EX-4 4 ex4.txt 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