EXHIBIT 4(q)
--------------------------------------------------------------------------------
CNF TRUST II
----------------------------------------------------------
TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT
----------------------------------------------------------
Dated as of #, 199#
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions and Interpretation..................................................................1
ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application................................................................4
Section 2.2 Lists of Holders of Securities..................................................................4
Section 2.3 Reports by the Preferred Guarantee Trustee......................................................5
Section 2.4 Periodic Reports to Preferred Guarantee Trustee.................................................5
Section 2.5 Evidence of Compliance with Conditions Precedent................................................5
Section 2.6 Events of Default; Waiver.......................................................................5
Section 2.7 Guarantee Event of Default; Notice..............................................................5
Section 2.8 Conflicting Interests...........................................................................6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE
Section 3.1 ▇▇▇▇▇▇ and Duties of the Preferred Guarantee Trustee............................................6
Section 3.2 Certain Rights of Preferred Guarantee Trustee...................................................8
Section 3.3 Not Responsible for Recitals or Issuance of Trust Preferred Securities Guarantee................9
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
Section 4.1 Preferred Guarantee Trustee; Eligibility.......................................................10
Section 4.2 Appointment, Removal and Resignation of Preferred Guarantee Trustee............................10
i
ARTICLE V
GUARANTEE
Section 5.1 Guarantee......................................................................................11
Section 5.2 Waiver of Notice and Demand....................................................................11
Section 5.3 Obligations Not Affected.......................................................................12
Section 5.4 Rights of Holders..............................................................................12
Section 5.5 Guarantee of Payment...........................................................................13
Section 5.6 Subrogation....................................................................................13
Section 5.7 Independent Obligations........................................................................13
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
Section 6.1 Limitation of Transactions.....................................................................13
Section 6.2 Ranking........................................................................................14
ARTICLE VII
TERMINATION
Section 7.1 Termination....................................................................................14
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Exculpation....................................................................................15
Section 8.2 Indemnification................................................................................15
ARTICLE IX
MISCELLANEOUS
Section 9.1 Successors and Assigns.........................................................................16
Section 9.2 Amendments.....................................................................................16
Section 9.3 Notices........................................................................................16
Section 9.4 Benefit........................................................................................17
Section 9.5 Governing Law..................................................................................17
ii
TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT/*/
This TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT (the "Trust Preferred
Securities Guarantee"), dated as of #, 199# is executed and delivered by CNF
Transportation Inc., a Delaware corporation (the "Guarantor"), and #, as trustee
(the "Preferred Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Trust Preferred Securities (as defined herein)
of CNF Trust II, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of #, 199# among the trustees of the Issuer named
therein, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing trust preferred securities, having an aggregate liquidation amount of $#
($# if the Underwriters' over-allotment option is exercised in full) designated
the [$#/#%] Trust Preferred Securities[, Series #] (the "Trust Preferred
Securities").
WHEREAS, as incentive for the Holders to purchase the Trust Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Trust Preferred Securities Guarantee, to pay to the
Holders of the Trust Preferred Securities the Guarantee Payments (as defined
herein) and to make certain other payments on the terms and conditions set forth
herein.
WHEREAS, as of the date hereof, the Guarantor is also executing and
delivering a guarantee agreement (the "Common Securities Guarantee") in
substantially identical terms to this Trust Preferred Securities Guarantee for
the benefit of the holders of the Common Securities (as defined in the
Declaration referred to below), except that if an Event of Default (as defined
in the Indenture (as defined herein)) with respect to the Debentures, has
occurred and is continuing, the rights of holders of the Common Securities to
receive Guarantee Payments under the Common Securities Guarantee are
subordinated to the rights of Holders of Trust Preferred Securities to receive
Guarantee Payments under this Trust Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of Trust
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Trust Preferred
Securities Guarantee for the benefit of the Holders.
----------------------
/*/ Unless otherwise indicated or unless the context otherwise requires, (i)
bracketed language relating to conversion of the Trust Preferred Securities
will be included only if the Trust Preferred Securities are convertible into
CNF Common Stock or other securities; and (ii) all references to specific
sections of the Declaration, the Base Indenture and the Supplemental
Indenture are subject to change. In addition, in the event that the Trust
Preferred Securities are convertible into securities other than CNF Common
Stock, all references to CNF Common Stock will be appropriately modified.
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions and Interpretation.
------------------------------
In this Trust Preferred Securities Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this Trust Preferred Securities Guarantee but
not defined in the preamble above have the respective meanings assigned to them
in this Section 1.1;
(b) terms defined in the Declaration as at the date of execution of this
Trust Preferred Securities Guarantee have the same meaning when used in this
Trust Preferred Securities Guarantee unless otherwise defined in this Trust
Preferred Securities Guarantee;
(c) a term defined anywhere in this Trust Preferred Securities Guarantee
has the same meaning throughout;
(d) all references to "the Trust Preferred Securities Guarantee" or "this
Trust Preferred Securities Guarantee" are to this Trust Preferred Securities
Guarantee as modified, supplemented or amended from time to time;
(e) all references in this Trust Preferred Securities Guarantee to Articles
and Sections are to Articles and Sections of this Trust Preferred Securities
Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning when
used in this Trust Preferred Securities Guarantee, unless otherwise defined in
this Trust Preferred Securities Guarantee or unless the context otherwise
requires; and
(g) a reference to the singular includes the plural and vice versa.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person; provided, however, that the Authorized Officer signing an
Officers' Certificate given pursuant to Section 314(a)(4) of the Trust Indenture
Act shall be the principal executive, financial or accounting officer of such
Person.
"Base Indenture" means the Indenture dated as of #, 199# between the
Company and #, as trustee.
"Common Securities Guarantee" means the Common Securities Guarantee
Agreement dated as of #, 199# of the Sponsor in respect of the Common
Securities.
"Corporate Trust Office" means the office of the Preferred Guarantee
Trustee at which the corporate trust business of the Preferred Guarantee Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Agreement is located at #.
"Covered Person" means any Holder or beneficial owner of Trust Preferred
Securities.
2
"Declaration Event of Default" means an Event of Default as defined in the
Declaration.
"Guarantee Event of Default" means (i) the failure of the Guarantor to
perform any of its payment or other obligations under this Trust Preferred
Securities Guarantee or [(ii) the failure of the Guarantor to deliver CNF Common
Stock upon an appropriate election by any Holder of Trust Preferred Securities
to convert such Trust Preferred Securities into shares of CNF Common Stock.]
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Trust Preferred Securities, to the extent not
paid or made by the Issuer: (i) any accumulated and unpaid Distributions which
are required to be paid on such Trust Preferred Securities to the extent the
Issuer shall have funds available therefor, (ii) the redemption price (the
"Redemption Price"), and all accumulated and unpaid Distributions to but
excluding the date of redemption to the extent the Issuer has funds available
therefor, with respect to any Trust Preferred Securities called for redemption
by the Issuer, and (iii) upon a voluntary or involuntary dissolution, winding-up
or termination of the Issuer ([other than in connection with the conversion of
all of the Trust Preferred Securities into CNF Common Stock,] the redemption of
all outstanding Trust Preferred Securities or the distribution of Debentures to
the Holders in exchange for Trust Preferred Securities as provided in the
Declaration) or in connection with any transaction permitted pursuant to Section
3.15 of the Declaration), the lesser of (a) the aggregate of the liquidation
amount and all accumulated and unpaid Distributions on the Trust Preferred
Securities to but excluding the date of payment, to the extent the Issuer shall
have funds available therefor, and (b) the amount of assets of the Issuer
remaining available for distribution to Holders in liquidation of the Issuer (in
either case, the "Liquidation Distribution"). If an Event of Default (as
defined in the Indenture) with respect to the Debentures has occurred and is
continuing, the rights of holders of the Common Securities to receive payments
under the Common Securities Guarantee Agreement are subordinated to the rights
of Holders of Trust Preferred Securities to receive Guarantee Payments.
"Holder" shall mean any holder, as registered on the books and records of
the Issuer, of any Trust Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Trust Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Guarantee Trustee, any Affiliate
of the Preferred Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives, nominees, custodians or agents of
the Preferred Guarantee Trustee.
"Indenture" means the Subordinated Indenture dated as of #, 199# between
the Guarantor (the "Debenture Issuer") and #, as trustee, as supplemented by the
First Supplemental Indenture dated as of #, 199# between the Debenture Issuer
and #, as trustee, as the same may be further amended or supplemented from time
to time in accordance with its terms.
"List of Holders" shall have the meaning assigned thereto in Section 2.2(a)
hereof.
"Majority in liquidation amount of the Securities" means, except as
provided in the terms of the Trust Preferred Securities or, except as provided
by the Trust Indenture Act, a vote by
3
Holder(s) of Trust Preferred Securities, voting separately as a class, of more
than 50% of the liquidation amount (including the stated amount that would be
paid on redemption, liquidation or otherwise, plus accumulated and unpaid
Distributions to but excluding the date upon which the voting percentages are
determined) of all outstanding Trust Preferred Securities.
"Preferred Guarantee Trustee" means #, until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Trust Preferred Securities Guarantee and thereafter means
each such Successor Preferred Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, any officer within the Corporate Trust Office of the Preferred
Guarantee Trustee, including any vice president, any assistant vice president,
any assistant secretary, the treasurer, any assistant treasurer or other officer
of the Corporate Trust Office of the Preferred Guarantee Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Successor Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.1.
"Trust Securities" means the Common Securities and the Trust Preferred
Securities.
ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.
--------------------------------
(a) This Trust Preferred Securities Guarantee is subject to the provisions
of the Trust Indenture Act that are required to be part of this Trust Preferred
Securities Guarantee and shall, to the extent applicable, be governed by such
provisions; and
(b) if and to the extent that any provision of this Trust Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
Section 2.2 Lists of Holders of Securities.
------------------------------
(a) The Guarantor shall provide the Preferred Guarantee Trustee with a
list, in such form as the Preferred Guarantee Trustee may reasonably require, of
the names and addresses of the Holders of the Trust Preferred Securities ("List
of Holders") as of such date, (i) within 14 days after each record date for
payment of Distributions, as of such record date, and (ii) at any other time
within 30 days of receipt by the Guarantor of a written request for a List of
Holders as of a date no more than 14 days before such List of Holders is given
to the Preferred Guarantee Trustee, provided, that the Guarantor shall not be
obligated to provide such List of Holders at
4
any time the List of Holders does not differ from the most recent List of
Holders given to the Preferred Guarantee Trustee by the Guarantor or in the
event that the Preferred Guarantee Trustee is the Registrar under the
Declaration. The Preferred Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its obligations under
Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
Section 2.3 Reports by the Preferred Guarantee Trustee.
------------------------------------------
Within 60 days after May 15 of each year, the Preferred Guarantee Trustee
shall provide to the Holders of the Trust Preferred Securities such reports as
are required by Section 313 of the Trust Indenture Act if any, in the form and
in the manner provided by Section 313 of the Trust Indenture Act. The Preferred
Guarantee Trustee shall also comply with the requirements of Section 313(d) of
the Trust Indenture Act.
Section 2.4 Periodic Reports to Preferred Guarantee Trustee.
-----------------------------------------------
The Guarantor shall provide to the Preferred Guarantee Trustee such
documents, reports and information as required by Section 314 of the Trust
Indenture Act (if any) and the compliance certificate required by Section 314 of
the Trust Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act.
Delivery of such reports, information and documents to the Preferred
Guarantee Trustee is for informational purposes only and the Preferred Guarantee
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein, including the Guarantor's compliance with any of
its covenants hereunder (as to which the Preferred Guarantee Trustee is entitled
to rely exclusively on Officers' Certificates).
Section 2.5 Evidence of Compliance with Conditions Precedent.
------------------------------------------------
The Guarantor shall provide to the Preferred Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Trust Preferred Securities Guarantee that relate to any of the matters set
forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) may be given in
the form of an Officers' Certificate.
Section 2.6 Events of Default; Waiver.
-------------------------
The Holders of a Majority in liquidation amount of Trust Preferred
Securities may, by vote, on behalf of the Holders of all of the Trust Preferred
Securities, waive any past Guarantee Event of Default and its consequences.
Upon such waiver, any such Guarantee Event of Default shall cease to exist, and
any Guarantee Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Trust Preferred Securities Guarantee, but no
such waiver shall extend to any subsequent or other default or Guarantee Event
of Default or impair any right consequent thereon.
5
Section 2.7 Guarantee Event of Default; Notice.
----------------------------------
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of an Guarantee Event of Default actually known to a Responsible
Officer of the Preferred Guarantee Trustee, transmit by mail, first class
postage prepaid, to the Holders of the Trust Preferred Securities, notices of
all such Events of Default, unless such defaults have been cured before the
giving of such notice, provided, that, the Preferred Guarantee Trustee shall be
protected in withholding such notice if and so long as a Responsible Officer of
the Preferred Guarantee Trustee in good faith determines that the withholding of
such notice is in the interests of the Holders of the Trust Preferred
Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have knowledge
of any Guarantee Event of Default unless the Preferred Guarantee Trustee shall
have received written notice, or of which a Responsible Officer of the Preferred
Guarantee Trustee charged with the administration of the Declaration shall have
obtained actual knowledge.
Section 2.8 Conflicting Interests.
---------------------
The Declaration shall be deemed to be specifically described in this Trust
Preferred Securities Guarantee for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE
Section 3.1 Powers and Duties of the Preferred Guarantee Trustee.
----------------------------------------------------
(a) This Trust Preferred Securities Guarantee shall be held by the
Preferred Guarantee Trustee for the benefit of the Holders of the Trust
Preferred Securities, and the Preferred Guarantee Trustee shall not transfer
this Trust Preferred Securities Guarantee to any Person except a Holder of Trust
Preferred Securities exercising his or her rights pursuant to Section 5.4(b) or
to a Successor Preferred Guarantee Trustee on acceptance by such Successor
Preferred Guarantee Trustee of its appointment to act as Successor Preferred
Guarantee Trustee. The right, title and interest of the Preferred Guarantee
Trustee shall automatically vest in any Successor Preferred Guarantee Trustee,
and such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Preferred Guarantee Trustee.
(b) If an Guarantee Event of Default actually known to a Responsible
Officer of the Preferred Guarantee Trustee has occurred and is continuing, the
Preferred Guarantee Trustee shall (and the Guarantor acknowledges that the
Preferred Guarantee Trustee shall) enforce this Trust Preferred Securities
Guarantee for the benefit of the Holders of the Trust Preferred Securities.
(c) The Preferred Guarantee Trustee, before the occurrence of any Guarantee
Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to
6
perform only such duties as are specifically set forth in this Trust Preferred
Securities Guarantee, and no implied covenants shall be read into this Trust
Preferred Securities Guarantee against the Preferred Guarantee Trustee. In case
an Guarantee Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6) and is actually known to a Responsible Officer of the
Preferred Guarantee Trustee, the Preferred Guarantee Trustee shall exercise such
of the rights and powers vested in it by this Trust Preferred Securities
Guarantee, and use the same degree of care and skill in its exercise thereof, as
a prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(d) No provision of this Trust Preferred Securities Guarantee shall be
construed to relieve the Preferred Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Guarantee Event of Default and
after the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Preferred Guarantee Trustee
shall be determined solely by the express provisions of this Trust
Preferred Securities Guarantee, and the Preferred Guarantee Trustee
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Trust Preferred
Securities Guarantee, and no implied covenants or obligations shall be
read into this Trust Preferred Securities Guarantee against the
Preferred Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Preferred
Guarantee Trustee, the Preferred Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Preferred Guarantee Trustee and conforming to the
requirements of this Trust Preferred Securities Guarantee; but in the
case of any such certificates or opinions that by any provision hereof
are specifically required to be furnished to the Preferred Guarantee
Trustee, the Preferred Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Trust Preferred Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Preferred Guarantee Trustee, unless it shall be proved that the Preferred
Guarantee Trustee was negligent in ascertaining the pertinent facts upon
which such judgment was made;
(iii) the Preferred Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a Majority in
liquidation amount of the Trust Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available to
the Preferred Guarantee Trustee, or exercising any trust or power conferred
upon the Preferred Guarantee Trustee under this Trust Preferred Securities
Guarantee; and
7
(iv) no provision of this Trust Preferred Securities Guarantee shall
require the Preferred Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if the
Preferred Guarantee Trustee shall have reasonable grounds for believing
that the repayment of such funds or liability is not reasonably assured to
it under the terms of this Trust Preferred Securities Guarantee or
indemnity, reasonably satisfactory to the Preferred Guarantee Trustee,
against such risk or liability is not reasonably assured to it.
Section 3.2 Certain Rights of Preferred Guarantee Trustee.
---------------------------------------------
(a) Subject to the provisions of Section 3.1:
(i) The Preferred Guarantee Trustee may conclusively rely, and shall
be fully protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be genuine and
to have been signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Trust Preferred Securities Guarantee shall be sufficiently evidenced by an
Officers' Certificate.
(iii) Whenever, in the administration of this Trust Preferred
Securities Guarantee, the Preferred Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking, suffering
or omitting any action hereunder, the Preferred Guarantee Trustee (unless
other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and conclusively rely upon an Officers'
Certificate which, upon receipt of such request, shall be promptly
delivered by the Guarantor.
(iv) The Preferred Guarantee Trustee shall have no duty to see to
any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof).
(v) The Preferred Guarantee Trustee may consult with counsel of its
selection, and the advice or opinion of such counsel with respect to legal
matters shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and
in accordance with such advice or opinion. Such counsel may be counsel to
the Guarantor or any of its Affiliates and may include any of its
employees. The Preferred Guarantee Trustee shall have the right at any
time to seek instructions concerning the administration of this Trust
Preferred Securities Guarantee from any court of competent jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust Preferred
Securities Guarantee at the request or direction of any Holder, unless such
Holder shall have provided to the Preferred Guarantee Trustee such security
and indemnity, reasonably satisfactory to the Preferred Guarantee Trustee,
against the costs, expenses (including attorneys' fees and
8
expenses and the expenses of the Preferred Guarantee Trustee's agents,
nominees or custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable
advances as may be requested by the Preferred Guarantee Trustee.
(vii) The Preferred Guarantee Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Preferred Guarantee
Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit.
(viii) The Preferred Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly
or by or through agents, nominees, custodians or attorneys, and the
Preferred Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
(ix) Any action taken by the Preferred Guarantee Trustee or its
agents hereunder shall bind the Holders of the Trust Preferred Securities,
and the signature of the Preferred Guarantee Trustee or its agents alone
shall be sufficient and effective to perform any such action. No third
party shall be required to inquire as to the authority of the Preferred
Guarantee Trustee to so act or as to its compliance with any of the terms
and provisions of this Trust Preferred Securities Guarantee, both of which
shall be conclusively evidenced by the Preferred Guarantee Trustee's or its
agent's taking such action.
(x) Whenever in the administration of this Trust Preferred
Securities Guarantee the Preferred Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Preferred Guarantee Trustee
(i) may request instructions from the Holders of a Majority in liquidation
amount of the Trust Preferred Securities, (ii) may refrain from enforcing
such remedy or right or taking such other action until such instructions
are received, and (iii) shall be protected in conclusively relying on or
acting in accordance with such instructions.
(xi) The Preferred Guarantee Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
(xii) The Trust Preferred Securities Trustee shall not be liable
for any action taken, suffered, or omitted to be taken by it in good faith
and reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Trust Preferred Securities
Guarantee.
9
(b) No provision of this Trust Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Preferred Guarantee Trustee to
perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be illegal, or
in which the Preferred Guarantee Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or acts or to exercise
any such right, power, duty or obligation. No permissive power or authority
available to the Preferred Guarantee Trustee shall be construed to be a duty.
Section 3.3 Not Responsible for Recitals or Issuance of Trust Preferred
-----------------------------------------------------------
Securities Guarantee.
--------------------
The recitals contained in this Trust Preferred Securities Guarantee shall
be taken as the statements of the Guarantor, and the Preferred Guarantee Trustee
does not assume any responsibility for their correctness. The Preferred
Guarantee Trustee makes no representation as to the validity or sufficiency of
this Trust Preferred Securities Guarantee.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
Section 4.1 Preferred Guarantee Trustee; Eligibility.
----------------------------------------
(a) There shall at all times be a Preferred Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or other Person permitted by the
Securities and Exchange Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision or examination by
federal, state, territorial or District of Columbia authority. If such
Person publishes reports of condition at least annually, pursuant to law or
to the requirements of the supervising or examining authority referred to
above, then, for the purposes of this Section 4.1(a)(ii), the combined
capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Preferred Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
10
Section 4.2 Appointment, Removal and Resignation of Preferred Guarantee
-----------------------------------------------------------
Trustee.
-------
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in accordance with
Section 4.2(a) until a Successor Preferred Guarantee Trustee has been appointed
and has accepted such appointment by written instrument executed by such
Successor Preferred Guarantee Trustee and delivered to the Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall hold office
until a Successor Preferred Guarantee Trustee shall have been appointed or until
its removal or resignation. The Preferred Guarantee Trustee may resign from
office (without need for prior or subsequent accounting) by an instrument in
writing executed by the Preferred Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Preferred Guarantee Trustee and
delivered to the Guarantor and the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been appointed
and accepted appointment as provided in this Section 4.2 within 60 days after
delivery of an instrument of resignation or removal, the Preferred Guarantee
Trustee resigning or being removed may petition any court of competent
jurisdiction for appointment of a Successor Preferred Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Preferred Guarantee Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Trust Preferred Securities Guarantee or
removal or resignation of the Preferred Guarantee Trustee pursuant to this
Section 4.2, the Guarantor shall pay to the Preferred Guarantee Trustee all
amounts accrued and owing to the Preferred Guarantee Trustee to the date of such
termination, removal or resignation.
ARTICLE V
GUARANTEE
Section 5.1 Guarantee.
---------
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (except to the extent paid, and without
duplication of amounts paid, by the Issuer), as and when due, regardless of any
defense, right of set-off or counterclaim that the Issuer may have or assert.
The Guarantor's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by the Guarantor to the Holders or by
causing the Issuer to pay such amounts to the Holders.
11
Section 5.2 Waiver of Notice and Demand.
---------------------------
The Guarantor hereby waives notice of acceptance of this Trust Preferred
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
Section 5.3 Obligations Not Affected.
------------------------
The obligations, covenants, agreements and duties of the Guarantor under
this Trust Preferred Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Trust Preferred Securities to be
performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Trust Preferred Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Trust Preferred Securities (other than an
extension of time for payment of Distributions, Redemption Price, Liquidation
Distribution or other sum payable that results from the extension of any
interest payment period on the Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Trust Preferred
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Trust Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
consent of, the Guarantor with respect to the happening of any of the foregoing.
12
Section 5.4 Rights of Holders.
-----------------
(a) The Holders of a Majority in liquidation amount of the Trust Preferred
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Preferred Guarantee Trustee in
respect of this Trust Preferred Securities Guarantee or to direct the exercise
of any trust or power conferred upon the Preferred Guarantee Trustee under this
Trust Preferred Securities Guarantee.
(b) If the Preferred Guarantee Trustee fails to enforce such Trust
Preferred Securities Guarantee, any Holder of Trust Preferred Securities may
institute a legal proceeding directly against the Guarantor to enforce the
Preferred Guarantee Trustee's rights under this Trust Preferred Securities
Guarantee, without first instituting a legal proceeding against the Issuer, the
Preferred Guarantee Trustee or any other person or entity. The Guarantor waives
any right or remedy to require that any action be brought first against the
Issuer or any other person or entity before proceeding directly against the
Guarantor. Notwithstanding the foregoing, if the Guarantor has failed to make a
Guarantee Payment, a Holder of Trust Preferred Securities may directly institute
a proceeding against the Guarantor for enforcement of this Trust Preferred
Securities Guarantee for such payment.
Section 5.5 Guarantee of Payment.
--------------------
This Trust Preferred Securities Guarantee creates a guarantee of payment
and not of collection.
Section 5.6 Subrogation.
-----------
The Guarantor shall be subrogated to all (if any) rights of the Holders of
Trust Preferred Securities against the Issuer in respect of any amounts paid to
such Holders by the Guarantor under this Trust Preferred Securities Guarantee;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any right
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Trust Preferred
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Trust Preferred Securities Guarantee. If any amount shall
be paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.
Section 5.7 Independent Obligations.
-----------------------
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer with respect to the Trust Preferred Securities,
and that the Guarantor shall be liable as principal and as debtor hereunder to
make Guarantee Payments pursuant to the terms of this Trust Preferred Securities
Guarantee notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 5.3 hereof.
13
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
Section 6.1 Limitation of Transactions.
--------------------------
So long as any Trust Preferred Securities remain outstanding, if there
shall have occurred and be continuing any Guarantee Event of Default or any
Declaration Event of Default, then (a) the Guarantor shall not declare or pay
any dividend on, or make any distributions with respect to, or redeem, purchase
or acquire, or make a liquidation payment with respect to, any of its capital
stock (other than (A) (i) purchases or acquisitions of shares of the Guarantor's
capital stock (or capital stock equivalents) in connection with the satisfaction
by the Guarantor of its obligations under any officers, directors or employee
benefit plans (or any options or other instruments issued thereunder) or the
satisfaction by the Guarantor of its obligations pursuant to any contract or
security requiring the Guarantor to purchase shares of the Guarantor's capital
stock (or capital stock equivalents), (ii) purchases of shares of the
Guarantor's capital stock (or capital stock equivalents) from officers,
directors or employees of the Guarantor or its subsidiaries pursuant to
employment agreements or upon termination of employment or retirement, (iii) as
a result of a reclassification, combination or subdivision of the Guarantor's
capital stock or the exchange or conversion of one class or series of the
Guarantor's capital stock for another class or series of the Guarantor's capital
stock, (iv) dividends or distributions of shares of common stock on common
stock, (v) the purchase of fractional interests in shares of the Guarantor's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or any security being converted or exchanged into such capital stock, (vi)
dividends or distributions on, or redemptions, purchases or acquisitions of, or
liquidation payments with respect to, the Guarantor's Series B Cumulative
Convertible Preferred Stock, (vii) purchases or other acquisitions of common
stock in connection with a dividend reinvestment or other similar plan, or
(viii) any dividend or distribution of capital stock (or capital stock
equivalents) in connection with the implementation of a stockholders rights
plan, or the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, or (B) guarantee
payments made with respect to any of the foregoing), (b) the Guarantor shall not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by the Guarantor which rank pari
passu with or junior to the Debentures and (c) the Guarantor shall not make any
guarantee payments with respect to the foregoing (other than pursuant to this
Trust Preferred Securities Guarantee or the Common Securities Guarantee
Agreement).
Section 6.2 Ranking.
-------
This Trust Preferred Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Guarantor except any liabilities that
may be pari passu expressly by their terms, (ii) pari passu in right of payment
with the most senior preferred or preference stock now or hereafter issued by
the Guarantor, if any, and with any guarantee now or hereafter entered into by
the Guarantor in respect of any preferred or preference stock of any Affiliate
of the Guarantor [(including, without limitation, the obligations of the
Guarantor under the Preferred Securities Guarantee Agreement dated as of June
11, 1997 among the Guarantor and The First National Bank of Chicago, as
trustee)], and (iii) senior to the Guarantor's common stock.
14
ARTICLE VII
TERMINATION
Section 7.1 Termination.
-----------
This Trust Preferred Securities Guarantee shall terminate (i) upon full
payment of the redemption price of all Trust Preferred Securities, together with
all accumulated and unpaid Distributions thereon to but excluding the date of
redemption, [(ii) upon the conversion of the Trust Preferred Securities into CNF
Common Stock or other securities or property as provided in the Declaration or]
upon the distribution of the Debentures to the Holders of all of the Trust
Preferred Securities or (iii) upon full payment of the amounts payable in
accordance with the Declaration upon liquidation of the Issuer. Notwithstanding
the foregoing, this Trust Preferred Securities Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
of Trust Preferred Securities must restore payment of any sums paid under the
Trust Preferred Securities or under this Trust Preferred Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Guarantor or any Covered Person for any loss,
damage, liability, expense or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith in accordance with
this Trust Preferred Securities Guarantee and in a manner that such Indemnified
Person reasonably believed to be within the scope of the authority conferred on
such Indemnified Person by this Trust Preferred Securities Guarantee or by law,
except that an Indemnified Person shall be liable for any such loss, damage,
liability, expense or claim incurred by reason of such Indemnified Person's
negligence or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good faith
upon the records of the Guarantor and upon such information, opinions, reports
or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Trust Preferred Securities might properly be
paid.
Section 8.2 Indemnification.
---------------
The Guarantor agrees to indemnify each Indemnified Person for, and to hold
each Indemnified Person harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of
15
the trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The provisions of this
Section 8.2 shall survive the termination of this Trust Preferred Securities
Guarantee or the resignation or removal of the Preferred Guaranteed Trustee.
When the Preferred Guarantee Trustee incurs expenses or renders services in
connection with an Event of Default specified in [Section 501(6) or Section
501(7)] of the Base Indenture, the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for services are intended to
constitute expenses of administration under any applicable federal or state
bankruptcy, insolvency or other similar law.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Successors and Assigns.
----------------------
All guarantees and agreements contained in this Trust Preferred Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Trust Preferred Securities then outstanding. Except in connection with
any merger or consolidation of the Guarantor with or into another entity
permitted by [Section 801] of the Base Indenture or any sale, transfer or lease
of the Guarantor's assets to another entity permitted by [Section 801] of the
Base Indenture, the Guarantor may not assign its rights or delegate its
obligations under this Trust Preferred Securities Guarantee without the prior
approval of the holders of at least a Majority in liquidation amount of the
Trust Preferred Securities then outstanding. Upon any consolidation by the
Guarantor with or merger of the Guarantor into any other Person or any
conveyance, transfer or lease of the properties and assets of the Guarantor
substantially as an entirety to any Person in accordance with [Section 801] of
the Base Indenture, the successor Person formed by such consolidation or into
which the Guarantor is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Guarantor under this Trust Preferred Securities Guarantee with the
same effect as if such successor Person had been named as the Guarantor herein;
and thereafter, except in the case of a lease, the predecessor Person shall be
released from all obligations and covenants under this Trust Preferred
Securities Guarantee.
Section 9.2 Amendments.
----------
Except with respect to any changes that do not materially adversely affect
the rights of Holders (in which case no vote or consent of Holders will be
required), this Trust Preferred Securities Guarantee may be amended only with
the prior approval of the Holders of at least a Majority in liquidation amount
of all the outstanding Trust Preferred Securities. The provisions of Section
12.2 of the Declaration with respect to meetings of Holders of the Securities
apply to the giving of such approval. For purposes of this Trust Preferred
Securities Guarantee, any change which only eliminates or limits any of the
dividends, distributions, redemptions,
16
purchases, acquisitions or liquidation payments which the Guarantor is permitted
to make pursuant to subclauses (A) or (B) of clause (a) of Section 6.1 shall be
deemed not to materially adversely affect the rights of Holders.
Section 9.3 Notices.
-------
All notices provided for in this Trust Preferred Securities Guarantee shall
be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Preferred Guarantee Trustee, at the Preferred Guarantee
Trustee's mailing address set forth below (or such other address as the
Preferred Guarantee Trustee may give notice of to the Holders of the Trust
Preferred Securities):
#
#
#
Attn: #
(b) If given to the Guarantor, at the Guarantor's mailing address set forth
below (or such other address as the Guarantor may give notice of to the Holders
of the Trust Preferred Securities):
CNF Transportation Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
(c) If given to any Holder of Trust Preferred Securities, at the address
set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
Section 9.4 Benefit.
-------
This Trust Preferred Securities Guarantee is solely for the benefit of the
Holders of the Trust Preferred Securities and, subject to Section 3.1(a), is not
separately transferable from the Trust Preferred Securities.
Section 9.5 Governing Law.
-------------
THIS TRUST PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF
17
THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
18
THIS TRUST PREFERRED SECURITIES GUARANTEE is executed as of the day and
year first above written.
CNF TRANSPORTATION, INC.,
as Guarantor
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
#,
as Preferred Guarantee Trustee
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
19