Exhibit 10.4
GUARANTEE
AGREEMENT
THIS GUARANTEE AGREEMENT, dated as
of September 29, 2006, is entered into by J.B. HUNT TRANSPORT
SERVICES, INC. (the “ Guarantor ”) and SUNTRUST
BANK, a Georgia banking corporation as administrative agent (the
“ Administrative Agent ”) for the Lenders (as
defined in the Credit Agreement referred to below).
A. Reference is made to
the Term Loan Agreement dated as of September 29, 2006 (as amended,
supplemented or otherwise modified from time to time, the “
Credit Agreement ”), among the Borrower, the lenders
from time to time party thereto (the “ Lenders
”) and SunTrust Bank, as Administrative Agent for the
Lenders, and a Lender. Capitalized terms used herein and not
defined herein shall have the meanings assigned to such terms in
the Credit Agreement.
B. The Lenders have
agreed to make Loans to the Borrower pursuant to, and upon the
terms and subject to the conditions specified in, the Credit
Agreement. The Guarantor is the parent of the Borrower and
acknowledges that it will derive substantial benefit from the
making of the Loans by the Lenders. The obligations of the Lenders
to make the Loans are conditioned on, among other things, the
execution and delivery by the Guarantor of this Guarantee
Agreement. As consideration therefore and in order to induce the
Lenders to make the Loans, the Guarantor is willing to execute this
Guarantee Agreement.
Accordingly, the parties hereto
agree as follows:
SECTION 1. Guarantee .
The Guarantor unconditionally guarantees, as a primary obligor and
not merely as a surety, (a) the due and punctual payment of (i) the
principal of and premium, if any, and interest (including interest
accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) on the Loans, when and as
due, whether at maturity, by acceleration, upon one or more dates
set for prepayment or otherwise, and (ii) all other monetary
obligations, including fees, costs, expenses and indemnities,
whether primary, secondary, direct, contingent, fixed or otherwise
(including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding), of
the Loan Parties to the Administrative Agent and the Lenders under
the Credit Agreement and the other Loan Documents, (b) the due and
punctual performance of all covenants, agreements, obligations and
liabilities of the Loan Parties under or pursuant to the Credit
Agreement and the other Loan Documents; and (c) the due and
punctual payment and performance of all obligations of the
Borrower, monetary or otherwise, under each Hedging Agreement
entered into with a counterparty that was a Lender or an Affiliate
of a Lender at the time such Hedging Agreement was entered into
(all the monetary and other obligations referred to in the
preceding clauses (a) through (c) being collectively called the
“ Obligations ”). The Guarantor further agrees
that the Obligations may be extended or renewed, in whole or in
part, without notice to or further assent from it, and that it will
remain bound upon its guarantee notwithstanding any extension or
renewal of any Obligation.
SECTION 2. Obligations Not
Waived . To the fullest extent permitted by applicable law, the
Guarantor waives presentment to, demand of payment from and protest
to the Borrower of any of the Obligations, and also waives notice
of acceptance of its guarantee and notice of protest for
nonpayment. To the fullest extent permitted by applicable law, the
obligations of the Guarantor hereunder shall not be affected by (a)
the failure of the Administrative Agent or any Lender to assert any
claim or demand or to enforce or exercise any right or remedy
against the Borrower or any other Guarantor under the provisions of
the Credit Agreement, any other Loan Document or otherwise, (b) any
rescission, waiver, amendment or modification of, or any release
from any of the terms or provisions of, this Agreement, any other
Loan Document, any Guarantee or any other agreement, including with
respect to any other Guarantor under this Agreement, or (c) the
failure to perfect any security interest in, or the release of, any
of the security held by or on behalf of the Administrative Agent or
any Lender.
SECTION 3. Guarantee of
Payment . The Guarantor further agrees that its guarantee
constitutes a guarantee of payment when due and not of collection,
and waives any right to require that any resort be had by the
Administrative Agent or any Lender to any of the security held for
payment of the Obligations or to any balance of any deposit account
or credit on the books of the Administrative Agent or any Lender in
favor of the Borrower or any other person.
SECTION 4. No Discharge or
Diminishment of Guarantee . The obligations of the Guarantor
hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the
indefeasible payment in full in cash of the Obligations), including
any claim of waiver, release, surrender, alteration or compromise
of any of the Obligations, and shall not be subject to any defense
or setoff, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of the Guarantor hereunder shall not be
discharged or impaired or otherwise affected by the failure of the
Administrative Agent or any Lender to assert any claim or demand or
to enforce any remedy under the Credit Agreement, any other Loan
Document or any other agreement, by any waiver or modification of
any provision of any thereof, by any default, failure or delay,
willful or otherwise, in the performance of the Obligations, or by
any other act or omission that may or might in any manner or to the
extent vary the risk of the Guarantor or that would otherwise
operate as a discharge of the Guarantor as a matter of law or
equity (other than the indefeasible payment in full in cash of all
the Obligations).
SECTION 5. Defenses of
Borrower Waived . To the fullest extent permitted by applicable
law, the Guarantor waives any defense based on or arising out of
any defense of the Borrower or the unenforceability of the
Obligations or any part thereof from any cause, or the cessation
from any cause of the liability of the Borrower, other than the
final and indefeasible payment in full in cash of the Obligations.
The Administrative Agent and the Lenders may, at their election,
foreclose on any security held by one or more of them by one or
more judicial or nonjudicial sales, accept an assignment of any
such security in lieu of foreclosure, compromise or adjust any part
of the Obligations, make any other accommodation with the Borrower
or any other guarantor, without affecting or impairing in any way
the liability of the Guarantor hereunder except to the extent the
Obligations have been fully, finally and indefeasibly paid in
cash.
2
Pursuant to applicable law, the
Guarantor waives any defense arising out of any such election even
though such election operates, pursuant to applicable law, to
impair or to extinguish any right of reimbursement or subrogation
or other right or remedy of the Guarantor against the Borrower or
any other Guarantor or guarantor, as the case may be, or any
security.
SECTION 6. Agreement to
Pay; Subordination . In furtherance of the foregoing and not in
limitation of any other right that the Administrative Agent or any
Lender has at law or in equity against the Guarantor by virtue
hereof, upon the failure of the Borrower or any other Loan Party to
pay any Obligation when and as the same shall become due, whether
at maturity, by acceleration, after notice of prepayment or
otherwise, the Guarantor hereby promises to and will forthwith pay,
or cause to be paid, to the Administrative Agent for the benefit of
the Lenders in cash the amount of such unpaid Obligations. Upon
payment by the Guarantor of any sums to the Administrative Agent,
all rights of the Guarantor against the Borrower arising as a
result t
