Exhibit 10.1
AMENDMENT NO. 1 dated as of September 27, 2000 to the
Credit Agreement dated as of October 12, 1999 (as amended and
otherwise modified from time to time, the "Credit Agreement") among
Consolidated Freightways Corporation of Delaware, a Delaware
corporation (the "Borrower"), ABN AMRO Bank N.V. as administrative
agent, (the "Administrative Agent"), and the Lender Parties party
thereto. Capitalized terms not otherwise defined in this Amendment
have the same meanings as specified therefor in the Credit
Agreement.
Preliminary Statements
(1) The Borrower has requested that the Lender Parties
agree to amend the Credit Agreement as provided herein.
(2) The Lender Parties have indicated their willingness
to agree to amend the Credit Agreement on the terms and subject to
the satisfaction of the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of
the mutual covenants and agreements contained herein and in the Loan
Documents, the parties hereto hereby agree as follows:
SECTION 1. Amendments of Certain Provisions of the Credit
Agreement. The Credit Agreement is, effective as of October 10,
2000, hereby amended as follows:
(a) The definition of "Debt" in Section 1.01 is amended
to (i) delete the word "and" at the end of subsection (e) thereof;
(ii) reletter the existing subsection (f) as subsection (g) and add
at the end thereof the following: ", provided, however, that
obligations of a Securitization Entity pursuant to a Securitization
Facility shall not constitute Debt."; and (iii) add a new subsection
(f) thereof to read as follows:
"all obligations of such Person evidenced by Bonds, notes,
debentures, convertible debentures or other similar
instruments, and"
(b) The definition of "Guarantor" in Section 1.01 is
amended to add the parenthetical phrase "(other than a
Securitization Entity)" after the word "Borrower" in the first
line thereof.
(c) The definition of "Lien" in Section 1.01 is amended
to delete the period at the end of clause (b) thereof and add the
following: "; but not including (x) the interest of a purchaser of
accounts receivable and related property under any Securitization
Facility, or (y) the filing of any UCC-1 financing statements in
connection with any Securitization Facility."
(d) The definition of "Tranche A Termination Date" in
Section 1.01 of the Credit Agreement is hereby amended to delete the
date "October 10, 2000" therein and to substitute therefor the date
"October 9, 2001".
(e) Section 1.01 of the Credit Agreement is further
amended to add the following new definitions in their appropriate
alphabetical order:
" `Bonds' means an instrument evidencing an obligation to
pay a fixed principal amount in cash or other consideration and,
without limitation, does not include surety bonds, insurance bonds
and performance bonds."
" `Securitization Entity' means any Subsidiary of the
Borrower that purchases or otherwise acquires accounts receivable
and related property of the Borrower or another Subsidiary of the
Borrower pursuant to a Securitization Facility."
" `Securitization Facility' means any accounts receivable
securitization program pursuant to which any Loan Party or
Subsidiary directly or indirectly pledges, sells or otherwise
transfers or encumbers its accounts receivable and related property
but which do not provide, directly or indirectly, for recourse
against any Loan Party by way of a guaranty or any other support
arrangement, with respect to the amount of such accounts receivable
(based on the financial condition or circumstances of the obligor
thereunder), other than such limited recourse as is reasonable given
market standards for transactions of a similar type, taking into
account such factors as historical bad debt loss experience and
obligor concentration levels."
(f) Section 2.05(c) is amended to add the following
language at the end thereof:
"In addition, in the event that any such Tranche A
Revolving Credit Commitment of a Declining Tranche A
Lender terminates and the Borrower has extended the
Tranche A Termination Date but has not substituted a
financial institution for all such Declining Tranche A
Lenders on the respective Tranche A Termination Date as
hereinabove provided, the Borrower shall have the right
from time to time after any such Tranche A Termination
Date to add additional financial institutions as Tranche A
Lenders, provided that the aggregate amount of all
outstanding Tranche A Revolving Credit Commitments,
including the Tranche A Revolving Credit Commitments of
such financial institutions that become Tranche A Lenders,
shall not exceed $50,000,000; and any such additional
financial institution in connection therewith shall
execute and deliver all documentation, as required by the
Administrative Agent, and pay a recordation fee of $3,000
(and in any such event with the percentages of the Tranche
A Revolving Credit Commitments of the other Tranche A
Lenders adjusted to reflect such additional Tranche A
Lenders). The addition of any such financial institution
shall not be deemed an amendment of this Agreement or
waiver or consent hereunder for purposes of Section 8.01
of this Agreement."
(g) Section 5.02(a)(iv) is amended in its entirety to
read as follows:
"(iv) sales of accounts receivable and related property to
a Securitization Entity pursuant to a Securitization
Facility under which the aggregate amount of the claims of
the parties providing financing, however evidenced,
including debt or equity interests or securities of a
purchasing entity, permitted to be outstanding at any time
does not exceed $75,000,000; provided that at the time of
the commencement of such Securitization Facility, the
Leverage Ratio referred to in Section 5.03(a), and
determined as of the end of the fiscal quarter immediately
proceeding such commencement, is less than 1.25 to 1.00;
and "
(h) Section 5.02(d) is amended to delete the
parenthetical phrase "(other than a Loan Party)" in the fourth,
seventh and eighth lines thereof and to substitute the following
parenthetical phrase: "(other than a Loan Party or a Securitization
Entity)".
(i) Section 5.02(g) is amended in its entirety to read as
follows:
"(g) New Subsidiaries. Neither the Borrower nor any of
its Subsidiaries shall, directly or indirectly, organize,
create, acquire or permit to exist any Subsidiary other
than (a) those listed on Schedule V hereto, (b) any
Securitization Entity, and (c) provided that no Event of
Default has occurred and is continuing or would result
from such action, new Subsidiaries (including Subsidiaries
established as vehicles for joint ventures) acquired to
engage in the transportation business and related
businesses; provided, further, that in the event the
Borrower or any of its Subsidiaries forms any domestic
Subsidiary that is not established as a vehicle for a
joint venture or as a Securitization Entity, the Borrower
shall cause such new domestic Subsidiary, when it
satisfies the financial tests contained in the definition
of "Guarantor," to execute a Guaranty (substantially
similar to the Affiliate Guaranty) containing
representations, warranties and covenants acceptable to
the Administrative Agent, in favor of the Administrative
Agent for the benefit of the Lender Parties, in a manner
and in form and substance satisfactory to the
Administrative Agent."
(j) Section 5.02(i) is amended to (i) delete the word
"and" at the end of clause (iv) thereof and substitute therefor the
punctuation ";", and (ii) delete the period at the end of clause (v)
thereof and to add the following: "; and (vi) in any Securitization
Entity pursuant to a Securitization Facility."
(k) Section 8.02 is amended to delete the language "175
Linfield Drive, Menlo Park, California 90425-3799" thereof and
substitute therefor the new language "P.O. Box 872230, Vancouver,
Washington 98687-2230 (for delivery by United States Postal Service)
or 16400 SE CF Way, Vancouver, Washington 98683 (for delivery by
courier)".
(l) Section 8.02 is further amended to delete the
language "101 California Street, Suite 4550, San Francisco,
California 94111, Attention: Tamira Treffers-Herrera" thereof and
substitute therefor the new language "135 S. LaSalle Street,
Chicago, Illinois 60603, Attention Dave Thomas".
(m) Schedule II to the Credit Agreement is amended in
full to read as Schedule A hereto.
SECTION 2. Reduction of Tranche A. First Union
National Bank, Credit Agricole Indosuez, Union Bank of California,
N.A. and U.S. Bank National Association, in each case as Tranche A
Lenders, have not agreed to extend the Tranche A Termination Date
now in effect, and accordingly, on the effective date of this
Amendment each such Tranche A Lender's Tranche A Revolving Credit
Commitment shall terminate.
SECTION 3. Conditions Precedent to the Effectiveness of
this Amendment. This Amendment shall become effective when and if
the following conditions precedent have been satisfied:
(a) The Administrative Agent shall have received
counterparts of this Amendment executed by each of the parties
listed on the signature pages hereto.
(b) The Borrower shall have paid all accrued fees of the
Administrative Agent and the Lender Parties and the accrued fees and
expenses of counsel to the Administrative Agent.
SECTION 4. Reference to and Effect on the Loan Documents.
(a) On and after the effective date of this Amendment No. 1, each
reference in the Credit Agreement to "this Agreement," "hereunder,"
"hereof" or words of like import referring to the Credit Agreement
and each reference in each of the other Loan Documents to "the
Credit Agreement," "thereunder," "thereof" or words of like import
referring to the Credit Agreement, shall mean and be a reference to
the Credit Agreement, as amended by this Amendment.
(b) The Credit Agreement, as amended by the amendment
specifically provided above in Section 1, is and shall continue to
be in full force and effect and is hereby in all respects ratified
and confirmed. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as
a waiver of any right, power or remedy of any beneficiary of the
Credit Agreement or constitute a waiver of any provision thereof.
SECTION 5 Costs and Expenses. The Borrower hereby agrees
to pay, upon demand, all of the reasonable costs and expenses of the
Administrative Agent incurred in connection with the preparation,
execution, delivery, administration, modification and amendment of
this Amendment and all of the agreements, instruments and other
documents delivered or to be delivered in connection herewith.
SECTION 6. Execution in Counterparts. This Amendment 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 by
telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment.
SECTION 7. Governing Law. This Amendment shall be
governed by, and construed in accordance with, the laws of the State
of California.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
THE BORROWER
CONSOLIDATED FREIGHTWAYS CORPORATION
OF DELAWARE
By_______________________________
Name:
Title:
THE ADMINISTRATIVE AGENT
ABN AMRO BANK N.V.
By________________________________
Name:
Title:
By_______________________________
Name:
Title:
THE LENDER PARTIES
ABN AMRO BANK N.V.,
as the Issuing Bank and as a Tranche A
Lender
By _____________________________
Name:
Title:
By___________________________________
Name:
Title:
ABN AMRO BANK N.V.,
as a Tranche B Lender
By _____________________________
Name:
Title:
By___________________________________
Name:
Title:
BANK ONE, NA (Main Office Chicago),
as a Tranche A Lender
By_________________________________
Name:
Title:
BANK ONE, NA (Main Office Chicago),
as a Tranche B Lender
By_________________________________
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
as a Tranche B Lender
By_________________________________
Name:
Title:
CREDIT AGRICOLE INDOSUEZ,
as a Tranche B Lender
By____________________________________
Name:
Title:
FIRST UNION NATIONAL BANK,
as a Tranche B Lender
By__________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as a Tranche B Lender
By__________________________________
Name:
Title:
FLEET NATIONAL BANK
as a Tranche A Lender
By_________________________________
Name:
Title:
FLEET NATIONAL BANK
as a Tranche B Lender
By_________________________________
Name:
Title:
KEYBANK NATIONAL ASSOCIATION,
as aTranche A Lender
By_________________________________
Name:
Title:
KEYBANK NATIONAL ASSOCIATION,
as a Tranche B Lender
By_________________________________
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION,
as a Tranche A Lender
By_________________________________
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION,
as a Tranche B Lender
By_________________________________
Name:
Title: