Exhibit 4.16
AMENDMENT TO NOTE AND GUARANTEE AGREEMENT
THIS AMENDMENT (this "Amendment") dated as of August 8,
2003, to the Note Agreement referenced below, is by and
among CNF Inc., a Delaware corporation (the "Company"), CNF
Transportation Inc. Thrift and Stock Trust (the "Trust") and
the noteholders identified on the signature pages hereto.
Capitalized terms used herein but not otherwise defined
herein shall have the meanings provided to such terms in the
Note Agreement.
W I T N E S S E T H
WHEREAS, the Trust has issued 6.00% Senior CNF Plan
Guaranteed Notes due January 1, 2006 (the "Notes") pursuant
to that Note and Guaranty Agreement dated as of July 1, 1999
(as amended, modified and supplemented from time to time,
the "Note Agreement"), among the Company, the Trust and the
noteholders party thereto (the "Noteholders"); and
WHEREAS, the company has requested certain
modifications o the Note Agreement and the Required Holders
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. The Note Agreement is hereby amended in
the following respects:
(a) In Schedule B of the Note Agreement, the definitions of
"Consolidated Net Income Available for Fixed Charges,"
"Consolidated Net Worth" and "GAAP" are amended to read as
follows:
"Consolidated Net Income Available for Fixed
Charges" means, for any period, the sum of (i)
Consolidated Net Income for such period, plus (ii)
income tax expense to the extent deducted in the
determination of Consolidated Net Income for such
period, plus (iii) depreciation and amortization
expense or allowances and other non-cash expenses
to the extent deducted in the determination of
Consolidated Net Income for such period
(including, without limitation, charges associated
with any writedown of goodwill pursuant to FAS
142), plus (iv) Consolidated Fixed charges for such
period to the extent deducted in the determination
of Consolidated Net Income for such period.
"Consolidated Net Worth" means, at any time, the
consolidated shareholders' equity of the Company
and its Subsidiaries determined as of such time in
accordance with GAAP, but excluding the effect of
(i) any write-down of goodwill pursuant to FAS 142
and (ii) any charge taken to other comprehensive
income (equity) in connection with the minimum
pension liability adjustment required under GAAP
in connection with the Company's and its
Subsidiaries' defined pension plans.
"GAAP" means generally accepted accounting
principles as in effect from time to time in the
United States of America; provided that, if the
Company notifies the Required Holders that the
Company wishes to amend any covenant in Section 10
hereof (or any definition hereof) to eliminate the
effect of any change in generally accepted
accounting principles on the operation of such
covenant or definition, then the Company's
compliance with such covenant or the meaning of
such definition shall be determined on the basis
of generally accepted accounting principles in
effect immediately before the relevant change in
generally accepted accounting principles became
effective, until either notice is withdrawn or
such covenant is amended in a manner satisfactory
to the company and the Required Holders.
(b) Section 20 of the Note Agreement is amended by adding
the following new sentence to the end thereof;
"Notwithstanding the foregoing, the parties (and
each employee, representative, or other agent of
the parties) may disclose to any and all persons,
without limitation of any kind, the tax treatment
and any facts that may be relevant to the tax
structure of the transaction, provided, however,
that no party (and no employee, representative, or
other agent thereof) shall disclose any other
information that is not to understanding the tax
treatment and tax structure of the transaction
(including the identity of any party and any
information that could lead another to determine
the identity of any party), or any other
information to the extent that such disclosure
could result in a violation of any federal or
state securities law."
2. Conditions Precedent. This Amendment shall be
effective as of the date hereof upon receipt by the Company
of multiple counterparts of this Amendment executed by the
Company, the Trust and the Required Holders.
3. No Other Changes. Except as expressly modified hereby,
all of the terms and provisions of the Note Agreement shall
remain in full force and effect.
4. 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.
5. 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 Amendment to be duly executed and
delivered as of the date first above written.
COMPANY: CNF INC., a Delaware corporation
By:
Name:
Title:
TRUST: CNF TRANSPORTATION INC. THRIFT
AND STOCK TRUST, acting by and
through T. Rowe Price Trust
Company, not
in its individual capacity,
but solely as directed trustee
under the CNF Plan Documents
referred to in the Note
Agreement
By: T. Rowe Price Trust
Company, as Directed Trustee
By:
Name:
Title:
NOTEHOLDERS: U.S. BANK NATIONAL ASSOCIATION
By:
Name:
Title:
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By:
Name:
Title:
CM LIFE INSURANCE COMPANY
By:
Name:
Title:
SUN LIFE ASSURANCE COMPANY OF
CANADA
By:
Name:
Title: