FIRST SUPPLEMENTAL INDENTURE Dated as of September 20, 2010 Supplementing that Certain INDENTURE Dated as of September 20, 2010 Among J.B. HUNT TRANSPORT SERVICES, INC., as Issuer J.B. HUNT TRANSPORT, INC., as Guarantor and U.S. BANK NATIONAL ASSOCIATION, as Trustee 3.375% NOTES DUE 2015 TABLE OF CONTENTS

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FIRST SUPPLEMENTAL INDENTURE

 

Dated as of September 20, 2010

 

Supplementing that Certain

 

INDENTURE

 

Dated as of September 20, 2010

 

Among

 

J.B. HUNT TRANSPORT SERVICES, INC.,

as Issuer

 

J.B. HUNT TRANSPORT, INC.,

as Guarantor

 

and

 

U.S. BANK NATIONAL ASSOCIATION,

as Trustee

 

 

3.375% NOTES DUE 2015

 

 

 

 

 

FIRST SUPPLEMENTAL INDENTURE

 

This First Supplemental Indenture, dated as of September 20, 2010 (the “First Supplemental Indenture”), among J.B. Hunt Transport Services, Inc., a corporation duly organized and existing under the laws of the State of Arkansas (the “Company,” which term includes any successor Person under the Indenture hereinafter referred to), J.B. Hunt Transport, Inc., a corporation duly organized and existing under the laws of the State of Georgia (herein called the “Initial Guarantor”), and U.S. Bank National Association, a national banking association, as Trustee hereunder (herein called the “Trustee”), supplements that certain Indenture, dated as of September 20, 2010, among the Company, the Initial Guarantor and the Trustee (the “Indenture”).

 

RECITALS OF THE COMPANY

 

WHEREAS, the Company has duly authorized the execution and delivery of the Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness to be issued in one or more series as provided for in the Indenture;

 

WHEREAS, the Guarantor has duly authorized the execution and delivery of the Indenture in order to fully and unconditionally guarantee the Company’s obligations under the Indenture;

 

WHEREAS, the Indenture provides that the Securities shall be in the form as may be established by or pursuant to a Board Resolution and set forth in an Officers’ Certificate or as may be established in one or more supplemental indentures thereto, in each case with such appropriate insertions, omissions, substitutions, and other variations as are required or permitted by the Indenture; and

 

WHEREAS, the Company and the Trustee have agreed that the Company shall issue and deliver, and the Trustee shall authenticate, a series of Securities designated as the Company’s “3.375% Notes due 2015” (hereinafter called the “Notes”) pursuant to the terms of this First Supplemental Indenture and substantially in the form as herein set forth, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Indenture and this First Supplemental Indenture.

 

NOW, THEREFORE, for and in consideration of the premises stated herein and the purchase of the Notes by the Holders thereof, the parties hereto hereby enter into this First Supplemental Indenture, for the equal and proportionate benefit of all Holders of the Notes, as follows:

 

 

 

SECTION 1.1.

Certain Terms Defined in the Indenture.

 

For purposes of this First Supplemental Indenture, all capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture, as amended and supplemented hereby.

 

SECTION 1.2.

Definitions.

 

For the benefit of the Holders of the Notes, Section 1.1 of the Indenture shall be amended by adding or substituting, as applicable, the following new definitions:

 

“Bankruptcy Law” means title 11, U.S. Code or any similar foreign, Federal or State law for the relief of debtors.

 

“Business Day” means any day other than a Saturday, Sunday or other day on which banking institutions in The City of New York are authorized or obligated by law, regulation or executive order to close.

 

“Change of Control” means the occurrence of any of the following after the date of issuance of the Notes:

 

(1)

the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Company and its subsidiaries taken as a whole to any “person” or “group” (as those terms are used in Section 13(d)(3) of the Exchange Act) other than to the Company or one of its subsidiaries;

 

(2)

the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” or “group” (as those terms are used in Section 13(d)(3) of the Exchange Act) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of the Company’s Voting Stock representing more than 50% of the voting power of its outstanding Voting Stock;

 

(3)

the Company consolidates with, or merges with or into, any person (as that term is used in Section 13(d)(3) of the Exchange Act), or any person consolidates with, or merges with or into, the Company, in any such event pursuant to a transaction in which any of the Company’s outstanding Voting Stock or Voting Stock of such other person is converted into or exchanged for cash, securities or other property, other than any such transaction where the Company’s Voting Stock outstanding immediately prior to such transaction constitutes, or is converted into or exchanged for, Voting Stock representing more than 50% of the voting power of the Voting Stock of the surviving person immediately after giving effect to such transaction;

 

 

(4)

the first day on which a majority of the Company’s Board of Directors are not Continuing Directors; or

 

“Change of Control Triggering Event” means, with respect to the Notes, the Notes cease to be rated Investment Grade by each of the Rating Agencies on any date during the period (the “Trigger Period”) commencing 60 days prior to the first public announcement by the Company of any Change of Control (or pending Change of Control) and ending 60 days following consummation of such Change of Control (which Trigger Period will be extended following consummation of a Change of Control for so long as any Rating Agency has publicly announced that it is considering a possible ratings change).  For purposes of this definition and the application of the related provisions of Section 2.4,

 

(1)

if a Rating Agency is not providing a rating for the Notes at the commencement of any Trigger Period, the Notes will be deemed to have ceased to be rated Investment Grade by such Rating Agency during that Trigger Period, and

 

(2)

notwithstanding the foregoing provisions of this definition, no Change of Control Triggering Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.

 

“Comparable Treasury Issue” means the United States Treasury security selected by an Independent Investment Banker that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Notes.

 

“Comparable Treasury Price” means, with respect to any Redemption Date, (A) the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the Trustee obtains fewer than five such Reference Treasury Dealer Quotations, the average of all Reference Treasury Dealer Quotations obtained.

 

“Continuing Directors” means, as of any date of determination, any member of the Board of Directors of the Company who (1) was a member of the Board of Directors of the Company on the date of the prospectus and related prospectus supplement pursuant to which the Notes were offered; or (2) was nominated for election or elected to the Board of Directors of the Company with the approval of at least a majority of the Continuing Directors who were members of the Board of Directors of the Company at the time of such nomination or election (either by a specific vote or by approval of the Company’s proxy statement in which such member was named as a nominee for election as a director, without objection to such nomination).

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

“Existing Credit Facility” means that certain Senior Revolving Credit Facility Agreement, dated as of March 29, 2007, among the Company, the Initial Guarantor and the lenders and agents from time to time party thereto, as amended, restated, supplemented, replaced, refinanced or otherwise modified from time to time.

 

“Guarantor” means each of the Initial Guarantor and any Additional Guarantor as guarantor of the Notes.

 

“Global Notes” means, individually and collectively, each of the Notes in the form of global Securities issued to the Depositary or its nominee, substantially in the form of Exhibit A.

 

“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the Company.

 

“Investment Grade” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating category of Moody’s) and a rating of BBB- or better by S&P (or its equivalent under any successor rating category of S&P), and the equivalent investment grade credit rating from any replacement rating agency or rating agencies selected by the Company under the circumstances permitting the Company to select a replacement agency and in the manner for selecting a replacement agency, in each case as set forth in the definition of “Rating Agency.”

 

“Moody’s” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.

 

“Rating Agency” means each of Moody’s and S&P; provided, that if any of Moody’s or S&P ceases to provide rating services to issuers or investors, the Company may appoint another “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act as a replacement for such Rating Agency; provided, that the Company shall give written notice of such appointment to the Trustee.

 

“Reference Treasury Dealer” means each of Banc of America Securities LLC and Deutsche Bank Securities Inc. or their respective affiliates which are Primary Treasury Dealers and three other nationally recognized investment banking firms that are Primary Treasury Dealers specified from time to time by the Company, except that if any of the foregoing ceases to be a primary U.S. government securities dealer in the The City of New York (a “Primary Treasury Dealer”), the Company shall be required to designate as a substitute another nationally recognized investment banking firm, or an affiliate thereof, that is a Primary Treasury Dealer.

 

“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by the Reference Treasury Dealers at 3:30 p.m. New York City time on the third Business Day preceding such Redemption Date.

 

“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and its successors.

 

“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity (computed as of the second Business Day immediately preceding such Redemption Date) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.

 

“Voting Stock” of any specified person (as that term is used in Section 13(d) of the Exchange Act) as of any date means the capital stock of such person that, at such date, is entitled to vote generally in the election of the board of directors of such person.

 

 

SECTION 2.1.

Form and Dating.

 

The Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A attached hereto.  The Notes shall be executed on behalf of the Company by two of the officers of the Company specified in Section 303 of the Indenture.  The Notes may have notations, legends or endorsements required by law, stock exchange rules or usage.  Each Note shall be dated the date of its authentication.  The Notes and any beneficial interest in the Notes shall be in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.

 

The terms and notations contained in the Notes shall constitute, and are hereby expressly made, a part of the Indenture as supplemented by this First Supplemental Indenture and the Company and the Trustee, by their execution and delivery of this First Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby.

 

(a) Global Notes.  The Notes designated herein shall be issued initially in the form of one or more fully registered global Securities, which shall be deposited on behalf of the purchasers of the Notes represented thereby with The Depository Trust Company, New York, New York (the “Depositary”) and registered in the name of Cede & Co., the Depositary’s nominee, duly executed by the Company, authenticated by the Trustee and with Guarantees endorsed thereon as hereinafter provided.  The aggregate principal amount of outstanding Notes may from time to time be increased or decreased by adjustments made on the rec ords of the Trustee and the Depositary or its nominee as hereinafter provided.

 

The Global Notes may not be transferred except by the Depositary or its nominee, in whole and not in part, to another nominee of the Depositary or to a successor of the Depositary or its nominee.  Upon the occurrence of the events specified in Section 305 of the Indenture in relation thereto, the Company shall execute, and the Trustee shall, upon receipt of a Company Order for authentication, authenticate and deliver, Notes in definitive form in an aggregate principal amount equal to the principal amount of the Global Notes in exchange for such Global Note, which the Depositary will distribute to its participants.

 

(b) Book-Entry Provisions.  This Section 2.1(b) shall apply only to the Global Notes deposited with or on behalf of the Depositary.

 

The Company shall execute and the Trustee shall, in accordance with this Section 2.1(b), authenticate and deliver the Global Notes that shall be registered in the name of the Depositary or the nominee of the Depositary and shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions.

 

Participants of the Depositary shall have no rights either under the Indenture or with respect to any Global Notes held on their behalf by the Depositary or under such Global Notes.  The Depositary shall be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Note for all purposes under the Indenture.  Notwithstanding the foregoing, nothing herein shall prevent the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its participants, the operation of customary practices of such Depositary governing the exercise of the rights of an owner of a beneficial interest in the Global Notes.

 

(c) Definitive Notes.  Notes issued in certificated form shall be substantially in the form of Exhibit A attached hereto, but without including the text referred to therein as applying only to Global Notes.  Except as provided above in subsection (a), owners of beneficial interests in the Global Notes will not be entitled to receive physical delivery of certificated Notes.

 

(d) Transfer and Exchange of the Notes.  The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in accordance with the Indenture and the procedures of the Depositary therefor.  Beneficial interests in the Global Notes may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the Global Notes.

 

(e) Paying Agent.  The Company appoints the Trustee as the initial agent of the Company for the payment of the principal of (and premium, if any) and interest on the Notes and the Corporate Trust Office of the Trustee in the Borough of Manhattan, the City of New York, be and hereby is, designated as the office or agency where the Notes may be presented for payment and where notices to or demands upon the Company in respect of the Notes and the Indenture pursuant to which the Notes are to be issued may be served.

 

SECTION 2.2.

Certain Terms of the Notes.

 

The following terms relating to the Notes are hereby established:

 

(a) Title.  The Notes shall constitute a series of Securities having the title “3.375% Notes due 2015.”

 

(b) Principal Amount.  The aggregate principal amount of the Notes that may be initially authenticated and delivered under the Indenture (except for Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections 304, 305, 306, 905 or 1107 of the Indenture or upon repayment of Notes in part pursuant to Section 2.4 hereof) shall be $250,000,000.  The Company may from time to time, without notice to, or the consent of, the Holders of the Notes, issue and sell additional Securities (“Additional Secu rities”) ranking equally and ratably with the Notes in all respects (other than the issue price, the issue date and the payment of interest accruing prior to the issue date), provided that such Securities are fungible with the previously issued Notes for U.S. federal income tax purposes.  Any such Additional Securities shall be consolidated and form a single series with the Notes for all purposes under the Indenture, including voting.

 

(c) Maturity Date.  The entire outstanding principal of the Notes shall be payable on September 15, 2015.

 

(d) Interest Rate. The rate at which the Notes shall bear interest shall be 3.375% per annum; the date from which interest shall accrue on the Notes shall be September 20, 2010, or the most recent Interest Payment Date to which interest has been paid or provided for; the Interest Payment Dates for the Notes shall be March 15 and September 15 of each year, beginning March 15, 2011; the interest so payable, and punctually paid or duly provided for, on any Interest Payment Date, will be paid, in immediately available funds, to the Persons in whose names the Notes (or one or more Predecessor Secur ities) is registered at the close of business on the Regular Record Date for such interest, which shall be March 1 or September 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date.  Any such interest not punctually paid or duly provided for shall forthwith cease to be payable to the respective Holders on such Regular Record Date, and such defaulted interest may be paid to the Persons in whose names the Notes (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to Holders of Notes not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner not inconsistent with requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.  Payment o f principal of, and premium, if any, and interest on, the Notes will be made at the Corporate Trust Office of the Trustee or such other office or agency of the Company as may be designated for such purpose, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that each installment of interest, premium, if any, and principal on the Notes may at the Company’s option be paid in immediately available funds by transfer to an account maintained by the payee located in the United States.

 

(e)           Currency.  The currency of denomination of the Notes is United States Dollars.  Payment of principal of and interest and premium, if any, on the Notes will be made in United States Dollars.

 

SECTION 2.3.

Optional Redemption.

 

(a) The provisions of Article Eleven of the Indenture shall apply to the Notes.

 

 

(b) At any time and from time to time, the Notes will be redeemable, as a whole or in part, at the Company’s option, on not less than 30 nor more than 60 days’ prior written notice mailed to the registered address of each Holder of the Notes, at a Redemption Price equal to the greater of (i) 100% of principal amount of the Notes to be redeemed, or (ii) the sum of the present values of the remaining scheduled payments of principal and interest thereon that would be due after the related Redemption Date but for such redemption (exclusive of unpaid interest, if any, accrued to, but not including, the Redemption Date) discounted to such Redemption Date on a semiannual basis (assuming a 360-day year consis ting of twelve 30-day months) at the Treasury Rate plus 30 basis points, plus, in either case, unpaid interest, if any, accrued to, but not including, the Redemption Date, subject to the rights of Holders of Notes on a Regular Record Date to receive interest due on the related Interest Payment Date.

 

(c) On and after any Redemption Date for the Notes, interest will cease to accrue on the Notes or any portion thereof called for redemption, unless the Company defaults in the payment of the redemption price.  Prior to any Redemption Date for the Notes, the Company shall deposit with a Paying Agent, or the Trustee, funds sufficient to pay the Redemption Price of the Notes to be redeemed on such date.  If less than all of the Notes are to be redeemed, the Notes to be redeemed will be selected by the Trustee by such method as the Trustee deems fair and appropriate in accordance with methods generally used at the time of selection by fiduciaries in similar circumstances.

 

SECTION 2.4.

Repurchase of Notes Upon a Change of Control Trigger Event.

 

(a) Upon the occurrence of a Change of Control Triggering Event with respect to the Notes, each Holder of the Notes shall have the right to require the Company to purchase all or a portion of such Holder’s Notes pursuant to the offer required by this Section 2.4 (the “Change of Control Offer”), at a purchase price equal to 101% of the principal amount thereof plus unpaid interest, if any, accrued to the repurchase date (the “Change of Control Repurchase Price”), subject to the rights of Holders of the Notes on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date.

 

(b) Within 30 days following the date of the occurrence of the Change of Control Triggering Event, or, at the Company’s option, prior to any Change of Control but after the public announcement of the pending Change of Control, the Company shall send, by first class mail, a written notice to each Holder of the Notes, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall state, among other things, the repurchase date, which must be no earlier than 30 days nor later than 60 days from the date such notice is mailed, other than as may be required by law (the “Change of Control Repurchase Date”). Such notice, if mailed prior to the date of co nsummation of the Change of Control, shall state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Repurchase Date.

 

(c) On the Change of Control Repurchase Date, the Company shall, to the extent lawful:

 

(1) accept or cause a third party to accept for repurchase all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;

 

 

(3) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being repurchased and that all conditions precedent to the Change of Control Offer and to the repurchase by the Company of Notes pursuant to the Change of Control Offer have been complied with.

 

(d) The Company shall not be required to make a Change of Control Offer with respect to the Notes if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Company and such third party purchases all the Notes properly tendered and not withdrawn under its offer.

 

(e) The Company shall comply in all material respects with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder to the extent those securities laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any such securities laws or regulations conflict with the Change of Control Offer provisions of the Notes, the Company shall comply with those securities laws and regulations and shall not be deemed to have breached the Company’s obligations under the Change of Control Offer provisions of the Notes by virtue of any such conflict.

 

SECTION 2.5.

Limitation on Liens.

 

The provisions of Section 1008 are applicable to the Notes.

 

SECTION 2.6.

Limitation on Sale and Leaseback Transactions.

 

The provisions of Section 1009 are applicable to the Notes.

 

 

 

SECTION 3.1.

Applicability of Guarantee.

 

The provisions of Article Sixteen of the Indenture shall be applicable to the Notes.  The Initial Guarantor and, if required in accordance with the provisions of Section 3.2, any Additional Guarantors, shall guarantee the Notes on the terms set forth in Article Sixteen of the Indenture, subject to the provisions of this Article III.

 

 

SECTION 3.2.

Additional Guarantors.

 

(a) If, after the date of the Indenture, any Subsidiary of the Company that is not then a Guarantor guarantees, becomes a borrower or guarantor under, or grants any lien to secure any obligations pursuant to, the Existing Credit Facility, then in any such case such Subsidiary shall become a Guarantor (each such additional Guarantor, an “Additional Guarantor”) by executing a supplemental indenture and delivering it to the Trustee promptly (but in any event, within two Business Days of the date on which it guaranteed or incurred such indebtedness or granted such lien, as the case may be).

 

(b) Notwithstanding the preceding paragraph, any Guarantee by a Guarantor that was issued pursuant to this Section 3.2 solely as a result of its guarantee or incurrence of, or granting of a lien in respect of, any such indebtedness shall be automatically and unconditionally released upon the release or discharge of the guarantee that resulted in the creation of such Subsidiary’s Guarantee (or upon such Subsidiary ceasing to be a borrower or the release of liens granted by such Subsidiary, as the case may be), except a discharge or release as a result of payment under such guarantee, or of the refinancing or replacement of any such indebtedness that is guaranteed or incurred by such Guarantor.