MODIFICATION AGREEMENT
BY THIS MODIFICATION AGREEMENT (the "Agreement"), made and entered into
as of the 25th day of September, 1997, XXXXX FARGO BANK, N.A., as administrative
agent for the Banks listed in the hereinafter defined Credit Agreement (the
"Banks") and as Issuing Bank, and SWIFT TRANSPORTATION CO., INC., an Arizona
corporation (the "Borrower"), in consideration of the mutual covenants herein
contained and other good and valuable consideration. the receipt and sufficiency
of which is hereby acknowledged, hereby confirm and agree as follows:
SECTION 1. RECITALS.
1.1 Borrower and the Administrative Agent, ABN AMRO Bank N.V. as
Co-Agent, and the Banks entered into that Credit Agreement dated January 16,
1997 (the "Credit Agreement") to provide financial accommodations to the
Borrower as provided therein.
1.2 Borrower and the Administrative Agent, with the consent of the
Banks, desire to modify the Credit Agreement as set forth herein.
1.3 All undefined capitalized terms used herein shall have the meaning
given them in the Credit Agreement.
SECTION 2. CREDIT AGREEMENT.
2.1 Section 2.3(a)(i) of the Credit Agreement is hereby amended to read
as follows:
(i) the Borrower shall not be entitled to request any
Borrowing which, if made, would result in an aggregate of more than
twenty separate Borrowings being outstanding collectively under the
Revolving Loan at any one time and
SECTION 3. OTHER MODIFICATIONS, RATIFICATIONS AND AGREEMENTS.
3.1 All references to the Credit Agreement in the other Loan Documents
are hereby amended to refer to the Credit Agreement as hereby amended.
3.2 Borrower hereby reaffirms to the Banks each of the representations,
warranties covenants and agreements of Borrower set forth in the Credit
Agreement, with the same force and effect as if each were separately stated
herein and made as of the date hereof.
3.3 Borrower hereby ratifies, reaffirms, acknowledges, and agrees that
the Notes and the Credit Agreement represent valid, enforceable and collectible
obligations of Borrower, and that there are no existing claims, defenses,
personal or otherwise, or rights of setoff whatsoever with respect to any of
these documents or instruments. Borrower further acknowledges and
represents that no event has occurred and no condition exists that, after notice
or lapse of time, or both, would constitute a default under this Agreement, the
Notes or the Credit Agreement.
3.4 All terms, conditions and provisions of the Credit Agreement are
continued in full force and effect and shall remain unaffected and unchanged
except as specifically amended hereby. The Credit Agreement, as amended hereby,
is hereby ratified and reaffirmed by Borrower, and Borrower specifically
acknowledges the validity and enforceability thereof.
SECTION 4. GENERAL.
4.1 This Agreement in no way acts as a release or relinquishment of
those rights securing Payment of the Loans. Such rights are hereby ratified,
confirmed, renewed and extended by Borrower in all respects.
4.2 The modifications contained herein shall not be binding upon the
Banks until the Administrative Agent shall have received all of the following:
(a) An original of this Agreement fully executed by the
Borrower.
(b) An original of the Consent and Agreement of Guarantor
fully executed by the Guarantor and Swift Leasing.
(c) Such resolutions or authorizations and such other
documents as the Administrative Agent may require relating to the
existence and good standing of the Borrower and the authority of any
person executing this Agreement or other documents on behalf of the
Borrower.
4.3 Borrower shall execute and deliver such additional documents and do
such other acts as the Banks may reasonably require to fully implement the
intent of this Agreement.
4.4 Borrower shall pay all costs and expenses, including, but not
limited to, reasonable attorneys' fees incurred by the Administrative Agent in
connection herewith, whether or not all of the conditions described in Paragraph
4.2 above are satisfied. Banks, at their option, but without any obligation to
do so, may advance funds to pay any such costs and expenses that are the
obligation of the Borrower, and all such funds advanced shall bear interest at
the highest rate provided in the Notes and shall be due and payable upon demand.
4.5 Notwithstanding anything to the contrary contained herein or in any
other instrument executed by Borrower, the Administrative Agent or the Banks, or
in any other action or conduct undertaken by Borrower, the Administrative Agent
or the Banks on or before the date hereof, the agreements, covenants and
provisions contained herein shall constitute the only evidence of the Banks'
consent to modify the terms and provisions of the Credit Agreement. Accordingly,
no express or implied consent to any further modifications involving any of the
matters set forth in this Agreement or otherwise shall be inferred or implied by
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the Banks' consent to this Agreement. Further, the Banks' consent to this
Agreement shall not constitute a waiver (either express or implied) of the
requirement that any further modification of the Credit Agreement shall require
the express written consent of the Banks; no such consent (either express or
implied) has been given as of the date hereof.
4.6 Time is hereby declared to be of the essence hereof of the Credit
Agreement, and Banks require, and Borrower agrees to, strict performance of each
and every covenant, condition, provision and agreement hereof, of the Credit
Agreement.
4.7 This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their heirs, personal representatives,
successors and assigns.
4.8 This Agreement is made for the sole protection and benefit of the
parties hereto, and no other person or entity shall have any right of action
hereon,
4.9 This Agreement shall be governed by and construed according to the
laws of the State of Arizona.
IN WITNESS WHEREOF, these presents are executed as of the date
indicated above.
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxxxx Xxxxxx
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Its: Vice President
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ADMINISTRATIVE AGENT
SWIFT TRANSPORTATION, CO., INC.. an
Arizona corporation
By: /s/ Xxxxxxx X. Xxxxx III
--------------------------------
Name: Xxxxxxx X. Xxxxx III
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Its: EVP - CFO
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BORROWER
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