Exhibit 4.15
THIRD AMENDMENT
THIS THIRD AMENDMENT (this "Amendment") dated as of August
1, 2003, to the Credit Agreement referenced below, is by and
among CNF Inc., a Delaware corporation (the "Borrower"), the
Banks identified on the signature pages hereto and Bank of
America, N.A., as Agent. Capitalized terms used herein but not
otherwise defined herein shall have the meanings provided to such
terms in the Credit Agreement.
W I T N E S S E T H
WHEREAS, a $385 million credit facility has been extended to
the Borrower pursuant to that Credit Agreement (as amended,
modified and supplemented from time to time, the "Credit
Agreement") dated as of July 3, 2001 among the Borrower, the
Banks party thereto, The Chase Manhattan Bank, as Syndication
Agent, PNC Bank, ABN-AMRO Bank, N.V. and Citibank, N.A., as
Documentation Agents, and Bank of America, N.A., as Agent; and
WHEREAS, the Borrower has requested certain modifications to
the Credit Agreement and the Required Banks have agreed to such
modifications on the terms and conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
1. Amendments. The Credit Agreement is amended in the
following respects:
(a) In Section 1.01 of the Credit Agreement, the
definitions of "Consolidated Debt," "Consolidated EBITDAR,"
"Consolidated Interest Expense" and "Consolidated Net Worth"
are amended to read as follows:
"Consolidated Debt" means, at any date, the Debt of the
Borrower and its Consolidated Subsidiaries, determined
on a consolidated basis as of such date, less, to the
extent included in the determination of Debt of the
Borrower and its Consolidated Subsidiaries, (i) all
obligations of the Borrower and its Consolidated
Subsidiaries in respect of interest rate protection
agreements, foreign currency exchange agreements,
commodity purchase or option agreements or other
interest or exchange rate or commodity price hedging
agreements and (ii) all obligations of the Borrower and
its Consolidated Subsidiaries in respect of the TECONS.
"Consolidated EBITDAR" means, for any period, the sum
of (i) the consolidated income before income taxes of
the Borrower and its Consolidated Subsidiaries for such
period plus (ii) to the extent deducted in determining
such consolidated income before income taxes, the sum
of (A) Consolidated Interest Expense, (B) depreciation
and amortization, (C) Consolidated Rental Expense, (D)
the Restructuring Charge, (E) non-cash charges
associated with the Borrower's existing claims against
the United States Postal Service, and (F) non-cash
charges associated with any write-down of goodwill
pursuant to FAS 142.
"Consolidated Interest Expense" means, for any period,
the interest expense of the Borrower and its
Consolidated Subsidiaries (but excluding any interest
expense relating to the TECONS), determined on a
consolidated basis for such period.
"Consolidated Net Worth" means at any date the
consolidated shareholders' equity of the Borrower and
its Consolidated Subsidiaries determined as of such
date but excluding the effect of (i) any write-down of
goodwill pursuant to FAS 142 and (ii) any charge taken
to other comprehensive income (equity) in connection
with the minimum pension liability adjustment required
under generally accepted accounting principles in
connection with the Borrower's and its Subsidiaries'
defined benefit pension plans.
(b) In Section 1.01 of the Credit Agreement, the definition
of "TECONS" is added thereto to read as follows:
"TECONS" means (a) those certain $2.50 Term
Convertible Securities, Series A TECONS (the "Series A
TECONS") issued by CNF Trust I, a Delaware business
trust that is wholly-owned by the Borrower, the
proceeds of which were used to finance, in part, the
acquisition by CNF Trust I of $128,900,000 of the
Borrower's 5% convertible subordinated debentures due
June 1, 2012 (the "TECON Subordinated Debt"), (b) the
TECON Subordinated Debt, (c) any preferred securities
(whether convertible or nonconvertible into common
stock or other stock of the Borrower) issued by a trust
or other similar special purpose entity that is
controlled by the Borrower (such securities referred to
collectively as "Preferred Trust Securities"), the
proceeds of which preferred securities are used to
finance the acquisition by such trust or other similar
entity of subordinated debt obligations of the Borrower
(such subordinated debt obligations are referred to,
collectively, as "Preferred Trust Subordinated Debt"),
which subordinated debt obligations shall be junior and
subordinate to the obligations of the Borrower to the
Banks hereunder on terms that shall be substantially
the same as the subordination terms applicable to the
TECON Subordinated Debt as of July 23, 2003 or on such
other terms as may have been approved by the Agent.
For the avoidance of doubt, it is the understanding and
agreement of the parties hereto that the Series A
TECONS, the TECON Subordinated Debt, the Preferred
Trust Securities, the Preferred Trust Subordinated Debt
and any Guarantee by the Borrower in respect thereof
shall not be treated as Debt under this Agreement or
any other Financing Document, to the extent such
obligation would otherwise constitute Debt hereunder or
thereunder.
(c) Section 5.08 of the Credit Agreement is amended to read
as follows:
Minimum Consolidated Net Worth.
Consolidated Net Worth shall not at any time be less
than $585,000,000; provided that such amount shall be
increased as of the last day of each fiscal year,
commencing with the fiscal year ending December 31,
2002, by an amount equal to 50% of the consolidated net
income of the Borrower and its Consolidated
Subsidiaries for such fiscal year (but excluding the
effect of any write-down of goodwill pursuant to FAS
142 during such fiscal year), if such consolidated net
income is positive.
(d) Section 5.19(c) of the Credit Agreement is amended by
(i) replacing the phrase "prohibitions or restrictions"
contained in such section in each instance such phrase
appears with the phrase "prohibitions, restrictions or
requirements"; and (ii) replacing the phrase "prohibitions
and restrictions" contained in clause (vii)(C) of such
section with the phrase "prohibitions, restrictions and
requirements."
(e) Section 9.11 of the Credit Agreement is amended by
adding the following sentence to the end thereof:
Notwithstanding anything herein to the contrary, each
party hereto may disclose without limitation of any
kind any information with respect to the "tax
treatment" and "tax structure" (in each case, within
the meaning of Treasury Regulation Section 1.6011-4) of
the transactions contemplated hereby and all materials
of any kind (including opinions or other tax analyses)
that are provided to such party relating to such tax
treatment and tax structure; provided that with respect
to any document or similar item that in either case
contains information concerning the tax treatment or
tax structure of the transaction as well as other
information, this sentence shall only apply to such
portions of the document or similar item that relate to
the tax treatment or tax structure of the Loans,
Letters of Credit and transactions contemplated hereby.
2. Conditions Precedent. This Amendment shall be
effective as of the date hereof upon receipt by the Agent of
multiple counterparts of this Amendment executed by the Borrower
and the Required Banks.
3. Reaffirmation of Representations and Warranties; no
Default. The Borrower hereby affirms that the representations
and warranties set forth in the Credit Agreement are true and
correct in all material respects as of the date hereof (except
those that expressly relate to an earlier date in which case such
representations and warranties were true and correct as of such
earlier date). The Borrower hereby represents and warrants that
no event has occurred and is continuing, or would result from the
execution and delivery of this Amendment, which constitutes an
Event of Default or which, with the giving of notice and/or the
passage of time, would constitute an Event of Default.
4. Financing Document. This Amendment is a Financing
Document.
5. No Other Changes. Except as expressly modified hereby,
all of the terms and provisions of the Financing Documents shall
remain in full force and effect.
6. Counterparts/Telecopy. This Amendment may be executed
in any number of separate counterparts, each of which, when so
executed, shall be deemed an original and it shall not be
necessary in making proof of this Amendment to produce or account
for more than one such counterpart. Delivery of executed
counterparts of this Amendment by telecopy shall be effective as
an original and shall constitute a representation that an
original shall be delivered.
7. Governing Law. This Amendment shall be deemed to be a
contract made under, and for all purposes shall be construed in
accordance with, the laws of the State of New York.
[Signature Pages Follow]
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered
as of the date first above written.
BORROWER: CNF INC., a Delaware corporation
By:
Name:
Title:
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A.,
in its capacity as Agent
By:
Name:
Title:
BANKS: BANK OF AMERICA, N.A.
By:
Name:
Title:
PNC BANK
By:
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By:
Name:
Title:
MELLON BANK, N.A.
By:
Name:
Title:
ABN AMRO BANK N.V.
By:
Name:
Title:
[Signature Pages Continue]
THE CHASE MANHATTAN BANK
By:
Name:
Title:
THE BANK OF NEW YORK
By:
Name:
Title:
PB CAPITAL CORPORATION
By:
Name:
Title:
By:
Name:
Title:
CITICORP USA, INC.
By:
Name:
Title:
MORGAN STANLEY BANK
By:
Name:
Title:
[Signature Pages Continue]
Each of the undersigned Subsidiary Guarantors, by executing this
Amendment below, (a) acknowledges and consents to all of the
terms and conditions of this Amendment, (b) affirms all of its
obligations under the Financing Documents and (c) agrees that
this Amendment and all documents executed in connection herewith
do not operate to reduce or discharge such Subsidiary Guarantor's
obligations under the Financing Documents.
SUBSIDIARY GUARANTORS: CON-WAY TRANSPORTATION SERVICES, INC.
By:
Name:
Title:
MENLO WORLDWIDE FORWARDING, INC.
By:
Name:
Title:
EMERY WORLDWIDE AIRLINES, INC.
By:
Name:
Title:
MENLO LOGISTICS, INC.
By:
Name:
Title:
[CNF PROPERTIES, INC.]
By:
Name:
Title:
MENLO WORLDWIDE, LLC
By:
Name:
Title:
CON-WAY LAND HOLDINGS, LLC
By:
Name:
Title: