such returns
and reports and pay such taxes and governmental charges would not reasonably be
expected to cause a Material Adverse Effect.
(p) SEPARATE CORPORATE EXISTENCE OF THE COMPANY. Such Seller hereby
acknowledges that the Trustee and the Holders are entering into the transactions
contemplated by the Transaction Documents in reliance upon the Company's
identity as a legal entity separate from the Sellers, USFS and all other
Affiliates thereof (each such Affiliate, a "USS AFFILIATE") and that the Trustee
and the Holders would be prejudiced by any substantive consolidation of the
Company with any Seller or USFS. Therefore, from and after the date hereof, such
Seller will take (or refrain from taking, as the case may be) such actions, and
will cause each other Affiliate it controls to take (or refrain from taking, as
the case may be) such actions, as shall be required in order that:
(i) Except as specifically provided in Sections 7.01 and 9.05, no
USS Affiliate will pay the Company's operating expenses and liabilities,
recognizing, however, that certain organizational expenses of the Company
and expenses relating to creation and implementation of the securitization
program contemplated by the Transaction Documents have been or shall be
paid by such Seller or USFS.
(ii) Each USS Affiliate will conduct its business at offices
segregated from the Company's offices. If office space is leased from any
USS Affiliate, a separate written lease on arm's-length terms will be in
effect at a market rental rate.
(iii) Each USS Affiliate will maintain corporate records and
books of account separate from those of the Company and telephone numbers,
mailing addresses, stationery and other business forms that are separate
and distinct from those of the Company.
(iv) Any financial statements of any USS Affiliate that are
consolidated to include the Company will contain a detailed note
substantially in the form, and to the effect, of the note set forth on
Annex 1.
(v) The Company's assets will be maintained in a manner that
facilitates their identification and segregation from those of such Seller
and the other USS Affiliates.
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(vi) Each USS Affiliate will strictly observe corporate
formalities in its dealings with the Company, and funds or other assets of
the Company will not be commingled or pooled with those of any affiliated
Person other than funds constituting (i) Excluded Receivables Payments or
(ii) Collections remitted to a Collector pursuant to subsection 2.3(a) of
the Servicing Agreement; PROVIDED that, in each case, such funds shall not
be commingled for more than one (2) Business Days. No Affiliate will
maintain joint bank accounts with the Company or other depository accounts
with the Company to which any USS Affiliate has independent access (other
than the Collection Concentration Account).
(vii) Any transaction between the Company and any USS Affiliate
will be fair and equitable to the Company, will be the type of transaction
which would be entered into by a prudent Person in the position of the
Company with a USS Affiliate, and will be on terms which are at least as
favorable to the Company as may be obtained from a Person which is not a
USS Affiliate, it being understood and agreed that the transactions
contemplated in the Transaction Documents meet the requirements of this
clause (vii).
(viii) No USS Affiliate will hold itself out, or permit itself to
be held out, as having agreed to pay or be liable for the debts of the
Company.
(ix) Except for the authority delegated to the Servicer pursuant
to the Servicing Agreement, the duly elected Board of Directors of the
Company and the Company's duly appointed officers shall at all times have
sole authority to control decisions and actions with respect to the daily
business affairs of the Company.
(x) Such Seller shall comply with those procedures described in
the Specified Bankruptcy Opinion Provisions which are applicable to such
Seller, except, in each case above, for such failure to take actions or
refrain from taking actions that are, in the aggregate, not material.
(q) DEPOSITS IN PROGRAM ACCOUNTS. Such Seller shall use all reasonable
efforts to minimize the deposit of any funds other than Collections (except
funds consisting of Excluded Receivables Payments) in any of the Lockbox
Accounts, the Collection Concentration Account and the Collection Account.
(r) Further Action Evidencing Purchases.
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(i) Such Seller agrees that from time to time, at its expense, it
will promptly execute and deliver all further instruments and documents,
and take all further action, that may be necessary or desirable or that
USFS or its assignees may reasonably request, to protect or more fully
evidence USFS's ownership, right, title and interest in the Receivables and
Receivables Property sold by such Seller and its rights under the Contracts
with respect thereto, or to enable USFS or its assignees to exercise or
enforce any of its rights hereunder or under any other Transaction
Document. Without limiting the generality of the foregoing, such Seller
will upon the request of USFS or its assignees (A) execute and file, in
accordance with the provisions of the UCC of the applicable jurisdiction,
continuation statements with respect to all financing statements filed in
connection with the transactions contemplated hereby, as well as such
financing or continuation statements, or amendments thereto, and such other
instruments or notices, as may be necessary or, in the reasonable opinion
of USFS, desirable, (B) indicate on its books and records (including,
without limitation, master data processing records) that the Receivables
and Receivables Property have been sold and assigned to USFS, USFS has sold
and assigned its interest therein to the Company and, in turn, the Company
has conveyed its interest therein to the Trustee for the benefit of the
Holders, and provide to Company and USFS, upon request, copies of any such
records, (C) contact customers to confirm and verify Receivables and (D)
obtain the agreement of any Person having a Lien on any Receivables owned
by such Seller (other than any Lien created or imposed hereunder, under the
Pooling Agreement or under any other Transaction Document or any Permitted
Lien) to release such Lien upon the purchase of any such Receivables by
USFS.
(ii) Such Seller hereby irrevocably authorizes USFS, the Company
and the Trustee to file one or more financing or continuation statements,
and amendments thereto, relative to all or any part of the Receivables and
Receivables Property sold or to be sold by such Seller, without the
signature of such Seller where permitted by law.
(iii) If such Seller fails to perform any of its agreements or
obligations under this Agreement, USFS or its assignees may (but shall not
be required to) perform, or cause performance of, such agreements or
obligations, and the expenses of USFS incurred in connection therewith
shall be payable by such Seller as provided in Section 9.05.
(iv) Such Seller agrees that, whether or not a Purchase
Termination Event has occurred:
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(A) USFS (and its assignees) shall have the right at any time to
notify, or require that such Seller at its own expense notify, the respective
Obligors of USFS's ownership of the Purchased Receivables and Receivables
Property and may direct that payment of all amounts due or to become due under
the Purchased Receivables be made directly to USFS or its designee;
(B) such Seller shall, upon the Company or USFS's written request
and at such Seller's expense, (I) assemble all of such Seller's documents,
instruments and other records (including credit files and computer tapes or
disks) that (A) evidence or will evidence or record Receivables sold by such
Seller and (B) are otherwise necessary or desirable to effect Collections of
such Purchased Receivables (collectively, the "DOCUMENTS") and (II) deliver the
Documents to USFS or its designee at a place designated by USFS. In recognition
of such Seller's need to have access to any Documents which may be transferred
to USFS or its designee hereunder, whether as a result of its continuing
business relationship with any Obligor for Receivables purchased hereunder, USFS
hereby grants to such Seller an irrevocable license to access the Documents
transferred by such Seller to USFS and to access any such transferred computer
software in connection with any activity arising in the ordinary course of such
Seller's business, PROVIDED that such Seller shall not disrupt or otherwise
interfere with USFS's use of and access to the Documents and its computer
software during such license period;
(C) such Seller hereby grants to USFS an irrevocable power of
attorney (coupled with an interest) to take any and all steps in such Seller's
name necessary or desirable, in the reasonable opinion of USFS, to collect all
amounts due under the Purchased Receivables, including, without limitation,
endorsing such Seller's name on checks and other instruments representing
Collections, enforcing the Purchased Receivables and exercising all rights and
remedies in respect thereof, and
(D) upon written request of the Company or USFS, such Seller will
(I) deliver to USFS or a party designated by the Company or USFS all licenses,
rights, computer programs, related material, computer tapes, disks, cassettes
and data necessary to the immediate collection of the Purchased Receivables by
the Company or USFS, with or without the participation of such Seller (excluding
software licenses which by their terms are not permitted to be so delivered,
PROVIDED that such Seller
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shall use reasonable efforts to obtain consent of the relevant licensor to such
delivery) and (II) make such arrangements with respect to the collection of the
Purchased Receivables as may be reasonably required by the Company or USFS.
(s) LEGEND REQUIREMENT FOR CHATTEL PAPER. Such Seller agrees (i) at
all times, with respect to chattel paper, to comply with the procedures set
forth in Schedule 3 to the Pooling Agreement and (ii) that any Receivable that
constitutes or is evidenced by "chattel paper" as defined in Article 9 of the
UCC as in effect in the Relevant UCC State shall bear a legend stating that such
Receivable has been sold to USFS, sold, in turn, to the Company and conveyed, in
turn, to the Trust.
(t) COMPUTER FILES. Such Seller shall, at its own cost and expense,
retain the ledger used by such Seller as a master record of the Obligors and
retain copies of all documents relating to each Obligor as custodian and agent
for the Company and USFS and other Persons with interests in the Purchased
Receivables and mark the computer tape or other physical records of the
Purchased Receivables to the effect that interests in the Purchased Receivables
existing with respect to the Obligors listed thereon have been sold to USFS,
USFS has sold an interest therein and has granted a security interest therein to
the Company and the Company has conveyed an interest therein and granted a
security interest therein.
(u) LOCKBOX AGREEMENTS. With respect to each Lockbox Processor, such
Seller shall execute and deliver, or cause to be executed and delivered, a
Lockbox Agreement in substantially the form of Exhibit A to the Pooling
Agreement within five (5) Business Days of the date hereof.
Section 5.02 REPORTING REQUIREMENTS. Each Seller shall furnish to USFS and
its assigns from the date hereof until the Purchase Termination Date shall have
occurred with respect to such Seller and until there are no amounts outstanding
with respect to Purchased Receivables previously sold by such Seller to USFS:
(a) COMPLIANCE CERTIFICATE. Not later than 95 days after the end of
each fiscal year and not later than 50 days after the end of each of the first
three fiscal quarters of each fiscal year, a certificate of a Responsible
Officer of such Seller stating that, to the best of such Responsible Officer's
knowledge, such Seller during such period, has observed or performed in all
material respects all of its covenants and other agreements, and satisfied in
all material respects every condition, contained in the Transaction Documents to
which it is a party to be observed, performed or satisfied by it, and that such
Responsible Officer has
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obtained no knowledge of any Purchase Termination Event or Potential Purchase
Termination Event except as specified in such certificate;
(b) ERISA. Promptly after the filing or receiving thereof, copies of
all reports and notices with respect to any Reportable Event which such Seller
files under ERISA with the Internal Revenue Service, the PBGC or the U.S.
Department of Labor or which such Seller receives from the PBGC if, in each
case, such report or notice relates to an event or condition that could
reasonably be expected to give rise to a Termination Notice, an Early
Amortization Event or a Material Adverse Effect;
(c) TERMINATION EVENTS; OTHER MATERIAL EVENTS. As soon as possible and
in any event within two Business Days after a Responsible Officer of such Seller
obtains knowledge of each Purchase Termination Event, Potential Purchase
Termination Event, Servicer Default, Potential Servicer Default or any other
event that has a material likelihood of having a Material Adverse Effect with
respect to a Seller, a written statement of a Responsible Officer of such Seller
setting forth details of such event and the action that such Seller proposes to
take with respect thereto; and
(d) OTHER. Promptly, from time to time, such other information,
documents, records or reports respecting the Receivables or the condition or
operations, financial or otherwise, of such Seller as the Company or USFS may
from time to time reasonably request in order to protect its respective
interests under or as contemplated by the Transaction Documents.
Section 5.03 NEGATIVE COVENANTS. Each Seller covenants that, until the
Purchase Termination Date shall have occurred with respect to such Seller and
there are no amounts outstanding with respect to Purchased Receivables
previously sold by such Seller to USFS:
(a) RECEIVABLES TO BE ACCOUNTS, GENERAL INTANGIBLES OR CHATTEL PAPER.
Such Seller will take no action to cause any Receivable to be evidenced by any
"instrument" other than, PROVIDED that the procedures set forth in Schedule 3 to
the Pooling Agreement are fully implemented with respect thereto, an instrument
which together with a security agreement constitutes "chattel paper" (each as
defined in the UCC as in effect in the Relevant UCC State). Such Seller will
take no action to cause any Receivable to be anything other than an "account",
"general intangible" or "chattel paper" (each as defined in the UCC as in effect
in the Relevant UCC State).
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(b) SECURITY INTERESTS. Except for the conveyances hereunder and as
provided below, such Seller will not sell, pledge, assign or transfer to any
other Person, or grant, create, incur, assume or suffer to exist any other Lien
on any Receivable or Receivables Property, whether now existing or hereafter
created, or any interest therein; such Seller will immediately notify USFS and
its assignees of the existence of any other Lien (other than any Permitted Lien)
on any Receivable or Receivables Property; and such Seller shall defend the
right, title and interest of USFS and its assignees in, to and under the
Receivables or Receivables Property, whether now existing or hereafter created,
against all claims of third parties claiming through or under such Seller;
PROVIDED, HOWEVER, that nothing in this subsection 5.03(b) shall prevent or be
deemed to prohibit such Seller from suffering to exist upon any of the
Receivables or Receivables Property any Permitted Lien.
(c) EXTENSION OR AMENDMENT OF RECEIVABLES; INELIGIBLE RECEIVABLES.
Such Seller will not extend, rescind, cancel, make any Dilution Adjustment to,
amend or otherwise modify, or attempt or purport to extend, rescind, cancel,
make any Dilution Adjustment to, amend or otherwise modify, the terms of any
Purchased Receivables, or otherwise take any action to cause, or which would
permit, a Receivable that was designated as an Eligible Receivable on the
Payment Date relating to such Receivable to cease to be an Eligible Receivable,
except in any such case (a) in accordance with the terms of the Policies, (b) as
required by any Requirement of Law or (c) in the case of Dilution Adjustments
(whether or not permitted by any other clause of this sentence), upon making a
Seller Adjustment Payment pursuant to Section 2.05.
(d) CHANGE IN CREDIT AND COLLECTION POLICIES. Such Seller will not
make or permit to be made any change in its Policies in any material respect
that is materially adverse to the interests of USFS or its assigns (including
the Trustee and the Holders).
(e) PLACE OF BUSINESS, ETC. Such Seller will not change its principal
place of business or chief executive office from the location listed on Schedule
II or change the location of its records relating to the Receivables and
Receivables Property from those specified on Schedule II, unless in any such
event such Seller shall have given USFS and the Company at least thirty days'
prior written notice thereof fully in accordance with the terms and provisions
of subsection 5.01(i) and shall have taken all action necessary or reasonably
requested by USFS to amend its existing financing statements and continuation
statements so that they are not misleading and to file additional financing
statements in all applicable jurisdictions, if necessary, to perfect the
interests of USFS in all of the Receivables and Receivables Property.
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(f) CHANGE IN NAME. Such Seller will not change its name, identity or
corporate structure in any manner which would make any financing statement or
continuation statement (or other similar instrument) relating to this Agreement
seriously misleading within the meaning of Section 9-402(7) of the UCC, or
impair the perfection of USFS's interest in any Receivable under any other
similar law, without having (i) delivered 30 days' prior written notice to the
Company, USFS, the Servicer and the Trustee and (ii) taken all action required
by subsection 5.01(a) or 5.01(r).
(g) CHANGE IN PAYMENT INSTRUCTIONS TO OBLIGORS. Such Seller shall not
instruct the Obligor on any Receivables to make payments with respect to such
Receivables and the Receivables Property with respect thereto other than to the
places listed in Schedule III.
(h) ACCOUNTING CHANGES. Such Seller shall not make any material change
(i) in accounting treatment and reporting practices except as permitted or
required by GAAP, (ii) in tax reporting treatment except as permitted or
required by law, in any case, as disclosed in the notes to the financial
statements delivered pursuant to Section 5.02, or otherwise, (iii) in the
calculation or presentation of financial and other information contained in
other reports delivered hereunder, or (iv) in any financial policy of such
Seller if such change could have a material adverse effect on the Receivables
taken as a whole or the collection thereof.
(i) BUSINESS OF SELLERS. Such Seller shall not fail to maintain and
operate the business currently conducted by such Seller and business activities
reasonably incidental or related thereto in substantially the manner in which it
is presently conducted and operated if such failure would change in any material
respect the character of its business and such change would be adverse to the
interest of USFS, its assigns (including the Company) and the Trustee for the
benefit of the Holders except (x) if such change is necessary under any
Requirement of Law, (y) if such change would not reasonably be expected to have
a Material Adverse Effect with respect to the Servicer or (z) the Rating Agency
Condition is satisfied with respect thereto.
ARTICLE VI
PURCHASE TERMINATION EVENTS
Section 6.01 PURCHASE TERMINATION EVENTS. If, with respect to any Seller,
any of the following events (each, a "PURCHASE TERMINATION EVENT" with respect
to such Seller) shall have occurred and be continuing:
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(a) The Seller shall fail to make any payment or deposit to be made by
it hereunder when due and such failure shall remain unremedied for two Business
Days; or
(b) There shall have occurred (i) an Early Amortization Event set
forth in Section 7.1 of the Pooling Agreement or (ii) the Amortization Period
with respect to all outstanding Series shall have occurred and be continuing; or
(c) Any representation or warranty made or deemed to be made by such
Seller or any of its officers under or in connection with any Transaction
Document, Monthly Settlement Statement or other information, statement, record,
certificate, document or report delivered pursuant to a Transaction Document
shall prove to have been false or incorrect in any material respect when made or
deemed made (including in each case by omission of information necessary to make
such representation, warranty, certificate or statement not materially
misleading); PROVIDED, that no such event shall constitute a Purchase
Termination Event unless such event shall continue unremedied for a period of 30
days from the earlier of (A) the date any Responsible Officer of such Seller
obtains knowledge thereof and (B) the date such Seller receives notice of the
incorrectness of such representation or warranty from USFS, the Servicer or the
Trustee; PROVIDED, FURTHER, that a Purchase Termination Event shall not be
deemed to have occurred under this paragraph (c) based upon a breach of any
representation or warranty set forth in Section 4.02 with respect to any
Receivable if such Seller shall have complied with the provisions of Section
2.06 with respect to such Receivable; or
(d) Such Seller shall fail to perform or observe in any material
respect any other term, covenant or agreement contained in subsection 5.01(d),
(g) or (h) or Section 5.03 of this Agreement on its part to be performed or
observed and any such failure shall remain unremedied for five Business Days;
PROVIDED, that a Purchase Termination Event shall not be deemed to have occurred
under this paragraph (d) based upon a breach of any covenant set forth in
subsection 5.01(d), (g) or (h) or Section 5.03 with respect to any Receivable if
the applicable Seller shall have complied with the provisions of Section 2.06
with respect to such Receivable; or
(e) Such Seller shall fail to perform or observe in any material
respect any other term, covenant or agreement contained in any Transaction
Document on its part to be performed or observed and any such failure shall
remain unremedied for a period of 30 days from the earlier of (A) the date any
Responsible
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Officer of such Seller obtains knowledge of such failure and (B) the date such
Seller receives notice thereof from USFS, the Servicer or the Trustee; or
(f) Any Transaction Document to which such Seller is a party shall
cease, for any reason, to be in full force and effect, or USSC, or other such
Seller shall so assert in writing, or USFS shall fail to have a valid and
perfected first priority ownership or security interest in the Receivables and
the Receivables Property; or
(g) (i) such Seller shall commence any case, proceeding or other
action (A) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian or other similar official for it or for all or any
substantial part of its assets, or such Seller shall make a general assignment
for the benefit of its creditors; or (ii) there shall be commenced against such
Seller any case, proceeding or other action of a nature referred to in clause
(i) above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or unbonded
for a period of 60 days; or (iii) there shall be commenced against such Seller
or any of its Subsidiaries any case, proceeding or other action seeking issuance
of a warrant of attachment, execution, distraint or similar process against all
or any substantial part of its assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof, or (iv) such Seller
or any of its respective Subsidiaries shall take any action in furtherance of,
or indicating its consent to, approval of, or acquiescence in, any of the acts
set forth in clause (i), (ii), or (iii) above; or (v) such Seller shall
generally not, or shall be unable to, or shall admit in writing its inability
to, pay its debts as they become due; or
(h) USFS has been terminated as Servicer following a Servicer Default
with respect to USFS under the Servicing Agreement; or
(i) a Responsible Officer of USSC receives notice or becomes aware
that a notice of Lien has been filed by the PBGC against any Seller, USFS or the
Trust under Section 4.12(n) of the Code or Section 302(f) of ERISA for a failure
to make a required installment or other payment to a plan to which Section
4.12(n) of the Code or Section 302(f) of ERISA applies;
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then, (x) in the case of any Purchase Termination Event with respect to any
Seller described in paragraph (b)(i), (g), (i) and (j) above, the obligation of
USFS to purchase Receivables from such Seller shall thereupon automatically
terminate without further notice of any kind, which is hereby waived by such
Seller, (y) in the case of any Purchase Termination Event with respect to a
Seller described in paragraph (b)(ii) above, the obligation of USFS to purchase
Receivables from such Seller shall thereupon terminate without notice of any
kind, which is hereby waived by such Seller, unless both USFS and such Seller
agree in writing that such event shall not trigger an Early Termination
hereunder and (z) in the case of any other Purchase Termination Event with
respect to any Seller, so long as such Purchase Termination Event shall be
continuing, USFS may terminate its obligation to purchase Receivables from such
Seller by written notice to such Seller (any termination with respect to any
Seller pursuant to clause (x), (y) or (z) of this Section 6.01 is herein called
an "EARLY TERMINATION" with respect to such Seller); PROVIDED, HOWEVER, that in
the event of an involuntary petition or proceeding as described in paragraphs
(g)(ii) and (g)(iii) above, USFS shall not purchase Receivables from such Seller
until such time, if any, as such involuntary petition or proceeding has been
dismissed, PROVIDED that such dismissal shall have occurred within 60 days of
the filing of such petition or the commencement of such proceeding.
Section 6.02 ADDITIONAL REMEDIES. Upon the occurrence of any Purchase
Termination Event, USFS 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 each applicable jurisdiction and other applicable laws, which rights
shall be cumulative. Without limiting the foregoing, the occurrence of a
Purchase Termination Event shall not deny to USFS any remedy (in addition to
termination of USFS's obligation to purchase Receivables from any relevant
Seller or Sellers) to which USFS may be otherwise appropriately entitled,
whether by statute or other applicable law, at law or in equity.
ARTICLE VII
INDEMNIFICATION
Section 7.01 INDEMNITIES BY THE SELLERS. Without limiting any other rights
that USFS may have hereunder or under applicable law and subject to Section
2.06, each Seller hereby agrees to pay, indemnify and hold USFS harmless from
and against any and all claims, losses, liabilities, obligations, damages,
penalties, actions, judgments, suits, reasonable costs (including reasonable
attorneys' fees), expenses and disbursements of any kind or nature whatsoever
related thereto (a) which may at
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any time be imposed on, incurred by or asserted against USFS in any way relating
to, arising out of or resulting from this Agreement or any other Transaction
Document or the transactions contemplated hereby or thereby or any action taken
or omitted by USFS under or in connection with any of the foregoing or in
respect of any Receivable or (b) which would not have been imposed on, incurred
by or asserted against USFS but for its having purchased the Receivables
hereunder (all such claims, losses, liabilities, obligations, damages,
penalties, actions, judgments, suits, costs, expenses and disbursements being
collectively referred to as "INDEMNIFIED AMOUNTS"), PROVIDED that the Sellers
shall have no obligation under this Section 7.01 to USFS with respect to
Indemnified Amounts (i) to the extent resulting from gross negligence or willful
misconduct on the part of USFS, its agents or its assignees; (ii) resulting from
any Obligor*s inability to pay an amount due and payable with respect to a
Receivable for credit reasons (it being understood that this clause (ii) shall
not limit Section 2.05), and PROVIDED, FURTHER, that if a court of competent
jurisdiction in a final non-appealable order determines that such Indemnified
Amounts arose in part from USFS's gross negligence or willful misconduct, the
Sellers shall reimburse USFS for the portion of such claim not resulting from
USFS*s gross negligence or willful misconduct, and PROVIDED, FURTHER, that to
the extent a determination of gross negligence or willful misconduct is made
after the payment of any Indemnified Amounts related thereto, the Seller shall
be repaid any amounts reimbursed under the preceding clause that, due to such
determination, it should not have paid. Without limiting or being limited by the
foregoing and subject to Section 2.06, each Seller shall pay on demand to USFS
any and all amounts necessary to indemnify USFS from and against any and all
Indemnified Amounts relating to or resulting from:
(a) the transfer by any Seller of any interest in any Receivable or
Receivables Property or proceeds thereof which are not or which cease to be
Eligible Receivables;
(b) reliance on any representation or warranty or statement made or
deemed made by any Seller (or any of its officers) under or in connection with
this Agreement or in any certificate or report delivered pursuant hereto that,
in either case, shall have been false or incorrect in any material respect when
made or deemed made;
(c) the failure by any Seller to comply with any applicable law, rule
or regulation of any governmental authority with respect to any Receivable or
Receivables Property, or the nonconformity of any Receivable or Receivables
Property with any such applicable law, rule or regulation;
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(d) the failure to vest and maintain vested in USFS an ownership
interest in any Receivable or Receivables Property, free and clear of any Lien,
other than a Lien arising under the Transaction Documents or a Permitted Lien,
whether existing at the time of the purchase of such Receivable or Receivables
Property or at any time thereafter;
(e) the failure to file, or any delay in filing, financing statements
or other similar instruments or documents under the UCC of any applicable
jurisdiction or other applicable laws with respect to any Receivables or
Receivables Property of any Seller;
(f) any dispute, claim, offset or defense (other than discharge in
bankruptcy of a Seller) of the Obligor to the payment of any Receivable of any
Seller (including, without limitation, a defense based on such Receivable or the
related Contract not being fully enforceable against the Obligor in accordance
with its terms), or any other claim resulting from the sale of the merchandise
or services related to any such Receivable or the furnishing or failure to
furnish such merchandise or services;
(g) any failure of any Seller to perform its duties or obligations
under this Agreement or the Transaction Documents;
(h) any products liability claim arising out of or in connection with
merchandise, insurance or services that are the subject of any Receivable or
Receivables Property;
(i) the commingling of Collections of Receivables at any time with
other funds of any Seller other than as permitted by the terms of this
Agreement;
(j) any claim involving environmental liability that relates to any
property that has been, is now or hereafter will be owned, leased, operated or
otherwise used by any Seller;
(k) any tax or governmental fee or charge (but not including franchise
taxes and taxes upon or measured by net income of USFS), all interest and
penalties thereon or with respect thereto, and all out-of-pocket costs and
expenses, including the reasonable fees and expenses of counsel in defending
against the same, which may arise by reason of the purchase or ownership of any
Receivable or Receivables Property, or any interest therein or in any goods
which secure any such
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Receivables, any Receivables Property or any other rights or assets transferred
hereunder; and
(l) any investigation, litigation or proceeding related to this
Agreement or in respect of any Receivable or Receivables Property of any Seller.
Notwithstanding the foregoing, no Seller shall under any circumstances be
required to indemnify USFS for any Indemnified Amounts that result from any
delay in the collection of any Receivables or any default by an Obligor with
respect to any Receivables. The agreements set forth in this Section 7.01 shall
survive the collection of all Receivables, the termination of this Agreement and
the payment of all amounts payable hereunder.
Section 7.02 INDEMNITIES BY USFS. Without limiting any other rights that
the Sellers may have hereunder or under applicable law, USFS hereby agrees to
indemnify each Seller from and against any and all claims, losses and
liabilities (including reasonable attorneys' fees) arising out of or resulting
from such Seller's reliance on any representation or warranty made by USFS in
this Agreement or in any certificate delivered pursuant hereto that, in either
case, shall have been false or incorrect in any material respect when made or
deemed made.
ARTICLE VIII
USFS SUBORDINATED NOTE
Section 8.01 USFS SUBORDINATED NOTE. (a) On the initial Effective Date,
contemporaneously with the sale of Receivables and Receivable Property by the
Sellers, USFS shall issue to the Sellers a Subordinated Promissory Note
substantially in the form of Exhibit A hereto (as amended, supplemented or
otherwise modified from time to time, the "USFS SUBORDINATED NOTE").
(b) The initial aggregate principal amount of the USFS Subordinated
Note (the "INITIAL USFS SUBORDINATED NOTE AMOUNT") shall be equal to $0.
(c) Following the initial Effective Date, the aggregate principal
amount of the USFS Subordinated Note at any time shall be equal to the
difference between (i) the sum of the Initial USFS Subordinated Note Amount and
each addition to the principal amount of the USFS Subordinated Note with respect
to each Seller pursuant to Section 2.03 as of such time and (ii) the aggregate
amount of all payments made in respect of the principal of the USFS Subordinated
Note as of
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such time. All payments made in respect of the USFS Subordinated Note shall be
allocated among the Sellers by the Servicer and shall be allocated to pay
accrued and unpaid interest thereon, and SECOND, to pay the outstanding
principal amount thereof.
(d) Each Seller's interest in the USFS Subordinated Note shall be
equal to the aggregate of each addition to the USFS Subordinated Note allocated
to such Seller pursuant to subsection 2.03(c), LESS the sum of each repayment
thereof allocated to such Seller by the Servicer in accordance with subsection
8.01(c). Interest on the outstanding principal amount of the USFS Subordinated
Note shall accrue on the last day of each Settlement Period at a rate per annum
equal to the ABR plus 2% from and including the initial Effective Date to but
excluding the last day of each Settlement Period and shall be paid (x) on each
Distribution Date with respect to the principal amount of the USFS Subordinated
Note outstanding from time to time during the Settlement Period immediately
preceding such Distribution Date and/or (y) on the maturity date thereof.
Principal thereunder not paid or prepaid pursuant to the terms thereof shall be
payable on the maturity date of the USFS Subordinated Note. Default in the
payment of principal or interest under the USFS Subordinated Note shall not
constitute a Purchase Termination Event under this Agreement, a Servicer Default
under any Servicing Agreement or an Early Amortization Event under the Pooling
Agreement or any Supplement thereto.
Section 8.02 RESTRICTIONS ON TRANSFER OF CONTRIBUTED NOTE AND USFS
SUBORDINATED NOTE. (a) Each of the parties hereto hereby waives the restrictions
on transfer of the Contributed Note contained therein and in Section 8.02 of the
Original Agreement, subject to subsection 8.02(b) below.
(b) Subsequent to the date hereof, neither (i) the the USFS Subordinated
Note, or any right of any Seller to receive payments thereunder, nor (ii) the
Contributed Note, or any right thereunder of USSC or its assignee, USSF, shall
be assigned, transferred, exchanged, pledged, hypothecated, participated or
otherwise conveyed (each, a "TRANSFER") to any Person (any such Person, a
"SUBORDINATED NOTE TRANSFEREE") unless or (X) notice of such Transfer has been
given to the Company, USFS, the Trustee, the Funding Agent and the
Administrator, (Y) such Subordinated Note Transferee has delivered an
instrument, in form and substance reasonably acceptable to the Company, USFS,
the Trustee, the Funding Agent and the Administrator, pursuant to which such
Subordinated Note Transferee agrees to abide by the terms of the USFS
Subordinated Note and this Article VIII and (Z) each of the Company, USFS, the
Trustee, the Funding Agent and the Administrator have given their consent to
such Transfer, which consent shall not be unreasonably withheld.
49
<Page>
ARTICLE IX
MISCELLANEOUS
Section 9.01 AMENDMENT. Neither this Agreement nor any of the terms hereof
may be amended, supplemented or modified except in a writing signed by USFS and
the Sellers. Any amendment, supplement or modification shall not be effective
until the Rating Agency Condition, if applicable, has been satisfied.
Section 9.02 NOTICES, ETC. All notices and other communications provided
for hereunder shall, unless otherwise stated herein, be in writing (including
facsimile communication) and shall be personally delivered or sent by certified
mail, postage-prepaid, by facsimile or by overnight courier, (a) in the case of
USFS, to it at the address or facsimile number set forth in Section 10.4 of the
Pooling Agreement and (b) in the case of all other parties, to such party at the
address or facsimile number of the Servicer set forth in Section 10.4 of the
Pooling Agreement or, in the case of the foregoing clause (a) or (b), at such
other address or facsimile number as shall be designated by the relevant party
in a written notice to the other parties hereto given in accordance with this
Section 9.02. All notices and communications provided for hereunder shall be
effective, (a) if personally delivered by express mail or courier, when
received, (b) if sent by certified mail, three Business Days after having been
deposited in the mail, postage prepaid and (c) if transmitted by facsimile, when
sent, receipt confirmed by telephone or electronic means.
Section 9.03 NO WAIVER; REMEDIES. No failure on the part of USFS to
exercise, and no delay in exercising, any right under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
Section 9.04 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the Sellers and USFS and their respective successors
(whether by merger, consolidation or otherwise) and assigns. Each Seller agrees
that it will not assign or transfer all or any portion of its rights or
obligations hereunder without the prior written consent of USFS and the Company.
The Sellers acknowledge that USFS shall assign all of its rights hereunder to
the Company, pursuant to the USFS Receivables Sale Agreement, and that the
Company, in turn, shall assign all such rights to the Trustee, for the benefit
of the Holders, pursuant to the Pooling Agreement. Each Seller consents to such
assignment and agrees that Company and the Trustee, on behalf of the Holders, to
the extent provided in the Pooling Agreement, shall be entitled to enforce the
terms of this Agreement and the rights (including, without limitation, the right
to grant or withhold any consent or
50
<Page>
waiver) of USFS directly against such Seller, whether or not a Purchase
Termination Event or a Potential Purchase Termination Event has occurred. Each
Seller further agrees that, in respect of its obligations hereunder, it will act
at the direction of and in accordance with all requests and instructions from
the Company or the Trustee until all amounts due to the Investor
Certificateholders are paid in full. The Company and the Trustee, on behalf of
the Holders, shall have the rights of a third-party beneficiary under this
Agreement.
Section 9.05 COSTS, EXPENSES AND TAXES. In addition to the limited rights
of indemnification granted to USFS under Article VII hereof, each Seller agrees
to pay on demand all reasonable out-of-pocket costs and expenses of USFS in
connection with the negotiation, preparation, execution and delivery of, and any
amendment, supplement or other modification to, this Agreement, the other
Transaction Documents and any other documents prepared in connection herewith
and therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including, without limitation, the reasonable
fees and out-of-pocket expenses of counsel for USFS with respect thereto and
with respect to advising USFS as to its rights and remedies under this
Agreement, the other Transaction Documents and any such other documents, and all
costs and expenses (including, without limitation, reasonable counsel fees and
expenses), in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Agreement, the other Transaction
Documents and any such other documents. In addition, each Seller agrees to pay
any and all stamp and other taxes and governmental fees payable or determined to
be payable in connection with the execution, delivery, filing and recording of
this Agreement or the other Transaction Documents to be delivered hereunder, and
agrees to hold USFS harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omitting to pay such taxes
and fees.
Section 9.06 INTEGRATION. This Agreement and the other Transaction
Documents contain a final and complete integration of all prior expressions by
the parties hereto with respect to the subject matter hereof and thereof and
shall together constitute the entire agreement among the parties hereto with
respect to the subject matter hereof and thereof, superseding all prior oral or
written understandings.
Section 9.07 CAPTIONS AND CROSS REFERENCES. The various captions
(including, without limitation, the table of contents) in this Agreement are
provided solely for convenience of reference and shall not affect the meaning or
interpretation of any provision of this Agreement. Unless otherwise provided
herein, references in this Agreement to any "Section," "Exhibit," "Annex" or
"Schedule" are to such Section of or Exhibit or Annex or Schedule to this
Agreement, as the case may be.
51
<Page>
Section 9.08 RESERVED.
Section 9.09 RESERVED.
Section 9.10 EXECUTION IN COUNTERPARTS. 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.
Section 9.11 ACKNOWLEDGMENT OF ASSIGNMENTS. Each Seller hereby acknowledges
and consents to the assignment by USFS, pursuant to the USFS Receivables Sale
Agreement, of Receivables, Receivables Property and its rights under this
Agreement to the Company. Each Seller acknowledges that the Company, pursuant to
the Pooling Agreement, will grant a security interest in its interests in the
Lockbox Accounts and the Collection Concentration Account to the Trustee for the
benefit of the Holders. Each Seller agrees to take any action that USFS, the
Company or the Trustee may reasonably request in connection with such
assignments or security interests.
Section 9.12 NO PETITION IN BANKRUPTCY. Each Seller covenants and agrees
that prior to the date which is one year and one day after the date of
termination of this Agreement pursuant to Section 9.13, it will not institute
against or join any other Person in instituting against the Company any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other similar proceeding under the laws of the United States, any State of
the United States or the Cayman Islands.
Section 9.13 ADDITION OF SELLERS. Subject to the terms and conditions
hereof, from time to time one or more wholly-owned Subsidiaries of United
Stationers Inc. may become additional Sellers parties hereto, the receivables
originated by which may constitute Eligible Receivables of such Seller. If any
such Subsidiary wishes to become an additional Seller, it shall submit a request
to such effect in writing to USFS and forward a copy of such request to the
Company and the Trustee. USFS, at the direction of the Company, may, subject to
the terms and provisions of the Pooling and Servicing Agreements, agree to or
deny any such request; PROVIDED that, if USFS shall have failed to respond to
any such request within 30 days after receipt thereof, such request shall be
deemed to have been denied. If USFS shall have agreed to any such request
pursuant to this Section 9.11, then in the case of a wholly-owned Subsidiary of
United Stationers Inc., such wholly-owned Subsidiary shall become an additional
Seller party hereto on the
52
<Page>
related Seller Addition Date upon satisfaction of the conditions set forth in
Section 3.02 and the conditions, if any, set forth in the Pooling and Servicing
Agreements.
Section 9.14 TREATMENT OF SELLERS OTHER THAN USSC; TERMINATION THEREOF. (a)
USSC hereby covenants and agrees with USFS that USSC shall not permit any Seller
or USFS at any time to cease to be a wholly-owned Subsidiary of United
Stationers Inc., except as provided in the following paragraph (b).
(b) If United Stationers Inc. wishes to permit any Seller to cease to
be a wholly-owned Subsidiary of United Stationers Inc., then USSC shall submit a
request (a "SELLER TERMINATION REQUEST") to such effect in writing to USFS, with
a copy therof to the Company and the Trustee, which request shall be accompanied
by a certificate prepared by a Responsible Officer of the Servicer indicating
the Purchased Receivables Percentage applicable to such Seller as of the date of
submission of such request (the "SELLER TERMINATION REQUEST DATE"). USFS, at the
direction of the Company and subject to the terms and provisions of the Pooling
and Servicing Agreements, shall consent to or deny any such Seller Termination
Request, PROVIDED that, if USFS shall have failed to respond to any such Seller
Termination Request within 30 days after receipt thereof, such Seller
Termination Request shall be deemed to have been denied. If USFS shall have
consented to any such Seller Termination Request, and such consent shall not be
in violation of any applicable provision of the Pooling and Servicing
Agreements, then the relevant Seller shall be terminated as a Seller hereunder
on the date of the consummation of the transaction in connection with which such
Seller ceases to be a wholly-owned Subsidiary of United Stationers Inc. or, if
USSC requests in writing that the termination date be a date prior to the
consummation of such transaction, such earlier requested date (but in no event
more than 30 days prior to the consummation of such transaction); PROVIDED that
if an earlier date is so requested, USSC or any Subsidiary of United Stationers
Inc. shall have entered into a valid and legally, binding agreement to effect
such transaction on or before a date certain; PROVIDED FURTHER that, if the
Purchased Receivables Percentage applicable to such Seller as of the relevant
Seller Termination Request Date is less than 10%, then USFS shall consent to
such Seller Termination Request unless such consent would violate the terms and
provisions of the Pooling and Servicing Agreements. From and after the date any
such Seller is terminated as a Seller pursuant to this subsection, USFS shall
cease buying Receivables and Receivables Property from such Seller. Each such
Seller shall be released as a Seller party hereto for all other purposes and
shall cease to be a party hereto on such termination date.
(c) A terminated Seller shall have no further obligation under any
Transaction Document, other than to repurchase Receivables previously
53
<Page>
sold by it to USFS or the Company, as applicable, pursuant to Section 2.06 and
indemnification obligations under Section 7.01.
Section 9.15 TERMINATION. This Agreement will terminate at such time as (a)
an Early Termination shall have occurred with respect to all Sellers hereunder
and (b) all Receivables purchased hereunder have been collected, and the
proceeds thereof turned over to USFS (or as directed by USFS) and all other
amounts owing to USFS hereunder shall have been paid in full or, if Receivables
sold hereunder have not been collected, such Receivables have become Defaulted
Receivables and USFS shall have completed its collection efforts with respect
thereto; PROVIDED, HOWEVER, that the indemnities of the Sellers to USFS set
forth in this Agreement shall survive such termination and PROVIDED FURTHER that
USFS shall remain entitled to receive any collections on Receivables sold
hereunder which have become Defaulted Receivables.
Section 9.16 WAIVER OF JURY TRIAL; SUBMISSION TO JURISDICTION; OTHER
WAIVERS.
(a) EACH PARTY HERETO WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER OR RELATING TO THIS
AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR ANY AMENDMENT, INSTRUMENT, DOCUMENT
OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
HEREWITH OR THEREWITH OR ARISING FROM ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN), ACTIONS OF ANY OF THE PARTIES HERETO OR
ANY OTHER RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.
(b) Each of USFS and the Sellers hereby irrevocably and
unconditionally:
(i) submits itself and its property in any legal action or
proceeding relating to this Agreement and the other Transaction Documents
to which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the courts
of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof;
54
<Page>
(ii) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have
to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and agrees
not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such Person at its address referred to in Section 9.02 or at
such other address of which the relevant Seller or USFS, as the case may
be, shall have been notified pursuant thereto;
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(v) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this subsection 9.07(b) any special, exemplary, punitive or
consequential damages.
SECTION 9.17 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
55
<Page>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE SELLER:
UNITED STATIONERS SUPPLY CO.
By:
---------------------------------------------
Name:
Title:
THE SERVICER:
UNITED STATIONERS FINANCIAL SERVICES LLC
By:
---------------------------------------------
Name:
Title:
UNITED STATIONERS FINANCIAL SERVICES LLC
By:
---------------------------------------------
Name:
Title:
<Page>
Consented to by:
USS RECEIVABLES COMPANY, LTD.
By:
------------------------------------
Name:
Title:
57
<Page>
SCHEDULE I
AUTHORIZED OFFICERS
<Table>
Eileen A. Kamerick Executive Vice President and Chief Financial Officer
Susan Maloney Meyer Senior Vice President, General Counsel and Secretary
Kathleen S. Dvorak Senior Vice President, Investor Relations and Financial Administration
Brian S. Cooper Senior Vice President, Treasurer and Assistant Secretary
</Table>
<Page>
SCHEDULE II
Principal place of business and Chief Executive Office of USSC:
2200 E. Golf Road
Des Plaines, Illinois 60016
(Cook County)
Offices where USSC keeps its records concerning Receivables and Related
Contracts, purchase orders and all other Agreements related to the
Receivables:
2200 E. Golf Road
Des Plaines, Illinois 60016
(Cook County)
<Page>
SCHEDULE III
Lockbox Processors:
THE NORTHERN TRUST COMPANY
Lockbox Number 92515 Chicago, Illinois
Lockbox Account Number 55719
PNC BANK
Lockbox Number 7780-1274 Philadelphia, Pennsylvania
Lockbox Number 31001-0284 Pasadena, California
Lockbox Account Number 2149466
<Page>
SCHEDULE IV
Policies Concerning Contracts and Receivables:
On File with Seller
<Page>
SCHEDULE VI
CORPORATE AND TRADE NAMES
United Stationers Supply Co.
JURISDICTIONS USED
Illinois
<Page>
SCHEDULE VII
DISCOUNTED PERCENTAGE
The Discounted Percentage applicable to the Receivables purchased on any date
from any Seller shall equal 98.41%; PROVIDED, that, with respect to
Non-Securitized Receivables, the Discounted Percentage shall equal 78.43%;
PROVIDED FURTHER, that the Discounted Percentage may be revised with the mutual
written consent of the Sellers and USFS, based the a valution report of a third
party. The Discounted Percentage is (and to the extent revised, shall be)
reflective of a fair market value discount based on an historical analysis of
losses, dilutions, delinquencies and agings on the Receivables, and which takes
into account the anticipated funding and servicing costs to USFS, as well as
arm's-length return to USFS.
<Page>
SCHEDULE VIII
ERISA
None
<Page>
EXHIBIT A
TO RECEIVABLES SALE AGREEMENT
FORM OF USES SUBORDINATED NOTE
<Page>
FORM OF
USFS SUBORDINATED PROMISSORY NOTE
Des Plaines, Illinois May 1, 2001
FOR VALUE RECEIVED, the undersigned, UNITED STATIONERS FINANCIAL SERVICES
LLC, an Illinois limited company ("USFS"), does hereby promise to pay to the
order of UNITED STATIONERS SUPPLY CO., an Illinois corporation ("USSC"), and
each Subsidiary of UNITED STATIONERS INC. which is from time to time a party to
the Receivables Sale Agreement referred to below (collectively, the "SELLERS"),
and their successors and permitted assigns, the principal amount of this
Subordinated Promissory Note (this "USFS SUBORDINATED NOTE"), determined as
described below, together with interest thereon which shall accrue on the last
day of each Settlement Period at a rate per annum equal to the ABR in effect
from time to time plus two percent (2%) from and including the initial Effective
Date to but excluding the last day of each Settlement Period and shall, subject
to the terms and conditions hereof, be paid (x) on each Distribution Date with
respect to this USFS Subordinated Note outstanding from time to time during the
Settlement Period immediately preceding such Distribution Date and/or (y) on the
Maturity Date (as hereinafter defined). Capitalized terms used herein and not
otherwise defined are used herein as defined in the Amended and Restated
Receivables Sale Agreement, dated as of May 1, 2001, among the Sellers, USFS,
and USFS, as Servicer (such agreement, as it may from time to time be amended,
supplemented or otherwise modified in accordance with its terms, the
"RECEIVABLES SALE AGREEMENT") and the Amended and Restated Pooling Agreement,
dated as of May 1, 2001, among USS Receivables Company, Ltd., USFS, as Servicer,
and The Chase Manhattan Bank, as Trustee and as Securities Intermediary (such
agreement, as it may from time to time further be amended, supplemented or
otherwise modified in accordance with its terms, the "POOLING AGREEMENT"). This
USFS Subordinated Note is the USFS Subordinated Note referred to in the
Receivables Sale Agreement.
The Initial USFS Subordinated Note Amount shall be equal to ____________
($___________). Following the Effective Date, the aggregate principal amount of
this USFS Subordinated Note at any time shall be equal to the difference between
(i) the sum of the Initial USFS Subordinated Note Amount and each addition to
the principal amount of the USFS Subordinated Note with respect to each Seller
pursuant to Section 2.03 of the Receivables Sale Agreement as of such time and
(ii) the aggregate amount of all payments made in respect of the principal of
this USFS Subordinated Note as of such time. All payment made in respect of this
USFS Subordinated Note shall be allocated among the Sellers by the Servicer in
accordance with the Receivables Sale Agreement and shall be allocated FIRST, to
pay accrued and unpaid interest thereon, and SECOND, to pay the outstanding
principal amount thereof. Principal hereunder not paid or prepaid pursuant to
the terms hereof shall be payable on the date (the "MATURITY DATE") on which all
of the Investor Certificateholders with respect to each Outstanding Series shall
have been paid in full all amounts owing to them under any Pooling and Servicing
<Page>
Agreement. Payments of interest on and principal under this USFS Subordinated
Note shall be paid by wire transfer of immediately available funds to such
account of each Seller as such Seller may designate in writing from time to
time. Notwithstanding the foregoing, no payment of interest or principal (any of
the foregoing, a "PAYMENT") may be made under this USFS Subordinated Note at any
time unless (i) at the date such payment is to be made, USFS shall have made all
payments in respect of its repurchase obligations pursuant to the USFS
Receivables Sale Agreement at such date and (ii) such payment is effected in
accordance with all corporate and legal formalities applicable to USFS;
PROVIDED, HOWEVER, that (A) no payment shall be made on, and no Seller shall
make any claim for any payment on, any date if (x) a Potential Early
Amortization Event of a type referred to in clause (a)(ii) or (iii) of Section
7.1 of the Pooling Agreement or (y) an Early Amortization Event has occurred and
is continuing (or would occur as a result of such payment) on such date and (B)
all payments made on any date shall be payable by USFS solely from funds
available to USFS which are not otherwise needed or required on such date to be
applied to the payment of any amounts by USFS pursuant to the USFS Receivables
Sale Agreement and the Sellers shall make no claim for payment in contravention
of this clause (B). Default in the payment of interest on and principal under
this USFS Subordinated Note shall not constitute a Purchase Termination Event
under the Receivables Sale Agreement, a Servicer Default under the Servicing
Agreement, or an Early Amortization Event under the Pooling Agreement or any
Supplement thereto.
Each holder of this USFS Subordinated Note agrees that it shall have no
right to be paid, and shall have no claim to payment, except in accordance with,
and subject to the terms and conditions of, this USFS Subordinated Note.
Neither this USFS Subordinated Note, nor any right of any Seller to receive
payments hereunder, shall be assigned, transferred, exchanged, pledged,
hypothecated, participated or otherwise conveyed, except as set forth in Section
8.02 of the Receivables Sale Agreement.
USFS hereby waives diligence, presentment, demand, protest and notice of
any kind whatsoever. The failure of any holder to exercise any of its rights
hereunder in any particular instance shall not constitute a waiver thereof in
that or any subsequent instance.
If any payment or distribution of any kind be collected or received by any
Seller in respect of amounts owing to such Seller under this USFS Subordinated
Note when pursuant hereto such payment should not have been made to or received
by such Seller, such Seller forthwith shall deliver the same to the Trustee for
the benefit of the Holders. Until so delivered, such payment or distribution
shall be held in trust by such Seller as the property of the Holders, segregated
from other funds and property held by such Seller.
<Page>
Each Seller covenants and agrees that, prior to the date which is one (1)
year and one (1) day after the date of termination of the Receivables Sale
Agreement pursuant to Section 9.15 thereof, it will not institute against, or
join any other Person in instituting against, USS Receivables Company, Ltd. any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any federal or state bankruptcy or similar law.
THIS USFS SUBORDINATED NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
UNITED STATIONERS FINANCIAL SERVICES LLC
By:
--------------------------------------------------
<Page>
EXHIBIT B TO
AMENDED AND RESTATED
RECEIVABLES SALE AGREEMENT
FORM OF ADDITIONAL SELLER SUPPLEMENT
SUPPLEMENT, dated ___________, to the Amended and Restated Receivables
Sale Agreement Agreement dated as of May 1, 2001 (as may from time to time be
amended, supplemented or otherwise modified, the "AGREEMENT"), among UNITED
STATIONERS SUPPLY CO., an Illinois corporation ("USSC"), (the "SELLER," and
together with each other subsidiary of UNITED STATIONERS INC. from time to time
added as a seller pursuant to Section 9.13 of the Agreement, (the "SELLERS")),
UNITED STATIONERS FINANCIAL SERVICES LLC, an Illinois limited liability company
("USFS"), and USFS, in its capacity as servicer (terms used but not defined
herein have the meaning given them in the Agreement).
W I T N E S S E T H:
WHEREAS, the Agreement provides that any Subsidiary of USSC, although
not originally a Seller thereunder, may become a Seller under the Agreement,
with (i) the consent of USFS pursuant to Section 9.13 of the Agreement and (ii)
the satisfaction of each of the conditions precedent set forth in Section 3.02
of the Agreement (including the requirement under subsection 3.02(a) thereof
that such additional Seller deliver to USFS a supplement in substantially the
form of this Supplement); and
WHEREAS, the undersigned is not an original Seller under the Agreement
but now desires to become a Seller thereunder.
NOW, THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees to be bound by all of the provisions of the
Agreement applicable to a Seller thereunder and agrees that it shall, on the
date this Supplement is accepted by USFS, become a Seller for all purposes of
the Agreement to the same extent as if originally a party thereto.
IN WITNESS THEREOF, the undersigned has caused this Supplement to be
executed and delivered by a duly authorized officer on the date first above
written.
[Insert name of Seller]
By:
---------------------------------------------
Title:---------------------------------------
<Page>
EXHIBIT C TO
AMENDED AND RESTATED
RECEIVABLES SALE AGREEMENT
UCC CERTIFICATE
The undersigned, the Treasurer and Assistant Secretary of United Stationers
Supply Co., an Illinois corporation ("USSC"), makes reference to the Amended and
Restated Receivables Sale Agreement dated as of May 1, 2001 (as may from time to
time be amended, supplemented or otherwise modified, the "AGREEMENT"), among
USSC and United Stationers Financial Services LLC, an Illinois limited company
("USFS"), and USFS in its capacity as servicer (terms used but not defined
herein have the meaning given them in the Agreement), and in connection
therewith hereby certifies to USFS, the Company and the Trustee, on behalf of
USSC and not individually, as follows:
1. NAMES.
(a) The exact corporate name of USSC, as such name appears in its
certificate of incorporation, is as follows:
United Stationers Supply Co.
(b) Set forth below is each other corporate name USSC has had since
its organization, together with the date of the relevant change:
NONE
(a) (c) Except as set forth in SCHEDULE A hereto, USSC has
not changed its identity or corporate structure in any way within the
past five years.
(d) No other names (including trade names or similar appellations) have
been used by USSC or any of its divisions or other business units in connection
with the conduct of its business or the ownership of its properties at any time
during the past five years.
2
<Page>
2. CURRENT LOCATIONS.
(b) (a) The chief executive office of USSC is located at the
following address:
United Stationers Supply Co.
2200 E. Golf Road
Cook County
Des Plaines, Illinois 60016
(b) USSC does not maintain any books or records relating to any
Receivables and Receivables Property at any location other than as set forth in
Paragraph 2(a) above.
3. FEDERAL TAXPAYER IDENTIFICATION NUMBER. The following is USSC's Federal
Taxpayer Identification Number:
36-2431718
4. SCHEDULE OF FILINGS. The Office of the Secretary of State of the State of
Illinois is the only office in which a filing by USSC of a financing statement
on Form UCC-l is required to be made in connection with the transactions
contemplated by the Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand this ___ day of April,
2001.
--------------------------------------------------
Name:
Title:
3
<Page>
ANNEX 1
TO THE AMENDED AND RESTATED
RECEIVABLES SALE AGREEMENT
United Stationers Financial Services LLC is a separate wholly-owned
subsidiary of United Stationers Supply Co.
4