================================================================================
RECEIVABLES SALE AGREEMENT
DATED AS OF DECEMBER 30, 1999
AMONG
SWIFT RECEIVABLES CORPORATION,
AS THE SELLER,
SWIFT TRANSPORTATION CORPORATION,
AS THE INITIAL COLLECTION AGENT,
ABN AMRO BANK N.V.,
AS THE AGENT,
THE LIQUIDITY PROVIDERS
FROM TIME TO TIME PARTY HERETO,
ABN AMRO BANK N.V.,
AS THE ENHANCER,
AND
AMSTERDAM FUNDING CORPORATION
================================================================================
TABLE OF CONTENTS
PAGE
ARTICLE I PURCHASES FROM SELLER AND SETTLEMENTS................ 1
Section 1.1. Sales................................................ 1
Section 1.2. Interim Liquidations................................. 3
Section 1.3. Selection of Discount Rates and Tranche Periods...... 3
Section 1.4. Fees and Other Costs and Expenses.................... 4
Section 1.5. Maintenance of Sold Interest; Deemed Collection...... 5
Section 1.6. Reduction in Commitments............................. 6
Section 1.7. Optional Repurchases................................. 6
Section 1.8. Assignment of Purchase Agreement..................... 6
ARTICLE II SALES TO AND FROM AMSTERDAM; ALLOCATIONS............. 7
Section 2.1. Required Purchases from Amsterdam.................... 7
Section 2.2. Purchases by Amsterdam............................... 7
Section 2.3. Allocations and Distributions........................ 7
ARTICLE III ADMINISTRATION AND COLLECTIONS....................... 9
Section 3.1. Appointment of Collection Agent...................... 9
Section 3.2. Duties of Collection Agent........................... 10
Section 3.3. Reports.............................................. 10
Section 3.4. Lock-Box Arrangements................................ 11
Section 3.5. Enforcement Rights................................... 11
Section 3.6. Collection Agent Fee................................. 11
Section 3.7. Responsibilities of the Seller....................... 12
Section 3.8. Actions by Seller.................................... 12
Section 3.9. Indemnities by the Collection Agent.................. 12
ARTICLE IV REPRESENTATIONS AND WARRANTIES....................... 13
Section 4.1. Representations and Warranties....................... 13
ARTICLE V COVENANTS............................................ 15
Section 5.1. Covenants of the Seller.............................. 15
ARTICLE VI INDEMNIFICATION...................................... 19
Section 6.1. Indemnities by the Seller............................ 19
Section 6.2. Increased Cost and Reduced Return.................... 21
Section 6.3. Other Costs and Expenses............................. 22
Section 6.4. Withholding Taxes.................................... 22
Section 6.5. Payments and Allocations............................. 22
-i-
ARTICLE VII CONDITIONS PRECEDENT................................. 23
Section 7.1. Conditions to Closing................................ 23
Section 7.2. Conditions to Each Purchase.......................... 23
ARTICLE VIII THE AGENT............................................ 24
Section 8.1. Appointment and Authorization........................ 24
Section 8.2. Delegation of Duties................................. 24
Section 8.3. Exculpatory Provisions............................... 25
Section 8.4. Reliance by Agent.................................... 25
Section 8.5. Assumed Payments..................................... 25
Section 8.6. Notice of Termination Events......................... 25
Section 8.7. Non-Reliance on Agent and Other Purchasers........... 26
Section 8.8. Agent and Affiliates................................. 26
Section 8.9. Indemnification...................................... 26
Section 8.10. Successor Agent...................................... 26
ARTICLE IX MISCELLANEOUS........................................ 27
Section 9.1. Termination.......................................... 27
Section 9.2. Notices.............................................. 27
Section 9.3. Payments and Computations............................ 27
Section 9.4. Sharing of Recoveries................................ 28
Section 9.5. Right of Setoff...................................... 28
Section 9.6. Amendments........................................... 28
Section 9.7. Waivers.............................................. 29
Section 9.8. Successors and Assigns; Participations; Assignments.. 29
Section 9.9. Intended Tax Characterization........................ 31
Section 9.10. Confidentiality...................................... 31
Section 9.11. Agreement Not to Petition............................ 31
Section 9.12. Excess Funds......................................... 32
Section 9.13. No Recourse.......................................... 32
Section 9.14. Headings; Counterparts............................... 32
Section 9.15. Cumulative Rights and Severability................... 32
Section 9.16. Governing Law; Submission to Jurisdiction............ 32
Section 9.17. WAIVER OF TRIAL BY JURY.............................. 33
Section 9.18. Entire Agreement..................................... 33
-ii-
SCHEDULES DESCRIPTION
- --------- -----------
Schedule I Definitions
Schedule II Liquidity Providers and Commitments of Committed Purchasers
EXHIBITS DESCRIPTION
- -------- -----------
Exhibit A Form of Incremental Purchase Request
Exhibit B Form of Notification of Assignment to Amsterdam from the
Committed Purchasers
Exhibit C Form of Periodic Report
Exhibit D Addresses and Names of Seller and Originator
Exhibit E Subsidiaries
Exhibit F Lock-Boxes and Lock-Box Banks
Exhibit G Form of Lock-Box Letter
Exhibit H Compliance Certificate
Exhibit I Credit and Collection Policy
-iii-
RECEIVABLES SALE AGREEMENT
RECEIVABLES SALE AGREEMENT, dated as of December 30, 1999, among Swift
Receivables Corporation, a Delaware corporation, as Seller (the "SELLER"), Swift
Transportation Corporation, a Nevada corporation, as initial Collection Agent
(the "INITIAL COLLECTION AGENT," and, together with any successor thereto, the
"COLLECTION AGENT"), ABN AMRO Bank N.V., as agent for the Purchasers (the
"AGENT"), the liquidity providers party hereto (the "LIQUIDITY PROVIDERS"), ABN
AMRO Bank N.V., as provider of the Program LOC (the "ENHANCER"), and Amsterdam
Funding Corporation ("AMSTERDAM"). Certain capitalized terms used herein, and
certain rules of construction, are defined in Schedule I. The sole initial
Liquidity Provider and the Commitments of all Committed Purchasers are listed on
Schedule II.
The parties hereto agree as follows:
ARTICLE I
PURCHASES FROM SELLER AND SETTLEMENTS
SECTION 1.1. SALES.
(a) THE SOLD INTEREST. Subject to the terms and conditions hereof, the
Seller may, from time to time before the Liquidity Termination Date, sell to
Amsterdam or, only if Amsterdam declines to make the applicable purchase,
ratably to the Committed Purchasers an undivided percentage ownership interest
in the Receivables, the Related Security and all related Collections. Any such
purchase (a "PURCHASE") shall be made by each relevant Purchaser remitting funds
to the Seller, through the Agent, pursuant to Section 1.1(c) or by the
Collection Agent remitting Collections to the Seller pursuant to Section 1.1(d).
The aggregate percentage ownership interest so acquired by a Purchaser in the
Receivables, the Related Security and related Collections (its "PURCHASE
Interest") shall equal at any time the following quotient:
I
------ + PRP
ER
where:
I = the outstanding Investment of such Purchaser at such time;
ER = the Eligible Receivables Balance at such time; and
PRP = the Purchaser Reserve Percentage at such time.
Except during a Liquidation Period for a Purchaser, such Purchaser's Purchase
Interest will change whenever its Investment, its Purchaser Reserve Percentage
or the Eligible Receivables Balance changes. During a Liquidation Period for a
Purchaser its Purchase Interest shall remain constant, except for
redeterminations to reflect Investment acquired from or transferred to another
Purchaser under the Transfer Agreement. The sum of all Purchasers' Purchase
Interests at any time is referred to herein as the "SOLD INTEREST", which at any
time is the aggregate percentage ownership interest then held by the Purchasers
in the Receivables, the Related Security and Collections.
(b) AMSTERDAM PURCHASE OPTION AND OTHER PURCHASERS' COMMITMENTS. Subject to
Section 1.1(d) concerning Reinvestment Purchases, at no time will Amsterdam have
any obligation to make a Purchase. Each Liquidity Provider and the Enhancer
(together the "COMMITTED PURCHASERS" and each a "COMMITTED PURCHASER") severally
hereby agrees, subject to Section 7.2 and the other terms and conditions hereof
(including, in the case of an Incremental Purchase (as defined below), the
condition that Amsterdam has refused to make a requested Purchase), to make
Purchases before the Liquidity Termination Date, based on its Ratable Share of
each Purchase by the Committed Purchasers, to the extent its Investment would
not thereby exceed its Commitment, the Aggregate Investment would not thereby
exceed the Purchase Limit, and the Matured Aggregate Investment would not
thereby exceed the Aggregate Commitments. Each Purchaser's first Purchase and
each additional Purchase by such Purchaser not made from Collections pursuant to
Section 1.1(d) is referred to herein as an "INCREMENTAL PURCHASE." Each Purchase
made by a Purchaser with the proceeds of Collections in which it has a Purchase
Interest, which does not increase the outstanding Investment of such Purchaser,
is referred to herein as a "REINVESTMENT PURCHASE."
(c) INCREMENTAL PURCHASES. In order to request an Incremental Purchase from
a Purchaser, the Seller must provide to the Agent an irrevocable written request
(including by telecopier or other facsimile communication) substantially in the
form of Exhibit A, by 10:00 a.m. (Chicago time) three Business Days before the
requested date (the "PURCHASE DATE") of such Purchase, specifying the requested
Purchase Date (which must be a Business Day) and the requested amount (the
"PURCHASE AMOUNT") of such Purchase, which must be in a minimum amount of
$1,000,000 and multiples thereof (or, if less, an amount equal to the Maximum
Incremental Purchase Amount). An Incremental Purchase may only be requested from
Amsterdam unless Amsterdam, in its sole discretion, determines not to make such
Incremental Purchase, in which case the Seller may request such Incremental
Purchase from the Committed Purchasers. The Agent shall promptly notify the
contents of any such request to each Purchaser from which the Purchase is
requested. If Amsterdam determines, in its sole discretion, to make the
requested Purchase, Amsterdam shall transfer to the Agent's Account the amount
of such Incremental Purchase on the requested Purchase Date. If Amsterdam
refuses to make a requested Purchase and the Seller requests the Incremental
Purchase from the Committed Purchasers three Business Days before such requested
Purchase (which such request may only be made on and after January 3, 2000),
subject to Section 7.2 and the other terms and conditions hereof, each Committed
Purchaser shall transfer its Ratable Share of the requested Purchase Amount into
the Agent's Account by no later than 11:00 a.m. (Chicago time) on the Purchase
Date (which in no event will be earlier than three Business Days after such
request is made to the Committed Purchasers). The Agent shall transfer to the
Seller Account prior to 1:00 p.m. on such day the proceeds of any Incremental
Purchase to the extent of funds actually received by the Agent in the Agent's
Account prior to 11:00 a.m. on such day. Notwithstanding anything in this
-2-
Agreement to the contrary, the Committed Purchasers shall have no Commitment to
make an Incremental Purchase prior to January 3, 2000.
(d) REINVESTMENT PURCHASES. Unless Amsterdam has provided to the Agent, the
Seller, and the Collection Agent a notice (which notice has not been revoked)
that it no longer wishes to make Reinvestment Purchases (in which case
Amsterdam's Reinvestment Purchases, but not those of the Committed Purchasers,
shall cease), on each day before the Liquidity Termination Date that any
Collections are received by the Collection Agent and no Interim Liquidation is
in effect a Purchaser's Purchase Interest in such Collections shall
automatically be used to make a Reinvestment Purchase by such Purchaser.
Amsterdam may revoke any notice provided under the first sentence of this
Section 1.1(d) by notifying the Agent, the Seller, and the Collection Agent that
it will make Reinvestment Purchases.
(e) SECURITY INTEREST. To secure all of the Seller's obligations under the
Transaction Documents, the Seller hereby grants to the Agent (for the benefit of
the Purchasers and any other Person to whom any amount is owed hereunder) a
security interest in all of the Seller's rights in the Receivables, the Related
Security, the Collections, and the Lock- Box Accounts and all proceeds of the
foregoing. The security interest granted hereunder shall terminate on the date
the Aggregate Investment is reduced to zero, all other amounts owing the Agent
and the Purchasers have been paid in full and the Commitments shall have
terminated.
SECTION 1.2. INTERIM LIQUIDATIONS. (a) OPTIONAL. The Seller may at any time
direct that Reinvestment Purchases cease and that an Interim Liquidation
commence for all Purchasers by giving the Agent and the Collection Agent at
least three Business Days' prior written (including telecopy or other facsimile
communication) notice specifying the date on which the Interim Liquidation shall
commence and, if desired, when such Interim Liquidation shall cease (identified
as a specific date prior to the Liquidity Termination Date or as when the
Aggregate Investment is reduced to a specified amount). If the Seller does not
so specify the date on which an Interim Liquidation shall cease, it may cause
such Interim Liquidation to cease at any time before the Liquidity Termination
Date, subject to Section 1.2(b) below, by notifying the Agent and the Collection
Agent in writing (including by telecopy or other facsimile communication) at
least three Business Days before the date on which it desires such Interim
Liquidation to cease.
(b) MANDATORY. If at any time before the Liquidity Termination Date any
condition in Section 7.2 is not fulfilled, the Seller shall immediately notify
the Agent and the Collection Agent, whereupon Reinvestment Purchases shall cease
and an Interim Liquidation shall commence, which shall cease only upon the
Seller confirming to the Agent that the conditions in Section 7.2 are fulfilled.
SECTION 1.3. SELECTION OF DISCOUNT RATES AND TRANCHE PERIODS. (a)(1) The
provisions of this subsection (a)(1) shall apply to all Investment of Amsterdam
funded with commercial paper issued on or before February 1, 2000: All such
Investment shall be allocated to one or more Tranches reflecting the Discount
Rates at which such Investment accrues Discount and the Tranche Periods for
which such Discount Rates apply. All such Investment of Amsterdam shall accrue
Discount at the CP Rate. All CP Discount accrued during a Tranche Period shall
be payable by the Seller on the last day of such Tranche Period; (2) The
provisions of this subsection (a)(2) shall apply to all Investment of Amsterdam
-3-
funded with commercial paper issued after February 1, 2000: The Seller shall pay
Funding Charges with respect to Amsterdam's Purchase Interest for each day that
any Investment in respect of such Purchase Interest is outstanding. Each such
Purchase Interest will accrue Funding Charges each day based on the Pooled
Allocation. On each Settlement Date the Seller shall pay to the Agent (for the
benefit of Amsterdam) an aggregate amount equal to all accrued and unpaid
Funding Charges in respect of such Purchase Interest for the immediately
preceding Discount Period; (3) All Investment of the Committed Purchasers shall
be allocated to one or more Tranches reflecting the Discount Rates at which such
Investment accrues Discount and the Tranche Periods for which such Discount
Rates apply. In each request for an Incremental Purchase from a Committed
Purchaser and three Business Days before the expiration of any Tranche Period
applicable to any Committed Purchaser's Investment, the Seller may request the
Tranche Period(s) to be applicable to such Investment and the Discount Rate(s)
applicable thereto. All Investment of the Committed Purchasers may accrue
Discount at either the Eurodollar Rate or the Prime Rate, in all cases as
established for each Tranche Period applicable to such Investment. Any
Investment of the Committed Purchasers not allocated to a Tranche Period shall
be a Prime Tranche. During the pendency of a Termination Event, the Agent may
reallocate any outstanding Investment of the Committed Purchasers to a Prime
Tranche. All Discount accrued on the Investment of the Committed Purchasers
during a Tranche Period shall be payable by the Seller on the last day of such
Tranche Period or, for a Eurodollar Tranche with a Tranche Period of more than
three months, 90 days after the commencement, and on the last day, of such
Tranche Period.
(b) The Agent shall allocate the Investment of Amsterdam to Tranche Periods
in its sole discretion. If, by the time required in Section 1.3(a), the Seller
fails to select a Discount Rate or Tranche Period for any Investment of the
Committed Purchasers, such amount of Investment shall automatically accrue
Discount at the Prime Rate for a three Business Day Tranche Period. Any
Investment purchased from Amsterdam pursuant to the Transfer Agreement shall
accrue interest at the Prime Rate and have an initial Tranche Period of three
Business Days.
(c) If the Agent or any Committed Purchaser determines (i) that maintenance
of any Eurodollar Tranche would violate any applicable law or regulation, (ii)
that deposits of a type and maturity appropriate to match fund any of such
Purchaser's Eurodollar Tranches are not available or (iii) that the maintenance
of any Eurodollar Tranche will not adequately and fairly reflect the cost of
such Purchaser of funding Eurodollar Tranches, then the Agent, upon the
direction of such Purchaser, shall suspend the availability of, and terminate
any outstanding, Eurodollar Tranche so affected. All Investment allocated to any
such terminated Eurodollar Tranche shall be reallocated to a Prime Tranche.
SECTION 1.4. FEES AND OTHER COSTS AND EXPENSES. (a) The Seller shall pay to
the Agent (i) for the ratable benefit of the Liquidity Providers, such amounts
as agreed to with the Liquidity Providers and the Agent in the Pricing Letter,
and (ii) for the account of the Enhancer and the Agent, such amounts as agreed
to with the Enhancer and the Agent in the Fee Letter.
(b) If (i) with respect to any Investment of Amsterdam, the amount of
Amsterdam's Investment is reduced on any date other than the last day of a CP
Tranche, (ii) the amount of Investment allocated to any Eurodollar Tranche is
-4-
reduced before the last day of its Tranche Period or (iii) if a requested
Incremental Purchase at the Eurodollar Rate does not take place on its scheduled
Purchase Date, the Seller shall pay the Early Payment Fee to each Purchaser that
had its Investment so reduced or scheduled Purchase not made; PROVIDED THAT at
any time the Purchased Interest accrues Funding Charges based on Pooled
Allocation no such Early Payment Fee shall be payable upon the reduction of
Amsterdam's Investment on any date other than the last day of a CP Tranche with
respect to up to $25,000,000 of Investment if the Seller shall have notified the
Agent of its intention to so reduce the outstanding Investment by 10:00 a.m. two
(2) Business Days prior to the date of such reduction.
(c) Investment shall be payable solely from Collections and from amounts
payable under Sections 1.5, 1.7 and 6.1 (to the extent amounts paid under
Section 6.1 indemnify against reductions in or non-payment of Receivables). The
Seller shall pay, as a full recourse obligation, all amounts payable pursuant to
Sections 1.5, 1.7 and 6.1 and all other amounts payable hereunder (other than
Investment), including, without limitation, all Discount, fees described in
clauses (a) and (b) above and amounts payable under Article VI.
SECTION 1.5. MAINTENANCE OF SOLD INTEREST; DEEMED COLLECTION. (a) GENERAL.
If at any time before the Liquidity Termination Date the Eligible Receivables
Balance is less than the sum of the Aggregate Investment (or, if a Termination
Event exists, the Matured Aggregate Investment) plus the Aggregate Reserve, the
Seller shall pay to the Agent an amount equal to such deficiency for application
to reduce the Investments of the Purchasers ratably in accordance with the
principal amount of their respective Investments, applied FIRST to Prime
Tranches and SECOND to the other Tranches with the shortest remaining maturities
unless otherwise specified by the Seller. Any amount so applied to reduce
Amsterdam's Investment shall be deposited in the Special Transaction Subaccount.
Unless the Agent otherwise requires, prior to the Liquidity Termination Date
payment obligations for any day under this Section 1.5(a) shall only be payable
on the Settlement Date occurring in the next succeeding calendar month.
(b) DEEMED COLLECTIONS. If on any day the outstanding balance of a
Receivable is reduced or cancelled as a result of any defective or rejected
goods or services, any cash discount or adjustment (including any adjustment
resulting from the application of any special refund or other discounts or any
reconciliation), any setoff or credit (whether such claim or credit arises out
of the same, a related, or an unrelated transaction) or other similar reason not
arising from the financial inability of the Obligor to pay undisputed
indebtedness, the Seller shall be deemed to have received on such day a
Collection on such Receivable in the amount of such reduction or cancellation.
If on any day any representation, warranty, covenant or other agreement of the
Seller related to a Receivable is not true or is not satisfied, the Seller shall
be deemed to have received on such day a Collection in the amount of the
outstanding balance of such Receivable. Subject to Section 1.5(c), all such
Collections deemed received by the Seller under this Section 1.5(b) shall be
remitted by the Seller to the Collection Agent in accordance with Section
5.1(i). Unless the Agent otherwise requires, prior to the Liquidity Termination
Date payment obligations for any day under this Section 1.5(b) shall only be
payable on the Settlement Date occurring in the next succeeding calendar month.
-5-
(c) ADJUSTMENT TO SOLD INTEREST. At any time before the Liquidity
Termination Date that the Seller is deemed to have received any Collection under
Section 1.5(b) ("DEEMED COLLECTIONS") that derive from a Receivable that is
otherwise reported as an Eligible Receivable, so long as no Liquidation Period
then exists, the Seller may satisfy its obligation to deliver such amount to the
Collection Agent by instead notifying the Agent that the Sold Interest should be
recalculated by decreasing the Eligible Receivables Balance by the amount of
such Deemed Collections, so long as such adjustment does not cause the Sold
Interest to exceed 100%.
(d) PAYMENT ASSUMPTION. Unless an Obligor otherwise specifies or another
application is required by contract or law, any payment received by the Seller
from any Obligor shall be applied as a Collection of Receivables of such Obligor
(starting with the oldest such Receivable) and remitted to the Collection Agent
as such.
SECTION 1.6. REDUCTION IN COMMITMENTS. The Seller may, upon thirty days'
notice to the Agent, reduce the Aggregate Commitment in increments of
$1,000,000, so long as the Aggregate Commitment as so reduced equals at least
the outstanding Matured Aggregate Investment. Each such reduction in the
Aggregate Commitment shall reduce the Commitment of each Committed Purchaser in
accordance with its Ratable Share and shall ratably reduce the Purchase Limit so
that the Aggregate Commitment remains at least 102% of the Purchase Limit and
the Purchase Limit is not less than the outstanding Aggregate Investment.
SECTION 1.7. OPTIONAL REPURCHASES. Upon two Business Days' notice to the
Agent, the Seller may repurchase the entire Sold Interest from the Purchasers at
a price equal to the outstanding Matured Aggregate Investment and all other
amounts then owed hereunder.
SECTION 1.8. ASSIGNMENT OF PURCHASE AGREEMENT. The Seller hereby assigns
and otherwise transfers to the Agent (for the benefit of the Agent, each
Purchaser and any other Person to whom any amount is owed hereunder), all of the
Seller's right, title and interest in, to and under the Purchase Agreement. The
Seller shall execute, file and record all financing statements, continuation
statements and other documents required to perfect or protect such assignment.
This assignment includes (a) all monies due and to become due to the Seller from
the Originator or the Parent under or in connection with the Purchase Agreement
(including fees, expenses, costs, indemnities and damages for the breach of any
obligation or representation related to such agreement) and (b) all rights,
remedies, powers, privileges and claims of the Seller against the Originator or
the Parent under or in connection with the Purchase Agreement. All provisions of
the Purchase Agreement shall inure to the benefit of, and may be relied upon by,
the Agent, each Purchaser and each such other Person. At any time that a
Termination Event has occurred and is continuing, the Agent shall have the sole
right to enforce the Seller's rights and remedies under the Purchase Agreement
to the same extent as the Seller could absent this assignment, but without any
obligation on the part of the Agent, any Purchaser or any other such Person to
perform any of the obligations of the Seller under the Purchase Agreement (or
the promissory note executed thereunder). All amounts distributed to the Seller
under the Purchase Agreement from Receivables sold to the Seller thereunder
shall constitute Collections hereunder and shall be applied in accordance
herewith.
-6-
ARTICLE II
SALES TO AND FROM AMSTERDAM; ALLOCATIONS
SECTION 2.1. REQUIRED PURCHASES FROM AMSTERDAM. (a) Amsterdam may, at any
time, and on the earlier of the Amsterdam Termination Date and ten Business Days
following the Agent and Amsterdam learning of a continuing Termination Event,
Amsterdam shall, sell to the Committed Purchasers pursuant to the Transfer
Agreement any percentage designated by Amsterdam of Amsterdam's Investment and
its related Amsterdam Settlement (each, a "PUT").
(b) Any portion of Amsterdam's Investment and related Amsterdam Settlement
purchased by a Committed Purchaser shall be considered part of such Purchaser's
Investment and related Amsterdam Settlement from the date of the relevant Put.
Immediately upon any purchase by the Committed Purchasers of any portion of
Amsterdam's Investment, the Seller shall pay to the Agent (for the ratable
benefit of such Purchasers) an amount equal to the sum of (i) the Assigned
Amsterdam Settlement and (ii) all unpaid Discount owed to Amsterdam (whether or
not then due) to the end of each applicable Tranche Period to which any
Investment being Put has been allocated, (iii) all accrued but unpaid fees
(whether or not then due) payable to Amsterdam in connection herewith at the
time of such purchase and (iv) all accrued and unpaid costs, expenses and
indemnities due to Amsterdam from the Seller in connection herewith.
(c) The proceeds from each Put received by Amsterdam (other than amounts
described in clauses (iii) and (iv) of the preceding sentence), shall be
transferred into the Special Transaction Subaccount and used solely to pay that
portion of the outstanding commercial paper of Amsterdam issued to fund or
maintain the Investment of Amsterdam so transferred. Until used to pay
commercial paper, all proceeds of any Put pursuant to this Section shall be
invested in Permitted Investments. All earnings on such Permitted Investments
shall be promptly remitted to the Seller.
SECTION 2.2. PURCHASES BY AMSTERDAM. Amsterdam may at any time deliver to
the Agent and each Committed Purchaser a notification of assignment in
substantially the form of Exhibit A to the Transfer Agreement. If Amsterdam
delivers such notice, each Committed Purchaser shall sell to Amsterdam and
Amsterdam shall purchase in full from each Committed Purchaser, the Investment
of the Committed Purchasers on the last day of the relevant Tranche Periods, at
a purchase price equal to such Investment plus accrued and unpaid Discount
thereon. Any sale from any Committed Purchaser to Amsterdam pursuant to this
Section 2.2 shall be without recourse, representation or warranty except for the
representation and warranty that the Investment sold by such Committed Purchaser
is free and clear of any Adverse Claim created or granted by such Committed
Purchaser and that such Purchaser has not suffered a Bankruptcy Event.
SECTION 2.3. ALLOCATIONS AND DISTRIBUTIONS.
(a) AMSTERDAM TERMINATION AND NON-REINVESTMENT PERIODS. Before the
Liquidity Termination Date unless an Interim Liquidation is in effect, during a
period that Amsterdam has an outstanding Investment and is not making
Reinvestment Purchases (as established under Section 1.1(d)) and at all times on
-7-
and after the Amsterdam Termination Date, the Collection Agent (i) shall
separately account for and thereby be deemed to set aside and hold solely for
the benefit of Amsterdam (or deliver to the Agent, if so instructed pursuant to
Section 3.2(a)) Amsterdam's Purchase Interest in all Collections received during
such period and (ii) shall distribute on the last day of each CP Tranche Period
to the Agent (for the benefit of Amsterdam) the amounts so separately accounted
for and deemed set aside up to the amount of Amsterdam's Investment allocated to
such Tranche Period and, to the extent not already paid in full, all Discount
thereon and all other amounts then due from the Seller in connection with such
Investment and Tranche Period. The Collection Agent need only report such
amounts separately accounted for and deemed set aside on the Periodic Reports
delivered pursuant to Section 3.3. As provided in Section 1.4(c) all Discount
and other amounts payable hereunder other than Investment are payable by the
Seller. If any part of the Sold Interest in any Collections is applied to pay
any such amounts pursuant to this Section 2.3(a) and after giving effect to such
application the Sold Interest is greater than 100%, the Seller shall pay to the
Collection Agent the amount so applied to the extent necessary so that after
giving effect to such payment the Sold Interest is no greater than 100%, for
distribution as part of the Sold Interest in Collections.
(b) LIQUIDITY TERMINATION DATE AND INTERIM LIQUIDATIONS. During any Interim
Liquidation and on each day on and after the Liquidity Termination Date the
Collection Agent shall separately account for and thereby be deemed to set aside
and hold solely for the account of the Agent, for the benefit of the Purchasers,
(or deliver to the Agent, if so instructed pursuant to Section 3.2(a)) the Sold
Interest in all Collections so received and such Collections shall be allocated
as follows:
(i) FIRST, only so long as (A) the sum of the Matured Value of
Amsterdam's Investment, the Matured Value of each Liquidity Provider's
Investment, and the Enhancer's Investment is less than (B) the product of
the Sold Interest multiplied by the Eligible Receivables Balance, to the
payment of all Discount then due but not already paid to the Enhancer;
(ii) SECOND, to Amsterdam and to the Liquidity Providers (ratably,
based on the Matured Value of their respective Investments) until all
Investment of, and Discount due but not already paid to, the Liquidity
Providers and Amsterdam have been paid in full;
(iii) THIRD, to the Enhancer until all Investment of, and Discount due
but not already paid to, the Enhancer have been paid in full;
(iv) FOURTH, to the Purchasers until all other amounts owed to the
Purchasers have been paid in full;
(v) FIFTH, to the Agent until all amounts owed to the Agent have been
paid in full;
(vi) SIXTH, to any other Person to whom any amounts are owed under the
Transaction Documents until all such amounts have been paid in full; and
-8-
(vii) SEVENTH, to the Seller (or as otherwise required by applicable
law).
Unless an Interim Liquidation has ended by such date (in which case Reinvestment
Purchases shall resume to the extent provided in Section 1.1(d)), on the last
day of each Tranche Period (unless otherwise instructed by the Agent pursuant to
Section 3.2(a)), the Collection Agent shall deposit into the Agent's Account,
from such separately accounted for and deemed set aside Collections, all amounts
allocated to such Tranche Period and all Tranche Periods that ended before such
date that are due in accordance with the priorities in clauses (i)-(iii) above.
No distributions shall be made to pay amounts under clauses (iv) - (vii) until
sufficient Collections have been separately accounted for and deemed set aside
to pay all amounts described in clauses (i) - (iii) that may become payable for
all outstanding Tranche Periods. All distributions by the Agent shall be made
ratably within each priority level in accordance with the respective amounts
then due each Person included in such level unless otherwise agreed by the Agent
and all Purchasers. As provided in Section 1.4(c) all Discount and other amounts
payable hereunder other than Investment are payable by the Seller. If any part
of the Sold Interest in any Collections is applied to pay any such amounts
pursuant to this Section 2.3(b) and after giving effect to such application the
Sold Interest is greater than 100%, the Seller shall pay to the Collection Agent
the amount so applied to the extent necessary so that after giving effect to
such payment the Sold Interest is no greater than 100%, for distribution as part
of the Sold Interest in Collections.
ARTICLE III
ADMINISTRATION AND COLLECTIONS
SECTION 3.1. APPOINTMENT OF COLLECTION AGENT. (a) The servicing,
administering and collecting of the Receivables shall be conducted by a Person
(the "COLLECTION AGENT") designated to so act on behalf of the Purchasers under
this Article III. As the Initial Collection Agent, the Originator is hereby
designated as, and agrees to perform the duties and obligations of, the
Collection Agent. The Originator acknowledges that the Agent and each Purchaser
have relied on the Originator's agreement to act as Collection Agent (and the
agreement of any of the sub-collection agents to so act) in making the decision
to execute and deliver this Agreement and agrees that it will not voluntarily
resign as Collection Agent nor permit any sub-collection agent to voluntarily
resign as a sub-collection agent. At any time after the occurrence of a
Collection Agent Replacement Event, the Agent may designate a new Collection
Agent to succeed the Originator (or any successor Collection Agent).
(b) The Originator may, and if requested by the Agent shall, delegate its
duties and obligations as Collection Agent to the Parent or other Affiliate
(acting as a sub-collection agent). Notwithstanding such delegation, the
Originator shall remain primarily liable for the performance of the duties and
obligations so delegated, and the Agent and each Purchaser shall have the right
to look solely to the Originator for such performance. The Agent may at any time
after the occurrence of a Collection Agent Replacement Event remove or replace
any sub-collection agent.
(c) If replaced, the Collection Agent agrees it will terminate, and will
cause each existing sub-collection agent to terminate, its collection activities
in a manner requested by the Agent to facilitate the transition to a new
Collection Agent. The Collection Agent shall cooperate with and assist any new
-9-
Collection Agent (including providing access to, and transferring, all Records
and allowing (to the extent permitted by applicable law and contract) the new
Collection Agent to use all licenses, hardware or software necessary or
desirable to collect the Receivables). The Originator irrevocably agrees to act
(if requested to do so) as the data-processing agent for any new Collection
Agent in substantially the same manner as the Originator conducted such
data-processing functions while it acted as the Collection Agent.
SECTION 3.2. DUTIES OF COLLECTION AGENT. (a) The Collection Agent shall
take, or cause to be taken, all action necessary or advisable to collect each
Receivable in accordance with this Agreement, the Credit and Collection Policy
and all applicable laws, rules and regulations using the skill and attention the
Collection Agent exercises in collecting other receivables or obligations owed
solely to it. The Collection Agent shall, in accordance herewith, separately
account for (and thereby deemed to set aside) all Collections to which a
Purchaser is entitled. If so instructed by the Agent, after the occurrence of a
Collection Agent Replacement Event, the Collection Agent shall transfer to the
Agent the amount of Collections to which the Agent and the Purchasers are
entitled by the Business Day following receipt. Each party hereto hereby
appoints the Collection Agent to enforce such Person's rights and interests in
the Receivables, but (notwithstanding any other provision in any Transaction
Document) the Agent shall at all times after the occurrence of a Collection
Agent Replacement Event have the sole right to direct the Collection Agent to
commence or settle any legal action to enforce collection of any Receivable.
(b) If no Termination Event exists and the Collection Agent determines that
such action is appropriate in order to maximize the Collections, the Collection
Agent may, in accordance with the Credit and Collection Policy, extend the
maturity of any Receivable (but no such extension shall be for a period more
than thirty (30) days) or adjust the outstanding balance of any Receivable. Any
such extension or adjustment shall not alter the status of a Receivable as a
Defaulted Receivable or Delinquent Receivable or limit any rights of the Agent
or the Purchasers hereunder. If a Termination Event exists, the Collection Agent
may make such extensions or adjustments only with the prior consent of the
Instructing Group.
(c) The Collection Agent shall turn over to the Seller (i) any percentage
of Collections in excess of the Sold Interest, less all reasonable costs and
expenses of the Collection Agent for servicing, collecting and administering the
Receivables and (ii) subject to Section 1.5(d), the collections and records for
any indebtedness owed to the Seller that is not a Receivable. The Collection
Agent shall have no obligation to remit any such funds or records to the Seller
until the Collection Agent receives evidence (satisfactory to the Agent) that
the Seller is entitled to such items. The Collection Agent has no obligations
concerning indebtedness that is not a Receivable other than to deliver the
collections and records for such indebtedness to the Seller when required by
this Section 3.2(c).
SECTION 3.3. REPORTS. On or before the fifteenth Business Day of each
month, and at such other times covering such other periods as is requested by
the Agent or the Instructing Group, the Collection Agent shall deliver to the
Agent a report reflecting information as of the close of business of the
Collection Agent for the immediately preceding calendar month or such other
preceding period as is requested (each a "PERIODIC REPORT"), containing the
-10-
information described on Exhibit C (with such modifications or additional
information as requested by the Agent or the Instructing Group).
SECTION 3.4. LOCK-BOX ARRANGEMENTS. The Agent is hereby authorized to give
notice at any time after the occurrence of a Collection Agent Replacement Event
to any or all Lock-Box Banks that the Agent is exercising its rights under the
Lock-Box Letters and to take all actions permitted under the Lock-Box Letters.
The Seller agrees to take any action requested by the Agent to facilitate the
foregoing. After the Agent takes any such action under the Lock-Box Letters, the
Seller shall immediately deliver to the Agent any Collections received by the
Seller. If the Agent takes control of any Lock-Box Account, the Agent shall
distribute Collections it receives in accordance herewith and shall deliver to
the Collection Agent, for distribution under Section 3.2, all other amounts it
receives from such Lock-Box Account.
SECTION 3.5. ENFORCEMENT RIGHTS. (a) The Agent may at any time after the
occurrence of a Collection Agent Replacement Event direct the Obligors and the
Lock-Box Banks to make all payments on the Receivables directly to the Agent or
its designee. The Agent may, and the Seller shall at the Agent's request,
withhold the identity of the Purchasers from the Obligors and Lock-Box Banks.
Upon the Agent's request after the occurrence of a Collection Agent Replacement
Event, the Seller (at the Seller's expense) shall (i) give notice to each
Obligor of the Agent's ownership of the Sold Interest and direct that payments
on Receivables be made directly to the Agent or its designee, (ii) assemble for
the Agent all Records and collateral security for the Receivables and the
Related Security and transfer to the Agent (or its designee), or (to the extent
permitted by applicable law and contract) license to the Agent (or its designee)
the use of, all software useful to collect the Receivables and (iii) segregate
in a manner acceptable to the Agent all Collections the Seller receives and,
promptly upon receipt, remit such Collections in the form received, duly
endorsed or with duly executed instruments of transfer, to the Agent or its
designee.
(b) After the occurrence of a Collection Agent Replacement Event, the
Seller hereby irrevocably appoints the Agent as its attorney-in-fact coupled
with an interest, with full power of substitution and with full authority in the
place of the Seller, to take any and all steps deemed desirable by the Agent, in
the name and on behalf of the Seller to (i) collect any amounts due under any
Receivable, including endorsing the name of the Seller on checks and other
instruments representing Collections and enforcing such Receivables and the
Related Security, and (ii) exercise any and all of the Seller's rights and
remedies under the Purchase Agreement and the Limited Guaranty. The Agent's
powers under this Section 3.5(b) shall not subject the Agent to any liability if
any action taken by it proves to be inadequate or invalid, nor shall such powers
confer any obligation whatsoever upon the Agent.
(c) Neither the Agent nor any Purchaser shall have any obligation to take
or consent to any action to realize upon any Receivable or Related Security or
to enforce any rights or remedies related thereto.
SECTION 3.6. COLLECTION AGENT FEE. On or before the twentieth day of each
calendar month, the Seller shall pay to the Collection Agent a fee for the
immediately preceding calendar month as compensation for its services (the
"COLLECTION AGENT FEE") equal to (a) at all times the Originator or an Affiliate
-11-
of any Swift Entity is the Collection Agent, such consideration as is acceptable
to it, the receipt and sufficiency of which is hereby acknowledged, and (b) at
all times any other Person is the Collection Agent, a reasonable amount agreed
upon by the Agent and the new Collection Agent on an arm's-length basis
reflecting rates and terms prevailing in the market at such time. The Collection
Agent may apply to payment of the Collection Agent Fee only the portion of the
Collections in excess of the Sold Interest plus Collections that fund
Reinvestment Purchases. The Agent may, with the consent of the Instructing
Group, pay the Collection Agent Fee to the Collection Agent from the Sold
Interest in Collections. The Seller shall be obligated to reimburse any such
payment.
SECTION 3.7. RESPONSIBILITIES OF THE SELLER. The Seller shall, or shall
cause the Originator to, pay when due all Taxes payable in connection with the
Receivables and the Related Security or their creation or satisfaction. The
Seller shall, and shall cause the Originator to, perform all of its obligations
under agreements related to the Receivables and the Related Security to the same
extent as if interests in the Receivables and the Related Security had not been
transferred hereunder or, in the case of the Originator, under the Purchase
Agreement. The Agent's or any Purchaser's exercise of any rights hereunder shall
not relieve the Seller or the Originator from such obligations. Neither the
Agent nor any Purchaser shall have any obligation to perform any obligation of
the Seller or of the Originator or any other obligation or liability in
connection with the Receivables or the Related Security.
SECTION 3.8. ACTIONS BY SELLER. The Seller shall defend and indemnify the
Agent and each Purchaser against all costs, expenses, claims and liabilities for
any action taken by the Seller, the Originator or any other Affiliate of the
Seller or of the Originator (whether acting as Collection Agent or otherwise)
related to any Receivable and the Related Security, or arising out of any
alleged failure of compliance of any Receivable or the Related Security with the
provisions of any law or regulation. If any goods related to a Receivable are
repossessed, the Seller agrees to resell, or to have the Originator or another
Affiliate resell, such goods in a commercially reasonable manner for the account
of the Agent and remit, or have remitted, to the Agent the Purchasers' share in
the gross sale proceeds thereof net of any out-of-pocket expenses and any equity
of redemption of the Obligor thereon. Any such moneys collected by the Seller or
the Originator or other Affiliate of the Seller pursuant to this Section 3.8
shall be segregated and held in trust for the Agent and remitted to the Agent's
Account within one Business Day of receipt as part of the Sold Interest in
Collections for application as provided herein.
SECTION 3.9. INDEMNITIES BY THE COLLECTION AGENT. Without limiting any
other rights any Person may have hereunder or under applicable law, the
Collection Agent hereby indemnifies and holds harmless the Agent and each
Purchaser and their respective officers, directors, agents and employees (each
an "INDEMNIFIED PARTY") from and against any and all damages, losses, claims,
liabilities, penalties, Taxes, costs and expenses (including attorneys' fees and
court costs) (all of the foregoing collectively, the "INDEMNIFIED LOSSES") at
any time imposed on or incurred by any Indemnified Party arising out of or
otherwise relating to:
(i) any representation or warranty made by or on behalf of the
Collection Agent in this Agreement, any other Transaction Document, any
Periodic Report or any other information or report delivered by the
-12-
Collection Agent pursuant hereto, which shall have been false or incorrect
in any material respect when made;
(ii) the failure by the Collection Agent to comply with any applicable
law, rule or regulation related to any Receivable or the Related Security;
(iii) any loss of a perfected security interest (or in the priority of
such security interest) as a result of any commingling by the Collection
Agent of funds to which the Agent or any Purchaser is entitled hereunder
with any other funds; or
(iv) any failure of the Collection Agent to perform its duties or
obligations in accordance with the provisions of this Agreement or any
other Transaction Document to which the Collection Agent is a party;
whether arising by reason of the acts to be performed by the Collection Agent
hereunder or otherwise, excluding only Indemnified Losses to the extent (a) a
final judgment of a court of competent jurisdiction determined that such
Indemnified Losses resulted solely from gross negligence or willful misconduct
of the Indemnified Party seeking indemnification, (b) solely due to the credit
risk of the Obligor and for which reimbursement would constitute recourse to the
Collection Agent for uncollectible Receivables, or (c) such Indemnified Losses
include Taxes on, or measured by, the overall net income of the Agent or any
Purchaser computed in accordance with the Intended Tax Characterization;
PROVIDED, HOWEVER, that nothing contained in this sentence shall limit the
liability of the Collection Agent or limit the recourse of the Agent and each
Purchaser to the Collection Agent for any amounts otherwise specifically
provided to be paid by the Collection Agent hereunder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. REPRESENTATIONS AND WARRANTIES. The Seller represents and
warrants to the Agent and each Purchaser that:
(a) CORPORATE EXISTENCE AND POWER. Each of the Seller and each Swift Entity
is a corporation duly organized, validly existing and in good standing under the
laws of its state of incorporation and has all corporate power and authority and
all governmental licenses, authorizations, consents and approvals required to
carry on its business in each jurisdiction in which its business is now
conducted, except where failure to obtain such license, authorization, consent
or approval would not have an adverse effect on (i) its ability to perform its
obligations under, or the enforceability of, any Transaction Document, (ii) its
business or financial condition, (iii) the interests of the Agent or any
Purchaser under any Transaction Document or (iv) the enforceability or
collectibility of a material portion of the Receivables.
(b) CORPORATE AUTHORIZATION AND NO CONTRAVENTION. The execution, delivery
and performance by each of the Seller and each Swift Entity of each Transaction
-13-
Document to which it is a party (i) are within its corporate powers, (ii) have
been duly authorized by all necessary corporate action, (iii) do not contravene
or constitute a default under (A) any applicable law, rule or regulation, (B)
its or any Subsidiary's charter or by-laws or (C) any agreement, order or other
instrument to which it or any Subsidiary is a party or its property is subject
and (iv) will not result in any Adverse Claim on any Receivable, the Related
Security or Collection or give cause for the acceleration of any indebtedness of
the Seller, any Swift Entity or any Subsidiary.
(c) NO CONSENT REQUIRED. No approval, authorization or other action by, or
filings with, any Governmental Authority or other Person is required in
connection with the execution, delivery and performance by the Seller or any
Swift Entity of any Transaction Document to which it is a party or any
transaction contemplated thereby.
(d) BINDING EFFECT. Each Transaction Document to which the Seller or any
Swift Entity is a party constitutes the legal, valid and binding obligation of
such Person enforceable against that Person in accordance with its terms, except
as limited by bankruptcy, insolvency, or other similar laws of general
application relating to or affecting the enforcement of creditors' rights
generally and subject to general principles of equity.
(e) PERFECTION OF OWNERSHIP INTEREST. Immediately preceding its sale of
Receivables to the Seller, the Originator was the owner of, and effectively
sold, such Receivables to the Seller, free and clear of any Adverse Claim. The
Seller owns the Receivables free of any Adverse Claim other than the interests
of the Purchasers (through the Agent) therein that are created hereby, and each
Purchaser shall at all times have a valid undivided percentage ownership
interest, which shall be a first priority perfected security interest for
purposes of Article 9 of the applicable Uniform Commercial Code, in the
Receivables and Collections to the extent of its Purchase Interest then in
effect.
(f) ACCURACY OF INFORMATION. All information furnished by the Seller, any
Swift Entity or any Affiliate of any such Person to the Agent or any Purchaser
in connection with any Transaction Document, or any transaction contemplated
thereby, is true and accurate in all material respects (and is not incomplete by
omitting any information necessary to prevent such information from being
materially misleading).
(g) NO ACTIONS, SUITS. There are no actions, suits or other proceedings
(including matters relating to environmental liability) pending or threatened
against or affecting the Seller, any Swift Entity or any Subsidiary, or any of
their respective properties, that (i) if adversely determined (individually or
in the aggregate), may have a material adverse effect on the financial condition
of the Seller, any Swift Entity or any Subsidiary or on the collectibility of a
material portion of the Receivables or (ii) involve any Transaction Document or
any transaction contemplated thereby. None of the Seller, any Swift Entity or
any Subsidiary is in default of any contractual obligation or in violation of
any order, rule or regulation of any Governmental Authority, which default or
violation may have a material adverse effect upon (i) the financial condition of
-14-
the Seller, the Swift Entities and the Subsidiaries taken as a whole or (ii) the
collectibility of a material portion of the Receivables.
(h) NO MATERIAL ADVERSE CHANGE. Since September 30, 1999, there has been no
material adverse change in the collectibility of the Receivables or the
Seller's, any Swift Entity's or any Subsidiary's (i) financial condition,
business, operations or prospects or (ii) ability to perform its obligations
under any Transaction Document.
(i) ACCURACY OF EXHIBITS; LOCK-BOX ARRANGEMENTS. All information on
Exhibits D-F (listing offices and names of the Seller and the Originator and
where they maintain Records; the Subsidiaries; and Lock Boxes) is true and
complete, subject to any changes permitted by, and notified to the Agent in
accordance with, Article V. The Seller has delivered a copy of all Lock-Box
Agreements to the Agent. The Seller has not granted any interest in any Lock-Box
or Lock-Box Account to any Person other than the Agent and, upon delivery to a
Lock-Box Bank of the related Lock-Box Letter, the Agent will have exclusive
ownership and control of the Lock-Box Account at such Lock-Box Bank.
(j) SALES BY THE ORIGINATOR. Each sale by the Originator to the Seller of
an interest in Receivables and their Collections has been made in accordance
with the terms of the Purchase Agreement, including the payment by the Seller to
the Originator of the purchase price described in the Purchase Agreement. Each
such sale has been made for "REASONABLY EQUIVALENT VALUE" (as such term is used
in Section 548 of the Bankruptcy Code) and not for or on account of "ANTECEDENT
DEBT" (as such term is used in Section 547 of the Bankruptcy Code) owed by the
Originator to the Seller.
(k) YEAR 2000 PROBLEM. Each of the Seller and each Swift Entity has
reviewed the areas within its business and operations which could be adversely
affected by, and have developed or are developing a program to address on a
timely basis, the "YEAR 2000 PROBLEM" (that is, the risk that computer
applications used by such Person and its Subsidiaries may be unable to recognize
and perform properly date-sensitive functions involving certain dates prior to
and any date on or after December 31, 1999), and have made related appropriate
inquiry of material suppliers and vendors. Based on such review and program,
such Person believes that the "YEAR 2000 PROBLEM" will not have a material
adverse effect on such Person.
ARTICLE V
COVENANTS
SECTION 5.1. COVENANTS OF THE SELLER. The Seller hereby covenants and
agrees to comply with the following covenants and agreements, unless the Agent
(with the consent of the Instructing Group) shall otherwise consent:
-15-
(a) FINANCIAL REPORTING. The Seller will, and will cause each Swift Entity
and each Subsidiary to, maintain a system of accounting established and
administered in accordance with GAAP and will furnish to the Agent and each
Purchaser:
(i) ANNUAL FINANCIAL STATEMENTS. Within 90 days after each fiscal year
of (A) the Parent copies of its annual audited financial statements
(including a consolidated balance sheet, consolidated statement of income
and retained earnings and statement of cash flows, with related footnotes)
certified by independent certified public accountants satisfactory to the
Agent and prepared on a consolidated basis in conformity with GAAP, and (B)
each of the Seller and the Originator the annual balance sheet for such
Person (and, additionally for the Seller, an annual profit and loss
statement) certified by a Designated Financial Officer thereof, in each
case prepared on a consolidated basis in conformity with GAAP as of the
close of such fiscal year for the fiscal year then ended;
(ii) QUARTERLY FINANCIAL STATEMENTS. Within 45 days after each (except
the last) fiscal quarter of each fiscal year of (A) the Parent, copies of
its unaudited financial statements (including at least a consolidated
balance sheet as of the close of such quarter and statements of earnings
and sources and applications of funds for the period from the beginning of
the fiscal year to the close of such quarter) certified by a Designated
Financial Officer and prepared in a manner consistent with the financial
statements described in part (A) of clause (i) of this Section 5.l(a) and
(B) each of the Seller and the Originator, the quarterly balance sheet for
such Person (and, additionally for the Seller, a profit and loss statement)
for the period from the beginning of such fiscal year to the close of such
quarter, in each case certified by a Designated Financial Officer thereof
and prepared in a manner consistent with part (B) of clause (i) of Section
5.1(a);
(iii) OFFICER'S CERTIFICATE. Each time financial statements are
furnished pursuant to clause (i) or (ii) of this Section 5.1(a), a
compliance certificate (in substantially the form of Exhibit H) signed by a
Designated Financial Officer, dated the date of such financial statements,
and containing a computation of each of the financial ratios and
restrictions contained herein and in the Limited Guaranty;
(iv) PUBLIC REPORTS. Promptly upon becoming available, a copy of each
report or proxy statement filed by the Parent with the Securities Exchange
Commission or any securities exchange; and
(v) OTHER INFORMATION. Promptly, from time to time, such other
information regarding the operations, business affairs and financial
condition of the Seller or Parent as may be requested by the Agent or any
Purchaser (with a copy of such request to the Agent).
(b) NOTICES. Promptly and in any event within three Business Days upon
becoming aware of any of the following the Seller will notify the Agent and
provide a description of:
(i) POTENTIAL TERMINATION EVENTS. The occurrence of any Potential
Termination Event;
-16-
(ii) REPRESENTATIONS AND WARRANTIES. The failure of any representation
or warranty herein to be true (when made or at any time thereafter) in any
material respect;
(iii) LITIGATION. The institution of any litigation, arbitration
proceeding or governmental proceeding reasonably likely to result in a
liability in excess of $1,000,000 to any Swift Entity, any Subsidiary or
the collectibility or quality of material portion of the Receivables;
(v) JUDGMENTS. The entry of any judgment or decree against the Seller,
any Swift Entity or any Subsidiary if the aggregate amount of all judgments
then outstanding against the Seller, the Swift Entities and the
Subsidiaries exceeds $1,000,000; or
(vi) CHANGES IN BUSINESS. Any change in, or proposed change in, the
character of any Swift Entity's business that could impair the
collectibility or quality of a material portion of the Receivables.
If the Agent receives such a notice, the Agent shall promptly give notice
thereof to each Purchaser and, until Amsterdam has no Investment after the
Amsterdam Termination Date, to each CP Dealer and each Rating Agency.
(c) CONDUCT OF BUSINESS. The Seller will perform, and will cause each Swift
Entity and Subsidiary to perform, all actions necessary to remain duly
incorporated, validly existing and in good standing in its jurisdiction of
incorporation and to maintain all requisite authority to conduct its business in
each jurisdiction in which it conducts business.
(d) COMPLIANCE WITH LAWS. The Seller will comply, and will cause each Swift
Entity and Subsidiary to comply, with all laws, regulations, judgments and other
directions or orders imposed by any Governmental Authority to which such Person
or any Receivable, any Related Security or Collection may be subject.
(e) FURNISHING INFORMATION AND INSPECTION OF RECORDS. The Seller will
furnish to the Agent and the Purchasers such information concerning the
Receivables and the Related Security as the Agent or a Purchaser may request.
The Seller will, and will cause the Originator to, permit, at any time during
regular business hours, the Agent or any Purchaser (or any representatives
thereof) (i) to examine and make copies of all Records, (ii) to visit the
offices and properties of the Seller for the purpose of examining the Records
and (iii) to discuss matters relating hereto with any of the Seller's or the
Originator's officers, directors, employees or independent public accountants
having knowledge of such matters. Once a year, the Agent may (at the expense of
the Seller) have an independent public accounting firm conduct an audit of the
Records or make test verifications of the Receivables and Collections.
(f) KEEPING RECORDS. (i) The Seller will, and will cause the Originator to,
have and maintain (A) administrative and operating procedures (including an
ability to recreate Records if originals are destroyed), (B) adequate
facilities, personnel and equipment and (C) all Records and other information
necessary or advisable for collecting the Receivables (including Records
adequate to permit the immediate identification of each new Receivable and all
Collections of, and adjustments to, each existing Receivable). The Seller will
-17-
give the Agent prior notice of any material change in such administrative and
operating procedures.
(ii) The Seller will, (A) at all times from and after the date hereof,
clearly and conspicuously mark its computer and master data processing
books and records with a legend describing the Agent's and the Purchasers'
interest in the Receivables and the Collections and (B) upon the request of
the Agent in the case of Receivables constituting chattel paper, so mark
each contract relating to a Receivable and deliver to the Agent all such
contracts (including all multiple originals of such contracts), with any
appropriate endorsement or assignment, or segregate (from all other
receivables then owned or being serviced by the Seller) the Receivables and
all contracts relating to each Receivable and hold in trust and safely keep
such contracts so legended in separate filing cabinets or other suitable
containers at such locations as the Agent may specify.
(g) PERFECTION. (i) The Seller will, and will cause the Originator to, at
its expense, promptly execute and deliver all instruments and documents and take
all action necessary or requested by the Agent (including the execution and
filing of financing or continuation statements, amendments thereto or
assignments thereof) to enable the Agent to exercise and enforce all its rights
hereunder and to vest and maintain vested in the Agent a valid, first priority
perfected security interest in the Receivables, the Collections, the Purchase
Agreement, the Lock-Box Accounts and proceeds thereof free and clear of any
Adverse Claim (and a perfected ownership interest in the Receivables and
Collections to the extent of the Sold Interest). The Agent will be permitted to
sign and file any continuation statements, amendments thereto and assignments
thereof without the Seller's signature.
(ii) The Seller will, and will cause the Originator to, only change
its name, identity or corporate structure or relocate its chief executive
office or the Records following thirty (30) days advance notice to the
Agent and the delivery to the Agent of all financing statements,
instruments and other documents (including direction letters) requested by
the Agent.
(iii) Each of the Seller and the Originator will at all times maintain
its chief executive offices within a jurisdiction in the USA (other than in
the states of Florida, Maryland and Tennessee) in which Article 9 of the
UCC is in effect. If the Seller or the Originator moves its chief executive
office to a location that imposes Taxes, fees or other charges to perfect
the Agent's and the Purchasers' interests hereunder or the Seller's
interests under the Purchase Agreement, the Seller will pay all such
amounts and any other costs and expenses incurred in order to maintain the
enforceability of the Transaction Documents, the Sold Interest and the
interests of the Agent and the Purchasers in the Receivables, the Related
Security, Collections, Purchase Agreement and Lock-Box Accounts.
(h) PERFORMANCE OF DUTIES. The Seller will perform, and will cause each
Swift Entity and Subsidiary and the Collection Agent (if an Affiliate) to
perform, its respective duties or obligations in accordance with the provisions
of each of the Transaction Documents. The Seller (at its expense) will, and will
cause each Swift Entity to, (i) fully and timely perform in all material
-18-
respects all agreements required to be observed by it in connection with each
Receivable, (ii) comply in all material respects with the Credit and Collection
Policy, and (iii) refrain from any action that may impair the rights of the
Agent or the Purchasers in the Receivables, the Related Security, Collections,
Purchase Agreement or Lock-Box Accounts.
(i) PAYMENTS ON RECEIVABLES, ACCOUNTS. The Seller will, and will cause the
Originator to, at all times instruct all Obligors to deliver payments on the
Receivables to a Lock-Box Account. If any such payments or other Collections are
received by the Seller or the Originator, it shall hold such payments in trust
for the benefit of the Agent and the Purchasers and promptly (but in any event
within two Business Days after receipt) remit such funds into a Lock-Box
Account. The Seller will cause each Lock-Box Bank to comply with the terms of
each applicable Lock-Box Letter. The Seller will not permit the funds of any
Affiliate to be deposited into any Lock-Box Account. If such funds are
nevertheless deposited into any Lock-Box Account, the Seller will promptly
identify such funds for segregation. The Seller will not, and will not permit
any Collection Agent or other Person to, commingle Collections or other funds to
which the Agent or any Purchaser is entitled with any other funds. The Seller
shall only add, and shall only permit the Originator to add, a Lock-Box Bank,
Lock-Box, or Lock-Box Account to those listed on Exhibit F if the Agent has
received notice of such addition, a copy of any new Lock-Box Agreement and an
executed and acknowledged copy of a Lock-Box Letter substantially in the form of
Exhibit G (with such changes as are acceptable to the Agent) from any new
Lock-Box Bank. The Seller shall only terminate a Lock-Box Bank or Lock-Box, or
close a Lock-Box Account, upon 30 days advance notice to the Agent.
(j) SALES AND ADVERSE CLAIMS RELATING TO RECEIVABLES. Except as otherwise
provided herein, the Seller will not, and will not permit the Originator to, (by
operation of law or otherwise) dispose of or otherwise transfer, or create or
suffer to exist any Adverse Claim upon, any Receivable or any proceeds thereof.
(k) EXTENSION OR AMENDMENT OF RECEIVABLES. Except as otherwise permitted in
Section 3.2(b) and then subject to Section 1.5, the Seller will not, and will
not permit the Originator to, extend, amend, rescind or cancel any Receivable.
(l) CHANGE IN BUSINESS OR CREDIT AND COLLECTION POLICY. The Seller will not
make any material change in the character of its business and will not, and will
not permit the Originator to, make any material change to the Credit and
Collection Policy.
ARTICLE VI
INDEMNIFICATION
SECTION 6.1. INDEMNITIES BY THE SELLER. Without limiting any other rights
any Person may have hereunder or under applicable law, the Seller hereby
indemnifies and holds harmless, on an after-Tax basis, the Agent and each
Purchaser and their respective officers, directors, agents and employees (each
an "INDEMNIFIED PARTY") from and against any and all damages, losses, claims,
-19-
liabilities, penalties, Taxes, costs and expenses (including attorneys' fees and
court costs) (all of the foregoing collectively, the "INDEMNIFIED LOSSES") at
any time imposed on or incurred by any Indemnified Party arising out of or
otherwise relating to any Transaction Document, the transactions contemplated
thereby or any action taken or omitted by any of the Indemnified Parties
(including any action taken by the Agent as attorney-in-fact for the Seller
pursuant to Section 3.5(b)), whether arising by reason of the acts to be
performed by the Seller hereunder or otherwise, excluding only Indemnified
Losses to the extent (a) a final judgment of a court of competent jurisdiction
holds such Indemnified Losses resulted solely from gross negligence or willful
misconduct of the Indemnified Party seeking indemnification, (b) solely due to
the credit risk of the Obligor and for which reimbursement would constitute
recourse to the Seller or the Collection Agent for uncollectible Receivables or
(c) such Indemnified Losses include Taxes on, or measured by, the overall net
income of the Agent or any Purchaser computed in accordance with the Intended
Tax Characterization. Without limiting the foregoing indemnification, but
subject to the limitations set forth in clauses (a), (b) and (c) of the previous
sentence, the Seller shall indemnify each Indemnified Party for Indemnified
Losses relating to or resulting from:
(i) any representation or warranty made by the Seller, any other Swift
Entity or the Collection Agent, to the extent it is a Swift Entity, (or any
employee or agent of the Seller, any Swift Entity or the Collection Agent)
under or in connection with this Agreement, any Periodic Report or any
other information or report delivered by the Seller, any other Swift Entity
or the Collection Agent, to the extent it is a Swift Entity, pursuant
hereto, which shall have been false or incorrect in any material respect
when made or deemed made;
(ii) the failure by the Seller, any other Swift Entity, or the
Collection Agent, to the extent it is a Swift Entity, to comply with any
applicable law, rule or regulation related to any Receivable, or the
nonconformity of any Receivable with any such applicable law, rule or
regulation;
(iii) the failure of the Seller to vest and maintain vested in the
Agent, for the benefit of the Purchasers, a perfected ownership or security
interest in the Sold Interest and the property conveyed pursuant to Section
1.1(e) and Section 1.8, free and clear of any Adverse Claim;
(iv) any commingling of funds to which the Agent or any Purchaser is
entitled hereunder with any other funds;
(v) any failure of a Lock-Box Bank to comply with the terms of the
applicable Lock-Box Letter;
(vi) any dispute, claim, offset or defense (other than discharge in
bankruptcy of the Obligor) of the Obligor to the payment of any Receivable,
or any other claim resulting from the sale or lease of goods or the
rendering of services related to such Receivable or the furnishing or
failure to furnish any such goods or services or other similar claim or
defense not arising from the financial inability of any Obligor to pay
undisputed indebtedness;
-20-
(vii) any failure of the Seller or any Swift Entity, or any Affiliate
of any thereof, to perform its duties or obligations in accordance with the
provisions of this Agreement or any other Transaction Document to which
such Person is a party (as a Collection Agent or otherwise);
(viii) any action taken by the Agent as attorney-in-fact for the
Seller pursuant to Section 3.5(b); or
(ix) any environmental liability claim, products liability claim or
personal injury or property damage suit or other similar or related claim
or action of whatever sort, arising out of or in connection with any
Receivable or any other suit, claim or action of whatever sort relating to
any of the Transaction Documents.
SECTION 6.2. INCREASED COST AND REDUCED RETURN. If the adoption after the
date hereof of any applicable law, rule or regulation, or any change therein
after the date hereof, or any change in the interpretation or administration
thereof by any Governmental Authority charged with the interpretation or
administration thereof, or compliance by any Amsterdam Funding Source, the Agent
or any Purchaser (collectively, the "FUNDING PARTIES") with any request or
directive (whether or not having the force of law) after the date hereof of any
such Governmental Authority (a "REGULATORY CHANGE") (a) subjects any Funding
Party to any charge or withholding on or in connection with a Funding Agreement
or this Agreement (collectively, the "FUNDING Documents") or any Receivable, (b)
changes the basis of taxation of payments to any of the Funding Parties of any
amounts payable under any of the Funding Documents (except for changes in the
rate of Tax on the overall net income of such Funding Party), (c) imposes,
modifies or deems applicable any reserve, assessment, insurance charge, special
deposit or similar requirement against assets of, deposits with or for the
account of, or any credit extended by, any of the Funding Parties, (d) has the
effect of reducing the rate of return on such Funding Party's capital to a level
below that which such Funding Party could have achieved but for such adoption,
change or compliance (taking into consideration such Funding Party's policies
concerning capital adequacy) or (e) imposes any other condition, and the result
of any of the foregoing is (x) to impose a cost on, or increase the cost to, any
Funding Party of its commitment under any Funding Document or of purchasing,
maintaining or funding any interest acquired under any Funding Document, (y) to
reduce the amount of any sum received or receivable by, or to reduce the rate of
return of, any Funding Party under any Funding Document or (z) to require any
payment calculated by reference to the amount of interests held or amounts
received by it hereunder, then, upon demand by the Agent, the Seller shall pay
to the Agent for the account of the Person such additional amounts as will
compensate the Agent or such Purchaser (or, in the case of Amsterdam, will
enable Amsterdam to compensate any Amsterdam Funding Source) for such increased
cost or reduction. Without limiting the foregoing, the Seller acknowledges and
agrees that the fees and other amounts payable by the Seller to the Purchasers
and the Agent have been negotiated on the basis that the unused portion of each
Liquidity Provider's Commitment is treated as a "SHORT TERM COMMITMENT" for
which there is no regulatory capital requirement and the Enhancer's Commitment
carries the same capital requirement as a funded loan in the same amount. If any
Liquidity Provider determines it is required to maintain capital against its
Unused Commitment, or if the Enhancer is required to maintain capital on its
Unused Commitment (or any Purchaser is required to maintain capital against its
Investment) in excess of the amount of capital it would be required to maintain
-21-
against a funded loan in the same amount, such Purchaser shall be entitled to
compensation under this Section 6.2.
SECTION 6.3. OTHER COSTS AND EXPENSES. The Seller shall pay to the Agent on
demand all reasonable costs and expenses in connection with (a) the preparation,
execution, delivery and administration (including amendments of any provision)
of the Transaction Documents, (b) the sale of the Sold Interest, (c) the
perfection of the Agent's rights in the Receivables and Collections, (d) the
enforcement by the Agent or the Purchasers of the obligations of the Seller
under the Transaction Documents or of any Obligor under a Receivable and (e) the
maintenance by the Agent of the Lock-Boxes and Lock-Box Accounts, including
fees, costs and expenses of legal counsel for the Agent and Amsterdam relating
to any of the foregoing or to advising the Agent, Amsterdam and any Amsterdam
Funding Source about its rights and remedies under any Transaction Document or
any related Funding Agreement and all costs and expenses (including counsel fees
and expenses) of the Agent, each Purchaser and each Amsterdam Funding Source in
connection with the enforcement of the Transaction Documents or any Funding
Agreement and in connection with the administration of the Transaction Documents
following a Termination Event. The Seller shall reimburse Amsterdam for any
amounts Amsterdam must pay to any Amsterdam Funding Source pursuant to any
Funding Agreement on account of any Tax.
SECTION 6.4. WITHHOLDING TAXES. (a) All payments made by the Seller
hereunder shall be made without withholding for or on account of any present or
future taxes (other than overall net income taxes on the recipient). If any such
withholding is so required, the Seller shall make the withholding, pay the
amount withheld to the appropriate authority before penalties attach thereto or
interest accrues thereon and pay such additional amount as may be necessary to
ensure that the net amount actually received by each Purchaser and the Agent
free and clear of such taxes (including such taxes on such additional amount) is
equal to the amount that Purchaser or the Agent (as the case may be) would have
received had such withholding not been made. If the Agent or any Purchaser pays
any such taxes, penalties or interest the Seller shall reimburse the Agent or
such Purchaser for that payment on demand. If the Seller pays any such taxes,
penalties or interest, it shall deliver official tax receipts evidencing that
payment or certified copies thereof to the Purchaser or Agent on whose account
such withholding was made (with a copy to the Agent if not the recipient of the
original) on or before the thirtieth day after payment.
(b) Before the first date on which any amount is payable hereunder for the
account of any Purchaser not incorporated under the laws of the USA such
Purchaser shall deliver to the Seller and the Agent each two (2) duly completed
copies of United States Internal Revenue Service Form W-8BEN or W-8ECI (or
successor applicable form) certifying that such Purchaser is entitled to receive
payments hereunder without deduction or withholding of any United States federal
income taxes. Each such Purchaser shall replace or update such forms when
necessary to maintain any applicable exemption and as requested by the Agent or
the Seller.
SECTION 6.5. PAYMENTS AND ALLOCATIONS. If any Person seeks compensation
pursuant to Section 6.1 or 6.2 of this Article VI, such Person shall deliver to
the Seller and the Agent a certificate setting forth the amount due to such
Person, a description of the circumstance giving rise thereto and the basis of
the calculations of such amount, which certificate shall be conclusive absent
-22-
manifest error. The Seller shall pay to the Agent (for the account of such
Person) the amount shown as due on any such certificate within 10 Business Days
after receipt of the notice.
ARTICLE VII
CONDITIONS PRECEDENT
SECTION 7.1. CONDITIONS TO CLOSING. This Agreement shall become effective
on the first date all conditions in this Section 7.1 are satisfied. On or before
such date, the Seller shall deliver to the Agent the following documents in
form, substance and quantity acceptable to the Agent:
(a) A certificate of the Secretary of each of the Seller and each Swift
Entity certifying (i) the resolutions of the Seller's and each Swift Entity's
board of directors approving each Transaction Document to which it is a party,
(ii) the name, signature, and authority of each officer who executes on the
Seller's or any Swift Entity's behalf a Transaction Document (on which
certificate the Agent and each Purchaser may conclusively rely until a revised
certificate is received), (iii) the Seller's and each Swift Entity's certificate
or articles of incorporation certified by the Secretary of State of its state of
incorporation, (iv) a copy of the Seller's and each Swift Entity's by-laws and
(v) good standing certificates issued by the Secretaries of State of each
jurisdiction where the Seller or any Swift Entity is incorporated or has its
principal place of business.
(b) All instruments and other documents required, or deemed desirable by
the Agent, to perfect the Agent's first priority interest in the Receivables,
Collections, the Purchase Agreement and the Lock-Box Accounts in all appropriate
jurisdictions.
(c) For the Originator and Seller, UCC search reports from each
jurisdiction where such Person is incorporated or has its principal place of
business.
(d) Executed copies of (i) all consents and authorizations necessary in
connection with the Transaction Documents (ii) all Lock-Box Letters, (iii) a
compliance certificate in the form of Exhibit H covering the period ending
November 30, 1999, (iv) a Periodic Report covering the month ended November 30,
1999 and (v) each Transaction Document.
(e) Favorable opinions of counsel to the Seller and each Swift Entity
covering such matters as Amsterdam or the Agent may request.
(f) Such other approvals, opinions or documents as the Agent or Amsterdam
may request.
(g) All legal matters related to the Purchase are satisfactory to the
Purchasers.
SECTION 7.2. CONDITIONS TO EACH PURCHASE. The obligation of each Committed
Purchaser to make any Purchase, and the right of the Seller to request or accept
any Purchase, are subject to the conditions (and each Purchase shall evidence
-23-
the Seller's representation and warranty that clauses (a)-(e) of this Section
7.2 have been satisfied) that on the date of such Purchase before and after
giving effect to the Purchase:
(a) no Potential Termination Event (or in the case of a Reinvestment
Purchase, a Termination Event) shall then exist or shall occur as a result of
the Purchase;
(b) the Liquidity Termination Date has not occurred;
(c) after giving effect to the application of the proceeds of such
Purchase, (x) the outstanding Matured Aggregate Investment would not exceed the
Aggregate Commitment and (y) the outstanding Aggregate Investment would not
exceed the Purchase Limit;
(d) the representations and warranties in Section 4.1 are true and correct
in all material respects on and as of such date (except to the extent such
representations and warranties relate solely to an earlier date and then are
true and correct as of such earlier date); and
(e) each of the Seller and each Swift Entity is in full compliance with the
Transaction Documents (including all covenants and agreements in Article V).
Nothing in this Section 7.2 limits the obligations of each Committed Purchaser
to Amsterdam (including the Transfer Agreement).
ARTICLE VIII
THE AGENT
SECTION 8.1. APPOINTMENT AND AUTHORIZATION. Each Purchaser hereby
irrevocably designates and appoints ABN AMRO Bank N.V. as the "AGENT" under the
Transaction Documents and authorizes the Agent to take such actions and to
exercise such powers as are delegated to the Agent thereby and to exercise such
other powers as are reasonably incidental thereto. The Agent shall hold, in its
name, for the benefit of each Purchaser, the Purchase Interest of the Purchaser.
The Agent shall not have any duties other than those expressly set forth in the
Transaction Documents or any fiduciary relationship with any Purchaser, and no
implied obligations or liabilities shall be read into any Transaction Document,
or otherwise exist, against the Agent. The Agent does not assume, nor shall it
be deemed to have assumed, any obligation to, or relationship of trust or agency
with, the Seller. Notwithstanding any provision of this Agreement or any other
Transaction Document, in no event shall the Agent ever be required to take any
action which exposes the Agent to personal liability or which is contrary to the
provision of any Transaction Document or applicable law.
SECTION 8.2. DELEGATION OF DUTIES. The Agent may execute any of its duties
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall not be
-24-
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
SECTION 8.3. EXCULPATORY PROVISIONS. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted (i) with the consent or at the direction of the Instructing Group or
(ii) in the absence of such Person's gross negligence or willful misconduct. The
Agent shall not be responsible to any Purchaser or other Person for (i) any
recitals, representations, warranties or other statements made by the Seller,
any Swift Entity or any of their Affiliates, (ii) the value, validity,
effectiveness, genuineness, enforceability or sufficiency of any Transaction
Document, (iii) any failure of the Seller, any Swift Entity or any of their
Affiliates to perform any obligation or (iv) the satisfaction of any condition
specified in Article VII. The Agent shall not have any obligation to any
Purchaser to ascertain or inquire about the observance or performance of any
agreement contained in any Transaction Document or to inspect the properties,
books or records of the Seller, any Swift Entity or any of their Affiliates.
SECTION 8.4. RELIANCE BY AGENT. The Agent shall in all cases be entitled to
rely, and shall be fully protected in relying, upon any document, other writing
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person and upon advice and statements of
legal counsel (including counsel to the Seller), independent accountants and
other experts selected by the Agent. The Agent shall in all cases be fully
justified in failing or refusing to take any action under any Transaction
Document unless it shall first receive such advice or concurrence of the
Purchasers, and assurance of its indemnification, as it deems appropriate.
SECTION 8.5. ASSUMED PAYMENTS. Unless the Agent shall have received notice
from the applicable Purchaser before the date of any Incremental Purchase that
such Purchaser will not make available to the Agent the amount it is scheduled
to remit as part of such Incremental Purchase, the Agent may assume such
Purchaser has made such amount available to the Agent when due (an "ASSUMED
PAYMENT") and, in reliance upon such assumption, the Agent may (but shall have
no obligation to) make available such amount to the appropriate Person. If and
to the extent that any Purchaser shall not have made its Assumed Payment
available to the Agent, such Purchaser and the Seller hereby agrees to pay the
Agent forthwith on demand such unpaid portion of such Assumed Payment up to the
amount of funds actually paid by the Agent, together with interest thereon for
each day from the date of such payment by the Agent until the date the requisite
amount is repaid to the Agent, at a rate per annum equal to the Federal Funds
Rate plus 2%.
SECTION 8.6. NOTICE OF TERMINATION EVENTS. The Agent shall not be deemed to
have knowledge or notice of the occurrence of any Potential Termination Event
unless the Agent has received notice from any Purchaser or the Seller stating
that a Potential Termination Event has occurred hereunder and describing such
Potential Termination Event. The Agent shall take such action concerning a
Potential Termination Event as may be directed by the Instructing Group (or, if
required for such action, all of the Purchasers), but until the Agent receives
such directions, the Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, as the Agent deems advisable and in the best
interests of the Purchasers.
-25-
SECTION 8.7. NON-RELIANCE ON AGENT AND OTHER PURCHASERS. Each Purchaser
expressly acknowledges that neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Agent hereafter
taken, including any review of the affairs of the Seller or any Swift Entity,
shall be deemed to constitute any representation or warranty by the Agent. Each
Purchaser represents and warrants to the Agent that, independently and without
reliance upon the Agent or any other Purchaser and based on such documents and
information as it has deemed appropriate, it has made and will continue to make
its own appraisal of and investigation into the business, operations, property,
prospects, financial and other conditions and creditworthiness of the Seller,
the Swift Entities, and the Receivables and its own decision to enter into this
Agreement and to take, or omit, action under any Transaction Document. The Agent
shall deliver each month to any Purchaser that so requests a copy of the
Periodic Report(s) received covering the preceding calendar month. Except for
items specifically required to be delivered hereunder, the Agent shall not have
any duty or responsibility to provide any Purchaser with any information
concerning the Seller, any Swift Entity or any of their Affiliates that comes
into the possession of the Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
SECTION 8.8. AGENT AND AFFILIATES. The Agent and its Affiliates may extend
credit to, accept deposits from and generally engage in any kind of business
with the Seller, any Swift Entity or any of their Affiliates and, in its roles
as a Liquidity Provider and the Enhancer, ABN AMRO may exercise or refrain from
exercising its rights and powers as if it were not the Agent. The parties
acknowledge that ABN AMRO acts as agent for Amsterdam and subagent for
Amsterdam's management company in various capacities, as well as providing
credit facilities and other support for Amsterdam not contained in the
Transaction Documents.
SECTION 8.9. INDEMNIFICATION. Each Committed Purchaser shall indemnify and
hold harmless the Agent and its officers, directors, employees, representatives
and agents (to the extent not reimbursed by the Seller or any Swift Entity and
without limiting the obligation of the Seller or any Swift Entity to do so),
ratably in accordance with its Ratable Share from and against any and all
liabilities, obligations, losses, damages, penalties, judgments, settlements,
costs, expenses and disbursements of any kind whatsoever (including in
connection with any investigative or threatened proceeding, whether or not the
Agent or such Person shall be designated a party thereto) that may at any time
be imposed on, incurred by or asserted against the Agent or such Person as a
result of, or related to, any of the transactions contemplated by the
Transaction Documents or the execution, delivery or performance of the
Transaction Documents or any other document furnished in connection therewith
(but excluding any such liabilities, obligations, losses, damages, penalties,
judgments, settlements, costs, expenses or disbursements resulting solely from
the gross negligence or willful misconduct of the Agent or such Person as
finally determined by a court of competent jurisdiction).
SECTION 8.10. SUCCESSOR AGENT. The Agent may, upon at least five (5) days
notice to the Seller and each Purchaser, resign as Agent. Such resignation shall
not become effective until a successor agent is appointed by an Instructing
Group and has accepted such appointment. Upon such acceptance of its appointment
as Agent hereunder by a successor Agent, such successor Agent shall succeed to
and become vested with all the rights and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under the
Transaction Documents. After any retiring Agent's resignation hereunder, the
-26-
provisions of Article VI and this Article VIII shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was the Agent.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. TERMINATION. Amsterdam shall cease to be a party hereto when
the Amsterdam Termination Date has occurred, Amsterdam holds no Investment and
all amounts payable to it hereunder have been indefeasibly paid in full. This
Agreement shall terminate following the Liquidity Termination Date when no
Investment is held by a Purchaser and all other amounts payable hereunder have
been indefeasibly paid in full, but the rights and remedies of the Agent and
each Purchaser under Article VI and Section 8.9 shall survive such termination.
SECTION 9.2. NOTICES. Unless otherwise specified, all notices and other
communications hereunder shall be in writing (including by telecopier or other
facsimile communication), given to the appropriate Person at its address or
telecopy number set forth on the signature pages hereof or at such other address
or telecopy number as such Person may specify, and effective when received at
the address specified by such Person. Each party hereto, however, authorizes the
Agent to act on telephone notices of Purchases and Discount Rate and Tranche
Period selections from any person the Agent in good faith believes to be acting
on behalf of the relevant party and, at the Agent's option, to tape record any
such telephone conversation. Each party hereto agrees to deliver promptly a
confirmation of each telephone notice given or received by such party (signed by
an authorized officer of such party), but the absence of such confirmation shall
not affect the validity of the telephone notice. The Agent's records of all such
conversations shall be deemed correct and, if the confirmation of a conversation
differs in any material respect from the action taken by the Agent, the records
of the Agent shall govern absent manifest error. The number of days for any
advance notice required hereunder may be waived (orally or in writing) by the
Person receiving such notice and, in the case of notices to the Agent, the
consent of each Person to which the Agent is required to forward such notice.
SECTION 9.3. PAYMENTS AND COMPUTATIONS. Notwithstanding anything herein to
the contrary, any amounts to be paid or transferred by the Seller or the
Collection Agent to, or for the benefit of, any Purchaser or any other Person
shall be paid or transferred to the Agent (for the benefit of such Purchaser or
other Person). The Agent shall promptly (and, if reasonably practicable, on the
day it receives such amounts) forward each such amount to the Person entitled
thereto and such Person shall apply the amount in accordance herewith. All
amounts to be paid or deposited hereunder shall be paid or transferred on the
day when due in immediately available Dollars (and, if due from the Seller or
Collection Agent, by 1:00 p.m. (Chicago time), with amounts received after such
time being deemed paid on the Business Day following such receipt). The Seller
hereby authorizes the Agent to debit the Seller Account for application to any
amounts owed by the Seller hereunder. The Seller shall, to the extent permitted
by law, pay to the Agent upon demand, for the account of the applicable Person,
interest on all amounts not paid or transferred by the Seller or the Collection
Agent when due hereunder at a rate equal to the Prime Rate plus 2%, calculated
from the date any such amount became due until the date paid in full. Any
-27-
payment or other transfer of funds scheduled to be made on a day that is not a
Business Day shall be made on the next Business Day, and any Discount Rate or
interest rate accruing on such amount to be paid or transferred shall continue
to accrue to such next Business Day. All computations of interest, fees, and
Discount shall be calculated for the actual days elapsed based on a 360 day
year.
SECTION 9.4. SHARING OF RECOVERIES. Each Purchaser agrees that if it
receives any recovery, through set-off, judicial action or otherwise, on any
amount payable or recoverable hereunder in a greater proportion than should have
been received hereunder or otherwise inconsistent with the provisions hereof,
then the recipient of such recovery shall purchase for cash an interest in
amounts owing to the other Purchasers (as return of Investment or otherwise),
without representation or warranty except for the representation and warranty
that such interest is being sold by each such other Purchaser free and clear of
any Adverse Claim created or granted by such other Purchaser, in the amount
necessary to create proportional participation by the Purchasers in such
recovery (as if such recovery were distributed pursuant to Section 2.3). If all
or any portion of such amount is thereafter recovered from the recipient, such
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest.
SECTION 9.5. RIGHT OF SETOFF. During a Termination Event, each Purchaser is
hereby authorized (in addition to any other rights it may have) to setoff,
appropriate and apply (without presentment, demand, protest or other notice
which are hereby expressly waived) any deposits and any other indebtedness held
or owing by such Purchaser (including by any branches or agencies of such
Purchaser) to, or for the account of, the Seller against amounts owing by the
Seller hereunder (even if contingent or unmatured).
SECTION 9.6. AMENDMENTS. Except as otherwise expressly provided herein, no
amendment or waiver hereof shall be effective unless signed by the Seller and
the Instructing Group. In addition, no amendment of any Transaction Document
shall, without the consent of (a) all the Liquidity Providers, (i) extend the
Liquidity Termination Date or the date of any payment or transfer of Collections
by the Seller to the Collection Agent or by the Collection Agent to the Agent,
(ii) reduce the rate or extend the time of payment of Discount for any
Eurodollar Tranche or Prime Tranche, (iii) reduce or extend the time of payment
of any fee payable to the Liquidity Providers, (iv) except as provided herein,
release, transfer or modify any Committed Purchaser's Purchase Interest or
change any Commitment, (v) amend the definition of Required Liquidity Providers,
Instructing Group, Termination Event or Section 1.1, 1.2, 1.5, 1.7(a), 2.1, 2.2,
2.3, 7.2 or 9.6, Article VI, Section 2.1 of the Transfer Agreement, or any
provision of the Limited Guaranty or any obligation of any Swift Entity
thereunder, (vi) consent to the assignment or transfer by the Seller or the
Originator of any interest in the Receivables other than transfers under the
Transaction Documents or permit any Swift Entity to transfer any of its
obligations under any Transaction Document except as expressly contemplated by
the terms of the Transaction Documents, or (vii) amend any defined term relevant
to the restrictions in clauses (i) through (vi) in a manner which would
circumvent the intention of such restrictions or (b) the Agent, amend any
provision hereof if the effect thereof is to affect the indemnities to, or the
rights or duties of, the Agent or to reduce any fee payable for the Agent's own
account. Notwithstanding the foregoing, the amount of any fee or other payment
due and payable from the Seller to the Agent (for its own account), Amsterdam or
the Enhancer may be changed or otherwise adjusted solely with the consent of the
-28-
Seller and the party to which such payment is payable. Any amendment hereof
shall apply to each Purchaser equally and shall be binding upon the Seller, the
Purchasers and the Agent.
SECTION 9.7. WAIVERS. No failure or delay of the Agent or any Purchaser in
exercising any power, right, privilege or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right, privilege or remedy preclude any other or further exercise thereof or the
exercise of any other power, right, privilege or remedy. Any waiver hereof shall
be effective only in the specific instance and for the specific purpose for
which such waiver was given. After any waiver, the Seller, the Purchasers and
the Agent shall be restored to their former position and rights and any
Potential Termination Event waived shall be deemed to be cured and not
continuing, but no such waiver shall extend to (or impair any right consequent
upon) any subsequent or other Potential Termination Event. Any additional
Discount that has accrued after a Termination Event before the execution of a
waiver thereof, solely as a result of the occurrence of such Termination Event,
may be waived by the Agent at the direction of the Purchaser entitled thereto
or, in the case of Discount owing to the Liquidity Providers, of the Required
Liquidity Providers.
SECTION 9.8. SUCCESSORS AND ASSIGNS; PARTICIPATIONS; ASSIGNMENTS.
(a) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns. Except as otherwise provided herein, the Seller may not assign or
transfer any of its rights or delegate any of its duties without the prior
consent of the Agent and the Purchasers.
(b) PARTICIPATIONS. Any Purchaser may sell to one or more Persons (each a
"PARTICIPANT") participating interests in the interests of such Purchaser
hereunder and under the Transfer Agreement. Such Purchaser shall remain solely
responsible for performing its obligations hereunder, and the Seller and the
Agent shall continue to deal solely and directly with such Purchaser in
connection with such Purchaser's rights and obligations hereunder and under the
Transfer Agreement. Each Participant shall be entitled to the benefits of
Article VI and shall have the right of setoff through its participation in
amounts owing hereunder to the same extent as if it were a Purchaser hereunder
and under the Transfer Agreement, which right of setoff is subject to such
Participant's obligation to share with the Purchasers as provided in Section
9.4. A Purchaser shall not agree with a Participant to restrict such Purchaser's
right to agree to any amendment hereto or to the Transfer Agreement, except
amendments described in clause (a) of Section 9.6.
(c) ASSIGNMENTS BY LIQUIDITY PROVIDERS. Any Liquidity Provider may assign
to one or more Persons ("PURCHASING LIQUIDITY PROVIDERS"), acceptable to the
Agent in its sole discretion, any portion of its Commitment as a Liquidity
Provider hereunder and under the Transfer Agreement and Purchase Interest
pursuant to a supplement hereto and to the Transfer Agreement (a "TRANSFER
SUPPLEMENT") in form satisfactory to the Agent executed by each such Purchasing
Liquidity Provider, such selling Liquidity Provider and the Agent. Any such
assignment by a Liquidity Provider must be for an amount of at least Five
Million Dollars. Each Purchasing Liquidity Provider shall pay a fee of Three
Thousand Dollars to the Agent. Any partial assignment shall be an assignment of
-29-
an identical percentage of such selling Liquidity Provider's Investment and its
Commitment as a Liquidity Provider hereunder and under the Transfer Agreement.
Upon the execution and delivery to the Agent of the Transfer Supplement and
payment by the Purchasing Liquidity Provider to the selling Liquidity Provider
of the agreed purchase price, such selling Liquidity Provider shall be released
from its obligations hereunder and under the Transfer Agreement to the extent of
such assignment and such Purchasing Liquidity Provider shall for all purposes be
a Liquidity Provider party hereto and shall have all the rights and obligations
of a Liquidity Provider hereunder to the same extent as if it were an original
party hereto and to the Transfer Agreement with a Commitment as a Liquidity
Provider, any Investment and any related Assigned Amsterdam Settlement described
in the Transfer Supplement.
(d) REPLACEABLE LIQUIDITY PROVIDERS. If any Liquidity Provider (a
"REPLACEABLE LIQUIDITY PROVIDER") shall (i) petition the Seller for any amounts
under Section 6.2 or (ii) have a short-term debt rating lower than the "A-1" by
S&P and "P-1" by Moody's (unless such Liquidity Provider is also the Enhancer),
the Seller or Amsterdam may designate a replacement financial institution (a
"REPLACEMENT LIQUIDITY PROVIDER") acceptable to the Agent, in its sole
discretion, to which such Replaceable Liquidity Provider shall, subject to its
receipt of an amount equal to its Investment, any related Assigned Amsterdam
Settlement, and accrued Discount and fees thereon (plus, from the Seller, any
Early Payment Fee that would have been payable if such transferred Investment
had been paid on such date) and all amounts payable under Section 6.2, promptly
assign all of its rights, obligations and Liquidity Provider Commitment
hereunder and under the Transfer Agreement, together with all of its Purchase
Interest, and any related Assigned Amsterdam Settlement, to the Replacement
Liquidity Provider in accordance with Section 9.8(c).
(e) ASSIGNMENT BY AMSTERDAM. Each party hereto agrees and consents (i) to
Amsterdam's assignment, participation, grant of security interests in or other
transfers of any portion of, or any of its beneficial interest in, the Amsterdam
Purchase Interest and the Amsterdam Settlement and (ii) to the complete
assignment by Amsterdam of all of its rights and obligations hereunder to ABN
AMRO or any other Person, and upon such assignment Amsterdam shall be released
from all obligations and duties hereunder; PROVIDED, HOWEVER, that Amsterdam may
not, without the prior consent of the Required Liquidity Providers and the
Enhancer, transfer any of its rights under the Transfer Agreement to cause the
Liquidity Providers or the Enhancer to purchase the Amsterdam Purchase Interest
and the Amsterdam Settlement unless the assignee (i) is a corporation whose
principal business is the purchase of assets similar to the Receivables, (ii)
has ABN AMRO as its administrative agent and (iii) issues commercial paper with
credit ratings substantially comparable to the Ratings. Amsterdam shall promptly
notify each party hereto of any such assignment. Upon such an assignment of any
portion of Amsterdam's Purchase Interest and the Amsterdam Settlement, the
assignee shall have all of the rights of Amsterdam hereunder relate to such
Amsterdam Purchase Interest and Amsterdam Settlement.
(f) OPINIONS OF COUNSEL. If required by the Agent or to maintain the
Ratings, each Transfer Supplement must be accompanied by an opinion of counsel
of the assignee as to such matters as the Agent may reasonably request.
-30-
SECTION 9.9. INTENDED TAX CHARACTERIZATION. It is the intention of the
parties hereto that, for the purposes of all Taxes, the transactions
contemplated hereby shall be treated as a loan by the Purchasers (through the
Agent) to the Seller that is secured by the Receivables (the "INTENDED TAX
CHARACTERIZATION"). The parties hereto agree to report and otherwise to act for
the purposes of all Taxes in a manner consistent with the Intended Tax
Characterization. As provided in Section 5.1(g), the Seller hereby grants to the
Agent, for the ratable benefit of the Purchasers, a security interest in all
Receivables and Collections to secure the payment of all amounts other than
Investment owing hereunder and (to the extent of the Sold Interest) to secure
the repayment of all Investment.
SECTION 9.10. CONFIDENTIALITY. The parties hereto agree to hold the
Transaction Documents or any other confidential or proprietary information
received in connection therewith in confidence and agree not to provide any
Person with copies of any Transaction Document or such other confidential or
proprietary information other than to (i) any officers, directors, members,
managers, employees or outside accountants, auditors or attorneys thereof, (ii)
any prospective or actual assignee or participant which (in each case) has
signed a confidentiality agreement substantially in the form of the
confidentiality agreement signed by the Agent prior to the date hereof, (iii)
any rating agency, (iv) any surety, guarantor or credit or liquidity enhancer to
the Agent or any Purchaser which (in each case) has signed a confidentiality
agreement substantially in the form of the confidentiality agreement signed by
the Agent prior to the date hereof, (v) any entity organized to loan, or make
loans secured by, financial assets for which ABN AMRO provides managerial
services or acts as an administrative agent which (in each case) has signed a
confidentiality agreement substantially in the form of the confidentiality
agreement signed by the Agent prior to the date hereof, (vi) Amsterdam's
administrator, management company, referral agents, issuing agents or
depositaries or CP Dealers and (vii) Governmental Authorities with appropriate
jurisdiction. Notwithstanding the above stated obligations, PROVIDED that the
other parties hereto are given notice of the intended disclosure or use, the
parties hereto will not be liable for disclosure or use of such information
which such Person can establish by tangible evidence: (i) was required by law,
including pursuant to a valid subpoena or other legal process, (ii) was in such
Person's possession or known to such Person prior to receipt or (iii) is or
becomes known to the public through disclosure in a printed publication (without
breach of any of such Person's obligations hereunder). In addition, the
foregoing provisions of this Section 9.10 shall not prevent any party hereto
from delivering any Transaction Document to any Person upon request if such
Transaction Document was publicly filed by such party pursuant to the
requirements of any Governmental Authority.
SECTION 9.11. AGREEMENT NOT TO PETITION. Each party hereto agrees, for the
benefit of the holders of the privately or publicly placed indebtedness for
borrowed money for Amsterdam, not, prior to the date which is one (1) year and
one (1) day after the payment in full of all such indebtedness, to acquiesce,
petition or otherwise, directly or indirectly, invoke, or cause Amsterdam to
invoke, the process of any Governmental Authority for the purpose of (a)
commencing or sustaining a case against Amsterdam under any federal or state
bankruptcy, insolvency or similar law (including the Federal Bankruptcy Code),
(b) appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official for Amsterdam, or any substantial part of
its property, or (c) ordering the winding up or liquidation of the affairs of
Amsterdam.
-31-
SECTION 9.12. EXCESS FUNDS. Other than amounts payable under Section 9.4,
Amsterdam shall be required to make payment of the amounts required to be paid
pursuant hereto only if Amsterdam has Excess Funds (as defined below). If
Amsterdam does not have Excess Funds, the excess of the amount due hereunder
(other than pursuant to Section 9.4) over the amount paid shall not constitute a
"CLAIM" (as defined in Section 101(5) of the Federal Bankruptcy Code) against
Amsterdam until such time as Amsterdam has Excess Funds. If Amsterdam does not
have sufficient Excess Funds to make any payment due hereunder (other than
pursuant to Section 9.4), then Amsterdam may pay a lesser amount and make
additional payments that in the aggregate equal the amount of deficiency as soon
as possible thereafter. The term "EXCESS FUNDS" means the excess of (a) the
aggregate projected value of Amsterdam's assets and other property (including
cash and cash equivalents), over (b) the sum of (i) the sum of all scheduled
payments of principal, interest and other amounts payable on publicly or
privately placed indebtedness of Amsterdam for borrowed money, plus (ii) the sum
of all other liabilities, indebtedness and other obligations of Amsterdam for
borrowed money or owed to any credit or liquidity provider, together with all
unpaid interest then accrued thereon, plus (iii) all taxes payable by Amsterdam
to the Internal Revenue Service, plus (iv) all other indebtedness, liabilities
and obligations of Amsterdam then due and payable, but the amount of any
liability, indebtedness or obligation of Amsterdam shall not exceed the
projected value of the assets to which recourse for such liability, indebtedness
or obligation is limited. Excess Funds shall be calculated once each Business
Day.
SECTION 9.13. NO RECOURSE. The obligations of Amsterdam, its management
company, its administrator and its referral agents (each a "PROGRAM
ADMINISTRATOR") under any Transaction Document or other document (each, a
"PROGRAM DOCUMENT") to which a Program Administrator is a party are solely the
corporate obligations of such Program Administrator and no recourse shall be had
for such obligations against any Affiliate, director, officer, member, manager,
employee, attorney or agent of any Program Administrator.
SECTION 9.14. HEADINGS; COUNTERPARTS. Article and Section Headings in this
Agreement are for reference only and shall not affect the construction of this
Agreement. This Agreement may be executed by different parties on any number of
counterparts, each of which shall constitute an original and all of which, taken
together, shall constitute one and the same agreement.
SECTION 9.15. CUMULATIVE RIGHTS AND SEVERABILITY. All rights and remedies
of the Purchasers and Agent hereunder shall be cumulative and non-exclusive of
any rights or remedies such Persons have under law or otherwise. Any provision
hereof that is prohibited or unenforceable in any jurisdiction shall, in such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof and
without affecting such provision in any other jurisdiction.
SECTION 9.16. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS (AND
NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS. THE SELLER HEREBY SUBMITS TO
THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS AND OF ANY ILLINOIS STATE COURT SITTING IN
CHICAGO, ILLINOIS FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF, OR
-32-
RELATING TO, THE TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
The Seller hereby irrevocably waives, to the fullest extent permitted by law,
any objection it may now or hereafter have to the venue of any such proceeding
and any claim that any such proceeding has been brought in an inconvenient
forum. Nothing in this Section 9.16 shall affect the right of the Agent or any
Purchaser to bring any action or proceeding against the Seller or its property
in the courts of other jurisdictions.
SECTION 9.17. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH PARTY HERETO IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF, OR IN CONNECTION WITH,
ANY TRANSACTION DOCUMENT OR ANY MATTER ARISING THEREUNDER.
SECTION 9.18. ENTIRE AGREEMENT. The Transaction Documents constitute the
entire understanding of the parties thereto concerning the subject matter
thereof. Any previous or contemporaneous agreements, whether written or oral,
concerning such matters are superseded thereby.
-33-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date hereof.
ABN AMRO BANK N.V., as the Agent ABN AMRO BANK N.V., as the Enhancer
By: By:
------------------------------- ---------------------------------
Title: Title:
---------------------------- ------------------------------
By: By:
------------------------------- ---------------------------------
Title: Title:
---------------------------- ------------------------------
Address: Structured Finance, Address: Structured Finance,
Asset Securitization Asset Securitization
135 South LaSalle Street 135 South LaSalle Street
Chicago, Illinois 60674-9135 Chicago, Illinois 60674-9135
Attention: Purchaser Agent- Attention: Enhancer-
Amsterdam Amsterdam
Telephone: (312) 904-6263 Telephone: (312) 904-6263
Telecopy: (312) 904-6376 Telecopy: (312) 904-6376
ABN AMRO BANK N.V., AMSTERDAM FUNDING CORPORATION
as a Liquidity Provider
By: By:
------------------------------- ---------------------------------
Title: Title:
---------------------------- ------------------------------
By: Address: c/o Global Securitization
-------------------------------- Services, LLC
Title: 25 West 43rd Street
---------------------------- Suite 704
Address: Structured Finance, New York, New York 10036
Asset Securitization Attention: Andrew Stidd
135 South LaSalle Street
Chicago, Illinois 60674-9135 Telephone: (212) 302-8330
Attention: Administrator - Telecopy: (212) 302-8767
Amsterdam
Telephone: (312) 904-6263
Telecopy: (312) 904-6376
-34-
SWIFT RECEIVABLES CORPORATION, as Seller
By:
-------------------------------
Title:
-----------------------------
Address: 2702 West Encanto
Phoenix, Arizona 85009
Attention: Vice President
Telephone: (623) 907-7406
Telecopy: (623) 907-7503
SWIFT TRANSPORTATION CORPORATION,
as Initial Collection Agent
By:
-------------------------------
Title:
-----------------------------
Address: 2200 South 75th Avenue
Phoenix, AZ 85043
Attention: William F. Riley III
Telephone: (623) 907-7406
Telecopy: (623) 907-7503
-35-
SCHEDULE I
DEFINITIONS
The following terms have the meanings set forth, or referred to, below:
"ABN AMRO" means ABN AMRO Bank N.V. in its individual capacity and not in
its capacity as the Agent.
"ADVERSE CLAIM" means, for any asset or property of a Person, a lien,
security interest, charge, mortgage, pledge, hypothecation, assignment or
encumbrance, or any other right or similar claim, in, of or on such asset or
property in favor of any other Person, except those created by the Transaction
Documents.
"AFFILIATE" means, for any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with
such Person. For purposes of this definition, "CONTROL" means the power,
directly or indirectly, to either (i) vote ten percent (10%) or more of the
securities having ordinary voting power for the election of directors of a
Person or (ii) cause the direction of the management and policies of a Person.
"AGENT" is defined in the first paragraph hereof.
"AGENT'S ACCOUNT" means the account designated to the Seller and the
Purchasers by the Agent.
"AGGREGATE COMMITMENT" means $102,000,000, as such amount may be reduced
pursuant to Section 1.6.
"AGGREGATE INVESTMENT" means the sum of the Investments of all Purchasers.
"AGGREGATE RESERVE" means, at any time at which such amount is calculated,
the sum of the Loss Reserve, Dilution Reserve and Discount Reserve.
"ALLOCATED COMMERCIAL PAPER" means commercial paper notes issued by
Amsterdam for a tenor and in an amount specifically requested by any Person in
connection with a Receivable Purchase Facility.
"AMSTERDAM" is defined in the first paragraph hereof.
"AMSTERDAM FUNDING SOURCE" means any insurance company, bank or other
financial institution providing liquidity, back-up purchase or credit support
for Amsterdam.
"AMSTERDAM SETTLEMENT" means the sum of all claims and rights to payment
pursuant to Section 1.5 or 1.7 or any other provision owed to Amsterdam (or owed
to the Agent or the Collection Agent for the benefit of Amsterdam) by the Seller
that, if paid, would be applied to reduce Amsterdam's Investment.
"AMSTERDAM TERMINATION DATE" means the earlier of (a) the Business Day
designated by Amsterdam at any time to the Seller and (b) the Liquidity
Termination Date.
"ASSIGNED AMSTERDAM SETTLEMENT" means, for each Committed Purchaser for any
Put, the product of such Purchaser's Purchased Percentage and the amount of the
Amsterdam Settlement being transferred pursuant to such Put.
"BANKRUPTCY EVENT" means, for any Person, that (a) such Person makes a
general assignment for the benefit of creditors or any proceeding is instituted
by or against such Person seeking to adjudicate it bankrupt or insolvent, or
seeking the liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee or other
similar official for it or any substantial part of its property or (b) such
Person takes any corporate action to authorize any such action.
"BREAK FUNDING COSTS" means for any Pool Funded Purchase Interest amounts
payable to Amsterdam under the applicable Receivables Purchase Facility in
connection with any prepayment or amortization if amounts payable thereunder in
excess of the amount of the investment or loan prepaid or amortized and accrued
and unpaid interest or discount thereon.
"BUSINESS DAY" means any day other than (a) a Saturday, Sunday or other day
on which banks in New York City, New York or Chicago, Illinois are authorized or
required to close, (b) a holiday on the Federal Reserve calendar and, (c) solely
for matters relating to a Eurodollar Tranche, a day on which dealings in Dollars
are not carried on in the London interbank market.
"CHARGE-OFF" means any Receivable that has or should have been (in
accordance with the Credit and Collection Policy) charged off or written off by
the Seller.
"CHARGE-OFF RATIO" means, for any calendar month, the ratio (expressed as a
percentage) of the outstanding balance of Charge-Offs made during the immediate
preceding twelve calendar months to the average aggregate outstanding principal
balance of all Receivables as of the last day of each of the immediately
preceding twelve calendar months.
"COLLECTION" means any amount paid, or deemed paid, on a Receivable or by
the Seller as a Deemed Collection under Section 1.5(b).
"COLLECTION AGENT" is defined in Section 3.1(a).
"COLLECTION AGENT FEE" is defined in Section 3.6.
I-2
"COLLECTION AGENT REPLACEMENT EVENT" means the occurrence of any one or
more of the following:
(a) the Collection Agent (or any sub-collection agent) fails to
observe or perform any material term, covenant or agreement under any
Transaction Document and such failure remains unremedied for thirty days;
(b) any written representation, warranty, certification or statement
made by the Collection Agent in, or pursuant to, any Transaction Document
proves to have been incorrect in any material adverse respect when made;
PROVIDED that if any such representation, warranty, certification or
statement has been subsequently remedied (such that if made or given as of
the date of remedy it is no longer incorrect in any material respect) and
such breach has caused no material adverse effect on the rights or
interests of any Purchaser under this Agreement, such breach shall no
longer constitute a Collection Agent Replacement Event; or
(c) the Collection Agent suffers a Bankruptcy Event.
"COMMITMENT" means, for each Committed Purchaser, the amount set forth on
Schedule II, as adjusted in accordance with Sections 1.6 and 9.8.
"COMMITTED PURCHASERS" is defined in Section 1.1(b).
"CONCENTRATION LIMIT" means (i) with respect to Obligors with senior
unsecured long-term indebtedness rate A- (or higher) by S&P and A3 (or higher)
by Moody's, an amount not to exceed 12% of the aggregate outstanding balance of
all Eligible Receivables, (ii) with respect to Obligors that do not satisfy the
requirements of clause (i) above but have senior unsecured long-term
indebtedness rated BBB (or higher) by S&P and Baa2 (or higher) by Moody's, an
amount not to exceed 6% of the aggregate outstanding balance of all Eligible
Receivables, and (iii) with respect to all other Obligors, an amount not to
exceed 3% of the aggregate outstanding balance of all Eligible Receivables.
"CP DEALER" means, at any time, each Person Amsterdam then engages as a
placement agent or commercial paper dealer.
"CP DISCOUNT" means, for any Discount Period, the amount of interest or
discount accrued, during such Discount Period on all the outstanding commercial
paper, or portion thereof, issued by Amsterdam to fund its Investment, including
all dealer commissions and other costs of issuing commercial paper, whether any
such commercial paper was issued specifically to fund such Investment or is
allocated, in whole or in part, to such funding.
"CP RATE" means, for any CP Tranche Period, a rate per annum equal to (a)
the weighted average of the rates at which commercial paper notes having a term
equal to such CP Tranche Period may be sold by any CP Dealer selected by
Amsterdam, as agreed between each such CP Dealer and Amsterdam, plus (b) on or
after the occurrence of a Termination Event, 2%. If such rate is a discount
rate, the CP Rate shall be the rate resulting from Amsterdam's converting such
I-3
discount rate to an interest-bearing equivalent rate. The CP Rate shall include
all costs and expenses to Amsterdam of issuing the related commercial paper
notes, including all dealer commissions and note issuance costs in connection
therewith.
"CREDIT AND COLLECTION POLICY" means the Seller's credit and collection
policy and practices relating to Receivables attached hereto as Exhibit I.
"DEEMED COLLECTIONS" is defined in Section 1.5(c).
"DEFAULT RATIO" means at the end of any month for the three-month period
then ended, the ratio (expressed as a percentage), of (a) the sum of the
aggregate outstanding balance of all Defaulted Receivables at the end of each
calendar month during such period plus the aggregate outstanding balance of all
Receivables that become Charge-Offs during the immediately preceding twelve
calendar months to (b) the sum of the aggregate outstanding balance of all
Receivables at the end of each calendar month plus the aggregate outstanding
balance of all Receivables that become Charge-Offs during the immediately
preceding twelve calendar months.
"DEFAULTED RECEIVABLE" means any Receivable (a) on which any amount is
unpaid more than 90 days past its original due date or (b) the Obligor on which
has suffered a Bankruptcy Event.
"DELINQUENCY RATIO" means, at the end of any month for the three-month
period then ended, the ratio (expressed as a percentage), of (a) the aggregate
outstanding balance of all Delinquent Receivables as of the end of each month
during such period to (b) the sum of the aggregate outstanding balance of all
Receivables as of the end of such calendar month.
"DELINQUENT RECEIVABLE" means any Receivable (other than a Charge-Off or
Defaulted Receivable) on which any amount is unpaid more than 60 days past its
original due date.
"DESIGNATED FINANCIAL OFFICER" means the chief financial officer or chief
accounting officer of the Seller or the relevant Swift Entity, as applicable.
"DILUTION RATIO" means, at the end of any month for the three-month period
then ended, the ratio (expressed as a percentage), of (a) the aggregate amount
of payments owed by the Seller pursuant to the first sentence of Section 1.5(b)
for such period to (b) the aggregate amount of Collections received during such
period.
"DILUTION RESERVE" means (i) the greater of (a) 1% and (b) the highest
Dilution Ratio (expressed as a decimal) as of the last day of each of the last
three calendar months multiplied by (ii) the Eligible Receivables Balance.
"DISCOUNT" means, for any Tranche Period, (a) the product of (i) the
Discount Rate for such Tranche Period, (ii) the total amount of Investment
allocated to the Tranche Period, and (iii) the number of days elapsed during the
Tranche Period divided by (b) 360 days.
I-4
"DISCOUNT PERIOD" means, with respect to any Settlement Date or the
Liquidity Termination Date, the period from and including the preceding
Settlement Date (or if none, the date that the first Incremental Purchase is
made hereunder) to but not including such Settlement Date or Liquidity
Termination Date, as applicable.
"DISCOUNT RATE" means, (i) for any Tranche Period relating to a CP Tranche,
the CP Rate applicable thereto, (ii) for any Tranche Period relating to a
Eurodollar Tranche, the Eurodollar Rate applicable thereto and (iii) for any
Tranche Period relating to a Prime Tranche, the Prime Rate applicable thereto.
"DISCOUNT RESERVE" means, at any time, the product of (a) 1.5 multiplied by
(b) the rate announced by ABN AMRO as its "PRIME RATE" (which may not be its
best or lowest rate) plus 1% multiplied by (c) Aggregate Investment multiplied
by (d) a fraction, the numerator of which is the average of the Turnover Ratios
calculated for the immediately preceding three calendar months and the
denominator of which is 360.
"DOLLAR" and "$" means lawful currency of the United States of America.
"EARLY PAYMENT FEE" means, if any Investment of a Purchaser allocated (or,
in the case of a requested Purchase not made by the Committed Purchasers for any
reason other than their default, scheduled to be allocated) to a Tranche Period
for a CP Tranche or Eurodollar Tranche is reduced or terminated before the last
day of such Tranche Period (the amount of Investment so reduced or terminated
being referred to as the "PREPAID AMOUNT"), the cost to the relevant Purchaser
of terminating or reducing such Tranche, which (a) for a CP Tranche means any
compensation payable in prepaying the related commercial paper or, if not
prepaid, any shortfall between the amount that will be available to Amsterdam on
the maturity date of the related commercial paper from reinvesting the Prepaid
Amount in Permitted Investments and the Face Amount of such commercial paper and
(b) for a Eurodollar Tranche will be determined based on the difference between
the LIBOR applicable to such Tranche and the LIBOR applicable for a period equal
to the remaining maturity of the Tranche on the date the Prepaid Amount is
received.
"ELIGIBLE RECEIVABLE" means, at any time, any Receivable:
(i) the Obligor of which (a) is a resident of, or organized under the laws
of, or with its chief executive office in, the USA; (b) is not an Affiliate of
any of the parties hereto or the Originator; (c) is not a government or a
governmental subdivision or agency; (d) has not suffered a Bankruptcy Event; (e)
is a customer of the Originator in good standing; and (f) does not have more
than 25% in aggregate principal amount of its Receivables that are Defaulted
Receivables or Receivables that became Charge-Offs;
(ii) which is stated to be due and payable within 30 days after the invoice
therefor or, for Receivables owing by Obligors identified by the Seller to the
Agent in connection with the first Incremental Purchase, which are stated to be
due and payable within 45 days after the invoice therefor;
I-5
(iii) which is not a Defaulted Receivable or a Charge-Off;
(iv) which is an "ACCOUNT" or "CHATTEL PAPER" within the meaning of Section
9-105 and Section 9-106, respectively of the UCC of all applicable
jurisdictions;
(v) which is denominated and payable only in Dollars in the USA;
(vi) which constitutes the legal, valid and binding obligation of the
related Obligor enforceable against such Obligor in accordance with its terms
subject to no offset, counterclaim, defense or other Adverse Claim, and is not
an executory contract or unexpired lease within the meaning of Section 365 of
the Bankruptcy Code;
(vii) which arises under a contract that (a) contains an obligation to pay
a specified sum of money and is subject to no contingencies, (b) does not
require the Obligor under such contract to consent to the transfer, sale or
assignment of the rights and duties of the Originator under such contract, (c)
does not contain a confidentiality provision that purports to restrict any
Purchaser's exercise of rights under this Agreement, including, without
limitation, the right to review such contract and (d) directs that payment be
made to a Lock-Box or other collection account;
(viii) which does not, in whole or in part, contravene any law, rule or
regulation applicable thereto (including, without limitation, those relating to
usury, truth in lending, fair credit billing, fair credit reporting, equal
credit opportunity, fair debt collection practices and privacy);
(ix) which satisfies all applicable requirements of the Credit and
Collection Policy and was generated in the ordinary course of the Originator's
business from the provision of transportation services to a related Obligor
solely by the Originator; and
(x) the purchase of which with proceeds of notes would constitute a
"current transaction" within the meaning of Section 3(a)(3) of the Securities
Act of 1933.
"ELIGIBLE RECEIVABLE BALANCE" means, at any time, the aggregate outstanding
principal balance of all Eligible Receivables minus the portion of the aggregate
outstanding balance of Eligible Receivables which exceeds the Concentration
Limit or the Special Limit.
"ENHANCER" is defined in the first paragraph hereof.
"ENHANCER COMMITMENT PERCENTAGE" means 10%.
"EURODOLLAR RATE" means, for any Tranche Period for a Eurodollar Tranche,
the sum of (a) LIBOR for such Tranche Period divided by 1 minus the "RESERVE
REQUIREMENT" plus (b)(i) for Investment of a Liquidity Provider, the amount
specified in the Pricing Letter, or, (ii) for Investment of the Enhancer, the
amount specified in the Fee Letter plus (c) during the pendency of a Termination
Event, 2.00% for Investment of a Liquidity Provider and 2.00% for Investment of
the Enhancer; where "RESERVE REQUIREMENT" means, for any Tranche Period for a
Eurodollar Tranche, the maximum reserve requirement imposed during such Tranche
I-6
Period on "EUROCURRENCY LIABILITIES" as currently defined in Regulation D of the
Board of Governors of the Federal Reserve System.
"FACE AMOUNT" means the face amount of any Amsterdam commercial paper
issued on a discount basis or, if not issued on a discount basis, the principal
amount of such note and interest scheduled to accrue thereon to its stated
maturity.
"FEDERAL FUNDS RATE" means for any day the greater of (i) the highest rate
per annum as determined by ABN AMRO at which overnight Federal funds are offered
to ABN AMRO for such day by major banks in the interbank market, and (ii) if ABN
AMRO is borrowing overnight funds from a Federal Reserve Bank that day, the
highest rate per annum at which such overnight borrowings are made on that day.
Each determination of the Federal Funds Rate by ABN AMRO shall be conclusive and
binding on the Seller except in the case of manifest error.
"FEE LETTER" means the letter agreement dated as of the date hereof among
the Seller, the Agent, Amsterdam and the Enhancer.
"FUNDING AGREEMENT" means any agreement or instrument executed by Amsterdam
and executed by or in favor of any Amsterdam Funding Source or executed by any
Amsterdam Funding Source at the request of Amsterdam (including the Program
LOC).
"FUNDING CHARGES" means, for each day, the sum of (i) discount accrued on
Pooled Commercial Paper on such day, plus (ii) any and all accrued commissions
in respect of placement agents and commercial paper dealers in respect of such
Pooled Commercial Paper for such day, plus (iii) issuing and paying agents' fees
incurred on such Pooled Commercial Paper for such day, plus (iv) other costs
associated with funding small or odd-lot amounts with respect to all Receivable
Purchase Facilities which are funded by Pooled Commercial Paper for such day,
minus (v) any accrual of income net of expenses received on such day from
investment of collections received under all Receivable Purchase Facilities
funded with Pooled Commercial Paper, minus (vi) any payment received on such day
net of expenses in respect of Break Funding Costs related to the prepayment of
any Purchase Interests held by Amsterdam pursuant to the terms of any Receivable
Purchase Facilities funded substantially with Pooled Commercial Paper.
"GAAP" means generally accepted accounting principles in the USA, applied
on a consistent basis.
"GOVERNMENTAL AUTHORITY" means any (a) Federal, state, municipal or other
governmental entity, board, bureau, agency or instrumentality, (b)
administrative or regulatory authority (including any central bank or similar
authority) or (c) court, judicial authority or arbitrator, in each case, whether
foreign or domestic.
"INCREMENTAL PURCHASE" is defined in Section 1.1(b).
"INITIAL COLLECTION AGENT" is defined in the first paragraph hereof.
I-7
"INSTRUCTING GROUP" means the Required Liquidity Providers, the Enhancer
and, unless the Amsterdam Termination Date has occurred and Amsterdam has no
Investment, Amsterdam.
"INTENDED TAX CHARACTERIZATION" is defined in Section 9.9.
"INTERIM LIQUIDATION" means any time before the Liquidity Termination Date
during which no Reinvestment Purchases are made by any Purchaser, as established
pursuant to Section 1.2.
"INVESTMENT" means, for each Purchaser, (a) the sum of (i) all Incremental
Purchases by such Purchaser and (ii) the aggregate amount of any payments or
exchanges made by, or on behalf of, such Purchaser to any other Purchaser to
acquire Investment from such other Purchaser minus (b) all Collections, amounts
received from other Purchasers and other amounts received or exchanged and, in
each case, applied by the Agent or such Purchaser to reduce such Purchaser's
Investment. A Purchaser's Investment shall be restored to the extent any amounts
so received or exchanged and applied are rescinded or must be returned for any
reason.
"LIBOR" means, for any Tranche Period for a Eurodollar Tranche or other
time period, the rate per annum (rounded upwards, if necessary, to the next
higher one hundred-thousandth of a percentage point) for deposits in Dollars for
a period equal to such Tranche Period or other period, which appears on Page
3750 of the Telerate Service (or any successor page or successor service that
displays the British Bankers' Association Interest Settlement Rates for Dollar
deposits) as of 11:00 a.m. (London, England time) two Business Days before the
commencement of such Tranche Period or other period. If for any Tranche Period
for a Eurodollar Tranche no such displayed rate is available (or, for any other
period, if such displayed rate is not available or the need to calculate LIBOR
is not notified to the Agent at least 3 Business Days before the commencement of
the period for which it is to be determined), the Agent shall determine such
rate based on the rates ABN AMRO is offered deposits of such duration in the
London interbank market.
"LIMITED GUARANTY" means the Limited Guaranty, dated the date hereof, by
the Parent and the Originator in favor of the Agent.
"LIQUIDATION PERIOD" means, for Amsterdam only, all times when Amsterdam is
not making Reinvestment Purchases pursuant to Section 1.1(d) and, for all
Purchasers, all times (x) during an Interim Liquidation and (y) on and after the
Liquidity Termination Date.
"LIQUIDITY PROVIDERS" is defined in the first paragraph hereof.
"LIQUIDITY TERMINATION DATE" means the earliest of (a) the date of the
occurrence of a Termination Event described in clause (e) of the definition of
Termination Event, (b) the date designated by the Agent to the Seller at any
time after the occurrence of any other Termination Event, (c) the Business Day
designated by the Seller with no less than five (5) Business Days prior notice
to the Agent and (d) December 28, 2000.
I-8
"LOCK-BOX" means each post office box or bank box listed on Exhibit F, as
revised pursuant to Section 5.1(i).
"LOCK-BOX ACCOUNT" means each account maintained by the Collection Agent at
a Lock-Box Bank for the purpose of receiving or concentrating Collections.
"LOCK-BOX AGREEMENT" means each agreement between the Collection Agent and
a Lock-Box Bank concerning a Lock-Box Account.
"LOCK-BOX BANK" means each bank listed on Exhibit F, as revised pursuant to
Section 5.1(i).
"LOCK-BOX LETTER" means a letter in substantially the form of Exhibit G (or
otherwise acceptable to the Agent) from the Seller and the Collection Agent to
each Lock-Box Bank, acknowledged and accepted by such Lock-Box Bank and the
Agent.
"LOSS RESERVE" means, at any time, the product of (i) the greatest of (a)
12%, (b) the sum of (I) the Default Ratio as of the last day of the immediately
preceding calendar month plus (II) two times the Delinquency Ratio as of the
last day of the immediately preceding calendar month and (c) the sum of (I) the
Default Ratio as of the last day of the immediately preceding month plus (II)
the Delinquency Ratio as of the last day of the immediately preceding calendar
month plus (III) the difference between (1) the highest sum of the Default Ratio
and Delinquency Ratio as of the last day of the immediately preceding three
calendar months, minus (2) the lowest sum of the Default Ratio and Delinquency
Ratio as of the last day of the immediately preceding three calendar months
multiplied by (ii) the Eligible Receivables Balance.
"MATURED AGGREGATE INVESTMENT" means, at any time, the Matured Value of
Amsterdam's Investment plus the total Investments of all other Purchasers then
outstanding.
"MATURED VALUE" means, of any Investment, the sum of such Investment and
all unpaid Discount scheduled to become due (whether or not then due) on such
Investment during all Tranche Periods to which any portion of such Investment
has been allocated.
"MAXIMUM INCREMENTAL PURCHASE AMOUNT" means, at any time, the lesser of (a)
the difference between the Purchase Limit and the Aggregate Investment then
outstanding and (b) the difference between the Aggregate Commitment and the
Matured Aggregate Investment then outstanding.
"MOODY'S" means Moody's Investors Service, Inc.
"OBLIGOR" means, for any Receivable, each Person obligated to pay such
Receivable and each guarantor of such obligation.
"ORIGINATOR" means Swift Transportation Corporation, a Nevada corporation.
"PARENT" means Swift Transportation Co., Inc., a Nevada corporation.
I-9
"PERIODIC REPORT" is defined in Section 3.3.
"PERMITTED INVESTMENTS" shall mean (a) evidences of indebtedness, maturing
not more than thirty (30) days after the date of purchase thereof, issued by, or
the full and timely payment of which is guaranteed by, the full faith and credit
of, the federal government of the United States of America, (b) repurchase
agreements with banking institutions or broker-dealers that are registered under
the Securities Exchange Act of 1934 fully secured by obligations of the kind
specified in clause (a) above, (c) money market funds denominated in Dollars
rated not lower than A-1 (and without the "r" symbol attached to any such
rating) by S&P and P-1 by Moody's or otherwise acceptable to the Rating Agencies
or (d) commercial paper denominated in Dollars issued by any corporation
incorporated under the laws of the United States or any political subdivision
thereof, provided that such commercial paper is rated at least A-1 (and without
any "r" symbol attached to any such rating) thereof by S&P and at least Prime-1
thereof by Moody's.
"PERSON" means an individual, partnership, corporation, association, joint
venture, Governmental Authority or other entity of any kind.
"POOL FUNDED PURCHASE INTEREST" means each investment or loan of Amsterdam
under a Receivables Purchase Facility funded with Pooled Commercial Paper.
"POOLED ALLOCATION" means, for each Pool Funded Purchase Interest, an
amount each day equal to the product of (i) the Pooled Percentage Share of such
Purchase Interest on such day multiplied by (ii) the aggregate amount of Funding
Charges for such day.
"POOLED COMMERCIAL PAPER" means commercial paper notes of Amsterdam except
(A) Allocated Commercial Paper, and (B) Specially Pooled Paper.
"POOLED PERCENTAGE SHARE" means, for each Pool Funded Purchase Interest, a
fraction (expressed as a percentage) the numerator of which is equal to the
Investment associated with such Pool Funded Purchase Interest and the
denominator of which is equal to the aggregate amount of all outstanding
investment (or comparable terms used in any Receivable Purchase Facility) held
by Amsterdam which is funded substantially with Pooled Commercial Paper.
"POTENTIAL TERMINATION EVENT" means any Termination Event or any event or
condition that with the lapse of time or giving of notice, or both, would
constitute a Termination Event.
"PRICING LETTER" means the letter agreement dated as of the date hereof
among the Liquidity Providers, the Agent and the Seller.
"PRIME RATE" means, for any period, the daily average during such period of
(a) the greater of (i) the floating commercial loan rate per annum of ABN AMRO
(which rate is a reference rate and does not necessarily represent the lowest or
best rate actually charged to any customer by ABN AMRO) announced from time to
time as its prime rate or equivalent for Dollar loans in the USA, changing as
and when said rate changes and (ii) the Federal Funds Rate plus 0.75% plus (b)
during the pendency of a Termination Event, 1.00% for Investment of a Liquidity
Provider and 2.00% for Investment of the Enhancer.
I-10
"PROGRAM LOC" means that certain amended and restated irrevocable
transferable letter of credit no. S550115, dated November 3, 1995, issued by the
Enhancer at the request of Amsterdam, and each letter of credit issued in
substitution or replacement therefor.
"PROGRAM UNREIMBURSED DRAW AMOUNT" means the sum of all draws under the
Program LOC in connection with this transaction which have not been reimbursed
(whether through the payment of cash or the exchange of assets), together with
all interest thereon and all other amounts, if any, payable in connection
therewith.
"PURCHASE" is defined in Section 1.1(a).
"PURCHASE AGREEMENT" means the Receivables Purchase Agreement dated as of
the date hereof between the Seller and the Originator.
"PURCHASE AMOUNT" is defined in Section 1.1(c).
"PURCHASE DATE" is defined in Section 1.1(c).
"PURCHASE INTEREST" means, for a Purchaser, the percentage ownership
interest in the Receivables and Collections held by such Purchaser, calculated
when and as described in Section 1.1(a); PROVIDED, HOWEVER, that (except for
purposes of computing a Purchase Interest or the Sold Interest in Section 1.5 or
1.7) at any time the Sold Interest would otherwise exceed 100% each Purchaser
then holding any Investment shall have its Purchase Interest reduced by
multiplying such Purchase Interest by a fraction equal to 100% divided by the
Sold Interest otherwise then in effect, so that the Sold Interest is thereby
reduced to 100%.
"PURCHASE LIMIT" means $100,000,000.
"PURCHASED PERCENTAGE" means, for any Put, for each Committed Purchaser,
its Ratable Share or such lesser percentage as is necessary to prevent the
Purchase Price of such Purchaser from exceeding its Unused Commitment (unless,
in the case of the Enhancer, it elects not to reduce its Purchased Percentage in
whole or in part).
"PURCHASER RESERVE PERCENTAGE" means, for each Purchaser, the Reserve
Percentage multiplied by a fraction, the numerator of which is such Purchaser's
outstanding Investment and the denominator of which it the Aggregate Investment.
"PURCHASERS" means the Liquidity Providers, the Enhancer and Amsterdam.
"PUT" is defined in Section 2.1(a).
"RATABLE SHARE" means, for each Committed Purchaser, such Purchaser's
Commitment divided by the Aggregate Commitment. If, however, on the date any
Incremental Purchase or payment for any Put is to be made by the Committed
Purchasers, the aggregate amount of the outstanding Investment plus Program
Unreimbursed Draw Amount of the Enhancer exceeds its Ratable Share of the
outstanding Investment and Program Unreimbursed Draw Amount of all Committed
I-11
Purchasers, then for purposes of such Incremental Purchase or Put the Ratable
Share of each Committed Purchaser shall be replaced with a percentage equal for
each Committed Purchaser to (a) its Commitment minus its Investment and Program
Unreimbursed Draw Amount before such Purchase or Put (its "EXISTING INVESTMENT")
divided by (b) the Aggregate Commitment minus the sum of the Existing
Investments of all Committed Purchasers.
"RATING AGENCY" means Moody's, S&P and any other rating agency Amsterdam
chooses to rate its commercial paper notes.
"RATINGS" means the ratings by the Rating Agencies of the indebtedness for
borrowed money of Amsterdam.
"RECEIVABLE" means each obligation of an Obligor to pay for merchandise
sold or services rendered by the Originator and includes the Originator's rights
to payment of any interest or finance charges and all proceeds of the foregoing.
During any Interim Liquidation and on and after the Liquidity Termination Date,
the term "RECEIVABLE" shall only include receivables existing on the date such
Interim Liquidation commenced or Liquidity Termination Date occurred, as
applicable. Deemed Collections shall reduce the outstanding balance of
Receivables hereunder, so that any Receivable that has its outstanding balance
deemed collected shall cease to be a Receivable hereunder after (x) the
Collection Agent receives payment of such Deemed Collections under Section
1.5(b) or (y) if such Deemed Collection is received before the Liquidity
Termination Date, an adjustment to the Sold Interest permitted by Section 1.5(c)
is made.
"RECEIVABLE PURCHASE FACILITY" means any receivables purchase agreement,
loan agreement or other similar contractual arrangement to which Amsterdam is a
party relating to the transfer, purchase or financing of receivables or other
assets.
"RECORDS" means, for any Receivable, all contracts, books, records and
other documents or information (including computer programs, tapes, disks,
software and related property and rights) relating to such Receivable or the
related Obligor.
"REINVESTMENT PURCHASE" is defined in Section 1.1(b).
"RELATED SECURITY" means all of the Originator's rights in the merchandise
(including returned goods) and contracts relating to the Receivables, all
security interests, guaranties and property securing or supporting payment of
the Receivables, all Records and all proceeds of the foregoing.
"REQUIRED LIQUIDITY PROVIDERS" means Liquidity Providers having Liquidity
Provider Commitments in excess of 66-2/3% of the Commitment of all Liquidity
Providers or, if the Commitments of all Liquidity Providers shall then have been
terminated, such Liquidity Providers as together shall then own in excess of
sixty-six and two-thirds percent (66-2/3%) of the sum of the Investments for all
the Liquidity Providers at such time. For purposes of this definition, prior to
the Liquidity Termination Date, any Liquidity Provider that has funded a
Collateral Account pursuant to Section 4.12(e) of the Transfer Agreement shall
I-12
be deemed to have a Commitment equal to the sum of the amount on deposit in such
Collateral Account (less any earnings therein) plus the outstanding amount of
such Liquidity Provider's Investment.
"RESERVE PERCENTAGE" means, at any time, the quotient obtained by dividing
(a) the Aggregate Reserve by (b) the Eligible Receivables Balance.
"SELLER" is defined in the first paragraph hereof.
"SELLER ACCOUNT" means the Seller's account designated by the Seller to the
Agent in writing.
"SETTLEMENT DATE" means the 20th day of each calendar month.
"SOLD INTEREST" is defined in Section 1.1(a).
"SPECIAL LIMIT" means, with respect to any Obligor, the amount agreed to
from time to time by the Agent and the Seller, unless the Agent, in its
discretion or at the direction of the Instructing Group, notifies the Seller of
a different limit.
"SPECIAL TRANSACTION SUBACCOUNT" means the special transaction subaccount
established for this Agreement pursuant to Amsterdam's depositary agreement.
"SPECIALLY POOLED PAPER" means the aggregate of all commercial paper notes
of Amsterdam issued in connection with receivables purchase facilities
designated from time to time by the Agent (in its sole discretion). Specially
Pooled Paper will not include Pooled Commercial Paper or Allocated Commercial
Paper at any time.
"S&P" means Standard & Poor's Ratings Group.
"SUBORDINATED NOTE" means each revolving promissory note issued by the
Seller to the Originator under the Purchase Agreement.
"SUBSIDIARY" means any Person of which at least a majority of the voting
stock (or equivalent equity interests) is owned or controlled by the Seller or
any Swift Entity or by one or more other Subsidiaries of the Seller or such
Swift Entity. The Subsidiaries of the Parent on the date hereof are listed on
Exhibit E.
"SWIFT ENTITY" means the Parent and the Originator.
"TAXES" means all taxes, charges, fees, levies or other assessments
(including income, gross receipts, profits, withholding, excise, property,
sales, use, license, occupation and franchise taxes and including any related
interest, penalties or other additions) imposed by any jurisdiction or taxing
authority (whether foreign or domestic).
"TERMINATION DATE" means (a) for Amsterdam, the Amsterdam Termination Date,
(b) for the Liquidity Providers, the Liquidity Termination Date and (c) for the
I-13
Enhancer, the earlier of (i) the third (3rd) Business Day following the
Liquidity Termination Date and (ii) December 28, 2000.
"TERMINATION EVENT" means the occurrence of any one or more of the
following:
(a) any representation, warranty, certification or statement made by the
Seller or any Swift Entity in, or pursuant to, any Transaction Document proves
to have been incorrect in any material respect when made (including pursuant to
Section 7.2); PROVIDED that if any such representation, warranty, certification
or statement has been subsequently remedied (such that if made or given as of
the date of remedy it is no longer incorrect in any material respect) and such
breach has caused no material adverse effect on the rights or interest of any
Purchaser under this Agreement, such breach shall no longer constitute a
Termination Event hereunder; or
(b) the Collection Agent, any Swift Entity or the Seller fails to make any
payment or other transfer of funds hereunder when due (including any payments
under Section 1.5(a)) and such failure remains unremedied for three Business
Days; or
(c) the Seller fails to observe or perform any covenant or agreement
contained in Sections 5.1(g), 5.1(i) or 5.1(j) of this Agreement or the
Originator fails to perform any covenant or agreement in Sections 5.1(h), 5.1(i)
or 5.1(j) of the Purchase Agreement; or
(d) the Seller or the Collection Agent (or any sub-collection agent) fails
to observe or perform any other term, covenant or agreement under any
Transaction Document, and such failure remains unremedied for thirty days; or
(e) any Swift Entity or any Subsidiary suffers a Bankruptcy Event; or
(f) the Delinquency Ratio exceeds 6.5%, the Default Ratio exceeds 10%, the
Dilution Ratio exceeds 5%, the Charge-Off Ratio exceeds 2% or the Turnover Ratio
exceeds 60 days; or
(g) (i) the Seller, any Swift Entity or any Affiliate, directly or
indirectly, disaffirms or contests the validity or enforceability of any
Transaction Document or (ii) any Transaction Document fails to be the
enforceable obligation of the Seller or any Affiliate party thereto; or
(h) (i) any Swift Entity or any Subsidiary (A) generally does not pay its
debts as such debts become due or admits in writing its inability to pay its
debts generally or (B) fails to pay any of its indebtedness or defaults in the
performance of any provision of any agreement under which such indebtedness was
created or is governed and such default permits such indebtedness to be declared
due and payable or to be required to be prepaid before the scheduled maturity
thereof or (ii) a default or termination or similar event occurs under any
agreement providing for the sale, transfer or conveyance by the Seller, any
Swift Entity or any Subsidiary of any of its financial assets;
(i) the Parent shall fail to own and control, directly or indirectly, 100%
of the outstanding voting stock of the Seller and the Originator; or
I-14
(j) a Collection Agent Replacement Event has occurred and is continuing.
Notwithstanding the foregoing, a failure of a representation or warranty or
breach of any covenant described in clause (a), (c) or (d) above related to a
Receivable shall not constitute a Termination Event if the Seller has been
deemed to have collected such Receivable pursuant to Section 1.5(b) or, before
the Liquidity Termination Date, has adjusted the Sold Interest as provided in
Section 1.5(c) so that such Receivable is no longer considered to be
outstanding.
"TRANCHE" means a portion of the Investment of Amsterdam or of the
Committed Purchasers allocated to a Tranche Period pursuant to Section 1.3. A
Tranche is a (i) CP Tranche, (ii) Eurodollar Tranche or (iii) Prime Tranche
depending whether Discount accrues during its Tranche Period based on a (i) CP
Rate, (ii) Eurodollar Rate, or (iii) Prime Rate.
"TRANCHE PERIOD" means a period of days ending on a Business Day selected
pursuant to Section 1.3, which (i) for a CP Tranche shall not exceed 270 days,
(ii) for a Eurodollar Tranche shall not exceed 180 days, and (iii) for a Prime
Tranche shall not exceed 30 days.
"TRANSACTION DOCUMENTS" means this Agreement, the Fee Letter, the Limited
Guaranty, the Pricing Letter, the Purchase Agreement, the Subordinated Note, and
all other documents, instruments and agreements executed or furnished in
connection herewith and therewith.
"TRANSFER AGREEMENT" means The Amsterdam Transfer Agreement dated the date
hereof between Amsterdam, ABN AMRO Bank N.V., in its capacity as the Amsterdam
Agent, Amsterdam's Letter of Credit Provider and a Liquidity Provider and the
Other Persons who become Liquidity Providers thereunder.
"TRANSFER SUPPLEMENT" is defined in Section 9.8.
"TURNOVER RATIO" means an amount, expressed in days, obtained by
multiplying (a) a fraction, (i) the numerator of which is equal to the sum of
the aggregate principal amount of all Receivables as of the first day of the
immediately preceding three calendar months and (ii) the denominator of which is
equal to the sum of the Collections during such applicable period of three
calendar months; times (b) 30.
"UCC" means, for any state, the Uniform Commercial Code as in effect in
such state.
"USA" means the United States of America (including all states and
political subdivisions thereof).
"UNUSED AGGREGATE COMMITMENT" means, at any time, the difference between
the Aggregate Commitment then in effect and the outstanding Matured Aggregate
Investment.
"UNUSED COMMITMENT" means, for any Committed Purchaser at any time, the
difference between its Commitment and its Investment then outstanding.
I-15
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms. Unless otherwise inconsistent with the
terms of this Agreement, all accounting terms used herein shall be interpreted,
and all accounting determinations hereunder shall be made, in accordance with
GAAP. Amounts to be calculated hereunder shall be continuously recalculated at
the time any information relevant to such calculation changes.
I-16
SCHEDULE II
LIQUIDITY PROVIDERS AND COMMITMENTS OF COMMITTED PURCHASERS
Name of Liquidity Provider Commitment
-------------------------- ----------
ABN AMRO Bank N.V. $91,800,000
Enhancer
--------
ABN AMRO Bank N.V. $10,200,000
EXHIBIT A
TO
RECEIVABLES SALE AGREEMENT
FORM OF INCREMENTAL PURCHASE REQUEST
------------, ----
ABN AMRO Bank N.V., as Agent
Asset Securitization, Structured Finance
Suite 725
135 South LaSalle Street
Chicago, Illinois 60674-9135
Attn: Purchaser Agent-Amsterdam
Re: Receivables Sale Agreement dated as of December 30, 1999 (the "SALE
AGREEMENT") among Swift Receivables Corporation, as Seller,
Swift Transportation Corporation, as Initial Collection Agent,
ABN AMRO Bank N.V., as Agent, and the Purchasers thereunder
Ladies and Gentlemen:
The undersigned Seller under the above-referenced Sale Agreement hereby
confirms its has requested an Incremental Purchase of $___________ by Amsterdam
under the Sale Agreement. [IN THE EVENT AMSTERDAM IS UNABLE OR UNWILLING TO MAKE
THE REQUESTED INCREMENTAL PURCHASE, THE SELLER HEREBY REQUESTS AN INCREMENTAL
PURCHASE OF $______________________ BY THE COMMITTED PURCHASERS UNDER THE SALE
AGREEMENT AT THE [EURODOLLAR RATE WITH A TRANCHE PERIOD OF ______________
MONTHS.] [PRIME RATE]].
Attached hereto as Schedule I is information relating to the proposed
Incremental Purchase required by the Sale Agreement. If on the date of this
Incremental Purchase Request ("NOTICE"), an Interim Liquidation is in effect,
this Notice revokes our request for such Interim Liquidation so that
Reinvestment Purchases shall immediately commence in accordance with Section
1.1(d) of the Sale Agreement.
The Seller hereby certifies that both before and after giving effect to
[EACH OF] the proposed Incremental Purchase[S] contemplated hereby and the use
of the proceeds therefrom, all of the requirements of Section 7.2 of the Sale
Agreement have been satisfied.
Very truly yours,
SWIFT RECEIVABLES CORPORATION
By:
-------------------------------------
Title:
----------------------------------
A-2
SCHEDULE I
TO
INCREMENTAL PURCHASE REQUESTS
SUMMARY OF INFORMATION RELATING TO PROPOSED SALE(S)
1. DATES, AMOUNTS, PURCHASER(S), PROPOSED TRANCHE PERIODS
A1 Date of Notice __________
A2 Measurement Date (the last
day of the month
immediately preceding the
month in which the Date of
Notice occurs) __________
A3 Proposed Purchase Dates _________ _________ _________ __________
(each of which is a
Business Day)
A4 Respective Proposed
Incremental Purchase on
each such Purchase Date $_________ $_________ $_________ $_________
(each Incremental (A4A) (A4B) (A4C) (A4D)
Purchase must be in a
minimum amount of
$1,000,000 and multiples
thereof, or, if less, an
amount equal to the
Maximum Incremental
Purchase Amount)
A5 Proposed Allocation
among Purchasers
Amsterdam $_________ $_________ $_________ $_________
Liquidity
Providers $_________ $_________ $_________ $_________
Enhancer $_________ $_________ $_________ $_________
A-3
A6 Tranche Period
and, for Committed
Purchasers, Tranche Rate(s)
Starting Date _________ _________ _________ _________
Ending Date _________ _________ _________ _________
Number of Days _________ _________ _________ _________
Prime or Eurodollar
(for Committed
Purchasers only) _________ _________ _________ _________
Each proposed Purchase Date must be a Business Day and must occur no later
than two weeks after the Measurement Date set forth above. The choice of
Measurement Date is a risk undertaken by the Seller. If a selected
Measurement Date is not the applicable Purchase Date, the Seller's choice
and disclosure of such date shall not in any manner diminish or waive the
obligation of the Seller to assure the Purchasers that, after giving effect
to the proposed Purchase, the actual Sold Interest as of the date of such
proposed Purchase does not exceed 100%.
A-4
EXHIBIT B
TO
RECEIVABLES SALE AGREEMENT
FORM OF NOTIFICATION OF ASSIGNMENT TO AMSTERDAM
FROM THE COMMITTED PURCHASERS
--------------, ---
Swift Receivables Corporation
2702 West Encanto
Phoenix, AZ 85009
ABN AMRO Bank N.V., as Agent
Asset Securitization, Structured Finance
Suite 725 _________
135 South LaSalle Street
Chicago, Illinois 60674-9135
Attn: Enhancer-Amsterdam
[INSERT NAME AND ADDRESS OF EACH
LIQUIDITY PROVIDER]
Re: Receivables Sale Agreement dated as of December 30, 1999
(the "SALE AGREEMENT") among Swift Receivables Corporation,
as Seller, Swift Transportation Corporation, as Initial
Collection Agent, ABN AMRO Bank N.V., as Agent,
and the Purchasers thereunder
Ladies and Gentlemen:
The Agent under the above referenced Sale Agreement hereby notifies each of
you that Amsterdam has notified the Agent pursuant to Section 2.2 of the Sale
Agreement that it will purchase from the Committed Purchasers on
________________ (the "PURCHASE DATE") that portion of the Committed Purchasers'
Investments identified on Schedule I hereto (the "ASSIGNED INTEREST"). As
further provided in Section 2.2 of the Sale Agreement, upon payment by Amsterdam
to the Agent of the purchase price of such Investments described on Schedule I
hereto, effective as of the Purchase Date the assignment by the Committed
Purchasers to Amsterdam of the Assigned Interest shall be complete and all
payments thereon under the Sale Agreement shall be made to Amsterdam.
In accordance with the Sale Agreement, each Committed Purchaser's
acceptance of the portion of the purchase price payable to it described on
Schedule I hereto constitutes its representation and warranty that it is the
legal and beneficial owner of the portion of the Assigned Interest related to
its Purchase Interest identified on Schedule I free and clear of any Adverse
Claim created or granted by it and that on the Purchase Date it is not subject
to a Bankruptcy Event.
Very truly yours,
ABN AMRO BANK N.V., as Agent
By
--------------------------------------
Name
------------------------------------
Title
-----------------------------------
By
--------------------------------------
Name
------------------------------------
Title
-----------------------------------
B-2
SCHEDULE I
TO
NOTIFICATION OF ASSIGNMENT
Dated ______________, ____
I. Amount of Committed Purchaser Investment Assigned: $________
II. Information for each Committed Purchaser:
PURCHASER PURCHASE INTEREST PURCHASE PRICE*
III. Information for Seller:
Aggregate amount of purchase price in excess of amount of Investment
assigned: $___________.
- ----------
* Calculated in accordance with Section 2.2.
B-3
EXHIBIT C
FORM OF PERIODIC REPORT
EXHIBIT D
ADDRESSES AND NAMES OF SELLER AND ORIGINATOR
1. LOCATIONS. (a) The chief executive office of the Seller and the
Originator are located at the following address:
Seller: 2702 West Encanto
Phoenix, AZ 85009
Originator: 2200 South 75th Avenue
Phoenix, AZ 85043
No such address was different at any time since June 29 1999
(b) The following are all the locations where the Seller and the Originator
directly or through its agents maintain any Records:
Same as (a) above
2. NAMES. The following is a list of all names (including trade names or
similar appellations) used by the Seller and the Originator or any of its
divisions or other business units that generate Receivables: None
EXHIBIT E
SUBSIDIARIES
1. Swift Transportation Co., Inc. an Arizona corporation
2. Swift Leasing Co., Inc., an Arizona corporation
3. Common Market Distributing Co., Inc., an Arizona corporation
4. Sparks Finance Co., Inc., a Nevada corporation
5. Cooper Motor Lines, Inc., a South Carolina corporation
6. Common Market Equipment Co., Inc., an Arizona corporation
7. Swift Transportation Co. of Virginia, Inc., a Virginia corporation
8. Swift of Texas Co., Inc., a Texas corporation
9. Swift Logistics Co., Inc., an Arizona corporation
10. Swift Transportation Corporation, a Nevada corporation
11. Swift Receivables Corporation, a Delaware corporation
EXHIBIT F
LOCK BOXES AND LOCK-BOX BANKS
BANK LOCK-BOX NUMBER COLLECTION ACCOUNT
Bank One, NA 70406 XX-XXXXX
EXHIBIT G
TO RECEIVABLES SALE AGREEMENT
FORM OF LOCK BOX LETTER
[Name of Lock Box Bank]
Ladies and Gentlemen:
Reference is made to the lock-box numbers _______________ in __________ and
the associated lock-box demand deposit account number ____________ maintained
with you (such lock-boxes and associated lock-box demand deposit account,
collectively, the "ACCOUNTS"), each in the name of Swift Transportation
Corporation ("STC"). STC hereby confirms it has sold all Receivables (as defined
below) to Swift Receivables Corporation (the "Seller").
In connection with the Receivables Sale Agreement, dated as of December 30,
1999 (as amended, supplemented or otherwise modified from time to time, the
"RECEIVABLES SALE AGREEMENT"), among the Seller, the Initial Collection Agent,
Amsterdam Funding Corporation ("AMSTERDAM"), the financial institutions from
time to time party thereto (collectively, the "LIQUIDITY PROVIDERS"), ABN AMRO
Bank N.V., as provider of the program letter of credit (the "ENHANCER"), and ABN
AMRO Bank N.V., as agent (the "AGENT") for Amsterdam, the Liquidity Providers
and the Enhancer (collectively, the "PURCHASERS"), the Seller has assigned to
the Agent for the benefit of the Purchasers an undivided percentage interest in
the accounts, chattel paper, instruments or general intangibles (collectively,
the "RECEIVABLES") under which payments are or may hereafter be made to the
Accounts, and has granted to the Agent for the benefit of the Purchasers a
security interest in its retained interest in such Receivables. As is the
customary practice in this type of transaction, we hereby request that you
execute this letter agreement. All references herein to "WE" and "US" refer to
STC and the Seller, jointly and severally. Your execution hereof is a condition
precedent to our continued maintenance of the Accounts with you.
We hereby transfer exclusive dominion and control of the Accounts to the
Agent, subject only to the condition subsequent that the Agent shall have given
you notice that a ["TERMINATION EVENT" AND/OR "COLLECTION AGENT REPLACEMENT
EVENT"] has occurred and is continuing under the Receivables Sale Agreement and
of its election to assume such dominion and control, which notice shall be in
substantially the form attached hereto as Annex A (the "AGENT'S NOTICE").
At all times prior to the receipt of the Agent's Notice described above,
all payments to be made by you out of, or in connection with the Accounts, are
to be made in accordance with the instructions of the Seller or its agent.
We hereby irrevocably instruct you, at all times from and after the date of
your receipt of the Agent's Notice as described above, to make all payments to
be made by you out of, or in connection with, the Accounts directly to the
Agent, at its address set forth below its signature hereto or as the Agent
otherwise notifies you, or otherwise in accordance with the instructions of the
Agent.
We also hereby notify you that, at all times from and after the date of
your receipt of the Agent's Notice as described above, the Agent shall be
irrevocably entitled to exercise in our place and stead any and all rights in
connection with the Accounts, including, without limitation, (a) the right to
specify when payments are to be made out of, or in connection with, the Accounts
and (b) the right to require preparation of duplicate monthly bank statements on
the Accounts for the Agent's audit purposes and mailing of such statements
directly to an address specified by the Agent. At all times from and after the
date of your receipt of the Agent's Notice, neither we nor any of our affiliates
shall be given any access to the Accounts.
The Agent's Notice may be personally served or sent by telex, facsimile or
U.S. mail, certified return receipt requested, to the address, telex or
facsimile number set forth under your signature to this letter agreement (or to
such other address, telex or facsimile number as to which you shall notify the
Agent in writing). If the Agent's Notice is given by telex or facsimile, it will
be deemed to have been received when the Agent's Notice is sent and the
answerback is received (in the case of telex) or receipt is confirmed by
telephone or other electronic means (in the case of facsimile). All other
notices will be deemed to have been received when actually received or, in the
case of personal delivery, delivered.
By executing this letter agreement, you acknowledge the existence of the
Agent's right to dominion and control of the Accounts and its ownership of and
security interest in the amounts from time to time on deposit therein and agree
that from the date hereof the Accounts shall be maintained by you for the
benefit of, and amounts from time to time therein held by you as agent for, the
Agent on the terms provided herein. The Accounts are to be entitled "Swift
Receivables Corporation and ABN AMRO Bank N.V., as Agent for the Purchasers"
with the subline "Swift Transportation Corporation". Except as otherwise
provided in this letter agreement, payments to the Accounts are to be processed
in accordance with the standard procedures currently in effect. All service
charges and fees in connection with the Accounts shall continue to be payable by
us under the arrangements currently in effect.
By executing this letter agreement, you (a) irrevocably waive and agree not
to assert, claim or endeavor to exercise, (b) irrevocably bar and estop yourself
from asserting, claiming or exercising and (c) acknowledge that you have not
heretofore received a notice, writ, order or other form of legal process from
any other party asserting, claiming or exercising, any right of set-off,
banker's lien or other purported form of claim with respect to the accounts or
any funds from time to time therein. Except for your right to payment of your
service charge and fees and to make deductions for returned items, you shall
have no rights in the Accounts or funds therein, except deductions for service
charges, fees and returned or misplaced items. To the extent you may ever have
any additional rights, you hereby expressly subordinate all such rights to all
rights of the Agent.
You may terminate this letter agreement by canceling the Accounts
maintained with you, which cancellation and termination shall become effective
only upon thirty (30) days prior written notice thereof from you to the Agent in
G-2
the absence of fraud or abuse. Incoming mail addressed to the Accounts
(including, without limitation, any direct funds transfer to the Accounts)
received after such cancellation shall be forwarded in accordance with the
Agent's instructions. This letter agreement may also be terminated upon written
notice to you by the Agent stating that the Receivables Sale Agreement is no
longer in effect. Except as otherwise provided in this paragraph, this letter
agreement may not be terminated without the prior written consent of the Agent.
This letter agreement contains the entire agreement between the parties
with respect to the subject matter hereof, and may not be altered, modified or
amended in any respect, nor may any right, power or privilege of any party
hereunder be waived or released or discharged, except upon execution by you, us
and the Agent of a written instrument so providing. The terms and conditions of
any agreement between us and you (a "LOCK-BOX SERVICE AGREEMENT") (whether now
existing or executed hereafter) with respect to the lock-box arrangements, to
the extent not inconsistent with this letter agreement, will remain in effect
between you and us. In the event that any provision in this letter agreement is
in conflict with, or inconsistent with, any provision of any such Lock-Box
Service Agreement, this letter agreement will exclusively govern and control.
Each party agrees to take all actions reasonably requested by any other party to
carry out the purposes of this letter agreement or to preserve and protect the
rights of each party hereunder.
STC agrees to indemnify, defend and hold harmless you and your affiliates,
directors, officers, employees, agents, successors and assigns (each, an
"INDEMNITEE") from and against any and all liabilities, losses, claims, damages,
demands, costs and expenses of every kind (including but not limited to costs
incurred as a result of items being deposited in the Account and being unpaid
for any reason, reasonable attorney's fees and the reasonable charges of your
in-house counsel) incurred or sustained by any Indemnitee arising out of your
performance of the services contemplated by this Lock-Box Letter, except to the
extent such liabilities, losses, claims, damages, demands, costs and expenses
are the direct result of your gross negligence or willful misconduct. The
provisions of this paragraph shall survive the termination of this Lock-Box
Letter.
In the event STC becomes subject to a voluntary or involuntary proceeding
under the United States Bankruptcy Code, or if you are otherwise served with
legal process which you in good faith believe affects funds in the Account you
may suspend disbursements from the Account otherwise required by the terms
hereof until such time as you receive an appropriate court order or other
assurances satisfactory to you establishing that the funds may continue to be
disbursed according to the instructions contained in this Lock-Box Letter.
THIS LETTER AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER WILL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF __________. This letter agreement may be executed in
any number of counterparts and all of such counterparts taken together will be
deemed to constitute one and the same instrument.
G-3
Please indicate your agreement to the terms of this letter agreement by
signing in the space provided below. This letter agreement will become effective
immediately upon execution of a counterpart of this letter agreement by all
parties hereto.
Very truly yours,
SWIFT TRANSPORTATION CORPORATION
By:
-------------------------------------
Title:
----------------------------------
SWIFT RECEIVABLES CORPORATION
By:
-------------------------------------
Title:
----------------------------------
G-4
Accepted and confirmed as of the date first written above:
By: ABN AMRO BANK N.V., as Agent
By:
-------------------------------------
Title:
----------------------------------
By:
-------------------------------------
Title:
----------------------------------
Address of notice:
ABN AMRO Bank N.V.
Structured Finance, Asset Securitization
135 South LaSalle Street
Chicago, Illinois 60674
Attention: Purchaser Agent-Amsterdam
Telephone Number: (312) 904-6263
Telecopy Number: (312) 904-6376
Acknowledged and agreed to as of the date first written above:
[NAME OF BANK]
By:
-------------------------------------
Title:
----------------------------------
Address for notice:
-------------------------------
-------------------------------
-------------------------------
G-5
ANNEX A TO
LOCK-BOX LETTER
[Name of Bank]
Re: Swift Receivables Corporation
Lock Box Numbers ______________
Lock-Box Account Number ____________
Ladies and Gentlemen:
Reference is made to the letter agreement dated December 30, 1999 (the
"LETTER AGREEMENT") among Swift Transportation Corporation, Swift Receivables
Corporation, the undersigned, as Agent, and you concerning the above-described
lock-boxes and lock-box account (collectively, the "ACCOUNTS"). We hereby give
you notice that a ["TERMINATION EVENT" AND/OR "COLLECTION AGENT REPLACEMENT
EVENT"] has occurred and is continuing under the Receivables Sale Agreement (as
defined in the Letter Agreement) and of our assumption of dominion and control
of the Accounts as provided in the Letter Agreement.
We hereby instruct you not to permit any other party to have access to the
Accounts and to make all payments to be made by you out of or in connection with
the Accounts directly to the undersigned upon our instructions, at our address
set forth above.
Very truly yours,
ABN AMRO BANK N.V.
By:
-------------------------------------
Title:
----------------------------------
By:
-------------------------------------
Title:
----------------------------------
cc: Swift Receivables Corporation
G-6
EXHIBIT H
TO RECEIVABLES SALE AGREEMENT
COMPLIANCE CERTIFICATE
To: ABN AMRO Bank N.V., as Agent, and
each Purchaser
This Compliance Certificate is furnished pursuant to Section 5.1(a)(iii) of
the Receivables Sale Agreement, dated as of December 30, 1999 (as amended,
supplemented or otherwise modified through the date hereof, the "SALE
AGREEMENT"), among Swift Receivables Corporation (the "SELLER"), Swift
Transportation Corporation (the "INITIAL COLLECTION AGENT"), the liquidity
providers from time to time party thereto (collectively, the "LIQUIDITY
PROVIDERS"), Amsterdam Funding Corporation ("AMSTERDAM") and ABN AMRO Bank N.V.,
as the provider of the program letter of credit (the "ENHANCER" and together
with the Liquidity Providers and Amsterdam, the "PURCHASERS"), and ABN AMRO Bank
N.V. as agent for the Purchasers (in such capacity, the "AGENT"). Terms used in
this Compliance Certificate and not otherwise defined herein shall have the
respective meanings ascribed thereto in the Sale Agreement.
THE UNDERSIGNED HEREBY REPRESENTS, WARRANTS, CERTIFIES AND CONFIRMS THAT:
1. The undersigned is a duly elected Designated Financial Officer of
the undersigned.
2. Attached hereto is a copy of the financial statements described in
Section 5.1(a)(i) or 5.1(a)(ii) of the Sale Agreement.
3. The undersigned has reviewed the terms of the Transaction Documents
and has made, or caused to be made under his/her supervision, a detailed
review of the transactions and the conditions of the Seller and the
Originator during and at the end of the accounting period covered by the
attached financial statements.
4. The examinations described in paragraph 3 hereof did not disclose,
and the undersigned has no knowledge of, the existence of any condition or
event which constitutes a Potential Termination Event, during or at the end
of the accounting period covered by the attached financial statements or as
of the date of this Compliance Certificate, except as set forth below.
5. Based on the examinations described in paragraph 3 hereof, the
undersigned confirms that the representations and warranties contained in
Article IV of the Sale Agreement are true and correct as though made on the
date hereof, except as set forth below.
6. The undersigned confirms that Year 2000 remediation efforts are
proceeding as scheduled.
7. [INDICATE WHETHER AN AUDITOR, REGULATOR OR THIRD PARTY CONSULTANT
OF THE UNDERSIGNED HAS ISSUED A MANAGEMENT LETTER OR OTHER COMMUNICATION
REGARDING YEAR 2000 EXPOSURE, PROGRAM OR PROGRESS].
Described below are the exceptions, if any, to paragraphs 4 and 5 listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action the undersigned has taken, is taking or proposes to take
with respect to each such condition or event:
The foregoing certifications, together with the computations set forth in
Schedule I hereto and the financial statements delivered with this Compliance
Certificate in support hereof, are made and delivered this ____ day of
___________, ____.
[NAME OF SELLER OR ORIGINATOR]
By:
-------------------------------------
Designated Financial Officer
H-2
EXHIBIT I
CREDIT AND COLLECTION POLICY