EXHIBIT E TO THE
CREDIT AGREEMENT
FORM OF GUARANTY
This GUARANTY (364-Day Facility) dated as of May 7, 1997, made by
UNITED PARCEL SERVICE, INC., a New York corporation, UNITED PARCEL SERVICE,
INC., an Ohio corporation, UNITED PARCEL SERVICE CO., a Delaware corporation
(each, a "Guarantor" and collectively, the "Guarantors") in favor of CITIBANK,
N.A., as administrative agent (the "Administrative Agent") for the Lenders
(as defined in the Credit Agreement referred to below).
The Lenders have agreed to make certain loans to United Parcel
Service of America, Inc., a Delaware corporation (the "Borrower"), pursuant to,
and subject to the terms and conditions specified in, the Amended and Restated
Credit Agreement (364-Day Facility) dated as of May 7, 1997 (as amended,
supplemented and otherwise modified from time to time, the "Credit Agreement";
terms defined therein and not otherwise defined herein being used herein as
therein defined) among the Borrower, the Lenders parties thereto, Citicorp
Securities, Inc. and NationsBanc Capital Markets, Inc., as Co-Arrangers,
NationsBank, N.A. (South), as Documentation Agent and Citibank, N.A., as
Administrative Agent. The obligation of the Lenders to make Advances under the
Credit Agreement is conditioned on, among other things, the execution and
delivery by the Guarantors of this Guaranty.
In order to induce the Lenders to make Advances, the Guarantors are
willing to execute and deliver this Guaranty. Accordingly, the parties hereto
agree as follows:
SECTION 1. Each Guarantor unconditionally guarantees, jointly with
the other Guarantors and severally, as a primary obligor and not merely as a
surety, the due and punctual payment of principal of and interest on each of
the Notes, when and as due, whether at maturity, by acceleration, by notice of
prepayment or otherwise, and all other monetary obligations of the Borrower to
each Lender, the Documentation Agent and the Administrative Agent under the Loan
Documents to which the Borrower is or is to be a party (collectively, the
"Guaranteed Obligations"). Each Guarantor further agrees that the Guaranteed
Obligations may be extended or renewed, in whole or in part, without notice to
or further assent from it, and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any Guaranteed Obligation.
SECTION 2. Each Guarantor waives presentment to, demand of payment
from and protest to the Borrower of any of the Guaranteed Obligations, and also
waives notice of acceptance of its guarantee and notice of protest for
nonpayment. The obligations of each Guarantor hereunder shall not be affected
by (a) the failure of any Lender or any Agent to assert any claim or demand or
to enforce any right or remedy against the Borrower under the provisions of any
Loan Document or otherwise; (b) any recision, waiver, amendment or modification
of any of the terms or provisions of any Loan Document, any guarantee or any
other agreement, including with respect to any other Guarantor under this
Guaranty, except to the extent that a discharge or satisfaction of the
Guaranteed Obligations is effected thereto; (c) the release of any security
held by any Lender or any Agent for the Guaranteed Obligations or any of them;
or (d) the failure of any Lender or any Agent to exercise any right or remedy
against any other Guarantor or guarantor of the Guaranteed Obligations.
SECTION 3. Each Guarantor further agrees that its guarantee
constitutes a guarantee of payment when due and not of collection, and waives
any right to require that any resort be had by any Lender or any Agent to any
security held for payment of the Guaranteed Obligations or to any balance of any
deposit account or credit on the books of such Lender or such Agent in favor of
the Borrower or any other Person.
SECTION 4. The obligations of each Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including, without limitation, any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of the Guaranteed Obligations or otherwise, other
than the indefeasible payment in full in cash of the Guaranteed Obligations in
accordance with the terms of this Guaranty. Without limiting the generality of
the foregoing, the obligations of each Guarantor hereunder shall not be
discharged or impaired or otherwise affected by the failure of any Lender or any
Agent to assert any claim or demand or to enforce any remedy under any Loan
Document, any guarantee or any other agreement, by any waiver or modification of
any thereof, by any default, failure or delay, willful or otherwise, in the
performance of the Guaranteed Obligations, or by any other act or omission that
may or might in any manner or to any extent vary the risk of any Guarantor or
otherwise operate as a discharge of any Guarantor as a matter of law or equity.
SECTION 5. Each Guarantor further agrees that its guarantee shall
continue to be effective or be reinstated, as the case may be, if at any time
payment or any part thereof, or principal of or interest on any Guaranteed
Obligation is rescinded or must otherwise be restored by any Lender or any Agent
upon the insolvency, bankruptcy or reorganization of the Borrower, any other
Loan Party or otherwise.
SECTION 6. In furtherance of the foregoing and not in limitation of
any other right that any Lender or any Agent may have at law or in equity
against any Guarantor by virtue hereof, upon the failure of the Borrower to pay
any Guaranteed Obligation when and as the same shall become due, whether at
maturity, by acceleration, after notice of prepayment (and failure on the
designated date to make such payment) or otherwise, each Guarantor hereby
promises to and will, upon receipt of written demand by any Lender or the
Administrative Agent, forthwith pay, or cause to be paid, to the Administrative
Agent for distribution to the Lenders in cash the amount of such Guaranteed
Obligation, and thereupon each Lender shall, in a reasonable manner, assign the
amount of such Guaranteed Obligation owed to it and paid by such Guarantor
pursuant to this Guaranty to such Guarantor, such assignment to be pro tanto to
the extent to which such Guaranteed Obligation in question was discharged by
such Guarantor, or make such other disposition thereof as such Guarantor shall
direct (all without recourse to such Lender or such Agent and without any
representation or warranty thereby, and no such assignment to be effective prior
to the indefeasible payment in full in cash of such Guaranteed Obligation);
provided, however, that the Lenders shall not receive from the Guarantors
pursuant to such demand an aggregate amount in excess of the amount of such
Guaranteed Obligation.
SECTION 7. Each Guarantor represents and warrants as to itself that
all representations and warranties that relate to it contained in the Credit
Agreement are true and correct.
SECTION 8. The guarantees made hereunder shall survive and be in
full force and effect so long as any Guaranteed Obligation is outstanding and
has not been indefeasibly paid in full in cash and so long as any of the
Commitments under the Credit Agreement have not been terminated and shall be
reinstated to the extent provided in Section 5. Each Guarantor shall be
released from its guarantee hereunder in the event that all the capital stock of
such Guarantor shall be sold, transferred or otherwise disposed of, in
accordance with the terms of the Credit Agreement.
SECTION 9. Whenever in this Guaranty any of the parties hereto is
referred to, such reference shall, except as provided in Section 8, be deemed to
include the successors and assigns of such party and all covenants, promises and
agreements by or on behalf of the Guarantors that are contained in this Guaranty
shall bind and inure to the benefit of their respective successors and assigns.
None of the Guarantors may assign or transfer any of its rights or obligations
hereunder without the prior written consent of all of the Lenders, the
Documentation Agent and the Administrative Agent, except as provided in Section
8.
SECTION 10. No failure on the part of the Administrative Agent to
exercise, and no delay in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power or remedy by the Administrative Agent preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
All remedies hereunder are cumulative and are not exclusive of any other
remedies provided by law. Except as provided in the Credit Agreement, neither
the Administrative Agent nor any of the Lenders shall be deemed to have waived
any rights hereunder or under any other agreement or instrument unless such
waiver shall be in writing and signed by such parties.
SECTION 11. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 12. All communications and notices hereunder shall be in
writing and given as provided in Section 8.02 of the Credit Agreement. All
communications and notices hereunder to each Guarantor shall be given to it at
its address set forth in Schedule I hereto, with a copy to the Borrower.
SECTION 13. In case any one or more of the provisions contained in
this Guaranty should be held invalid, illegal or unenforceable in any respect
with respect to any Guarantor, no party hereto shall be required to comply with
such provision with respect to such Guarantor for so long as such provision is
held to be invalid, illegal or unenforceable, and the validity, legality and
enforceability of the remaining provisions contained herein, and of such
provision with respect to any other Guarantor, shall not in any way be affected
or impaired. The parties shall endeavor in good faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions, the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 14. This Guaranty may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, provided that this Guaranty
shall be construed as a separate agreement with respect to each Guarantor and
may be amended, modified, supplemented, waived or released with respect to any
Guarantor without the approval of any other Guarantor and without affecting the
obligations of any other Guarantor hereunder. Delivery of an executed
counterpart of a signature page to this Guaranty by telecopier shall be
effective as delivery of a manually executed counterpart of this Guaranty.
IN WITNESS WHEREOF, the parties hereto have caused this Guaranty to
be executed by their duly authorized officers as of the day and year first above
written.
UNITED PARCEL SERVICE, INC., a
New York corporation
By
Name:
Title:
UNITED PARCEL SERVICE, INC., an
Ohio corporation
By
Name:
Title:
UNITED PARCEL SERVICE CO., a
Delaware corporation
By
Name:
Title:
SCHEDULE I TO
THE GUARANTY
ADDRESSES OF GUARANTORS
UNITED PARCEL SERVICE, INC.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
UNITED PARCEL SERVICE, INC.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
UNITED PARCEL SERVICE CO.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
