SECOND MODIFICATION AGREEMENT
BY THIS SECOND MODIFICATION AGREEMENT (the "Agreement"), dated as of
the 3rd day of August, 1998, WELLS FARGO BANK, N.A., as administrative agent for
the Banks listed in the hereinafter defined Credit Agreement (the "Banks") and
as Issuing Bank, and SWIFT TRANSPORTATION CO., INC., an Arizona corporation (the
"Borrower"), in consideration of the mutual covenants herein contained and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, hereby confirm and agree as follows:
SECTION 1. RECITALS.
1.1 Borrower and the Administrative Agent, ABN AMRO Bank N.V. as
Co-Agent, and the Banks entered into that Credit Agreement dated January 16,
1997 (the "Credit Agreement") to provide financial accommodations to the
Borrower as provided therein, which Credit Agreement was previously amended by
that Modification Agreement dated September 25, 1997.
1.2 Borrower and the Administrative Agent, with the consent of the
Banks, desire to modify the Agreement as set forth herein.
1.3 All undefined capitalized terms used herein shall have the meaning
given them in the Credit Agreement.
1.4 The "Effective Date" means August 6, 1998,
SECTION 2. CREDIT AGREEMENT
2.1 The following definitions contained in Section 1.1 of the Credit
Agreement are hereby amended to read as follows:
"Maturity Date" shall mean January 16, 2003.
"Maximum Commitment" shall mean $170,000,000.00.
2.2 Schedule 2.1 to the Credit Agreement is hereby amended to read as
attached hereto.
2.3 Article V of the Credit Agreement is hereby amended by the addition
of the following Section 5.9:
Section 5.9 YEAR 2000 COMPLIANT. Perform all acts reasonably
necessary to ensure that Borrower and any business in which Borrower
holds a substantial interest become Year 2000 Compliant in a timely
manner. Such acts shall include, without limitation, performing a
comprehensive review and assessment of all of Borrower's systems and
adopting a plan for the remediation, monitoring and testing of such
systems. As used in this paragraph, "Year 2000 Compliant" shall mean,
in regard to any entity, that all software, hardware, firmware,
equipment, goods or systems material to the business operations or
financial condition of such entity, will properly perform date
sensitive functions after December 31, 1999. Borrower shall,
immediately upon request, provide to the Administrative Agent such
certifications or other evidence of Borrower's compliance with the
terms of this paragraph as the Banks may from time to time require.
SECTION 3. OTHER MODIFICATIONS, RATIFICATIONS AND AGREEMENTS.
3.1 All references to the Credit Agreement in the other Loan Documents
are hereby amended to refer to the Credit Agreement as hereby amended.
3.2 Borrower hereby reaffirms to the Banks each of the representations,
warranties, covenants and agreements of Borrower set forth in the Credit
Agreement, with the same force and effect as if each were separately stated
herein and made as of the date hereof and hereby affirms that the
representations and warranties set forth in Article III of the Credit Agreement
remain true and correct in all material respects as of the Effective Date,
except to the extent such representations and warranties expressly relate and
are limited to a different date.
3.3 Borrower hereby represents and warrants to the Administrative Agent
and the Banks that it has reviewed the areas within its business and operations
and that of its Subsidiaries which could be adversely affected by, and has
developed or is developing a program to address on a timely basis, the "Year
2000 Problem" (that is, the risk that computer applications used by the Borrower
and its Subsidiaries may be unable to recognize and perform properly
date-sensitive functions involving certain dates prior to and any date after
December 31, 1999), and has made related appropriate inquiry of material
suppliers and vendors. Based on such review and program, the Borrower believes
that the "Year 2000 Problem" will not result in a Material Adverse Change with
respect to the Borrower.
3.4 Borrower hereby ratifies, reaffirms, acknowledges, and agrees that
the Notes and the Credit Agreement represent valid, enforceable and collectible
obligations of Borrower, and that there are no existing claims, defenses,
personal or otherwise, or rights of setoff whatsoever with respect to any of
these documents or instruments. Borrower further acknowledges and represents
that no event has occurred and no condition exists that, after notice or lapse
of time, or both, would constitute a default under this Agreement, the Notes or
the Credit Agreement.
3.5 All terms, conditions and provisions of the Credit Agreement are
continued in full force and effect and shall remain unaffected and unchanged
except as specifically amended hereby. The Credit Agreement, as amended hereby,
is hereby ratified and reaffirmed by Borrower, and Borrower specifically
acknowledges the validity and enforceability thereof. The Credit Agreement is
hereby modified to provide that it shall be a default or an event of default
thereunder if Borrower shall fail to comply with any of the covenants of
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Borrower herein or if any representation or warranty by Borrower herein or by
any guarantor in the Consent and Agreement of Guarantors is materially
incomplete, incorrect, or misleading as of the date hereof.
3.6 Any Bank whose Commitment is changed to zero on the Effective Date
shall deliver one or more executed Assignments and Acceptances to the
Administrative Agent and shall upon the Effective Date cease to be a Bank party
to the Credit Agreement.
3. 7 Each Person listed on the revised Schedule 2.1 which is not a
party to the Credit Agreement shall, if required by the Administrative Agent,
deliver to the Administrative Agent an executed Administrative Details Reply
Form and shall become a Bank party to the Credit Agreement upon the Effective
Date.
SECTION 4. GENERAL.
4.1 This Agreement in no way acts as a release or relinquishment of
those rights securing payment of the Loans. Such rights are hereby ratified,
confirmed, renewed and extended by Borrower in all respects.
4.2 The modifications contained herein shall not be binding upon the
Banks until the later of the Effective Date or the date when the Administrative
Agent shall have received from each Bank an executed Consent of the Banks and
from the Borrower all of the following:
(a) An original of this Agreement fully executed by the
Borrower.
(b) An original of the Consent and Agreement of Guarantors
fully executed by the Guarantor and Swift Leasing.
(c) A duly executed Note for each Bank, dated as of August 3,
1998, in the amount shown on Schedule 2.1 hereto.
(d) An amended and restated Continuing Guarantee fully
executed by the Guarantor and Swift Leasing.
(e) Such resolutions or authorizations and such other
documents as the Administrative Agent may require relating to the
existence and good standing of the Borrower and Guarantor and the
authority of any person executing this Agreement or other documents on
behalf of the Borrower and Guarantor.
4.3 Borrower shall execute and deliver such additional documents and do
such other acts as the Banks may reasonably require to fully implement the
intent of this Agreement.
4.4 Borrower shall pay all costs and expenses, including, but not
limited to, reasonable attorney's fees incurred by the Administrative Agent in
connection herewith, whether or not all of the conditions described in Paragraph
4.2 above are satisfied. Banks, at their option, but without any obligation
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to do so, may advance funds to pay any such costs and expenses that are the
obligation of the Borrower, and all such funds advanced shall bear interest at
the highest rate provided in the Notes and shall be due and payable upon demand.
4.5 Notwithstanding anything to the contrary contained herein or in any
other instrument executed by Borrower, the Administrative Agent or the Banks, or
in any other action or conduct undertaken by Borrower, the Administrative Agent
or the Banks on or before the date hereof, the agreements, covenants and
provisions contained herein shall constitute the only evidence of the Banks'
consent to modify the terms and provisions of the Credit Agreement. Accordingly,
no express or implied consent to any further modifications involving any of the
matters set forth in this Agreement or otherwise shall be inferred or implied by
the Banks' consent to this Agreement. Further, the Banks' consent to this
Agreement shall not constitute a waiver (either express or implied) of the
requirement that any further modification of the Credit Agreement shall require
the express written consent of the Banks; no such consent (either express or
implied) has been given as of the date hereof.
4.6 Time is hereby declared to be of the essence hereof of the Credit
Agreement, and Banks require, and Borrower agrees to, strict performance of each
and every covenant, condition, provision and agreement hereof, of the Credit
Agreement.
4.7 This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their heirs, personal representatives,
successors and assigns.
4.8 This Agreement is made for the sole protection and benefit of the
parties hereto, and no other person or entity shall have any right of action
hereon.
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4.9 This Agreement shall be governed by and construed according to the
laws of the State of Arizona.
IN WITNESS WHEREOF, these presents are executed as of the date
indicated above.
WELLS FARGO BANK, N.A.
By: /s/ Stephanie Arnold
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Name: Stephanie Arnold
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Its: Vice President
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ADMINISTRATIVE AGENT
AND ISSUING BANK
SWIFT TRANSPORTATION, CO., INC., an
Arizona corporation
By: /s/ William F. Riley III
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Name: William F. Riley III
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Its: EVP - CFO
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BORROWER
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