Exhibit 10.21
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AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT
DATED AS OF DECEMBER 21, 2005
AMONG
SWIFT RECEIVABLES CORPORATION,
AS THE SELLER,
SWIFT TRANSPORTATION CORPORATION,
AS THE INITIAL COLLECTION AGENT,
ABN AMRO BANK N.V.,
AS THE AGENT AND AS THE AMSTERDAM PURCHASER AGENT,
SUNTRUST CAPITAL MARKETS,
AS THE THREE PILLARS FUNDING LLC PURCHASER AGENT,
THE OTHER PURCHASER AGENTS FROM TIME TO TIME PARTY HERETO
THE RELATED BANK PURCHASERS
FROM TIME TO TIME PARTY HERETO,
THREE PILLARS FUNDING LLC,
AS A CONDUIT PURCHASER,
AMSTERDAM FUNDING CORPORATION,
AS A CONDUIT PURCHASER
AND
THE OTHER CONDUIT PURCHASERS FROM TIME TO TIME PARTY HERETO
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TABLE OF CONTENTS
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ARTICLE I PURCHASES FROM SELLER AND SETTLEMENTS................. 1
Section 1.1. Sales................................................. 1
Section 1.2. Interim Liquidations.................................. 4
Section 1.3. Selection of Discount Rates and Tranche Periods....... 4
Section 1.4. Fees and Other Costs and Expenses..................... 5
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...................... 7
ARTICLE II SALES TO AND FROM CONDUIT PURCHASERS; ALLOCATIONS..... 7
Section 2.1. Required Purchases from a Conduit Purchaser........... 7
Section 2.2. Purchases by a Conduit Purchaser...................... 7
Section 2.3. Allocations and Distributions......................... 8
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............................................... 11
Section 3.4. Lock-Box Arrangements................................. 11
Section 3.5. Enforcement Rights.................................... 11
Section 3.6. Collection Agent Fee.................................. 12
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
ARTICLE VII CONDITIONS PRECEDENT.................................. 23
Section 7.1. Conditions to Closing................................. 23
Section 7.2. Conditions to Each Purchase........................... 24
ARTICLE VIII THE AGENT............................................. 24
Section 8.1. Appointment and Authorization......................... 24
Section 8.2. Delegation of Duties.................................. 25
Section 8.3. Exculpatory Provisions................................ 25
Section 8.4. Reliance by Agent..................................... 26
Section 8.5. Assumed Payments...................................... 26
Section 8.6. Notice of Termination Events.......................... 27
Section 8.7. Non-Reliance on Agent, Purchaser Agents and Other
Purchasers......................................... 27
Section 8.8. Agents and Affiliates................................. 28
Section 8.9. Indemnification....................................... 28
Section 8.10. Successor Agent....................................... 28
ARTICLE IX MISCELLANEOUS......................................... 28
Section 9.1. Termination........................................... 28
Section 9.2. Notices............................................... 29
Section 9.3. Payments and Computations............................. 29
Section 9.4. Sharing of Recoveries................................. 29
Section 9.5. Right of Setoff....................................... 30
Section 9.6. Amendments............................................ 30
Section 9.7. Waivers............................................... 30
Section 9.8. Successors and Assigns; Participations; Assignments... 31
Section 9.9. Intended Tax Characterization......................... 32
Section 9.10. Confidentiality....................................... 33
Section 9.11. Agreement Not to Petition............................. 33
Section 9.12. Excess Funds.......................................... 33
Section 9.13. No Recourse........................................... 34
Section 9.14. Headings; Counterparts................................ 34
Section 9.15. Cumulative Rights and Severability.................... 34
Section 9.16. Governing Law; Submission to Jurisdiction............. 34
Section 9.17. WAIVER OF TRIAL BY JURY............................... 34
Section 9.18. Entire Agreement...................................... 34
Section 9.19 Seller Address Change................................. 35
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SCHEDULES DESCRIPTION
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Schedule I Definitions
Schedule II Related Bank Purchasers and Commitments of Related Bank Purchasers
EXHIBITS DESCRIPTION
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Exhibit A Form of Incremental Purchase Request
Exhibit B Form of Periodic Report
Exhibit C Addresses and Names of Seller and Originator
Exhibit D Subsidiaries
Exhibit E Lock-Boxes and Lock-Box Banks
Exhibit F Form of Lock-Box Letter
Exhibit G Compliance Certificate
Exhibit H Credit and Collection Policy
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AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT
AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT, dated as of December
21, 2005, 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
Amsterdam and the Purchasers (the "Agent"), SunTrust Capital Markets, as the
Three Pillars Purchaser Agent, the Other Purchaser Agents from time to time
party hereto, the related bank purchasers party hereto (the "Related Bank
Purchasers"), Three Pillars Funding LLC ("Three Pillars"), as a Conduit
Purchaser, Amsterdam Funding Corporation ("Amsterdam"), as a Conduit Purchaser
and the other Conduit Purchasers from time to time party hereto. Certain
capitalized terms used herein, and certain rules of construction, are defined in
Schedule I.
The parties hereto agree as follows:
ARTICLE I
PURCHASES FROM SELLER AND SETTLEMENTS
Reference is made to the Receivables Sale Agreement dated as of
December 30, 1999 (as amended prior to the date hereof, the "Original Sale
Agreement"), among the Seller, the Initial Collection Agent, the Agent, the
Liquidity Providers party thereto, ABN AMRO Bank N.V., as provider of the
Program LOC (the "Enhancer"), and Amsterdam Funding Corporation. The Seller has
requested that (i) a new Conduit Purchaser, Three Pillars Funding LLC and a
Related Bank Purchaser, SunTrust Bank, be added as purchasers (and not as
assignees) under this Agreement and (ii) that certain additional amendments be
made. This Agreement amends and replaces in its entirety the Original Sale
Agreement, and from and after the date hereof, all references to the Original
Sale Agreement in any Transaction Document or in any other instrument or
document shall, without more, be deemed to refer to this Agreement.
Section 1.1. Sales.
(a) The Sold Interest. Subject to the terms and conditions hereof, the
Seller may, from time to time before the Termination Date, sell to the Conduit
Purchasers or, only if the Conduit Purchasers decline to make the applicable
purchase, ratably to the Related Bank Purchasers for such Conduit Purchaser of
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 its
Purchaser, 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.
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) Conduit Purchasers Purchase Option and Other Purchasers'
Commitments. Subject to Section 1.1(d) concerning Reinvestment Purchases, at no
time will the Conduit Purchasers have any obligation to make a Purchase. Each
Related Bank 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 the related Conduit Purchaser
has refused to make a requested Purchase), to make Purchases before the
Termination Date, based on the applicable Purchaser Group's Ratable Share of
each Purchase (and, in the case of each Related Bank Purchaser, the Commitment
Percentage of its Purchaser Group's Ratable Shares of such Purchase), 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." All Purchases hereunder shall be made ratably by each
Purchaser Group in accordance with the Commitment of such Purchaser Group.
(c) Incremental Purchases. In order to request an Incremental Purchase
from a Purchaser, the Seller must provide to the Agent and each Purchaser 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
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to the Maximum Incremental Purchase Amount). All Incremental Purchases must be
requested ratably from all Conduit Purchasers unless upon such request a Conduit
Purchaser, in its sole discretion, determines not to make its Ratable Share of
the requested Incremental Purchase, in which case the Seller may request such
Ratable Share of the Incremental Purchase from the Related Bank Purchasers of
such Conduit Purchaser. Each Purchaser Agent shall promptly notify the related
Purchasers from which a Purchase is requested of the contents of such request.
If such Conduit Purchaser determines, in its sole discretion, to make the
requested Purchase, such Conduit Purchaser shall transfer to the applicable
Purchaser Agent's Account the amount of such Incremental Purchase on the
requested Purchase Date. If such Conduit Purchaser refuses to make a requested
Purchase and the Seller requests the Incremental Purchase from the Related Bank
Purchasers three Business Days before such requested Purchase, subject to
Section 7.2 and the other terms and conditions hereof, each Related Bank
Purchaser shall transfer its Ratable Share of the requested Purchase Amount into
the applicable Purchaser 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 Related Bank Purchasers). Each
Purchaser 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 such Purchaser Agent in such Purchaser Agent's Account prior to
11:00 a.m. on such day.
(d) Reinvestment Purchases. Unless a Conduit Purchaser has provided to
the Agent, its Purchaser 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 such Conduit Purchaser's Reinvestment
Purchases, but not those of its Related Bank Purchasers, shall cease), on each
day before the 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. A Conduit Purchaser may revoke any notice provided
under the first sentence of this Section 1.1(d) by notifying the Agent, its
Purchaser Agent, the Seller, and the Collection Agent that it will make
Reinvestment Purchases.
(e) Assignments. Pursuant to the Original Sale Agreement, the
Purchaser Agent for Amsterdam (on behalf of Amsterdam) has from time to time
purchased Receivables which are currently outstanding in the amount of
$245,000,000. The parties hereto are amending and restating the Original Sale
Agreement in order to add Three Pillars as a Conduit Purchaser hereunder,
SunTrust as a Related Bank Purchaser hereunder for Three Pillars and as the
Purchaser Agent for the Three Pillars Purchaser Group. Amsterdam hereby sells
and assigns to Three Pillars, and Three Pillars hereby purchases and assumes
from Amsterdam, a Purchase Interest in the Receivables which are held by the
Purchaser Agent for Amsterdam for the benefit of Amsterdam in the amount of
$102,083,341.50 such that the Purchase Interest of Three Pillars in Receivables
on the date hereof shall each equal such amount and the Purchase Interest of
Amsterdam shall equal $142,916,658.50. Amsterdam represents and warrants that it
is the legal and beneficial owner of the Purchase Interest assigned by it
hereunder and that such Purchase Interest is free and clear of any Adverse Claim
created by the Purchaser Agent for Amsterdam and/or Amsterdam.
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(f) 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, each Purchaser 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 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
Termination Date, subject to Section 1.2(b) below, by notifying the Agent, each
Purchaser 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 Termination Date any
condition in Section 7.2 is not fulfilled, the Seller shall immediately notify
the Agent, each Purchaser 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) The
Seller shall pay Funding Charges with respect to each Conduit Purchaser'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 applicable Purchaser Agent (for the benefit of its Conduit
Purchaser) an aggregate amount equal to all accrued and unpaid Funding Charges
in respect of such Purchase Interest for the immediately preceding Discount
Period. All Investment of the Related Bank 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 Related Bank Purchaser and three
Business Days before the expiration of any Tranche Period applicable to any
Related Bank 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 Related Bank 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 Conduit Purchasers not allocated to a Tranche Period shall be
a Prime Tranche. During the pendency of a Termination Event, the applicable
Purchaser Agent may reallocate any outstanding Investment of the Related Bank
Purchasers to a Prime Tranche. All Discount accrued on the Investment of the
Related Bank Purchasers during a Tranche Period shall be
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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) Each Purchaser Agent shall allocate the Investment of its Conduit
Purchaser 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 any Related Bank Purchaser, such amount of Investment shall
automatically accrue Discount at the Prime Rate for a three Business Day Tranche
Period. Any Investment purchased from a Conduit Purchaser pursuant to a Transfer
Agreement shall accrue interest at the Prime Rate and have an initial Tranche
Period of three Business Days.
(c) If a Purchaser Agent or any Related Bank 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 Related Bank 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 Related Bank Purchaser of funding Eurodollar
Tranches, then such Purchaser 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 each Purchaser Agent for the ratable benefit of its Purchaser Group, such
amounts as agreed to with the Seller in the Fee Letter for such Purchaser Group.
(b) If (i) with respect to any Investment of any Condit Purchaser, the
amount of such Conduit Purchaser's Investment is reduced on any date other than
the last day of a CP Tranche Period, (ii) the amount of Investment allocated to
any Eurodollar Tranche is 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 in the applicable Purchaser Group that had its Investment so
reduced or scheduled Purchase not made.
(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 as of any Reporting Date before the 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 ratably to the Purchaser Agent for their Purchaser
Group 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
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Investments, applied first to such Purchaser's Prime Tranches and second to the
other Tranches applicable to the Investment of such Purchaser with the shortest
remaining maturities unless otherwise specified by the Seller.
(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 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.
(c) Adjustment to Sold Interest. At any time before the 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 and each Purchaser 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
Related Bank 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 and each Purchaser 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.
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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 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
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 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.
ARTICLE II
SALES TO AND FROM CONDUIT PURCHASERS; ALLOCATIONS
Section 2.1. Required Purchases from a Conduit Purchaser. (a) Each
Conduit Purchaser may, at any time, sell to its Related Bank Purchasers pursuant
to the relevant Transfer Agreement any percentage designated by such Conduit
Purchaser of such Conduit Purchaser's Investment and its related Conduit
Purchaser Settlement (each, a "Put").
(b) Any portion of any Investment of a Conduit Purchaser and related
Conduit Purchaser Settlement purchased by a Related Bank Purchaser shall be
considered part of such Related Bank Purchaser's Investment and related Conduit
Purchaser Settlement from the date of the relevant Put. Immediately upon any
purchase by a Related Bank Purchaser of any portion of the relevant Conduit
Purchaser's Investment, the Seller shall pay to the relevant Purchaser Agent
(for the ratable benefit of each such Purchaser) an amount equal to the sum of
(i) the Assigned Settlement and (ii) all unpaid Discount owed to such Conduit
Purchaser (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 such Conduit Purchaser in
connection herewith at the time of such purchase and (iv) all accrued and unpaid
costs, expenses and indemnities due to such Conduit Purchaser from the Seller in
connection herewith.
Section 2.2. Purchases by a Conduit Purchaser. Each Conduit Purchaser
may at any time deliver to its Purchaser Agent and each of its Related Bank
Purchasers a notification of
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assignment in substantially the form provided by the relevant Transfer
Agreement. If a Conduit Purchaser delivers such notice, each of its Related Bank
Purchasers shall sell to such Conduit Purchaser and such Conduit Purchaser shall
purchase in full from each such Related Bank Purchasers, the Investment of such
Related Bank 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 Related Bank Purchaser to the relevant Conduit
Purchaser 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 Related Bank Purchaser is free and clear of any Adverse Claim created or
granted by such Related Bank Purchaser and that such Related Bank Purchaser has
not suffered a Bankruptcy Event.
Section 2.3. Allocations and Distributions. (a) Non-Reinvestment
Periods. Before the Termination Date unless an Interim Liquidation is in effect,
on each day during a period that a Conduit Purchaser is not making Reinvestment
Purchases (as established under Section 1.1(d)), the Collection Agent (i) shall
set aside and hold in trust solely for the benefit of the applicable Conduit
Purchaser (or deliver to the applicable Purchaser Agent, if so instructed
pursuant to Section 3.2(a)) such Conduit Purchaser's Purchase Interest in all
Collections received on such day and (ii) shall distribute on the last day of
each CP Tranche Period to the applicable Purchaser Agent (for the benefit of
such Conduit Purchaser) the amounts so set aside up to the amount of such
Conduit Purchaser's Purchase Interest 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 Purchase Interest and Tranche Period. 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 for distribution as part of
the Sold Interest in Collections, 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%.
(b) Termination Date and Interim Liquidations. On each day during any
Interim Liquidation and on each day on and after the Termination Date, the
Collection Agent shall set aside and hold solely for the account of each
Purchaser Agent, for the benefit of each Purchaser Group to the extent provided
below, (or deliver to each Purchaser Agent, if so instructed pursuant to Section
3.2(a)) and for the account of the Agent, all Collections received on such day
and such Collections shall be allocated as follows:
(i) first, to the Collection Agent until all amounts owed to the
Collection Agent under the Agreement have been paid in full;
(ii) second, ratably to each Purchaser Group until all Investment of,
and Discount and interest due but not already paid to, each Purchaser Group
has been paid in full;
(iii) third, ratably to each Purchaser Group until all other amounts
owed to such Purchaser Group under the Transaction Documents have been paid
in full;
(iv) fourth, to the Agent until all amounts owed to the Agent (other
than amounts owing the Agent in its role as a Purchaser Agent) have been
paid in full;
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(v) fifth, to each Purchaser Agent until all amounts owed to the
Purchaser Agents under the Transaction Documents 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
(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 a Purchaser Agent
pursuant to Section 3.2(a)), the Collection Agent shall pay to the appropriate
parties, from such 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 (ii) and (iii) above. No distributions
shall be made to pay amounts under clauses (iv), (v), (vi) and (vii) above until
sufficient Collections have been set aside to pay all amounts described in
clauses (ii) and (iii) that may become payable for all outstanding Tranche
Periods. All distributions by the Agent or any Purchaser 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 all
Purchaser Agents. If any part of the Sold Interest in any Collections is applied
to pay any amounts, payable hereunder that are obligations of the Seller
pursuant to Section 1.4(b) and after giving effect to such application the Sold
Interest is greater than 100%, the Seller shall pay for distribution in respect
of each applicable Purchaser's Investment as part of the Sold Interest in
Collections, 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%.
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, each Purchaser
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, each Purchaser Agent and each Purchaser
shall have the right to look solely to the Originator for such performance. The
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Agent (with the consent of the Instructing Group) 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 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 each Purchaser Agent the amount of Collections to which
such Purchaser Agent and the applicable 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, any Purchaser 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).
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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 and each Purchaser 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 information described on Exhibit B (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.
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(c) None of the Agent, any Purchaser Agent or 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
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 (with the consent of the Instructing Group) 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, any Purchaser Agent or any Purchaser's exercise of any
rights hereunder shall not relieve the Seller or the Originator from such
obligations. None of the Agent, any Purchaser Agents or 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, each Purchaser 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, each Purchaser
Agent and each Purchaser and their respective
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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
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, any Purchaser 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, any
Purchaser 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, any Purchaser 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, any Purchaser 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
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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, any Purchaser 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 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 (other than the
parties hereto) 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, any Purchaser
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
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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
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 C-E (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.
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:
(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 Agent:
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(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 Agent (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 each
Purchaser Agent and provide a description of:
(i) Potential Termination Events. The occurrence of any Potential
Termination Event;
(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;
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(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.
(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, each Purchaser Agent and the Purchasers such information
concerning the Receivables and the Related Security as the Agent, any Purchaser
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, any Purchaser
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 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, each Purchaser
Agent's and the Purchasers' interest in the
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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, the Purchaser Agents 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
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, the Purchaser Agents or the Purchasers in the Receivables, the Related
Security, Collections, Purchase Agreement or Lock-Box Accounts.
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(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, the Purchaser Agents 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, any Purchaser 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 E 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 F (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, each Purchaser
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 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
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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, any Purchaser 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 Purchaser Agents and 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, any Purchaser 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;
(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);
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(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 Funding Source, the Agent, any
Purchaser 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 or the applicable Purchaser Agent, the Seller shall pay to
the Agent, (with respect to amounts owed to it) or the applicable Purchaser
Agent (with respect to amounts owed to it or any Purchaser in its Purchaser
Group) for the account of the Person such additional amounts as will compensate
the Agent, such Purchaser Agent or such Purchaser (or, in the case of any
Conduit Purchaser, will enable such Conduit Purchaser to compensate any 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 the Related Bank Purchaser's Commitment is treated as
a "short term commitment" for which there is no regulatory capital requirement.
If any Related Bank Purchaser determines it is required to maintain capital
against 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 against a funded loan in the same amount, such Purchaser shall be
entitled to compensation under this Section 6.2.
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Section 6.3. Other Costs and Expenses. The Seller shall pay to the
Agent (with respect to amounts owed to it) or the applicable Purchaser Agent
(with respect to amounts owed to it or any Purchaser in its Purchaser Group) 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, any Purchaser 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 each Purchaser Agent relating to any of the foregoing or to advising
the Agent, any Purchaser Agent and any 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 Agent, each Purchaser and each 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 each Conduit Purchaser for any
amounts such Conduit Purchaser must pay to any Funding Source pursuant to the
related Transfer Agreement, this Agreement and the Funding Agreements related
thereto 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, Purchaser Agent
and the Agent free and clear of such taxes (including such taxes on such
additional amount) is equal to the amount that Purchaser, Purchaser Agent or the
Agent (as the case may be) would have received had such withholding not been
made. If the Agent, any Purchaser Agent or any Purchaser pays any such taxes,
penalties or interest the Seller shall reimburse the Agent, such Purchaser 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 related Purchaser 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
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rise thereto and the basis of the calculations of such amount, which certificate
shall be conclusive absent manifest error. The Seller shall pay to the Agent
(with respect to amounts owed to it) or the applicable Purchaser Agent (with
respect to amounts owed to it or any Purchaser in its Purchaser Group), 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 and each Purchaser
Agent the following documents in form, substance and quantity acceptable to the
Agent and each Purchaser Agent, as applicable:
(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.
(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 G covering the period ending
November 30, 2005, (iv) a Periodic Report covering the month ended November 30,
2005 and (v) each Transaction Document.
(e) Favorable opinions of counsel to the Seller and each Swift Entity
covering such matters as the Agent or any Purchaser Agent may request.
(f) Such other approvals, opinions or documents as the Agent or any
Purchaser Agent may request.
(g) All legal matters related to the Purchase are satisfactory to the
Purchasers.
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Section 7.2. Conditions to Each Purchase. The obligation of each
related Bank Related Bank 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 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 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 Related Bank
Purchaser to its related Conduit Purchaser (including the Transfer Agreement).
ARTICLE VIII
THE AGENT
Section 8.1. Appointment and Authorization. (a) Each Purchaser and
each Purchaser Agent 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.
(b) Each Purchaser hereby irrevocably designates and appoints the
respective institution identified on the applicable signature page hereto (as
applicable) as its Purchaser Agent
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hereunder, and each authorizes such Purchaser Agent to take such action on its
behalf under the provisions of this Agreement and to exercise such powers and
perform such duties as are expressly delegated to such Purchaser Agent by the
terms of this Agreement, if any, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, no Purchaser Agent shall have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Purchaser or other Purchaser Agent or the Agent, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities on the part of such Purchaser Agent shall be read into this
Agreement or otherwise exist against such Purchaser Agent.
(c) Except as otherwise specifically provided in this Agreement, the
provisions of this Article VIII are solely for the benefit of the Purchaser
Agents, the Agent and the Purchasers, and none of the Seller or any Collection
Agent shall have any rights as a third-party beneficiary or otherwise under any
of the provisions of this Article VIII, except that this Article VIII shall not
affect any obligations which any Purchaser Agent, the Agent or the Purchaser may
have to the Seller or any Collection Agent under the other provisions of this
Agreement. Furthermore, no Purchaser shall have any rights as a third-party
beneficiary or otherwise under any of the provisions hereof in respect of a
Purchaser Agent which is not the Purchaser Agent for such Purchaser.
(d) In performing its functions and duties hereunder, the Agent shall
act solely as the agent of the Purchasers and the Purchaser Agents and does not
assume nor shall be deemed to have assumed any obligation or relationship of
trust or agency with or for the Seller or Collection Agent or any of their
successors and assigns. In performing its functions and duties hereunder, each
Purchaser Agent shall act solely as the agent of its respective Purchaser and
does not assume nor shall be deemed to have assumed any obligation or
relationship of trust or agency with or for the Seller, any Collection Agent,
any other Purchaser, any other Purchaser Agent or the Agent, or any of their
respective successors and assigns.
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
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
Section 8.3. Exculpatory Provisions. None of the Agent, any Purchaser
Agent or any of their respective 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. Neither the Agent nor any Purchaser Agent
shall 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. Neither the Agent nor any Purchaser Agent shall have any obligation
to any Purchaser to ascertain or inquire about the observance or performance of
any agreement contained in any Transaction
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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. (a) Each Purchaser Agent and 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. Each Purchaser
Agent and 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.
(b) The Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement in accordance with a request of the
Purchasers or the Purchaser Agents, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all Purchasers, the Agent
and Purchaser Agents.
(c) For each Purchaser Group, 66-2/3% of the Commitments represented
by such Purchaser Group (each, a "Voting Block"), shall be required to request
or direct the applicable Purchaser Agent to take action, or refrain from taking
action, under this Agreement on behalf of such Purchasers. Such Purchaser Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement in accordance with a request of its appropriate Voting
Block, and such request and any action taken or failure to act pursuant thereto
shall be binding upon all of such Purchaser Agent's Purchasers.
(d) Unless otherwise advised in writing by a Purchaser Agent or by any
Purchaser on whose behalf such Purchaser Agent is purportedly acting, each party
to this Agreement may assume that (i) such Purchaser Agent is acting for the
benefit of each of the Purchasers in respect of which such Purchaser Agent is
identified as being the "Purchaser Agent" in the definition of "Purchaser Agent"
hereto, as well as for the benefit of each assignee or other transferee from any
such Person, and (ii) each action taken by such Purchaser Agent has been duly
authorized and approved by all necessary action on the part of the Purchasers on
whose behalf it is purportedly acting. Each initial Purchaser (or, with the
consent of all other Purchasers then existing, any other Purchasers) shall have
the right to designate a new Purchaser Agent (which may be itself) to act on its
behalf and on behalf of its assignees and transferees for purposes of this
Agreement by giving to the Agent written notice thereof signed by such
Purchaser(s) and the newly designated Purchaser Agent. Such notice shall be
effective when receipt thereof is acknowledged by the Agent, which
acknowledgment the Agent shall not unreasonably delay giving, and thereafter the
party named as such therein shall be Purchaser Agent for such Purchaser under
this Agreement. Each Purchaser Agent and its Purchaser(s) shall agree amongst
themselves as to the circumstances and procedures for removal and resignation of
such Purchaser Agent.
Section 8.5. Assumed Payments. Unless the Agent shall have received
notice from the applicable Purchaser Agent before the date of any Incremental
Purchase that the applicable Purchaser Group will not make available to the
Agent (in the case of an Incremental Purchase) or
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the applicable Purchaser Agent (in the case of a Put) the amount it is scheduled
to remit as part of such Incremental Purchase, the Agent may assume such
Purchaser Group 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. Neither any Purchaser Agent
nor the Agent shall be deemed to have knowledge or notice of the occurrence of
any Potential Termination Event unless the Agent or such Purchaser 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. In the event that the Agent receives such a notice, it shall
promptly give notice thereof to each Purchaser Agent whereupon each Purchaser
Agent shall promptly give notice thereof to its Purchasers. In the event that a
Purchaser Agent receives such a notice (other than from the Agent), it shall
promptly give notice thereof to the Agent. The Agent shall take such action
concerning a Potential Termination Event as may be directed by the Instructing
Group (or, in the case where there are only two Purchaser Groups and neither
Purchaser Group has a majority of the Commitments, either Purchaser Agent except
if the proposed action is a waiver of the consequences of the Potential
Termination Event, in which case such waiver shall require the consent of the
Instructing Group) (or, if otherwise 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 and
Purchaser Agents.
Section 8.7. Non-Reliance on Agent, Purchaser Agents and Other
Purchasers. Each Purchaser expressly acknowledges that none of the Agent, the
Purchaser Agents or any of their respective officers, directors, employees,
agents, attorneys-in-fact or Affiliates has made any representations or
warranties to it and that no act by the Agent or any Purchaser Agent hereafter
taken, including any review of the affairs of the Seller or any Originator,
shall be deemed to constitute any representation or warranty by the Agent or
such Purchaser Agent, as applicable. Each Purchaser represents and warrants to
the Agent and the Purchaser Agents that, independently and without reliance upon
the Agent, Purchaser Agents 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, any Originator, 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 Agent 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 Agent or Purchaser with
any information concerning the Seller, any Originator 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.
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Section 8.8. Agents and Affiliates. Each of the Purchaser Agents, the
Purchasers and the Agent and their respective Affiliates may extend credit to,
accept deposits from and generally engage in any kind of banking, trust, debt,
entity or other business with the Seller, each Originator or any of their
Affiliates and ABN AMRO may exercise or refrain from exercising its rights and
powers as if it were not the Agent. With respect to the acquisition of the
Receivables pursuant to this Agreement, each of the Purchaser Agents and the
Agents shall have the same rights and powers under this Agreement as any
Purchaser and may exercise the same as though it were not such an agent, and the
terms "Purchaser" and "Purchasers" shall include each of the Purchaser Agents
and the Agent in their individual capacities.
Section 8.9. Indemnification. Each Purchaser Group 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, each Purchaser Agent and each Purchaser, resign as
Agent. Such resignation shall not become effective until a successor agent is
appointed by the 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 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. Each Conduit Purchaser shall cease to be a
party hereto when the Termination Date has occurred, such Conduit Purchaser
holds no Investment and all amounts payable to it hereunder have been
indefeasibly paid in full. This Agreement shall terminate following the
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, each Purchaser Agent and each Purchaser under Article VI
and Section 8.9 shall survive such termination.
-28-
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 and each Purchaser Agent to act on telephone notices of
Purchases and Discount Rate and Tranche Period selections from any person the
Agent or such Purchaser Agent in good faith believes to be acting on behalf of
the relevant party and, at the Agent's or such Purchaser 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
or such Purchaser 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 or such Purchaser Agent, the records
of the Agent or such Purchaser 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 or such Purchaser
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 or appropriate Purchaser 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 or
the appropriate Purchaser 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 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
-29-
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, the Agent and the Instructing Group. In addition, no amendment of any
Transaction Document shall, without the consent of (a) all the Purchasers, (i)
extend the 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 or any Purchaser 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 Related Bank Purchasers,
(iv) except as provided herein, release, transfer or modify any Related Bank
Purchaser's Purchase Interest or change any Commitment, (v) amend the definition
of 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 and each affected
Purchaser Agent, amend any provision hereof if the effect thereof is to affect
the indemnities to, or the rights or duties of, the Agent or any Purchaser Agent
or to reduce any fee payable for the Agent's or such Purchaser Agent's own
account. Notwithstanding the foregoing, the amount of any fee or other payment
due and payable from the Seller or the Collection Agent to the Agent (for its
own account), any Purchaser Agent or any Purchaser may be changed or otherwise
adjusted solely with the consent of the 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 Purchaser Agents, the Purchasers and
the Agent.
Section 9.7. Waivers. No failure or delay of the Agent, any Purchaser
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, the Purchaser Agents 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
-30-
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
or related Purchaser Agent at the direction of the Purchaser entitled thereto.
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 obtaining the
prior consent of the Agent, the Purchaser 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, each Purchaser Agent 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 Related Bank Purchasers. Any Related Bank Purchaser
may assign to one or more Persons ("Purchasing Related Bank Purchasers"),
acceptable to the Agent in its sole discretion, any portion of its Commitment as
a Related Bank Purchaser hereunder and under its Transfer Agreement and Purchase
Interest pursuant to a supplement hereto and to its Transfer Agreement (a
"Transfer Supplement") in form satisfactory to the Agent executed by each such
Purchasing Related Bank Purchaser, such selling Related Bank Purchaser and the
Agent. Any such assignment by a Related Bank Purchaser must be for an amount of
at least Five Million Dollars. Any partial assignment shall be an assignment of
an identical percentage of such selling Related Bank Purchaser's Investment and
its Commitment as a Related Bank Purchaser hereunder and under its Transfer
Agreement. Upon the execution and delivery to the Agent of the Transfer
Supplement and payment by the Purchasing Related Bank Purchaser to the selling
Related Bank Purchaser of the agreed purchase price, such selling Related Bank
Purchaser shall be released from its obligations hereunder and under its
Transfer Agreement to the extent of such assignment and such Purchasing Related
Bank Purchaser shall for all purposes be a Related Bank Purchaser party hereto
and shall have all the rights and obligations of a Related Bank Purchaser
hereunder to the same extent as if it were an original party hereto and to its
Transfer Agreement with a Commitment as a Related Bank Purchaser, any Investment
and any related Assigned Settlement described in the Transfer Supplement.
-31-
(d) Replaceable Related Bank Purchasers. If any Related Bank Purchaser
(a "Replaceable Related Bank Purchaser") 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, the Seller or applicable Conduit Purchaser
may designate a replacement financial institution (a "Replacement Related Bank
Purchaser") acceptable to the Agent and the applicable Conduit Purchaser, in its
sole discretion, to which such Replaceable Related Bank Purchaser shall, subject
to its receipt of an amount equal to its Investment, any related Assigned
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 Related Bank Purchaser Commitment
hereunder and under the Transfer Agreement, together with all of its Purchase
Interest, and any related Assigned Settlement, to the Replacement Related Bank
Purchaser in accordance with Section 9.8(c).
(e) Assignment by Conduit Purchasers. Each party hereto agrees and
consents (i) to each Conduit Purchaser's assignment, participation, grant of
security interests in or other transfers of any portion of or any of its
beneficial interest in, the Purchase Interest and the related Assigned
Settlement and (ii) to the complete assignment by such Conduit Purchaser of all
of its rights and obligations hereunder to any Person reasonably acceptable to
Agent, and upon such assignment such Conduit Purchaser shall be released from
all obligations and duties hereunder; provided, however, that a Conduit
Purchaser may not, without the prior consent of its Related Bank Purchaser,
transfer any of its rights under the related Transfer Agreement to cause its
Related Bank Purchaser to purchase the Purchaser Interest of such Conduit
Purchaser and the Assigned Settlement unless the assignee (i) is a corporation
whose principal business is the purchase of assets similar to the Receivables,
(ii) has the related Purchaser Agent as its administrative agent and (iii)
issues commercial paper with credit ratings substantially comparable to the then
current ratings of such Conduit Purchaser. Each new Conduit Purchaser shall pay
a fee of Three Thousand Dollars to the Agent. Each Conduit Purchaser shall
notify the Seller prior to any such assignment and shall promptly notify each
other party hereto of any such assignment. Upon such an assignment of any
portion of a Conduit Purchaser's Purchase Interest and the related Assigned
Settlement and the payment to the Agent of the fee specified above, the assignee
shall have all of the rights of such Conduit Purchaser hereunder relate to such
Purchase Interest and related Assigned 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 or such Purchaser Agent may
reasonably request.
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
-32-
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, any Purchaser 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) Conduit Purchaser's
administrator, management company, referral agents, issuing agents or
depositaries or CP Dealers and (vi) 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 each Conduit Purchaser, 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 such
Conduit Purchaser to invoke, the process of any governmental authority for the
purpose of (a) commencing or sustaining a case against such Conduit Purchaser
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 such Conduit
Purchaser, or any substantial part of its property, or (c) ordering the winding
up or liquidation of the affairs of such Conduit Purchaser. The provisions of
this Section 9.11 shall survive termination hereof.
Section 9.12. Excess Funds. Notwithstanding any provisions contained
in this Agreement to the contrary, no Conduit Purchaser shall, nor shall be
obligated to, pay any amount pursuant to this Agreement unless (i) such Conduit
Purchaser has received funds which may be used to make such payment and which
funds are not required to repay its commercial paper notes when due and (ii)
after giving effect to such payment, either (x) such Conduit Purchaser could
issue commercial paper notes to refinance all of its outstanding commercial
paper notes (assuming such outstanding commercial paper notes matured at such
time) in accordance with the program documents governing such Conduit
Purchaser's securitization program or (y) all of such Conduit
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Purchaser's commercial paper notes are paid in full. Any amount which a Conduit
Purchaser does not pay pursuant to the operation of the preceding sentence shall
not constitute a claim (as defined in Section 101 of the United States
Bankruptcy Code) against or corporate obligation of such Conduit Purchaser for
any such insufficiency unless and until such Conduit Purchaser satisfies the
provisions of clauses (i) and (ii) above. The provisions of this Section 9.12
shall survive the termination of this Agreement.
Section 9.13. No Recourse. The obligations of each Conduit Purchaser,
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, Purchaser Agents 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
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
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contemporaneous agreements, whether written or oral, concerning such matters are
superseded thereby.
Section 9.19. Seller Address Change. The parties hereto hereby
acknowledge that as of the date hereof, the Seller has changed the address of
its chief executive office to that set forth on its signature page hereto.
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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
By
-------------------------------------
Title:
---------------------------------
By
-------------------------------------
Title:
---------------------------------
Address:
540 West Madison
27th Floor
Chicago, Illinois 60661
Attention: Agent-Amsterdam
Telephone: (312) 904-6263
Telecopy: (312) 904-4350
ABN AMRO BANK N.V., as the Related Bank
Purchaser for Amsterdam and as the
Amsterdam Purchaser Agent
By
-------------------------------------
Title:
---------------------------------
By
-------------------------------------
Title:
---------------------------------
Address:
540 West Madison
27th Floor
Chicago, Illinois 60661
Attention: Purchaser Agent-Amsterdam
Telephone: (312) 904-6263
Telecopy: (312) 904-4350
S-1
AMSTERDAM FUNDING CORPORATION
By
-------------------------------------
Title:
---------------------------------
Address:
c/o Global Securitization Services, LLC
25 West 43rd Street, Suite 704
New York, New York 10036
Attention: Andrew Stidd
Telephone: (212) 302-8330
Telecopy: (212) 302-8767
S-2
SUNTRUST CAPITAL MARKETS, as the Three
Pillars Purchaser Agent
By
-------------------------------------
Title:
---------------------------------
Address:
----------------------------------------
----------------------------------------
----------------------------------------
THREE PILLARS FUNDING LLC
By
-------------------------------------
Title:
---------------------------------
Address:
----------------------------------------
----------------------------------------
----------------------------------------
S-3
SWIFT RECEIVABLES CORPORATION, as Seller
By
-------------------------------------
Title:
---------------------------------
Address:
2200 South 75th Avenue
Building B
Phoenix, Arizona 85043
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
S-4
SUNTRUST BANK, as the Related Bank
Purchaser for Three Pillars
By
-------------------------------------
Title:
---------------------------------
Address:
----------------------------------------
----------------------------------------
----------------------------------------
S-5
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 twenty percent (20%) or more, or with
respect to Transplace, Inc. vote thirty percent (30%) 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 the aggregate of all Commitments of each
Purchaser Group, 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
each Conduit Purchaser 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.
"Approved Foreign Obligor" means an Obligor which is a resident of, or
organized under the laws of, or with its chief executive office in, Canada or
Mexico, in each case, to the extent that such country has a short-term foreign
currency rating of not less than "A-3" from S&P and "P-3" from Moody's.
"Assigned Settlement" means, for each Related Bank Purchaser for any
Put, the product of such Related Bank Purchaser's Purchased Percentage and the
amount of the Conduit Purchaser 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 a Conduit Purchaser 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.
"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;
-2-
(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 Related Bank Purchaser, the amount set
forth on Schedule II for such Conduit Purchaser or in a Transfer Supplement, and
for each Purchaser Group, the amount set forth on Schedule II for such Purchaser
Group, in each case as adjusted in accordance with Sections 1.6 and 9.8.
"Commitment Percentage" means, for each Related Bank Purchaser in a
Purchaser Group, the Commitment for such Related Bank Purchaser divided by the
total of all Commitments of all Related Bank Purchasers in such Purchaser Group.
"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 10% 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 Baa3 (or higher) by Moody's, an
amount not to exceed 5% of the aggregate outstanding balance of all Eligible
Receivables, and (iii) with respect to all other Obligors, an amount not to
exceed 2.5% of the aggregate outstanding balance of all Eligible Receivables.
"Conduit Purchaser" means each Person party to this Agreement and
listed as such on Schedule II hereto and each other Person that becomes a
Conduit Purchaser pursuant to a Transfer Supplement.
"Conduit Purchaser Investment Percentage" means a fraction, expressed
as a decimal, obtained by dividing the Investment of a Conduit Purchaser by the
Investment of all Purchasers.
"Conduit Purchaser 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 a
Conduit Purchaser (or owed to the Agent or Purchaser Agent or the Collection
Agent for the benefit of a Conduit Purchaser) by the Seller that, if paid, would
be applied to reduce Investment.
"CP Dealer" means, at any time for each Conduit Purchaser, each Person
such Conduit Purchaser 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
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thereof, issued by the applicable Conduit Purchaser 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 Conduit Purchaser 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 such Conduit Purchaser, as agreed between each such
CP Dealer and such Conduit Purchaser, 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 such Conduit Purchaser's converting such discount rate to an
interest-bearing equivalent rate. The CP Rate shall include all costs and
expenses to each Conduit Purchaser of issuing the related commercial paper
notes, including all dealer commissions and note issuance costs in connection
therewith.
"Credit Agreement" means the Second Amended and Restated Revolving
Credit Agreement dated as of December 16, 2005 among Swift Transportation Co.,
Inc., an Arizona corporation, as Borrower, Swift Transportation Corporation, a
Nevada corporation, the lenders from time to time party thereto, as Lenders,
SunTrust Bank, as Administrative Agent, Wells Fargo Bank, National Association
and Keybank National Association, as Co-Syndication Agents and U.S. Bank
National Association and LaSalle Bank National Association, as Co-Documentation
Agents, as the same may be amended from time to time; provided that if the
Credit Agreement shall be terminated or otherwise cease to be in full force and
effect at any time, the Applicable Margin shall be calculated in accordance with
the terms of the Credit Agreement as in effect immediately prior to such
termination.
"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 to (b) the sum of the aggregate outstanding
balance of all Receivables at the end of each calendar month.
"Defaulted Receivable" means any Receivable (a) on which any amount is
unpaid more than 90 days past its invoice 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 invoice date.
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"Designated Financial Officer" means the chief financial officer or
chief accounting officer of the Seller or the relevant Swift Entity, as
applicable.
"Dilution Horizon Ratio" means, for each calendar month, a fraction
(expressed as a ratio) the numerator of which is the aggregate Outstanding
Balance of Receivables generated by the Originators during the most recent two
calendar month period and the denominator of which is the Eligible Receivables
Balance as of the last day of such calendar month.
"Dilution Ratio" means, for each calendar month, a fraction (expressed
as a ratio) the numerator of which is the amount of Dilution for such calendar
month, and the denominator of which is aggregate Outstanding Balance of
Receivables generated by the Originators during the calendar month ended
immediately prior to such calendar month.
"Dilution Reserve" means at any time the product of (A) the sum of (i)
the Dilution Reserve Stress Factor, times the average Dilution Ratio for the
most recent 12 calendar months, plus (ii) the product of (x) the excess (if any)
of the highest Dilution Ratio for the most recent 12 calendar months and the
average Dilution Ratio for the same 12 calendar months and (y) the quotient of
the highest Dilution Ratio for the most recent 12 calendar months divided by the
average Dilution Ratio for the same 12 calendar months, and (B) the Dilution
Horizon Ratio for the most recently completed calendar month.
"Dilution Reserve Stress Factor" shall mean 2.0.
"Dilution" means, for any calendar month, the amount Deemed
Collections deemed to be received during such calendar month pursuant to Section
1.5(b).
"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.
"Discount Period" means, with respect to any Settlement Date or the
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 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.
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"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 Related Bank 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 the
applicable Conduit Purchaser 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 or is an Approved
Foreign Obligor; (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 35% 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; provided that notwithstanding the foregoing Receivables
stated to be due and payable within more than 30 days after the invoice
therefor shall not be deemed ineligible as a result of this clause (ii) to
the extent the Outstanding Balance of such Receivables does not exceed 5%
of the Eligible Receivables Balance;
(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 dispute, 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
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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 (i) the portion
of the aggregate outstanding balance of Eligible Receivables which exceeds the
Concentration Limit or the Special Limit and (ii) the portion of the aggregate
outstanding balance of Eligible Receivables the Obligors of which are Approved
Foreign Obligors which exceeds 3% of the aggregate outstanding balance of all
Eligible Receivables.
"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) the "Applicable Margin" (as defined in the Credit
Agreement) applicable to Eurodollar Loans (as defined in the Credit Agreement)
plus (c) 0.50% plus (d) during the pendency of a Termination Event, 2.00%; where
"Reserve Requirement" means, for any Tranche Period for a Eurodollar Tranche,
the maximum reserve requirement imposed during such Tranche 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 commercial paper issued by
a Conduit Purchaser 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, with respect to each Purchaser Group, for
any day the greater of (i) the highest rate per annum as determined by the
applicable Purchaser Agent at which overnight Federal funds are offered to such
Purchaser Agent for such day by major banks in the interbank market, and (ii) if
such Purchaser Agent 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 a Purchaser Agent
shall be conclusive and binding on the Seller except in the case of manifest
error.
"Fee Letter" means, for each Purchaser Group, the letter agreement
dated as of the date hereof among the Seller and the Purchaser Agent for such
Purchaser Group.
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"Funding Agreement" means any agreement or instrument executed by a
Conduit Purchaser and executed by or in favor of any Funding Source or executed
by any Funding Source at the request of such Conduit Purchaser.
"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 a Conduit Purchaser pursuant to the
terms of any Receivable Purchase Facilities funded substantially with Pooled
Commercial Paper.
"Funding Source" means, for a Conduit Purchaser, any insurance
company, bank or other financial institution providing liquidity, back-up
purchase or credit support for such Conduit Purchaser.
"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.
"Instructing Group" means (i) at any time there are three or more
Purchaser Groups, the Purchaser Agents representing Purchaser Groups with at
least 66- 2/3% of the Commitments and (ii) at any time there are fewer than
three Purchaser Groups, the Purchaser Agents representing Purchaser Groups with
100% of the Commitments.
"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 (or Purchaser Group), (a) the
sum of (i) all Incremental Purchases by such Purchaser (or Purchaser Group) and
(ii) the aggregate amount of
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any payments or exchanges made by, or on behalf of, such Purchaser (or Purchaser
Group) 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 (or Purchaser Group) 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 each Conduit Purchaser, all times when
such Conduit Purchaser 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 Termination Date.
"Liquidity Bank" means any commercial lending institution identified
as a Liquidity Bank on Schedule I hereto.
"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.
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"Loss Horizon Ratio" means, for each calendar month, a fraction
(expressed as a ratio) the numerator of which is the aggregate Outstanding
Balance of Receivables generated by the Originators during the most recent four
calendar month period and the denominator of which is the Eligible Receivables
Balance as of the last day of such calendar month.
"Loss Proxy" means, for each calendar month, a fraction (expressed as
a ratio) the numerator of which is equal to the sum of (i) the Outstanding
Balance of Receivables which are unpaid at least 120 and not more than 150 days
past the invoice date of such Receivables as of the last day of such calendar
months plus (ii) the Outstanding Balance of all Receivables which became
Charge-Offs during such calendar month together with all Receivables deemed
uncollectible by Swift during such calendar month plus (iii) the Outstanding
Balance of all Receivables the Obligor of which suffered a Bankruptcy Event
during such calendar month, and the denominator the four months prior aggregate
Outstanding Balance of Receivables generated by the Originators during the most
recent four calendar month period.
"Loss Reserve" shall equal the greater of (A) 10.0% and (B) the
product of (i) Loss Reserve Stress Factor, (ii) the highest rolling three-month
average Loss Proxy during the most recent 12 calendar months, and (iii) the Loss
Horizon Ratio as of the most recently completed calendar month.
"Loss Reserve Stress Factor" shall be 2.25; provided that the Loss
Reserve Stress Factor shall be reduced to 2.0 upon the written notification to
the Seller from the Agent of the Agent's and each Purchaser's receipt of
sufficient data to fully calculate the Loss Proxy for the most recent 12
calendar months.
"Matured Aggregate Investment" means, at any time, the Matured Value
of the total Investments of all 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.
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"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 a
Conduit Purchaser 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 a Conduit
Purchaser 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 a Conduit Purchaser 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.
"Prime Rate" means, with respect to each Purchaser Group, (A) for any
period, the daily average during such period of the greater of (i) the floating
commercial loan rate per annum of the applicable Purchaser Agent (which rate is
a reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer by such Purchaser Agent) 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, 2.00%.
"Purchase" is defined in Section 1.1(a).
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"Purchase Agreement" means the Receivables Purchase Agreement dated as
of December 30, 1999 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 $300,000,000.
"Purchased Percentage" means, for any Put, for each Related Bank
Purchaser, its Ratable Share or such lesser percentage as is necessary to
prevent the Purchase Price of such Purchaser from exceeding its Unused
Commitment.
"Purchaser Group" means, for each Conduit Purchaser, such Conduit
Purchaser, its Related Bank Purchasers (if any), and the Purchasers party to its
Transfer Agreement.
"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 each Conduit Purchaser and the Related Bank
Purchasers.
"Put" is defined in Section 2.1(a).
"Ratable Share" means, for each Purchaser Group, such Purchaser
Group's Commitment divided by the aggregate Commitment of all Purchaser Groups.
"Rating Agency" means Moody's, S&P and any other rating agency a
Conduit Purchaser chooses to rate its commercial paper notes.
"Ratings" means, for any Conduit Purchaser, the ratings by the Rating
Agencies of such Conduit Purchaser of the indebtedness for borrowed money such
Conduit Purchaser.
"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
Termination Date, the term "Receivable" shall only include receivables existing
on the date such Interim Liquidation commenced or Liquidity Termination Date
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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 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 the
Conduit Purchasers are 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.
"Related Bank Purchasers" means the Persons listed as such (and their
respective Commitments) for each Conduit Purchaser as listed on Schedule II
hereto and each other Person that becomes a Related Bank Purchaser pursuant to a
Transfer Supplement.
"Reporting Date" means, each on which the Collection Agent is required
to deliver a Periodic Report pursuant to Section 3.3 hereof.
"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 Wal-Mart, an amount not to
exceed 15% of the aggregate outstanding principal balance of all Eligible
Receivables for Wal-Mart, provided, however, the senior unsecured debt ratings
assigned to Wal-Mart is not less than AA- by S&P and Aa2 by Moody's.
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"Specially Pooled Paper" means the aggregate of all commercial paper
notes of each Conduit Purchaser 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 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 and during the continuance of any other Termination
Event, (c) the Business Day designated by the Seller with no less than thirty
(30) Business Days prior notice to the Agent and (d) December 20, 2006.
"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
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(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
(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 a Conduit Purchaser or
of the Related Bank 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.
-15-
"Transfer Agreement" means each transfer, liquidity or asset purchase
agreement entered into among a Conduit Purchaser, its Purchaser Agent and its
Related Bank Purchasers in connection with this Agreement.
"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 Related Bank Purchaser at any time,
the difference between its Commitment and its Investment then outstanding.
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.
-16-
SCHEDULE II
RELATED BANK PURCHASERS AND COMMITMENTS OF RELATED BANK PURCHASERS
CONDUIT PURCHASER NAME OF RELATED BANK PURCHASER COMMITMENT
- ----------------- ------------------------------ ------------
AMSTERDAM ABN AMRO BANK N.V. $178,500,000
THREE PILLARS SUNTRUST BANK $127,500,000
EXHIBIT A
TO
AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT
FORM OF INCREMENTAL PURCHASE REQUEST
________________, ______
ABN AMRO Bank N.V., as Agent
Asset Securitization, Structured Finance
27th Floor
540 West Madison Street
Chicago, Illinois 60661
Attn: Purchaser Agent-Amsterdam
Re: Amended and Restated Receivables Sale Agreement dated as of December
21, 2005 (the "Sale Agreement") among Swift Receivables Corporation, as
Seller, Swift Transportation Corporation, as Initial Collection Agent,
ABN AMRO Bank N.V., as Agent and Amsterdam Purchaser Agent, SunTrust
Capital Markets, as Three Pillars Purchaser Agent, Amsterdam and Three
Pillars 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
Conduit Purchaser under the Sale Agreement. [IN THE EVENT CONDUIT PURCHASER IS
UNABLE OR UNWILLING TO MAKE THE REQUESTED INCREMENTAL PURCHASE, THE SELLER
HEREBY REQUESTS AN INCREMENTAL PURCHASE OF $______________________ BY THE
RELATED BANK 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
----------------------------------
-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 (A4A) (A4B) (A4C) (A4D)
each such Purchase Date
(each Incremental
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 Allocation
among Purchasers (Pro Rata)
Conduit Purchasers $_________ $_________ $_________ $_________
Name of $_________ $_________ $_________ $_________
Related Bank
Purchaser
-3-
A6 Used Aggregate Commitment
Amount (after such Incremental
Purchase): $_____________
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%.
-4-
EXHIBIT B
FORM OF PERIODIC REPORT
EXHIBIT C
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: 2200 South 75th Avenue
Building B
Phoenix, AZ 85043
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 D
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 E
LOCK BOXES AND LOCK-BOX BANKS
BANK LOCK-BOX NUMBER COLLECTION ACCOUNT
---- --------------- ------------------
US Bank, National Association 643116 153655310032
US Bank, National Association 643158 153655310032
EXHIBIT F
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 Amended and Restated Receivables Sale
Agreement, dated as of December 21, 2005 (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"), Three
Pillars Funding LLC ("Three Pillars"), SunTrust Capital Markets, as Three
Pillars Purchaser Agent, and ABN AMRO Bank N.V., as agent (the "Agent") and the
Amsterdam Purchaser Agent, the Seller has assigned to the Agent for the benefit
of the Purchasers an undivided percentage interesting 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
the absence of fraud or abuse. Incoming mail
-2-
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.
-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:
---------------------------------
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.
Asset Securitization, Structured Finance
540 West Madison Street, 27th Floor
Chicago, Illinois 60661
Attention: Purchaser Agent-Amsterdam
Telephone Number: (312) 904-6263
Telecopy Number: (312) 904-6376
-4-
Acknowledged and agreed to as of the date first written above:
[NAME OF BANK]
By:
---------------------------------
Title:
------------------------------
Address for notice:
- -------------------------------------
- -------------------------------------
- -------------------------------------
-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 _________________ (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
-6-
EXHIBIT G
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 Amended and Restated Receivables Sale Agreement, dated as of
December 21, 2005 (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 related bank purchasers from time to time party thereto (collectively, the
"Related Bank Purchasers"), Amsterdam Funding Corporation ("Amsterdam"),Three
Pillars Funding LLC ("Three Pillars"), SunTrust Capital Markets, as Three
Pillars Purchaser Agent and ABN AMRO Bank N.V., as the Amsterdam Purchaser Agent
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.
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
-2-
EXHIBIT H
CREDIT AND COLLECTION POLICY