Exhibit 10.3


 


CONTINUING UNCONDITIONAL GUARANTY


 


This CONTINUING
UNCONDITIONAL GUARANTY dated as of May 19, 2006 (the “Guaranty”), is
executed by J.B. Hunt Transport, Inc., a Georgia corporation (the “Guarantor”),
whose address is 615 J.B. Hunt Corporate Drive, Lowell, Arkansas 72745, to and
for the benefit of LASALLE BANK NATIONAL ASSOCIATION, a national banking
association (together with any of its affiliate or subsidiary corporations, or
their successors or assigns, being collectively referred to herein as the “Bank”),
whose address is 135 South La Salle Street, Chicago, Illinois 60603.


 


WHEREAS, J.B. Hunt Transport
Services, Inc., an Arkansas corporation (the “Borrower”), whose address is
615 J.B. Hunt Corporate Drive, Lowell, Arkansas 72745, has entered into a
Bridge Loan Agreement dated as of the date hereof by and between the Borrower
and the Bank (as it may be amended, modified or restated from time to
time, the “Loan Agreement”); and


 


WHEREAS, the Guarantor is a
subsidiary of the Borrower, and desires the Bank to extend credit to the
Borrower under the Loan Agreement and the Bank has required that Guarantor
execute and deliver this Guaranty to the Bank as a condition to the extension
and continuation of credit by the Bank under the Loan Agreement; and


 


WHEREAS, the extension of credit, as aforesaid, by
the Bank is necessary and desirable to the conduct and operation of the
business of the Borrower and will inure to the direct financial benefit of the
Guarantor;


 


NOW, THEREFORE, FOR VALUE RECEIVED, it is agreed
that the preceding provisions and recitals are an integral part hereof and
that this Guaranty shall be construed in light thereof, and in consideration of
advances, credit or other financial accommodation heretofore afforded,
concurrently herewith being afforded or hereafter to be afforded to the
Borrower by the Bank, the Guarantor hereby unconditionally and absolutely
guarantees to the Bank or other person paying or incurring the same,
irrespective of the validity, regularity or enforceability of any instrument,
writing, arrangement or credit agreement relating to or the subject of any such
financial accommodation, the prompt payment in full of: (a) any and all
indebtedness, obligations and liabilities of every kind and nature of the
Borrower to the Bank under or in connection with or evidenced by the Loan
Agreement and the Revolving Note issued thereunder, and as defined therein,
howsoever evidenced, whether now existing or hereafter created or arising (and
whether arising before or after the filing of a petition in bankruptcy and
including all interest accrued after the petition date), direct or indirect,
primary or secondary, absolute or contingent, due or to become due, joint,
several or joint and several, and howsoever owned, held or acquired, whether
through discount, overdraft, purchase, direct loan or otherwise, plus (b) all
costs, legal expenses and attorneys’ and paralegals’ fees of every kind
(including those costs, expenses and fees of attorneys and paralegals who may be
employees of the Bank, its parent or affiliates), paid or


 

















 


incurred by the Bank in endeavoring to collect all or any part of
the foregoing indebtedness, or in enforcing this Guaranty, or in defending
against any defense, counterclaim, setoff or crossclaim based on any act of
commission or omission by the Bank with respect to the foregoing indebtedness
or in connection with any Repayment Claim (as hereinafter defined)
(collectively, the “Guaranteed Debt”). In addition, the Guarantor hereby
unconditionally and absolutely guarantees to the Bank the prompt, full and
faithful performance and discharge by the Borrower of each of the terms,
conditions, agreements, representations and warranties on the part of the
Borrower contained in any agreement, or in any modification or addenda thereto
or substitution thereof in connection with any of the Guaranteed Debt.


 


Notwithstanding anything in
this Guaranty to the contrary, the right of recovery against the Guarantor
under this Guaranty shall not exceed $1.00 less than the amount that would
render the Guarantor’s obligations under this Guaranty void or voidable under
applicable law, including fraudulent conveyance law.


 


In case of any bankruptcy, reorganization, debt
arrangement or other proceeding under any bankruptcy or insolvency law, any
dissolution, liquidation or receivership proceeding is instituted by or against
either the Borrower or the Guarantor, or any default by the Guarantor of any of
the covenants, terms and conditions set forth herein, all of the Guaranteed
Debt shall, without notice to anyone, immediately become due or accrued and
shall be payable by the Guarantor. The Guarantor hereby expressly and
irrevocably: (a) waives, to the fullest extent possible, on behalf of
itself and its successors and assigns (including any surety) and any other
person, any and all rights at law or in equity to subrogation, reimbursement,
exoneration, contribution, indemnification, set off or to any other rights that
could accrue to a surety against a principal, a guarantor against a maker or obligor,
an accommodation party against the party accommodated, a holder or transferee
against a maker, or to the holder of a claim against any person, and which the
Guarantor may have or hereafter acquire against any person in connection
with or as a result of the Guarantor’s execution, delivery and/or performance
of this Guaranty, or any other documents to which the Guarantor is a party or
otherwise; (b) waives any “claim” (as such term is defined in the United
States Bankruptcy Code) of any kind against the Borrower, and further agrees
that it shall not have or assert any such rights against any person (including
any surety), either directly or as an attempted set off to any action commenced
against the Guarantor by the Bank or any other person; and (c) acknowledges
and agrees (i) that foregoing waivers are intended to benefit the Bank and
shall not limit or otherwise affect the Guarantor’s liability hereunder or the
enforceability of this Guaranty, (ii) that the Borrower and its successors
and assigns are intended third party beneficiaries of the foregoing waivers,
and (iii) the agreements set forth in this paragraph and the Bank’s rights
under this paragraph shall survive payment in full of the Guaranteed Debt.


 


All dividends or other payments received by the Bank
on account of the Guaranteed Debt, from whatever source derived, shall be taken
and applied by the Bank toward the payment of the Guaranteed Debt and in such
order of application as the Bank may, in its sole discretion, from time to time
elect. The Bank shall have the exclusive right to determine how, when and what


 


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application
of payments and credits, if any, whether derived from the Borrower or any other
source, shall be made on the Guaranteed Debt and such determination shall be
conclusive upon the Guarantor.


 


This Guaranty shall in all respects be continuing,
absolute and unconditional, and shall remain in full force and effect with
respect to the Guarantor until: (i) written notice from the Bank to the
Guarantor by United States certified mail of its discontinuance as to the
Guarantor; or (ii) until all Guaranteed Debt created or existing before
receipt of either such notice shall have been fully paid and each of the
commitments by the Bank to extend any Guaranteed Debt shall have expired or
otherwise terminates. In the event of the dissolution of the Guarantor, this
Guaranty shall continue as to all of the Guaranteed Debt theretofore incurred
by the Borrower even though the Guaranteed Debt is renewed or the time of
maturity of the Borrower’s obligations is extended without the consent of the
successors or assigns of the Guarantor.


 


No compromise, settlement,
release or discharge of, or indulgence with respect to, or failure, neglect or
omission to enforce or exercise any right against any other guarantor shall
release or discharge the Guarantor.


 


The Guarantor’s liability
under this Guaranty shall in no way be modified, affected, impaired, reduced,
released or discharged by any of the following (any or all of which may be
done or omitted by the Bank in its sole discretion, without notice to anyone
and irrespective of whether the Guaranteed Debt shall be increased or decreased
thereby): (a) any acceptance by the Bank of any new or renewal note or
notes of the Borrower, or of any security or collateral for, or other
guarantors or obligors upon, any of the Guaranteed Debt; (b) any
compromise, settlement, surrender, release, discharge, renewal, refinancing,
extension, alteration, exchange, sale, pledge or election with respect to the
Guaranteed Debt, or any note by the Borrower, or with respect to any collateral
under Section 1111 or take any action under Section 364, or any other
section of the United States Bankruptcy Code, now existing or hereafter
amended, or other disposition of, or substitution for, or indulgence with
respect to, or failure, neglect or omission to realize upon, or to enforce or
exercise any liens or rights of appropriation or other rights with respect to,
the Guaranteed Debt or any security or collateral therefor or any claims
against any person or persons primarily or secondarily liable thereon; (c) any
failure, neglect or omission to perfect, protect, secure or insure any of the
foregoing security interests, liens, or encumbrances of the properties or
interests in properties subject thereto; (d) the granting of credit from
time to time by the Bank to the Borrower in excess of the amount, if any, to
which the right of recovery under this Guaranty is limited (which is hereby
expressly authorized); (e) any change in the Borrower’s name or the merger
of the Borrower into another corporation; or (f) any act of commission or
omission of any kind or at any time upon the part of the Bank with respect
to any matter whatsoever, other than the execution and delivery by the Bank to
the Guarantor of an express written release or cancellation of this Guaranty.
The Guarantor hereby consents to all acts of commission or omission of the Bank
set forth above and agrees that the standards of good faith, diligence,
reasonableness and care shall be measured, determined and governed solely by
the terms and provisions hereof.


 


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In order to hold the
Guarantor liable hereunder, there shall be no obligation on the part of
the Bank, at any time, to resort for payment from the Borrower or to anyone
else, or to any collateral, security, property, liens or other rights and
remedies whatsoever, all of which are hereby expressly waived by the Guarantor.


 


The Guarantor hereby expressly waives diligence in collection or
protection, presentment, demand or protest or in giving notice to anyone of the
protest, dishonor, default, or nonpayment or of the creation or existence of
any of the Guaranteed Debt or of any security or collateral therefor or of the
acceptance of this Guaranty or of extension of credit or indulgences hereunder
or of any other matters or things whatsoever relating hereto.


 


The Guarantor waives any and
all defenses, claims and discharges of the Borrower, or any other obligor,
pertaining to the Guaranteed Debt, except the defense of discharge by payment
in full. Without limiting the generality of the foregoing, the Guarantor will
not assert, plead or enforce against the Bank any defense of waiver, release,
discharge in bankruptcy, statute of limitations, res judicata, statute of
frauds, anti-deficiency statute, fraud, incapacity, minority, usury, illegality
or unenforceability which may be available to the Borrower or any other
person liable in respect of any of the Guaranteed Debt, or any setoff available
against the Bank to the Borrower or any such other person, whether or not on
account of a related transaction. The Guarantor expressly agrees that the
Guarantor shall be and remain liable for any deficiency remaining after
foreclosure of any mortgage or security interest securing the Guaranteed Debt,
whether or not the liability of the Borrower or any other obligor for such
deficiency is discharged pursuant to statute or judicial decision.


 


THE GUARANTOR WAIVES EVERY
DEFENSE, CAUSE OF ACTION, COUNTERCLAIM OR SETOFF WHICH THE GUARANTOR MAY NOW
HAVE OR HEREAFTER MAY HAVE TO ANY ACTION BY THE BANK IN ENFORCING THIS
GUARANTY. AS FURTHER SECURITY, ANY AND ALL DEBTS AND LIABILITIES NOW OR
HEREAFTER ARISING AND OWING TO THE GUARANTOR BY THE BORROWER, OR TO ANY OTHER
PARTY LIABLE TO THE BANK FOR THE GUARANTEED DEBT, ARE HEREBY SUBORDINATED TO
THE BANK’S CLAIMS AND ARE HEREBY ASSIGNED TO THE BANK. THE GUARANTOR HEREBY
AGREES THAT THE GUARANTOR MAY BE JOINED AS A PARTY DEFENDANT IN ANY LEGAL
PROCEEDING (INCLUDING, BUT NOT LIMITED TO, A FORECLOSURE PROCEEDING) INSTITUTED
BY THE BANK AGAINST THE BORROWER. THE GUARANTOR AND THE BANK, AFTER CONSULTING
OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, EACH KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE IRREVOCABLY THE RIGHT TO TRIAL BY JURY WITH RESPECT TO
ANY SUCH LEGAL PROCEEDING IN WHICH THE GUARANTOR AND THE BANK ARE ADVERSE
PARTIES. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE BANK GRANTING ANY
FINANCIAL ACCOMMODATION TO THE BORROWER AND ACCEPTING THIS GUARANTY.


 


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Should a claim (a “Repayment Claim”) be made upon
the Bank at any time for repayment of any amount received by the Bank in
payment of the Guaranteed Debt, or any part thereof, whether received from
the Borrower, the Guarantor pursuant hereto, or received by the Bank as the
proceeds of collateral, by reason of: (i) any judgment, decree or order of
any court or administrative body having jurisdiction over the Bank or any of
its property; or (ii) any settlement or compromise of any such Repayment
Claim effected by the Bank, in its sole discretion, with the claimant
(including the Borrower but not including any comprehensive voluntary written
settlement between the Bank and the Guarantor), the Guarantor shall remain
liable to the Bank for the amount so repaid to the same extent as if such
amount had never originally been received by the Bank, notwithstanding any
termination hereof or the cancellation of any note or other instrument
evidencing any of the Guaranteed Debt.


 


The Bank may, without notice
to anyone, sell or assign the Guaranteed Debt, or any part thereof, or
grant participations therein, and in any such event each and every immediate or
remote assignee or holder of, or participant in, all or any of the Guaranteed
Debt shall have the right to enforce this Guaranty, by suit or otherwise for
the benefit of such assignee, holder, or participant, as fully as if herein by
name specifically given such right herein, but the Bank shall have an
unimpaired right, prior and superior to that of any such assignee, holder or
participant, to enforce this Guaranty for the benefit of the Bank, as to any part of
the Guaranteed Debt retained by the Bank.


 


Unless and until all of the
Guaranteed Debt has been paid in full and each of the commitments by the Bank
to extend any Guaranteed Debt shall have expired or otherwise terminates, no
release or discharge of any other person, whether primarily or secondarily
liable for and obligated with respect to the Guaranteed Debt, or the
institution of bankruptcy, receivership, insolvency, reorganization,
dissolution or liquidation proceedings by or against the Guarantor or any other
person primarily or secondarily liable for and obligated with respect to the
Guaranteed Debt, or the entry of any restraining or other order in any such
proceedings, shall release or discharge the Guarantor, or any other guarantor
of the indebtedness, or any other person, firm or corporation liable to the Bank
for the Guaranteed Debt.


 


All references herein to the
Borrower and to the Guarantor, respectively, shall be deemed to include any
successors or assigns, whether immediate or remote, to such corporation.


 


This Guaranty has been
delivered to the Bank at its offices in Chicago, Illinois, and the rights,
remedies and liabilities of the parties shall be construed and determined in
accordance with the laws of the State of Illinois, in which State it shall be
performed by the Guarantor.


 


TO INDUCE THE BANK TO GRANT
FINANCIAL ACCOMMODATIONS TO THE BORROWER, THE GUARANTOR IRREVOCABLY AGREES THAT
ALL ACTIONS ARISING DIRECTLY OR INDIRECTLY AS A RESULT OR IN CONSEQUENCE OF
THIS GUARANTY SHALL BE INSTITUTED AND LITIGATED ONLY IN COURTS HAVING


 


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SITUS IN THE CITY OF CHICAGO, ILLINOIS. THE GUARANTOR HEREBY CONSENTS
TO THE EXCLUSIVE JURISDICTION AND VENUE OF ANY STATE OR FEDERAL COURT LOCATED
AND HAVING ITS SITUS IN CHICAGO, ILLINOIS, AND WAIVES ANY OBJECTION BASED ON
FORUM NON CONVENIENS. THE GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF ANY AND
ALL PROCESS, AND CONSENTS TO THE SERVICE OF PROCESS BY CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, DIRECTED TO THE GUARANTOR AT THE ADDRESS INDICATED IN THE
BANK’S RECORDS IN THE MANNER PROVIDED BY APPLICABLE STATUTE, LAW, RULE OF
COURT OR OTHERWISE. FURTHERMORE, THE GUARANTOR WAIVES ALL NOTICES AND DEMANDS
IN CONNECTION WITH THE ENFORCEMENT OF THE BANK’S RIGHTS HEREUNDER, AND HEREBY
CONSENTS TO, AND WAIVES NOTICE OF THE RELEASE, WITH OR WITHOUT CONSIDERATION,
OF THE BORROWER OR ANY OTHER PERSON RESPONSIBLE FOR PAYMENT OF THE GUARANTEED
DEBT, OR OF ANY COLLATERAL THEREFOR.


 


Wherever possible each provision of this Guaranty
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.


 


It is agreed that the Guarantor’s liability is
independent of any other guaranties at any time in effect with respect to all
or any part of the Guaranteed Debt, and that the Guarantor’s liability
hereunder may be enforced regardless of the existence of any such other
guaranties.


 


No delay on the part of the Bank in the
exercise of any right or remedy shall operate as a waiver thereof, and no
single or partial exercise by the Bank of any right or remedy shall preclude other
or further exercise thereof, or the exercise of any other right or remedy. No
modification, termination, discharge or waiver of any of the provisions hereof
shall be binding upon the Bank, except as expressly set forth in a writing duly
signed and delivered on behalf of the Bank.


 


The execution, delivery and performance of this
Guaranty by the Guarantor are within the corporate powers of the Guarantor,
have been duly authorized by all necessary corporate action on the part of
the Guarantor and do not and will not (i) require any consent or approval
of the board of directors of the Guarantor which has not been obtained, (ii) violate
any provision of the articles of incorporation or bylaws of the Guarantor or of
any law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award presently in effect having applicability to the
Guarantor; (iii) require the consent or approval of, or filing or
registration with, any governmental body, agency or authority, or (iv) result
in a breach of or constitute a default under, or result in the imposition of
any lien, charge or encumbrance upon any property of the Guarantor pursuant to,
any indenture or other agreement or instrument under which the Guarantor is a
party or by which it or any of its properties may be bound or affected.
The


 


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officer executing and delivering this Guarantor for and on behalf of
the Guarantor, is duly authorized to so act. The Bank, in extending financial
accommodations to the Borrower, is expressly acting and relying upon the
aforesaid representations and warranties.


 


This Guaranty: (i) is
valid, binding and enforceable in accordance with its provisions, and no
conditions exist to the legal effectiveness of this Guaranty as to the
Guarantor; (ii) contains the entire agreement between the Guarantor and
the Bank; (iii) is the final expression of their intentions; and (iv) supersedes
all negotiations, representations, warranties, commitments, offers, contracts
(of any kind or nature, whether oral or written) prior to or contemporaneous
with the execution hereof. No prior or contemporaneous representations,
warranties, understandings, offers or agreements of any kind or nature, whether
oral or written, have been made by the Bank or relied upon by the Guarantor in
connection with the execution hereof.


 


The term “Guarantor” as used
herein shall mean all parties signing this Guaranty, and the provisions hereof
shall be binding upon the Guarantor, and each one of them, and all such
parties, their respective successors and assigns shall be jointly and severally
obligated hereunder. This Guaranty shall inure to the benefit of the Bank and
its successors and assigns.


 


IN WITNESS WHEREOF, the
Guarantor has executed and delivered this Continuing Unconditional Guaranty as
of the date set forth above.


 


	
   

  	
  J.
  B. HUNT TRANSPORT, INC., a 

  Georgia corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Kirk
  Thompson

  
	
   

  	
  Name:

  	
   Kirk
  Thompson

  
	
   

  	
  Title:

  	
   Chief
  Executive Officer

  



 


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