THIRD AMENDED AND RESTATED CREDIT AGREEMENT
(FIVE-YEAR FACILITY)
Dated as of April 26, 2001
UNITED PARCEL SERVICE, INC., a Delaware corporation
(the "Borrower"), the banks, financial institutions and other institutional
lenders (collectively, the "Initial Lenders") party hereto, Citibank, N.A.,
as administrative agent (together with any successor thereto appointed
pursuant to Article VII of the Existing Credit Agreement referred to below,
in such capacity, the "Administrative Agent") and as syndication agent (in
such capacity, the "Syndication Agent") for the Lenders (as defined in the
Existing Credit Agreement referred to below), Bank of America, N.A., as
documentation agent (in such capacity, the "Documentation Agent") for such
Lenders, and Salomon Smith Barney Inc. and Banc of America Securities LLC, as
co-arrangers (in such capacity, the "Co-Arrangers") under the Loan Documents
(as defined in the Existing Credit Agreement described below), hereby agree
as follows:
PRELIMINARY STATEMENTS
(1) United Parcel Service of America, Inc., a Delaware
corporation and a wholly owned subsidiary of the Borrower (the "Existing
Borrower"), is party to a Second Amended and Restated Credit Agreement
(Five-Year Facility) dated as of April 27, 2000 (as amended, supplemented or
otherwise modified from time to time to, but not including, the date hereof,
the "Existing Credit Agreement") with the banks, financial institutions and
other institutional lenders party thereto (the "Existing Lenders"), Citibank,
N.A., as Administrative Agent and as Syndication Agent for the Existing
Lenders, Bank of America N.A., as Documentation Agent for the Existing
Lenders, and Salomon Smith Barney Inc. and Banc of America Securities LLC, as
Co-Arrangers for the Existing Lenders. Capitalized terms not otherwise
defined in this Third Amended and Restated Credit Agreement (Five-Year
Facility) (the "Amendment and Restatement") shall have the same meanings as
specified in the Existing Credit Agreement.
(2) The Borrower has requested that the Lenders agree to extend
credit to it from time to time in an aggregate principal amount of up to $
1,250,000,000 for general corporate purposes of the Borrower and its
Subsidiaries not otherwise prohibited under the terms of this Amendment and
Restatement. The Lenders have indicated their willingness to agree to extend
credit to the Borrower from time to time in such amount on the terms and
conditions of this Amendment and Restatement.
(3) The parties to this Amendment and Restatement desire to
amend the Existing Credit Agreement as set forth herein and to restate the
Existing Credit Agreement in its entirety to read as set forth in the
Existing Credit Agreement with the following amendments.
SECTION 1. Amendments to the Existing Credit Agreement.
Effective as of the date of this Amendment and Restatement and subject to the
satisfaction of the conditions precedent set forth in Section 2 hereof:
(a) The recital of parties to the Existing Credit Agreement is
amended in full to read as follows:
"UNITED PARCEL SERVICE, INC., a Delaware corporation
(the "Borrower"), the banks, financial institutions and other
institutional lenders (collectively, the "Initial Lenders") party
hereto, Citibank, N.A., as administrative agent (in such capacity, the
"Administrative Agent") and as syndication agent (in such capacity, the
"Syndication Agent") for the Lenders (as hereinafter defined), Bank of
America, N.A., as documentation agent (in such capacity, the
"Documentation Agent") for such Lenders, and Salomon Smith Barney Inc.
and Banc of America Securities LLC, as co-arrangers (in such capacity,
the "Co-Arrangers") under the Loan Documents (as hereinafter defined),
hereby agree as follows:"
(b) Section 1.01 of the Existing Credit Agreement is hereby
amended by (i) deleting the definitions of "Existing Credit Facilities",
"Information Memorandum" and "Parent" set forth therein and (ii) replacing
them with the following new definition:
"Existing Credit Facilities" means the credit facilities
provided pursuant to (a) the Second Amended and Restated Credit
Agreement (Five-Year Facility) and (b) the Fourth Amended and Restated
Credit Agreement (364-Day Facility), each dated as of April 27, 2000,
as amended, supplemented or otherwise modified from time to time prior
to the date hereof, among United Parcel Service of America, Inc., a
Delaware corporation, the banks, financial institutions and other
institutional lenders parties thereto, Citibank, as administrative
agent and syndication agent, and Salomon Smith Barney Inc. and Banc of
America Securities LLC, as co-arrangers thereunder.
(c) Section 4.01(e) of the Existing Credit Agreement is amended
in full to read as follows:
"(e) The Consolidated balance sheet of the Borrower and
its Subsidiaries as at December 31, 2000, and the related
Consolidated statements of income and cash flows of the Borrower
and its Subsidiaries for the Fiscal Year then ended, all audited
and certified by Deloitte & Touche LLP, independent public
accountants, copies of which have been furnished to each Lender,
fairly present the Consolidated financial condition of the
Borrower and its Subsidiaries at such dates and the Consolidated
results of the operations of the Borrower and its Subsidiaries
for the periods ended on such dates, all in accordance with GAAP
consistently applied. Such balance sheets and the notes thereto
disclose all material liabilities, direct or contingent, of the
Borrower and its Subsidiaries on a Consolidated basis as of the
dates thereof."
(d) Section 4.01(f) of the Existing Credit Agreement is amended
by replacing the words "December 31, 1999" with the words "December 31, 2000."
(e) Section 5.01(h)(i) is amended in full to read as follows:
"(i) within 120 days after the end of each Fiscal Year of
the Borrower, Consolidated balance sheets of the Borrower and its
Subsidiaries showing the financial condition of the Borrower and
its Subsidiaries as of the close of such Fiscal Year and the
related statements of Consolidated income and statements of
Consolidated cash flow as of and for such Fiscal Year, all such
Consolidated financial statements of the Borrower and its
Subsidiaries to be reported on by Deloitte & Touche or other
independent accountants acceptable to the Required Lenders, and
to be in form reasonably acceptable to the Required Lenders;"
SECTION 2. Conditions of Effectiveness of this Amendment and
Restatement. This Amendment and Restatement shall become effective as of the
date first above written (the "Restatement Effective Date") when and only if:
(a) The Administrative Agent shall have received counterparts
of this Amendment and Restatement executed by the Borrower, the Existing
Borrower, each of the Guarantors and all of the Initial Lenders or, as to any
of the Initial Lenders, advice satisfactory to the Administrative Agent that
such Initial Lender has executed this Amendment and Restatement.
(b) The Administrative Agent shall have received on or before
the Restatement Effective Date the following, each dated such date and
(unless otherwise specified below) in form and substance satisfactory to the
Administrative Agent and (except for the Revolving Credit Notes) in
sufficient copies for each Initial Lender:
(i) The new Revolving Credit Notes issued in connection
with this Amendment and Restatement to the order of each of the
Lenders, respectively.
(ii) Certified copies of the resolutions of the board of
directors of the Borrower approving this Amendment and
Restatement, the Notes and all documents evidencing other
necessary corporate action and governmental approvals, if any,
with respect to this Amendment and Restatement and the Notes.
(iii) Certified copies of the resolutions of the board of
directors of each of the Guarantors approving this Amendment and
Restatement and all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect
to this Amendment and Restatement.
(iv) A certificate of the Secretary or an Assistant
Secretary of each of the Guarantors certifying the names and true
signatures of the officers of such Guarantor
authorized to sign this Amendment and Restatement and the other
documents to be delivered hereunder.
(v) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign
this Agreement, the Notes and the other documents to be delivered
hereunder.
(vi) A favorable opinion of King & Spalding, counsel for
the Borrower, in substantially the form of Exhibit G to the
Existing Credit Agreement, but with such modifications as are
required to address the Existing Credit Agreement, as amended by
this Amendment and Restatement, in each such case in form and
substance reasonably satisfactory to the Initial Lenders.
(vii) A favorable opinion of Shearman & Sterling, counsel
for the Administrative Agent, in form and substance reasonably
satisfactory to the Administrative Agent.
(c) The representations and warranties contained in
Section 4.01 of the Existing Credit Agreement shall be correct on and as of
the Restatement Effective Date, before and after giving effect to the
Restatement Effective Date, as though made on and as of such date.
(d) No event shall have occurred and be continuing, or shall
occur as a result of the occurrence of the Restatement Effective Date, that
constitutes a Default.
(e) The Existing Borrower shall have paid all fees and amounts
due and payable.
SECTION 3. Affirmation of Guaranty. Each of the Guarantors
hereby consents to the execution and delivery of this Amendment and
Restatement and ratifies and confirms its obligations under the Guaranty
dated April 30, 1998, which obligations shall remain in full force and effect
notwithstanding the provisions of this Amendment and Restatement or any other
amendment and restatement thereto heretofore executed. Each of the
Guarantors further agrees that all references to "the Borrower" in the above
referenced Guaranty shall be deemed to be references to United Parcel
Service, Inc.
SECTION 4. Reference to and Effect on the Existing Credit
Agreement and the Notes. (a) On and after the effectiveness of this
Amendment and Restatement, each reference in the Existing Credit Agreement to
"this Agreement", "hereunder", "hereof" or words of like import referring to
the Existing Credit Agreement, and each reference in the Notes to "the Credit
Agreement", "thereunder", "thereof" or words of like import referring to the
Existing Credit Agreement, shall mean and be a reference to the Existing
Credit Agreement, as amended by this Amendment and Restatement.
(b) The Existing Credit Agreement and the Notes, as
specifically amended by this Amendment and Restatement, are and shall
continue to be in full force and effect and are hereby in all respects
ratified and confirmed.
(c) Without limiting any of the other provisions of the
Existing Credit Agreement, as amended by this Amendment and Restatement, any
references in the Existing Credit Agreement to the phrases "on the date
hereof", "on the date of this Agreement" or words of similar import shall
mean and be a reference to the date of the Existing Credit Agreement (which
is April 27, 2000).
SECTION 5. Costs and Expenses. The Borrower agrees to pay on
demand all reasonable out-of-pocket costs and expenses of the Administrative
Agent in connection with the preparation, execution, delivery and
administration, modification and amendment of this Amendment and Restatement,
the Notes and the other documents to be delivered hereunder (including,
without limitation, the reasonable and documented fees and expenses of
counsel for the Administrative Agent with respect hereto and thereto) in
accordance with the terms of Section 8.04 of the Existing Credit Agreement.
SECTION 6. Execution in Counterparts. This Amendment and
Restatement 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 taken together shall constitute
one and the same agreement. Delivery of an executed counterpart of a
signature page to this Amendment and Restatement by telecopier shall be
effective as delivery of an original executed counterpart of such signature
page.
SECTION 7. Governing Law. This Amendment and Restatement shall
be governed by, and construed in accordance with, the laws of the State of
New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
and Restatement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
UNITED PARCEL SERVICE, INC.,
as Borrower
By
Name:
Title:
UNITED PARCEL SERVICE OF AMERICA, INC.,
as Existing Borrower
By
Name:
Title:
UNITED PARCEL SERVICE, INC., a New York
corporation, as Guarantor
By
Name:
Title:
UNITED PARCEL SERVICE, INC., an Ohio
corporation, as Guarantor
By
Name:
Title:
UNITED PARCEL SERVICE CO., a Delaware
corporation, as Guarantor
By
Name:
Title:
THE AGENTS
CITIBANK, N.A.,
as Administrative Agent and Syndication Agent
By
Name:
Title:
BANK OF AMERICA, N.A.,
as Documentation Agent
By
Name:
Title:
SALOMON SMITH BARNEY INC.,
as Co-Arranger
By __________________
Name:
Title:
BANC OF AMERICA SECURITIES LLC,
as Co-Arranger
By ___________________________________________
Name:
Title:
FIRST UNION NATIONAL BANK
as Co-Agent
By
Name:
Title:
WACHOVIA BANK, N.A.
as Co-Agent
By_____________________________________________
Name:
Title:
ROYAL BANK OF CANADA
as Co-Agent
By_____________________________________________
Name:
Title:
THE CHASE MANHATTAN BANK
as Co-Agent
By_____________________________________________
Name:
Title:
THE INITIAL LENDERS
______________________________________
[Print or type name of lender]
By
______________________________________________
Name:
Title: