Guarantee,
dated as of January 19, 2007 (this “ Guarantee
”), by Jerry Moyes, Vickie Moyes and the Jerry and Vickie
Moyes Family Trust dated 12/11/87 (the “Trust”), (each
a “ Guarantor ” and together the “
Guarantors ”), in favor of Swift Transportation Co.,
Inc., a Nevada corporation (the “ Guaranteed Party
”). The Guarantee shall be binding on the estate of Jerry
Moyes and his heirs and the successors of the Trust. Capitalized
terms used herein without definition have the meanings given to
them in the Merger Agreement (as defined below).
1.
GUARANTEE . To induce the Guaranteed Party to enter into an
Agreement and Plan of Merger, dated as the date hereof (as amended,
amended and restated, supplemented or otherwise modified from time
to time, the “ Merger Agreement ”), by and
between the Guaranteed Party, Saint Corporation, a Nevada
corporation (“ Parent ”), and Saint Acquisition
Corporation, a Nevada corporation and a wholly-owned subsidiary of
Parent, pursuant to which MergerCo will merge with and into the
Guaranteed Party, the Guarantors hereby absolutely, unconditionally
and irrevocably, and jointly and severally guarantee to the
Guaranteed Party, the due and punctual payment of the applicable
Termination Fee, if and when due pursuant to the Merger Agreement
(the “ Obligation ”). Provided that in no event
shall the Guarantors’ liability under this Guarantee exceed
the applicable Termination Fee, and the Guarantors shall not have
any obligation or liability to any Person relating to, arising out
of or in connection with this Guarantee other than as expressly set
forth herein.
2.
NATURE OF GUARANTEE . The Guaranteed Party shall not be
obligated to file any claim relating to the Obligation in the event
that either Parent or MergerCo becomes subject to a bankruptcy,
reorganization or similar proceeding, and the failure of the
Guaranteed Party to so file shall not affect the Guarantors’
Obligation hereunder. In the event that any payment to the
Guaranteed Party hereunder is rescinded or must otherwise be
returned for any reason whatsoever, each Guarantor shall remain
liable hereunder as if such payment had not been made (subject to
the terms hereof). This is an unconditional guarantee of payment
and not of collectibility.
3.
TERMS OF GUARANTEE . (a) Notwithstanding any other
provision of this Guarantee, the Company hereby agrees that
(i) the Guarantors may assert, as a defense to any payment or
performance by the Guarantors under this Guarantee, any claim,
set-off, deduction or defense that Parent or MergerCo could assert
against the Company under the terms of the Merger Agreement or that
could otherwise be asserted by Parent or MergerCo against the
Company in any action by the Company against Parent or MergerCo and
(ii) any failure by the Company to comply with the terms of
the Merger Agreement, including, without limitation, any breach by
the Company of the representations and warranties contained therein
or in any of the agreements, certificates and other documents
required to be delivered by the Company pursuant to the terms of
the Merger Agreement (whether such breach results from fraud,
intentional misrepresentation or otherwise), that would relieve
Parent or MergerCo of its obligations under the Merger Agreement
shall likewise relieve the Guarantors of their obligations under
this Guarantee.
1
(b) Each
Guarantor hereby covenants and agrees that it shall not institute,
and shall cause its subsidiaries and affiliates not to institute,
any proceeding asserting that this Guarantee is illegal, invalid or
unenforceable in accordance with its terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws affecting creditors’ rights
generally, and general equitable principles (whether considered in
a proceeding in equity or at law). Notwithstanding anything to the
contrary contained in this Guarantee, the Guaranteed Party hereby
agrees that to the extent Parent and MergerCo are relieved of their
Obligation under the Merger Agreement, each Guarantor shall be
similarly relieved of its Obligation under this
Guarantee.
4.
REPRESENTATIONS AND WARRANTIES; COVENANTS . (a) Each
Guarantor represents and warrants to the Guaranteed Party that:
(i) such Guarantor has the requisite capacity and authority to
execute and deliver this Guarantee and to fulfill and perform such
Guarantor’s obligations hereunder; (ii) this Guarantor
has been duly and validly executed and delivered by such Guarantor
and constitutes a legal, valid and binding agreement of such
Guarantor enforceable by the Guaranteed Party against him, her or
it in accordance with its terms; (iii) the execution, deliver
and performance of this Guarantee by such Guarantor do not and will
not require any consent, approval or other authorization of, or
filing with or notification to any Governmental E
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