EXHIBIT 10.17
GUARANTY
This GUARANTY (this "Guaranty"), dated as of September ___,
1999, by and among UNITED SHIPPING & TECHNOLOGY, INC., a Utah corporation
("Guarantor"), and GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation,
individually and as agent (in such capacity, "Agent") for itself and the lenders
from time to time signatory to the Credit Agreement, as hereinafter defined
("Lenders").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement dated as of
the date hereof by and among UST Delivery Systems, Inc., a Delaware corporation
formerly known as Corporate Express Delivery Systems, Inc. ("Borrower"), the
Persons named therein as Credit Parties, Agent and the Persons signatory thereto
from time to time as Lenders (as from time to time amended, restated,
supplemented or otherwise modified, the "Credit Agreement") Lenders have agreed
to make Loans to Borrower.
WHEREAS, Guarantor owns all of the issued and outstanding
capital stock of Borrower, and as such will derive direct and indirect economic
benefits from the making of the Loans and other financial accommodations
provided to Borrower pursuant to the Credit Agreement; and
WHEREAS, in order to induce Agent and Lenders to enter into
the Credit Agreement and other Loan Documents and to induce Lenders to make the
Loans as provided for in the Credit Agreement, Guarantor has agreed to guarantee
payment of the Obligations;
NOW, THEREFORE, in consideration of the premises and the
covenants hereinafter contained, and to induce Lenders to provide the Loans and
other financial accommodations under the Credit Agreement, it is agreed as
follows:
1. DEFINITIONS.
Capitalized terms used herein shall have the meanings assigned
to them in the Credit Agreement, unless otherwise defined herein.
References to this "Guaranty" shall mean this Guaranty,
including all amendments, modifications and supplements and any annexes,
exhibits and schedules to any of the foregoing, and shall refer to this Guaranty
as the same may be in effect at the time such reference becomes operative.
2. THE GUARANTY.
2.1. Guaranty of Guaranteed Obligations of Borrower. Guarantor
hereby unconditionally guarantees to Agent and Lenders, and their respective
successors, endorsees, transferees and assigns, the prompt payment when due
(whether at stated maturity, by acceleration or otherwise) and performance of
the Obligations of Borrower (hereinafter the "Guaranteed Obligations").
Guarantor agrees that this Guaranty is a guaranty of payment and performance and
not of collection, and that its obligations under this Guaranty shall be
primary, absolute and unconditional, irrespective of, and unaffected by:
(a) the genuineness, validity, regularity, enforceability or
any future amendment of, or change in this Guaranty, any other Loan
Document or any other agreement, document or instrument to which any
Credit Party and/or Guarantor is or may become a party;
(b) the absence of any action to enforce this Guaranty or any
other Loan Document or the waiver or consent by Agent and/or Lenders
with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to
perfect Agent's Lien against, any Collateral for the Guaranteed
Obligations or any action, or the absence of any action, by Agent in
respect thereof (including, without limitation, the release of any such
security); or
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or
guarantor,
it being agreed by Guarantor that its obligations under this Guaranty shall not
be discharged until the Termination Date. Guarantor shall be regarded, and shall
be in the same position, as principal debtor with respect to the Guaranteed
Obligations. Guarantor agrees that any notice or directive given at any time to
Agent which is inconsistent with the waiver in the immediately preceding
sentence shall be null and void and may be ignored by Agent and Lenders, and, in
addition, may not be pleaded or introduced as evidence in any litigation
relating to this Guaranty for the reason that such pleading or introduction
would be at variance with the written terms of this Guaranty, unless Agent and
Lenders have specifically agreed otherwise in writing. It is agreed among
Guarantor, Agent and Lenders that the foregoing waivers are of the essence of
the transaction contemplated by the Loan Documents and that, but for this
Guaranty and such waivers, Agent and Lenders would decline to enter into the
Credit Agreement.
2.2. Demand by Agent or Lenders. In addition to the terms of
the Guaranty set forth in Section 2.1 hereof, and in no manner imposing any
limitation on such terms, it is
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expressly understood and agreed that, if, at any time, the outstanding principal
amount of the Guaranteed Obligations under the Credit Agreement (including all
accrued interest thereon) is declared to be immediately due and payable, then
Guarantor shall, without demand, pay to the holders of the Guaranteed
Obligations the entire outstanding Guaranteed Obligations due and owing to such
holders. Payment by Guarantor shall be made to Agent in immediately available
funds to an account, designated by Agent or at the address set forth herein for
the giving of notice to Agent or at any other address that may be specified in
writing from time to time by Agent, and shall be credited and applied to the
Guaranteed Obligations.
2.3. Enforcement of Guaranty. In no event shall Agent have any
obligation (although it is entitled, at its option) to proceed against Borrower
or any other Credit Party or any Collateral pledged to secure Guaranteed
Obligations before seeking satisfaction from Guarantor, and Agent may proceed,
prior or subsequent to, or simultaneously with, the enforcement of Agent's
rights hereunder, to exercise any right or remedy which it may have against any
Collateral, as a result of any Lien it may have as security for all or any
portion of the Guaranteed Obligations.
2.4. Waiver. In addition to the waivers contained in Section
2.1 hereof, Guarantor waives and agrees that it shall not at any time insist
upon, plead or in any manner whatever claim or take the benefit or advantage of,
any appraisal, valuation, stay, extension, marshaling of assets or redemption
laws, or exemption, whether now or at any time hereafter in force, which may
delay, prevent or otherwise affect the performance by Guarantor of its
Guaranteed Obligations under, or the enforcement by Agent or Lenders of, this
Guaranty. Guarantor hereby waives diligence, presentment and demand (whether for
non-payment or protest or of acceptance, maturity, extension of time, change in
nature or form of the Guaranteed Obligations, acceptance of further security,
release of further security, composition or agreement arrived at as to the
amount of, or the terms of, the Guaranteed Obligations, notice of adverse change
in Borrower's financial condition or any other fact which might increase the
risk to Guarantor) with respect to any of the Guaranteed Obligations or all
other demands whatsoever and waives the benefit of all provisions of law which
are or might be in conflict with the terms of this Guaranty. Guarantor
represents, warrants and agrees that, as of the date of this Guaranty, its
obligations under this Guaranty are not subject to any offsets or defenses
against Agent or Lenders or any Credit Party of any kind. Guarantor further
agrees that its obligations under this Guaranty shall not be subject to any
counterclaims, offsets or defenses against Agent or any Lender or against any
Credit Party of any kind which may arise in the future.
2.5. Benefit of Guaranty. The provisions of this Guaranty are
for the benefit of Agent and Lenders and their respective successors,
transferees, endorsees and assigns, and nothing herein contained shall impair,
as between any Credit Party and Agent or Lenders, the obligations of any Credit
Party under the Loan Documents. In the event all or any part of the Guaranteed
Obligations are transferred, indorsed or assigned by Agent or any
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Lender to any Person or Persons, any reference to "Agent" or "Lender" herein
shall be deemed to refer equally to such Person or Persons.
2.6. Modification of Guaranteed Obligations, Etc. Guarantor
hereby acknowledges and agrees that Agent and Lenders may at any time or from
time to time, with or without the consent of, or notice to, Guarantor:
(a) change or extend the manner, place or terms of payment of,
or renew or alter all or any portion of, the Guaranteed Obligations;
(b) take any action under or in respect of the Loan Documents
in the exercise of any remedy, power or privilege contained therein or
available to it at law, equity or otherwise, or waive or refrain from
exercising any such remedies, powers or privileges;
(c) amend or modify, in any manner whatsoever, the Loan
Documents;
(d) extend or waive the time for any Credit Party's
performance of, or compliance with, any term, covenant or agreement on
its part to be performed or observed under the Loan Documents, or waive
such performance or compliance or consent to a failure of, or departure
from, such performance or compliance;
(e) take and hold Collateral for the payment of the Guaranteed
Obligations guaranteed hereby or sell, exchange, release, dispose of,
or otherwise deal with, any property pledged, mortgaged or conveyed, or
in which Agent or Lenders have been granted a Lien, to secure any
Obligations;
(f) release anyone who may be liable in any manner for the
payment of any amounts owed by Guarantor or any Credit Party to Agent
or any Lender;
(g) modify or terminate the terms of any intercreditor or
subordination agreement pursuant to which claims of other creditors of
Guarantor or any Credit Party are subordinated to the claims of Agent
and Lenders; and/or
(h) apply any sums by whomever paid or however realized to any
amounts owing by Guarantor or any Credit Party to Agent or any Lender
in such manner as Agent or any Lender shall determine in its
discretion;
and Agent and Lenders shall not incur any liability to Guarantor as a result
thereof, and no such action shall impair or release the Guaranteed Obligations
of Guarantor under this Guaranty.
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2.7. Reinstatement. This Guaranty shall remain in full force
and effect and continue to be effective should any petition be filed by or
against any Credit Party or Guarantor for liquidation or reorganization, should
any Credit Party or Guarantor become insolvent or make an assignment for the
benefit of creditors or should a receiver or trustee be appointed for all or any
significant part of such Credit Party's or Guarantor's assets, and shall
continue to be effective or be reinstated, as the case may be, if at any time
payment and performance of the Guaranteed Obligations, or any part thereof, is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by Agent or any Lender, whether as a "voidable preference",
"fraudulent conveyance", or otherwise, all as though such payment or performance
had not been made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the Guaranteed Obligations shall be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
2.8. Deferral of Subrogation, Etc. Notwithstanding anything to
the contrary in this Guaranty, or in any other Loan Document, Guarantor hereby:
(a) expressly and irrevocably waives, on behalf of itself and
its successors and assigns (including any surety) until the Termination
Date, any and all rights at law or in equity to subrogation, to
reimbursement, to exoneration, to contribution, to indemnification, to
set off or to any other rights that could accrue to a surety against a
principal, to a guarantor against a principal, to a guarantor against a
maker or obligor, to an accommodation party against the party
accommodated, to a holder or transferee against a maker, or to the
holder of any claim against any Person, and which Guarantor may have or
hereafter acquire against any Credit Party in connection with or as a
result of Guarantor's execution, delivery and/or performance of this
Guaranty, or any other documents to which Guarantor is a party or
otherwise; and
(b) acknowledges and agrees (i) that this waiver is intended
to benefit Agent and Lenders and shall not limit or otherwise effect
Guarantor's liability hereunder or the enforceability of this Guaranty,
and (ii) that Agent, Lenders and their respective successors and
assigns are intended third party beneficiaries of the waivers and
agreements set forth in this Section 2.8 and their rights under this
Section 2.8 shall survive payment in full of the Guaranteed
Obligations.
2.9. Election of Remedies. If Agent may, under applicable law,
proceed to realize benefits under any of the Loan Documents giving Agent and
Lenders a Lien upon any Collateral owned by any Credit Party, either by judicial
foreclosure or by non-judicial sale or enforcement, Agent may, at its sole
option, determine which of such remedies or rights it may pursue without
affecting any of such rights and remedies under this Guaranty. If, in the
exercise of any of its rights and remedies, Agent shall forfeit any of its
rights or remedies,
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including its right to enter a deficiency judgment against any Credit Party,
whether because of any applicable laws pertaining to "election of remedies" or
the like, Guarantor hereby consents to such action by Agent and waives any claim
based upon such action, even if such action by Agent shall result in a full or
partial loss of any rights of subrogation which Guarantor might otherwise have
had but for such action by Agent. Any election of remedies which results in the
denial or impairment of the right of Agent to seek a deficiency judgment against
any Credit Party shall not impair Guarantor's obligation to pay the full amount
of the Guaranteed Obligations. In the event Agent shall bid at any foreclosure
or trustee's sale or at any private sale permitted by law or the Loan Documents,
Agent may bid all or less than the amount of the Guaranteed Obligations and the
amount of such bid need not be paid by Agent but shall be credited against the
Guaranteed Obligations. The amount of the successful bid at any such sale shall
be conclusively deemed to be the fair market value of the collateral and the
difference between such bid amount and the remaining balance of the Guaranteed
Obligations shall be conclusively deemed to be the amount of the Guaranteed
Obligations guaranteed under this Guaranty, notwithstanding that any present or
future law or court decision or ruling may have the effect of reducing the
amount of any deficiency claim to which Agent and Lenders might otherwise be
entitled but for such bidding at any such sale.
2.10. Funds Transfers. If Guarantor shall engage in any
transaction as a result of which Borrower is required to make a mandatory
prepayment with respect to the Guaranteed Obligations under the terms of the
Credit Agreement (including any issuance or sale of Guarantor's Stock or any
sale of its assets), Guarantor shall distribute to, or make a contribution to
the capital of, the Borrower, in an amount equal to the mandatory prepayment
required under the terms of the Credit Agreement.
3. DELIVERIES.
In a form satisfactory to Agent, Guarantor shall deliver to
Agent (with sufficient copies for each Lender), concurrently with the execution
of this Guaranty and the Credit Agreement, the Loan Documents and other
instruments, certificates and documents as are required to be delivered by
Guarantor to Agent under the Credit Agreement.
4. REPRESENTATIONS AND WARRANTIES.
To induce Lenders to make the Loans under the Credit
Agreement, Guarantor makes the representations and warranties as to Guarantor
contained in the Credit Agreement, each of which is incorporated herein by
reference, and the following representations and warranties to Agent and each
Lender, each and all of which shall survive the execution and delivery of this
Guaranty:
4.1. Corporate Existence; Compliance with Law. Guarantor (i)
is a corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation; (ii) is duly qualified to do business
and is in good standing under the laws of each jurisdiction where its ownership
or lease of property or the conduct of
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its business requires such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect; (iii) has the requisite
corporate power and authority and the legal right to own, pledge and mortgage
its properties; (iv) has all licenses, permits, consents or approvals from or
by, and has made all material filings with, and has given all notices to, all
Governmental Authorities having jurisdiction, to the extent required for such
ownership, operation and conduct, except where the failure to possess or obtain
any such license, permit, consent or appraisal, or to make any such filing,
would not cause a Material Adverse Effect; (v) is in compliance with its charter
and by-laws; and (vi) is in compliance with all applicable provisions of law,
except where the failure to comply, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
4.2. Executive Offices. Guarantor's executive office and
principal place of business are as set forth in Schedule 4.2 hereto.
4.3. Corporate Power; Authorization; Enforceable Guaranteed
Obligations. The execution, delivery and performance of this Guaranty and all
other Loan Documents and all instruments and documents to be delivered by
Guarantor hereunder and under the Credit Agreement are within Guarantor's
corporate power, have been duly authorized by all necessary or proper corporate
action, including the consent of stockholders where required, are not in
contravention of any provision of Guarantor's charter or by-laws, do not violate
any law or regulation, or any order or decree of any Governmental Authority, do
not conflict with or result in the breach of, or constitute a default under, or
accelerate or permit the acceleration of any performance required by, any
indenture, mortgage, deed of trust, lease, agreement or other instrument to
which Guarantor is a party or by which Guarantor or any of its property is
bound, except for any conflict or breach which does not cause a Material Adverse
Effect, do not result in the creation or imposition of any Lien upon any of the
property of Guarantor, other than those in favor of Agent, for itself and the
benefit of Lenders, and the same do not require the consent or approval of any
Governmental Authority or any other Person except those referred to in Section
2.1(c) of the Credit Agreement, all of which have been duly obtained, made or
complied with prior to the Closing Date. On or prior to the Closing Date, this
Guaranty and each of the Loan Documents to which Guarantor is a party shall have
been duly executed and delivered for the benefit of or on behalf of Guarantor,
and each shall then constitute a legal, valid and binding obligation of
Guarantor, enforceable against Guarantor in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, reorganization,
moratorium, fraudulent transfer or other similar laws affecting creditors'
rights generally or by principles governing the availability of equitable
remedies.
5. FURTHER ASSURANCES.
Guarantor agrees, upon the written request of Agent or any
Lender, to execute and deliver to Agent or such Lender, from time to time, any
additional instruments or documents reasonably considered necessary by Agent or
such Lender to cause this Guaranty to be, become or remain valid and effective
in accordance with its terms.
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6. PAYMENTS FREE AND CLEAR OF TAXES.
All payments required to be made by Guarantor hereunder shall
be made to Agent and Lenders free and clear of, and without deduction for, any
and all present and future Taxes. If Guarantor shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder, (a) the sum
payable shall be increased as much as shall be necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 6) Agent or Lenders, as applicable, receive an amount
equal to the sum they would have received had no such deductions been made, (b)
Guarantor shall make such deductions, and (c) Guarantor shall pay the full
amount deducted to the relevant taxing or other authority in accordance with
applicable law. Within thirty (30) days after the date of any payment of Taxes,
Guarantor shall furnish to Agent the original or a certified copy of a receipt
evidencing payment thereof. Guarantor shall indemnify and, within ten (10) days
of demand therefor, pay Agent and each Lender for the full amount of Taxes
(including any Taxes imposed by any jurisdiction on amounts payable under this
Section 6) paid by Agent or such Lender, as appropriate, and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes were correctly or legally asserted.
7. OTHER TERMS.
7.1. Entire Agreement. This Guaranty, together with the other
Loan Documents, constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements
relating to a guaranty of the loans and advances under the Loan Documents and/or
the Guaranteed Obligations.
7.2. Headings. The headings in this Guaranty are for
convenience of reference only and are not part of the substance of this
Guaranty.
7.3. Severability. Whenever possible, each provision of this
Guaranty shall be interpreted in such a manner to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
7.4. Notices. Whenever it is provided herein that any notice,
demand, request, consent, approval, declaration or other communication shall or
may be given to or served upon any of the parties by any other party, or
whenever any of the parties desires to give or serve upon another any such
communication with respect to this Guaranty, each such notice, demand, request,
consent, approval, declaration or other communication shall be in writing and
shall be addressed to the party to be notified as follows:
(a) If to Agent, at:
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General Electric Capital Corporation
00 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: UST Delivery Systems Account Manager
Telecopy Number: (000) 000-0000
With copies to:
Goldberg, Kohn, Bell, Black, Xxxxxxxxxx & Xxxxxx
00 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx, Esq.
Telecopy Number: (000) 000-0000
(b) If to any Lender, at the address of such Lender specified
in the Credit Agreement or any Assignment Agreement.
(c) If to Guarantor, at the address of Guarantor specified on
Schedule 4.2 hereto.
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been validly served, given or delivered (i) upon the earlier of actual
receipt and five (5) Business Days after the same shall have been deposited with
the United States mail, registered or certified mail, return receipt requested,
with proper postage prepaid, (ii) upon transmission, when sent by telecopy or
other similar facsimile transmission (with such telecopy or facsimile promptly
confirmed by delivery of a copy by personal delivery or United States mail as
otherwise provided in this Section 7.4), (iii) one (1) Business Day after
deposit with a reputable overnight carrier with all charges prepaid, or (iv)
when delivered, if hand-delivered by messenger.
7.5. Successors and Assigns. This Guaranty and all obligations
of Guarantor hereunder shall be binding upon the successors and assigns of
Guarantor (including a debtor-in-possession on behalf of Guarantor) and shall,
together with the rights and remedies of Agent, for itself and for the benefit
of Lenders, hereunder, inure to the benefit of Agent and Lenders, all future
holders of any instrument evidencing any of the Obligations and their respective
successors and assigns. No sales of participations, other sales, assignments,
transfers or other dispositions of any agreement governing or instrument
evidencing the Obligations or any portion thereof or interest therein shall in
any manner affect the rights of Agent and Lenders hereunder. Guarantor may not
assign, sell, hypothecate or otherwise transfer any interest in or obligation
under this Guaranty.
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7.6. No Waiver; Cumulative Remedies; Amendments. Neither Agent
nor any Lender shall by any act, delay, omission or otherwise be deemed to have
waived any of its rights or remedies hereunder, and no waiver shall be valid
unless in writing, signed by Agent and then only to the extent therein set
forth. A waiver by Agent, for itself and the ratable benefit of Lenders, of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which Agent would otherwise have had on any future occasion.
No failure to exercise nor any delay in exercising on the part of Agent or any
Lender, any right, power or privilege hereunder, shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or future exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
hereunder provided are cumulative and may be exercised singly or concurrently,
and are not exclusive of any rights and remedies provided by law. None of the
terms or provisions of this Guaranty may be waived, altered, modified,
supplemented or amended except by an instrument in writing, duly executed by
Agent and Guarantor.
7.7. Termination. This Guaranty is a continuing guaranty and
shall remain in full force and effect until the Termination Date. Upon payment
and performance in full of the Guaranteed Obligations, Agent shall deliver to
Guarantor such documents as Guarantor may reasonably request to evidence such
termination.
7.8. Counterparts. This Guaranty may be executed in any number
of counterparts, each of which shall collectively and separately constitute one
and the same agreement.
8. SECURITY.
To secure payment of Guarantor's obligations under this
Guaranty, concurrently with the execution of this Guaranty, Guarantor has
entered into a Pledge Agreement pursuant to which Guarantor has pledged all of
the Stock of Borrower to Agent, for the benefit of Lenders.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Guaranty as of the date first above written.
UNITED SHIPPING & TECHNOLOGY, INC.
By___________________________________________________
Name_________________________________________________
Title________________________________________________
GENERAL ELECTRIC CAPITAL CORPORATION, as Agent
By___________________________________________________
Name_________________________________________________
Title________________________________________________
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SCHEDULE 4.2
