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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
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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
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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:
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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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<PAGE>
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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<PAGE>
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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<PAGE>
(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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<PAGE>
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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<PAGE>
(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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<PAGE>
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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<PAGE>
(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
