First Amendment to Amended and Restated Receivables Sale Agreement
Exhibit 10.1
This First Amendment (the “Amendment”), dated as of August 21, 2006, is
entered into among Swift Receivables Corporation (the “Seller”), Swift
Transportation Corporation (the “Collection Agent”), Amsterdam Funding Corporation
(“Amsterdam”) as a Conduit Purchaser, Three Pillars Funding LLC (“Three Pillars”), as a
Conduit Purchaser, ABN AMRO Bank N.V., as agent for Amsterdam and the Purchasers (the
“Agent”), SunTrust Capital Markets, as the Three Pillars Purchaser Agent, the other
Purchaser Agents from time to time party hereto, the related bank purchasers from time to
time party hereto and the other conduit purchasers from time to time party hereto;
Witnesseth:
Whereas, the Seller, Collection Agent, Amsterdam, Three Pillars, the Three
Pillars Purchaser Agent and Agent have heretofore executed and delivered an Amended and
Restated Receivables Sale Agreement dated as of December 21, 2005 (as amended,
supplemented or otherwise modified through the date hereof, the “Sale Agreement”); and
Whereas, the parties hereto desire to amend the Sale Agreement as provided herein;
Now, Therefore, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree that the Sale Agreement
shall be and is hereby amended as follows:
Section 1. The defined term “Charge-Off Ratio” appearing in Schedule I to the Sale
Agreement is hereby amended in its entirety and as so amended shall read as follows:
“Charge-Off Ratio” means, for any calendar month, a
fraction (expressed as a percentage) the numerator of which is
the outstanding balance of Charge-Offs during such calendar
month and the denominator of which is the amount of Credit
Sales generated during such calendar month.
Section 2. Clause (f) of the defined term “Termination Event” appearing in Schedule
I to the Sale Agreement is hereby amended in its entirety and as so amended shall read as
follows:
(f) the Delinquency Ratio exceeds 6.5%, the Default Ratio
exceeds 10%, the Dilution Ratio exceeds 5%, the Charge-Off
Ratio exceeds 1.5% or the Turnover Ratio exceeds 60 days; or
Section 3. The following defined term is hereby added to Schedule I to the Sale
Agreement in the correct alphabetical order as follows:
“Credit Sales” means, for any period, the aggregate
amount of Receivables originated by the Originator during such
period.
Section 4. This Amendment shall become effective once the Agent has received (i)
counterparts hereof executed by the Seller, Collection Agent, each Purchaser and the Agent
and (ii) the acknowledgment and consent in the form set forth below duly executed and
delivered by the Swift Transportation Co., Inc.
Section 5. To induce the Agent and the Purchasers to enter into this Amendment, the
Seller and Collection Agent represent and warrant to the Agent and the Purchasers that:
(a) the representations and warranties contained in the Transaction Documents, are true
and correct in all material respects as of the date hereof with the same effect as though
made on the date hereof (it being understood and agreed that any representation or
warranty which by its terms is made as of a specified date shall be required to be true
and correct in all material respects only as of such specified date); (b) no Potential
Termination Event exists; (c) this Amendment has been duly authorized by all necessary
corporate proceedings and duly executed and delivered by each of the Seller and the
Collection Agent, and the Sale Agreement, as amended by this Amendment, and each of the
other Transaction Documents are the legal, valid and binding obligations of the Seller
and the Collection Agent, enforceable against the Seller and the Collection Agent in
accordance with their respective terms, except as enforceability may be limited by
bankruptcy, insolvency or other similar laws of general application affecting the
enforcement of creditors’ rights or by general principles of equity; and (d) no consent,
approval, authorization, order, registration or qualification with any governmental
authority is required for, and in the absence of which would adversely effect, the legal
and valid execution and delivery or performance by the Seller or the Collection Agent of
this Amendment or the performance by the Seller or the Collection Agent of the Sale
Agreement, as amended by this Amendment, or any other Transaction Document to which they
are a party.
Section 6. This Amendment may be executed in any number of counterparts and by the
different parties on separate counterparts and each such counterpart shall be deemed to
be an original, but all such counterparts shall together constitute but one and the same
Amendment.
Section 7. Except as specifically provided above, the Sale Agreement and the other
Transaction Documents shall remain in full force and effect and are hereby ratified and
confirmed in all respects. The execution, delivery, and effectiveness of this Amendment
shall not operate as a waiver of any right, power, or remedy of any Agent or any
Purchaser under the Sale Agreement or any of the other Transaction Documents, nor
constitute a waiver or modification of any provision of any of the other Transaction
Documents. All defined terms used herein and not defined herein shall have the same
meaning herein as in the Sale Agreement. The Seller agrees to pay on demand all costs and
expenses (including reasonable fees and expenses of counsel) of or incurred by the Agent
and each Purchaser Agent in connection with the negotiation, preparation, execution and
delivery of this Amendment.
Section 8. This Amendment and the rights and obligations of the parties hereunder
shall be construed in accordance with and be governed by the law of the State of
Illinois.
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In Witness Whereof, the parties have caused this Amendment to be executed and delivered by
their duly authorized officers as of the date first above written.
ABN AMRO Bank N.V., as the Agent, as the Related
Bank Purchaser for Amsterdam and as the
Amsterdam Purchaser Agent |
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| By: | ||||
| Title: | ||||
| By: | ||||
| Title: | ||||
| Amsterdam Funding Corporation | ||||
| By: | ||||
| Title: | ||||
S-1
| SunTrust Capital Markets,
as the Three Pillars Purchaser Agent |
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| By: | ||||
| Title: | ||||
| Three Pillars Funding LLC | ||||
| By: | ||||
| Title: | ||||
S-2
| Swift Receivables Corporation | ||||
| By: | ||||
| Title: | ||||
| Swift Transportation Corporation | ||||
| By: | ||||
| Title: | ||||
S-3
Guarantor’s Acknowledgment and Consent
The undersigned, Swift Transportation Co., Inc., has heretofore executed and
delivered the Amended and Restated Limited Guaranty dated as of December 21, 2005 (the
“Guaranty”) and hereby consents to the First Amendment to the Sale Agreement as set forth
above and confirms that the Guaranty and all of the undersigned’s obligations thereunder
remain in full force and effect. The undersigned further agrees that the consent of the
undersigned to any further amendments to the Sale Agreement shall not be required as a
result of this consent having been obtained, except to the extent, if any, required by the
Guaranty referred to above.
| Swift Transportation Co., Inc. | ||||||
| By: | ||||||
| Title: | ||||||
