TERM LOAN AGREEMENT

 

 

ARTICLE I	DEFINITIONS; CONSTRUCTION		1
Section 1.1		Definitions	1
Section 1.2		Accounting Terms and Determination	16
Section 1.3		Terms Generally	16
ARTICLE II	AMOUNT AND TERMS OF THE COMMITMENTS		17
Section 2.1		General Description of the Facility	17
Section 2.2		Term Loan Commitments	17
Section 2.3		Funding of Loans	17
Section 2.4		Repayment of Loans	17
Section 2.5		Evidence of Indebtedness	18
Section 2.6		Prepayments	18
Section 2.7		Interest on Loans	18
Section 2.8		Computation of Interest	19
Section 2.9		Inability to Determine Interest Rates	19
Section 2.10		Illegality	19
Section 2.11		Increased Costs	19
Section 2.12		Taxes	20
Section 2.13		Funding Indemnity	22
Section 2.14		Payments Generally; Pro Rata Treatment; Sharing of Set-offs	22
Section 2.15		Mitigation of Obligations; Replacement of Lenders	23
ARTICLE III	CONDITIONS PRECEDENT TO LOANS		24
Section 3.1		Conditions To Effectiveness	24
Section 3.2		Delivery of Documents	25
ARTICLE IV	REPRESENTATIONS AND WARRANTIES		25
Section 4.1		Existence; Power	25
Section 4.2		Organizational Power; Authorization	25
Section 4.3		Governmental Approvals; No Conflicts	26
Section 4.4		Financial Statements	26
Section 4.5		Litigation and Environmental Matters	26
Section 4.6		Compliance with Laws and Agreements	27
Section 4.7		Investment Company Act, Etc	27
Section 4.8		Taxes	27
Section 4.9		Margin Regulations	27

 

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Section 4.10		ERISA	27
Section 4.11		Ownership of Property	27
Section 4.12		Disclosure	28
Section 4.13		Labor Relations	28
Section 4.14		Subsidiaries	28
ARTICLE V	AFFIRMATIVE COVENANTS		28
Section 5.1		Financial Statements and Other Information	28
Section 5.2		Notices of Material Events	29
Section 5.3		Existence; Conduct of Business	30
Section 5.4		Compliance with Laws, Etc	30
Section 5.5		Payment of Obligations	30
Section 5.6		Books and Records	31
Section 5.7		Visitation, Inspection, Etc	31
Section 5.8		Maintenance of Properties; Insurance	31
Section 5.9		Use of Proceeds	31
Section 5.10		Interest Rate Protection	31
Section 5.11		Post Closing Documents	31
ARTICLE VI	FINANCIAL COVENANTS		32
Section 6.1		Adjusted Debt to Cash Flow Ratio	32
Section 6.2		Fixed Charge Coverage Ratio	32
ARTICLE VII	NEGATIVE COVENANTS		32
Section 7.1		Negative Pledge	32
Section 7.2		Investments	32
Section 7.3		Publicly-Rated Indebtedness	32
Section 7.4		Subsidiary Debt	32
Section 7.5		Letters of Credit	32
Section 7.6		Subordinated Indebtedness	33
Section 7.7		Merger, Sale of Assets, etc	33
Section 7.8		Limitation on Restrictions on Subsidiary Dividends and Other Distributions	34
Section 7.9		No Conflicts	34
Section 7.10		Nature of Business	34
Section 7.11		Transactions with Affiliates	34

 

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Section 7.12			Margin Stock	34
ARTICLE VIII	EVENTS OF DEFAULT			34
Section 8.1			Events of Default	34
ARTICLE IX	THE ADMINISTRATIVE AGENT			38
Section 9.1			Appointment of Administrative Agent	38
Section 9.2			Nature of Duties of Administrative Agent	38
Section 9.3			Lack of Reliance on the Administrative Agent	39
Section 9.4			Certain Rights of the Administrative Agent	39
Section 9.5			Reliance by Administrative Agent	39
Section 9.6			The Administrative Agent in its Individual Capacity	39
Section 9.7			Successor Administrative Agent	39
ARTICLE X	MISCELLANEOUS			40
Section 10.1			Notices	40
Section 10.2			Waiver; Amendments	41
Section 10.3			Expenses; Indemnification	42
Section 10.4			Successors and Assigns	43
Section 10.5			Governing Law; Jurisdiction; Consent to Service of Process	45
Section 10.6			WAIVER OF JURY TRIAL	46
Section 10.7			Right of Setoff	46
Section 10.8			Counterparts; Integration	46
Section 10.9			Survival	47
Section 10.10			Severability	47
Section 10.11			Confidentiality	47
Section 10.12			Interest Rate Limitation	48
Schedules
Schedule 1		-	Existing Liens
Schedule 4.5		-	Environmental Matters
Schedule 4.14		-	Subsidiaries
Exhibits
Exhibit A		-	Term Note
Exhibit B		-	Form of Assignment and Acceptance

 

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TERM LOAN AGREEMENT

THIS TERM LOAN AGREEMENT (this “ Agreement ”) is made and entered into as of September 29, 2006, by and among J. B. HUNT TRANSPORT, INC., a Georgia corporation (the “ Borrower ”), SUNTRUST BANK and several banks and other financial institutions from time to time party hereto (the “ Lenders ”), and SUNTRUST BANK, in its capacity as Administrative Agent for the Lenders (the “ Administrative Agent ”).

W I T N E S S E T H:

WHEREAS , the Borrower has requested that the Lenders make term loans in an aggregate principal amount equal to $100,000,000 to the Borrower;

WHEREAS , subject to the terms and conditions of this Agreement, the Lenders severally, to the extent of their respective Commitments, are willing to make the term loans to the Borrower.

NOW, THEREFORE , in consideration of the premises and the mutual covenants herein contained, the Borrower, the Lenders and the Administrative Agent agree as follows:

ARTICLE I

DEFINITIONS; CONSTRUCTION

Section 1.1            Definitions . In addition to the other terms defined herein, the following terms used herein shall have the meanings herein specified (to be equally applicable to both the singular and plural forms of the terms defined):

“Adjusted Debt to Cash Flow Ratio” means the ratio, expressed as a percentage, of (i) Indebtedness of the Parent Corporation and its Subsidiaries to (ii) Cash Flow.

“Adjusted LIBOR Rate” shall mean the rate per annum obtained by dividing (i) LIBOR by (ii) a percentage equal to 1.00 minus the Eurodollar Reserve Percentage.

“Administrative Agent” shall have the meaning assigned to such term in the opening paragraph hereof.

“Administrative Questionnaire” shall mean with respect to each Lender, an administrative questionnaire in the form prepared by the Administrative Agent and duly completed by a Lender.

“Affiliate” shall mean, as to any Person, any other Person that directly, or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person.

“Applicable Lending Office” shall mean, for each Lender, the “Lending Office” of such Lender (or an Affiliate of such Lender) designated in the Administrative Questionnaire submitted

 

by such Lender or such other office of such Lender (or an Affiliate of such Lender) as such Lender may from time to time specify to the Administrative Agent and the Borrower as the office by which its Loans are maintained.

“Applicable Margin” shall mean 0.70% per annum; provided however , that in the event the Parent Corporation’s Rating Category is below BBB- by S&P, the Applicable Margin shall be 1.25% per annum.

“Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.4(b) ) and accepted by the Administrative Agent, in the form of Exhibit B attached hereto or any other form approved by the Administrative Agent.

“Base Rate” shall mean the higher of (i) the per annum rate which the Administrative Agent publicly announces from time to time to be its prime lending rate, as in effect from time to time, and (ii) the Federal Funds Rate, as in effect from time to time, plus one-half of one percent (0.50%). The Administrative Agent’s prime lending rate is a reference rate and does not necessarily represent the lowest or best rate charged to customers. The Administrative Agent may make commercial loans or other loans at rates of interest at, above or below the Administrative Agent’s prime lending rate. Each change in the Administrative Agent’s prime lending rate shall be effective from and including the date such change is publicly announced as being effective.

“Base Rate Loans” shall mean the Loans which no longer bear interest as Eurodollar Loans pursuant to the terms of Section 2.9 or 2.10 , and during such period the Loans shall bear interest at the Base Rate minus one percent (1.00%) per annum.

“Borrower” shall have the meaning in the introductory paragraph hereof.

“Business Day” shall mean (i) any day other than a Saturday, Sunday or other day on which commercial banks in Atlanta, Georgia and New York, New York are authorized or required by law to close and (ii) if such day relates to a payment or prepayment of principal or interest on, a Eurodollar Loan or a notice with respect to any of the foregoing, any day on which dealings in Dollars are carried on in the London interbank market.

“Capital Lease Obligations” of any Person shall mean all obligations of such Person to pay rent or other amounts under any lease (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

“Cash Flow” means, for any period, an amount equal to the sum of the following for such period: (a) Net Income plus (b) Interest Expense plus (c) taxes on income of the Parent Corporation and its Subsidiaries plus (d) depreciation and amortization expense of the Parent Corporation and its Subsidiaries plus (e) Rentals.

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“Change of Control” means the earliest to occur of (a) the date of a public announcement that a Person or group of affiliated or associated Persons other than the current Persons who own 50% or more of the Voting Stock of the Parent Corporation (an “ Acquiring Person ”) has acquired, or has obtained the right to acquire, legal or beneficial ownership of 50% or more of the Voting Stock of the Parent Corporation, (b) the date an Acquiring Person acquires all or substantially all of the assets of the Parent Corporation (for purposes hereof, the term “Acquiring Person” shall not include the Parent Corporation, any of its Subsidiaries or any employee benefit plan (or related trust) sponsored or maintained by the Parent Corporation or any of its Subsidiaries) and (c) the date on which a majority of the board of directors of the Parent Corporation shall consist of Persons other than Continuing Directors (for purposes of this definition, “ Continuing Director ” means any member of the board of directors of the Parent Corporation on the date hereof and any other member of the board of directors of the Parent Corporation who shall be nominated or elected to succeed a Continuing Director by at least a majority of the Continuing Directors who are then members of the board of directors of the Parent Corporation).

“Change in Law” shall mean (i) the adoption of any applicable law, rule or regulation after the date of this Agreement, (ii) any change in any applicable law, rule or regulation, or any change in the interpretation or application thereof, by any Governmental Authority after the date of this Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office) (or for purposes of Section 2.11(b) , by such Lender’s holding company, if applicable) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement.

“Closing Date” shall mean the date on which the conditions precedent set forth in Section 3.1 have been satisfied or waived in accordance with Section 10.2 .

“Code” shall mean the Internal Revenue Code of 1986, as amended and in effect from time to time.

“Commitment” shall mean a Term Loan Commitment.

“Control” shall mean the power, directly or indirectly, either to (i) vote 5% or more of securities having ordinary voting power for the election of directors (or persons performing similar functions) of a Person or (ii) direct or cause the direction of the management and policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. The terms “ Controlling ”, “ Controlled by ”, and “ under common Control with ” have meanings correlative thereto.

“Default” shall mean any condition or event that, with the giving of notice or the lapse of time or both, would constitute an Event of Default.

“Default Interest” shall have the meaning set forth in Section 2.7 .

“Dollar(s)” and the sign “ $ ” shall mean lawful money of the United States of America.

“Environmental Laws” shall mean all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered

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into by or with any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, Release or threatened Release of any Hazardous Material or to health and safety matters.

“Environmental Liability” shall mean any liability, contingent or otherwise (including any liability for damages, costs of environmental investigation and remediation, costs of administrative oversight, fines, natural resource damages, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) any actual or alleged violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) any actual or alleged exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute.

“ERISA Affiliate” shall mean any trade or business (whether or not incorporated), which, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for the purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

“ERISA Event” shall mean (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Parent Corporation or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Parent Corporation or any ERISA Affiliate from the PBGC or a plan administrator appointed by the PBGC of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Parent Corporation or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Parent Corporation or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Parent Corporation or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.

“Eurodollar” or “Eurodollar Loans” when used in reference to any Loan that bears interest at a rate determined by reference to the Adjusted LIBOR Rate.

“Eurodollar Reserve Percentage” shall mean the aggregate of the maximum reserve percentages (including, without limitation, any emergency, supplemental, special or other marginal reserves) expressed as a decimal (rounded upwards to the next 1/100th of 1%) in effect on any day to which the Administrative Agent is subject with respect to the Adjusted LIBOR

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Rate pursuant to regulations issued by the Board of Governors of the Federal Reserve System (or any Governmental Authority succeeding to any of its principal functions) with respect to eurocurrency funding (currently referred to as “eurocurrency liabilities” under Regulation D). Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under Regulation D. The Eurodollar Reserve Percentage shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

“Event of Default” shall have the meaning provided in Article VIII.

“Excluded Taxes” shall mean with respect to the Administrative Agent, any Lender, or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United States of America, or by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the Borrower is located and (c) in the case of a Foreign Lender, any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office) or is attributable to such Foreign Lender’s failure to comply with Section 2.12(e) , except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 2.12(a) .

“Federal Funds Rate” shall mean, for any day, the rate per annum (rounded upwards, if necessary, to the next 1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with member banks of the Federal Reserve System arranged by Federal funds brokers, as published by the Federal Reserve Bank of New York on the next succeeding Business Day or if such rate is not so published for any Business Day, the Federal Funds Rate for such day shall be the average rounded upwards, if necessary, to the next 1/100th of 1% of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by the Administrative Agent.

“Fixed Charges Coverage Ratio” shall mean, for the Parent Corporation and its Subsidiaries for each Fiscal Quarter, the ratio of (a) Net Income for the four Fiscal Quarters then ended, after adding back, but only to the extent previously deducted in determining Net Income and without duplication, the sum for the four Fiscal Quarters then ended of (i) taxes on income of the Parent Corporation and its Subsidiaries, plus (ii) Interest Expense, plus (iii) Rentals, divided by (b) the sum for the four Fiscal Quarters then ended of (y) Interest Expense plus (z) Rentals.

“Foreign Lender” shall mean any Lender that is organized under the laws of a jurisdiction other than that of the Borrower. For purposes of this definition, the United States of America or any State thereof or the District of Columbia shall constitute one jurisdiction.

“Fiscal Quarter” shall mean each fiscal quarter of the Parent Corporation and its Subsidiaries.

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“Fiscal Year” means each fiscal year of the Parent Corporation and its Subsidiaries.

“GAAP” shall mean generally accepted accounting principles in the United States applied on a consistent basis and subject to the terms of Section 1.3 .

“Governmental Authority” shall mean the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

“Guarantee” of or by any Person (the “guarantor” ) shall mean any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor” ) in any manner, whether directly or indirectly and including any obligation, direct or indirect, of the guarantor (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or guaranty issued in support of such Indebtedness or obligation; provided , that the term “Guarantee” shall not include endorsements for collection or deposits in the ordinary course of business. The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which Guarantee is made or, if not so stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith. The term “Guarantee” used as a verb has a corresponding meaning.

“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

“Hedging Agreements” shall mean interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, currency future or option contracts, commodity agreements and other similar agreements or arrangements designed to protect against fluctuations in interest rates, currency values or commodity values.

“Indebtedness” with respect to any Person means, without duplication, (a) all indebtedness for borrowed money of such Person or for the deferred purchase price of property acquired by, or for services rendered to (other than trade payables), such Person, (b) all indebtedness of such Person created or arising under any conditional sale or other title retention agreement with respect to any property acquired by such Person, (c) the present value determined in accordance with GAAP of all obligations of such Person under Capital Lease

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Obligations, (d) all indebtedness for borrowed money or for the deferred purchase price of property or services secured by any Lien upon or in any property owned by such Person whether or not such Person has assumed or become liable for the payment of such indebtedness for borrowed money, (e) indebtedness arising under acceptance facilities, (f) any asserted withdrawal liability of such Person or a commonly controlled entity to a Multiemployer Plan, (g) all amounts of indebtedness which (x) represent recourse liabilities of such Person with respect to Securitized Receivables Transactions and which, (y) in accordance with GAAP, would be included on a balance sheet of such Person in respect of any Securitized Receivables Transactions if such facility were characterized as Indebtedness secured by Receivables rather than as a sale of assets, (h) all Guarantees by such Person, and (i) the present value of the minimum aggregate operating lease payments, determined on a consolidated basis in accordance with GAAP, payable by such Person pursuant to Long-Term Leases, discounted at 8%.

“Indemnified Taxes” shall mean Taxes other than Excluded Taxes.

“Interest Expense” means, without duplication, for any period, the sum of (a) aggregate interest expense of the Parent Corporation and its Subsidiaries for such period, as determined in accordance with GAAP and in any event including, without duplication, all commissions, discounts and other fees and charges owed with respect to letters of credit and banker’s acceptances and net costs under Hedging Agreements and the portion of any obligation under Capital Lease Obligations allocable to interest expense; plus (b) aggregate interest expense of the Parent Corporation and its Subsidiaries capitalized during such period; plus (c) Receivables Charges of the Parent Corporation and its Subsidiaries for such period under any Securitized Receivables Transaction.

“Investment” of any Person means any loan, advance, extension of credit, or capital contribution to, investment in, purchase or acquisition of any stock, notes, debt, obligations or securities of, or any other interest in, any Person.

“Lenders” shall have the meaning assigned to such term in the opening paragraph of this Agreement.

“LIBOR Rate” shall mean, with respect to any Eurodollar Loan, the rate per annum for deposits in Dollars for a three (3) month period appearing on the display designated as Page 3750 on the Dow Jones Markets Service (or such other page on that service or such other service designated by the British Banker’s Association for the display of such Association’s Interest Settlement Rates for Dollar deposits) as of 11:00 a.m. (London, England time) on the Closing Date and thereafter on each Reset Date or if such Page 3750 is unavailable for any reason at such time, the rate which appears on the Reuters Screen ISDA Page as of such date and such time; provided , that if the Administrative Agent determines that the relevant foregoing sources are unavailable for such interest period, LIBOR Rate shall mean the rate of interest determined by the Administrative Agent to be the average (rounded upward, if necessary, to the nearest 1/100th of 1%) of the rates per annum at which deposits in Dollars are offered to the Administrative Agent each Reset Date by leading banks in the London interbank market as of 10:00 a.m. in an amount comparable to the amount of the Loans. The initial LIBOR Rate shall be initially determined on the Closing Date and shall be determined thereafter on each Reset Date.

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“Lien” shall mean any mortgage, pledge, security interest, lien (statutory or otherwise), charge, encumbrance, hypothecation, assignment, deposit arrangement, or other arrangement having the practical effect of the foregoing or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any capital lease having the same economic effect as any of the foregoing).

“Loan Documents” shall mean, collectively, this Agreement, the Notes, the Security Agreement, the Parent Guarantee Agreement, and any and all other instruments, agreements, documents and writings executed in connection with any of the foregoing.

“Loan Parties” shall mean the Borrower and the Parent Corporation.

“Loans” shall mean the Term Loans in the aggregate, or any of them, as the context shall require.

“Long-Term Lease” means any lease (other than any Capital Lease Obligations) of real property or Revenue-Generating Equipment having an original term (including any required renewals or any renewals at the option of lessor) of one year or more.

“Material Adverse Effect” shall mean, with respect to any event, act, condition or occurrence of whatever nature (including any adverse determination in any litigation, arbitration, or governmental investigation or proceeding), whether singly or in conjunction with any other event or events, act or acts, condition or conditions, occurrence or occurrences whether or not related, a material adverse change in, or a material adverse effect on, (i) the business, results of operations, financial condition, assets, liabilities or prospects of the Borrower, the Parent Corporation and its Subsidiaries taken as a whole, (ii) the ability of the Loan Parties to perform any of their respective obligations under the Loan Documents, (iii) the rights and remedies of the Administrative Agent and the Lenders under any of the Loan Documents or (iv) the legality, validity or enforceability of any of the Loan Documents.

“Maturity Date” shall mean September 29, 2009.

“Moody’s” shall mean Moody’s Investors Service, Inc.

“Multiemployer Plan” shall have the meaning set forth in Section 4001(a)(3) of ERISA.

“Net Income” means, for any period, (a) the gross revenues of the Parent Corporation and its Subsidiaries for such period; reduced by (b) the sum (without duplication) of the following items for such period (to the extent, except in the case of clause (i) , included in such gross revenues):

(i)            operating and non-operating expenses of the Parent Corporation and its Subsidiaries according to GAAP (including current and deferred taxes on income, provision for taxes on unremitted foreign earnings included in such gross revenues and current additions to reserves but excluding the lower of cost or market inventory write-downs and write-ups of current assets);

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(ii)           all material gains (net of expense and taxes applicable thereto) arising from the sale, conversion or other disposition of capital assets (i.e., assets other than current assets), other than gains or losses arising from sales in the ordinary course of business of revenue equipment;

(iii)          all gains arising from the write-up of assets (other than the write-up of current assets as a result of the lower of cost or market adjustments to inventory);

(iv)          all gains arising from the reacquisition of Indebtedness;

(v)           all equity of the Parent Corporation or any Subsidiary in the unremitted earnings of any Person in which the Parent Corporation has a minority interest;

(vi)          all earnings of each Person acquired by the Parent Corporation or any Subsidiary through purchase of substantially all assets, merger, consolidation or otherwise for any period prior to the date of acquisition;

(vii)         all deferred credits representing the excess of equity in any Subsidiary of the Parent Corporation at the date of acquisition thereof over the cost of the investment in such Subsidiary;

(viii)        any portion of net earnings of any Subsidiary of the Parent Corporation which for any reason is unavailable for the payment of dividends to the Parent Corporation or any other Subsidiary of the Parent Corporation; and

(ix)           the aggregate amount of dividends paid by all Subsidiaries of the Parent Corporation to the Parent Corporation or to any Subsidiary of the Parent Corporation during such period.

“Net Worth” means at any time the sum of capital stock, additional paid-in capital and retained earnings ( minus accumulated deficits) of the Parent Corporation and its Subsidiaries as determined in accordance with GAAP.

“Notes” shall mean, collectively, the Term Notes.

“Obligations” shall mean all amounts owing by the Borrower to the Administrative Agent, or any Lender pursuant to or in connection with this Agreement or any other Loan Document, including without limitation, all principal, interest (including any interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), all reimbursement obligations, fees, expenses, indemnification and reimbursement payments, costs and expenses (including all fees and expenses of counsel to the Administrative Agent and any Lender incurred pursuant to this Agreement or any other Loan Document), whether direct or indirect, absolute or contingent, liquidated or unliquidated, now existing or hereafter arising hereunder or thereunder, together with all renewals, extensions, modifications or refinancings thereof.

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“Off-Balance Sheet Liabilities” of any Person shall mean (i) any repurchase obligation or liability of such Person with respect to accounts or notes receivable sold by such Person, (ii) any liability of such Person under any sale and leaseback transactions which do not create a liability on the balance sheet of such Person, (iii) any liability of such Person under any so-called “synthetic” lease transaction or (iv) any obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance sheet of such Person.

“Other Taxes” shall mean any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.

“Parent Corporation” shall mean J. B. Hunt Transport Services, Inc. and its permitted successors and assignee.

“Parent Guaranty” shall mean that certain Guarantee Agreement dated as of the Closing Date executed by the Parent Corporation and by the Administrative Agent on behalf of the Lenders, as it may be amended or restated from time to time.

“Participant” shall have the meaning set forth in Section 10.4(c) .

“Payment Office” shall mean the office of the Administrative Agent located at 25 Park Place, N.E., Atlanta, Georgia 30303, or such other location as to which the Administrative Agent shall have given written notice to the Borrower and the other Lenders.

“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA, and any successor entity performing similar functions.

“Permitted Investments” means any one or more of the following:

(a)           Investments, loans and advances by the Borrower and its Subsidiaries in and to its Subsidiaries, including any Investment in a corporation which, after giving effect to such Investment, will become a Subsidiary of Borrower and loans and advances by a wholly-owned Subsidiary to the Borrower;

(b)           Investments, maturing in twelve months or less from the date of acquisition, in direct obligations of the United States of America, or any agency thereof;

(c)           Investments in corporate debt obligations, maturing within twelve months or less from the date of acquisition, which (i) are issued by (x) any of the Lenders or (y) corporations having substantially all of their assets located in the United States, and (ii) at the time of acquisition, are accorded a rating of A, or better, by S&P or A, or better, by Moody’s (or an equivalent rating by another nationally recognized credit rating agency of similar standing if neither of such agencies is then in the business of rating long-term corporate debt obligations);

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(d)           Investments in commercial paper which (i) is issued by (x) any of the Lenders or (y) by corporations having substantially all of their assets located in the United States, (ii) matures in 270 days or less from the date of acquisition and, (iii) at the time of acquisition, is accorded a rating of A-1, or better, by S&P or P-1, or better, by Moody’s (or an equivalent rating by another nationally recognized credit rating agency of similar standing if neither of such agencies is then in the business of rating commercial paper);

(e)           Investments in certificates of deposit, maturing within twelve months or less from the date of acquisition, (i) which are issued by (x) any of the Lenders or (y) by other commercial banks located in the United States having capital, surplus and undivided profits aggregating more than $500,000,000, and (ii) the issuer of which, at the time of acquisition, is accorded a rating of A, or better, by S&P or A, or better, by Moody’s (or an equivalent rating by another nationally recognized credit rating agency of similar standing if neither of such agencies is then in the business of rating long-term unsecured corporate debt obligations) with respect to its outstanding unsecured long-term indebtedness;

(f)            Investments in marketable obligations, maturing within twelve months or less from the date of acquisition, of any state, territory or possession of the United States of America or any political subdivision of any of the foregoing, or the District of Columbia, which are, at the time of acquisition, accorded a rating of AA, or better, by S&P or Aa, or better, by Moody’s (or an equivalent rating by another nationally recognized credit rating agency of similar standing if neither of such agencies is then in the business of rating municipal obligations);

(g)           Investments in Receivables arising in the ordinary course of business of the Borrower and its Subsidiaries;

(h)           Investments in Transplace, Inc. existing on the Closing Date;

(i)            Investments in a Special Purpose Subsidiary in connection with a Permitted Securitization Receivables Transaction;

(j)            other Investments (in addition to those permitted by the foregoing clauses (a) through (i) ), provided that the aggregate amount of all such other Investments (calculated at the original book value or principal amount of such Investments, without regard to gain or loss, reduced only by the amount, if any, of cash distribution and principal repayments received with respect to such Investments), plus all Guarantees at any time held or made by the Parent Corporation and its Subsidiaries (other than the Parent Guaranty as defined herein and the Subsidiary Guaranty as defined in the Senior Revolving Credit Facility) shall not at any time exceed an amount equal to ten percent (10%) of Net Worth; and

(k)           Investments in the following types of auction rate securities that bear a rating of “A” or higher by a nationally recognized credit rating agency: (a) auction rate preferred stocks eligible for the dividend received deduction (commonly called D.R.D.

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preferreds) for corporate holders and such security is issued by a domestic or foreign corporation, (b) auction rate preferred stocks issued by U.S. municipalities and the dividends paid on which are not taxable by the U.S. Federal government or state governments (commonly called tax-exempt preferreds) for the holder of the security, (c) auction rate preferred stocks issued by corporations based in the United Kingdom and whose income received is subject to the “US — UK Treaty on Double Taxation” (commonly called UK Preferreds) for the United States—based holder of the security, and (d) auction rate preferred debt and equity securities issued by domestic and foreign corporations and the dividends paid on which are fully taxable by both the U.S. federal and state governments (commonly called taxable preferreds) for the holder of the security.

“Permitted Liens” of the Borrower and its Subsidiaries means:

(a)           Liens for taxes, assessments, or governmental charges or levies not yet due or which are being actively contested in good faith by appropriate proceedings, so long as reserves have been established to the extent required by GAAP;

(b)           other Liens incidental to the conduct of their business or the ownership of their property and assets (such as common carrier’s Liens, producer’s Liens, mechanic’s Liens, and other similar statutory and non-consensual Liens) which were not incurred in connection with the borrowing of money or the obtaining of advances or credit, and which do not in the aggregate materially detract from the value of their property or assets or materially impair the use thereof in the operation of their business;

(c)           any Lien existing on any property of any corporation at the time it becomes a Subsidiary of Borrower or existing prior to the time of acquisition upon any property acquired by the Borrower or any Subsidiary of Borrower through purchase, merger or consolidation or otherwise, whether or not assumed by the Borrower or such Subsidiary, or placed upon property at the time of its acquisition by the Borrower or any Subsidiary of Borrower to secure a portion of the purchase price thereof, or placed upon property hereafter acquired by the Borrower or any Subsidiary of Borrower at the time of the acquisition thereof; provided (i) that at the time of creation of such Lien the principal amount of debt secured thereby does not exceed the amounts otherwise permitted by clause (h) of this definition, and (ii) that any such Lien shall not encumber any other property of the Borrower or such Subsidiary;

(d)           Liens on any property or assets of the Borrower or any Subsidiary of Borrower existing on the date hereof as set forth on Schedule 1 and Liens, if any, which are the subject of a Securitized Receivables Transaction but only with respect to the Receivables sold;

(e)           any Lien renewing, extending or replacing any Lien permitted by clause (d) above, provided that the principal amount secured and then outstanding is not increased, the Lien is not extended to other property and the Indebtedness secured thereby is permitted hereunder;

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(f)            deposits, bonding arrangements and Liens to secure the performance of (or to secure obligations in respect of letters of credit posted to secure the performance of) bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;

(g)           any attachment or judgment Lien which is being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with GAAP; and

(h)           Liens (not otherwise prohibited by this Agreement) on any property or assets of the Borrower or any Subsidiary of Borrower acquired in each case after the Effective Date to secure Indebtedness under Capital Lease Obligations or Indebtedness incurred at the time of acquisition of any property to finance a portion of the purchase price thereof; provided that such Lien attaches only to such property.

“Permitted Securitized Receivables Transaction” means any Securitized Receivables Transaction to the extent that the aggregate investment or claims held at any time by all purchasers, assignees, transferees or (or of interests in) receivables and other rights to payment in all Securitized Receivables Transactions would at any time not exceed $250,000,000.

“Person” shall mean any individual, partnership, firm, corporation, association, joint venture, limited liability company, trust or other entity, or any Governmental Authority.

“Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Parent Corporation or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

“Pro Rata Share” shall mean, with respect to any Lender at any time, a percentage, the numerator of which shall be such Lender’s outstanding Term Loan and the denominator of which shall be the sum of the aggregate outstanding Term Loans of all Lenders.

“Rating Category” means the public rating, if any, assigned to the Parent Corporation’s senior unsecured and unsupported long term debt by S&P, or any other nationally recognized debt rating agency, as the case may be.

“Receivable” of any Person means, as at any date of determination thereof, the unpaid principal portion of the obligation of any customer of such Person to pay money to such Person in respect of any services performed by such Person or inventory purchased from such Person, net of all credits, rebates and offsets owed to such customer by such Person and also net of all commissions payable by such Person to third parties (and for purposes hereof, a credit or rebate paid by check or draft of such Person shall be deemed to be outstanding until such check or draft shall have been debited to the respective account of such Person on which such check or draft was drawn and all rights, security and guaranties with respect to the foregoing and any collections with respect thereto).

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“Receivables Charges” means any charges, fees, interest expense, discounts, or similar items incurred by the Parent Corporation or its Subsidiaries in connection with the sale, transfer, or assignment by such Person of Receivables of such Person.

“Regulation D” shall mean Regulation D of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor regulations.

“Related Parties” shall mean, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.

“Release” means any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into the environment (including ambient air, surface water, groundwater, land surface or subsurface strata) or within any building, structure, facility or fixture.

“Rentals” means the aggregate fixed amounts payable by the Parent Corporation and its Subsidiaries under any lease of real property or Revenue-Generating Equipment having an original term (including any required renewals or any renewals at the option of lessor) of one year or more but does not include any amounts payable under any Capital Lease Obligations by the Parent Corporation or its Subsidiaries, as lessee.

“Required Lenders” shall mean, at any time, Lenders holding more than 50% of the aggregate outstanding Term Loans at such time.

“Reset Date” shall mean the following dates upon which the LIBOR Rate shall be redetermined and reset until the next ensuing Reset Date:

December 29, 2006

March 29, 2007

June 29, 2007

September 28, 2007

December 31, 2007

March 31, 2008

June 30, 2008

September 29, 2008

December 29, 2008

March 30, 2009

June 29, 2009

“Responsible Officer” shall mean any of the President, the Chief Financial Officer or the Treasurer of the Borrower or such other representative of the Borrower as may be designated in writing by any one of the foregoing with the consent of the Administrative Agent; and, with respect to the financial covenants only, the Chief Financial Officer or the Treasurer of the Borrower.

“Revenue Generating Equipment” means tractors, trailers, containers or chasses.

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“S&P” shall mean Standard & Poor’s.

“Sale-Leaseback Transaction” means any arrangement whereby the Parent Corporation or any Subsidiary shall sell, transfer or otherwise dispose of any of its property which it has owned and occupied (in the case of real property) or owned (in the case of property other than real property), and then or thereafter rent or lease, as lessee, such property or any part thereof (except any such arrangements pursuant to which one or more Subsidiaries of the Parent Corporation shall sell, transfer or otherwise dispose of such property to the Parent Corporation and thereafter lease such property from the Parent Corporation).

“Securitized Receivables Transaction” means a sale, transfer, conveyance, lease, or assignment by the Parent Corporation and its Subsidiaries of Receivables of the Parent Corporation or its Subsidiaries created after the Effective Date, in connection with any one or more transactions involving the securitization of such Receivables.

“Special Purpose Subsidiary” means any special purpose entity that is a Subsidiary and that is established for the purposes of purchasing Receivables and financing such Receivables in a permitted Securitized Receivables Transaction.

“Subordinated Indebtedness” means all unsecured Indebtedness of the Borrower or a Subsidiary of Borrower which is made subordinate and junior in right of payment to the Obligations by the inclusion in the instrument evidencing or creating such Indebtedness or the indenture or other instrument under which such Indebtedness is issued of subordination provisions and terms acceptable to the Administrative Agent.

“Security Agreement” shall mean that certain Security Agreement dated as of the date hereof, executed by Borrower and the Administrative Agent on behalf of the Lenders, as it may be amended or restated from time to time.

“Senior Revolving Credit Facility” shall mean that certain $200,000,000 Senior Revolving Credit Facility dated April 27, 2005 by and among the Parent Corporation, the Banks named therein from time to time and Bank of America, N.A. as administrative agent, as previously amended and as it may be amended from time to time.

“Subordinated Debt Documents” shall mean any indenture, agreement or similar instrument governing any Permitted Subordinated Debt.

“Subsidiary” shall mean, with respect to any Person (the “parent” ), any corporation, partnership, joint venture, limited liability company, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, partnership, joint venture, limited liability company, association or other entity (i) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power, or in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, Controlled or held, or (ii) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

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“Taxes” shall mean any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority.

“Term Loan(s)” shall have the meaning set forth in Section 2.2 .

“Term Loan Commitment” shall mean, with respect to each Lender, the obligation of such Lender to make a Term Loan hereunder on the Closing Date, in a principal amount not exceeding the amount set forth with respect to such Lender on the signature pages to this Agreement. The aggregate principal amount of all Lenders’ Term Loan Commitments is $100,000,000.

“Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

Section 1.2            Accounting Terms and Determination . Unless otherwise defined or specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared, in accordance with GAAP as in effect from time to time, applied on a basis consistent (except for such changes approved by the Borrower’s independent public accountants) with the most recent audited consolidated financial statement of the Borrower delivered pursuant to Section 5.1(a) ; provided , that if the Borrower notifies the Administrative Agent that the Borrower wishes to amend any covenant in Article VI to eliminate the effect of any change in GAAP on the operation of such covenant (or if the Administrative Agent notifies the Borrower that the Required Lenders wish to amend Article VI for such purpose), then the Borrower’s compliance with such covenant shall be determined on the basis of GAAP in effect immediately before the relevant change in GAAP became effective, until either such notice is withdrawn or such covenant is amended in a manner satisfactory to the Borrower and the Required Lenders.

Section 1.3            Terms Generally . The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the word “to” means “to but excluding”. Unless the context requires otherwise (i) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as it was originally executed or as it may from time to time be amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (ii) any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns, (iii) the words “hereof”, “herein” and “hereunder” and words of similar import shall be construed to refer to this Agreement as a whole and not to any particular provision hereof, (iv) all references to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles, Sections, Exhibits and Schedules to this

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Agreement and (v) all references to a specific time shall be construed to refer to central standard or daylight time, as applicable.

ARTICLE II

AMOUNT AND TERMS OF THE COMMITMENTS

Section 2.1            General Description of the Facility . Subject to and upon the terms and conditions herein set forth, the Lenders hereby establish in favor of the Borrower a credit facility pursuant to which each Lender severally agrees to make a Term Loan to the Borrower on the Closing Date in a principal amount not exceeding such Lender’s Term Loan Commitment.

Section 2.2            Term Loan Commitments . Subject to the terms and conditions set forth herein, each Lender severally agrees to make a single loan (each, a “Term Loan” ) to the Borrower on the Closing Date in a principal amount not to exceed the Term Loan Commitment of such Lender. The execution and delivery of this Agreement by the Borrower and the satisfaction of all conditions precedent pursuant to Section 3.1 shall be deemed to constitute the Borrower’s request to borrow the Term Loans on the Closing Date.

Section 2.3            Funding of Loans .

(a)           Each Lender will make available the Term Loan to be made by it hereunder on the Closing Date in immediately available funds by 11:00 a.m. to the Administrative Agent at the Payment Office. The Administrative Agent will make such Term Loans available to the Borrower by promptly crediting the amounts that it receives, in like funds by the close of business on the Closing Date, to an account maintained by the Borrower with the Administrative Agent or at the Borrower’s option, by effecting a wire transfer of such amounts to an account designated by the Borrower to the Administrative Agent.

(b)           No Lender shall be responsible for any default by any other Lender in its obligations hereunder, and each Lender shall be obligated to make its Loans provided to be made by it hereunder, regardless of the failure of any other Lender to make its Loans hereunder.

Section 2.4            Repayment of Loans . The Borrower unconditionally promises to pay to the Administrative Agent for the account of each Lender the principal amounts in installments payable on the dates set forth below, with each such installment being in the aggregate principal amount for all Lenders set forth opposite such date below:

 

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provided , that the aggregate remaining unpaid principal balance of the Term Loans shall be due and payable as a balloon payment on the Maturity Date.

Section 2.5            Evidence of Indebtedness . Each Lender shall maintain in accordance with its usual practice appropriate records evidencing the indebtedness of the Borrower to such Lender resulting from the Term Loan made by such Lender, including the amounts of principal and interest payable thereon and paid to such Lender from time to time under this Agreement. The Administrative Agent shall maintain appropriate records in which shall be recorded (i) the Term Loan Commitment of each Lender, (ii) the date and amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder in respect of such Loans and (iii) both the date and amount of any sum received by the Administrative Agent hereunder from the Borrower in respect of the Loans and each Lender’s Pro Rata Share thereof. The entries made in such records shall be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded; provided , that the failure or delay of any Lender or the Administrative Agent in maintaining or making entries into any such record or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans (both principal and unpaid accrued interest) of such Lender in accordance with the terms of this Agreement.

Section 2.6            Prepayments . In the event the Borrower shall prepay the Loans, the Borrower shall give irrevocable written notice to the Administrative Agent no later than three (3) Business Days prior to any such prepayment. Each such notice shall be irrevocable and shall specify the proposed date of such prepayment and the principal amount to be prepaid. Upon receipt of any such notice, the Administrative Agent shall promptly notify each Lender of the contents thereof and of such Lender’s Pro Rata Share of any such prepayment. If such notice is given, the aggregate amount specified in such notice shall be due and payable on the date designated in such notice, together with accrued interest to such date on the amount so prepaid. Each partial prepayment of any Loan shall be in a minimum amount of $1,000,000 and $100,000 increments in excess thereof. Each prepayment shall be applied ratably to the Loans in inverse order of maturity.  In the event a prepayment is made on a date other than a Reset Date, the Borrower shall also pay any amounts required under Section 2.13 .

Section 2.7            Interest on Loans .

(a)           The Borrower shall pay interest on the Loans at the Adjusted LIBO Rate plus the Applicable Margin in effect.

(b)           While an Event of Default exists or after acceleration, at the option of the Required Lenders, the Borrower shall pay interest ( “Default Interest” ) with respect to all Loans and all other Obligations hereunder (other than Loans), at the Base Rate, plus an additional 2% per annum.

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(c)           Interest on the principal amount of the Loans shall accrue from and including the date such Loans are made to but excluding the date of any repayment thereof. Interest shall be payable in arrears on the principal payment dates set forth in Section 2.4 . On the Maturity Date, the Borrower will repay all accrued interest on the Loans and any other amounts owing hereunder.

Section 2.8            Computation of Interest .

All computations of interest hereunder shall be made on the basis of a year of 360 days for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or fees are payable (to the extent computed on the basis of days elapsed). Each determination by the Administrative Agent of an interest amount or fee hereunder shall be made in good faith and, except for manifest error, shall be final, conclusive and binding for all purposes.

Section 2.9            Inability to Determine Interest Rates . If during the term hereof, market circumstances affecting the relevant interbank market exist so that the LIBOR Rate cannot be ascertained, the Administrative Agent shall give written notice (or telephonic notice, promptly confirmed in writing) to the Borrower and to the Lenders as soon as practicable thereafter. Until the Administrative Agent shall notify the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) the obligations of the Lenders to continue outstanding Loans as Eurodollar Loans shall be suspended on the next ensuing Reset Date and (ii) all Loans shall be converted into Base Rate Loans on the next ensuing Reset Date, unless the Borrower prepays the Loans in accordance with this Agreement.

Section 2.10         Illegality . If any Change in Law shall make in unlawful or impossible for any Lender to make, maintain or fund any Eurodollar Loan and such Lender shall so notify the Administrative Agent, the Administrative Agent shall promptly give notice thereof to the Borrower and the other Lenders, whereupon until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of such Lender to continue outstanding Loans as Eurodollar Loans, shall be suspended. The affected outstanding Eurodollar Loan shall be converted to a Base Rate Loan either on the next ensuing Reset Date if such Lender may lawfully continue to maintain such Loan to such date or (ii) immediately if such Lender shall determine that it may not lawfully continue to maintain such Eurodollar Loan to such date. Notwithstanding the foregoing, the affected Lender shall, prior to giving such notice to the Administrative Agent, designate a different Applicable Lending Office if such designation would avoid the need for giving such notice and if such designation would not otherwise be disadvantageous to such Lender in the good faith exercise of its discretion.

Section 2.11         Increased Costs .

(a)           If any Change in Law shall:

(i)            impose, modify or deem applicable any reserve, special deposit or similar requirement that is not otherwise included in the determination of the Adjusted LIBO Rate hereunder against assets of, deposits with or for the account

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of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate); or

(ii)           impose on any Lender or the eurodollar interbank market any other condition affecting this Agreement or any Eurodollar Loans made by such Lender or any participation therein;

and the result of the foregoing is to increase the cost to such Lender of continuing or maintaining a Eurodollar Loan or to increase the cost to such Lender or to reduce the amount received or receivable by such Lender hereunder (whether of principal, interest or any other amount), then the Borrower shall promptly pay, upon written notice from and demand by such Lender upon the Borrower (with a copy of such notice and demand to the Administrative Agent), to the Administrative Agent for the account of such Lender, within five (5) Business Days after the date of such notice and demand, additional amount or amounts sufficient to compensate such Lender, for such additional costs incurred or reduction suffered.

(b)           If any Lender shall have determined that on or after the date of this Agreement any Change in Law regarding capital requirements has or would have the effect of reducing the rate of return on such Lender’s capital (or on the capital of such Lender’s parent corporation) as a consequence of its obligations hereunder to a level below that which such Lender