Exhibit 10.24
Execution Version
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SWIFT TRANSPORTATION CO., INC.,
an Arizona corporation
and
SWIFT TRANSPORTATION CO., INC.
a Nevada corporation
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FIRST AMENDMENT
Dated as of July 8, 2004
to
NOTE PURCHASE AGREEMENT
Dated as of June 27, 2003
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Re: $100,000,000 3.73% Senior Guaranteed Notes, Series A,
Due June 27, 2008
and
$100,000,000 4.33% Senior Guaranteed Notes, Series B,
Due June 27, 2010
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FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT
THIS FIRST AMENDMENT dated as of July 8, 2004 (the or this "First
Amendment") to the Note Purchase Agreement dated as of June 27, 2003 is among
SWIFT TRANSPORTATION CO., INC., an Arizona corporation (the "Company"), SWIFT
TRANSPORTATION CO., INC., a Nevada corporation (the "Parent Corporation"), and
each of the institutions which is a signatory to this First Amendment
(collectively, the "Noteholders").
RECITALS:
A. The Company and each of the Noteholders have heretofore entered into
that certain Note Purchase Agreement dated as of June 27, 2003 (the "Note
Purchase Agreement"), pursuant to which the Company issued (a) $100,000,000
aggregate principal amount of its 3.73% Senior Guaranteed Notes, Series A, due
June 27, 2008 (the "Series A Notes") and (b) $100,000,000 aggregate principal
amount of its 4.33% Senior Guaranteed Notes, Series B, due June 27, 2010 (the
"Series B Notes" and, together with the Series A Notes, the "Notes"). The
Noteholders are the holders of more than the requisite percentage of the
outstanding principal amount of the Notes necessary to approve the amendments
provided for herein.
B. The Company and the Noteholders now desire to amend the Note
Purchase Agreement in the respects, but only in the respects, hereinafter set
forth.
C. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Note Purchase Agreement unless herein defined or the
context shall otherwise require.
D. All requirements of law have been fully complied with and all other
acts and things necessary to make this First Amendment a valid, legal and
binding instrument according to its terms for the purposes herein expressed have
been done or performed.
NOW, THEREFORE, upon the full and complete satisfaction of the conditions
precedent to the effectiveness of this First Amendment set forth in SECTION 3.1
hereof, and for good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged, the Company, the Parent Corporation and the
Noteholders do hereby agree as follows:
SECTION 1. AMENDMENTS.
Section 1.1. Section 10.1 of the Note Purchase Agreement shall be and is
hereby amended and restated in its entirety to read as follows:
"Section 10.1. Leverage Ratio. The Parent Corporation will
maintain, as of the end of each Fiscal Quarter, a Leverage Ratio of
not greater than 3.00 to 1.00."
Swift Transportation First Amendment
Section 1.2. Section 10.4 of the Note Purchase Agreement shall be and is
hereby amended and restated in its entirety to read as follows:
"Section 10.4. Consolidated Tangible Net Worth. The Parent
Corporation will at all times keep and maintain Consolidated
Tangible Net Worth at an amount not less than the sum of (a)
$550,000,000, plus (b) an aggregate amount equal to 50% of
Consolidated Net Income (but, in each case, only if a positive
number) for each completed Fiscal Quarter commencing with the Fiscal
Quarter ending September 30, 2004, plus (c) 100% of the amount by
which 'total stockholders' equity' of the Parent Corporation is
increased as a result of any public or private offering of common
stock of the Parent Corporation after June 24, 2004."
Section 1.3. The definition of "Credit Agreement" set forth in Schedule B
to the Note Purchase Agreement shall be and is hereby amended and restated in
its entirety to read as follows:
" `Credit Agreement' means that certain Amended and Restated
Revolving Credit Agreement, dated as of June 24, 2004, among the
Company, the Parent Corporation, the several banks and other
financial institutions and lenders from time to time party thereto,
SunTrust Bank, as Administrative Agent, U.S. Bank, National
Association and LaSalle Bank, National Association, as
Co-Documentation Agents, and Wells Fargo Bank, N.A. and KeyBank,
National Association, as Co-Syndication Agents, as amended,
modified, supplemented, refinanced or replaced, in whole or in part,
from time to time."
Section 1.4. The following defined terms shall be added to Schedule B to
the Note Purchase Agreement in appropriate alphabetical order:
" `Consolidated Adjusted Total Debt' shall mean, as of any
date, (a) Consolidated Total Debt on such date minus (b) the amount
by which cash on hand of the Parent Corporation and its Subsidiaries
(measured on a consolidated basis) on such date exceeds $5,000,000;
provided, that the amount of cash on hand subtracted from
Consolidated Total Debt shall not exceed the lesser of (x) the
principal amount of swingline loans outstanding under the Credit
Agreement on such date or (y) $20,000,000.
`Fiscal Quarter' shall mean any fiscal quarter of the Parent
Corporation.
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'Leverage Ratio' shall mean, as of any date, the ratio of (a)
Consolidated Adjusted Total Debt as of such date to (b) Consolidated
EBITDA for the four consecutive Fiscal Quarters ending on or
immediately prior to such date."
Section 1.5. The definition of "Consolidated Total Capitalization" set
forth in Schedule B to the Note Purchase Agreement shall be and is hereby
deleted.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
Section 2.1. To induce the Noteholders to execute and deliver this First
Amendment (which representations shall survive the execution and delivery of
this First Amendment), the Company and the Parent Corporation, jointly and
severally, represent and warrant to the Noteholders that:
(a) this First Amendment has been duly authorized, executed and
delivered by the Company and the Parent Corporation and constitutes the
legal, valid and binding obligation, contract and agreement of the Company
and the Parent Corporation enforceable against them in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable principles
relating to or limiting creditors' rights generally;
(b) the Note Purchase Agreement, as amended by this First
Amendment, constitutes the legal, valid and binding obligation, contract
and agreement of the Company and the Parent Corporation enforceable
against them in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws or equitable principles relating to or limiting creditors' rights
generally;
(c) the execution, delivery and performance by the Company and the
Parent Corporation of this First Amendment (i) has been duly authorized by
all requisite corporate action and, if required, shareholder action, (ii)
does not require the consent or approval of any governmental or regulatory
body or agency, and (iii) will not (A) violate (1) any provision of law,
statute, rule or regulation or the certificate of incorporation or bylaws
of the Company or the Parent Corporation, (2) any order of any court or
any rule, regulation or order of any other agency or government binding
upon the Company or the Parent Corporation, or (3) any provision of any
material indenture, agreement or other instrument to which either the
Company or the Parent Corporation is a party or by which any of their
respective properties or assets are or may be bound, or (B) result in a
breach or constitute (alone or with due notice or lapse of time or both) a
default under any indenture, agreement or other instrument referred to in
clause (iii)(A)(3) of this SECTION 2.1(c);
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(d) as of the date hereof and after giving effect to this First
Amendment, no Default or Event of Default has occurred which is
continuing; and
(e) all the representations and warranties contained in Section 5
of the Note Purchase Agreement are true and correct in all material
respects with the same force and effect as if made by the Company and the
Parent Corporation on and as of the date hereof.
SECTION 3. CONDITIONS TO EFFECTIVENESS OF THIS FIRST AMENDMENT.
Section 3.1. This First Amendment shall not become effective until, and
shall become effective when, each and every one of the following
conditions shall have been satisfied:
(a) executed counterparts of this First Amendment, duly executed
by the Company, the Parent Corporation, the Constituent Company Guarantors
and the holders of more than 50% in principal amount of the outstanding
Notes shall have been delivered to the Noteholders;
(b) the Company, the Parent Corporation and the lenders named
thereunder shall have executed and delivered the Amended and Restated
Revolving Credit Agreement dated as of June 24, 2004, with SunTrust Bank,
as Administrative Agent, U.S. Bank, National Association and LaSalle Bank,
National Association, as Co-Documentation Agents, and Wells Fargo Bank,
N.A. and KeyBank, National Association, as Co-Syndication Agents, and a
true, correct and complete copy of the executed form of such agreement
shall have been delivered to the Noteholders and their special counsel;
(c) each holder of the Notes shall have received a consent fee
equal to 0.10% of the aggregate principal amount of the Notes held by it
as of the date of this First Amendment, such fee to be paid by wire
transfer of immediately available funds in the manner provided in Schedule
A to the Note Purchase Agreement (as such instructions have been revised
or amended to the date hereof), which fees shall be fully earned and
payable as of the date hereof; and
(d) the representations and warranties of the Company and the
Parent Corporation set forth in SECTION 2 hereof shall be true and correct
on and with respect to the date hereof, and the execution and delivery by
the Company and the Parent Corporation of this First Amendment shall
constitute the certification thereby of the same.
Upon receipt and satisfaction of all of the foregoing, this First Amendment
shall become effective.
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SECTION 4. PAYMENT OF NOTEHOLDERS' COUNSEL FEES AND EXPENSES.
Section 4.1. The Company and the Parent Corporation jointly and severally
agree to pay upon demand, the fees and expenses of Chapman and Cutler, counsel
to the Noteholders, in connection with the negotiation, preparation, approval,
execution and delivery of this First Amendment.
SECTION 5. MISCELLANEOUS.
Section 5.1. This First Amendment shall be construed in connection with
and as part of each of the Note Purchase Agreement, and except as modified and
expressly amended by this First Amendment, all terms, conditions and covenants
contained in the Note Purchase Agreement (including, without limitation, the
Parent Guaranty), the Notes and the Constituent Company Guaranty are hereby
ratified and shall be and remain in full force and effect.
Section 5.2. Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and delivery of this
First Amendment may refer to the Note Purchase Agreement without making specific
reference to this First Amendment but nevertheless all such references shall
include this First Amendment unless the context otherwise requires.
Section 5.3. Any and all notices, requests, certificates and other
instruments, including the Notes, may refer to the "Note Purchase Agreement" or
the "Note Purchase Agreement dated as of June 27, 2003" without making specific
reference to this First Amendment, but nevertheless all such references shall be
deemed to include this First Amendment unless the context shall otherwise
require.
Section 5.4. The descriptive headings of the various Sections or parts of
this First Amendment are for convenience only and shall not affect the meaning
or construction of any of the provisions hereof.
Section 5.5. This First Amendment shall be governed by and construed in
accordance with New York law excluding choice-of-law principles of the law of
New York that would require the application of the laws of jurisdiction other
than New York.
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Swift Transportation First Amendment
Section 5.6. The execution hereof by you shall constitute a contract
between us for the uses and purposes hereinabove set forth, and this First
Amendment may be executed in any number of counterparts, each executed
counterpart constituting an original, but all together only one agreement.
SWIFT TRANSPORTATION CO., INC., an Arizona
corporation
By __________________________________________________
Name:
Title:
SWIFT TRANSPORTATION CO., INC., a Nevada
corporation
By __________________________________________________
Name:
Title:
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Accepted as of __________, 2004.
ALLSTATE LIFE INSURANCE COMPANY
By ____________________________________
By ____________________________________
Authorized Signatories
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CONNECTICUT GENERAL LIFE INSURANCE
COMPANY
By: CIGNA Investments, Inc.(authorized agent)
By ___________________________________________
Name:
Title:
LIFE INSURANCE COMPANY OF NORTH AMERICA
By: CIGNA Investments, Inc. (authorized agent)
By ___________________________________________
Name:
Title:
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THE GREAT-WEST LIFE ASSURANCE COMPANY
By ___________________________________________
Name:
Title:
By ___________________________________________
Name:
Title:
GREAT-WEST LIFE & ANNUITY INSURANCE
COMPANY
By ___________________________________________
Name:
Title:
By ___________________________________________
Name:
Title:
JEFFERSON PILOT LIFEAMERICA INSURANCE
COMPANY
By ___________________________________________
Name:
Title:
JEFFERSON-PILOT LIFE INSURANCE COMPANY
By ___________________________________________
Name:
Title:
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METROPOLITAN LIFE INSURANCE COMPANY
By ___________________________________________
Name:
Title:
NATIONWIDE LIFE INSURANCE COMPANY
By ___________________________________________
Name:
Title:
NATIONWIDE LIFE INSURANCE COMPANY OF
AMERICA
By ___________________________________________
Name:
Title:
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RELIASTAR LIFE INSURANCE COMPANY
By: ING Investment Management LLC, as
Agent
By: _______________________________________
Name:
Title:
ING USA ANNUITY AND LIFE INSURANCE
COMPANY (f/k/a Golden American Life
Insurance Company)
By: ING Investment Management LLC, as
Agent
By ________________________________________
Name:
Title:
RELIASTAR LIFE INSURANCE COMPANY
(successor by merger to Security-Connecticut
Life Insurance Company)
By: ING Investment Management LLC, as Agent
By: _______________________________________
Name:
Title:
ING USA ANNUITY AND LIFE INSURANCE
COMPANY (successor by merger to USG
Annuity & Life Company)
By: ING Investment Management LLC, as
Agent
By: _______________________________________
Name:
Title:
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TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By ____________________________________________
Name:
Title:
TIAA-CREF LIFE INSURANCE COMPANY
By: Teachers Insurance and Annuity
Association of America, as Investment
Manager
By _______________________________________
Name:
Title:
UNITED OF OMAHA LIFE INSURANCE COMPANY
By ____________________________________________
Name:
Title:
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CONSTITUENT COMPANY GUARANTORS' CONSENT
Each undersigned guarantor (each a "Constituent Company Guarantor") is a
guarantor of the indebtedness, liabilities and obligations of Swift
Transportation Co., Inc., an Arizona corporation (the "Company"), under (a) that
certain Note Purchase Agreement dated as of June 27, 2003 (the "Note Purchase
Agreement") referred to in the foregoing First Amendment dated as of July 8,
2004 (the "First Amendment"), and (b) the Notes described in the Note Purchase
Agreement. Each Constituent Company Guarantor hereby acknowledges that it has
received a copy of the First Amendment and hereby consents to its contents. Each
Constituent Company Guarantor hereby ratifies the Guaranty Agreement dated as of
June 27, 2003 and confirms that its guarantee of the obligations of the Company
set forth therein remains in full force and effect and that the obligations of
the Company under the Note Purchase Agreement and the Notes shall include the
obligations of the Company under the First Amendment.
SWIFT TRANSPORTATION CORPORATION, a
Nevada corporation
By ___________________________________________
Name:
Title:
SWIFT LEASING CO., INC., an Arizona
corporation
By ___________________________________________
Name:
Title:
M.S. CARRIERS, INC., a Tennessee corporation
By ____________________________________________
Name:
Title:
Swift Transportation First Amendment
Constituent Company Guarantors' Consent
M.S. CARRIERS WAREHOUSING &
DISTRIBUTION, INC., a Tennessee corporation
By ___________________________________________
Name:
Title:
SPARKS FINANCE CO., a Nevada corporation
By ___________________________________________
Name:
Title:
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