Exhibit 10.9.3
FIFTH AMENDMENT TO RECEIVABLES SALE AGREEMENT
THIS FIFTH AMENDMENT (the "Amendment"), dated as of December 24, 2003, is
entered into among Swift Receivables Corporation (the "Seller"), Swift
Transportation Corporation (the "Collection Agent"), Amsterdam Funding
Corporation, a Delaware corporation ("Amsterdam"), ABN AMRO Bank N.V., as
Amsterdam's program letter of credit provider (the "Enhancer"), the Liquidity
Provider listed on the signature page hereof (the "Liquidity Provider") and ABN
AMRO Bank N.V., as agent for Amsterdam, the Enhancer and the Liquidity Provider
(the "Agent");
WITNESSETH:
WHEREAS, the Seller, Collection Agent, Amsterdam, Enhancer, Liquidity Provider
and Agent have heretofore executed and delivered a Receivables Sale Agreement
dated as of December 30, 1999 (as amended, supplemented or otherwise modified
through the date hereof, the "Sale Agreement"); and
WHEREAS, the parties hereto desire to amend the Sale Agreement as provided
herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree that the Sale
Agreement shall be and is hereby amended as follows:
Section 1. The defined term "Liquidity Termination Date" appearing in
Schedule I to the Sale Agreement is hereby amended by deleting the date
"December 24, 2003" appearing in clause (d) thereof and inserting in its
place the date "December 22, 2004.
Section 2. The defined term "Termination Date" appearing in Schedule I to
the Sale Agreement is hereby amended by deleting the date "December 24,
2003" appearing in clause (c)(ii) thereof and inserting in its place the
date "December 22, 2004".
Section 3. This Amendment shall become effective once the Agent has
received (i) counterparts hereof executed by the Seller, Collection Agent,
each Purchaser and the Agent and (ii) the acknowledgment and consent in
the form set forth below duly executed and delivered by Swift
Transportation Co., Inc.
Section 4. To induce the Agent and the Purchasers to enter into this
Amendment, the Seller and Collection Agent represent and warrant to the
Agent and the Purchasers that: (a) the representations and warranties
contained in the Transaction Documents, are true and correct in all
material respects as of the date hereof with the same effect as though
made on the date hereof (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified
date shall be required to be true and correct in all material respects
only as of such specified date); (b) no Potential Termination Event
exists; (c) this Amendment has been duly authorized by all necessary
corporate proceedings and duly executed and delivered by each of the
Seller and the Collection Agent, and the Sale Agreement, as amended by
this Amendment, and each of the other Transaction Documents are the legal,
valid and binding obligations of the Seller and the Collection Agent,
enforceable against the Seller and the Collection Agent in accordance with
their respective terms, except as enforceability may be limited by
bankruptcy, insolvency or other similar laws of general application
affecting the enforcement of creditors' rights or by general principles of
equity; and (d) no consent, approval, authorization, order, registration
or qualification with any governmental authority is required for, and in
the absence of which would adversely effect, the legal and valid execution
and delivery or performance by the Seller or the Collection Agent of this
Amendment or the performance by the Seller or the Collection Agent of the
Sale Agreement, as amended by this Amendment, or any other Transaction
Document to which they are a party.
Section 5. This Amendment may be executed in any number of counterparts
and by the different parties on separate counterparts and each such
counterpart shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Amendment.
Section 6. Except as specifically provided above, the Sale Agreement and
the other Transaction Documents shall remain in full force and effect and
are hereby ratified and confirmed in all respects. The execution,
delivery, and effectiveness of this Amendment shall not operate as a
waiver of any right, power, or remedy of any Agent or any Purchaser under
the Sale Agreement or any of the other Transaction Documents, nor
constitute a waiver or modification of any provision of any of the other
Transaction Documents. All defined terms used herein and not defined
herein shall have the same meaning herein as in the Sale Agreement. The
Seller agrees to pay on demand all costs and expenses (including
reasonable fees and expenses of counsel) of or incurred by the Agent and
each Purchaser Agent in connection with the negotiation, preparation,
execution and delivery of this Amendment.
Section 7. This Amendment and the rights and obligations of the parties
hereunder shall be construed in accordance with and be governed by the law
of the State of Illinois.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed and
delivered by their duly authorized officers as of the date first above written.
ABN AMRO BANK N.V., as the Agent, a
Liquidity Provider and as the Enhancer
By: /s/Kevin G. Pilz
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Title: Vice President
By: /s/Therese Gremley
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Title: Vice President
AMSTERDAM FUNDING CORPORATION
By: /s/Bernard J. Angelo
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Title: Vice President
SWIFT RECEIVABLES CORPORATION
By: /s/William F. Riley III
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Title: Vice President
SWIFT TRANSPORTATION CORPORATION
By: /s/William F. Riley III
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Title: Secretary
GUARANTOR'S ACKNOWLEDGMENT AND CONSENT
The undersigned, Swift Transportation Co., Inc., has heretofore executed and
delivered the Limited Guaranty dated as of December 30, 1999 (the "Guaranty")
and hereby consents to the Fifth Amendment to the Sale Agreement as set forth
above and confirms that the Guaranty and all of the undersigned's obligations
thereunder remain in full force and effect. The undersigned further agrees that
the consent of the undersigned to any further amendments to the Sale Agreement
shall not be required as a result of this consent having been obtained, except
to the extent, if any, required by the Guaranty referred to above.
SWIFT TRANSPORTATION CO., INC.
By: /s/Gary R. Enzor
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Title: CFO