-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VBovChQtL987IJQ6TZOmGOpPrAJOlBNN+QLgfSdDLfqlMo8G/+HgX5HExfrivrth 0508omEb8alXcJfcMpD3GQ== 0000950147-00-000426.txt : 20000323 0000950147-00-000426.hdr.sgml : 20000323 ACCESSION NUMBER: 0000950147-00-000426 CONFORMED SUBMISSION TYPE: 10-K PUBLIC DOCUMENT COUNT: 8 CONFORMED PERIOD OF REPORT: 19991231 FILED AS OF DATE: 20000322 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SWIFT TRANSPORTATION CO INC CENTRAL INDEX KEY: 0000863557 STANDARD INDUSTRIAL CLASSIFICATION: TRUCKING (NO LOCAL) [4213] IRS NUMBER: 860666860 STATE OF INCORPORATION: NV FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K SEC ACT: SEC FILE NUMBER: 000-18605 FILM NUMBER: 575310 BUSINESS ADDRESS: STREET 1: 1455 HUDA WAY CITY: SPARKS STATE: NV ZIP: 89431 BUSINESS PHONE: 6022699700 MAIL ADDRESS: STREET 1: 2200 SOUTH 75TH AVENUE CITY: PHOENIX STATE: AZ ZIP: 85043 10-K 1 ANNUAL REPORT FOR THE YEAR ENDED 12/31/99 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-K (Mark One) [X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended December 31, 1999 OR [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from ___________ to ____________ Commission File No. 0-18605 SWIFT TRANSPORTATION CO., INC. (Exact name of registrant as specified in its charter) Nevada 86-0666860 (State or Other Jurisdiction of (Irs Employer Identification No.) Incorporation or Organization) 2200 South 75th Avenue Phoenix, AZ 85043 (Address of Principal Executive Offices) (Zip Code) (602) 269-9700 (Registrant's Telephone Number, Including Area Code) Securities Registered Pursuant to Section 12(b) of the Act: None Securities Registered Pursuant to Section 12(g) of the Act: Common Stock, $.001 par value Nasdaq National Market Indicate by check mark whether the registrant (1) has filed all reports required to be filed by section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No [ ] Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [ ] At March 15, 2000, the aggregate market value of common stock held by non-affiliates of the Registrant was $432,259,232. The number of shares outstanding of the Registrant's common stock on March 15, 2000 was 63,020,080. DOCUMENTS INCORPORATED BY REFERENCE Materials from the Registrant's Notice and Proxy Statement relating to the 2000 Annual Meeting of Stockholders have been incorporated by reference into Part III, Items 10, 11, 12 and 13. Exhibit Index at page 41 Total pages 145 TABLE OF CONTENTS PAGE ---- PART I Item 1. Business........................................................ 3 Item 2. Properties...................................................... 10 Item 3. Legal Proceedings............................................... 11 Item 4. Submission of Matters to a Vote of Security Holders............. 11 PART II Item 5. Market for the Registrant's Common Stock and Related Stockholder Matters........................................... 11 Item 6. Selected Financial and Operating Data........................... 13 Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations........................... 14 Item 7A. Quantitative and Qualitative Disclosures about Market Risk...... 20 Item 8. Financial Statements and Supplementary Data..................... 20 Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.......................... 40 PART III Item 10. Directors and Executive Officers of the Registrant.............. 40 Item 11. Executive Compensation.......................................... 40 Item 12. Security Ownership of Certain Beneficial Owners and Management................................................ 40 Item 13. Certain Relationships and Related Transactions.................. 40 PART IV Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K................................................... 41 SIGNATURES.................................................................. S-1 2 PART I ITEM 1. BUSINESS GENERAL Swift Transportation Co., Inc. (with its subsidiaries, "Swift" or the "Company") is the third largest publicly-held, national truckload carrier in the United States. Swift operates primarily throughout the continental United States, combining strong regional operations with a transcontinental van operation. The principal types of freight transported by Swift include retail and discount department store merchandise, manufactured goods, paper products, non-perishable food, beverages and beverage containers and building materials. By meeting its customers' specific needs for both regional and transcontinental service and through selective acquisitions, Swift has been able to achieve significant growth in revenues over the past five years. Operating revenue has grown at a compound annual growth rate of 23.7% from $365.9 million in 1994 to $1.1 billion in 1999. During that same period, net earnings have grown at a compound annual growth rate of 24.2% from $22.6 million to $66.8 million. Swift Transportation Co., Inc., a Nevada corporation headquartered in Sparks, Nevada, is a holding company for the operating corporations named Swift Transportation Co., Inc. and Swift Transportation Corporation. These companies are collectively referred to herein as the "Company." The Company's headquarters are located at 2200 South 75th Avenue, Phoenix, Arizona 85043, and its telephone number is (602) 269-9700. This Annual Report on Form 10-K contains forward-looking statements. Additional written or oral forward-looking statements may be made by the Company from time to time in filings with the Securities and Exchange Commission or otherwise. The words "believe," "expect," "anticipate," and "project," and similar expressions identify forward-looking statements, which speak only as of the date the statement was made. Such forward-looking statements are within the meaning of that term in Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Such statements may include, but are not limited to, projections of revenues, income, or loss, capital expenditures, plans for future operations, financing needs or plans, the impact of inflation and plans relating to products or services of the Company, as well as assumptions relating to the foregoing. The Company undertakes no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events, or otherwise. Forward-looking statements are inherently subject to risks and uncertainties, some of which cannot be predicted or quantified. Future events and actual results could differ materially from those set forth in, contemplated by, or underlying the forward-looking statements. Statements in this Annual Report, including the Notes to the Consolidated Financial Statements and "Management's Discussion and Analysis of Financial Condition and Results of Operations," describe factors, among others, that could contribute to or cause such differences. Additional factors that could cause actual results to differ materially from those expressed in such forward-looking statements are set forth in "Business" and "Market for the Registrant's Common Stock and Related Stockholder Matters" in this Annual Report. OPERATING STRATEGY Swift focuses on achieving high density for service-sensitive customers in short-to-medium haul traffic lanes. Through its network of 34 terminals, Swift is able to provide regional service on a nationwide basis. Swift's terminal network establishes a local market presence in the regions Swift serves and enables Swift to respond more rapidly to its customers' changing requirements. This regional network also enables Swift to enhance driver recruitment and retention by returning drivers to their homes regularly, reduce its purchases of higher priced fuel at truck stops and expedite lower cost, in-house equipment maintenance. With an average length of haul of 541 miles in 1999, Swift is able to limit its direct competition with railroads, intermodal services and longer-haul, less specialized truckload carriers. 3 Swift seeks to provide premium service with commensurate rates, rather than compete primarily on the basis of price. The principal elements of Swift's premium service include: regional terminals to facilitate single and multiple pick-ups and deliveries and maintain local contact with customers; well-maintained, late model equipment; a fully-integrated computer system to monitor shipment status and variations from schedule; an onboard communications system that enables the Company to dispatch and monitor traffic; timely deliveries; and extra equipment to respond promptly to customers' varying requirements. To manage the higher costs and greater logistical complexity inherent in operating in short-to-medium haul traffic lanes, Swift employs sophisticated computerized management control systems to monitor key aspects of its operations, such as availability of equipment, truck productivity and fuel consumption. Swift has a three-year replacement program for substantially all of its tractors, which allows Swift to maximize equipment utilization and fuel economy by capitalizing on improved engine efficiency and vehicle aerodynamics and to minimize maintenance expense. For 1999 and 1998, Swift maintained an operating ratio of 89.0% and 88.7%, respectively. GROWTH STRATEGY Major shippers continue to reduce the number of carriers they use for their regular freight needs. This has resulted in a relatively small number of financially stable "core carriers" and has contributed to consolidation in the truckload industry in recent years. The truckload industry remains highly fragmented, and management believes that overall growth in the truckload industry and continued industry consolidation will present opportunities for well managed, financially stable carriers such as Swift to expand. The Company intends to take advantage of growth opportunities through a combination of internal growth and selective acquisitions. The key elements of Swift's growth strategy are: * STRENGTHEN CORE CARRIER RELATIONSHIPS. Swift intends to continue to strengthen its core carrier relationships, expand its services to its existing customers and pursue new customer relationships. By concentrating on expanding its services to its existing customers, Swift's revenues from its top 25 customers of 1997 increased by 43% from 1997 to 1999. The largest 25, 10 and 5 customers, respectively, accounted for 52%, 35% and 24% of revenues in 1999, with no customer accounting for more than 7% of Swift's revenues during that same period. In addition to expanding its services to existing customers, Swift actively pursues new traffic commitments from high volume, financially stable shippers for whom it has not previously provided services. * PURSUE STRATEGIC ACQUISITIONS. Swift's revenue growth has been attributable, in significant part, to eight acquisitions completed in the last eleven years. These acquisitions have enabled Swift to expand from its historical operations base in the Western United States and develop a strong regional presence in the Midwestern, Eastern and Southeastern United States. Swift generally limits its consideration of acquisitions to those it believes will be accretive to earnings within six months, and historically all of its acquisitions have met this objective. During the past two years, acquisition opportunities have not met the Company's objective primarily because of the difference between the book value and market value of used equipment. * EXPLOIT PRIVATE FLEET OUTSOURCING. A number of large companies maintain their own private trucking fleets to facilitate distribution of their products. Swift believes that a high percentage of private fleet traffic is short-to-medium haul in nature, traveling an average of 500 miles or less per round trip. In order to reduce operating costs associated with private fleets, a number of large companies have begun to outsource their transportation and logistics requirements. Swift believes that its strong regional operations and average length of haul of less than 600 miles position it to take advantage of this trend, and Swift already serves as a preferred supplier or "core carrier" to many major shippers who are considering, or may in the future consider, outsourcing their transportation and logistics requirements. 4 OPERATIONS Swift has developed a network of regional terminals and offices strategically located in areas which have strong, diverse economies and provide access to other key population centers. The terminals are located in close proximity to major customers who tender significant traffic volume to Swift. To minimize competition with long-haul truckload carriers and railroads, Swift operates principally within short-to-medium-haul traffic lanes. Although the Company's transcontinental division allows it to serve a broad spectrum of shipper needs, the primary regions in which Swift operates are ideally suited to short-to-medium-haul lanes because of the distribution of population and economic centers. During 1999 and 1998, Swift's average length of haul was 541 and 567 miles, respectively. Swift focuses the marketing of its services to large, service-sensitive customers that regularly ship over established routes within Swift's regional service areas. Swift's service includes the availability of specialized equipment suitable for the requirements of certain industries; high cubic capacity trailers; computerized tracking of and frequent reporting on customer shipments; onboard communications that enable instant re-routing or modification of traffic; well-maintained, late-model equipment that enhances on-time deliveries; multiple drops, appointment pick-ups and deliveries; assistance in loading and unloading; extra trailers that can be placed for the convenience of customers; and sufficient equipment to respond promptly to customers' varying requirements. The achievement of significant regular freight volumes on high-density routes and consistent shipment scheduling over these routes are key elements of Swift's operations. As a result, Swift's terminal managers are better able to match available equipment to available loads and schedule regular maintenance and fueling at Company terminals, thereby improving productivity and asset utilization and minimizing empty miles and expensive over-the-road fueling and repair costs. Consistent scheduling also allows Swift to be more responsive to its customers' needs. Swift's regular scheduling and relatively short length of haul enable drivers to return to their homes regularly, which has helped Swift improve driver recruitment. In order to reduce the higher operating costs traditionally associated with medium-length hauls and specialized equipment, Swift has installed sophisticated computerized management control systems to monitor key aspects of its operations. Swift has a significant investment in its computer hardware and utilizes state-of-the-art software specially designed for the trucking industry. The Company's fully integrated computer network allows its managers to coordinate available equipment with the transportation needs of its customers, monitor truck productivity and fuel consumption and schedule regular equipment maintenance. Dispatchers monitor the location and delivery schedules of all shipments and equipment to coordinate routes and increase equipment utilization. The Company's computer system provides immediate access to current information regarding driver and equipment status and location, special load and equipment instructions, routing and dispatching. Swift's larger terminals are staffed with terminal managers, driver managers and customer service representatives. Terminal managers work with both the fleet managers and the customer service representatives, as well as all other operations personnel, to coordinate the needs of both customers and drivers. Terminal managers are also responsible for soliciting new customers and serving existing customers in their areas. Each driver manager is responsible for the general operation of approximately 29 trucks and their drivers, including driver retention, productivity per truck, routing, fuel consumption, safety and scheduled maintenance. Customer service representatives are assigned specific customers to ensure specialized, high-quality service and frequent customer contact. ACQUISITIONS The growth of the Company has been dependent in part upon the acquisition of trucking companies throughout the United States. In 1988, the Company acquired Cooper Motor Lines ("Cooper"), which established the Company's operations in the Eastern United States. In September 1991, Swift further expanded its eastern operations by acquiring Arthur H. Fulton, Inc. ("Fulton"). In June 1993, the Company strengthened its presence in the Northwestern United States with the acquisition of West's Best Freight Systems, Inc. ("West's Best"). 5 During 1994, the Company completed the acquisitions of both East-West Transportation, Inc. ("East-West") and Missouri-Nebraska Express, Inc. ("MNX"). The MNX acquisition established a significant regional operation in the Midwestern United States. In September 1996, the Company acquired the dry freight van division of Navajo Shippers, Inc., Digby Leasing, Inc. and Digby-Ringsby Truck Line, Inc. (collectively, "Navajo Shippers"). In April 1997, the Company acquired certain assets of Direct Transit, Inc. ("DTI"), a Debtor-In-Possession in United States Bankruptcy Court. DTI was a dry van carrier based in North Sioux City, South Dakota and operated predominantly in the eastern two-thirds of the United States. See "Factors That May Affect Future Results and Financial Condition" under Item 7. REVENUE EQUIPMENT Swift acquires premium tractors to help attract and retain drivers, promote safe operations and minimize maintenance and repair costs. Management believes the higher initial investment is recovered through improved resale value. The following table shows the type and age of Company-owned and leased equipment at December 31, 1999:
57', 53' AND SETS OF FLATBED SPECIALIZED MODEL YEAR TRACTORS (1) 48' VANS DOUBLE VANS TRAILERS TRAILERS ---------- ------------ -------- ----------- -------- -------- 2000.................. 1,937 2,774 75 75 1999.................. 2,215 4,946 33 61 1998.................. 1,479 3,194 20 2 1997.................. 698 3,411 308 96 1996.................. 272 2,225 200 1995.................. 114 718 155 93 1994 and prior........ 225 4,566 403 197 167 ------ ------- ------- ------ ------ Total...... 6,940 21,834 558 926 401 ====== ======= ======= ====== ======
- ---------- (1) Excludes 1,748 owner-operator tractors. When purchasing new revenue equipment, Swift acquires standardized tractors and trailers manufactured to the Company's specifications. Since 1990, Swift has predominantly acquired tractors manufactured by Freightliner powered by Series 60 Detroit Diesel engines. Standardization of drive-line components allows Swift to operate with a minimum spare parts inventory, enhances Swift's maintenance program and simplifies driver training. Swift adheres to a comprehensive maintenance program that minimizes downtime and enhances the resale value of its equipment. In addition to its primary maintenance facility in Phoenix, Arizona, Swift performs routine servicing and maintenance of its equipment at most of its regional terminal facilities, thus avoiding costly on-road repairs and out-of-route trips. Swift has adopted a three-year replacement program on the majority of its line-haul tractors. This replacement policy enhances Swift's ability to attract drivers, maximize its fuel economy by capitalizing on improvement in both engine efficiency and vehicle aerodynamics, stabilize maintenance expense and maximize equipment utilization. Swift has installed Qualcomm onboard, two-way vehicle satellite communication systems in the majority of its tractors. This communications system links drivers to regional terminals and corporate headquarters, allowing Swift to rapidly alter its routes in response to customer requirements and to eliminate the need for driver stops to report problems or delays. This system allows drivers to inform dispatchers and driver managers of the status of routing, loading and unloading or the need for emergency repairs. Swift believes the communications system improves fleet control, the quality of customer service and driver retention. Swift intends to continue to install the communication system in substantially all tractors acquired in the future. In 1998, Swift adopted a speed limit of 60 miles per hour for Company tractors (62 miles per hour for team drivers) and 65 miles per hour for owner-operator tractors to reduce accidents, enhance fuel mileage and minimize maintenance expense. Substantially all of Swift's Company tractors are equipped with electronically controlled engines that are set to limit the speed of the vehicle. 6 MARKETING AND CUSTOMERS Swift has targeted the service-sensitive segment of the truckload market, both common and contract, rather than that segment that uses price as its primary consideration. The Company has chosen to provide premium service with commensurate rates rather than compete primarily on the basis of price. The principal elements of Swift's premium service include: regional terminals to facilitate single and multiple pick-ups and deliveries and to maintain local contact with customers; a fully-integrated computer system to monitor shipment location and variations from schedule; an onboard communication system that enables the Company to reroute traffic; well-maintained, late model equipment; timely deliveries; extra equipment for the convenience of customers, which enables Swift to respond promptly to customers' varying requirements; assistance in loading and unloading; and Company control of revenue equipment. By concentrating on expanding its services to its existing customers, the Company's revenues from its top 25 customers of 1997 increased 43% from 1997 to 1999. Swift maintains a strong commitment to marketing. Swift has assigned a member of senior management to each of its largest customers to ensure a high level of customer support. Swift solicits new customers from its Phoenix, Arizona headquarters and each of its regional terminals through a marketing staff of approximately 30 persons. Once a customer relationship has been established, regional customer service representatives maintain contact and solicit additional business. Swift concentrates on attracting non-cyclical customers that regularly ship multiple loads from locations that complement existing traffic flows. Customer shipping point locations are regularly monitored and, as shipping patterns of existing customers expand or change, Swift attempts to obtain additional customers that will complement the new traffic flow. This strategy enables Swift to maximize equipment utilization. The largest 25, ten and five customers accounted for approximately 52%, 35% and 24% respectively, of Swift's revenues during 1999, 46%, 33% and 22%, respectively, of Swift's revenues during 1998 and 47%, 33% and 23%, respectively, of Swift's revenues during 1997. No customer accounted for more than 7% of Swift's gross revenues during any of the three most recent fiscal years. Swift's largest customers include retail and discount department store chains, manufacturers, non-perishable food companies, beverage and beverage container producers and building materials companies. DRIVERS AND EMPLOYEES All Swift drivers must meet or exceed specific guidelines relating primarily to safety records, driving experience and personal evaluations, including a physical examination and mandatory drug testing. Upon being hired, a driver is trained in all phases of Swift's policies and operations, safety techniques, and fuel efficient operation of the equipment. All new drivers must pass a safety test and have a current Commercial Drivers License. In addition, Swift has ongoing driver efficiency and safety programs to ensure that its drivers comply with its safety procedures. Senior management is actively involved with the development and retention of drivers. Recognizing the need for qualified drivers, Swift established its own driver-training school in Phoenix, Arizona in 1987, which is certified by the Arizona Department of Transportation. Swift also has contracted with driver-training schools which are managed by outside organizations as well as local community colleges throughout the country. Candidates for the schools must be at least 23 years old (21 years old with military service), with a high school education or equivalent, pass a basic skills test and pass the U.S. Department of Transportation ("DOT") physical examination, which includes drug and alcohol screening. Students are required to complete three weeks of classroom study and driving range time and a six to eight week, on-the-road training program. Swift bases its drivers at the regional terminals and monitors each driver's location on its computer system. Swift uses this information to schedule the routing for its drivers so that they can return home frequently. In order to attract and retain highly qualified drivers and promote safe operations, the Company purchases premium quality tractors equipped with optional comfort and safety features, such as air ride suspension, air conditioning, high quality interiors, power steering, engine brakes and raised roof double sleeper cabs. The majority of company drivers are compensated on the basis of miles driven, loading/unloading and number of stops or deliveries, plus bonuses. Base pay for miles driven increases with a driver's length of service. Drivers employed by Swift participate in company-sponsored health, life and dental insurance plans and are eligible to participate in a 401(k) Profit Sharing Plan and an Employee Stock Purchase Plan. 7 Swift believes its innovative driver-training programs, driver compensation, regionalized operations, driver tracking and late-model equipment provide important incentives to attract and retain qualified drivers. Although Swift has had no significant downtime due to inability to secure qualified drivers, no assurance can be given that a shortage of qualified drivers will not adversely affect the Company in the future. As of December 31, 1999, Swift employed approximately 11,000 full-time persons, of whom approximately 8,300 were drivers (including driver trainees), 1,000 were mechanics and other equipment maintenance personnel and the balance were support personnel, such as sales personnel, corporate managers and administration. None of Swift's drivers or other employees is represented by a collective bargaining unit. In the opinion of management, Swift's relationship with its drivers and employees is good. SAFETY The Company has an active safety and loss prevention program at each of its terminals. Supervisors engage in ongoing training of drivers regarding safe vehicle operations and loading procedures. The Company has adopted maximum speed limits. The Company believes that its insurance and claims expense as a percentage of operating revenue is one of the best in the industry which is attributable to its overall strong safety program. In December 1997, the Company received the highest safety rating given to motor carriers by the United States Department of Transportation. FUEL In order to reduce fuel costs, the Company purchases approximately 73% of its fuel in bulk at 28 of its 34 terminals. Swift stores fuel in underground storage tanks at four of its bulk fueling terminals and in above ground storage tanks at its other bulk fueling terminals. The Company believes that it is in substantial compliance with applicable environmental laws and regulations. Shortages of fuel, increases in fuel prices or rationing of petroleum products could have a material adverse effect on the operations and profitability of the Company. From time to time, the Company, in response to increases in fuel costs, has implemented fuel surcharges to pass on to its customers all or substantially all of such costs. However, there can be no assurance that such fuel surcharges could be used to offset future increases in fuel prices. The Company believes that its most effective protection against fuel cost increases is to maintain a fuel efficient fleet and to implement fuel surcharges when such option is necessary and available. The Company has not used derivative-type products as a hedge against higher fuel costs in the past but continues to evaluate this possibility. COMPETITION The trucking industry is extremely competitive and fragmented. The Company competes primarily with regional, medium-haul truckload carriers. Management believes, because of its cost efficiencies, productive equipment utilization and financial resources, that the Company has a competitive advantage over most regional truckload carriers. The Company believes that competition for the freight transported by the Company is based, in the long term, as much upon service and efficiency as on freight rates. There are some trucking companies with which the Company competes that have greater financial resources, own more revenue equipment and carry a larger volume of freight than the Company. Long-haul truckload carriers and railroads also provide competition, but to a lesser degree. The Company also competes with other motor carriers for the services of drivers. REGULATION Prior to December 29, 1995 the Company was regulated by the Interstate Commerce Commission ("ICC"). On December 29, 1995, the ICC ceased operations. However, substantially all of the jurisdiction over motor carriers was transferred to the United States Department of Transportation, and most of the regulatory requirements remain essentially unchanged. This regulatory authority has broad powers, generally governing matters such as authority to engage in motor carrier operations, certain mergers, consolidations and acquisitions and periodic financial reporting. The trucking industry is subject to regulatory and legislative changes which can affect the economics of the industry. The Company is also regulated by various state agencies. The Company's operations are also subject to various federal, state and local environmental laws and regulations dealing with transportation, storage, presence, use, disposal and handling of hazardous materials, discharge of stormwater and underground fuel storage tanks. The Company believes that its operations are in substantial compliance with current laws and regulations and 8 does not know of any existing condition that would cause compliance with applicable environmental regulations to have a material adverse effect on the Company's business or operating results. SEASONALITY In the transportation industry, results of operations generally show a seasonal pattern as customers reduce shipments after the winter holiday season. The Company's operating expenses also tend to be higher in the winter months primarily due to colder weather which causes higher fuel consumption from increased idle time. 9 ITEM 2. PROPERTIES The following table provides information regarding the Company's regional terminals and/or offices: Company Owned Location or Leased - -------- --------- Albany, Georgia........................................................ Leased Albuquerque, New Mexico................................................ Leased Atlanta, Georgia....................................................... Leased Birmingham, Alabama.................................................... Leased Columbus, Ohio......................................................... Owned Corsicana, Texas....................................................... Leased Denver, Colorado....................................................... Leased Eden, North Carolina................................................... Owned Edwardsville, Kansas................................................... Owned Fontana, California.................................................... Owned Gary, Indiana.......................................................... Owned Greer, South Carolina.................................................. Owned Harrisburg, Pennsylvania............................................... Owned Invergrove Heights (Minneapolis), Minnesota............................ Leased Irving, Texas.......................................................... Leased Laredo, Texas.......................................................... Leased Lathrop (Bay Area), California......................................... Owned Lewiston, Idaho........................................................ Leased Manteno, Illinois...................................................... Owned Memphis, Tennessee..................................................... Owned Ocala, Florida......................................................... Owned Oklahoma City, Oklahoma................................................ Owned Phoenix, Arizona....................................................... Owned Pueblo, Colorado....................................................... Owned Richmond, Virginia..................................................... Owned Romulus, Michigan...................................................... Leased Salt Lake City, Utah................................................... Leased Seattle, Washington.................................................... Leased Shoals, Indiana........................................................ Owned Sparks, Nevada......................................................... Owned Syracuse, New York..................................................... Owned Town of Menasha, Wisconsin............................................. Owned Troutdale (Portland), Oregon........................................... Owned Willows, California.................................................... Owned Swift's headquarters is located on approximately 153 acres in Phoenix, Arizona and contains 83,000 square feet of office space, 106,000 square feet of shop and maintenance facilities, 27,000 square feet of a drivers' center, a recruiting and training center, a warehouse facility, a two-bay truck wash and an eight lane fueling center. The Company's prior headquarters is held for sale. As of December 31, 1999, the Company's aggregate monthly rent for all leased properties was $129,000. 10 ITEM 3. LEGAL PROCEEDINGS The Company is a party to routine litigation incidental to its business, primarily involving claims for personal injury or property damage incurred in the transportation of freight. The Company's insurance program for liability, physical damage and cargo damage involves self-insurance with varying risk retention levels. Claims in excess of these risk retention levels are covered by insurance in amounts which management considers to be adequate. The Company is not aware of any claims or threatened claims that might have a material adverse effect on the Company's financial condition. ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS No matters were submitted to a vote of the Company's security holders during the fourth quarter of 1999. PART II ITEM 5. MARKET FOR THE REGISTRANT'S COMMON STOCK AND RELATED STOCKHOLDER MATTERS The Company's common stock is publicly traded on the Nasdaq National Market ("Nasdaq") under the symbol "SWFT". The following table sets forth the high and low closing sales prices of the common stock reported by Nasdaq for the periods shown. Common Stock -------------------- High Low ---- --- 1999 First Quarter........................... $22.50 $16.33 Second Quarter.......................... 22.63 14.00 Third Quarter........................... 24.00 18.75 Fourth Quarter.......................... 19.81 12.69 1998 First Quarter........................... $17.83 $12.72 Second Quarter.......................... 17.17 12.00 Third Quarter........................... 15.33 10.59 Fourth Quarter.......................... 19.50 11.29 On March 15, 2000, the last reported sales price of the Company's common stock was $17.75 per share. At that date, the number of stockholder accounts of record of the Company's common stock was 2,811. The Company estimates there are approximately 5,100 beneficial holders of the Company's common stock. The Company has not paid cash dividends on its common stock in either of the two preceding fiscal years and one of the Company's notes payable includes limitations on the payment of cash dividends. It is the current intention of management to retain earnings to finance the growth of the Company's business. Future payment of cash dividends will depend upon the financial condition, results of operations, and capital requirements of the Company, as well as other factors deemed relevant by the Board of Directors. 11 FACTORS THAT MAY AFFECT FUTURE STOCK PERFORMANCE The performance of the Company's common stock is dependent upon several factors, including those set forth below and in "Management's Discussion and Analysis of Financial Condition and Results of Operations - Factors That May Affect Future Results and Financial Condition." INFLUENCE BY PRINCIPAL STOCKHOLDER. Trusts established for the benefit of Jerry C. Moyes and his family beneficially own approximately 45% of the Company's common stock. Accordingly, Mr. Moyes will have a significant influence upon the activities of the Company, as well as on all matters requiring approval of the stockholders, including electing members of the Company's Board of Directors and causing or restricting the sale or merger of the Company. This concentration of ownership, as well as the ability of the Board to establish the terms of and issue preferred stock of the Company without stockholder approval, may have the effect of delaying or preventing changes in control or management of the Company, including transactions in which stockholders might otherwise receive a premium for their shares over their current market prices. POSSIBLE VOLATILITY OF STOCK PRICE. The market price of the Company's common stock could be subject to significant fluctuations in response to certain factors, such as, among others, variations in the anticipated or actual results of operations of the Company or other companies in the transportation industry, changes in conditions affecting the economy generally, analysts' reports or general trends in the industry, as well as other factors unrelated to the Company's operating results. 12 ITEM 6. SELECTED FINANCIAL AND OPERATING DATA The selected consolidated financial data presented below for, and as of the end of, each of the years in the five-year period ended December 31, 1999 is derived from the Company's Consolidated Financial Statements. The Consolidated Financial Statements as of December 31, 1999 and 1998, and for each of the years in the three-year period ended December 31, 1999 and the independent auditors' report thereon, are included in Item 8 of this Form 10-K. This data should be read in conjunction with the Consolidated Financial Statements and Notes thereto included in Item 8 of this Form 10-K. Information presented below under the caption, Operating Statistics, is unaudited.
Years Ended December 31, -------------------------------------------------------------- 1999 1998 1997(1) 1996(2) 1995 ---------- -------- -------- -------- -------- (Dollar Amounts in Thousands, Except Per Share and Per Mile Amounts) CONSOLIDATED STATEMENTS OF EARNINGS DATA: Operating revenue..................... $1,061,234 $873,433 $713,638 $562,259 $458,165 Earnings before income taxes.......... $ 107,601 $ 93,306 $ 69,994 $ 47,212 $ 40,070 Net earnings.......................... $ 66,831 $ 55,511 $ 41,644 $ 27,422 $ 23,040 Diluted earnings per share............ $ 1.02 $ .85 $ .64 $ .47 $ .41 CONSOLIDATED BALANCE SHEET DATA (AT END OF YEAR): Working capital....................... $ 88,028 $ 81,048 $ 64,168 $ 36,938 $ 6,735 Total assets.......................... $ 794,574 $636,283 $471,134 $380,605 $311,308 Long-term obligations, less current portion.................... $ 168,153 $143,208 $ 73,420 $ 40,284 $ 68,954 Stockholders' equity.................. $ 394,199 $327,353 $274,175 $226,666 $134,835 OPERATING STATISTICS (AT END OF YEAR): Operating ratio....................... 89.0% 88.7% 89.6% 90.5% 89.9% Pre-tax margin (3).................... 10.1% 10.7% 9.8% 8.4% 8.7% Average line haul revenue per mile ... $ 1.15 $ 1.14 $ 1.13 $ 1.11 $ 1.11 Empty mile percentage................. 14.0% 13.5% 13.7% 14.0% 13.9% Average length of haul (in miles)..... 541 567 571 576 591 Total tractors at end of period: Company-operated................... 6,940 5,573 4,968 4,166 3,472 Owner-operator..................... 1,748 1,225 910 665 477 Trailers at end of period............. 23,719 18,348 15,499 12,151 8,788
(1) Includes the results of operations from the acquisition of certain assets of DTI beginning April 8, 1997. (2) Includes the results of operations from the asset acquisition of the dry freight van division of Navajo Shippers, Inc., Digby Leasing, Inc. and Digby-Ringsby Truck Line, Inc. beginning on September 12, 1996. (3) Pre-tax margin represents earnings before income taxes as a percentage of operating revenue. Because of the impact that equipment financing methods can have on the operating ratio (operating expenses as a percentage of operating revenue), the Company believes that the most meaningful comparative measure of its operating efficiency is its pre-tax margin, which takes into consideration both the Company's total operating expenses and net interest expense as a percentage of operating revenue. 13 ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS OVERVIEW Swift's fleet has been predominantly comprised of Company-owned and leased tractors. The Company's decisions whether to buy or lease new and replacement revenue equipment is based upon the overall economic impact of the alternative financing methods, including market prices available and income tax considerations. Depending on whether revenue equipment is purchased or leased, several categories of the Company's operating expenses have varied, and will continue to vary, as a percentage of the Company's revenues. Because of the impact that equipment financing methods can have on the operating ratio (operating expenses as a percentage of operating revenue), the Company believes that the most meaningful comparative measure of its operating efficiency is its pre-tax margin (earnings before income taxes as a percentage of operating revenue), which takes into consideration both the Company's total operating expenses and net interest expense as a percentage of operating revenue. Accordingly, in the discussion and analysis below, the Company has focused on the factors contributing to operating revenue increases and to the increase or decrease in its pre-tax margin during the periods presented. In the "forward-looking statements" that may be included herein, important factors such as the financial position of the Company, its customers' needs, the cost of new equipment and new construction, the availability of buyers in the marketplace, fuel costs and other factors may cause actual results to vary. Although the trend of shippers in the truckload segment of the motor carrier industry over the past several years has been towards consolidation, the truckload industry remains highly fragmented. Management believes the industry trend towards financially stable "core carriers" will continue and result in continued industry consolidation. In response to this trend, the Company continues to expand its fleet with 6,940 tractors as of December 31, 1999 compared to 4,166 tractors as of December 31, 1996. This fleet growth was accomplished through a combination of internal growth and through strategic acquisitions. See "Business -- General." During this same period, the Company's owner operator fleet has expanded to 1,748 as of December 31, 1999 from 665 as of December 31, 1996. RESULTS OF OPERATIONS The following table sets forth for the periods indicated certain statement of earnings data as a percentage of operating revenue: DECEMBER 31, --------------------------------- 1999 1998 1997 ---- ---- ---- Operating revenue 100.0% 100.0% 100.0% Operating expenses: Salaries, wages and employee benefits 35.9 36.5 34.5 Operating supplies and expenses 8.5 9.1 8.9 Fuel 11.2 10.7 12.8 Purchased transportation 17.2 15.5 13.5 Rental expense 4.2 4.7 6.5 Insurance and claims 2.6 2.8 3.2 Depreciation and amortization 5.4 5.3 5.3 Communications and utilities 1.3 1.3 1.5 Operating taxes and licenses 2.7 2.8 3.4 ----- ----- ----- Total operating expenses 89.0 88.7 89.6 ----- ----- ----- Operating income 11.0 11.3 10.4 Net interest expense 1.0 .7 .7 Other (income) expense, net (0.1) (0.1) (0.1) ----- ----- ----- Earnings before income taxes 10.1 10.7 9.8 Income taxes 3.8 4.3 4.0 ----- ----- ----- Net earnings 6.3% 6.4% 5.8% ===== ===== ===== 14 YEAR ENDED DECEMBER 31, 1999 COMPARED TO YEAR ENDED DECEMBER 31, 1998 Operating revenue increased $187.8 million, or 21.5%, to $1.1 billion for the year ended December 31, 1999 from $873.4 million for the previous year. The increase in operating revenue is due primarily to the expansion of the Company's total fleet to 8,688 tractors at December 31, 1999 from 6,798 at December 31, 1998, an increase of 1,890 tractors. The Company's operating ratio was 89.0% and 88.7% in 1999 and 1998, respectively. The Company's operating ratio for 1999 increased as a result of changes in certain components of operating expenses as a percentage of operating revenue as discussed below. The Company's empty mile factor was 14.0% and 13.5% and the average loaded linehaul revenue per mile was $1.34 and $1.32 (excluding fuel surcharge) for the years ended December 31, 1999 and 1998, respectively. Salaries, wages and employee benefits represented 35.9% of operating revenue for the year ended December 31, 1999 compared with 36.5% for 1998. The decrease is due primarily to the reversal of a $5.4 million accrual related to an EEOC action as a result of the Company agreeing to pay an amount significantly below the amount of the original settlement offer. This reversal of accrual was offset by an increase in the accrual for the Company's 401(k) profit sharing contribution and normal wage increases with associated benefits and taxes. In February 2000, the Company announced an increase in certain driver wage rates effective April 1, 2000. The Company expects this increase to be substantially offset by an increase in operating revenue as a result of increases in rates charged to customers. From time to time the industry has experienced shortages of qualified drivers. If such a shortage were to occur over a prolonged period and increases in driver pay rates were to occur in order to attract and retain drivers, the Company's results of operations would be negatively impacted to the extent that corresponding rate increases were not obtained. Fuel expenses represented 11.2% and 10.7% of operating revenue in 1999 and 1998, respectively. The increase in fuel as a percentage of revenue is due primarily to increased fuel prices and offset by the impact of an increase in the revenue generated by the owner operator fleet. Actual fuel cost per gallon increased by approximately 10 cents per gallon in 1999 versus 1998. Fuel costs for the first sixty days of 2000 increased forty-five cents per gallon compared to the same period in 1999, an increase of 53%. Increases in fuel costs (including fuel taxes), to the extent not offset by rate increases or fuel surcharges, could have an adverse effect on the operations and profitability of the Company. Management believes that the most effective protection against fuel cost increases is to maintain a fuel efficient fleet and to implement fuel surcharges when such an option is necessary and available. The Company currently does not use derivative-type hedging products but is evaluating the possible use of these products. Purchased transportation represented 17.2% and 15.5% of operating revenue for the years ended December 31, 1999 and 1998, respectively. This increase is due to the growth of the Company's owner operator fleet from 1,225 at December 31, 1998 to 1,748 at December 31, 1999 and an increase in logistics and intermodal operations. Rental expense as a percentage of operating revenue was 4.2% and 4.7% for the years ended December 31, 1999 and 1998, respectively. During 1999 and 1998, leased tractors represented approximately 50% and 54%, respectively of the fleet (exclusive of owner operators). In addition to the reduction in the percentage of tractors which were leased, rental expense was positively impacted by a reduction in the number of leased trailers in 1999 versus 1998. When it is economically feasible to do so, the Company will purchase then sell tractors it leases by exercising the purchase option contained in the lease. Gains on these activities are recorded as a reduction of rent expense. During the years ended December 31,1999 and 1998, respectively, the Company recorded gains of approximately $3.6 million and $3.8 million from the sale of leased tractors. 15 Depreciation and amortization expense was 5.4% and 5.3% of operating revenue for the years ended December 31, 1999 and 1998, respectively. During the year ended December 31, 1999 the Company recorded gains on the sale of revenue equipment of approximately $4.0 million compared with approximately $6.1 million in 1998. Exclusive of gains, which reduced depreciation and amortization expense, the percentage of depreciation and amortization to operating revenue in 1999 and 1998 was 5.8% and 6.0%, respectively. Insurance and claims expense represented 2.6% and 2.8% of operating revenue in the years ended December 31,1999 and 1998, respectively. The Company's insurance program for liability, physical damage and cargo damage involves self-insurance with varying risk retention levels. Claims in excess of these risk retention levels are covered by insurance in amounts which management considers adequate. The Company accrues the estimated cost of the uninsured portion of pending claims. These accruals are estimated based on management's evaluation of the nature and severity of individual claims and an estimate of future claims development based on historical claims development trends. Insurance and claims expense will vary as a percentage of operating revenue from period to period based on the frequency and severity of claims incurred in a given period as well as changes in claims development trends. Interest expense increased to $9.6 million in 1999 from $6.3 million in 1998. This increase was due to increased borrowings under the Company's line of credit. The effective tax rate was 37.9% and 40.5% in 1999 and 1998, respectively. This rate was positively impacted in 1999 by the finalization of certain tax strategies and an enterprise zone credit. YEAR ENDED DECEMBER 31, 1998 COMPARED TO YEAR ENDED DECEMBER 31, 1997 Operating revenue increased $159.8 million, or 22.4%, to $873.4 million for the year ended December 31, 1998 from $713.6 million for the previous year. The increase in operating revenue is due primarily to the expansion of the Company's total fleet to 6,798 tractors at December 31, 1998 from 5,878 at December 31, 1997, an increase of 920 tractors. The Company's operating ratio was 88.7% and 89.6% in 1998 and 1997, respectively. The Company's operating revenue and operating ratio for 1998 improved as a result of strong shipper demand which caused an increase in operating revenue and the favorable impact in components of operating expenses explained below. The Company's empty mile factor was 13.5% and 13.7% and the average linehaul revenue per mile was $1.143 and $1.118 (excluding fuel surcharge) for the years ended December 31, 1998 and 1997, respectively. Salaries, wages and employee benefits represented 36.5% of operating revenue for the year ended December 31, 1998 compared with 34.5% for 1997. The increase is due primarily to an increase in the accrual for the Company's 401(k) profit sharing contribution and normal wage increases with associated benefits and taxes. From time to time the industry has experienced shortages of qualified drivers. If such a shortage were to occur over a prolonged period and increases in driver pay rates were to occur in order to attract and retain drivers, the Company's results of operations would be negatively impacted to the extent that corresponding rate increases were not obtained. Fuel expenses represented 10.7% and 12.8% of operating revenue in 1998 and 1997, respectively. The decrease in fuel as a percentage of revenue is due primarily to decreased fuel prices and an increase in the owner operator fleet. Actual fuel cost per gallon decreased by approximately 16 cents per gallon in 1998 versus 1997. Increases in fuel costs (including fuel taxes), to the extent not offset by rate increases or fuel surcharges, could have an adverse effect on the operations and profitability of the Company. Management believes that the most effective protection against fuel cost increases is to maintain a fuel efficient fleet and to implement fuel surcharges when such an option is necessary and available. The Company did not use derivative-type hedging productsin 1998 and 1997. Purchased transportation represented 15.5% and 13.5% of operating revenue for the years ended December 31, 1998 and 1997, respectively. This increase is primarily the result of the growth of the Company's owner operator fleet from 910 at December 31, 1997 to 1,225 at December 31, 1998. 16 Rental expense as a percentage of operating revenue was 4.7% and 6.5% for the years ended December 31, 1998 and 1997, respectively. During 1998 and 1997, leased tractors represented approximately 54% and 61%, respectively of the fleet (exclusive of owner operators). In addition to the reduction in the percentage of tractors which were leased, rental expense was positively impacted by a reduction in the number of leased trailers as well as a slight reduction in the average lease rate for tractors in 1998 versus 1997. When it is economically feasible to do so, the Company will purchase then sell tractors it leases by exercising the purchase option contained in the lease. Gains on these activities are recorded as a reduction of rent expense. During the year ended December 31,1998 and 1997, respectively, the Company recorded gains of approximately $3.8 million and $770,000 from the sale of leased tractors. Depreciation and amortization expense was 5.3% of operating revenue for the years ended December 31, 1998 and 1997. During the year ended December 31, 1998 the Company recorded gains on the sale of revenue equipment of approximately $6.1 million compared with approximately $3.6 million in 1997. Exclusive of gains, which reduced depreciation and amortization expense, the percentage of depreciation and amortization to operating revenue in 1998 and 1997 was 6.0% and 5.8%, respectively. Insurance and claims expense represented 2.8% and 3.2% of operating revenue in the years ended December 31,1998 and 1997, respectively. The Company's insurance program for liability, physical damage and cargo damage involves self-insurance with varying risk retention levels. Claims in excess of these risk retention levels are covered by insurance in amounts which management considers adequate. The Company accrues the estimated cost of the uninsured portion of pending claims. These accruals are estimated based on management's evaluation of the nature and severity of individual claims and an estimate of future claims development based on historical claims development trends. Insurance and claims expense will vary as a percentage of operating revenue from period to period based on the frequency and severity of claims incurred in a given period as well as changes in claims development trends. Interest expense increased to $6.3 million in 1998 from $4.6 million in 1997. This increase was due to increased borrowings under the Company's line of credit. LIQUIDITY AND CAPITAL RESOURCES The continued growth in the Company's business requires significant investment in new revenue equipment, upgraded and expanded facilities, and enhanced computer hardware and software. The funding for this expansion has been from cash provided by operating activities, proceeds from the sale of revenue equipment, long-term debt, borrowings on the Company's revolving line of credit, the use of operating leases to finance the acquisition of revenue equipment and from public offerings of common stock. Net cash provided by operating activities was $150.7 million for the year ended December 31, 1999 compared to $114.9 million for 1998. The increase is primarily attributable to increases in net earnings and deferred taxes offset by an increase in accounts receivable and a smaller increase in accounts payable, accrued liabilities and claims accruals. Net cash used in investing activities decreased to $167.4 million for the year ended December 31, 1999 from $171.4 million for 1998. The decrease is due primarily to a decrease in capital expenditures and increased proceeds from the sale of property and equipment. As of December 31, 1999, the Company had commitments outstanding to acquire replacement and additional revenue equipment for approximately $387 million. The Company has the option to cancel such commitments upon 60 days notice. The Company believes it has the ability to obtain debt and lease financing and generate sufficient cash flows from operating activities to support these acquisitions of revenue equipment. During the year ended December 31, 1999, the Company incurred approximately $39 million of non-revenue equipment capital expenditures. These expenditures were primarily for facilities and equipment. 17 The Company anticipates that it will expend approximately $52 million in 2000 for various facilities upgrades and acquisition and development of terminal facilities. Factors such as costs and opportunities for future terminal expansions may change the amount of such expenditures. The funding for capital expenditures has been and will be from a combination of cash provided by operating activities, amounts available under the Company's $170 million line of credit, accounts receivable securitization, lease and debt financing and equity offerings. The availability of capital for revenue equipment and other capital expenditures will be affected by prevailing market conditions and the Company's financial condition and results of operations. Net cash provided by financing activities was $20.1 million in 1999 compared to $57.3 million in 1998. The decrease in cash provided by financing activities is primarily due to an decrease in borrowings under the line of credit. Management believes that it will be able to finance its needs for working capital, facilities improvements and expansion, as well as anticipated fleet growth through a combination of revenue equipment purchases and strategic acquisitions, as opportunities become available, with cash flows from operations, borrowings available under the line of credit, accounts receivable securitization and with long-term debt and operating lease financing believed to be available to finance revenue equipment purchases. Over the long term, the Company will continue to have significant capital requirements, which may require the Company to seek additional borrowings or equity capital. The availability of debt financing or equity capital will depend upon the Company's financial condition and results of operations as well as prevailing market conditions, the market price of the Company's common stock and other factors over which the Company has little or no control. INFLATION Inflation can be expected to have an impact on the Company's operating costs. A prolonged period of inflation would cause interest rates, fuel, wages and other costs to increase and would adversely affect the Company's results of operations unless freight rates could be increased correspondingly. However, the effect of inflation has been minimal over the past three years. SEASONALITY In the transportation industry, results of operations generally show a seasonal pattern as customers reduce shipments after the winter holiday season. The Company's operating expenses also tend to be higher in the winter months primarily due to increased operating costs in colder weather and higher fuel consumption due to increased idle time. 18 FACTORS THAT MAY AFFECT FUTURE RESULTS AND FINANCIAL CONDITION The Company's future operating results and financial condition are dependent on the Company's ability to successfully provide truckload carrier services to meet dynamic customer demand patterns. Inherent in this process are a number of factors that the Company must successfully manage in order to achieve favorable future operating results and financial condition. Potential risks and uncertainties that could affect the Company's future operating results and financial condition include, without limitation, the factors discussed below. GENERAL ECONOMIC AND BUSINESS FACTORS. The Company's business is dependent upon a number of factors that may have a material adverse effect on its results of operations, many of which are beyond the Company's control. These factors include excess capacity in the trucking industry, significant increases or rapid fluctuations in fuel prices, interest rates, fuel taxes, tolls, license and registration fees and insurance and claims costs, to the extent not offset by increases in freight rates or fuel surcharges, and difficulty in attracting and retaining qualified drivers and owner operators. The Company's results of operations also are affected by recessionary economic cycles and downturns in customers' business cycles, particularly in market segments and industries (such as retail and paper products) in which the Company has a concentration of customers. In addition, the Company's results of operations are affected by seasonal factors. Customers tend to reduce shipments after the winter holiday season and the Company's operating expenses tend to be higher in the winter months primarily due to colder weather which causes higher fuel consumption from increased idle time. COMPETITION. The trucking industry is extremely competitive and fragmented. The Company competes with many other truckload carriers of varying sizes and, to a lesser extent, with railroads. Competition has created downward pressure on the truckload industry's pricing structure. There are some trucking companies with which the Company competes that have greater financial resources than the Company, own more revenue equipment and carry a larger volume of freight than the Company. CAPITAL REQUIREMENTS. The trucking industry is very capital intensive. The Company depends on cash from operations, operating leases and debt financing for funds to expand the size of its fleet and maintain modern revenue equipment. If the Company were unable in the future to enter into acceptable financing arrangements, it would have to limit its growth and might be required to operate its revenue equipment for longer periods, which could have a material adverse effect on the Company's operating results. ACQUISITIONS. The growth of the Company has been dependent in part upon the acquisition of trucking companies throughout the United States. To date, the Company has been successful in identifying trucking companies to acquire and in integrating such companies' operations into the Company's operations. The Company may face competition from transportation companies or other third parties for acquisition opportunities that become available. There can be no assurance that the Company will identify acquisition candidates that will result in successful combinations in the future. Any future acquisitions by the Company may result in the incurrence of additional debt and amortization of expenses related to goodwill and intangible assets, which could adversely affect the Company's profitability, or could involve the potentially dilutive issuance of additional equity securities. In addition, acquisitions involve numerous risks, including difficulties in assimilation of the acquired company's operations particularly in the period immediately following the consummation of such transactions, the diversion of the attention of the Company's management from other business, and the potential loss of customers, key employees and drivers of the acquired company, all of which could have a material adverse effect on the Company's business and operating results. DEPENDENCE ON KEY PERSONNEL. The Company is highly dependent upon the services of Mr. Jerry Moyes, Chairman of the Board, President and Chief Executive Officer, Mr. William F. Riley, III, Senior Executive Vice President and Chief Financial Officer, Mr. Rodney K. Sartor, Executive Vice President, Mr. Patrick J. Farley, Executive Vice President, and Mr. Kevin H. Jensen, Executive Vice President. Although the Company believes it has an experienced and talented management group, the loss of the services of Mr. Moyes, Mr. Riley, Mr. Sartor, Mr. Farley or Mr. Jensen could have a material adverse effect on the Company's operations and future profitability. The Company does not have employment agreements with nor does it maintain key man life insurance on Messrs. Moyes, Riley, Sartor, Farley or Jensen. 19 REGULATION. The Company is regulated by the United States Department of Transportation. This regulatory authority exercises broad powers, generally governing activities such as authorization to engage in motor carrier operations, safety, financial reporting, and certain mergers, consolidations and acquisitions. In addition, the Company's operations are subject to various environmental laws and regulations dealing with the transportation, storage, presence, use, disposal and handling of hazardous materials, discharge of stormwater and underground fuel storage tanks. If the Company should be involved in a spill or other accident involving hazardous substances or if the Company were found to be in violation of applicable laws or regulations, it could have a material adverse effect on the Company's business and operating results. CLAIMS EXPOSURE; INSURANCE. The Company currently self-insures for liability resulting from cargo loss, personal injury and property damage, and maintains insurance with licensed insurance companies above its limits on self-insurance. To the extent the Company were to experience an increase in the number of claims for which it is self-insured, the Company's operating results would be materially adversely affected. In addition, significant increases in insurance costs, to the extent not offset by freight rate increases, would reduce the Company's profitability. DEPENDENCE ON KEY CUSTOMERS. A significant portion of the Company's revenue is generated from key customers. During 1999, the Company's top 25, 10 and 5 customers accounted for 52%, 35% and 24% of revenues, respectively. The Company does not have long-term contractual relationships with many of its key customers, and there can be no assurance that the Company's relationships with its key customers will continue as presently in effect. A reduction in or termination of the Company's services by a key customer could have a material adverse effect on the Company's business and operating results. ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK The Company has interest rate exposure arising from the Company's line of credit and accounts receivable securitization which have variable interest rates. These variable interest rates are impacted by changes in short-term interest rates. The Company manages interest rate exposure through its conservative debt ratio target and its mix of fixed and variable rate debt and lease financing. At December 31, 1999, the fair value of the Company's long-term debt approximated carrying value. ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA Consolidated Financial Statements of the Company as of December 31, 1999 and 1998 for each of the years in the three-year period ended December 31, 1999, together with related notes and the report of KPMG LLP, independent certified public accountants, are set forth on the following pages. Other required financial information set forth herein is more fully described in Item 14 of this Form 10-K. 20 INDEPENDENT AUDITORS' REPORT The Board of Directors and Stockholders Swift Transportation Co., Inc.: We have audited the accompanying consolidated balance sheets of Swift Transportation Co., Inc. and subsidiaries as of December 31, 1999 and 1998, and the related consolidated statements of earnings, stockholders' equity, and cash flows for each of the years in the three-year period ended December 31, 1999. These consolidated financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Swift Transportation Co., Inc. and subsidiaries as of December 31, 1999 and 1998, and the results of their operations and their cash flows for each of the years in the three-year period ended December 31, 1999 in conformity with generally accepted accounting principles. /s/ KPMG LLP Phoenix, Arizona February 25, 2000 21 SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS (IN THOUSANDS, EXCEPT SHARE DATA) DECEMBER 31, ---------------------- ASSETS 1999 1998 -------- -------- Current assets: Cash............................................. $ 9,969 $ 6,530 Accounts receivable, net......................... 153,418 118,555 Equipment sales receivables...................... 5,966 5,262 Inventories and supplies......................... 7,410 4,866 Prepaid taxes, licenses and insurance............ 17,010 15,228 Assets held for sale............................. 5,468 5,468 Deferred income taxes............................ 4,200 4,010 -------- -------- Total current assets....................... 203,441 159,919 -------- -------- Property and equipment, at cost: Revenue and service equipment.................... 608,470 487,928 Land............................................. 12,879 8,409 Facilities and improvements...................... 112,659 85,919 Furniture and office equipment................... 20,260 15,566 -------- -------- Total property and equipment............... 754,268 597,822 Less accumulated depreciation and amortization...... 172,936 131,045 -------- -------- Net property and equipment................. 581,332 466,777 Other assets........................................ 2,731 1,770 Goodwill............................................ 7,070 7,817 -------- -------- $794,574 $636,283 ======== ======== See accompanying notes to consolidated financial statements. 22 SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS (IN THOUSANDS, EXCEPT SHARE DATA) DECEMBER 31, -------------------- LIABILITIES AND STOCKHOLDERS' EQUITY 1999 1998 -------- -------- Current liabilities: Accounts payable...................................... $ 53,917 $ 27,100 Accrued liabilities................................... 34,493 27,273 Current portion of claims accruals.................... 26,530 23,788 Current portion of long-term debt..................... 473 710 -------- -------- Total current liabilities....................... 115,413 78,871 -------- -------- Borrowings under revolving line of credit................ 152,500 128,000 Long-term debt, less current portion..................... 15,653 15,208 Claims accruals, less current portion.................... 21,122 28,091 Deferred income taxes.................................... 95,687 58,760 Stockholders' equity: Preferred stock, par value $.001 per share authorized 1,000,000 shares; none issued Common stock, par value $.001 per share authorized 150,000,000 shares; issued 65,818,166 and 65,044,275 shares in 1999 and 1998, respectively...... 66 65 Additional paid-in capital............................... 131,571 123,386 Retained earnings........................................ 283,749 216,918 -------- -------- 415,386 340,369 Less treasury stock, at cost (1,862,550 and 1,323,075 shares in 1999 and 1998, respectively)...... 21,187 13,016 -------- -------- Total stockholders' equity...................... 394,199 327,353 -------- -------- Commitments and contingencies $794,574 $636,283 ======== ======== See accompanying notes to consolidated financial statements. 23 SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF EARNINGS (IN THOUSANDS, EXCEPT SHARE DATA) YEARS ENDED DECEMBER 31, ---------------------------------- 1999 1998 1997 ---------- -------- -------- Operating revenue.......................... $1,061,234 $873,433 $713,638 ---------- -------- -------- Operating expenses: Salaries, wages and employee benefits... 381,238 318,992 246,231 Operating supplies and expenses......... 88,921 79,556 63,622 Fuel .................................. 119,143 93,023 91,257 Purchased transportation................ 182,832 135,453 96,107 Rental expense.......................... 44,854 41,447 46,545 Insurance and claims.................... 27,486 24,094 23,161 Depreciation and amortization........... 57,659 46,033 37,849 Communications and utilities............ 14,085 11,433 10,695 Operating taxes and licenses............ 28,575 24,710 24,132 ---------- -------- -------- Total operating expenses.......... 944,793 774,741 639,599 ---------- -------- -------- Operating income.................. 116,441 98,692 74,039 ---------- -------- -------- Other (income) expenses: Interest expense........................ 9,574 6,277 4,647 Interest income......................... (338) (269) (183) Other .................................. (396) (622) (419) ---------- -------- -------- Other (income) expenses, net...... 8,840 5,386 4,045 ---------- -------- -------- Earnings before income taxes...... 107,601 93,306 69,994 Income taxes............................ 40,770 37,795 28,350 ---------- -------- -------- Net earnings...................... $ 66,831 $ 55,511 $ 41,644 ========== ======== ======== Basic earnings per share................... $ 1.04 $ .87 $ .66 ========== ======== ======== Diluted earnings per share................. $ 1.02 $ .85 $ .64 ========== ======== ======== See accompanying notes to consolidated financial statements. 24 SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (IN THOUSANDS, EXCEPT SHARE DATA)
COMMON STOCK ADDITIONAL TOTAL --------------------- PAID-IN RETAINED TREASURY STOCKHOLDERS' SHARES PAR VALUE CAPITAL EARNINGS STOCK EQUITY ---------- --------- --------- --------- --------- --------- Balances, January 1, 1997 ... 63,303,039 $ 63 $ 110,256 $ 119,763 $ (3,416) $ 226,666 Issuance of common stock under stock option and employee stock purchase plans ...................... 887,296 1 2,963 2,964 Income tax benefit arising from the exercise of stock options .................... 2,765 2,765 Amortization of deferred compensation .............. 136 136 Net earnings ................ 41,644 41,644 ---------- ---- --------- --------- --------- --------- Balances, December 31, 1997.. 64,190,335 64 116,120 161,407 (3,416) 274,175 Issuance of common stock under stock option and employee stock purchase plans ...................... 853,940 1 3,726 3,727 Income tax benefit arising from the exercise of stock options .................... 3,349 3,349 Amortization of deferred compensation ............... 212 212 Payment of stock split fractional share ........... (21) (21) Purchase of 826,500 shares of treasury stock .......... (9,600) (9,600) Net earnings ................ 55,511 55,511 ---------- ---- --------- --------- --------- --------- Balances, December 31, 1998.. 65,044,275 65 123,386 216,918 (13,016) 327,353 Issuance of common stock under stock option and employee stock purchase plans ...................... 773,891 1 4,578 4,579 Income tax benefit arising from the exercise of stock options .................... 3,311 3,311 Amortization of deferred compensation ............... 305 305 Payment of stock split fractional share ........... (9) (9) Purchase of 539,475 shares of treasury stock .......... (8,171) (8,171) Net earnings ................ 66,831 66,831 ---------- ---- --------- --------- --------- --------- Balances, December 31, 1999.. 65,818,166 $ 66 $ 131,571 $ 283,749 $ (21,187) $ 394,199 ========== ==== ========= ========= ========= =========
See accompanying notes to consolidated financial statements. 25 SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS (IN THOUSANDS)
YEARS ENDED DECEMBER 31, -------------------------------- 1999 1998 1997 -------- -------- -------- Cash flows from operating activities: Net earnings...................................... $ 66,831 $ 55,511 $ 41,644 Adjustments to reconcile net earnings to net cash provided by operating activities: Depreciation and amortization................... 54,016 42,568 37,104 Deferred income taxes........................... 36,737 15,610 4,830 Income tax benefit arising from the exercise of stock options..................... 3,311 3,349 2,765 Provision for losses on accounts receivable.................................... 1,200 1,110 240 Amortization of deferred compensation........... 305 212 136 Increase (decrease) in cash resulting from changes in (net of effect of acquisition in 1997): Accounts receivable........................... (36,058) (27,056) (14,890) Inventories and supplies...................... (2,544) (357) (512) Prepaid expenses and other current assets...................................... (1,782) (10,138) (1,636) Other assets.................................. (1,089) 78 (720) Accounts payable, accrued liabilities and claims accruals......................... 29,810 33,982 6,932 -------- -------- -------- Net cash provided by operating activities.................................. 150,737 114,869 75,893 -------- -------- -------- Cash flows from investing activities: Proceeds from sale of property and equipment....................................... 64,650 63,233 30,680 Capital expenditures.............................. (237,340) (238,002) (131,310) Payments received on equipment sales receivables..................................... 5,262 3,407 389 Business acquisitions............................. (3,749) -------- -------- -------- Net cash used in investing activities........... (167,428) (171,362) (103,990) -------- -------- -------- Cash flows from financing activities: Repayments of long-term debt...................... (765) (8,287) (10,332) Increase in borrowings under revolving line of credit........................ 24,500 71,500 40,000 Payment of stock split fractional shares ......... (9) (21) Proceeds from sale of common stock................ 4,575 3,705 2,945 Purchase of treasury stock........................ (8,171) (9,600) -------- -------- -------- Net cash provided by financing activities....... 20,130 57,297 32,613 -------- -------- -------- Net increase in cash................................ 3,439 804 4,516 Cash at beginning of year........................... 6,530 5,726 1,210 -------- -------- -------- Cash at end of year................................. $ 9,969 $ 6,530 $ 5,726 ======== ======== ========
See accompanying notes to consolidated financial statements. 26 SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS, CONTINUED (IN THOUSANDS) YEARS ENDED DECEMBER 31, ----------------------------- 1999 1998 1997 ------- -------- -------- Supplemental disclosure of cash flow information: Cash paid during the year for: Interest................................... $ 9,661 $ 5,842 $ 4,568 ======= ======== ======== Income taxes............................... $17,104 $ 27,404 $ 23,059 ======= ======== ======== Supplemental schedule of noncash investing and financing activities: Equipment sales receivables................. $ 5,966 $ 5,385 $ 3,284 ======= ======== ======== Direct financing for purchase of equipment.. $ 973 $ 436 ======= ======== During 1997, in connection with a business acquisition, assets were acquired and liabilities were incurred as follows: Current assets.............................. $ 180 Property and equipment...................... 2,554 Intangibles................................. 1,015 -------- Cash paid................................... $ 3,749 ======== See accompanying notes to consolidated financial statements. 27 SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS DECEMBER 31, 1999, 1998 AND 1997 (1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES DESCRIPTION OF BUSINESS Swift Transportation Co., Inc., a Nevada holding company, together with its wholly-owned subsidiaries ("Company"), is a national truckload carrier operating throughout the continental United States. PRINCIPLES OF CONSOLIDATION The consolidated financial statements include the accounts of the Company and its wholly-owned subsidiaries. All significant intercompany balances and transactions have been eliminated in consolidation. CASH AND CASH EQUIVALENTS The Company considers all highly liquid debt instruments purchased with original maturities of three months or less to be cash equivalents. INVENTORIES AND SUPPLIES Inventories and supplies consist primarily of spare parts, tires, fuel and supplies and are stated at cost. Cost is determined using the first-in, first-out (FIFO) method. PROPERTY AND EQUIPMENT Property and equipment are stated at cost. Gains and losses from the sale of revenue equipment are included as a component of depreciation expense. Net gains in 1999, 1998 and 1997 were $4,000,000, $6,105,000 and $3,626,000, respectively. To obtain certain tax incentives, the Company financed the construction of its Edwardsville, Kansas terminal with municipal bonds issued by the city. Subsequently, the Company purchased 100% of the bonds and intends to hold them to maturity, effectively financing the construction with internal cash flow. The Company has offset the investment in the bonds against the related liability and neither is reflected on the consolidated balance sheet. For the years ended December 31, 1999, 1998 and 1997, the Company capitalized interest related to self-constructed assets totaling $1,140,000, $894,000 and $586,000, respectively. Depreciation on property and equipment is calculated on the straight-line method over the estimated useful lives of 10 to 40 years for facilities and improvements, 5 to 12 years for revenue and service equipment and 3 to 5 years for furniture and office equipment. Tires on revenue equipment purchased are capitalized as a component of the related equipment cost when the vehicle is placed in service and depreciated over the life of the vehicle. Replacement tires are expensed when placed in service. 28 SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED GOODWILL Goodwill represents the excess of purchase price over fair value of net assets acquired. Such goodwill is being amortized on the straight-line method over periods ranging from 15 to 20 years. Accumulated amortization was $4,509,000 and $3,762,000 at December 31, 1999 and 1998, respectively. The Company continually evaluates whether events and circumstances have occurred that indicate the remaining estimated useful life of goodwill and other long lived assets may warrant revision or that the remaining balance may not be recoverable. When factors indicate that the asset should be evaluated for possible impairment, the Company uses an estimate of the undiscounted net cash flows over the remaining life of the asset in determining whether the asset is impaired. REVENUE RECOGNITION Operating revenues and related direct costs are recognized as of the date the freight is picked up for shipment. INCOME TAXES The Company accounts for income taxes under the asset and liability method. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amount of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in the period that includes the enactment date. EARNINGS PER SHARE Basic earnings per share is computed using the weighted average number of common shares outstanding during each period (64,079,000, 64,005,000 and 63,363,000 for 1999, 1998, and 1997, respectively). Diluted earnings per common share includes the impact of stock options assumed to be exercised using the treasury stock method. The denominator for diluted earnings per share is greater than the denominator used in the basic earnings per share by 1,211,000, 1,245,000, and 1,413,000 shares in 1999, 1998, and 1997, respectively. The numerator is the same for both basic and diluted earnings per share. USE OF ESTIMATES Management of the Company has made a number of estimates and assumptions relating to the reporting of assets and liabilities and revenues and expenses and the disclosure of contingent liabilities to prepare these consolidated financial statements in conformity with generally accepted accounting principles. Actual results could differ from those estimates. ACCOUNTING STANDARDS NOT YET ADOPTED BY THE COMPANY The Financial Accounting Standards Board has issued Statements of Financial Accounting Standards for which the required implementation date has not yet become effective. None of these accounting standards are expected to have a material impact on the Company's consolidated financial statements. 29 SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED (2) ACCOUNTS RECEIVABLE Accounts receivable consists of: DECEMBER 31, --------------------- 1999 1998 -------- -------- (IN THOUSANDS) Trade customers........................................ $134,649 $112,290 Equipment manufacturers................................ 3,100 1,050 Income tax receivable.................................. 16,715 3,645 Other.................................................. 707 2,686 -------- -------- 155,171 119,671 Less allowance for doubtful accounts .................. 1,753 1,116 -------- -------- $153,418 $118,555 ======== ======== The schedule of allowance for doubtful accounts is as follows: BEGINNING ENDING BALANCE ADDITIONS DEDUCTIONS BALANCE ------- ------- ------ ------- (IN THOUSANDS) Years ended December 31: 1999............................... $ 1,116 $ 1,200 $ (563) $ 1,753 ======= ======= ====== ======= 1998............................... $ 291 $ 1,110 $ (285) $ 1,116 ======= ======= ====== ======= 1997............................... $ 553 $ 240 $ (502) $ 291 ======= ======= ====== ======= (3) ASSETS HELD FOR SALE Assets held for sale consist of land, land improvements, building and equipment related to the Company's former corporate headquarters and terminal located in Phoenix, Arizona and is stated at the lower of depreciated cost or fair value less costs to sell. (4) ACCRUED LIABILITIES Accrued liabilities consists of: DECEMBER 31, -------------------- 1999 1998 ------- ------- (IN THOUSANDS) Employee compensation.................................... $22,996 $16,741 Fuel and mileage taxes................................... 3,057 3,789 Other.................................................... 8,440 6,743 ------- ------- $34,493 $27,273 ======= ======= 30 SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED (5) ACCOUNTS RECEIVABLE SECURITIZATION In December 1999, the Company (through a wholly-owned bankruptcy-remote special purpose subsidiary) entered into an agreement to sell, on a revolving basis, interests in its accounts receivable to an unrelated financial entity. The bankruptcy-remote subsidiary has the right to repurchase the receivables from the unrelated entity. Therefore, the transaction does not meet the criteria for sale treatment under Financial Accounting Standard No. 125 and is reflected as a secured borrowing in the financial statements. The Company can receive up to a maximum of $100 million of proceeds, subject to eligible receivables and will pay a program fee recorded as interest expense, as defined in the agreement. The Company will pay commercial paper interest rates on the proceeds received. The proceeds received will be reflected as a current liability on the consolidated financial statements because the committed term, subject to annual renewals, is 364 days. As of December 31, 1999 there were no proceeds received. (6) BORROWINGS UNDER REVOLVING LINE OF CREDIT The Company has a $170 million unsecured revolving line of credit (the line of credit) under an agreement with six major banks (the Credit Agreement) which matures on January 16, 2003. Interest on outstanding borrowings is based upon one of two options which the Company selects at the time of borrowing: the bank's prime rate or the London Interbank Offered Rate (LIBOR) plus applicable margins, as defined in the Credit Agreement. The unused portion of the line of credit is subject to a commitment fee. The Credit Agreement requires the Company to meet certain covenants with respect to debt to equity and debt coverage ratios. The Credit Agreement also requires the Company to maintain unencumbered assets of not less than 120% of unsecured indebtedness (as defined). The Credit Agreement includes financing for letters of credit. The Company has outstanding letters of credit primarily for workers' compensation and liability self-insurance purposes totaling $15 million at December 31, 1999. (7) LONG-TERM DEBT Long-term debt consists of the following: DECEMBER 31, ------------------- 1999 1998 ------- ------- (IN THOUSANDS) Notes payable to commercial lending institutions with varying payments through the year 2005: Fixed interest rates ranging from 4.0% to 4.77%..... $ 1,126 $ 918 Note payable to insurance company bearing interest at 6.78% payable monthly with principal payments of $3,000,000 due in 2002 through 2006 secured by deed of trust on Phoenix facilities. Covenant requirements include minimum debt to equity and debt coverage ratio and tangible net worth. The covenants include limitations on dividends and treasury stock purchases............................................. 15,000 15,000 ------- ------- Total long-term debt................................. 16,126 15,918 Less current portion................................... 473 710 ------- ------- Long-term debt, less current portion................... $15,653 $15,208 ======= ======= 31 SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED The aggregate annual maturities of long-term debt exclusive of amounts due under the revolving line of credit (see note 5) as of December 31, 1999 are as follows: YEARS ENDING DECEMBER 31 (IN THOUSANDS) - ----------- -------------- 2000........................................................ $ 473 2001........................................................ 440 2002........................................................ 3,147 2003........................................................ 3,031 2004........................................................ 3,032 Thereafter.................................................. 6,003 -------- $ 16,126 ======== (8) COMMITMENTS LEASES The Company leases various revenue equipment and terminal facilities under operating leases. At December 31, 1999, the future minimum lease payments under noncancelable operating leases are as follows: YEARS ENDING REVENUE DECEMBER 31, EQUIPMENT FACILITIES TOTAL - ------------ -------- --------- --------- (IN THOUSANDS) 2000............................... $ 52,824 $ 1,207 $ 54,031 2001............................... 44,468 858 45,326 2002............................... 26,386 563 26,949 2003............................... 5,870 118 5,988 2004............................... 3,979 60 4,039 Thereafter......................... 3,282 507 3,789 -------- --------- --------- Total minimum lease payments....... $136,809 $ 3,313 $ 140,122 ======== ========= ========= The revenue equipment leases generally include purchase options exercisable at the completion of the lease. The Company recorded gains of approximately $3.6 million, $3.8 million, and $770,000 from the sale of leased tractors in 1999, 1998, and 1997, respectively. PURCHASE COMMITMENTS The Company had commitments outstanding to acquire revenue equipment for approximately $387 million at December 31, 1999. These purchases are expected to be financed by operating leases, debt, proceeds from sales of existing equipment and cash flows from operations. The Company has the option to cancel such commitments with 60 days notice. 32 SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED (9) STOCKHOLDERS' EQUITY On April 10, 1999 and March 12, 1998 the Company completed three-for-two stock splits effected in the form of a dividend of one share of common stock for every two shares of common stock outstanding. The Company purchased 539,475 and 826,500 shares of its common stock during 1999 and 1998 for a total cost of $8.2 million and $9.6 million, respectively. These shares are being held as treasury stock and may be used for issuances under the Company's employee stock option and purchase plans or for other general corporate purposes. STOCK COMPENSATION PLANS At December 31, 1999, the Company has four stock-based compensation plans, which are described below. The Company applies APB Opinion No. 25 and related interpretations in accounting for its plans. Accordingly, no compensation cost has been recognized for its Employee Stock Purchase Plan. The compensation cost that has been charged against income for its Fixed Stock Option Plans was $305,000, $212,000 and $136,000 for 1999, 1998 and 1997, respectively. Had compensation cost for the Company's four stock-based compensation plans been determined consistent with FASB Statement No. 123 ("SFAS No. 123"), the Company's net earnings and earnings per share would have been reduced to the pro forma amounts indicated below: 1999 1998 1997 --------- --------- --------- Net earnings.................. As Reported $ 66,831 $ 55,511 $ 41,644 ========= ========= ========= Pro forma $ 65,928 $ 54,755 $ 41,147 ========= ========= ========= Basic earnings per share...... As Reported $ 1.04 $ .87 $ .66 ========= ========= ========= Pro forma $ 1.03 $ .86 $ .65 ========= ========= ========= Diluted earnings per share.... As Reported $ 1.02 $ .85 $ .64 ========= ========= ========= Pro forma $ 1.01 $ .84 $ .64 ========= ========= ========= Pro forma net earnings reflect only options granted in 1995 through 1999. Therefore, the full impact of calculating compensation cost for stock options under SFAS No. 123 is not reflected in the pro forma net earnings amounts presented above because compensation cost is reflected over the options' vesting period of 9 years and compensation cost for options granted prior to January 1, 1995 is not considered under SFAS No. 123. FIXED STOCK OPTION PLANS The Company has three fixed stock option plans. Under the 1990 Employee Stock Option Plan, the Company granted options to employees for 6.1 million shares of common stock. In May 1999, the shareholders approved the 1999 Employee Stock Option Plan which allows the grant of 750,000 shares of common stock. Under the 1994 Non-Employee Directors Plan, the Company may grant options to non-employee directors for up to 135,000 shares of common stock. Under all plans, the exercise price of each option that has been granted equals 85 percent of the market price of the Company's stock on the date of the grant. Options under the Employee Stock Option Plans generally vest 20 percent after five years and 20 percent each succeeding year and the maximum term is ten years. Options under the Non-Employee Directors Plan vest on the grant date and the maximum term is six years. 33 SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED The fair value of each option grant is estimated on the date of grant using the Black-Scholes option-pricing model with the following weighted-average assumptions used for grants in 1997 through 1999: 1999 1998 1997 ---- ---- ---- Dividend yield............................. 0% 0% 0% Expected volatility........................ 45% 45% 35% Risk free interest rate.................... 6.5% 5% 6% Expected lives (days after vesting date)... 62 51 36 A summary of the status of the Company's three fixed stock option plans as of December 31, 1999, 1998 and 1997, and changes during the years then ended on those dates is presented below:
1999 1998 1997 ------------------- -------------------- -------------------- WEIGHTED- WEIGHTED- WEIGHTED- AVERAGE AVERAGE AVERAGE EXERCISE EXERCISE EXERCISE SHARES PRICE SHARES PRICE SHARES PRICE --------- ----- --------- ----- --------- ----- Outstanding at beginning of year........................... 3,825,825 $ 6.84 3,681,360 $ 5.27 3,673,800 $ 2.91 Granted............................ 64,000 $15.69 812,400 $10.15 1,006,312 $10.19 Exercised.......................... (538,533) $ 1.81 (615,262) $ 1.55 (691,852) $ 1.37 Forfeited.......................... (80,179) $ 8.88 (52,673) $ 9.82 (306,900) $ 1.93 --------- --------- --------- Outstanding at end of year......... 3,271,113 $ 7.80 3,825,825 $ 6.84 3,681,360 $ 5.27 ========= ========= ========= Options exercisable at year-end.... 319,194 164,025 177,075 ========= ========= ========= Weighted-average fair value of options granted during the year... $9.86 $7.71 $7.24 ========= ========= =========
The following table summarizes information about fixed stock options outstanding at December 31, 1999:
OPTIONS OUTSTANDING OPTIONS EXERCISABLE ------------------------------------ -------------------- WEIGHTED- NUMBER AVERAGE WEIGHTED- NUMBER WEIGHTED- OUTSTANDING REMAINING AVERAGE EXERCISABLE AVERAGE AT CONTRACTUAL EXERCISE AT EXERCISE RANGE OF EXERCISE PRICES 12/31/99 LIFE PRICE 12/31/99 PRICE - ------------------------ -------- ---- ----- -------- ----- $1.24 to $4.86............ 853,049 3.11 $ 3.39 302,494 $ 2.41 $5.34 to $8.78............ 646,208 5.61 $ 6.61 7,200 $ 6.44 $10.01.................... 747,918 7.25 $10.01 $10.02 ................... 723,563 8.75 $10.02 $10.39 to $18.42.......... 300,375 8.02 $11.95 9,500 $13.02 --------- ------- 3,271,113 6.25 $ 7.80 319,194 $ 2.82 ========= =======
34 SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED EMPLOYEE STOCK PURCHASE PLAN Under the 1994 Employee Stock Purchase Plan, the Company is authorized to issue up to 4.5 million shares of common stock to full-time employees, nearly all of whom are eligible to participate. Under the terms of the Plan, employees can choose each year to have up to 15 percent of their annual base earnings withheld to purchase the Company's common stock. The purchase price of the stock is 85 percent of the lower of the beginning-of-period or end-of-period (each period being the first and second six calendar months) market price. Each employee is restricted to purchasing during each period a maximum of $12,500 of stock determined by using the beginning-of-period price. Under the Plan, the Company issued 235,971, 240,135 and 195,750 shares to 1,856, 1,351 and 1,143 employees in 1999, 1998 and 1997, respectively. Compensation cost is calculated as the fair value of the employees' purchase rights, which was estimated using the Black-Scholes model with the following assumptions: 1999 1998 1997 ---- ---- ---- Dividend yield................. 0% 0% 0% Expected volatility............ 45% 45% 35% Risk free interest rate........ 6% 4.5% 5% The weighted-average fair value of those purchase rights granted in 1999, 1998 and 1997 was $5.61, $3.98 and $3.09 respectively. (10) INCOME TAXES Income tax expense consists of: 1999 1998 1997 ------- ------- ------- (IN THOUSANDS) Current expense: Federal.................. $ 5,944 $20,445 $19,395 State.................... 939 3,494 4,125 ------- ------- ------- 6,883 23,939 23,520 ------- ------- ------- Deferred expense: Federal.................. 29,660 11,435 4,242 State.................... 4,227 2,421 588 ------- ------- ------- 33,887 13,856 4,830 ------- ------- ------- $40,770 $37,795 $28,350 ======= ======= ======= 35 SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED The Company's effective tax rate was 37.9%, 40.5% and 40.5% in 1999, 1998 and 1997, respectively. The actual tax expense differs from the "expected" tax expense (computed by applying the U.S. Federal corporate income tax rate of 35% to earnings before income taxes) as follows: YEARS ENDED DECEMBER 31, ------------------------------- 1999 1998 1997 ------- ------- ------- (IN THOUSANDS) Computed "expected" tax expense.............. $37,660 $32,657 $24,498 Increase in income taxes resulting from: State income taxes, net of federal income tax benefit....................... 3,323 4,185 3,002 Enterprise tax credit...................... (765) Other, net............................... 552 953 850 ------- ------- ------- $40,770 $37,795 $28,350 ======= ======= ======= The net effects of temporary differences that give rise to significant portions of the deferred tax assets and deferred tax liabilities are presented below: DECEMBER 31, ------------------------ 1999 1998 -------- -------- (IN THOUSANDS) Deferred tax assets: Claims accruals .................................. $ 18,140 $ 20,480 Accounts receivable due to allowance for doubtful accounts .............................. 1,130 440 Nondeductible accruals ........................... 2,820 Other ............................................ 500 160 --------- -------- Total deferred tax assets ................ 22,590 21,080 --------- -------- Deferred tax liabilities: Property and equipment, principally due to differences in depreciation .................... (104,170) (70,010) Prepaid taxes, licenses and permits deducted for tax purposes ............................... (6,480) (5,820) Other ............................................ (3,427) --------- -------- Total deferred tax liabilities ........... (114,077) (75,830) --------- -------- Net deferred tax liability ............... $ (91,487) $(54,750) ========= ======== These amounts are presented in the accompanying consolidated balance sheets as follows: DECEMBER 31, ----------------------- 1999 1998 --------- -------- (IN THOUSANDS) Current deferred tax asset ..................... $ 4,200 $ 4,010 Noncurrent deferred tax liability .............. (95,687) (58,760) --------- -------- Net deferred tax liability ..................... $ (91,487) $(54,750) ========= ======== 36 SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED (11) CLAIMS ACCRUALS The Company's insurance program for liability, workers' compensation, physical damage and cargo damage involves self-insurance, with varying risk retention levels. Claims in excess of these risk retention levels are covered by insurance in amounts which management considers adequate. Claims accruals represent accruals for the uninsured portion of pending claims at December 31, 1999 and 1998. The current portion reflects the amounts of claims expected to be paid in the following year. These accruals are estimated based on management's evaluation of the nature and severity of individual claims and an estimate of future claims development based on the Company's past claims experience. Claims accruals also include accrued medical expenses under the Company's group medical insurance program. (12) FAIR VALUE OF FINANCIAL INSTRUMENTS Statement of Financial Accounting Standards No. 107, "Disclosures about Fair Value of Financial Instruments," requires that the Company disclose estimated fair values for its financial instruments. The following summary presents a description of the methodologies and assumptions used to determine such amounts. CASH The carrying amount is assumed to be the fair value because of the liquidity of these instruments. ACCOUNTS RECEIVABLES AND PAYABLES Fair value is considered to be equal to the carrying value of the accounts receivable and accounts payable and accrued liabilities, as they are generally short-term in nature and the related amounts approximate fair value or are receivable or payable on demand. LONG-TERM DEBT AND BORROWINGS UNDER REVOLVING LINE OF CREDIT The fair value of all of these instruments is assumed to approximate their respective carrying values given the duration of the notes, their interest rates and underlying collateral. LIMITATIONS Fair value estimates are made at a specific point in time and are based on relevant market information and information about the financial instrument. These estimates do not reflect any premium or discount that could result from offering for sale at one time the Company's entire holdings of a particular financial instrument. Changes in assumptions could significantly affect these estimates. Since the fair value is estimated as of December 31, 1999, the amounts that will actually be realized or paid at settlement or maturity of the instruments could be significantly different. (13) EMPLOYEE BENEFIT PLANS The Company maintains a 401(k) profit sharing plan for all employees who are 19 years of age or older and have completed one year of service. The Plan provides for a mandatory matching contribution equal to the amount of the employee's salary reduction, but not to exceed 1% of the employee's compensation. Also, the plan provides for a discretionary contribution not to exceed 4% of the employee's compensation, limited to the amount permitted under the Internal Revenue Code as deductible expenses. The Company may also make voluntary profit sharing contributions. Employees' rights to employer contributions vest after five years from their date of employment. The Company's contribution totaled approximately $8.2 million, $7.1 million and $4.2 million for 1999, 1998 and 1997, respectively. 37 SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED (14) RELATED PARTY TRANSACTIONS The Company leases various properties from entities owned by the principal stockholder. Rents paid under these leases totaled $72,000, $135,000 and $700,000 for the years ended December 31, 1999, 1998 and 1997, respectively. A company owned by the Company's principal stockholder leases tractors to some of the Company's owner operators. In connection with this program in 1999, 1998 and 1997, the Company acquired new tractors and sold them to this entity for $37.2 million, $22.1 million and $22.8 million, respectively, and recognized fee income of $2.2 million, $1.3 million and $1.4 million, respectively. During 1999, 1998, and 1997, the Company also sold used revenue equipment to this entity totaling $167,000, $320,000 and $238,000 respectively, and recognized gains of $17,000 in 1999, $69,000 in 1998 and $36,000 in 1997. At December 31, 1999 and 1998, nothing was owed to the Company for this equipment. A Company owned by the principal stockholder provides aircraft services to the Company. Such services totaled $621,000, $429,000 and $590,000 for the years ended December 31, 1999, 1998 and 1997, respectively. At December 31, 1999 and 1998, $138,000 and $141,000, respectively, was owed to this entity for such services. During 1997, the Company purchased parts and maintenance services from an entity owned by one of the Company's outside directors totaling $3,217,000. This entity was sold to an unrelated party on January 1, 1998. The Company's principal stockholder acquired a significant ownership interest in a less than truckload carrier during 1997. The Company provides transportation services to this carrier and other entities owned by the principal stockholder and recognized $10.6 million, $6.1 million and $1.8 million in operating revenue in 1999, 1998 and 1997, respectively. At December 31, 1999 and 1998, $1.8 million and $742,000, respectively, was owed to the Company for these services. In addition, the Company sold used equipment to the carrier for $261,000 in 1998 and paid $423,000, $227,000 and $80,000 to the carrier for facilities rental in 1999, 1998 and 1997, respectively. The Company's principal stockholder owns an entity with a fleet of tractors which operates as a fleet operator for the Company. During 1999, 1998 and 1997, the Company paid $13.2 million, $17.2 million and $5.3 million to this fleet operator for purchased transportation services. At December 31, 1999 and 1998, $512,000 and $326,000, respectively, was owed for these purchased transportation services. Also, the Company was paid $301,000, $267,000 and $264,000 by this fleet operator and paid $43,000, $450,000 and $117,000 to this fleet operator for various services including training in 1999, 1998 and 1997, respectively. At December 31, 1999 and 1998, $62,000 and $32,000 was owed to the Company and $23,000 and nothing, respectively, was owed by the Company for these services. All of the above related party arrangements were approved by the independent members of the Company's Board of Directors. (15) ACQUISITIONS On April 8, 1997, the Company completed its acquisition of certain assets of Direct Transit, Inc. ("DTI"), a Debtor-In-Possession in United States Bankruptcy Court. DTI was a dry van carrier based in North Sioux City, South Dakota and operated predominantly in the eastern two-thirds of the United States. The Company acquired inventory, furniture and office equipment, computer equipment and miscellaneous assets from DTI for $2.7 million. Also, the Company paid $1 million to the principal shareholder of DTI in exchange for a covenant not to compete. Separately, the Company acquired 565 tractors and 1,622 trailers from various lessors. Certain of the revenue equipment was purchased for $31 million and new lease agreements were negotiated on $11 million of revenue equipment. The Company used working capital and borrowings under its existing line of credit to acquire the assets described above and for payments under the covenant not to compete. 38 SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED (16) COMMITMENTS AND CONTINGENCIES The Company is involved in certain claims and pending litigation arising in the normal course of business. Based on the knowledge of the facts and, in certain cases, opinions of outside counsel, management believes the resolution of claims and pending litigation will not have a material adverse effect on the financial condition of the Company. (17) INDUSTRY SEGMENT INFORMATION The Company operates predominantly in one industry, road transportation, as a truckload motor carrier subject to regulation by the Department of Transportation and various state regulatory authorities. (18) QUARTERLY RESULTS OF OPERATIONS (UNAUDITED) FIRST SECOND THIRD FOURTH QUARTER QUARTER QUARTER QUARTER -------- -------- -------- -------- (IN THOUSANDS, EXCEPT SHARE DATA) YEAR ENDED DECEMBER 31, 1999 Operating revenue .................. $234,944 $262,531 $279,423 $284,336 Operating income ................... 21,832 30,740 33,150 30,719 Net earnings ....................... 12,103 17,504 18,732 18,492 Basic earnings per share ........... .19 .27 .29 .29 Diluted earnings per share ......... .19 .27 .29 .28 YEAR ENDED DECEMBER 31, 1998 Operating revenue .................. $191,608 $215,832 $227,184 $238,809 Operating income ................... 16,936 25,086 27,309 29,361 Net earnings ....................... 9,412 14,036 15,644 16,419 Basic earnings per share ........... .15 .22 .24 .26 Diluted earnings per share ......... .14 .21 .24 .25 39 ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE The Company has never filed a Form 8-K to report a change in accountants because of a disagreement over accounting principles or procedures, financial statement disclosure, or otherwise. PART III ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT Information with respect to continuing directors and nominees of the Company is set forth under the captions "Information Concerning Directors, Nominees and Officers," "Meetings of the Board of Directors and its Committees," and "Director Compensation" in the Registrant's Notice and Proxy Statement relating to its 2000 Annual Meeting of Stockholders ("the 2000 Notice and Proxy Statement") to be held on June 7, 2000 incorporated by reference into this Form 10-K Report. With the exception of the foregoing information and other information specifically incorporated by reference into this Form 10-K Report, the Registrant's 2000 Notice and Proxy Statement is not being filed as a part hereof. ITEM 11. EXECUTIVE COMPENSATION Information with respect to executive compensation is set forth under the captions "Executive Compensation," "Compensation Committee Interlocks and Insider Participation," "Meetings and Compensation" and "Employment Agreements" in the 2000 Notice and Proxy Statement and is incorporated herein by reference; provided, however, that the information set forth under the captions "Compensation Committee Report on Executive Compensation" and "Stock Price Performance Graph" contained in the 2000 Notice and Proxy Statement are not incorporated by reference herein. ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT Information with respect to security ownership of certain beneficial owners and management is included under the caption "Security Ownership of Principal Stockholders and Management" in the 2000 Notice and Proxy Statement and is incorporated herein by reference. ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS Information with respect to certain relationships and transactions of management is set forth under the caption "Certain Transactions and Relationships" and "Compensation Committee Interlocks and Insider Participation" in the 2000 Notice and Proxy Statement and is incorporated herein by reference. 40 PART IV ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K (a) Financial Statements and Schedules. (i) Financial Statements Page or Method of Filing ---------------- (1) Report of KPMG LLP Page 21 (2) Consolidated Financial Statements and Page 22-39 Notes to Consolidated Financial Statements of the Company, including Consolidated Balance Sheets as of December 31, 1999 and 1998 and related Consolidated Statements of Earnings, Stockholders' Equity and Cash Flows for each of the years in the three-year period ended December 31, 1999 (ii) Financial Statement Schedules Schedules have been omitted because of the absence of conditions under which they are required or because the required material information is included in the Consolidated Financial Statements or Notes to the Consolidated Financial Statements included herein. (b) Reports on Form 8-K None (c) Exhibits. EXHIBIT PAGE OR NUMBER DESCRIPTION METHOD OF FILING - ------ ----------- ---------------- 3.1 Articles of Incorporation of Incorporated by reference to Exhibit the Company 3.1 of the Company's Form S-3 Registration Statement No. 33-66034 ("S-3 #33-66034") 3.2 Bylaws of the Company Incorporated by reference to Exhibit 3.2 of S-3 #33-66034 4 Specimen of Common Stock Incorporated by reference to Exhibit Certificate 4 of the Company's Annual Report on Form 10-K for the year ended December 31, 1992 (the "1992 Form 10-K") 41 EXHIBIT PAGE OR NUMBER DESCRIPTION METHOD OF FILING - ------ ----------- ---------------- 10.1 Lease Agreement between Incorporated by reference to Exhibit Jerry and Vickie Moyes and 10-E(1) of the Company's Form S-1 the Company relating to Registration Statement No. #33-34983 Stockton, California ("S-1 #33-34983") property, dated April 10, 1990 10.4.1 Asset Purchase Agreement Incorporated by reference to Exhibit dated June 17, 1994 by and 1 of the Company's Current Report on among Swift Transportation Form 8-K dated October 6, 1994 (the Co., Inc., a Nevada "10/6/94 8-K") corporation; Swift Transportation Co., Inc., an Arizona corporation; Mark VII, Inc., a Missouri corporation; MNX Carriers, Inc., a Delaware corporation; and Missouri-Nebraska Express, Inc., an Iowa corporation 10.4.2 Amendment No. 1, dated Incorporated by reference to Exhibit September 30, 1994, to the 2 of the 10/6/94 8-K Asset Purchase Agreement 10.5 Stock Option Plan, as Incorporated by Reference to Exhibit amended through November 18, 10.7 of the Company's Annual Report 1994* on Form 10-K for the year ended December 31, 1994 (the "1994 Form 10- K") 10.6 Non-Employee Directors Stock Incorporated by reference to Exhibit Option Plan, as amended 10.8 of the 1994 Form 10-K through November 18, 1994* 10.7 Employee Stock Purchase Incorporated by reference to Exhibit Plan, as amended through 10.9 of the 1994 Form 10-K November 18, 1994* 10.8 Swift Transportation Co., Incorporated by reference to Exhibit Inc. Retirement (401(k)) 10.14 of the Company's Form S-1 Plan dated January 1, 1992* Registration Statement No. #33-52454 10.9 Note agreement dated Incorporated by reference to Exhibit February 26, 1996 by and 10.12 of the Company's Annual Report between Swift Transportation on Company Form 10-K for the year Co., Inc. and Great-West ended December 31,1995 (the "1995 Life & Annuity Insurance Form 10-K") Company 42 EXHIBIT PAGE OR NUMBER DESCRIPTION METHOD OF FILING - ------ ----------- ---------------- 10.10 Note agreement dated January Incorporated by reference to Exhibit 16, 1997 by and between 10.11 of the Company's Annual Report Swift Transportation Co., on Form 10-K for the year ended Inc. and Wells Fargo Bank, December 31,1996 (the "1996 Form N.A., ABN Amro Bank N.V., 10-K") The Chase Manhattan Bank and The First National Bank of Chicago. 10.11 Asset Purchase Agreement Incorporated by reference to Exhibit Dated as of February 20, 1 of the Company's Current Report on 1997 Among Swift Form 8-K dated April 8, 1997 (the Transportation Co., Inc. and "4/8/97 8-K") Direct Transit, Inc. and Charles G. Peterson 10.12 First Modification Agreement Incorporated by Reference to Exhibit to Note Agreement dated 10.13 of the Company's Quarterly January 16, 1997 by and Report on Form 10-Q for the quarter between Swift Transportation ended September 30, 1998 (the "1998 Co., Inc. and Wells Fargo Third Quarter Form 10-Q") Bank, N.A., ABN Amro Bank N.V., The Chase Manhattan Bank and The First National Bank of Chicago 10.13 Second Modification Incorporated by reference to Exhibit Agreement to Note Agreement 10.14 of the 1998 Third Quarter Form dated January 17, 1997 by 10-Q and between Swift Transportation Co., Inc. and Wells Fargo Bank, N.V., ABN Amro Bank N.V., The First National Bank of Chicago, Norwest Bank Arizona, N.A., Keybank National Association and Union Bank of California, N.A. 43 EXHIBIT PAGE OR NUMBER DESCRIPTION METHOD OF FILING - ------ ----------- ---------------- 10.14 1999 Stock Option Plan* Incorporated by reference to Notice and Proxy Statement For Annual Meeting Of Stockholders To Be Held on May 20, 1999 ("the 1999 Proxy Statement") 10.15 Non-Employee Directors Stock Incorporated by reference to the 1999 Option Plan (Amended and Proxy Statement Restated as of May 20, 1999)* 10.16 Receivables Sales Agreement Filed herewith Dated As Of December 30, 1999 Among Swift Receivables Corporation, Swift Transportation Corporation, ABN AMRO Bank N.V., and Amsterdam Funding Corporation 10.17 Purchase and Sale Agreement Filed herewith Dated December 30, 1999 between Swift Transportation Corporation and Swift Receivables Corporation 11 Schedule of computation of Filed herewith net earnings per share 22 Subsidiaries of Registrant Filed herewith 23 Consent of KPMG LLP Filed herewith 27 Financial Data Schedule for Filed herewith twelve months ended December 31, 1999 99 Private Securities Litiga- Filed herewith tion Reform Act of 1995 Safe Harbor Compliance Statement for Forward- Looking Statements - ---------- * Indicates a compensation plan 44 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized, this 20th day of March, 2000. SWIFT TRANSPORTATION CO., INC., a Nevada corporation By: /s/ Jerry C. Moyes ------------------------------------ Jerry C. Moyes Chairman of the Board, President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Jerry C. Moyes and William F. Riley III, and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this Form 10-K Annual Report, and to file the same, with all exhibits thereto, and other documents in connection therewith with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully and to all intents and purposes as he might or could do in person hereby ratifying and confirming all that said attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Exchange Act of 1934, this report on Form 10-K has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated: Signature Title Date --------- ----- ---- /s/ Jerry C. Moyes Chairman of the Board, March 20, 2000 - ------------------------ President and Chief Executive Jerry C. Moyes Officer (Principal Executive Officer) /s/ William F. Riley III Senior Executive Vice President, March 20, 2000 - ------------------------ Secretary, Chief Financial Officer William F. Riley III (Principal Accounting Officer) and Director S-1 /s/ Rodney K. Sartor Executive Vice President and March 15, 2000 - ------------------------ Director Rodney K. Sartor /s/ Lou A. Edwards Director February 23, 2000 - ------------------------ Lou A. Edwards /s/ Alphonse E. Frei Director March 20, 2000 - ------------------------ Alphonse E. Frei /s/ Earl H. Scudder, Jr. Director February 25, 2000 - ------------------------ Earl H. Scudder, Jr. S-2 EX-10.16 2 RECEIVABLES SALES AGREEMENT ================================================================================ RECEIVABLES SALE AGREEMENT DATED AS OF DECEMBER 30, 1999 AMONG SWIFT RECEIVABLES CORPORATION, AS THE SELLER, SWIFT TRANSPORTATION CORPORATION, AS THE INITIAL COLLECTION AGENT, ABN AMRO BANK N.V., AS THE AGENT, THE LIQUIDITY PROVIDERS FROM TIME TO TIME PARTY HERETO, ABN AMRO BANK N.V., AS THE ENHANCER, AND AMSTERDAM FUNDING CORPORATION ================================================================================ TABLE OF CONTENTS PAGE ARTICLE I PURCHASES FROM SELLER AND SETTLEMENTS................ 1 Section 1.1. Sales................................................ 1 Section 1.2. Interim Liquidations................................. 3 Section 1.3. Selection of Discount Rates and Tranche Periods...... 3 Section 1.4. Fees and Other Costs and Expenses.................... 4 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..................... 6 ARTICLE II SALES TO AND FROM AMSTERDAM; ALLOCATIONS............. 7 Section 2.1. Required Purchases from Amsterdam.................... 7 Section 2.2. Purchases by Amsterdam............................... 7 Section 2.3. Allocations and Distributions........................ 7 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.............................................. 10 Section 3.4. Lock-Box Arrangements................................ 11 Section 3.5. Enforcement Rights................................... 11 Section 3.6. Collection Agent Fee................................. 11 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 -i- ARTICLE VII CONDITIONS PRECEDENT................................. 23 Section 7.1. Conditions to Closing................................ 23 Section 7.2. Conditions to Each Purchase.......................... 23 ARTICLE VIII THE AGENT............................................ 24 Section 8.1. Appointment and Authorization........................ 24 Section 8.2. Delegation of Duties................................. 24 Section 8.3. Exculpatory Provisions............................... 25 Section 8.4. Reliance by Agent.................................... 25 Section 8.5. Assumed Payments..................................... 25 Section 8.6. Notice of Termination Events......................... 25 Section 8.7. Non-Reliance on Agent and Other Purchasers........... 26 Section 8.8. Agent and Affiliates................................. 26 Section 8.9. Indemnification...................................... 26 Section 8.10. Successor Agent...................................... 26 ARTICLE IX MISCELLANEOUS........................................ 27 Section 9.1. Termination.......................................... 27 Section 9.2. Notices.............................................. 27 Section 9.3. Payments and Computations............................ 27 Section 9.4. Sharing of Recoveries................................ 28 Section 9.5. Right of Setoff...................................... 28 Section 9.6. Amendments........................................... 28 Section 9.7. Waivers.............................................. 29 Section 9.8. Successors and Assigns; Participations; Assignments.. 29 Section 9.9. Intended Tax Characterization........................ 31 Section 9.10. Confidentiality...................................... 31 Section 9.11. Agreement Not to Petition............................ 31 Section 9.12. Excess Funds......................................... 32 Section 9.13. No Recourse.......................................... 32 Section 9.14. Headings; Counterparts............................... 32 Section 9.15. Cumulative Rights and Severability................... 32 Section 9.16. Governing Law; Submission to Jurisdiction............ 32 Section 9.17. WAIVER OF TRIAL BY JURY.............................. 33 Section 9.18. Entire Agreement..................................... 33 -ii- SCHEDULES DESCRIPTION - --------- ----------- Schedule I Definitions Schedule II Liquidity Providers and Commitments of Committed Purchasers EXHIBITS DESCRIPTION - -------- ----------- Exhibit A Form of Incremental Purchase Request Exhibit B Form of Notification of Assignment to Amsterdam from the Committed Purchasers Exhibit C Form of Periodic Report Exhibit D Addresses and Names of Seller and Originator Exhibit E Subsidiaries Exhibit F Lock-Boxes and Lock-Box Banks Exhibit G Form of Lock-Box Letter Exhibit H Compliance Certificate Exhibit I Credit and Collection Policy -iii- RECEIVABLES SALE AGREEMENT RECEIVABLES SALE AGREEMENT, dated as of December 30, 1999, 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 the Purchasers (the "AGENT"), the liquidity providers party hereto (the "LIQUIDITY PROVIDERS"), ABN AMRO Bank N.V., as provider of the Program LOC (the "ENHANCER"), and Amsterdam Funding Corporation ("AMSTERDAM"). Certain capitalized terms used herein, and certain rules of construction, are defined in Schedule I. The sole initial Liquidity Provider and the Commitments of all Committed Purchasers are listed on Schedule II. The parties hereto agree as follows: ARTICLE I PURCHASES FROM SELLER AND SETTLEMENTS SECTION 1.1. SALES. (a) THE SOLD INTEREST. Subject to the terms and conditions hereof, the Seller may, from time to time before the Liquidity Termination Date, sell to Amsterdam or, only if Amsterdam declines to make the applicable purchase, ratably to the Committed Purchasers 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 the Agent, 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 at such time. 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) AMSTERDAM PURCHASE OPTION AND OTHER PURCHASERS' COMMITMENTS. Subject to Section 1.1(d) concerning Reinvestment Purchases, at no time will Amsterdam have any obligation to make a Purchase. Each Liquidity Provider and the Enhancer (together the "COMMITTED PURCHASERS" and each a "COMMITTED 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 Amsterdam has refused to make a requested Purchase), to make Purchases before the Liquidity Termination Date, based on its Ratable Share of each Purchase by the Committed Purchasers, 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." (c) INCREMENTAL PURCHASES. In order to request an Incremental Purchase from a Purchaser, the Seller must provide to the 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 to the Maximum Incremental Purchase Amount). An Incremental Purchase may only be requested from Amsterdam unless Amsterdam, in its sole discretion, determines not to make such Incremental Purchase, in which case the Seller may request such Incremental Purchase from the Committed Purchasers. The Agent shall promptly notify the contents of any such request to each Purchaser from which the Purchase is requested. If Amsterdam determines, in its sole discretion, to make the requested Purchase, Amsterdam shall transfer to the Agent's Account the amount of such Incremental Purchase on the requested Purchase Date. If Amsterdam refuses to make a requested Purchase and the Seller requests the Incremental Purchase from the Committed Purchasers three Business Days before such requested Purchase (which such request may only be made on and after January 3, 2000), subject to Section 7.2 and the other terms and conditions hereof, each Committed Purchaser shall transfer its Ratable Share of the requested Purchase Amount into the 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 Committed Purchasers). The 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 the Agent in the Agent's Account prior to 11:00 a.m. on such day. Notwithstanding anything in this -2- Agreement to the contrary, the Committed Purchasers shall have no Commitment to make an Incremental Purchase prior to January 3, 2000. (d) REINVESTMENT PURCHASES. Unless Amsterdam has provided to the 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 Amsterdam's Reinvestment Purchases, but not those of the Committed Purchasers, shall cease), on each day before the Liquidity 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. Amsterdam may revoke any notice provided under the first sentence of this Section 1.1(d) by notifying the Agent, the Seller, and the Collection Agent that it will make Reinvestment Purchases. (e) 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 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 Liquidity 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 Liquidity Termination Date, subject to Section 1.2(b) below, by notifying the 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 Liquidity Termination Date any condition in Section 7.2 is not fulfilled, the Seller shall immediately notify the 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)(1) The provisions of this subsection (a)(1) shall apply to all Investment of Amsterdam funded with commercial paper issued on or before February 1, 2000: All such Investment 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. All such Investment of Amsterdam shall accrue Discount at the CP Rate. All CP Discount accrued during a Tranche Period shall be payable by the Seller on the last day of such Tranche Period; (2) The provisions of this subsection (a)(2) shall apply to all Investment of Amsterdam -3- funded with commercial paper issued after February 1, 2000: The Seller shall pay Funding Charges with respect to Amsterdam'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 Agent (for the benefit of Amsterdam) an aggregate amount equal to all accrued and unpaid Funding Charges in respect of such Purchase Interest for the immediately preceding Discount Period; (3) All Investment of the Committed 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 Committed Purchaser and three Business Days before the expiration of any Tranche Period applicable to any Committed 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 Committed 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 Committed Purchasers not allocated to a Tranche Period shall be a Prime Tranche. During the pendency of a Termination Event, the Agent may reallocate any outstanding Investment of the Committed Purchasers to a Prime Tranche. All Discount accrued on the Investment of the Committed Purchasers during a Tranche Period shall be 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) The Agent shall allocate the Investment of Amsterdam 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 the Committed Purchasers, such amount of Investment shall automatically accrue Discount at the Prime Rate for a three Business Day Tranche Period. Any Investment purchased from Amsterdam pursuant to the Transfer Agreement shall accrue interest at the Prime Rate and have an initial Tranche Period of three Business Days. (c) If the Agent or any Committed 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 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 Purchaser of funding Eurodollar Tranches, then the 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 the Agent (i) for the ratable benefit of the Liquidity Providers, such amounts as agreed to with the Liquidity Providers and the Agent in the Pricing Letter, and (ii) for the account of the Enhancer and the Agent, such amounts as agreed to with the Enhancer and the Agent in the Fee Letter. (b) If (i) with respect to any Investment of Amsterdam, the amount of Amsterdam's Investment is reduced on any date other than the last day of a CP Tranche, (ii) the amount of Investment allocated to any Eurodollar Tranche is -4- 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 that had its Investment so reduced or scheduled Purchase not made; PROVIDED THAT at any time the Purchased Interest accrues Funding Charges based on Pooled Allocation no such Early Payment Fee shall be payable upon the reduction of Amsterdam's Investment on any date other than the last day of a CP Tranche with respect to up to $25,000,000 of Investment if the Seller shall have notified the Agent of its intention to so reduce the outstanding Investment by 10:00 a.m. two (2) Business Days prior to the date of such reduction. (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 at any time before the Liquidity 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 to the Agent 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 Investments, applied FIRST to Prime Tranches and SECOND to the other Tranches with the shortest remaining maturities unless otherwise specified by the Seller. Any amount so applied to reduce Amsterdam's Investment shall be deposited in the Special Transaction Subaccount. Unless the Agent otherwise requires, prior to the Liquidity Termination Date payment obligations for any day under this Section 1.5(a) shall only be payable on the Settlement Date occurring in the next succeeding calendar month. (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 Liquidity 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. -5- (c) ADJUSTMENT TO SOLD INTEREST. At any time before the Liquidity 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, 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 Committed 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, 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. 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 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 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 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. -6- ARTICLE II SALES TO AND FROM AMSTERDAM; ALLOCATIONS SECTION 2.1. REQUIRED PURCHASES FROM AMSTERDAM. (a) Amsterdam may, at any time, and on the earlier of the Amsterdam Termination Date and ten Business Days following the Agent and Amsterdam learning of a continuing Termination Event, Amsterdam shall, sell to the Committed Purchasers pursuant to the Transfer Agreement any percentage designated by Amsterdam of Amsterdam's Investment and its related Amsterdam Settlement (each, a "PUT"). (b) Any portion of Amsterdam's Investment and related Amsterdam Settlement purchased by a Committed Purchaser shall be considered part of such Purchaser's Investment and related Amsterdam Settlement from the date of the relevant Put. Immediately upon any purchase by the Committed Purchasers of any portion of Amsterdam's Investment, the Seller shall pay to the Agent (for the ratable benefit of such Purchasers) an amount equal to the sum of (i) the Assigned Amsterdam Settlement and (ii) all unpaid Discount owed to Amsterdam (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 Amsterdam in connection herewith at the time of such purchase and (iv) all accrued and unpaid costs, expenses and indemnities due to Amsterdam from the Seller in connection herewith. (c) The proceeds from each Put received by Amsterdam (other than amounts described in clauses (iii) and (iv) of the preceding sentence), shall be transferred into the Special Transaction Subaccount and used solely to pay that portion of the outstanding commercial paper of Amsterdam issued to fund or maintain the Investment of Amsterdam so transferred. Until used to pay commercial paper, all proceeds of any Put pursuant to this Section shall be invested in Permitted Investments. All earnings on such Permitted Investments shall be promptly remitted to the Seller. SECTION 2.2. PURCHASES BY AMSTERDAM. Amsterdam may at any time deliver to the Agent and each Committed Purchaser a notification of assignment in substantially the form of Exhibit A to the Transfer Agreement. If Amsterdam delivers such notice, each Committed Purchaser shall sell to Amsterdam and Amsterdam shall purchase in full from each Committed Purchaser, the Investment of the Committed 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 Committed Purchaser to Amsterdam 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 Committed Purchaser is free and clear of any Adverse Claim created or granted by such Committed Purchaser and that such Purchaser has not suffered a Bankruptcy Event. SECTION 2.3. ALLOCATIONS AND DISTRIBUTIONS. (a) AMSTERDAM TERMINATION AND NON-REINVESTMENT PERIODS. Before the Liquidity Termination Date unless an Interim Liquidation is in effect, during a period that Amsterdam has an outstanding Investment and is not making Reinvestment Purchases (as established under Section 1.1(d)) and at all times on -7- and after the Amsterdam Termination Date, the Collection Agent (i) shall separately account for and thereby be deemed to set aside and hold solely for the benefit of Amsterdam (or deliver to the Agent, if so instructed pursuant to Section 3.2(a)) Amsterdam's Purchase Interest in all Collections received during such period and (ii) shall distribute on the last day of each CP Tranche Period to the Agent (for the benefit of Amsterdam) the amounts so separately accounted for and deemed set aside up to the amount of Amsterdam's Investment allocated to such Tranche Period 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 Investment and Tranche Period. The Collection Agent need only report such amounts separately accounted for and deemed set aside on the Periodic Reports delivered pursuant to Section 3.3. As provided in Section 1.4(c) all Discount and other amounts payable hereunder other than Investment are payable by the Seller. 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 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%, for distribution as part of the Sold Interest in Collections. (b) LIQUIDITY TERMINATION DATE AND INTERIM LIQUIDATIONS. During any Interim Liquidation and on each day on and after the Liquidity Termination Date the Collection Agent shall separately account for and thereby be deemed to set aside and hold solely for the account of the Agent, for the benefit of the Purchasers, (or deliver to the Agent, if so instructed pursuant to Section 3.2(a)) the Sold Interest in all Collections so received and such Collections shall be allocated as follows: (i) FIRST, only so long as (A) the sum of the Matured Value of Amsterdam's Investment, the Matured Value of each Liquidity Provider's Investment, and the Enhancer's Investment is less than (B) the product of the Sold Interest multiplied by the Eligible Receivables Balance, to the payment of all Discount then due but not already paid to the Enhancer; (ii) SECOND, to Amsterdam and to the Liquidity Providers (ratably, based on the Matured Value of their respective Investments) until all Investment of, and Discount due but not already paid to, the Liquidity Providers and Amsterdam have been paid in full; (iii) THIRD, to the Enhancer until all Investment of, and Discount due but not already paid to, the Enhancer have been paid in full; (iv) FOURTH, to the Purchasers until all other amounts owed to the Purchasers have been paid in full; (v) FIFTH, to the Agent until all amounts owed to the Agent 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 -8- (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 the Agent pursuant to Section 3.2(a)), the Collection Agent shall deposit into the Agent's Account, from such separately accounted for and deemed 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 (i)-(iii) above. No distributions shall be made to pay amounts under clauses (iv) - (vii) until sufficient Collections have been separately accounted for and deemed set aside to pay all amounts described in clauses (i) - (iii) that may become payable for all outstanding Tranche Periods. All distributions by the 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 the Agent and all Purchasers. As provided in Section 1.4(c) all Discount and other amounts payable hereunder other than Investment are payable by the Seller. If any part of the Sold Interest in any Collections is applied to pay any such amounts pursuant to this Section 2.3(b) and after giving effect to such application the Sold Interest is greater than 100%, the Seller shall pay 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%, for distribution as part of the Sold Interest in Collections. 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 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 and each Purchaser shall have the right to look solely to the Originator for such performance. The Agent 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 -9- 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 the Agent the amount of Collections to which the Agent and the 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 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). 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 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 -10- information described on Exhibit C (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. (c) Neither the Agent nor 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 -11- 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 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 or any Purchaser's exercise of any rights hereunder shall not relieve the Seller or the Originator from such obligations. Neither the Agent nor 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 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 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: (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 -12- 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 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 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 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 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 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 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 -13- 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 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 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 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 -14- 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 D-F (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. (k) YEAR 2000 PROBLEM. Each of the Seller and each Swift Entity has reviewed the areas within its business and operations which could be adversely affected by, and have developed or are developing a program to address on a timely basis, the "YEAR 2000 PROBLEM" (that is, the risk that computer applications used by such Person and its Subsidiaries may be unable to recognize and perform properly date-sensitive functions involving certain dates prior to and any date on or after December 31, 1999), and have made related appropriate inquiry of material suppliers and vendors. Based on such review and program, such Person believes that the "YEAR 2000 PROBLEM" will not have a material adverse effect on such Person. 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: -15- (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: (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 (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 provide a description of: (i) POTENTIAL TERMINATION EVENTS. The occurrence of any Potential Termination Event; -16- (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; (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. If the Agent receives such a notice, the Agent shall promptly give notice thereof to each Purchaser and, until Amsterdam has no Investment after the Amsterdam Termination Date, to each CP Dealer and each Rating Agency. (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 and the Purchasers such information concerning the Receivables and the Related Security as the 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 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 -17- 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 and the Purchasers' interest in the 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 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 -18- 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 or the Purchasers in the Receivables, the Related Security, Collections, Purchase Agreement or Lock-Box Accounts. (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 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 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 F 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 G (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 and each Purchaser and their respective officers, directors, agents and employees (each an "INDEMNIFIED PARTY") from and against any and all damages, losses, claims, -19- 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 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 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 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 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; -20- (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); (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 Amsterdam Funding Source, the 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, the Seller shall pay to the Agent for the account of the Person such additional amounts as will compensate the Agent or such Purchaser (or, in the case of Amsterdam, will enable Amsterdam to compensate any Amsterdam 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 each Liquidity Provider's Commitment is treated as a "SHORT TERM COMMITMENT" for which there is no regulatory capital requirement and the Enhancer's Commitment carries the same capital requirement as a funded loan in the same amount. If any Liquidity Provider determines it is required to maintain capital against its Unused Commitment, or if the Enhancer is required to maintain capital on 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 -21- against a funded loan in the same amount, such Purchaser shall be entitled to compensation under this Section 6.2. SECTION 6.3. OTHER COSTS AND EXPENSES. The Seller shall pay to the Agent 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 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 Amsterdam relating to any of the foregoing or to advising the Agent, Amsterdam and any Amsterdam 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 and each Amsterdam 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 Amsterdam for any amounts Amsterdam must pay to any Amsterdam Funding Source pursuant to any Funding Agreement 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 and the Agent free and clear of such taxes (including such taxes on such additional amount) is equal to the amount that Purchaser or the Agent (as the case may be) would have received had such withholding not been made. If the Agent or any Purchaser pays any such taxes, penalties or interest the Seller shall reimburse the 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 Purchaser or 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 rise thereto and the basis of the calculations of such amount, which certificate shall be conclusive absent -22- manifest error. The Seller shall pay to the Agent (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 the following documents in form, substance and quantity acceptable to the Agent: (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 or has its principal place of business. (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 H covering the period ending November 30, 1999, (iv) a Periodic Report covering the month ended November 30, 1999 and (v) each Transaction Document. (e) Favorable opinions of counsel to the Seller and each Swift Entity covering such matters as Amsterdam or the Agent may request. (f) Such other approvals, opinions or documents as the Agent or Amsterdam may request. (g) All legal matters related to the Purchase are satisfactory to the Purchasers. SECTION 7.2. CONDITIONS TO EACH PURCHASE. The obligation of each Committed 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 -23- 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 Liquidity 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 Committed Purchaser to Amsterdam (including the Transfer Agreement). ARTICLE VIII THE AGENT SECTION 8.1. APPOINTMENT AND AUTHORIZATION. Each Purchaser 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. 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 -24- responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care. SECTION 8.3. EXCULPATORY PROVISIONS. Neither the Agent nor any of its 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. The Agent shall not 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. The Agent shall not have any obligation to any Purchaser to ascertain or inquire about the observance or performance of any agreement contained in any Transaction 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. 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. 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. SECTION 8.5. ASSUMED PAYMENTS. Unless the Agent shall have received notice from the applicable Purchaser before the date of any Incremental Purchase that such Purchaser will not make available to the Agent the amount it is scheduled to remit as part of such Incremental Purchase, the Agent may assume such Purchaser 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. The Agent shall not be deemed to have knowledge or notice of the occurrence of any Potential Termination Event unless the 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. The Agent shall take such action concerning a Potential Termination Event as may be directed by the Instructing Group (or, if 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. -25- SECTION 8.7. NON-RELIANCE ON AGENT AND OTHER PURCHASERS. Each Purchaser expressly acknowledges that neither the Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates has made any representations or warranties to it and that no act by the Agent hereafter taken, including any review of the affairs of the Seller or any Swift Entity, shall be deemed to constitute any representation or warranty by the Agent. Each Purchaser represents and warrants to the Agent that, independently and without reliance upon the Agent 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, the Swift Entities, 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 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 with any information concerning the Seller, any Swift Entity 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. SECTION 8.8. AGENT AND AFFILIATES. The Agent and its Affiliates may extend credit to, accept deposits from and generally engage in any kind of business with the Seller, any Swift Entity or any of their Affiliates and, in its roles as a Liquidity Provider and the Enhancer, ABN AMRO may exercise or refrain from exercising its rights and powers as if it were not the Agent. The parties acknowledge that ABN AMRO acts as agent for Amsterdam and subagent for Amsterdam's management company in various capacities, as well as providing credit facilities and other support for Amsterdam not contained in the Transaction Documents. SECTION 8.9. INDEMNIFICATION. Each Committed Purchaser 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 and each Purchaser, resign as Agent. Such resignation shall not become effective until a successor agent is appointed by an 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 -26- 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. Amsterdam shall cease to be a party hereto when the Amsterdam Termination Date has occurred, Amsterdam holds no Investment and all amounts payable to it hereunder have been indefeasibly paid in full. This Agreement shall terminate following the Liquidity 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 and each Purchaser under Article VI and Section 8.9 shall survive such termination. 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 to act on telephone notices of Purchases and Discount Rate and Tranche Period selections from any person the Agent in good faith believes to be acting on behalf of the relevant party and, at the 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 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, the records of the 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 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 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 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 -27- 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 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 and the Instructing Group. In addition, no amendment of any Transaction Document shall, without the consent of (a) all the Liquidity Providers, (i) extend the Liquidity 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, (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 Liquidity Providers, (iv) except as provided herein, release, transfer or modify any Committed Purchaser's Purchase Interest or change any Commitment, (v) amend the definition of Required Liquidity Providers, 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, amend any provision hereof if the effect thereof is to affect the indemnities to, or the rights or duties of, the Agent or to reduce any fee payable for the Agent's own account. Notwithstanding the foregoing, the amount of any fee or other payment due and payable from the Seller to the Agent (for its own account), Amsterdam or the Enhancer may be changed or otherwise adjusted solely with the consent of the -28- 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 Purchasers and the Agent. SECTION 9.7. WAIVERS. No failure or delay of the 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 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 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 at the direction of the Purchaser entitled thereto or, in the case of Discount owing to the Liquidity Providers, of the Required Liquidity Providers. 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 the prior consent of the 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 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 LIQUIDITY PROVIDERS. Any Liquidity Provider may assign to one or more Persons ("PURCHASING LIQUIDITY PROVIDERS"), acceptable to the Agent in its sole discretion, any portion of its Commitment as a Liquidity Provider hereunder and under the Transfer Agreement and Purchase Interest pursuant to a supplement hereto and to the Transfer Agreement (a "TRANSFER SUPPLEMENT") in form satisfactory to the Agent executed by each such Purchasing Liquidity Provider, such selling Liquidity Provider and the Agent. Any such assignment by a Liquidity Provider must be for an amount of at least Five Million Dollars. Each Purchasing Liquidity Provider shall pay a fee of Three Thousand Dollars to the Agent. Any partial assignment shall be an assignment of -29- an identical percentage of such selling Liquidity Provider's Investment and its Commitment as a Liquidity Provider hereunder and under the Transfer Agreement. Upon the execution and delivery to the Agent of the Transfer Supplement and payment by the Purchasing Liquidity Provider to the selling Liquidity Provider of the agreed purchase price, such selling Liquidity Provider shall be released from its obligations hereunder and under the Transfer Agreement to the extent of such assignment and such Purchasing Liquidity Provider shall for all purposes be a Liquidity Provider party hereto and shall have all the rights and obligations of a Liquidity Provider hereunder to the same extent as if it were an original party hereto and to the Transfer Agreement with a Commitment as a Liquidity Provider, any Investment and any related Assigned Amsterdam Settlement described in the Transfer Supplement. (d) REPLACEABLE LIQUIDITY PROVIDERS. If any Liquidity Provider (a "REPLACEABLE LIQUIDITY PROVIDER") 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 (unless such Liquidity Provider is also the Enhancer), the Seller or Amsterdam may designate a replacement financial institution (a "REPLACEMENT LIQUIDITY PROVIDER") acceptable to the Agent, in its sole discretion, to which such Replaceable Liquidity Provider shall, subject to its receipt of an amount equal to its Investment, any related Assigned Amsterdam 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 Liquidity Provider Commitment hereunder and under the Transfer Agreement, together with all of its Purchase Interest, and any related Assigned Amsterdam Settlement, to the Replacement Liquidity Provider in accordance with Section 9.8(c). (e) ASSIGNMENT BY AMSTERDAM. Each party hereto agrees and consents (i) to Amsterdam's assignment, participation, grant of security interests in or other transfers of any portion of, or any of its beneficial interest in, the Amsterdam Purchase Interest and the Amsterdam Settlement and (ii) to the complete assignment by Amsterdam of all of its rights and obligations hereunder to ABN AMRO or any other Person, and upon such assignment Amsterdam shall be released from all obligations and duties hereunder; PROVIDED, HOWEVER, that Amsterdam may not, without the prior consent of the Required Liquidity Providers and the Enhancer, transfer any of its rights under the Transfer Agreement to cause the Liquidity Providers or the Enhancer to purchase the Amsterdam Purchase Interest and the Amsterdam Settlement unless the assignee (i) is a corporation whose principal business is the purchase of assets similar to the Receivables, (ii) has ABN AMRO as its administrative agent and (iii) issues commercial paper with credit ratings substantially comparable to the Ratings. Amsterdam shall promptly notify each party hereto of any such assignment. Upon such an assignment of any portion of Amsterdam's Purchase Interest and the Amsterdam Settlement, the assignee shall have all of the rights of Amsterdam hereunder relate to such Amsterdam Purchase Interest and Amsterdam 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 may reasonably request. -30- 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 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 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) any entity organized to loan, or make loans secured by, financial assets for which ABN AMRO provides managerial services or acts as an administrative agent 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, (vi) Amsterdam's administrator, management company, referral agents, issuing agents or depositaries or CP Dealers and (vii) 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 Amsterdam, 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 Amsterdam to invoke, the process of any Governmental Authority for the purpose of (a) commencing or sustaining a case against Amsterdam 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 Amsterdam, or any substantial part of its property, or (c) ordering the winding up or liquidation of the affairs of Amsterdam. -31- SECTION 9.12. EXCESS FUNDS. Other than amounts payable under Section 9.4, Amsterdam shall be required to make payment of the amounts required to be paid pursuant hereto only if Amsterdam has Excess Funds (as defined below). If Amsterdam does not have Excess Funds, the excess of the amount due hereunder (other than pursuant to Section 9.4) over the amount paid shall not constitute a "CLAIM" (as defined in Section 101(5) of the Federal Bankruptcy Code) against Amsterdam until such time as Amsterdam has Excess Funds. If Amsterdam does not have sufficient Excess Funds to make any payment due hereunder (other than pursuant to Section 9.4), then Amsterdam may pay a lesser amount and make additional payments that in the aggregate equal the amount of deficiency as soon as possible thereafter. The term "EXCESS FUNDS" means the excess of (a) the aggregate projected value of Amsterdam's assets and other property (including cash and cash equivalents), over (b) the sum of (i) the sum of all scheduled payments of principal, interest and other amounts payable on publicly or privately placed indebtedness of Amsterdam for borrowed money, plus (ii) the sum of all other liabilities, indebtedness and other obligations of Amsterdam for borrowed money or owed to any credit or liquidity provider, together with all unpaid interest then accrued thereon, plus (iii) all taxes payable by Amsterdam to the Internal Revenue Service, plus (iv) all other indebtedness, liabilities and obligations of Amsterdam then due and payable, but the amount of any liability, indebtedness or obligation of Amsterdam shall not exceed the projected value of the assets to which recourse for such liability, indebtedness or obligation is limited. Excess Funds shall be calculated once each Business Day. SECTION 9.13. NO RECOURSE. The obligations of Amsterdam, 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 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 -32- 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 contemporaneous agreements, whether written or oral, concerning such matters are superseded thereby. -33- 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 ABN AMRO BANK N.V., as the Enhancer By: By: ------------------------------- --------------------------------- Title: Title: ---------------------------- ------------------------------ By: By: ------------------------------- --------------------------------- Title: Title: ---------------------------- ------------------------------ Address: Structured Finance, Address: Structured Finance, Asset Securitization Asset Securitization 135 South LaSalle Street 135 South LaSalle Street Chicago, Illinois 60674-9135 Chicago, Illinois 60674-9135 Attention: Purchaser Agent- Attention: Enhancer- Amsterdam Amsterdam Telephone: (312) 904-6263 Telephone: (312) 904-6263 Telecopy: (312) 904-6376 Telecopy: (312) 904-6376 ABN AMRO BANK N.V., AMSTERDAM FUNDING CORPORATION as a Liquidity Provider By: By: ------------------------------- --------------------------------- Title: Title: ---------------------------- ------------------------------ By: Address: c/o Global Securitization -------------------------------- Services, LLC Title: 25 West 43rd Street ---------------------------- Suite 704 Address: Structured Finance, New York, New York 10036 Asset Securitization Attention: Andrew Stidd 135 South LaSalle Street Chicago, Illinois 60674-9135 Telephone: (212) 302-8330 Attention: Administrator - Telecopy: (212) 302-8767 Amsterdam Telephone: (312) 904-6263 Telecopy: (312) 904-6376 -34- SWIFT RECEIVABLES CORPORATION, as Seller By: ------------------------------- Title: ----------------------------- Address: 2702 West Encanto Phoenix, Arizona 85009 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 -35- 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 ten percent (10%) 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 $102,000,000, 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 Amsterdam 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. "AMSTERDAM FUNDING SOURCE" means any insurance company, bank or other financial institution providing liquidity, back-up purchase or credit support for Amsterdam. "AMSTERDAM 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 Amsterdam (or owed to the Agent or the Collection Agent for the benefit of Amsterdam) by the Seller that, if paid, would be applied to reduce Amsterdam's Investment. "AMSTERDAM TERMINATION DATE" means the earlier of (a) the Business Day designated by Amsterdam at any time to the Seller and (b) the Liquidity Termination Date. "ASSIGNED AMSTERDAM SETTLEMENT" means, for each Committed Purchaser for any Put, the product of such Purchaser's Purchased Percentage and the amount of the Amsterdam 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 Amsterdam 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. I-2 "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; (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 Committed Purchaser, the amount set forth on Schedule II, as adjusted in accordance with Sections 1.6 and 9.8. "COMMITTED PURCHASERS" is defined in Section 1.1(b). "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 12% 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 Baa2 (or higher) by Moody's, an amount not to exceed 6% of the aggregate outstanding balance of all Eligible Receivables, and (iii) with respect to all other Obligors, an amount not to exceed 3% of the aggregate outstanding balance of all Eligible Receivables. "CP DEALER" means, at any time, each Person Amsterdam 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 thereof, issued by Amsterdam 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 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 Amsterdam, as agreed between each such CP Dealer and Amsterdam, 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 Amsterdam's converting such I-3 discount rate to an interest-bearing equivalent rate. The CP Rate shall include all costs and expenses to Amsterdam of issuing the related commercial paper notes, including all dealer commissions and note issuance costs in connection therewith. "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 plus the aggregate outstanding balance of all Receivables that become Charge-Offs during the immediately preceding twelve calendar months to (b) the sum of the aggregate outstanding balance of all Receivables at the end of each calendar month plus the aggregate outstanding balance of all Receivables that become Charge-Offs during the immediately preceding twelve calendar months. "DEFAULTED RECEIVABLE" means any Receivable (a) on which any amount is unpaid more than 90 days past its original due 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 original due date. "DESIGNATED FINANCIAL OFFICER" means the chief financial officer or chief accounting officer of the Seller or the relevant Swift Entity, as applicable. "DILUTION 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 amount of payments owed by the Seller pursuant to the first sentence of Section 1.5(b) for such period to (b) the aggregate amount of Collections received during such period. "DILUTION RESERVE" means (i) the greater of (a) 1% and (b) the highest Dilution Ratio (expressed as a decimal) as of the last day of each of the last three calendar months multiplied by (ii) the Eligible Receivables Balance. "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. I-4 "DISCOUNT PERIOD" means, with respect to any Settlement Date or the Liquidity 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 Liquidity 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. "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 Committed 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 Amsterdam 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; (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 25% 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 or, for Receivables owing by Obligors identified by the Seller to the Agent in connection with the first Incremental Purchase, which are stated to be due and payable within 45 days after the invoice therefor; I-5 (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 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 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 the portion of the aggregate outstanding balance of Eligible Receivables which exceeds the Concentration Limit or the Special Limit. "ENHANCER" is defined in the first paragraph hereof. "ENHANCER COMMITMENT PERCENTAGE" means 10%. "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)(i) for Investment of a Liquidity Provider, the amount specified in the Pricing Letter, or, (ii) for Investment of the Enhancer, the amount specified in the Fee Letter plus (c) during the pendency of a Termination Event, 2.00% for Investment of a Liquidity Provider and 2.00% for Investment of the Enhancer; where "RESERVE REQUIREMENT" means, for any Tranche Period for a Eurodollar Tranche, the maximum reserve requirement imposed during such Tranche I-6 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 Amsterdam commercial paper issued 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 for any day the greater of (i) the highest rate per annum as determined by ABN AMRO at which overnight Federal funds are offered to ABN AMRO for such day by major banks in the interbank market, and (ii) if ABN AMRO 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 ABN AMRO shall be conclusive and binding on the Seller except in the case of manifest error. "FEE LETTER" means the letter agreement dated as of the date hereof among the Seller, the Agent, Amsterdam and the Enhancer. "FUNDING AGREEMENT" means any agreement or instrument executed by Amsterdam and executed by or in favor of any Amsterdam Funding Source or executed by any Amsterdam Funding Source at the request of Amsterdam (including the Program LOC). "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 Amsterdam pursuant to the terms of any Receivable Purchase Facilities funded substantially with Pooled Commercial Paper. "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. I-7 "INSTRUCTING GROUP" means the Required Liquidity Providers, the Enhancer and, unless the Amsterdam Termination Date has occurred and Amsterdam has no Investment, Amsterdam. "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, (a) the sum of (i) all Incremental Purchases by such Purchaser and (ii) the aggregate amount of any payments or exchanges made by, or on behalf of, such Purchaser 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 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 Amsterdam only, all times when Amsterdam 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 Liquidity Termination Date. "LIQUIDITY PROVIDERS" is defined in the first paragraph hereof. "LIQUIDITY 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 of any other Termination Event, (c) the Business Day designated by the Seller with no less than five (5) Business Days prior notice to the Agent and (d) December 28, 2000. I-8 "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. "LOSS RESERVE" means, at any time, the product of (i) the greatest of (a) 12%, (b) the sum of (I) the Default Ratio as of the last day of the immediately preceding calendar month plus (II) two times the Delinquency Ratio as of the last day of the immediately preceding calendar month and (c) the sum of (I) the Default Ratio as of the last day of the immediately preceding month plus (II) the Delinquency Ratio as of the last day of the immediately preceding calendar month plus (III) the difference between (1) the highest sum of the Default Ratio and Delinquency Ratio as of the last day of the immediately preceding three calendar months, minus (2) the lowest sum of the Default Ratio and Delinquency Ratio as of the last day of the immediately preceding three calendar months multiplied by (ii) the Eligible Receivables Balance. "MATURED AGGREGATE INVESTMENT" means, at any time, the Matured Value of Amsterdam's Investment plus the total Investments of all other 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. I-9 "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 Amsterdam 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 Amsterdam 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 Amsterdam 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. "PRICING LETTER" means the letter agreement dated as of the date hereof among the Liquidity Providers, the Agent and the Seller. "PRIME RATE" means, for any period, the daily average during such period of (a) the greater of (i) the floating commercial loan rate per annum of ABN AMRO (which rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer by ABN AMRO) 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, 1.00% for Investment of a Liquidity Provider and 2.00% for Investment of the Enhancer. I-10 "PROGRAM LOC" means that certain amended and restated irrevocable transferable letter of credit no. S550115, dated November 3, 1995, issued by the Enhancer at the request of Amsterdam, and each letter of credit issued in substitution or replacement therefor. "PROGRAM UNREIMBURSED DRAW AMOUNT" means the sum of all draws under the Program LOC in connection with this transaction which have not been reimbursed (whether through the payment of cash or the exchange of assets), together with all interest thereon and all other amounts, if any, payable in connection therewith. "PURCHASE" is defined in Section 1.1(a). "PURCHASE AGREEMENT" means the Receivables Purchase Agreement dated as of the date hereof 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 $100,000,000. "PURCHASED PERCENTAGE" means, for any Put, for each Committed Purchaser, its Ratable Share or such lesser percentage as is necessary to prevent the Purchase Price of such Purchaser from exceeding its Unused Commitment (unless, in the case of the Enhancer, it elects not to reduce its Purchased Percentage in whole or in part). "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 the Liquidity Providers, the Enhancer and Amsterdam. "PUT" is defined in Section 2.1(a). "RATABLE SHARE" means, for each Committed Purchaser, such Purchaser's Commitment divided by the Aggregate Commitment. If, however, on the date any Incremental Purchase or payment for any Put is to be made by the Committed Purchasers, the aggregate amount of the outstanding Investment plus Program Unreimbursed Draw Amount of the Enhancer exceeds its Ratable Share of the outstanding Investment and Program Unreimbursed Draw Amount of all Committed I-11 Purchasers, then for purposes of such Incremental Purchase or Put the Ratable Share of each Committed Purchaser shall be replaced with a percentage equal for each Committed Purchaser to (a) its Commitment minus its Investment and Program Unreimbursed Draw Amount before such Purchase or Put (its "EXISTING INVESTMENT") divided by (b) the Aggregate Commitment minus the sum of the Existing Investments of all Committed Purchasers. "RATING AGENCY" means Moody's, S&P and any other rating agency Amsterdam chooses to rate its commercial paper notes. "RATINGS" means the ratings by the Rating Agencies of the indebtedness for borrowed money of Amsterdam. "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 Liquidity Termination Date, the term "RECEIVABLE" shall only include receivables existing on the date such Interim Liquidation commenced or Liquidity Termination Date 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 Liquidity 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 Amsterdam is 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. "REQUIRED LIQUIDITY PROVIDERS" means Liquidity Providers having Liquidity Provider Commitments in excess of 66-2/3% of the Commitment of all Liquidity Providers or, if the Commitments of all Liquidity Providers shall then have been terminated, such Liquidity Providers as together shall then own in excess of sixty-six and two-thirds percent (66-2/3%) of the sum of the Investments for all the Liquidity Providers at such time. For purposes of this definition, prior to the Liquidity Termination Date, any Liquidity Provider that has funded a Collateral Account pursuant to Section 4.12(e) of the Transfer Agreement shall I-12 be deemed to have a Commitment equal to the sum of the amount on deposit in such Collateral Account (less any earnings therein) plus the outstanding amount of such Liquidity Provider's Investment. "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 any Obligor, the amount agreed to from time to time by the Agent and the Seller, unless the Agent, in its discretion or at the direction of the Instructing Group, notifies the Seller of a different limit. "SPECIAL TRANSACTION SUBACCOUNT" means the special transaction subaccount established for this Agreement pursuant to Amsterdam's depositary agreement. "SPECIALLY POOLED PAPER" means the aggregate of all commercial paper notes of Amsterdam 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 (a) for Amsterdam, the Amsterdam Termination Date, (b) for the Liquidity Providers, the Liquidity Termination Date and (c) for the I-13 Enhancer, the earlier of (i) the third (3rd) Business Day following the Liquidity Termination Date and (ii) December 28, 2000. "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 (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 I-14 (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 Amsterdam or of the Committed 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. "TRANSFER AGREEMENT" means The Amsterdam Transfer Agreement dated the date hereof between Amsterdam, ABN AMRO Bank N.V., in its capacity as the Amsterdam Agent, Amsterdam's Letter of Credit Provider and a Liquidity Provider and the Other Persons who become Liquidity Providers thereunder. "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 Committed Purchaser at any time, the difference between its Commitment and its Investment then outstanding. I-15 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. I-16 SCHEDULE II LIQUIDITY PROVIDERS AND COMMITMENTS OF COMMITTED PURCHASERS Name of Liquidity Provider Commitment -------------------------- ---------- ABN AMRO Bank N.V. $91,800,000 Enhancer -------- ABN AMRO Bank N.V. $10,200,000 EXHIBIT A TO RECEIVABLES SALE AGREEMENT FORM OF INCREMENTAL PURCHASE REQUEST ------------, ---- ABN AMRO Bank N.V., as Agent Asset Securitization, Structured Finance Suite 725 135 South LaSalle Street Chicago, Illinois 60674-9135 Attn: Purchaser Agent-Amsterdam Re: Receivables Sale Agreement dated as of December 30, 1999 (the "SALE AGREEMENT") among Swift Receivables Corporation, as Seller, Swift Transportation Corporation, as Initial Collection Agent, ABN AMRO Bank N.V., as Agent, 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 Amsterdam under the Sale Agreement. [IN THE EVENT AMSTERDAM IS UNABLE OR UNWILLING TO MAKE THE REQUESTED INCREMENTAL PURCHASE, THE SELLER HEREBY REQUESTS AN INCREMENTAL PURCHASE OF $______________________ BY THE COMMITTED 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: ---------------------------------- A-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 each such Purchase Date $_________ $_________ $_________ $_________ (each Incremental (A4A) (A4B) (A4C) (A4D) 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 Proposed Allocation among Purchasers Amsterdam $_________ $_________ $_________ $_________ Liquidity Providers $_________ $_________ $_________ $_________ Enhancer $_________ $_________ $_________ $_________
A-3 A6 Tranche Period and, for Committed Purchasers, Tranche Rate(s) 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%. A-4 EXHIBIT B TO RECEIVABLES SALE AGREEMENT FORM OF NOTIFICATION OF ASSIGNMENT TO AMSTERDAM FROM THE COMMITTED PURCHASERS --------------, --- Swift Receivables Corporation 2702 West Encanto Phoenix, AZ 85009 ABN AMRO Bank N.V., as Agent Asset Securitization, Structured Finance Suite 725 _________ 135 South LaSalle Street Chicago, Illinois 60674-9135 Attn: Enhancer-Amsterdam [INSERT NAME AND ADDRESS OF EACH LIQUIDITY PROVIDER] Re: Receivables Sale Agreement dated as of December 30, 1999 (the "SALE AGREEMENT") among Swift Receivables Corporation, as Seller, Swift Transportation Corporation, as Initial Collection Agent, ABN AMRO Bank N.V., as Agent, and the Purchasers thereunder Ladies and Gentlemen: The Agent under the above referenced Sale Agreement hereby notifies each of you that Amsterdam has notified the Agent pursuant to Section 2.2 of the Sale Agreement that it will purchase from the Committed Purchasers on ________________ (the "PURCHASE DATE") that portion of the Committed Purchasers' Investments identified on Schedule I hereto (the "ASSIGNED INTEREST"). As further provided in Section 2.2 of the Sale Agreement, upon payment by Amsterdam to the Agent of the purchase price of such Investments described on Schedule I hereto, effective as of the Purchase Date the assignment by the Committed Purchasers to Amsterdam of the Assigned Interest shall be complete and all payments thereon under the Sale Agreement shall be made to Amsterdam. In accordance with the Sale Agreement, each Committed Purchaser's acceptance of the portion of the purchase price payable to it described on Schedule I hereto constitutes its representation and warranty that it is the legal and beneficial owner of the portion of the Assigned Interest related to its Purchase Interest identified on Schedule I free and clear of any Adverse Claim created or granted by it and that on the Purchase Date it is not subject to a Bankruptcy Event. Very truly yours, ABN AMRO BANK N.V., as Agent By -------------------------------------- Name ------------------------------------ Title ----------------------------------- By -------------------------------------- Name ------------------------------------ Title ----------------------------------- B-2 SCHEDULE I TO NOTIFICATION OF ASSIGNMENT Dated ______________, ____ I. Amount of Committed Purchaser Investment Assigned: $________ II. Information for each Committed Purchaser: PURCHASER PURCHASE INTEREST PURCHASE PRICE* III. Information for Seller: Aggregate amount of purchase price in excess of amount of Investment assigned: $___________. - ---------- * Calculated in accordance with Section 2.2. B-3 EXHIBIT C FORM OF PERIODIC REPORT EXHIBIT D 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: 2702 West Encanto Phoenix, AZ 85009 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 E 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 F LOCK BOXES AND LOCK-BOX BANKS BANK LOCK-BOX NUMBER COLLECTION ACCOUNT Bank One, NA 70406 XX-XXXXX EXHIBIT G 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 Receivables Sale Agreement, dated as of December 30, 1999 (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"), the financial institutions from time to time party thereto (collectively, the "LIQUIDITY PROVIDERS"), ABN AMRO Bank N.V., as provider of the program letter of credit (the "ENHANCER"), and ABN AMRO Bank N.V., as agent (the "AGENT") for Amsterdam, the Liquidity Providers and the Enhancer (collectively, the "PURCHASERS"), the Seller has assigned to the Agent for the benefit of the Purchasers an undivided percentage interest in 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 G-2 the absence of fraud or abuse. Incoming mail 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. G-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: ---------------------------------- G-4 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. Structured Finance, Asset Securitization 135 South LaSalle Street Chicago, Illinois 60674 Attention: Purchaser Agent-Amsterdam Telephone Number: (312) 904-6263 Telecopy Number: (312) 904-6376 Acknowledged and agreed to as of the date first written above: [NAME OF BANK] By: ------------------------------------- Title: ---------------------------------- Address for notice: ------------------------------- ------------------------------- ------------------------------- G-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 December 30, 1999 (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 G-6 EXHIBIT H 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 Receivables Sale Agreement, dated as of December 30, 1999 (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 liquidity providers from time to time party thereto (collectively, the "LIQUIDITY PROVIDERS"), Amsterdam Funding Corporation ("AMSTERDAM") and ABN AMRO Bank N.V., as the provider of the program letter of credit (the "ENHANCER" and together with the Liquidity Providers and Amsterdam, the "PURCHASERS"), 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. 6. The undersigned confirms that Year 2000 remediation efforts are proceeding as scheduled. 7. [INDICATE WHETHER AN AUDITOR, REGULATOR OR THIRD PARTY CONSULTANT OF THE UNDERSIGNED HAS ISSUED A MANAGEMENT LETTER OR OTHER COMMUNICATION REGARDING YEAR 2000 EXPOSURE, PROGRAM OR PROGRESS]. 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 H-2 EXHIBIT I CREDIT AND COLLECTION POLICY EX-10.17 3 PURCHASE AND SALES AGREEMENT ================================================================================ PURCHASE AND SALE AGREEMENT Dated as of December 30, 1999 between SWIFT TRANSPORTATION CORPORATION, AS ORIGINATOR, and SWIFT RECEIVABLES CORPORATION, AS BUYER ================================================================================ TABLE OF CONTENTS SECTION HEADING PAGE - ------- ------- ---- SECTION 1. DEFINITIONS AND RELATED MATTERS.....................................1 Section 1.1. Defined Terms................................................1 Section 1.2. Other Interpretive Matters...................................2 SECTION 2. AGREEMENT TO CONTRIBUTE, PURCHASE AND SELL..........................2 Section 2.1. Purchase and Sale............................................2 Section 2.2. Timing of Contribution, Purchases............................2 Section 2.3. Purchase Price...............................................2 Section 2.4. No Recourse or Assumption of Obligations.....................3 SECTION 3. ADMINISTRATION AND COLLECTION.......................................4 Section 3.1. Originator to Act as Collection Agent........................4 Section 3.2. Deemed Collections...........................................4 Section 3.3. Application of Collections...................................5 Section 3.4. Responsibilities of Originator...............................5 SECTION 4. REPRESENTATIONS AND WARRANTIES......................................5 Section 4.1. Mutual Representations and Warranties........................5 Section 4.2. Additional Representations by Originator.....................6 SECTION 5. GENERAL COVENANTS...................................................7 Section 5.1. Covenants....................................................7 Section 5.2 Organizational Separateness.................................10 SECTION 6. TERMINATION OF PURCHASES...........................................10 Section 6.1. Voluntary Termination.......................................10 Section 6.2. Automatic Termination.......................................11 SECTION 7. INDEMNIFICATION....................................................11 Section 7.1. Originator's Indemnity......................................11 Section 7.2 Indemnification Due to Failure to Consummate Purchase.......12 Section 7.3 Other Costs.................................................12 SECTION 8. MISCELLANEOUS......................................................12 Section 8.1. Amendments, Waivers, etc....................................12 Section 8.2. Assignment of Receivables Purchase Agreement................12 Section 8.3. Binding Effect; Assignment..................................13 Section 8.4. Survival....................................................13 -i- Section 8.5. Costs, Expenses and Taxes...................................13 Section 8.6. Execution in Counterparts; Integration......................13 Section 8.7. Governing Law; Submission to Jurisdiction...................13 Section 8.8. No Proceedings..............................................14 Section 8.9. Loans by Buyer to Originator................................14 Section 8.10. Notice......................................................14 Section 8.11. Entire Agreement............................................14 SIGNATURE.....................................................................14 Exhibit A Purchase Price -ii- THIS PURCHASE AND SALE AGREEMENT dated as of December 30, 1999 (this "AGREEMENT") is between Swift Transportation Corporation, a Nevada corporation ("ORIGINATOR"), and Swift Receivables Corporation, a Delaware corporation ("BUYER"). The parties agree as follows: PRELIMINARY STATEMENTS The Originator now owns, and from time to time hereafter, will own, Receivables. The Originator wishes to sell and assign to Buyer, and Buyer wishes to purchase from the Originator, all of Originator's right, title and interest in and to such Receivables, together with the Related Security and Collections with respect thereto. The Originator and Buyer intend that the transaction contemplated hereby to be a true sale of the Receivables from the Originator to Buyer, providing Buyer with the full benefits of ownership of the Receivables, and the Originator and Buyer do not intend this transaction to be, or for any purpose, to be characterized as, a loan from Buyer to the Originator. Upon each purchase of Receivables from the originator, Buyer will sell undivided interests therein, and in the associated Related Security and Collections pursuant to that certain Receivables Sale Agreement dated as of the date hereof (as the same may, from time to time hereafter be amended, supplemented, restated or otherwise modified, the "SECOND TIER AGREEMENT") among Buyer, Originator, Amsterdam Funding Corporation, the Liquidity Providers party thereto, and ABN AMRO Bank, N.V. as the Enhancer and the Agent. SECTION 1. DEFINITIONS AND RELATED MATTERS. SECTION 1.1. DEFINED TERMS. In this Agreement, unless otherwise specified or defined herein: (a) capitalized terms are used as defined in Schedule I to the Second Tier Agreement, as such agreement may be amended or modified from time to time; and (b) terms defined in Article 9 of the UCC and not otherwise defined herein are used as defined in such Article 9. In addition, the following terms will have the meanings specified below: "AVAILABLE FUNDS" is defined in Section 2.3(b) hereof. "CLOSING DATE" means the date on which this Agreement and the Second Tier Agreement become effective in accordance with their terms. "COLLECTION AGENT FEE" is defined in Section 3.6 of the Second Tier Agreement. "EXCLUDED LOSSES" is defined in Section 7.1 hereof. "INITIAL FUNDING DATE" means the date of the first purchase by Buyer from Originator under this Agreement as approved by the Agent. -1- "SETTLEMENT DATE" means, with respect to any Settlement Period, the twentieth day of the immediately succeeding calendar month (or, if such day is not a Business Day, the next preceding Business Day). "SETTLEMENT PERIOD" means a calendar month (or, in the case of the first Settlement Period, the period from the Initial Funding Date to the end of the calendar month in which the Initial Funding Date occurs). "TRIGGER EVENT" means that (x) the outstanding principal amount of the Subordinated Note exceeds the value of Buyer's interest in the Receivables (determined in accordance with GAAP), and (y) such condition has continued for five Business Days. SECTION 1.2. OTHER INTERPRETIVE MATTERS. In this Agreement, unless otherwise specified: (a) references to any Section or Annex refer to such Section of, or Annex to, this Agreement, and references in any Section or definition to any subsection or clause refer to such subsection or clause of such Section or definition; (b) "HEREIN", "HEREOF", "HERETO", "HEREUNDER" and similar terms refer to this Agreement as a whole and not to any particular provision of this Agreement; (c) "INCLUDING" means including without limitation, and other forms of the verb "TO INCLUDE" have correlative meanings; (d) the word "OR" is not exclusive; and (e) captions are solely for convenience of reference and shall not affect the meaning of this Agreement. SECTION 2. AGREEMENT TO CONTRIBUTE, PURCHASE AND SELL. SECTION 2.1. PURCHASE AND SALE. On the terms and subject to the conditions set forth in this Agreement, Originator hereby sells to Buyer, and Buyer hereby purchases from Originator, all of Originator's right, title and interest in, to and under the Receivables and all proceeds thereof (including all Related Security and Collections with respect thereto), in each case whether now existing or hereafter arising or acquired. SECTION 2.2. TIMING OF CONTRIBUTION, PURCHASES. $10,000 of the Receivables existing at the opening of Originator's business on the Initial Funding Date are hereby contributed by Originator as capital to Buyer as of the Initial Funding Date. All of the remaining Receivables existing at the opening of Originator's business on the Initial Funding Date are hereby sold to Buyer as of the Initial Funding Date. After the Initial Funding Date, each Receivable shall be deemed to have been sold to Buyer immediately (and without further action by any Person) upon the creation of such Receivable. The proceeds with respect to each Receivable (including all Collections with respect thereto) shall be sold at the same time as such Receivable, whether such proceeds (or Collections) exist at such time or arise or are acquired thereafter. SECTION 2.3. PURCHASE PRICE. (a) The aggregate purchase price for the Receivables sold on the Initial Funding Date shall be such amount as agreed upon prior to the Initial Funding Date between Originator and Buyer to be the fair market value of such Receivables on such date, which shall equal the excess of the (i) estimated aggregate outstanding balance of such Receivables over (ii) an amount agreed upon by Buyer and Originator representing the uncertainty of payment and cost of purchase of such Receivables. The purchase price for Receivables subsequently sold during any Settlement Period shall be calculated in accordance with the provisions set forth in Exhibit A hereto. -2- (b) On the Initial Funding Date, Buyer shall pay Originator the purchase price for the Receivables sold on that date. On each Business Day after the Initial Funding Date on which Originator sells any Receivables to Buyer pursuant to the terms of Section 2.1, until the termination of the purchase and sale of Receivables under Section 6 hereof, Buyer shall pay to Originator the purchase price of such Receivables (i) by depositing into such account as Originator shall specify immediately available funds from monies then held by or on behalf of Buyer solely to the extent that such monies do not constitute Collections that are required to be identified or are deemed to be held by the Collection Agent pursuant to the Second Tier Agreement for the benefit of, or required to be distributed to, the Agent or the Purchasers pursuant to the Second Tier Agreement or required to be paid to the Collection Agent as the Collection Agent Fee, or otherwise necessary to pay current expenses of Buyer (in its reasonable discretion) (such available monies, the "AVAILABLE FUNDS") and provided that Originator has paid all amounts then due by Originator hereunder or (ii) by increasing the principal amount owed to Originator under the promissory note (as amended or modified from time to time, the "SUBORDINATED NOTE") executed and delivered by Buyer to the order of Originator as of the Initial Funding Date. The outstanding principal amount owed to Originator under the Subordinated Note may be reduced from time to time as provided in Section 3.2 hereof or by payments made by Buyer from Available Funds, PROVIDED that Originator has paid all amounts then due by Originator hereunder. Originator shall make all appropriate record keeping entries with respect to amounts due to Originator under the Subordinated Note to reflect payments by Buyer thereon and increases of the principal amount thereof, and Originator's books and records shall constitute rebuttable presumptive evidence of the principal amount of and accrued interest owed to Originator under the Subordinated Note. The Subordinated Note shall bear interest for each day at an annual rate equal to the rate published in the Wall Street Journal in the Money Rates section under the heading "Prime Rate" or, if such rate is not so published for any day the rate published for the next preceding day for which a rate is so published (the "Prime Rate"), less one percent (1%). SECTION 2.4. NO RECOURSE OR ASSUMPTION OF OBLIGATIONS. Except as specifically provided in this Agreement, the contribution, purchase and sale of Receivables under this Agreement shall be without recourse to Originator. Originator and Buyer intend the transactions hereunder to constitute true sales of Receivables by Originator to Buyer, and that this transaction shall constitute a "sale of accounts" (as such term is used in Article 9 of the UCC), which sale is absolute and irrevocable, and provides Buyer with the full risks and benefits of ownership of the Receivables (such that the Receivables would not be property of Originator's estate in the event of Originator's bankruptcy). If, however, despite the intention of the parties, the conveyances provided for in this Agreement are determined not to be "TRUE SALES" of Receivables from Originator to Buyer, then this Agreement shall also be deemed to be a "SECURITY AGREEMENT" within the meaning of Article 9 of the UCC and Originator hereby grants to Buyer a "SECURITY INTEREST" within the meaning of Article 9 of the UCC in all of Originator's right, title and interest in and to such Receivables (including the proceeds thereof), now existing and thereafter created, to secure a loan in an amount equal to the aggregate purchase prices therefor and each of Originator's other payment obligations under this Agreement. -3- Buyer shall not have any obligation or liability with respect to any Receivable, nor shall Buyer have any obligation or liability to any Obligor or other customer or client of Originator (including any obligation to perform any of the obligations of Originator under any Receivable). SECTION 2.5 TRANSFER OF RECORDS. In connection with the purchase of the Receivables hereunder, the Originator hereby sells, transfers, assigns and otherwise conveys to Buyer all of Originator's right and title to and interest in the Records relating to all Receivables sold hereunder, without the need for any further documentation in connection with any purchase of Receivables, subject, however, to the requirements of A.R.S. ss. 6-1401 et. seq. In connection with such transfer, Originator hereby grants to each of Buyer, the Agent and the Collection Agent an irrevocable, non-exclusive license to use, without royalty or payment of any kind, all software used by such Originator to account for the Receivables, to the extent necessary to administer the Receivables, whether such software is owned by such Originator or is owned by others and used by such Originator under license agreements with respect thereto, provided that should the consent of any licensor of Originator to such grant of the license described herein be required, Originator hereby agrees that upon the request of Buyer (or the Agent as Buyer's assignee), Originator will use its reasonable efforts to obtain the consent of such third party licensor. The license granted hereby shall be irrevocable, and shall terminate on the date this Agreement terminates in accordance with its terms. (a) Originator (i) shall take such action requested by Buyer and/or the Agent (as Buyer's assignee), from time to time hereafter, that may be necessary or appropriate to ensure that Buyer and its assignees under the Second Tier Agreement have an enforceable ownership interest in the Records relating to the Receivables purchased from Originator, subject, however, to the requirements of A.R.S. ss. 6-1401 et seq. and (ii) shall use its reasonable efforts to ensure that Buyer, the Agent and the Collection Agent each have an enforceable right (whether by license or sublicense or otherwise) to use all of the computer software used to account for the Receivables and/or to recreate such Records. SECTION 3. ADMINISTRATION AND COLLECTION. SECTION 3.1. ORIGINATOR TO ACT AS COLLECTION AGENT. Notwithstanding the sale of Receivables pursuant to this Agreement, Originator shall continue to be responsible for the servicing, administration and collection of the Receivables, all on the terms set out in (and subject to any rights to terminate Originator as Collection Agent pursuant to) the Second Tier Agreement. SECTION 3.2. DEEMED COLLECTIONS. If on any day the outstanding balance of a Receivable is reduced or cancelled as a result of any defective or rejected services or damaged cargo, 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, (i) Originator shall be deemed to have received on such day a Collection on such Receivable in the amount of such reduction or cancellation and (ii) such Receivable shall thereupon be, or be deemed to be reconveyed to Originator. If on any day any representation, warranty, covenant or other agreement of Originator related to a Receivable is not true or is not satisfied, (i) Originator shall be deemed to have received on such day a Collection in the -4- amount of the outstanding balance of such Receivable and (ii) such Receivable shall thereupon be, or be deemed to be reconveyed to Originator. Not later than the last day of each month subsequent to the Closing Date that Originator is deemed pursuant to this Section 3.2 to have received any Collections, Originator shall transfer to Buyer, in immediately available funds, or by setoff or adjustment of accounts between Originator and Buyer by way of a credit in favor of Buyer, the amount of any such Deemed Collections; PROVIDED, HOWEVER, that if no such payment or adjustment is required under the Second Tier Agreement, Buyer and Originator may agree to reduce the outstanding principal amount of the Subordinated Note in lieu of all or part of such transfer. To the extent that Buyer subsequently collects any payment with respect to any such Receivable, Buyer shall pay Originator an amount equal to the amount so collected, or an appropriate adjustment of the accounts between Originator and Buyer, in favor of Originator, shall be made, not later than the last day of the month after Buyer has so collected any such Receivable. SECTION 3.3. APPLICATION OF COLLECTIONS. Any payment by an Obligor in respect of any indebtedness owed by it to Originator shall, except as otherwise specified by such Obligor (including by reference to a particular invoice), or required by the related contracts or law, be applied, FIRST, as a Collection of any Receivable or Receivables then outstanding of such Obligor in the order of the age of such Receivables, starting with the oldest of such Receivables, and, SECOND, to any other indebtedness of such Obligor to Originator. SECTION 3.4. RESPONSIBILITIES OF ORIGINATOR. Originator shall pay when due all Taxes payable in connection with the Receivables or their creation or satisfaction. Originator shall perform all of its obligations under agreements related to the Receivables to the same extent as if interests in the Receivables had not been transferred hereunder. The Agent's or any Purchaser's exercise of any rights hereunder or under the Second Tier Agreement shall not relieve Originator from such obligations. Neither the Agent nor any Purchaser shall have any obligation to perform any obligation of Originator or any other obligation (other than the obligation to act in good faith and with commercial reasonableness) or liability in connection with the Receivables. SECTION 4. REPRESENTATIONS AND WARRANTIES. SECTION 4.1. MUTUAL REPRESENTATIONS AND WARRANTIES. Each of Originator and Buyer represents and warrants to the other as follows: (a) EXISTENCE AND POWER. It is a corporation, duly organized, validly existing and in good standing under the laws of its state of organization and has all company 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 a material adverse effect on (i) its ability to perform its obligations under, or the enforceability of, any Transaction Document to which it is a party, (ii) its business or financial condition, (iii) the interests of Buyer or its assigns under the Transaction Documents or (iv) the enforceability or collectibility of a material portion of the Receivables. -5- (b) AUTHORIZATION AND NO CONTRAVENTION. Its execution, delivery and performance of each Transaction Document to which it is a party (i) are within its powers, (ii) have been duly authorized by all necessary company action, (iii) do not contravene or constitute a default under: (A) any applicable law, rule or regulation, (B) its charter or by-laws or (C) any material agreement, order or other instrument to which it is a party or its property is subject and (iv) will not result in any Adverse Claim on any Receivable, Related Security or Collection or give cause for the acceleration of any of its indebtedness. (c) NO CONSENT REQUIRED. Other than the filing of financing statements no approval, authorization or other action by, or filings with, any Governmental Authority or other Person is required in connection with the execution, delivery and performance by it of any Transaction Document to which it is a party or any transaction contemplated thereby. (d) BINDING EFFECT. Each Transaction Document to which it 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. SECTION 4.2. ADDITIONAL REPRESENTATIONS BY ORIGINATOR. Originator further represents and warrants to Buyer as follows: (a) PERFECTION OF OWNERSHIP INTEREST. Immediately preceding its sale of Receivables to Buyer, Originator was the owner of, and effectively sold, such Receivables to Buyer, free and clear of any Adverse Claim, such that upon the sale, assignment and transfer of such Receivables. Buyer shall own the Receivables free of any Adverse Claim, other than the interests of the Purchasers (through the Agent) therein that are created by the Second Tier Agreement. (b) ACCURACY OF INFORMATION. All information furnished by Originator in writing in connection with any Transaction Document, or any transaction contemplated thereby, is true and accurate in all material respects (and was not incomplete by omitting to state a material fact necessary to make such information not materially misleading). (c) NO ACTIONS, SUITS. There are no actions, suits or other proceedings (including matters relating to environmental liability) pending or threatened against or affecting Originator or any of its properties, that (i) if adversely determined (individually or in the aggregate), may have a material adverse effect on the financial condition of the Originator or on the collectibility of a material portion of the Receivables or (ii) involve any Transaction Document or any transaction contemplated thereby. Originator is not 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 Originator or (ii) the collectibility of a material portion of the Receivables. -6- (d) NO MATERIAL ADVERSE CHANGE. Since September 30, 1999, there has been no material adverse change in (i) the Originator's financial condition, business, operations or prospects or (ii) Originator's ability to perform its obligations under any Transaction Document. (e) ACCURACY OF EXHIBITS. All information on Exhibits D and E of the Second Tier Agreement (to the extent describing Originator) is true and complete, subject to any changes permitted by, and notified to the Agent in accordance with the Second Tier Agreement. (f) SALES BY ORIGINATOR. Each sale by Originator to Buyer of an interest in Receivables 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 Originator to Buyer. (g) YEAR 2000 PROBLEM. Originator has reviewed the areas within its business and operations which could be adversely affected by, and has developed or is developing a program to address on a timely basis, the "YEAR 2000 PROBLEM" (that is, the risk that computer applications used by Originator and its Subsidiaries may be unable to recognize and perform properly date-sensitive functions involving certain dates prior to and any date on or after December 31, 1999), and has made related appropriate inquiry of material supplies and vendors. Based on such review and program, Originator believes the Year 2000 Problem will not have a material adverse effect on the Originator. SECTION 5. GENERAL COVENANTS. SECTION 5.1. COVENANTS. Originator hereby covenants and agrees to comply with the following covenants and agreements, unless Buyer (with the consent of the Agent) shall otherwise consent: (a) FINANCIAL REPORTING. Originator will maintain a system of accounting established and maintained in accordance with GAAP and will furnish to Buyer: (i) Within 90 days after each fiscal year of the Originator 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 (but only if same is required by Agent, otherwise such financial statements need only be certified by Originator's chief financial officer) and prepared on a consolidated basis in conformity with GAAP; (ii) Within 45 days after each (except the last) fiscal quarter of each fiscal year of the Originator, 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 the chief -7- financial officer and prepared in a manner consistent with the financial statements described in part (A) of clause (i) of this Section 5.1(a); (iii) copies of all financial statements, reports and returns which it shall send to its stockholders; (iv) Promptly upon becoming available, a copy of each report or proxy statement filed by the Originator (or Originator's Parent, as the case may be) with the Securities Exchange Commission; and (v) with reasonable promptness such other information (including non-financial information) as Buyer may reasonably request. (b) NOTICES. Promptly and in any event within five Business Days after a Responsible Officer of Originator obtains knowledge of any of the following, Originator will notify Buyer and provide a description of: (i) POTENTIAL TERMINATION EVENTS. The occurrence of any Potential Termination Event; (ii) REPRESENTATIONS AND WARRANTIES. The failure of any representations or warranty herein to be true when made in any material respect; (iii) DOWNGRADING. The downgrading, withdrawal or suspension of any rating by any rating agency of any indebtedness of the Originator; (iv) LITIGATION. The institution of any litigation, arbitration proceeding or governmental proceeding which is reasonably likely to be material to the Originator or the collectibility or quality of a material portion of the Receivables; or (v) JUDGMENTS. The entry of any judgment or decree against the Originator (or any Affiliate of the Originator) if the aggregate amount of all judgments then outstanding against the Originator (or any Affiliate of the Seller or the Originator) exceeds $1,000,000. (c) CONDUCT OF BUSINESS. The Originator will 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 with all laws, regulations, judgments and other directions or orders imposed by any Governmental Authority to which the Seller or any Receivable, any Related Security or Collection may be subject. -8- (e) FURNISHING INFORMATION AND INSPECTION OF RECORDS. Originator will furnish to Buyer such information concerning the Receivables as Buyer may reasonably request, subject to any confidentiality restrictions. Originator will permit, at any time during regular business hours, Buyer (or any representatives thereof) (i) to examine and make copies of all Records, (ii) to visit the offices and properties of Originator or office of any other Person for the purpose of examining the Records and (iii) to discuss matters relating hereto with any of Originator's officers, directors, employees or independent public accountants having knowledge of such matters. Once a year, Buyer may (at the expense of Originator) have an independent public accounting firm (which firm may be the same public accounting firm utilized by Originator) conduct an audit of the Records or make test verification of the Receivables and Collections in connection with the audit and test verifications conducted on behalf of the Agent under the Second Tier Agreement, provided, however, that Buyer shall not request such independent audit unless the Agent requires same pursuant to the Second Tier Agreement. (f) KEEPING RECORDS. (i) Originator will 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). Originator will give Buyer prior notice of any material change in such administrative operating procedures. (ii) Originator will, (A) at all times from and after the date hereof, create as legend screen which automatically appears on its computer when its accounts receivable software program is accessed from any computer which conspicuously describes Buyer's interest in the Receivables, the Related Security and the Collections, and shall clearly and conspicuously mark any other master accounts receivable books and records which it maintains, if any, in order to reflect Buyer's interest in the Receivables. (g) PERFECTION. (i) The Originator will at its expense, promptly execute and deliver all instruments and documents and take all action necessary or requested by the Buyer (including the execution and filing of financing or continuation statements, amendments thereto or assignments thereof) to enable the Buyer to exercise and enforce all its rights against the Receivables and to vest and maintain vested in the Buyer a valid, first priority perfected security interest in the Receivables, the Collections, 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). To the extent permitted by applicable law, the Buyer will be permitted to sign and file any continuation statements, amendments thereto and assignments thereof without the Buyer's signature. (ii) The Buyer will not change its name, identity or corporate structure or relocate its chief executive office or the Records except after thirty (30) days advance notice to the Buyer and the delivery to the Buyer of all financing statements, instruments and other documents (including direction letters) requested by the Buyer. -9- (iii) The Originator will at all times maintain its chief executive office within the State of Arizona. (h) PAYMENTS ON RECEIVABLES, ACCOUNTS. The Originator will at all times instruct all Obligors to deliver payments on the Receivables to a Lock-Box. If any such payments or other Collections are received by the Originator, it shall hold such payments in trust for the benefit of the Buyer and promptly (but in any event within two Business Days after receipt) remit such funds at the direction of the Buyer. The Originator will cause each Lock-Box Bank to comply with the terms of each applicable Lock-Box Letter. After the occurrence of a Termination Event or the Liquidity Termination Date, the Originator will not, and will not permit any Collection Agent or other Person to, commingle Collections or other funds to which the Buyer is entitled with any other funds. The Originator shall only add a Lock-Box Bank, Lock-Box, or Lock-Box Account to those listed on Exhibit F of the Second Tier Agreement if the Buyer 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 G of the Second Tier Agreement (with such changes as are acceptable to the Buyer) from any new Lock-Box Bank. The Originator shall only terminate a Lock-Box Bank or Lock-Box, or close a Lock-Box Account, upon 30 days advance notice to the Buyer. (i) SALES AND ADVERSE CLAIMS RELATING TO RECEIVABLES. Except as otherwise provided herein, the Originator will not (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. (j) EXTENSION OR AMENDMENT OF RECEIVABLES. Except as otherwise permitted in the Second Tier Agreement and then subject to Section 1.5 of the Second Tier Agreement, the Originator will not extend, amend, rescind or cancel any Receivable. (k) PERFORMANCE OF DUTIES. Originator will perform its duties or obligations in accordance with the provisions of each of the Transaction Documents to which it is a party. Originator (at its expense) will (i) fully and timely perform in all material respects all agreements, if any, 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 Buyer in the Receivables, Collections or Lock-Box Accounts. SECTION 5.2. ORGANIZATIONAL SEPARATENESS. Originator agrees not to take any action that would cause Buyer to violate its certificate of incorporation and by-laws. Buyer agrees to conduct its business in a manner consistent with its certificate of incorporation and by-laws. SECTION 6. TERMINATION OF PURCHASES. SECTION 6.1. VOLUNTARY TERMINATION. The purchase and sale of Receivables pursuant to this Agreement may be terminated by either party, upon at least five Business Days' prior written notice to the other party. -10- Section 6.2. AUTOMATIC TERMINATION. The purchase and sale of Receivables pursuant to this Agreement shall automatically terminate upon the occurrence of (i) a Bankruptcy Event with respect to Originator, (ii) a Trigger Event, or (iii) the Liquidity Termination Date. SECTION 7. INDEMNIFICATION. SECTION 7.1. ORIGINATOR'S INDEMNITY. Without limiting any other rights any Person may have hereunder or under applicable law, Originator hereby indemnifies and holds harmless Buyer and its officers, managers, agents and employees (each an "INDEMNIFIED PARTY") from and against any and all damages, losses, claims, liabilities, penalties, Taxes, costs and expenses (including reasonable attorneys' fees and court costs actually incurred) (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, whether arising by reason of the acts to be performed by Originator hereunder or otherwise, excluding only Indemnified Losses ("EXCLUDED LOSSES") to the extent (a) a final judgment of a court of competent jurisdiction holds such Indemnified Losses resulted solely from gross negligence or willful misconduct of the Indemnified Party seeking indemnification, (b) solely due to the credit risk or financial inability to pay of the Obligor and for which reimbursement would constitute recourse to Originator or the Collection Agent for uncollectible Receivables or (c) such Indemnified Losses include Taxes on, or measured by, the overall net income of the Buyer. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, Originator shall indemnify each Indemnified Party for Indemnified Losses relating to or resulting from: (i) any representation or warranty made by or on behalf of Originator under or in connection with this Agreement, any Periodic Report or any other information or report delivered by Originator pursuant to the Transaction Documents, which shall have been false or incorrect in any material respect when made or deemed made; (ii) the failure by Originator 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 Originator to vest and maintain vested in Buyer, a perfected ownership or security interest in the Receivables and the other property conveyed pursuant hereto, free and clear of any Adverse Claim; (iv) any commingling of funds to which Buyer 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 or financial inability of the Obligor to pay) of the Obligor to the payment of any Receivable, or any other claim resulting -11- 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 Originator to perform its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document to which Originator is a party; or (viii) 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 Originator's obligations under the Transaction Documents. SECTION 7.2. INDEMNIFICATION DUE TO FAILURE TO CONSUMMATE PURCHASE. Originator will indemnify Buyer on demand and hold it harmless against all costs (including, without limitation, breakage costs) and expenses incurred by Buyer resulting from any failure by Originator to consummate a purchase after Buyer has requested a transfer of the applicable Receivables to the Purchasers under the terms of the Second Tier Agreement. SECTION 7.3. OTHER COSTS. If Buyer becomes obligated to compensate the Purchasers under the Second Tier Agreement or any other Transaction Document for any costs or indemnities pursuant to any provision of the Second Tier Agreement or any other Transaction Document, then Originator shall, on demand, reimburse Buyer for the amount of any compensation. SECTION 8. MISCELLANEOUS. SECTION 8.1. AMENDMENTS, WAIVERS, ETC. No amendment of this Agreement or waiver of any provision hereof or consent to any departure by either party therefrom shall be effective without the written consent of the party that is sought to be bound. Any such waiver or consent shall be effective only in the specific instance given. No failure or delay on the part of either party to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law. Originator agrees that the Purchasers may rely upon the terms of this Agreement, and that the terms of this Agreement may not be amended, nor any material waiver of those terms be granted, without the consent of the Agent; PROVIDED that Originator and Buyer may agree to an adjustment of the purchase price for any Receivable without the consent of the Agent provided that the purchase price paid for any Receivable shall be an amount not less than adequate consideration that represents fair value for such Receivable. SECTION 8.2. ASSIGNMENT OF RECEIVABLES PURCHASE AGREEMENT. Originator hereby acknowledges that on the date hereof Buyer has collaterally assigned for security purposes all of its right, title and interest in, to and under this -12- Agreement to the Agent for the benefit of the Purchasers pursuant to the Second Tier Agreement and that the Agent and the Purchasers are third party beneficiaries hereof. Originator hereby further acknowledges that after the occurrence and during the continuation of a Termination Event all provisions of this Agreement shall inure to the benefit of the Agent and the Purchasers, including the enforcement of any provision hereof to the extent set forth in the Second Tier Agreement, but that neither the Agent nor any Purchaser shall have any obligations or duties under this Agreement. No purchases shall take place hereunder at any time that the Agent has exercised its right to enforce Buyer's rights hereunder pursuant to Section 1.8 of the Second Tier Agreement. Originator hereby further acknowledges that the execution and performance of this Agreement are conditions precedent for the Agent and the Purchasers to enter into the Second Tier Agreement and that the agreement of the Agent and Purchasers to enter into the Second Tier Agreements will directly or indirectly benefit Originator and constitutes good and valuable consideration for the rights and remedies of the Agent and each Purchaser with respect hereto. SECTION 8.3. BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns and shall also, to the extent provided herein, inure to the benefit of the parties to the Second Tier Agreement. Originator acknowledges that Buyer's rights under this Agreement are being assigned to the Agent under the Second Tier Agreement and consents to such assignment and to the exercise of those rights directly by the Agent, to the extent permitted by the Second Tier Agreement. SECTION 8.4. SURVIVAL. The rights and remedies with respect to any breach of any representation and warranty made by Originator or Buyer pursuant to Section 4 and the indemnification provisions of Section 7 shall survive any termination of this Agreement. SECTION 8.5. COSTS, EXPENSES AND TAXES. In addition to the obligations of Originator under Section 7, each party hereto agrees to pay on demand all costs and expenses incurred by the other party and its assigns (other than Excluded Losses) in connection with the enforcement of, or any actual or claimed breach of, this Agreement, including the reasonable fees and expenses of counsel to any of such Persons incurred in connection with any of the foregoing or in advising such Persons as to their respective rights and remedies under this Agreement in connection with any of the foregoing. Originator also agrees to pay on demand all stamp and other taxes and fees payable or determined to be payable in connection with the execution, delivery, filing, and recording of this Agreement. SECTION 8.6. EXECUTION IN COUNTERPARTS; INTEGRATION. This Agreement may be executed in any number of counterparts and by the different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same Agreement. SECTION 8.7. GOVERNING LAW. This Agreement shall be governed by, and construed in accordance with, the internal laws (and not the law of conflicts) of the State of Arizona. -13- SECTION 8.8. NO PROCEEDINGS. Originator agrees, for the benefit of the parties to the Second Tier Agreement, that it will not institute against Buyer, or join any other Person in instituting against Buyer, any proceeding of a type referred to in the definition of Bankruptcy Event until one year and one day after no investment, loan or commitment is outstanding under the Second Tier Agreement. In addition, all amounts payable by Buyer to Originator pursuant to this Agreement shall be payable solely from funds available for that purpose (after Buyer has satisfied all obligations then due and owing under the Second Tier Agreement). SECTION 8.9. LOANS BY BUYER TO ORIGINATOR. Buyer may make loans to Originator from time to time if so agreed between such parties and to the extent that Buyer has funds available for that purpose after satisfying its obligations under this Agreement and the Second Tier Agreement. Any such loan shall be payable upon demand (and may be prepaid with penalty or premium) and shall bear interest at such rate as Buyer and Originator shall from time to time agree. SECTION 8.10. 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 in the Second Tier Agreement or at such other address or telecopy number as such Person may specify, and effective when received at the address specified by such Person. SECTION 8.11. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding of the parties thereto concerning the subject matter thereof. Any previous or contemporaneous agreements, whether written or oral, concerning such matters are superseded thereby. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written. SWIFT TRANSPORTATION CORPORATION, as Originator By ------------------------------------- Name: ------------------------------- Title: ------------------------------ SWIFT RECEIVABLES CORPORATION, as Buyer By ------------------------------------- Name: ------------------------------- Title: ------------------------------ -14- EXHIBIT A PURCHASE PRICE EX-11 4 SCHEDULE OF COMPUTATION OF NET EARNINGS EXHIBIT 11 SWIFT TRANSPORTATION CO., INC. & SUBSIDIARIES Schedule of Computation of Net Earnings Per Share (in thousands, except per share amounts) Year Ended December 31, ------------------------------- 1999 1998 1997 ------- ------- ------- Net earnings $66,831 $55,511 $41,644 ======= ======= ======= Weighted average shares: Common shares outstanding 64,079 64,005 63,363 Common equivalent shares issuable upon exercise of employee stock options 1,211 1,245 1,413 ------- ------- ------- Diluted weighted average shares 65,290 65,250 64,776 ======= ======= ======= Basic earnings per share $ 1.04 $ .87 $ .66 ======= ======= ======= Diluted earnings per share $ 1.02 $ .85 $ .64 ======= ======= ======= EX-22 5 SUBSIDIARIES OF REGISTRANT EXHIBIT 22 SUBSIDIARIES OF THE REGISTRANT 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 EX-23 6 CONSENT OF KPMG LLP EXHIBIT 23 INDEPENDENT AUDITORS' CONSENT The Board of Directors Swift Transportation Co., Inc.: We consent to incorporation by reference in the Registration Statements No. 33-66034 and 333-20651 on Form S-3 and in the Registration Statements No. 33-85940, 33-85942, 33-85944 and 333-81403 on Form S-8 of Swift Transportation Co., Inc. of our report dated February 25, 2000, relating to the consolidated balance sheets of Swift Transportation Co., Inc. and subsidiaries as of December 31, 1999 and 1998, and the related consolidated statements of earnings, stockholders' equity, and cash flows for each of years in the three-year period ended December 31, 1999, which report appears in the December 31, 1999 annual report on Form 10-K of Swift Transportation Co., Inc. /s/ KPMG LLP Phoenix, Arizona March 17, 2000 EX-27 7 FINANCIAL DATA SCHEDULE
5 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE FINANCIAL STATEMENTS AS OF DECEMBER 31, 1999 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH STATEMENTS 863557 SWIFT TRANSPORTATION CO., INC. 1,000 US DOLLARS 12-MOS DEC-31-1999 JAN-01-1999 DEC-31-1999 1 9,969 0 153,418 0 7,410 203,441 754,268 172,936 794,574 115,413 0 0 0 66 394,133 794,574 1,061,234 1,061,234 0 944,793 (734) 0 9,574 107,601 40,770 66,831 0 0 0 66,831 1.04 1.02
EX-99 8 SAFE HARBOR COMPLIANCE STATEMENT EXHIBIT 99 PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995 SAFE HARBOR COMPLIANCE STATEMENT FOR FORWARD-LOOKING STATEMENTS In passing the Private Securities Litigation Reform Act of 1995 (the "PSLRA"), Congress encouraged public companies to make "forward-looking statements"1 by creating a safe-harbor to protect companies from securities law liability in connection with forward-looking statements. Swift Transportation Co., Inc. ("Swift") intends to qualify both its written and oral forward-looking statements for protection under the PSLRA. To qualify oral forward-looking statements for protection under the PSLRA, a readily available written document must identify important factors that could cause actual results to differ materially from those in the forward-looking statements. Swift provides the following information in connection with its continuing effort to qualify both oral and written forward-looking statements for the safe harbor protection of the PSLRA. Important factors currently known to management that could cause actual results to differ materially from those in forward-looking statements include, but are not limited to, the following: (i) excess capacity in the trucking industry; (ii) significant increases or rapid fluctuations in fuel prices, interest rates, fuel taxes, tolls, license and registration fees and insurance premiums, to the extent not offset by increases in freight rates or fuel surcharges; (iii) difficulty in attracting and retaining qualified drivers and owner operators, especially in light of the current shortage of qualified drivers and owner operators; (iv) recessionary economic cycles and downturns in customers' business cycles, particularly in market segments and industries (such as retail and manufacturing) in which the Company has a significant concentration of customers; (v) seasonal factors such as harsh weather conditions that increase operating costs; (vi) increases in driver compensation to the extent not offset by increases in freight rates; (vii) the inability of the Company to continue to secure acceptable financing arrangements; (viii) the ability of the Company to continue to identify and combine acquisition candidates that will result in successful combinations; (ix) an unanticipated increase in the number of claims for which the Company is self insured; and (x) a significant reduction in or termination of the Company's trucking services by a key customer. Forward-looking statements express expectations of future events. All forward-looking statements are inherently uncertain as they are based on various expectations and assumptions concerning future events and they are subject to numerous known and unknown risks and uncertainties which could cause actual events or results to differ materially from those projected. Due to these inherent uncertainties, the investment community is urged not to place undue reliance on forward-looking statements. In addition, Swift undertakes no obligation to update or revise forward-looking statements to reflect changed assumptions, the occurrence of unanticipated events or changes to projections over time. - ---------- (1) "Forward-looking statements" can be identified by use of words such as "expect," "believe," "estimate," "project," "forecast," "anticipate," "plan," and similar expressions. -----END PRIVACY-ENHANCED MESSAGE-----