Exhibit 4.2
SUBSIDIARY GUARANTY AGREEMENT
THIS AGREEMENT dated as of August 23, 2007 among Con-way Inc., a
Delaware corporation (the "Borrower"), each of the Subsidiary Guarantors
party hereto from time to time (collectively, the "Subsidiary Guarantors")
and Goldman Sachs Credit Partners L.P., as Agent.
WHEREAS, the Borrower has entered into that Bridge Credit Agreement (as
the same may be amended, modified, supplemented and extended from time to
time, the "Credit Agreement") dated as of August 23, 2007 among the Borrower,
the Banks party thereto and Goldman Sachs Credit Partners L.P., as Agent (the
"Agent"), pursuant to which the Borrower may be entitled, subject to certain
conditions, to borrow up to $500,000,000;
WHEREAS, the Credit Agreement provides, among other things, that one
condition to its effectiveness is the execution and delivery of a guaranty
substantially in the form of this Agreement by the Borrower and the
Subsidiary Guarantors listed on the signature pages hereof; and
WHEREAS, in conjunction with the transactions contemplated by the Credit
Agreement and in consideration of the financial and other support that the
Borrower has provided, and such financial and other support as the Borrower
may in the future provide, to the Subsidiary Guarantors, and in order to
induce the Banks and the Agent to enter into the Credit Agreement, the
Subsidiary Guarantors listed on the signature pages hereof are willing to
guaranty the obligations of the Borrower under the Credit Agreement and the
Notes issued pursuant thereto;
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:
ARTICLE 1.
DEFINITIONS
Section 1.01 Definitions.
Terms defined in the Credit Agreement and not otherwise defined herein
are used herein as therein defined. In addition, the following term, as used
herein, has the following meaning:
"Guarantied Obligations" means (i) all obligations of the Borrower in
respect of principal of and interest on the Loans and the Notes, (ii) all
other amounts payable by the Borrower under the Credit Agreement or the
Notes, if any, and (iii) all renewals or extensions of the foregoing, in each
case whether now outstanding or hereafter arising. The Guarantied
Obligations shall include, without limitation, any interest, costs, fees and
expenses which accrue on or with respect to any of the foregoing, whether
before or after the commencement of any case, proceeding or other action
relating to the bankruptcy, insolvency or reorganization of any one or more
of the Borrower and the Subsidiary Guarantors, and any such interest, costs,
fees and expenses that would have accrued thereon or with respect thereto but
for the commencement of such case, proceeding or other action.
ARTICLE 2
GUARANTIES
Section 2.01 The Guaranties.
Subject to Section 2.03, the Subsidiary Guarantors hereby, jointly and
severally, unconditionally and irrevocably guaranty to the Banks and the
Agent and to each of them, the due and punctual payment of all Guarantied
Obligations as and when the same shall become due and payable, whether at
maturity, by declaration or otherwise, according to the terms thereof. In
case of failure by the Borrower punctually to pay any indebtedness guarantied
hereby, the Subsidiary Guarantors, subject to Section 2.03, hereby jointly,
severally and, to the extent permitted by law, unconditionally agree to make
such payment punctually as and when the same shall become due and payable,
whether at maturity, or by demand, declaration, acceleration or otherwise.
Section 2.02 Guaranties Unconditional; Waiver.
To the extent permitted by applicable law, the obligations of each
Subsidiary Guarantor under this Article 2 shall be unconditional and absolute
and without limiting the generality of the foregoing, shall, to the extent
permitted by law, not be released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of any other Obligor under any
Financing Document, by operation of law or otherwise;
(b) any modification or amendment (including any increase in the
aggregate Commitments and any increase in the obligations of the
Borrower under the Financing Documents) of or supplement to any other
Financing Document;
(c) any modification, amendment, waiver, release, non-perfection
or invalidity of any direct or indirect security, or of any guaranty or
other liability of any third party, for any obligation of any other
Obligor under any Financing Document;
(d) any change in the corporate existence, structure or ownership
of any other Obligor or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting any other Obligor or its assets or
any resulting release or discharge of any obligation of any other
Obligor contained in any Financing Document;
(e) the existence of any claim, set-off or other rights which any
Subsidiary Guarantor may have at any time against any other Obligor, the
Agent, any Bank or any other Person, whether or not arising in
connection with the Financing Documents; provided that nothing herein
shall prevent the assertion of any such claim by separate suit or
compulsory counterclaim;
(f) any invalidity or unenforceability relating to or against any
other Obligor for any reason of any Financing Document, or any provision
of applicable law or regulation purporting to prohibit the payment by
any other Obligor of the principal of or interest on any Note or any
other amount payable by any other Obligor under any Financing Document;
or
(g) any other act or omission to act or delay of any kind by any
other Obligor, the Agent, any Bank or any other Person or any other
circumstance whatsoever (other than payment in full of all Guarantied
Obligations) that might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of the obligations of any
Subsidiary Guarantor under this Article 2.
With respect to its obligations hereunder, to the extent permitted by
applicable law, each Subsidiary Guarantor hereby expressly waives diligence,
presentment, demand of payment, protest and all notices whatsoever, and any
requirement that the Agent or any Bank exhaust any right, power or remedy or
proceed against any Person under any of the Financing Documents or against
any other Person under any other guarantee of, or security for, any of the
Guaranteed Obligations.
In accordance with Section 2856 of the California Civil Code, each
Subsidiary Guarantor unconditionally and irrevocably waives any and all
rights and defenses available to it by reason of Sections 2787 to 2855,
inclusive, 2899 and 3433 of the California Civil Code. No other provision of
this Agreement shall be construed as limiting the generality of any of the
covenants and waivers set forth in this paragraph. As provided below, this
Agreement shall be governed by, and shall be construed and enforced in
accordance with, the laws of the State of New York. This paragraph is
included solely out of an abundance of caution, and shall not be construed to
mean that any of the above-referenced provisions of California law are in any
way applicable to this Agreement or to any of the Guarantied Obligations.
Section 2.03 Fraudulent Transfer.
Anything in this Guaranty Agreement to the contrary notwithstanding, the
obligations of each Subsidiary Guarantor hereunder shall be limited to a
maximum aggregate amount equal to the greatest amount that would not render
such Subsidiary Guarantor's obligations hereunder subject to avoidance as a
fraudulent transfer, obligation or conveyance under Section 548 of Title 11
of the United States Code or any provisions of applicable state law
(collectively, the "Fraudulent Transfer Laws"), in each case after giving
effect to all other liabilities of such Subsidiary Guarantor, contingent or
otherwise, that are relevant under the Fraudulent Transfer Laws (specifically
excluding, however, any liabilities of such Subsidiary Guarantor (A) in
respect of intercompany debt owed or owing to the Borrower or affiliates of
the Borrower to the extent that such debt would be discharged in an amount
equal to the amount paid by such Subsidiary Guarantor hereunder and (B) under
any Guarantee of senior unsecured debt or indebtedness subordinated in right
of payment to the Guaranteed Obligations, which Guarantee contains a
limitation as to maximum amount similar to that set forth in this Section
2.03, pursuant to which the liability of such Subsidiary Guarantor hereunder
is included in the liabilities taken into account in determining such maximum
amount) and after giving effect as assets to the value (as determined under
the applicable provisions of the Fraudulent Transfer Laws) of any rights to
subrogation, contribution, reimbursement, indemnity or similar rights of such
Subsidiary Guarantor pursuant to (I) applicable law or (II) any agreement
providing for an equitable allocation among such Subsidiary Guarantor and
other affiliates of the Borrower of obligations arising under guarantees by
such parties (including the agreements described in Section 2.08).
Section 2.04 Discharge; Reinstatement in Certain Circumstances.
Except as otherwise provided in Sections 3.01(c) and 4.03 hereof, each
Subsidiary Guarantor's obligations under this Article 2 shall remain in full
force and effect until the Commitments are terminated and the principal of
and interest on the Loans and all other amounts payable by the Borrower under
the Financing Documents shall have been paid in full. If at any time any
payment of the principal of or interest on any Loan or any other amount
payable by the Borrower under any Financing Document is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of any Obligor or otherwise, each Subsidiary Guarantor's
obligations under this Article 2 with respect to such payment shall be
reinstated at such time as though such payment had become due but had not
been made at such time.
Section 2.05 Subrogation.
Each Subsidiary Guarantor that makes a payment hereunder with respect to
a Guarantied Obligation shall be subrogated to the rights of the payee
against the Borrower with respect to such payment, provided, that until the
Commitments have terminated, and all Guarantied Obligations have been paid in
full and no Person or court or governmental authority shall have made any
request for the return or reimbursement of any funds from the Agent or any
Bank in connection with monies received under the Financing Documents (i)
such Subsidiary Guarantor shall not enforce any such right against the
Borrower (or enforce any right of reimbursement or contribution relating to
such payment against the Borrower or any other Subsidiary Guarantor) and (ii)
the rights against the Borrower to which such Subsidiary Guarantor is
subrogated and any rights of reimbursement or contribution that such
Subsidiary Guarantor may have against the Borrower or any other Subsidiary
Guarantor shall be subordinate and junior in right of payment to all other
obligations of the Borrower or such other Subsidiary Guarantor, as the case
may be, under the Financing Documents.
Section 2.06 Stay of Acceleration.
If acceleration of the time for payment of any amount payable by the
Borrower under the Financing Documents is stayed upon the insolvency,
bankruptcy or reorganization of the Borrower, all such amounts otherwise
subject to acceleration under the terms of the Financing Documents shall, to
the extent permitted by law, nonetheless be payable by each Subsidiary
Guarantor hereunder forthwith on demand by the Agent made at the request of
the Required Banks.
Section 2.07 Taxes.
Without limiting the generality of any other provision hereof each
Subsidiary Guarantor agrees that, if it makes a payment hereunder with
respect to a Guaranteed Obligation, it will have the same obligations with
respect to such payment and any related Taxes or Other Taxes as the Borrower
would have had under Section 8.04 of the Credit Agreement if such payment had
been made by the Borrower.
Section 2.08 Right of Contribution.
The Subsidiary Guarantors hereby agree, as among themselves, that
if any Subsidiary Guarantor shall become an Excess Funding Guarantor (as
defined below), each other Subsidiary Guarantor shall, on demand of such
Excess Funding Guarantor (but subject to the succeeding provisions of this
Section 2.08), pay to such Excess Funding Guarantor an amount equal to such
Subsidiary Guarantor's Pro Rata Share (as defined below and determined, for
this purpose, without reference to the properties, assets, liabilities and
debts of such Excess Funding Guarantor) of such Excess Payment (as defined
below). The payment obligation of any Subsidiary Guarantor to any Excess
Funding Guarantor under this Section 2.08 shall be subordinate and subject in
right of payment to the prior payment in full of the obligations of such
Subsidiary Guarantor under the other provisions of this Article 2, and such
Excess Funding Guarantor shall not exercise any right or remedy with respect
to such excess until payment and satisfaction in full of all of such
obligations. For purposes hereof, (a) "Excess Funding Guarantor" shall mean,
in respect of any obligations arising under the other provisions of this
Article 2 (hereafter, the "Obligations"), a Subsidiary Guarantor that has
paid an amount in excess of its Pro Rata Share of the Obligations; (b)
"Excess Payment" shall mean, in respect of any Obligations, the amount paid
by an Excess Funding Guarantor in excess of its Pro Rata Share of such
Obligations; and (c) "Pro Rata Share", for the purposes of this Section 2.08,
shall mean, for any Subsidiary Guarantor, the ratio (expressed as a
percentage) of (i) the amount by which the aggregate present fair saleable
value of all of its assets and properties exceeds the amount of all debts and
liabilities of such Subsidiary Guarantor (including contingent, subordinated,
unmatured, and unliquidated liabilities, but excluding the obligations of
such Subsidiary Guarantor hereunder) to (ii) the amount by which the
aggregate present fair saleable value of all assets and other properties of
the Borrower and all of the Subsidiary Guarantors exceeds the amount of all
of the debts and liabilities (including contingent, subordinated, unmatured,
and unliquidated liabilities, but excluding the obligations of the Borrower
under the Financing Documents and the Subsidiary Guarantors hereunder) of the
Borrower and all of the Subsidiary Guarantors, all as of the Closing Date (if
any Subsidiary Guarantor becomes a party hereto subsequent to the Closing
Date, then for the purposes of this Section 2.08 such subsequent Subsidiary
Guarantor shall be deemed to have been a Subsidiary Guarantor as of the
Closing Date and the information pertaining to, and only pertaining to, such
Subsidiary Guarantor as of the date such Subsidiary Guarantor became a
Subsidiary Guarantor shall be deemed true as of the Closing Date).
ARTICLE 3
ADDITIONAL SUBSIDIARY GUARANTORS
Section 3.01 Additional Subsidiary Guarantors; release of Subsidiary
Guarantors.
(a) On the Closing Date and on each Reporting Date thereafter, the
Borrower shall cause one or more Subsidiaries that are not then Subsidiary
Guarantors to execute and deliver to the Agent a letter substantially in the
form of Exhibit C-1 hereto, whereupon such Subsidiary shall become a party
hereto and both a Subsidiary Guarantor and an Obligor for all purposes of the
Financing Documents, to the extent necessary such that after giving effect
thereto, as of the most recently ended fiscal quarter for which financial
statements have been delivered, only non-Significant Subsidiaries and Foreign
Subsidiaries will be Non-Guarantor Subsidiaries. On or promptly following the
date on which the Borrower shall directly or indirectly acquire (through an
acquisition of assets, a merger or otherwise) a Significant Subsidiary that
is not a Subsidiary Guarantor or a Foreign Subsidiary, the Borrower shall
cause such Significant Subsidiary to execute and deliver to the Agent a
letter substantially in the form of Exhibit C-1 hereto, whereupon such
Significant Subsidiary shall become a party hereto and both a Subsidiary
Guarantor and an Obligor for all purposes of the Financing Documents. Upon
each such execution and delivery, the Borrower shall be deemed to make a
representation and warranty as to the facts set forth in Sections 4.02, 4.03,
and 4.09 of the Credit Agreement. "Non-Guarantor Subsidiary" means, at any
time, any Subsidiary that is not a Subsidiary Guarantor at such time.
"Reporting Date" means the date that is 30 days after delivery of the
Borrower's annual or quarterly financial statements to the Agent pursuant to
Section 5.01 of the Credit Agreement.
(b) On each Reporting Date, the Borrower shall deliver to the Agent a
list of the Subsidiary Guarantors, a list of the Non-Guarantor Subsidiaries,
and calculations in reasonable detail demonstrating compliance with Section
3.01(a).
(c) At any time or from time to time upon receipt by the Agent of a
certificate, signed on behalf of the Borrower by the chief financial officer
or chief accounting officer of the Borrower, requesting the release of a
Subsidiary Guarantor from its obligations under this Agreement in connection
with the direct or indirect sale, transfer, disposition or conveyance of a
majority of the equity interests in such Subsidiary Guarantor permitted under
Section 5.10 of the Credit Agreement, representing and warranting that such
sale, transfer, disposition or conveyance is permitted under Section 5.10 of
the Credit Agreement, such Subsidiary Guarantor shall be automatically be
released from its obligations hereunder upon the consummation of such sale,
transfer, disposition or conveyance. The Agent shall, at the sole cost and
expense of the Borrower, execute and deliver to the Borrower such instrument
or other document as may be reasonably requested by the Borrower evidencing
the release of such Subsidiary Guarantor hereunder.
ARTICLE 4
MISCELLANEOUS
Section 4.01 Notices.
Unless otherwise specified herein, all notices, requests and other
communications ("notices") to any party hereunder shall be in writing
(including facsimile transmission or similar writing) and shall be given to
such party at its address or facsimile number set forth on the signature
pages hereof or on its letter substantially in the form of Exhibit C-1
hereto, as applicable (or, in the case of any Subsidiary Guarantor as to
which no such address or facsimile number is so set forth, to it at the
address or facsimile number of the Borrower set forth on the signature pages
hereof) or such other address or facsimile number as such party may hereafter
specify for the purpose by notice to the Agent. Each such notice shall be
effective (i) if given by facsimile transmission, when such facsimile is
transmitted to the facsimile transmission number specified in or pursuant to
this Section 4.01 and telephonic confirmation of receipt thereof is received
or (ii) if given by mail or by any other means, when delivered at the address
specified in this Section 4.01.
Section 4.02 No Waiver.
No failure or delay by the Agent or any Bank in exercising any right,
power or privilege under this Agreement or any other Financing Document shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein and therein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 4.03 Amendments and Waivers; Termination.
Any provision of this Agreement may be amended or waived if, and only
if, such amendment or waiver is in writing and is signed by the Borrower,
each Subsidiary Guarantor and the Agent with the prior written consent of the
Required Banks; provided that except as otherwise provided in Section
3.01(c), the consent of each Bank shall be required to release all or
substantially all of the Subsidiary Guarantors from their obligations
hereunder; and provided further that (x) Subsidiary Guarantors may become
parties to this Agreement in accordance with Section 3.01(a) and (y)
Subsidiary Guarantors may be released from this Agreement in accordance with
Section 3.01(c), in each case, without the consent of Required Banks.
Section 4.04 Governing Law; Submission to Jurisdiction; Waiver of a Jury
Trial.
This Agreement shall be construed in accordance with and governed by the
law of the State of New York. Each of the Subsidiary Guarantors hereby
agrees to be bound by each provision of the Credit Agreement which purports
to bind all Obligors to the same extent as if it were a party thereto.
Section 4.05 Successors and Assigns.
This Agreement is for the benefit of the Banks and the Agent and their
respective successors and assigns and in the event of an assignment of the
Loans, the Notes or other amounts payable under the Financing Documents, the
rights hereunder, to the extent applicable to the indebtedness so assigned,
shall be transferred with such indebtedness. All the provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
Section 4.06 Counterparts; Effectiveness.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, and all of which taken together shall constitute
a single instrument, with the same effect as if the signatures thereto and
hereto were upon the same instrument. This Agreement shall become effective
when the Agent shall have received a counterpart hereof signed by the
Borrower and one or more of the Subsidiary Guarantors and when the Credit
Agreement shall become effective in accordance with its terms. Thereafter,
upon execution and delivery of a letter substantially in the form of
Exhibit C-1 hereto on behalf of any other Subsidiary Guarantor, this
Agreement shall become effective with respect to such Subsidiary Guarantor as
of the date of such delivery.
Section 4.07 Submission to Jurisdiction.
The Borrower and each Subsidiary Guarantor hereby submits to the
nonexclusive jurisdiction of the United States District Court for the
Southern District of New York and of any New York State court sitting in New
York City for purposes of all legal proceedings arising out of or relating to
this Subsidiary Guaranty or the transactions contemplated thereby. The
Borrower and each Subsidiary Guarantor irrevocably waives, to the fullest
extent permitted by law, any objection which it may now or hereafter have to
the laying of the venue of any such proceeding brought in such a court and
any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum.
Section 4.08 Waiver of a Jury Trial.
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ANY
RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
ARISING UNDER THIS AGREEMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT
TO THIS AGREEMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART
OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT
OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date first
above written.
BORROWER: CON-WAY INC., a Delaware corporation
By: /s/ Mark C. Thickpenny
-------------------------
Name: Mark C. Thickpenny
Title: Vice President - Treasurer
c/o CON-WAY INC.
2855 Campus Drive, Suite 300
San Mateo, CA 94403
Facsimile number: (650) 378-5200
Telephone number: (650) 357-9160
SUBSIDIARY GUARANTORS: CON-WAY FREIGHT INC.,
a Delaware corporation
By: /s/ Mark C. Thickpenny
-------------------------
Name: Mark C. Thickpenny
Title: Assistant Treasurer
c/o CON-WAY INC.
2855 Campus Drive, Suite 300
San Mateo, CA 94403
Facsimile number: (650) 378-5200
Telephone number: (650) 357-9160
MENLO WORLDWIDE, LLC,
a Delaware limited liability company
By: /s/ Mark C. Thickpenny
-------------------------
Name: Mark C. Thickpenny
Title: Assistant Treasurer
c/o CON-WAY INC.
2855 Campus Drive, Suite 300
San Mateo, CA 94403
Facsimile number: (650) 378-5200
Telephone number: (650) 357-9160
MENLO LOGISTICS, INC.,
a Delaware corporation
By: /s/ Mark C. Thickpenny
------------------------
Name: Mark C. Thickpenny
Title: Assistant Treasurer
c/o CON-WAY INC.
2855 Campus Drive, Suite 300
San Mateo, CA 94403
Facsimile number: (650) 378-5200
Telephone number: (650) 357-9160
TRANSPORTATION RESOURCES, INC.,
a Missouri corporation
By: /s/ Mark C. Thickpenny
------------------------
Name: Mark C. Thickpenny
Title: Mark C. Thickpenny
c/o CON-WAY INC.
2855 Campus Drive, Suite 300
San Mateo, CA 94403
Facsimile number: (650) 378-5200
Telephone number: (650) 357-9160
CONTRACT FREIGHTERS, INC.,
a Missouri corporation
By: /s/ Mark C. Thickpenny
------------------------
Name: Mark C. Thickpenny
Title: Assistant Treasurer
c/o CON-WAY INC.
2855 Campus Drive, Suite 300
San Mateo, CA 94403
Facsimile number: (650) 378-5200
Telephone number: (650) 357-9160
GOLDMAN SACHS CREDIT PARTNERS L.P., as Agent
By: Walter A. Jackson
-------------------
Name: Walter A. Jackson
Title: Authorized Signatory