FIFTH AMENDMENT
THIS FIFTH AMENDMENT (this "Amendment") dated as of October 21, 2004, 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, LaSalle Bank National Association 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. Effective as of September 30, 2004, the Credit
Agreement is amended in the following respects:
1.1 The definition of "Consolidated EBITDAR" in Section 1.01 of the
Credit Agreement is hereby amended by deleting the "and" immediately
before the "(F)" in clause (ii) of such definition and adding the
following immediately before the ".":
"and (G) to the extent not already added back to such consolidated
income pursuant to clause (ii)(F) of this definition, non-cash
charges associated with any write-down of the net assets of the
Forwarding Business pursuant to FAS 142 or FAS 144 in connection
with the Borrower's plan to sell the Forwarding Business and the
designation of the Forwarding Business as a held-for-sale asset"
1.2 The definition of "Consolidated Net Worth" in Section 1.01 of the
Credit Agreement is hereby amended by replacing the "(ii)" with a "(iii)
and adding the following immediately after the reference to "FAS 142":
", (ii) to the extent not already excluded pursuant to clause (i)
of this definition, any write-down of the net assets of the
Forwarding Business pursuant to FAS 142 or FAS 144 in connection
with the Borrower's plan to sell the Forwarding Business and the
designation of the Forwarding Business as a held-for-sale asset"
1.3 The following definition is added to Section 1.01 of the Credit
Agreement in appropriate alphabetical order:
"`Forwarding Business' means all of the issued and outstanding
capital stock of Menlo Worldwide Forwarding, Inc., a wholly owned
subsidiary of Menlo Worldwide, LLC, and certain assets and liabilities
of the Borrower or its Subsidiaries related to the business conducted by
Menlo Worldwide Forwarding, Inc. as of September 30, 2004, as more
specifically described in the Borrower's filing with the Securities and
Exchange Commission on Form 8-K dated as of October 6, 2004, including
all exhibits thereto."
2. Conditions Precedent. This Amendment shall be effective as of
September 30, 2004 upon satisfaction of each of the following
conditions:
(a) receipt by the Agent of multiple counterparts of this
Amendment executed by the Borrower and the Required Banks; and
(b) receipt by the Agent, for the ratable benefit of the
Banks that execute and deliver signature pages to this Amendment
prior to 5 p.m. Central time on Thursday, October 21, 2004 (the
"Approving Banks"), of an amendment work fee equal to $5,000 for
each of the Approving Banks; and
(c) receipt by the Agent of all other fees and expenses due in
connection with this Amendment.
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 Fifth Amendment to be duly executed and delivered as of the date
first above written.
BORROWER: CNF INC., a Delaware corporation
By: /s/ Mark C. Thickpenny
_______________________________
Name: Mark C. Thickpenny
Title: Vice President - Treasurer
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A.,
in its capacity as Agent
By: /s/ Thomas R. Durham
________________________________
Name: Thomas R. Durham
Title: Senior Vice President
BANKS: BANK OF AMERICA, N.A.
By: /s/ Thomas R. Durham
________________________________
Name: Thomas R. Durham
Title: Senior Vice President
PNC BANK
By: /s/ Luke G. McElhinny
________________________________
Name: Luke G. McElhinny
Title: Assistant Vice President
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Douglas A. Rich
________________________________
Name: Douglas A. Rich
Title: Vice President
MELLON BANK, N.A.
By: /s/ Lawrence C. Ivey
________________________________
Name: Lawrence C. Ivey
Title: First Vice President
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Kathleen L. Ross
________________________________
Name: Kathleen L. Ross
Title: Senior Vice President
JPMORGAN CHASE BANK
By: /s/ Karen M. Sharf
________________________________
Name: Karen M. Sharf
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Robert Besser
________________________________
Name: Robert Besser
Title: Vice President
PB CAPITAL CORPORATION
By: /s/ Christopher J. Ruzzi
________________________________
Name: Christopher J. Ruzzi
Title: Vice President
By: /s/ Andrew L. Shipman
________________________________
Name: Andrew L. Shipman
Title: Vice President
CITICORP USA, INC.
By: /s/ Walter L. Larsen
________________________________
Name: Walter L. Larsen
Title: Managing Director
MORGAN STANLEY BANK
By: /s/ Jaap L. Tonckens
________________________________
Name: Jaap L. Tonckens
Title: Vice President
[Signature Pages Follow]
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: /s/ Mark C. Thickpenny
_______________________________
Name: Mark C. Thickpenny
Title: Assistant Treasurer
MENLO WORLDWIDE FORWARDING, INC.
By: /s/ Mark C. Thickpenny
_______________________________
Name: Mark C. Thickpenny
Title: Assistant Treasurer
EMERY WORLDWIDE AIRLINES, INC.
By: /s/ Mark C. Thickpenny
_______________________________
Name: Mark C. Thickpenny
Title: Treasurer
MENLO LOGISTICS, INC.
By: /s/ Mark C. Thickpenny
_______________________________
Name: Mark C. Thickpenny
Title: Assistant Treasurer
CNF PROPERTIES, INC.
By: /s/ Mark C. Thickpenny
_______________________________
Name: Mark C. Thickpenny
Title: Treasurer
MENLO WORLDWIDE, LLC
By: /s/ Mark C. Thickpenny
_______________________________
Name: Mark C. Thickpenny
Title: Assistant Treasurer
CON-WAY LAND HOLDINGS, LLC
By: /s/ Mark C. Thickpenny
______________________________
Name: Mark C. Thickpenny
Title: Assistant Treasurer