EXHIBIT 99.3
AMENDMENT XX. 0
XXXXXXXXX XX. 0 (this "Amendment"), dated as of September 29, 2006, to
the Credit Agreement, dated as of March 11, 2005, by and among Con-way Inc.
(f/k/a CNF Inc.), a Delaware corporation, the Banks party hereto, PNC Bank,
National Association, as Syndication Agent, LaSalle Bank National
Association, U.S. Bank National Association, Xxxxxx Trust and Savings Bank
and BNP Paribas, as Co-Documentation Agents, BNY Capital Markets, Inc. and
PNC Bank, National Association, as Co-Lead Arrangers, BNY Capital Markets,
Inc., as Sole Book-Runner, and The Bank of New York, as Administrative Agent
(as the same may be amended, supplemented or otherwise modified from time to
time, the "Credit Agreement").
RECITALS
I. The parties hereto desire to amend the Credit Agreement to extend
the Termination Date, change the pricing, and make other changes all to the
extent set forth herein and subject to the terms and conditions hereof.
II. Unless the context hereof otherwise requires, capitalized terms
used herein and not defined herein shall have the meanings assigned to such
terms in the Credit Agreement.
Accordingly, in consideration of the terms and conditions hereinafter
set forth, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
1. The Credit Agreement is amended by (a) deleting the name "CNF Inc."
in each place it appears therein and inserting in its place the name "Con-way
Inc.", and (b) deleting the name "Con-Way Transportation Services, Inc." in
each place it appears therein and inserting in its place the name "Con-way
Freight Inc.".
2. The Credit Agreement is amended by (a) deleting each reference to
PNC Bank, National Association, as Syndication Agent, and inserting in its
place a reference to U.S. Bank National Association, as Syndication Agent,
(b) deleting each reference to PNC Bank, National Association, as Co-Lead
Arranger, and inserting in its place a reference to U.S. Bank National
Association, as Co-Lead Arranger, (c) deleting each reference to Xxxxxx Trust
and Savings Bank, as Co-Documentation Agent, and inserting in its place a
reference to Fortis Bank S.A./N.V. Cayman Islands Branch, as Co-Documentation
Agent, and (d) deleting each reference to U.S. Bank National Association, as
Co-Documentation Agent.
3. Section 1.1 of the Credit Agreement is hereby amended by adding the
following defined terms thereto in appropriate alphabetical order:
"Fitch" means Fitch Ratings, a majority-owned subsidiary of
Fimalac, S.A., and its successors or, if such corporation shall be
dissolved or liquidated or shall no longer perform the functions of
a securities rating agency, "Fitch" shall be deemed to refer to any
other nationally recognized securities rating agency designated by
the Required Banks, with the approval of the Borrower, by notice to
the Agent and the Borrower.
"Qualified Variable Rate Demand Note" means, at any time, a
variable rate demand note having, at the time of acquisition, (a)
in the case of long term notes, a long term rating of A or higher
by S&P or Fitch, or (b) in the case of short term notes, a short
term rating of A-1 or higher by S&P or F-1 or higher by Fitch.
4. The Credit Agreement is amended by deleting the name "Xxxxx'x" in
each place it appears therein and inserting in its place the name "Fitch".
5. The defined term "Termination Date" contained in Section 1.1 of the
Credit Agreement is hereby amended by deleting the date "March 11, 2010"
contained therein and inserting in its place the date "September 30, 2011".
6. Section 5.08 of the Credit Agreement is hereby amended by inserting
the phrase ", Qualified Variable Rate Demand Notes" immediately before the
phrase "and auction rate securities" appearing therein.
7. Each of Schedule 1A, Schedule 1B and Schedule 2 to the Credit
Agreement is amended and restated in its entirety in the form of Schedule 1A,
Schedule 1B and Schedule 2, respectively, hereto
8. The Administrative Agent shall provide prompt written notice to the
Borrower and the Lenders of the Amendment Effective Time (as defined below).
Immediately after receipt of such notice by each Lender (1) such Lender shall
be deemed to have entered into a master assignment and acceptance agreement,
in form and substance substantially similar to Exhibit E to the Credit
Agreement, pursuant to which each other Lender shall have assigned to such
Lender a portion of its Committed Loans and participations in Letters of
Credit and Swingline Loans, necessary, if any, to reflect proportionately the
Commitments as adjusted pursuant to the replacement of Schedule 1A to the
Credit Agreement effected hereby, and (2) in connection with such assignment,
such Lender shall pay to the Administrative Agent, for the account of such
other Lender, such amount as shall be necessary to appropriately reflect such
assignment, at par, to it of such Committed Loans and participations in
Letters of Credit and Swingline Loans, and in connection with such deemed
master assignment each such other Lender may treat the assignment of each
Euro-Dollar Loan as a prepayment of such Euro-Dollar Loan for purposes of
Section 2.14 of the Credit Agreement. The assignments referenced in this
paragraph 8 shall be accomplished without regard to the requirements of
Section 9.06 of the Credit Agreement. In the event that the Borrower and the
Lenders shall have received such notice on or prior to 11:00 A.M. (New York
time) on September 29, 2006, then for all purposes of the Credit Agreement,
the Quarterly Date occurring on September 30, 2006, shall instead be deemed
to occur on September 29, 2006.
9. Paragraphs 1 through 8 hereof shall not be effective unless and
until such time on or before October 15, 2006, as each of the following shall
have occurred (the "Amendment Effective Time"):
(a) Fortis Bank S.A./N.V. Cayman Islands Branch shall have
accepted and assumed from Xxxxxx X.X. as successor by merger with Xxxxxx
Trust and Savings Bank ("Xxxxxx"), all of Xxxxxx' rights and obligations
under the Loan Documents, and such acceptance and assumption shall have
become effective in accordance with the terms of the Credit Agreement;
(b) the Administrative Agent shall have received from each Lender,
the Borrower and each Subsidiary Guarantor either (i) a counterpart of this
Amendment signed on behalf of such Person or (ii) written evidence
satisfactory to the Administrative Agent (which may include facsimile
transmission of a signed signature page of this Amendment) that such Person
has signed a counterpart of this Amendment;
(c) the Borrower shall have paid to the Administrative Agent, for
the account of each Lender, an upfront fee in an amount equal to the sum
previously agreed by the Borrower in writing to be paid to the Administrative
Agent; and
(d) the Borrower shall have delivered or caused to be delivered to
the Administrative Agent, each in form and substance reasonably satisfactory
to the Administrative Agent, (i) a Secretary's Certificate in respect of each
Loan Party, and (ii) an Officer's Certificate in respect of the Borrower.
10. The Borrower hereby (i) reaffirms and admits the validity and
enforceability of each Loan Document and its obligations thereunder, and
agrees and admits that on and as of the date hereof it has no defense to or
offset against any such obligation, and (ii) represents and warrants that as
of the date hereof (a) no Default has occurred and is continuing and (b) all
of the representations and warranties contained in the Loan Documents are
true and correct in all material respects, except as the context thereof
otherwise requires and except for those representations and warranties which
by their terms or by necessary implication are expressly limited to a state
of facts existing at a time prior to the date hereof, or such other matters
relating thereto as are identified in a writing to the Administrative Agent
and the Lenders and are satisfactory to the Administrative Agent and the
Lenders, provided that notwithstanding anything to the contrary contained in
this clause (b) and solely for the purpose of remaking such representations
and warranties pursuant to this paragraph 10, (1) all references to the
"Closing Date" contained in such representations and warranties shall instead
be the date first appearing above in this Amendment, (2) each reference to
the year 2003 in Section 4.04(a) of the Credit Agreement shall instead be to
the year 2005, and (3) in Section 4.04(b) of the Credit Agreement, (I) each
reference to September 30, 2004, shall instead be to June 30, 2006, and (II)
the reference to "nine-month period" shall instead be a reference to "six
month period".
11. This Amendment may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures hereto
were upon the same instrument. This Amendment constitutes the entire
agreement and understanding among the parties hereto and supersedes any and
all prior agreements and understandings, oral or written, relating to the
subject matter hereof.
12. Each Loan Document shall in all other respects remain in full force
and effect.
13. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to be duly executed by their respective authorized officers as of the day and
year first above written.
CON-WAY INC., a Delaware corporation
By: /s/Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President and Treasurer
Accepted and agreed to:
CON-WAY FREIGHT INC.
By: /s/Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: Assistant Treasurer
MENLO WORLDWIDE, LLC
By: /s/Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: Assistant Treasurer
MENLO LOGISTICS, INC.
By: /s/Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: Assistant Treasurer
THE BANK OF NEW YORK,
in its capacity as a Bank, as an LC Issuing
Bank, as the Swingline Bank and as the Agent
By: /s/Xxxxxxxxx X. Xxxx
Name: Xxxxxxxxx X. Xxxx
Title: Managing Director
PNC BANK, NATIONAL ASSOCIATION
By: /s/Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President
LASALLE BANK NATIONAL ASSOCIATION
By: /s/Xxxxxxxx X. Xxxx
Name: Xxxxxxxx X. Xxxx
Title: Senior Vice President
U.S. BANK NATIONAL ASSOCIATION
By: /s/Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Senior Vice President
FORTIS BANK S.A./N.V. CAYMAN ISLANDS BRANCH
By: /s/Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Senior Vice President
By: /s/Xxxx X'Xxxxx
Name: Xxxx X'Xxxxx
Title: Asst. Mgr. Trade Services
BNP PARIBAS
By: /s/Pierre Xxxxxxxx Xxxxxx
Name: Pierre Xxxxxxxx Xxxxxx
Title: Managing Director
By: /s/Xxxxxxxxx Xxxxx
Name: Xxxxxxxxx Xxxxx
Title: Managing Director
XX XXXXXX CHASE BANK, N.A.
By: /s/Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
XXXXXX XXXXXXX BANK
By: /s/Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title:
KEYBANK NATIONAL ASSOCIATION
By: /s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Director
SUMITOMO MITSUI BANKING CORP.
By: /s/Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Joint General Manager
XXXXXXX STREET COMMITMENT CORPORATION
(Recourse only to assets of Xxxxxxx Street
Commitment Corporation)
By: /s/Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Assistant Vice President
