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, 1996
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)
1455 Hulda Way, Sparks, Nevada 89431
(Address of principal executive offices) (Zip Code)
(702) 359-9031
(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
<PAGE>
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 14, 1997, the aggregate market value of common stock held by
non-affiliates of the Registrant was $342,070,987.
The number of shares outstanding of the Registrant's common stock on
March 14, 1997 was 27,973,284.
DOCUMENTS INCORPORATED BY REFERENCE
Materials from the Registrant's Information Statement relating to the
1997 Annual Meeting of Stockholders to be held on May 22, 1997 have been
incorporated by reference into Part III, Items 10, 11, 12 and 13.
Exhibit Index at page 53
Total pages 149
2
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
PART I .........................................................................................................
Item 1. Business............................................................................... 4
Item 2. Properties.............................................................................14
Item 3. Legal Proceedings......................................................................15
Item 4. Submission of Matters to a Vote of Security Holders....................................15
PART II .........................................................................................................
Item 5. Market for the Registrant's Common Stock and Related Stockholder
Matters................................................................................16
Item 6. Selected Financial and Operating Data..................................................17
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations..................................................................19
Item 8. Financial Statements and Supplementary Data............................................28
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosures..................................................................51
PART III .........................................................................................................
Item 10. Directors and Executive Officers of the Registrant.....................................52
Item 11. Executive Compensation.................................................................52
Item 12. Security Ownership of Certain Beneficial Owners and Management.........................52
Item 13. Certain Relationships and Related Transactions.........................................52
PART IV .........................................................................................................
Item 14. Exhibits, Financial Statement Schedules and Reports on
Form 8-K...............................................................................53
SIGNATURES........................................................................................................S-1
</TABLE>
3
<PAGE>
PART I
Item 1. Business
General
Swift Transportation Co., Inc. (with its subsidiaries, "Swift" or the
"Company") is the fourth 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, paper products, non-perishable food,
tires, 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 24.6% from $233.4 million
in 1992 to $562.3 million in 1996. During that same period, net earnings have
grown at a compound annual growth rate of 29.3% from $9.8 million to $27.4
million.
Swift Transportation Co., Inc., a Nevada corporation headquartered in
Sparks, Nevada, is a holding company for the Arizona operating corporation also
named Swift Transportation Co., Inc. These companies are collectively referred
to herein as the "Company." The Company's headquarters is 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 withing the
meaning of that term in Section 27A of the Securities Act of 1993, 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,"
4
<PAGE>
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 23 service
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 576
miles in 1996, Swift is able to limit its direct competition with railroads,
intermodal services and longer-haul, less specialized truckload carriers.
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 equipment 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 1996 and 1995, Swift maintained an
operating ratio of 90.5% and 89.9%, respectively.
Growth Strategy
Major shippers continue to reduce the number of carriers that 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.
5
<PAGE>
The key elements of Swift's growth strategy are:
o 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 increased by 38% from 1994 to 1996. The largest 25,
10 and 5 customers, respectively, accounted for 47%, 33% and
24% of revenues in 1996, with no customer accounting for more
than 9% of Swift's gross 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 its has not
previously provided services.
o Pursue Strategic Acquisitions. Swift's revenue growth has been
attributable, in significant part, to seven acquisitions
completed in the last eight 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. Most recently, in
September 1996, Swift augmented its western operations by
acquiring the dry freight van division of Navajo Shippers,
Inc., Digby Leasing, Inc. and Digby- Ringsby Truck Line, Inc.
This acquisition added 287 tractors to Swift's fleet. In
April, 1997 the Company expects to acquire approximately 600
tractors and 2,100 trailers from Direct Transit, Inc. ("DTI"),
a Debtor In Possession in United States Bankruptcy Court. DTI
is a dry van carrier based in North Sioux City, South Dakota
and operates predominately in the eastern two-thirds of the
United States.
o Exploit Private Fleet Outsourcing. A number of large companies
maintain their own private trucking fleets to facilitate
distribution of their products. Swift believes that nearly 82%
of private fleet traffic is short-to-medium haul in nature,
traveling an average of 1,000 miles or less per round trip,
with 72% of such traffic traveling 500 miles or less. 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.
Operations
In the Western United States, Swift has developed a network of regional
terminals and offices strategically located in areas that have strong, diverse
economies and provide access to other key Western population centers. In
addition to Phoenix, Arizona, Swift's Western terminals
6
<PAGE>
are located in the areas of Los Angeles, San Francisco and Willows, California;
Portland, Oregon; Salt Lake City, Utah; Lewiston, Idaho; Reno, Nevada and
Denver, Colorado.
In the Eastern United States, Swift has terminals located in Auburn,
New York; Carlisle, Pennsylvania; Richmond, Virginia; Columbus, Ohio; Eden,
North Carolina; Greer, South Carolina; Decatur, Alabama; Atlanta and Albany,
Georgia. The terminals are located in close proximity to major customers who
tender significant traffic volume to Swift.
Swift's Midwest terminals are located in Gary and Shoals, Indiana;
Dallas and Laredo, Texas; Oklahoma City, Oklahoma; Memphis, Tennessee and Kansas
City, Kansas.
To minimize competition from 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 1996 and 1995, Swift's average length of
haul was 576 and 591 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
minimize driver turnover and improve 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
7
<PAGE>
fuel consumption and schedule regular equipment maintenance. Dispatchers based
in Phoenix, Arizona and in each regional terminal 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, fleet
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 fleet manager is responsible for
the general operation of approximately 45 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, and will continue to be, dependent
in significant part upon the acquisition of small-to-medium sized 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").
During 1994, the Company completed the acquisition of both East-West
Transportation, Inc. ("East-West") and Missouri-Nebraska Express, Inc. ("MNX").
The MNX acquisition was the largest acquisition to date and established a
significant regional operation in the Midwest 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"). This acquisition added 287 tractors to the Company's fleet.
On March 20, 1997 the United States Bankruptcy Court approved the
Company's purchase agreement with Direct Transit, Inc. ("DTI"), a Debtor In
Possession in United States Bankruptcy Court, to purchase certain assets of DTI.
DTI is a dry van carrier based in North Sioux City, South Dakota and operates
predominately in the eastern two-thirds of the United States. At closing, which
is expected to occur in April 1997, the Company will acquire approximately 600
tractors and 2,100 trailers along with the inventory and miscellaneous assets of
DTI.
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 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. 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
8
<PAGE>
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.
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, 1996.
<TABLE>
<CAPTION>
57', 53' and Sets of Flatbed Specialized
Model Year Tractors(1) 48' Vans Double Vans Trailers Trailers
- -------------------- --------------- ----------------- ---------------- ------------ ---------------
<C> <C> <C> <C> <C> <C>
1997 1,102 1,573 -- 150 --
1996 764 2,085 -- 185 --
1995 1,580 660 170 94 --
1994 597 1,162 -- 40 --
1993 11 1,107 40 105 1
1992 70 1,010 69 -- --
1991 and prior 42 2,547 822 128 203
- -------------------- --------------- ----------------- ---------------- ------------ ---------------
Total 4,166 10,144 1,101 702 204
</TABLE>
- ----------------------------
(1) Excludes 665 owner-operator tractors.
When purchasing new revenue equipment, Swift acquires standardized
tractors and trailers manufactured to the Company's specifications. Since 1990,
Swift has acquired predominantly 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
9
<PAGE>
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 allows Swift 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.
In 1996, the Company began replacing its fleet of double van trailers
with 13 1/2 foot high 53 foot trailers to be used in the Eastern United States
and 14 foot high 53 foot trailers to be used in the Western United States.
Management believes that this conversion to a standardized fleet of 53 foot
trailers will provide cost reductions, such as decreasing licensing costs,
simplifying driver training and increasing equipment utilization. The conversion
to a standardized fleet of 53 foot trailers will result in the sale of
substantially all of the Company's fleet of double van trailers. While the
Company believes that the market value of its double van trailer fleet is
currently greater than the book value, there can be no assurance that the market
value of such equipment will not decline or that the sale of such equipment will
result in gains. The sale of the Company's double van trailer fleet may result
in significant fluctuations in the amount of gains or losses recorded in any
given quarter. The amount of such gains or losses recorded in a particular
quarter will be dependent upon the quantity of trailers sold and the prevailing
market prices for used trailer equipment. The Company intends to retain an
adequate inventory of specialized equipment to continue to provide service to
those existing and prospective customers that require such equipment. In 1996,
the Company implemented new trailer configurations designed for railroad
intermodal services that has allowed it to achieve greater operating
efficiencies in certain high-density balanced traffic lanes.
Swift has installed Qualcomm onboard, two-way vehicle satellite
communication systems in the majority of its tractors. The communications system
links drivers to regional terminals, allowing Swift to alter rapidly its routes
in response to customer requirements and eliminating the need for driver stops
to report problems or delays. The system employs code buttons that allow drivers
to inform dispatchers and fleet 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.
Swift has adopted a speed limit of 57 miles per hour for Company
tractors and 62 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 to 57 mph.
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
10
<PAGE>
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 ownership and control of
revenue equipment rather than significant reliance upon owner-operators. By
concentrating on expanding its services to its existing customers, the Company's
revenues from its top 25 customers increased 38% from 1994 to 1996.
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
headquarters and each of its regional terminals through a marketing staff of
approximately 20 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, 10 and 5 customers accounted for approximately 47%, 33%
and 24% respectively, of Swift's revenues during 1996, 51%, 37% and 26%,
respectively, of Swift's revenues during 1995 and 52%, 35% and 22%,
respectively, of Swift's revenues during 1994. No customer accounted for more
than 9% 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, tire manufacturers, paper manufacturers, non-perishable food companies,
beverage and beverage container producers, manufacturers 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 that are managed by outside organizations as well
as local community colleges throughout the country. Candidates for the schools
must be at least
11
<PAGE>
23 years old, possess 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-week,
on-the-road training program.
To take advantage of the large number of displaced military personnel,
the Company has established a military employment program to recruit both
qualified drivers and student trainees being furloughed from the armed forces.
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. Company drivers are compensated on the basis of miles
driven and number of stops or deliveries, plus bonuses. Base pay for miles
driven increases with a driver's length of service. The Company maintains a
bonus system for its drivers based upon months of service, safety and driving
performance. Drivers employed by Swift participate in company-sponsored health,
life and dental insurance plans and are eligible to participate in Swift's
401(k) Profit Sharing Plan and Employee Stock Purchase Plan.
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, 1996, Swift employed approximately 6,700 full-time
persons, of whom approximately 5,360 were drivers (including driver trainees),
450 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 excellent.
Safety
The Company has an active safety and loss prevention program at each of
its terminals. Safety supervisors engage in ongoing training of drivers
regarding safe vehicle operations and loading procedures. The Company has
adopted a maximum speed limit of 57 miles per hour for Company tractors and
rewards drivers with bonuses for complying with the Company's safety policies.
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.
12
<PAGE>
Fuel
In order to reduce fuel costs, the Company purchases approximately 73%
of its fuel in bulk at 20 of its 25 terminals. Swift stores fuel in underground
storage tanks at two 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 materially adverse effect on the operations and profitability of
the Company. From time to time, the Company, in response to sudden, large
increases in fuel costs, has implemented fuel surcharges to pass on to its
customers all or substantially all of such costs. For example, in April 1996,
the Company implemented a fuel surcharge program in response to a significant
increase in fuel cost. This fuel surcharge program recovered more than half of
the increase in the Company's fuel prices. 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.
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. Some of the
trucking companies with which the Company competes 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. The Company is also
regulated by various state agencies. These regulatory authorities have broad
powers, generally governing matters such as authority to engage in motor carrier
operations, rates and charges, 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.
13
<PAGE>
The Company's operations also are 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 material compliance with current laws and regulations and 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 increased operating costs in colder weather and higher fuel
consumption due to increased idle time.
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
Atlanta, Georgia Leased
Auburn, New York Owned
Carlisle, Pennsylvania Leased
Columbus, Ohio Leased
Decatur, Alabama Leased
Denver, Colorado Leased
Eden, North Carolina Owned
Edwardsville, Kansas Owned
Fontana, California Owned
Gary, Indiana Owned
Greer, South Carolina Owned
Hutchins, Texas Leased
14
<PAGE>
Laredo, Texas Leased
Lewiston, Idaho Owned/Leased
Memphis, Tennessee Leased
Oklahoma City, Oklahoma Owned
Phoenix, Arizona Owned/Leased
Richmond, Virginia Owned
Salt Lake City, Utah Owned
Shoals, Indiana Owned
Sparks, Nevada Owned
Stockton, California Leased
Troutdale, Oregon Owned
Willows, California Owned
Wilmington, California Leased
Swift's new headquarters, which the Company moved into in June 1996,
are located on approximately 153 acres in Phoenix, Arizona, and contains 83,000
square feet of office space, 74,000 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 are held for sale. As of December 31,
1996, the Company's aggregate monthly rent for all leased properties was
$136,000.
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, 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 to be adequate. The Company is not aware of any claims or threatened
claims that might have a material adverse effect upon 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 1996.
15
<PAGE>
PART II
Item 5. Market for the Registrant's Common Stock and Related
Stockholder Matters
General
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, adjusted for stock splits, of the common
stock, as reported by Nasdaq, for the periods indicated below.
1996 High Low
---- ---
First Quarter $21.25 $15.00
Second Quarter 21.125 17.25
Third Quarter 22.5 18.625
Fourth Quarter 24.5 20.25
1995
First Quarter $25.75 $15.25
Second Quarter 17.75 13.00
Third Quarter 20.75 14.50
Fourth Quarter 17.75 14.75
On March 14, 1997, the last reported sales price of the Company's
common stock was $25.625 per share. At that date, the number of stockholder
accounts of record of the Company's common stock was 946. The Company estimates
that these are approximately 4,100 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.
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."
16
<PAGE>
Influence by Principal Stockholder. Trusts established for the benefit
of Jerry C. Moyes and his family beneficially own approximately 42% 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.
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, 1996
are derived from the Company's Consolidated Financial Statements. The
Consolidated Financial Statements as of December 31, 1996 and 1995, and for each
of the years in the three-year period ended December 31, 1996 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.
17
<PAGE>
<TABLE>
<CAPTION>
Years Ended December 31,
(dollar amounts in thousands, except per share amounts and operating data)
--------------------------------------------------------------------
1996(1) 1995 1994(2) 1993(3) 1992
------- ---- ------- ------- ----
<S> <C> <C> <C> <C> <C>
Consolidated Statements of Earnings Data:
Operating revenue $562,259 $458,165 $365,889 $276,982 $233,409
Earnings before income taxes $47,212 $40,070 $39,309 $21,409 $16,414
Net earnings $27,422 $23,040 $22,629 $12,274 $9,834
Net earnings per common and equivalent share $1.07 $.91 $0.89 $.48 $.43
Consolidated Balance Sheet Data (at end of year):
Working capital $36,938 $6,735 $14,012 $14,156 $13,862
Total assets $380,605 $311,308 $275,991 $172,220 $119,009
Long-term obligations, less current portion $ 40,284 $68,954 $77,715 $23,379 $8,997
Stockholders' equity $226,666 $134,835 $111,342 $88,973 $71,842
Operating Statistics (at end of year):
Operating ratio 90.5% 89.9% 88.8% 92.1% 92.2%
Pre-tax margin(4) 8.4% 8.7% 10.7% 7.7% 7.0%
Average line haul revenue per mile $1.11 $1.11 $1.12 $1.10 $1.07
Empty mile percentage 14.0% 13.9% 13.2% 13.4% 13.6%
Average length of haul (in miles) 576 591 590 608 711
Total tractors at end of period:
Company-operated 4,166 3,472 3,286 2,338 1,882
Owner-operator 665 477 188 44 29
Trailers at end of period 12,151 8,788 8,957 5,215 4,235
</TABLE>
(1) 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.
(2) Includes the results of operations from the asset acquisitions of
East-West Transportation, Inc. beginning on July 1, 1994 and
Missouri-Nebraska Express, Inc. beginning October 2, 1994.
(3) Includes the results of operations from the acquisition of West's Best
Freight Systems, Inc. beginning June 1, 1993.
(4) 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.
18
<PAGE>
Item 7. Management's Discussion and Analysis of Financial Condition
and Results of Operations
Overview
During 1996, 1995 and 1994, 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 are 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.
The trend of shippers in the truckload segment of the motor carrier
industry over the past several years has been towards use of a relatively small
number of financially stable "core carriers." This trend has resulted in
consolidation of the truckload industry. However, the truckload industry remains
highly fragmented. Management believes that the industry trend towards core
carriers will continue and will result in continued industry consolidation. In
response to this trend, the Company has nearly doubled the size of its fleet to
4,166 tractors as of December 31, 1996 from 2,338 as of December 31, 1993. 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 665 as of December
31, 1996 from 44 as of December 31, 1993.
As discussed in "Business-Acquisitions," the Company expects to acquire
certain assets of Direct Transit, Inc. The Company will pay approximately $54
million, which includes $43 million in cash and the assumption of lease
obligations on approximately $11 million of revenue equipment, to acquire
approximately 600 tractors and 2,100 trailers along with inventory and
miscellaneous assets.
19
<PAGE>
Results of Operations
The following table sets forth for the periods indicated certain
statements of earnings data as a percentage of operating revenue:
<TABLE>
<CAPTION>
December 31,
-----------------------------------------------
1996 1995 1994
---- ---- ----
<S> <C> <C> <C>
Operating revenue....................................... 100.0 100.0 100.0
Operating expenses:
Salaries, wages and employee benefits................ 34.2 37.1 37.4
Operating supplies and expenses...................... 9.3 8.9 8.6
Fuel................................................. 13.8 13.2 13.8
Purchased transportation............................. 12.8 9.3 5.4
Rental expense....................................... 5.8 5.8 6.9
Insurance and claims................................. 3.6 2.9 4.2
Depreciation and amortization........................ 6.0 6.9 6.7
Communications and utilities......................... 1.5 1.6 1.1
Operating taxes and licenses......................... 3.5 4.2 4.7
----- ----- ----
Total operating expenses............................. 90.5 89.9 88.8
Net interest expense.................................... 1.2 1.5 0.9
Other (income) expense, net............................. (0.1) (0.1) (0.4)
----- ----- ----
Earnings before income taxes............................ 8.4 8.7 10.7
Income taxes............................................ 3.5 3.7 4.5
----- ----- ----
Net earnings............................................ 4.9% 5.0% 6.2%
===== ===== ====
</TABLE>
Year Ended December 31, 1996 Compared to Year Ended December 31, 1995
Operating revenue increased $104.1 million, or 22.7%, to $562.3 million
for the year ended December 31, 1996 from $458.2 million for the previous year.
The increase in operating revenue is due primarily to the expansion of the
Company's fleet to 4,831 tractors at December 31, 1996 from 3,949 at December
31, 1995, an increase of 882 tractors. The acquisition of Navajo Shippers in
September 1996 accounted for 287 of this increase in tractors. There were no
significant changes in the Company's freight rates in 1996 and 1995.
The Company's operating ratio was 90.5% and 89.9% in 1996 and 1995,
respectively. The Company's operating revenue and operating ratio for 1996 were
impacted by overall soft shipper demand in the first four months of 1996, harsh
winter conditions and an increase in fuel costs. This resulted in slightly lower
equipment utilization and a slightly higher revenue per mile. The Company's
empty mile factor was 14.0% and 13.9% and the average rate per mile was $1.114
and $1.110 for the years ended December 31, 1996 and 1995, respectively.
20
<PAGE>
Salaries, wages and employee benefits represented 34.2% of operating
revenue for the year ended December 31, 1996 compared with 37.1% for 1995. The
improvement is due primarily to the increase in owner operators. Effective
January 1, 1997, the Company will pay its Company drivers a bonus of two cents
per mile, payable quarterly, provided the driver is still employed at the end of
the quarter. The Company anticipates receiving rate increases from its customers
to substantially offset the additional cost associated with the pay increase.
Fuel expenses represented 13.8% and 13.2% of operating revenue in 1996
and 1995, respectively. The increase in fuel as a percentage of revenue is due
primarily to increased fuel prices partially offset by the increase in the owner
operator fleet. 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 option is necessary
and available. The Company has not used derivative-type hedging products as a
hedge against higher fuel costs.
Purchased transportation represented 12.8% and 9.3% of operating
revenue for the years ended December 31, 1996 and 1995, respectively. This
increase is the result of the growth of the Company's owner operator fleet from
477 at December 31, 1995 to 665 at December 31, 1996.
Rental expense as a percentage of operating revenue was 5.8% for the
years ended December 31, 1996 and 1995. 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 31,1996 and 1995,
respectively, the Company recorded gains of approximately $3.3 million and $2.1
million from the sale of leased tractors. During 1996 and 1995, leased tractors
represented approximately 62% and 46%, respectively of the fleet (exclusive of
owner operators).
Depreciation and amortization expense was 6.0% of operating revenue for
the year ended December 31, 1996 versus 6.9% for 1995. This decrease is a result
of the higher percentage of tractors which are leased rather than purchased in
1996 versus 1995. During the year ended December 31, 1996 the Company recorded
gains on the sale of revenue equipment of approximately $2.2 million compared
with approximately $2.7 million in 1995. Exclusive of gains, which reduced
depreciation and amortization expense, the percentage of depreciation and
amortization to operating revenue in 1996 and 1995 was 6.4% and 7.7%,
respectively.
In 1996, the Company began replacing its fleet of double van trailers
with 13 1/2 foot high 53 foot trailers to be used in the Eastern United States
and 14 foot high 53 foot trailers to be used in the Western United States.
Management believes that this conversion to a standardized fleet of 53 foot
trailers will provide cost reductions, such as decreasing licensing costs,
simplifying driver training and increasing equipment utilization.
21
<PAGE>
The conversion to a standardized fleet of 53 foot trailers will result
in the sale of substantially all of the Company's fleet of double van trailers.
While the Company believes that the market value of its double van trailer fleet
is currently greater than the book value, there can be no assurance that the
market value of such equipment will not decline or that the sale of such
equipment will result in gains. The sale of the Company's double van trailer
fleet may result in significant fluctuations in the amount of gains or losses
recorded in any given quarter. The amount of such gains or losses recorded in a
particular quarter will be dependent upon the quantity of trailers sold and the
prevailing market prices for used trailer equipment.
Insurance and claims expense represented 3.6% and 2.9% of operating
revenue in the year ended December 31,1996 and 1995, 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 $7.1 million in 1996 from $6.7 million in
1995. Higher interest expense is a result of higher outstanding balances of
interest-bearing debt throughout 1996, offset by lower interest rates. The
higher average balance of interest-bearing debt in 1996 is due to borrowings to
fund capital expenditures such as the new corporate headquarters facility and
the Edwardsville, Kansas terminal. The Company's weighted average interest rate
on borrowings under its revolving line of credit in 1996 and 1995 was 5.89% and
6.65%, respectively. As of December 31, 1996, approximately $15 million of the
Company's outstanding debt had floating interest rates, the majority of which is
based upon the London Interbank Offered Rate ("LIBOR").
Year Ended December 31, 1995 Compared to Year Ended December 31, 1994
Operating revenue increased by $92.3 million or 25.2% to $458.2 million
in 1995 from $365.9 million in 1994. This increase is primarily attributable to
expansion of the Company fleet to 3,949 tractors as of December 31, 1995 from
3,474 as of December 31, 1994, a net growth of 475 tractors. The net fleet
growth corresponds with the increase in transportation demands from the
Company's major customers. On July 1, 1994, the Company completed asset
acquisitions of East-West Transportation, Inc. ("East-West") which added
approximately, 190 tractors, and Missouri Nebraska Express ("MNX") on October 2,
1994 which added approximately 550 tractors. In 1995, the revenue increase is
also attributable to the availability of this additional revenue equipment for a
full year. There were no significant changes in the Company's freight rates
during 1995 and 1994.
22
<PAGE>
The Company's operating ratio was 89.9% and 88.8% in 1995 and 1994,
respectively. The Company's operating revenue and operating ratio in 1995 was
impacted by overall soft economic conditions as compared to 1994. This resulted
in lower equipment utilization and a slightly lower revenue per mile. The
Company's empty mile factor was 13.9% and 13.2% and the average rate per mile
was $1.110 and $1.123 in 1995 and 1994, respectively. The impact of the soft
economic conditions in 1995 was partially offset by the fact the Company's fixed
costs have not grown as rapidly as the tractor fleet. Therefore, fixed costs
were more fully absorbed by operations.
Salaries, wages and employee benefits represented 37.1% and 37.4% of
operating revenue in 1995 and 1994, respectively. The improvement in 1995, as a
percentage of operating revenue, is due to an increase in the owner operator
fleet to 477 as of December 31, 1995 from 188 as of December 31, 1994, a
reduction in driver bonuses and a smaller contribution to the 401(k) Retirement
Plan.
Fuel expenses represented 13.2% and 13.8% of operating revenue in 1995
and 1994, respectively. The decrease in fuel as a percentage of revenue is due
primarily to the increase in the owner operator fleet.
Purchased transportation as a percentage of operating revenue was 9.3%
in 1995 versus 5.4% in 1994. The increase is due to the increase in owner
operators to 477 at December 31, 1995 from 188 at December 31, 1994.
Rental expense represented 5.8% and 6.9% of operating revenue in 1995
and 1994, respectively. The reduction in rental expense as a percentage of
operating revenue is attributable to the increasing percentage of owned versus
leased revenue equipment. During 1995 and 1994, leased tractors represented
approximately 46% and 49%, respectively of the fleet (exclusive of owner
operators).
When it is economically advantageous to do so, the Company will
purchase then sell tractors that it currently leases by exercising the purchase
option contained in the lease. Gains in these activities are recorded as a
reduction of rent expense. During 1995, the Company recorded gains of
approximately $2.1 million.
The increase in the percentage of owned versus leased revenue equipment
has resulted in an increase in depreciation and amortization expense.
Depreciation and amortization expense increased as a percentage of operating
revenue to 6.9% in 1995 from 6.7% in 1994. Depreciation and amortization expense
in 1995 also includes higher amortization attributable to a full year
amortization of goodwill attributable to the MNX acquisition on October 2, 1994.
The increase in depreciation and amortization expense was partially offset by
increased net gains from the sale of owned revenue equipment which totaled
approximately $2.7 million in 1995 compared to $590,000 in 1994.
23
<PAGE>
Insurance and claims expense represented 2.9% and 4.2% of operating
revenue in 1995 and 1994, respectively. The Company accrues the estimated cost
of the uninsured portion of the 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.
Interest expense increased to $6.7 million in 1995 from $3.1 million in
1994. Higher interest expense is a result of higher outstanding balances of
interest-bearing debt throughout 1995, together with higher interest rates. The
higher average balances of interest-bearing debt in 1995 are due to borrowings
to finance the East-West and MNX acquisitions which were completed in 1994 and
affect the full year 1995. In addition, in 1994 and 1995 the Company increased
the percentage of owned revenue equipment versus financing such equipment
through operating leases. The Company's weighted average interest rate on
borrowings under its revolving line of credit in 1995 and 1994 was 6.65% and
5.41%, respectively. As of December 31, 1995, approximately $75.6 million of the
Company's outstanding debt had floating interest rates, the majority of which is
based upon the London Interbank Offered Rate ("LIBOR").
Liquidity and Capital Resources
The growth in the Company's business has required 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 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 $58.8 million for each of
the years ended December 31, 1996 and 1995. An increase in accounts receivable
was offset primarily by an increase in net earnings, increases in accounts
payable, accrued liabilities and claims accruals and a decrease in prepaid
expenses.
Net cash used in investing activities increased to $80.2 million for
the year ended December 31,1996 from $21.7 million for 1995. The increase is due
primarily to greater expenditures for revenue equipment and for facilities and
improvements, which were offset in part by fewer proceeds from the sale of
property and equipment. Cash expended for investment activities also includes
$5.1 million expended for the purchase of Navajo Shippers.
As of December 31, 1996, the Company had commitments outstanding to
acquire replacement and additional revenue equipment for approximately $132
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.
24
<PAGE>
During the year ended December 31, 1996, the Company incurred
approximately $25 million of non-revenue equipment capital expenditures. These
expenditures were primarily for the completion of the construction of the
Company's facility in Edwardsville, Kansas and for construction of the Company's
new corporate headquarters facility in Phoenix, Arizona. In the second quarter
of 1996, the Company relocated its corporate headquarters facility to the newly
constructed facility. The former headquarters facility is currently held for
sale and the net assets are reflected as such on the accompanying consolidated
balance sheet.
The Company anticipates that it will expend approximately $24 million
in 1997 for various facilities upgrades and acquisitions 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, long-term debt including
$15 million borrowed to finance the new Phoenix, Arizona headquarters facility,
amounts available under the Company's $110 million line of credit, lease
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 $20.0 million in 1996
compared to net cash used in financing activities of $38.5 million in 1995. The
increase in cash provided by financing activities is due to proceeds from the
sale of common stock primarily through the public offering in December 1996 and
proceeds from issuance of long-term debt offset in part by repayments of
long-term debt. The net use of cash in financing activities in 1995 was
primarily the result of repayments of long-term debt of $24.1 million and
reductions in borrowings under the revolving line of credit of $2.4 million.
On January 17, 1997, the Company entered into an agreement for a line
of credit with maximum borrowings of $110 million. The Company anticipates that
a portion of the line of credit will be used to pay off existing secured revenue
equipment debt with current interest rates exceeding the line of credit rate.
The new line will also be used for funding letters 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 additional revenue equipment acquisitions and additional
strategic acquisitions as opportunities become available, through cash flows
from operations, borrowings available under the line of credit and through
long-term debt and operating lease financing believed to be available to finance
revenue equipment acquisitions. 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 conditions 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.
25
<PAGE>
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.
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 continue to successfully provide truckload
carrier services to meet shipper 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 premiums, 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 significant
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 increased operating costs in colder weather
and higher fuel consumption due to 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. Some of the trucking
companies with which the Company competes have
26
<PAGE>
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, and will continue to
be, dependent in significant part upon the acquisition of small-to-medium sized
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, Executive Vice President and Chief
Financial Officer, Mr. Robert W. Cunningham, Executive Vice President, and Mr.
Rodney K. Sartor, 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. Cunningham or Mr. Sartor 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, Cunningham or Sartor.
Regulation. The Company is regulated by the United States Department of
Transportation and by various state agencies. These regulatory authorities
exercise broad powers, generally governing activities such as authorization to
engage in motor carrier operations, rates and charges, 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
27
<PAGE>
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 for
worker's compensation, and maintains insurance with licensed insurance companies
above its limits on such 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 1996, the Company's top 25, 10
and 5 customers accounted for 47%, 33% 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 8. Financial Statements and Supplementary Data
Consolidated Financial Statements of the Company as of December 31,
1996 and for each of the years in the three-year period ending December 31,
1996, together with related notes and the report of KPMG Peat Marwick LLP,
independent auditors, 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.
28
<PAGE>
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, 1996 and 1995, 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, 1996.
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, 1996 and 1995, and the results of
their operations, and their cash flows for each of the years in the three-year
period ended December 31, 1996, in conformity with generally accepted accounting
principles.
KPMG Peat Marwick LLP
Phoenix, Arizona
February 14, 1997
29
<PAGE>
SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES
Consolidated Balance Sheets
(In thousands, except share and per share amounts)
<TABLE>
<CAPTION>
December 31,
---------------------------------------
Assets 1996 1995
------
------------------ ------------------
<S> <C> <C>
Current assets:
Cash $ 1,210 $ 2,627
Accounts receivable, net 78,280 56,477
Current portion of contracts receivable -- 16
Inventories and supplies 3,997 3,223
Prepaid taxes, licenses and insurance 3,274 4,964
Assets held for sale 5,453 --
Deferred income taxes 3,690 1,250
------------------ ------------------
Total current assets 95,904 68,557
------------------ ------------------
Property and equipment, at cost:
Revenue and service equipment 297,744 259,362
Land 7,351 10,226
Facilities and improvements 53,109 35,936
Furniture and office equipment 12,242 10,295
------------------ ------------------
Total property and equipment 370,446 315,819
Less accumulated depreciation and amortization 95,597 82,946
------------------ ------------------
Net property and equipment 274,849 232,873
Contracts receivable, less current portion 243 349
Other assets 174 590
Goodwill 9,435 8,939
------------------ ------------------
$ 380,605 $ 311,308
================== ==================
</TABLE>
See accompanying notes to consolidated financial statements.
30
<PAGE>
SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES
Consolidated Balance Sheets, Continued
(In thousands, except share and per share amounts)
<TABLE>
<CAPTION>
December 31,
---------------------------------------
Liabilities and Stockholders' Equity 1996 1995
------------------------------------
------------------ ------------------
<S> <C> <C>
Current liabilities:
Accounts payable $ 16,779 $ 13,089
Accrued liabilities 17,202 15,508
Claims accruals 14,668 10,457
Current portion of long-term debt 10,317 22,768
------------------ ------------------
Total current liabilities 58,966 61,822
------------------ ------------------
Borrowings under revolving line of credit 16,500 11,750
Long-term debt, less current portion 23,784 57,204
Claims accruals 16,689 13,647
Deferred income taxes 38,000 32,050
Stockholders' equity:
Preferred stock, par value $.001 per share. Authorized 1,000,000
shares; none issued -- --
Common stock, par value $.001 per share. Authorized 75,000,000
shares; issued 28,134,684 and 24,877,534 shares in 1996 and
1995, respectively 28 25
Additional paid-in capital 110,291 45,885
Retained earnings 119,763 92,341
------------------ ------------------
230,082 138,251
Less treasury stock, at cost (220,700 shares) 3,416 3,416
------------------ ------------------
Net stockholders' equity 226,666 134,835
Commitments, contingencies and subsequent events
------------------ ------------------
$ 380,605 $ 311,308
================== ==================
</TABLE>
See accompanying notes to consolidated financial statements.
31
<PAGE>
SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES
Consolidated Statements of Earnings
(In thousands, except per share amounts)
<TABLE>
<CAPTION>
Years ended December 31,
------------------------------------------------------------
1996 1995 1994
----------------- ----------------- ------------------
<S> <C> <C> <C>
Operating revenue $ 562,259 $ 458,165 $ 365,889
----------------- ----------------- ------------------
Operating expenses:
Salaries, wages and employee benefits 192,572 169,805 136,997
Operating supplies and expenses 52,362 40,582 31,630
Fuel 77,063 60,697 50,434
Purchased transportation 72,040 42,592 19,809
Rental expense 32,599 26,633 25,166
Insurance and claims 20,358 13,121 15,273
Depreciation and amortization 33,883 31,726 24,649
Communications and utilities 8,219 7,547 4,014
Operating taxes and licenses 19,584 19,377 17,069
----------------- ----------------- ------------------
Total operating expenses 508,680 412,080 325,041
----------------- ----------------- ------------------
Operating income 53,579 46,085 40,848
----------------- ----------------- ------------------
Other (income) expenses:
Interest expense 7,106 6,728 3,101
Interest income (107) (75) (78)
Other (632) (638) (1,484)
----------------- ----------------- ------------------
Other (income) expenses, net 6,367 6,015 1,539
----------------- ----------------- ------------------
Earnings before income taxes 47,212 40,070 39,309
Income taxes 19,790 17,030 16,680
----------------- ----------------- ------------------
Net earnings $ 27,422 $ 23,040 $ 22,629
================= ================= ==================
Net earnings per common and equivalent share
$ 1.07 $ .91 $ .89
================= ================= ==================
Shares used in per share calculations 25,669 25,348 25,325
================= ================= ==================
</TABLE>
See accompanying notes to consolidated financial statements.
32
<PAGE>
SWIFT TRANSPORTATION CO., INC. & SUBSIDIARIES
Consolidated Statements of Stockholders' Equity
(dollars in thousands)
<TABLE>
<CAPTION>
Common stock Additional Totsl
------------------------- paid-in Retained Treasury stockholders'
Shares Par value capital earnings stock equity
----------- ------------ ------------ ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
Balance, January 1, 1994 24,528,583 $ 25 $ 42,704 $ 46,672 $ (428) $ 88,973
Issuance of common stock under
employee stock purchase plan 24,073 -- 315 -- -- 315
Amortization of deferred com-
pensation -- -- 42 -- -- 42
Purchase of 33,500 shares of
treasury stock -- -- -- -- (617) (617)
Net earnings -- -- -- 22,629 -- 22,629
----------- ------------ ------------ ----------- ----------- -----------
Balance, December 31, 1994 24,552,656 25 43,061 69,301 (1,045) 111,342
Issuance of common stock under
stock option and employee
stock purchase plans 324,878 -- 1,720 -- -- 1,720
Income tax benefit arising from
the exercise of stock options
-- -- 1,056 -- -- 1,056
Amortization of deferred
compensation -- -- 48 -- -- 48
Purchase of 142,300 shares of
treasury stock -- -- -- -- (2,371) (2,371)
Net earnings -- -- -- 23,040 -- 23,040
----------- ------------ ------------ ----------- ----------- -----------
Balance, December 31, 1995 24,877,534 25 45,885 92,341 (3,416) 134,835
Issuance of common stock under
stock option and employee
stock purchase plans 292,150 -- 1,676 -- -- 1,676
Issuance of common stock upon
public offering, net of
issuance costs of $300 2,875,000 3 59,411 -- -- 59,414
Issuance of common stock for
Navajo Shippers acquisition 90,000 -- 1,918 -- -- 1,918
Income tax benefit arising from
the exercise of stock options -- -- 1,330 -- -- 1,330
Amortization of deferred
compensation -- -- 71 -- -- 71
Net earnings -- -- -- 27,422 -- 27,422
----------- ------------ ------------ ----------- ----------- -----------
Balance, December 31, 1996 28,134,684 $ 28 $ 110,291 $ 119,763 $ (3,416) $ 226,666
=========== ============ ============ =========== =========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
33
<PAGE>
SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES
Consolidated Statements of Cash Flows
(in thousands)
<TABLE>
<CAPTION>
Years ended December 31,
------------------------------------------------------------
1996 1995 1994
----------------- ----------------- ------------------
<S> <C> <C> <C>
Cash flows from operating activities:
Net earnings $ 27,422 $ 23,040 $ 22,629
Adjustments to reconcile net earnings to net
cash provided by operating activities:
Depreciation and amortization 33,883 31,726 24,649
Deferred income taxes 3,510 5,250 9,265
Income tax benefit arising from the exercise
of stock options 1,330 1,056 --
Provision for losses on accounts receivable 616 870 500
Amortization of deferred compensation 71 48 42
Change in assets and liabilities (net of
effects of acquisitions in 1996
and 1994):
Increase in accounts receivable (22,637) (12,519) (8,935)
Decrease (increase) in inventories and
supplies (774) 574 (1,268)
Decrease (increase) in prepaid expenses and
other current assets 1,912 54 (908)
Decrease (increase) in other assets 416 (15) 346
Increase in accounts payable, accrued
liabilities and claims accruals 13,035 8,703 12,562
----------------- ----------------- ------------------
Net cash provided by operating activities
58,784 58,787 58,882
----------------- ----------------- ------------------
Cash flows from investing activities:
Proceeds from sale of property and equipment 36,692 43,944 9,027
Capital expenditures (111,820) (65,726) (65,840)
Payments received on contracts receivable 106 120 338
Disbursements for contracts receivable -- (40) (133)
Business acquisitions (5,148) -- (12,242)
----------------- ----------------- ------------------
Net cash used in investing activities
(80,170) (21,702) (68,850)
----------------- ----------------- ------------------
</TABLE>
34
<PAGE>
SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES
Consolidated Statements of Cash Flows, Continued
(in thousands)
<TABLE>
<CAPTION>
Years ended December 31,
------------------------------------------------------------
1996 1995 1994
----------------- ----------------- ------------------
<S> <C> <C> <C>
Cash flows from financing activities:
Repayments of long-term debt $ (60,897) $ (24,113) $ (11,741)
Proceeds from issuance of long-term debt 15,026 -- --
Increase (decrease) in borrowings under
line of credit 4,750 (13,727) 20,477
Proceeds from sale of common stock, net of
issuance costs 61,090 1,720 315
Purchase of treasury stock -- (2,371) (617)
----------------- ----------------- ------------------
Net cash provided by (used in) financing
activities 19,969 (38,491) 8,434
----------------- ----------------- ------------------
Net decrease in cash (1,417) (1,406) (1,534)
Cash at beginning of year 2,627 4,033 5,567
----------------- ----------------- ------------------
Cash at end of year $ 1,210 $ 2,627 $ 4,033
================= ================= ==================
Supplemental disclosure of cash flow information:
Cash paid during the year for:
Interest $ 7,112 $ 6,919 $ 3,009
================= ================= ==================
Income taxes $ 14,163 $ 12,225 $ 6,978
================= ================= ==================
Supplemental schedule of noncash investing and
financing activities:
Equipment sales contracts receivable $ 362 $ 596 $ 5,233
================= ================= ==================
Direct financing for purchase of equipment $ -- $ 35,911 $ 14,022
================= ================= ==================
Assumption of loan upon purchase of land $ -- $ -- $ 615
================= ================= ==================
</TABLE>
35
<PAGE>
SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES
Consolidated Statements of Cash Flows, Continued
(in thousands)
<TABLE>
<CAPTION>
Years ended December 31,
------------------------------------------------------------
1996 1995 1994
----------------- ----------------- ------------------
<S> <C> <C>
During 1996 and 1994, in connection with
business acquisitions, assets were acquired
and liabilities were incurred as follows:
Current assets $ 222 $ 1,340
Current liabilities -- (602)
Property and equipment 5,644 40,379
Goodwill 1,200 6,671
Long-term debt -- (35,546)
Issuance of common stock (1,918) --
----------------- ------------------
Cash paid $ 5,148 $ 12,242
================= ==================
</TABLE>
See accompanying notes to consolidated financial statements.
36
<PAGE>
SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 1996, 1995 and 1994
(1) Summary of Significant Accounting Policies
Principles of Consolidation
The consolidated financial statements include the accounts of Swift
Transportation Co., Inc., a Nevada holding company, and its wholly-owned
subsidiaries (the Company). All significant intercompany balances and
transactions have been eliminated in consolidation.
Cash and Cash Equivalents
For purposes of the statement of cash flows, 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 1996, 1995 and 1994 were $2,185,000, $2,663,000 and
$590,000, 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, 1996, 1995 and 1994 the Company
capitalized interest related to self-constructed assets totaling
$428,000, $357,000 and $135,000, 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.
37
<PAGE>
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 $2,144,000 and $1,440,000 at December 31, 1996 and 1995,
respectively. The Company continually evaluates whether events and
circumstances have occurred that indicate the remaining estimated useful
life of goodwill 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
measuring 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.
Net Earnings Per Common and Equivalent Share
Net earnings per common and equivalent share is computed using the
weighted average number of common and dilutive common equivalent shares
outstanding during each period. Dilutive common equivalent shares consist
of stock options (using the treasury stock method).
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.
Recent Accounting Pronouncements
In 1996, the Company adopted Statement of Financial Accounting Standards
No. 121, "Accounting for the Impairment of Long-Lived Assets and for
Long-Lived Assets to be Disposed of" (SFAS No. 121). This adoption
resulted in no adjustments to recorded amounts of long-lived assets in
the accompanying financial statements.
38
<PAGE>
SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
(2) Accounts Receivable
Accounts receivable consists of:
<TABLE>
<CAPTION>
December 31,
--------------------------------------
1996 1995
----------------- -----------------
(in thousands)
<S> <C> <C>
Trade customers $ 76,762 $ 54,318
Equipment manufacturers 362 596
Income tax refund receivable -- 1,004
Other 1,709 1,486
----------------- -----------------
78,833 57,404
Less allowance for doubtful accounts 553 927
----------------- -----------------
$ 78,280 $ 56,477
================= =================
</TABLE>
The schedule of allowance for doubtful accounts is as follows:
<TABLE>
<CAPTION>
Beginning Ending
balance Additions Deductions balance
---------------- ------------------- ----------------- ----------------
(in thousands)
<S> <C> <C> <C> <C>
Year ended December 31:
1996 $ 927 $ 616 $ (990) $ 553
================ =================== ================= ================
1995 $ 387 $ 870 $ (330) $ 927
================ =================== ================= ================
1994 $ 787 $ 500 $ (900) $ 387
================ =================== ================= ================
</TABLE>
(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
carrying amount or fair value less costs to sell.
39
<PAGE>
SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
(4) Accrued Liabilities
Accrued liabilities consists of:
December 31,
--------------------------------------
1996 1995
----------------- -----------------
(in thousands)
Employee compensation $ 10,741 $ 9,684
Fuel and mileage taxes 2,002 4,128
Income taxes payable 1,113 --
Other 3,346 1,696
----------------- -----------------
$ 17,202 $ 15,508
================= =================
(5) Borrowings Under Revolving Line of Credit
The Company has a $110 million unsecured revolving line of credit (the
line of credit) under an agreement with four major banks (the Credit
Agreement) which matures on January 16, 2001. This line of credit, signed
on January 17, 1997, replaces the Company's previous line of credit of
$36 million. 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 weighted average
interest rate on outstanding borrowings was 5.89% and 6.65% at December
31, 1996 and 1995, respectively.
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 $11.3 million
at December 31, 1996.
40
<PAGE>
SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
(6) Long-Term Debt
Long-term debt consists of the following:
<TABLE>
<CAPTION>
December 31,
---------------------------------------
1996 1995
------------------ ------------------
(in thousands)
<S> <C> <C>
Notes payable to commercial lending institutions with varying payments
through the year 2006, secured by revenue equipment with a net book
value of approximately $26.1 million at December 31, 1996:
Fixed interest rates ranging from 2.8% to 7.3% $ 3,986 $ 16,123
Floating interest rate based on LIBOR plus .45% to 1.25% (effective
rates ranging from 5.95% to 6.52% at December 31, 1996) 15,115 63,849
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 ratios
and tangible net worth. The covenants include limitations on
dividends and treasury stock purchases. 15,000 --
------------------ ------------------
Total long-term debt 34,101 79,972
Less current portion 10,317 22,768
------------------ ------------------
Long-term debt, less current portion $ 23,784 $ 57,204
================== ==================
</TABLE>
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,
1996 are as follows:
Year ending
December 31 (in thousands)
1997 $ 10,317
1998 6,823
1999 1,961
2000 --
2001 --
Thereafter 15,000
-----------------
$ 34,101
=================
41
<PAGE>
SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
(7) Commitments
Leases
The Company leases various revenue equipment and terminal facilities
under operating leases. At December 31, 1996, the future minimum lease
payments under noncancelable operating leases are as follows:
<TABLE>
<CAPTION>
Year ending Revenue
December 31 Equipment Facilities Total
----------- ----------------- ----------------- -----------------
(in thousands)
<S> <C> <C> <C> <C>
1997 $ 35,888 $ 386 $ 36,274
1998 25,831 184 26,015
1999 12,542 133 12,675
2000 2,013 96 2,109
2001 1,889 19 1,908
Thereafter 1,324 333 1,657
----------------- ----------------- -----------------
Total minimum lease payments $ 79,487 $ 1,151 $ 80,638
================= ================= =================
</TABLE>
The revenue equipment leases generally include purchase options
exercisable at the completion of the lease.
Purchase Commitments
The Company had commitments outstanding to acquire revenue equipment for
approximately $132 million at December 31, 1996. 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.
(8) Stockholders' Equity
Stock Compensation Plans
At December 31, 1996, the Company has three stock-based compensation
plans, which are described below. The Company applies APB Opinion No. 25
and related interpretations in accounting for its plans.
42
<PAGE>
SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
Had compensation cost for the Company's three stock-based compensation
plans been determined consistent with FASB Statement No. 123, the
Company's net earnings and earnings per share would have been reduced to
the pro forma amounts indicated below:
<TABLE>
<CAPTION>
1996 1995
----------------- -----------------
<S> <C> <C> <C>
Net earnings As Reported $27,422 $23,040
================= =================
Pro forma $27,154 $22,795
================= =================
Net earnings per common and equivalent
share As Reported $1.07 $0.91
================= =================
Pro forma $1.06 $0.90
================= =================
</TABLE>
Pro forma net earnings reflect only options granted in 1996 and 1995.
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 two fixed stock option plans. Under the 1990 Employee
Stock Option Plan, the Company may grant options to employees for up to
2.3 million shares of common stock. Under the 1994 Non-Employee Directors
Plan, the Company may grant options to non-employee directors for up to
60,000 shares of common stock. Under both plans, the exercise price of
each option equals 85 percent of the market price of the Company's stock
on the date of the grant, and an option's maximum term is ten years.
Options under the Employees Plan vest 20 percent after five years and 20
percent each succeeding year. Options under the non-employee Directors
Plan vest on the grant date.
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 1996 and 1995:
Dividend yield 0%
Expected volatility 46.49%
Risk free interest rate 6.50%
Expected lives 42 days after vesting date
43
<PAGE>
SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
A summary of the status of the Company's two fixed stock option plans as
of December 31, 1996 and 1995, and changes during the years then ended on
those dates is presented below:
<TABLE>
<CAPTION>
1996 1995
-------------------------------------- --------------------------------------
Weighted- Weighted-
Average Average
Shares Exercise Shares Exercise
(000) Price (000) Price
----------------- ----------------- ----------------- -----------------
<S> <C> <C> <C> <C>
Outstanding at
beginning of year 1,853,050 $6.01 1,901,300 $4.50
Granted 50,000 $16.55 270,550 $14.80
Exercised (222,700) $3.17 (252,500) $2.91
Forfeited (47,550) $11.97 (66,300) $10.52
----------------- -----------------
Outstanding at end of
year 1,632,800 $6.54 1,853,050 $6.01
================= =================
Options exercisable
at year-end 81,300 16,000
================= =================
Weighted-average fair
value of options
granted during
the year $18.92 $17.41
================= =================
</TABLE>
The following table summarizes information about fixed stock options
outstanding at December 31, 1996:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
----------------------------------- -----------------------------------
Weighted-
Number Average Weighted- Number Weighted-
Outstanding Remaining Average Exercisable Average
at Contractual Exercise at Exercise
12/31/96 Life Price 12/31/96 Price
---------------- --------------- ---------------- ---------------- ---------------
<S> <C> <C> <C> <C> <C>
$2.79 to $3.47 959,300 4.0 $2.91 74,300 $3.05
$6.85 to $7.08 173,250 6.0 $7.08 3,000 $6.85
$10.94 to $17.22 222,200 7.2 $11.14 2,000 $12.22
$12.64 to $19.76 278,050 8.7 $15.07 2,000 $14.93
---------------- ----------------
1,632,800 5.4 $6.54 81,300 $3.70
================ ================
</TABLE>
44
<PAGE>
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 2 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 ($25,000 maximum) 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. Approximately two percent
of eligible employees have participated in the plan in the last 3 years.
Under the Plan, the Company sold 68,183 shares and 73,660 shares to
employees in 1996 and 1995, 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:
Dividend yield 0.00%
Expected volatility 46.49%
Risk free interest rate 5.00%
The weighted-average fair value of those purchase rights granted in 1996
and 1995 was $5.68 and $5.34, respectively.
(9) Income Taxes
Income tax expense consists of:
<TABLE>
<CAPTION>
1996 1995 1994
----------------- ------------------ ------------------
(in thousands)
<S> <C> <C> <C>
Current expense:
Federal $ 13,610 $ 9,800 $ 6,335
State 2,670 1,980 1,080
----------------- ------------------ ------------------
16,280 11,780 7,415
----------------- ------------------ ------------------
Deferred expense:
Federal 2,980 4,370 7,545
State 530 880 1,720
----------------- ------------------ ------------------
3,510 5,250 9,265
----------------- ------------------ ------------------
$ 19,790 $ 17,030 $ 16,680
================= ================== ==================
</TABLE>
45
<PAGE>
SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
The Company's effective tax rate was 42.0%, 42.5% and 42.4% in 1996, 1995
and 1994, 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:
<TABLE>
<CAPTION>
Years ended December 31,
------------------------------------------------------------
1996 1995 1994
----------------- ------------------ ------------------
(in thousands)
<S> <C> <C> <C>
Computed "expected" tax expense $ 16,524 $ 14,025 $ 13,758
Increase in income taxes resulting
from:
State income taxes, net of
federal income tax benefit 2,080 1,859 1,820
Other, net 1,186 1,146 1,102
----------------- ------------------ ------------------
$ 19,790 $ 17,030 $ 16,680
================= ================== ==================
</TABLE>
The net effects of temporary differences that give rise to significant
portions of the deferred tax assets and deferred tax liabilities are
presented below:
<TABLE>
<CAPTION>
December 31,
--------------------------------------
1996 1995
----------------- -----------------
(in thousands)
<S> <C> <C>
Deferred tax assets:
Claims accruals $ 12,320 $ 9,470
Accounts receivable due to allowance for doubtful accounts 210 360
Alternative minimum tax credits -- 1,870
Other 170 130
----------------- -----------------
Total deferred tax assets 12,700 11,830
----------------- -----------------
Deferred tax liabilities:
Property and equipment, principally due to differences
in depreciation (45,160) (39,410)
Revenues deferred for income tax purposes -- (1,420)
Prepaid taxes, licenses and permits deducted for tax
purposes (1,850) (1,800)
----------------- -----------------
Total deferred tax liabilities (47,010) (42,630)
----------------- -----------------
Net deferred tax liabilities $ 34,310 $ 30,800
================= =================
</TABLE>
46
<PAGE>
SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
These amounts are presented in the accompanying consolidated balance
sheets as follows:
<TABLE>
<CAPTION>
December 31,
--------------------------------------
1996 1995
----------------- -----------------
(in thousands)
<S> <C> <C>
Current deferred income taxes $ 3,690 $ 1,250
Noncurrent deferred income taxes (38,000) (32,050)
----------------- -----------------
Net deferred tax liabilities $ (34,310) $ (30,800)
================= =================
</TABLE>
(10) 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, 1996 and 1995. 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.
(11) 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.
47
<PAGE>
SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
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, 1996, the amounts that will actually be
realized or paid at settlement or maturity of the instruments could be
significantly different.
(12) 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
matching 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 $2.9 million, $2.4 million and $3.3 million for
1996, 1995 and 1994, respectively.
(13) Related Party Transactions
The Company leases various properties from entities owned by the
principal stockholder. Rents paid under these leases totaled $1.0
million, $1.1 million and $1.1 million for the years ended December 31,
1996, 1995 and 1994, respectively. During 1994, the Company acquired land
used in its Phoenix operation from one of these entities for a purchase
price of $840,000 including the assumption of the underlying land loan
with a balance of $615,000.
The Company provided transportation services to entities owned by its
principal stockholder. For the years ended December 31, 1996, 1995 and
1994, the Company recognized $213,000, $79,000 and $87,000, respectively,
in operating revenue from this entity. At December 31, 1996, $22,000 was
owed to the Company for these services.
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
1996, 1995 and 1994, the Company acquired new tractors and sold them to
this entity for $13.2 million, $7.5 million and $4.1 million,
respectively, and recognized fee income of $855,000, $495,000 and
$280,000, respectively. During 1996, 1995, and 1994, the Company also
sold used revenue equipment to this entity totaling $700,000, $3.7
million and $1.9 million, respectively, and recognized gains of $114,000
in 1996, $765,000 in 1995 and $260,000 in 1994.
A Company owned by the principal stockholder provides aircraft services
to the Company. Payments for such services totaled $450,000, $338,000 and
$175,000 for the years ended December 31, 1996, 1995 and 1994,
respectively. At December 31, 1996, $40,000 was owed to this entity for
such services.
48
<PAGE>
SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
During 1996, 1995 and 1994, the Company purchased parts and maintenance
services from an entity owned by one of the Company's outside directors
totaling $2,379,000, $1,222,000 and $340,000, respectively.
The Company believes that the terms of the foregoing related party
transactions were as favorable to the Company as those which would have
been available from an independent third party. All of the above related
party arrangements were approved by the independent members of the
Company's Board of Directors.
(14) Acquisitions
On September 12, 1996, the Company acquired substantially all of the
operating assets utilized in the dry freight van division of Navajo
Shippers, Inc. and two of its wholly-owned subsidiaries, Digby Leasing
and Digby-Ringsby Truck Lines, Inc. (collectively, "Navajo Shippers").
The acquisition was accounted for as a purchase and the results of
operations of Navajo Shippers have been included in the consolidated
financial statements beginning on September 12, 1996. The Company
acquired 287 tractors and 417 trailers and related on-board communication
equipment. The Company assumed Navajo Shipper's position on operating
leases for 257 tractors and acquired 30 owner operators. Total
consideration for the assets purchased and goodwill was $7,066,000
consisting of cash of $5,148,000 and 90,000 shares of the Company's
common stock valued at $1,918,000. The Company will pay the sellers
approximately $1.2 million for commissions on revenues expected to be
generated by the Company in the 12 months following the date of
acquisition. The excess of cost over net book value has been accounted
for as goodwill. Goodwill will be amortized on a straight-line basis over
15 years.
On July 1, 1994, the Company acquired certain assets of East-West
Transportation, Inc. (East-West). The acquisition was accounted for as a
purchase and the results of operations of East-West have been included in
the consolidated financial statements beginning on July 1, 1994. The
Company acquired 150 tractors and 239 van trailers and assumed leases on
an additional 40 tractors and 55 trailers. Total consideration for the
assets was approximately $11.2 million consisting of cash of
approximately $2.7 million and assumption of debt.
On October 3, 1994, the Company acquired the tractors, trailers and other
selected assets of Missouri-Nebraska Express (MNX), a subsidiary of Mark
VII, Inc. The purchase price of approximately $40.7 million was financed
through equipment loans of $27.0 million, conversion of assumed capital
lease obligations of $4.2 million to operating leases, and cash of $9.5
million. Additionally, the Company assumed various operating leases for
revenue equipment. The acquired and leased assets include approximately
550 tractors and 1,800 trailers. The acquisition was accounted for as a
purchase in the fourth quarter of 1994. Prior to the acquisition, the
Company managed the assets and business of MNX from July 3, 1994 through
October 1, 1994 (the Management Period). Included in other income is $1.0
million which represents the management fee earned by the Company during
the Management Period. The revenues and expenses of the operations
acquired from MNX have been included in the Company's consolidated
financial statements since October 2, 1994.
49
<PAGE>
SWIFT TRANSPORTATION CO., INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
On January 10, 1997 the Company signed a letter of intent to acquire
certain assets of Direct Transit, Inc. ("DTI"), a Debtor In Possession in
United States Bankurptcy Court. On March 20, 1997 the United States
Bankruptcy Court approved the Company's purchase agreement with DTI. DTI
is a dry van carrier based in North Sioux City, South Dakota and operates
predominately in the eastern two-thirds of the United States. At closing,
the Company will acquire approximately 600 tractors and 2,100 trailers
from various lessors along with the inventory and miscellaneous assets of
DTI. The purchase price of approximately $54 million, which includes $43
million in cash and the assumption of lease obligations on approximately
$11 million of revenue equipment, will be paid to DTI, DTI's principal
shareholder and DTI's lessors of revenue equipment. The acquisition which
is expected to close in April 1997 is subject to the satisfaction of
certain closing conditions.
(15) 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.
(16) 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.
(17) Quarterly Results of Operations (Unaudited)
<TABLE>
<CAPTION>
First Second Third Fourth
Quarter Quarter Quarter Quarter
---------------- --------------- ---------------- ----------------
(in thousands, except per share amounts)
<S> <C> <C> <C> <C>
Year ended December 31, 1996
Operating revenue $ 124,524 $ 137,210 $ 146,739 $ 153,786
Operating income 5,716 13,961 17,728 16,174
Net earnings 2,571 6,772 9,451 8,628
Net earnings per common and
equivalent share $ .10 $ .27 $ .37 $ .33
Year ended December 31, 1995
Operating revenue $ 106,715 $ 111,940 $ 118,463 $ 121,047
Operating income 8,536 15,221 12,133 10,195
Net earnings 3,986 7,764 6,014 5,276
Net earnings per common and
equivalent share $ .16 $ .31 $ .24 $ .21
</TABLE>
50
<PAGE>
Item 9. Changes in and Disagreements with Accountants on Accounting
and Financial Disclosures
The Company has never filed a Current Report on Form 8-K to report a
change in accountants because of a disagreement over accounting principles or
procedures, financial statement disclosure, or otherwise.
51
<PAGE>
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 and Compensation," and "Section 16(a)
Beneficial Ownership Reporting Compliance," in the Registrant's Notice and Proxy
Statement relating to its 1997 Annual Meeting of Stockholders ("the 1997 Proxy
Statement") to be held on May 22, 1997, which is incorporated by reference into
this Form 10-K. With the exception of the foregoing information and other
information specifically incorporated by reference into this Form 10-K, the 1997
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,""Employment Agreements" and
"Change of Control Arrangements" in the 1997 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 1997 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 1997 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 1997 Proxy Statement and is incorporated herein by reference.
52
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form
8-K.
(a) Financial Statements and Schedules.
<TABLE>
<CAPTION>
(i) Financial Statements Page or
Method of Filing
----------------
<S> <C> <C>
(1) Report of KPMG Peat Marwick LLP Page 29
(2) Consolidated Financial Statements and Notes to Page 30-50
Consolidated Financial Statements of the Company, including
Consolidated Balance Sheets as of December 31, 1996 and 1995 and
related Consolidated Statements of Earnings, Stockholders' Equity
and Cash Flows for each of the years in the three-year period ended
December 31, 1996
(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
No Current Reports on Form 8-K were filed during the fourth quarter of
1996.
(c) Exhibits.
Exhibit Page or
Number Description Method of Filing
------ ----------- ----------------
3.1 Articles of Incorporation of the Company Incorporated by reference to
Exhibit 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
</TABLE>
53
<PAGE>
<TABLE>
<CAPTION>
Exhibit Page or
Number Description Method of Filing
------ ----------- ----------------
<S> <C> <C>
4 Specimen of Common Stock Certificate Incorporated be reference to
Exhibit 4 of the Company's
Annual Report on Form 10-K
for the fiscal year ended
December 31, 1992 (the "1992
Form 10-K")
10.1 Lease Agreement between Jerry and Vickie Incorporated by reference to
Moyes and the Company relating to Stockton, Exhibit 10-E(1) of the
California property, dated April 10, 1990 Company's Form S-1
Registration Statement No.
#33-34983 ("S-1 #33-34983")
10.2 Lease Agreement between Jerry and Vickie Incorporated by reference to
Moyes, the Company and Common Market Exhibit 10-E(3) of S-1
Distributing Corp., relating to Wilmington, #33-34983
California property, dated April 10, 1990
10.3 Lease Agreement between Mohave Properties Incorporated by reference to
of the Southwest, Inc. and Swift Leasing, Exhibit 10-E(5) of S-1 #33-
Inc., relating to the Phoenix, Arizona Body 34983
Repair Shop, dated July 1, 1991
10.4.1 Asset Purchase Agreement dated June 17, Incorporated by reference to
1994 by and among Swift Transportation Co., Exhibit 1 of the Company's
Inc., a Nevada corporation; Swift Current Report on Form 8-K
Transportation Co., Inc., an Arizona dated October 6, 1994 (the
corporation; Mark VII, Inc., a Missouri "10/6/94 8-K")
corporation; MNX Carriers, Inc., a Delaware
corporation; and Missouri-Nebraska Express,
Inc., an Iowa corporation
10.4.2 Amendment No. 1, dated September 30, Incorporated by reference to
1994, to the Asset Purchase Agreement Exhibit 2 of the 10/6/94 8-K
10.5 Stock Option Plan, as amended through Incorporated by reference to
November 18, 1994* Exhibit 10.7 of the
Company's Annual Report on
Form 10-K for the year ended
December 31, 1994 (the "1994
Form 10-K")
10.6 Non-Employee Directors Stock Option Plan, Incorporated by reference to
as amended through November 18, 1994* Exhibit 10.8 of the 1994 Form
10-K
</TABLE>
54
<PAGE>
<TABLE>
<CAPTION>
Exhibit Page or
Number Description Method of Filing
------ ----------- ----------------
<S> <C> <C>
10.7 Employee Stock Purchase Plan, as amended Incorporated by reference to
through November 18, 1994* Exhibit 10.9 of the 1994 Form
10-K
10.8 Swift Transportation Co., Inc. Retirement Incorporated by reference to
(401(k)) Plan dated January 1, 1992* Exhibit 10.14 of the Company's
Form S-1 Registration Statement
No. #33-52454
10.9 Note Agreement dated February 26, 1996 by Incorporated by reference to
and between Swift Transportation Co., Inc. Exhibit 10.12 of the
and Great-West Life & Annuity Insurance Company's Annual Report on
Company Form 10-K for the year ended
December 31, 1995 (the "1995
Form 10-K")
10.10 Construction Contract dated November 14, Incorporated by reference to
1994 by and between Swift Transportation Exhibit 10.13 of the 1995
Co., Inc. and Opus Southwest Corporation Form 10-K
10.11 Note Agreement dated January 16, 1997 by Filed herewith
and between Swift Transportation Co., Inc.
and Wells Fargo Bank, N.A., ABN Amro
Bank N.V., The Chase Manhattan Bank and
The First National Bank of Chicago.
11 Schedule of computation of net earnings per Filed herewith
share
22 Subsidiaries of Registrant Incorporated by reference to
Exhibit 22 to the 1995 Form
10-K
23 Consent of KPMG Peat Marwick LLP Filed herewith
24.1 Power of Attorney of Robert W. Cunningham Filed herewith
24.2 Power of Attorney of Rodney K. Sartor Filed herewith
24.3 Power of Attorney of Alphonse E. Frei Filed herewith
24.4 Power of Attorney of Lou A. Edwards Filed herewith
24.5 Power of Attorney of Earl H. Scudder, Jr. Filed herewith
27 Financial Data Schedule Filed herewith
</TABLE>
- ------------------------------------
* Indicates a compensation plan.
55
<PAGE>
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
28th day of March, 1997.
SWIFT TRANSPORTATION CO., INC.,
a Delaware 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 28, 1997
- ------------------------ President and Chief Executive
Jerry C. Moyes Officer (Principal Executive
Officer)
S-1
<PAGE>
Signature Title Date
* Executive Vice President and March 28, 1997
- ----------------------- Director
Robert W. Cunningham
/s/William F. Riley III Executive Vice President, March 28, 1997
- ----------------------- Secretary, Chief Financial
William F. Riley III Officer (Principal Accounting
Officer) and Director
* Director March 28, 1997
- -----------------------
Rodney K. Sartor
* Director March 28, 1997
- -----------------------
Alphonse E. Frei
* Director March 28, 1997
- -----------------------
Lou A. Edwards
* Director March 28, 1997
- -----------------------
Earl H. Scudder, Jr.
*By: /s/ Jerry C. Moyes
-----------------------
Jerry C. Moyes
Attorney-in-fact
S-2
================================================================================
CREDIT AGREEMENT
among
SWIFT TRANSPORTATION CO., INC.
THE BANKS NAMED HEREIN
WELLS FARGO BANK, N.A.
as Administrative Agent
and
as Issuing Bank
and
ABN AMRO BANK N.V.
as Co-Agent
Dated as of January 16, 1997
================================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I DEFINITIONS.......................................................2
SECTION 1.1 Defined Terms............................................2
SECTION 1.2 Terms Generally.........................................11
ARTICLE II THE REVOLVING CREDIT FACILITY....................................12
SECTION 2.1 The Commitment..........................................12
SECTION 2.2 [Intentionally left blank]..............................12
SECTION 2.3 Procedures for Borrowings Under the Revolving Loans.....12
SECTION 2.4 Loans...................................................13
SECTION 2.5 Refinancings............................................14
SECTION 2.6 Fees....................................................14
SECTION 2.7 Notes; Repayment of Revolving Loans.....................15
SECTION 2.8 Interest on Revolving Loans.............................15
SECTION 2.9 Default Interest........................................16
SECTION 2.10 Termination and Reduction of Commitments................16
SECTION 2.11 Conversion and Continuation of Borrowings...............16
SECTION 2.12 Prepayment..............................................17
SECTION 2.13 Reserve Requirements; Change in Circumstances...........18
SECTION 2.14 Change in Legality......................................20
SECTION 2.15 Redeployment Loss.......................................20
SECTION 2.16 Pro Rata Treatment......................................21
SECTION 2.17 Sharing of Setoffs......................................21
SECTION 2.18 Payments................................................22
SECTION 2.19 Taxes...................................................22
SECTION 2.20 Termination or Assignment of Commitments Under Certain
Circumstances...........................................25
ARTICLE IIA LETTERS OF CREDIT................................................26
SECTION 2A.1 Standby Letters of Credit...............................26
SECTION 2A.2 Notice..................................................26
SECTION 2A.3 Letter of Credit Participations.........................26
SECTION 2A.4 Disbursement and Reimbursement..........................27
-i-
<PAGE>
ARTICLE III REPRESENTATIONS AND WARRANTIES...................................29
SECTION 3.1 Organization; Corporate Powers; Etc.....................29
SECTION 3.2 Authorization; Etc......................................29
SECTION 3.3 Enforceability..........................................29
SECTION 3.4 Financial Condition and Information.....................30
SECTION 3.5 No Material Adverse Change..............................30
SECTION 3.6 Litigation..............................................30
SECTION 3.7 Federal Reserve Regulations.............................30
SECTION 3.8 Investment Company Act..................................31
SECTION 3.9 Public Utility Holding Company Act......................31
SECTION 3.10 Tax Returns.............................................31
SECTION 3.11 ERISA...................................................31
SECTION 3.12 Title to Properties: Possession.........................31
SECTION 3.13 Use of Proceeds.........................................31
SECTION 3.14 Environmental and Safety Matters........................31
SECTION 3.15 Subsidiaries............................................31
ARTICLE IV CONDITIONS TO CREDIT EVENTS......................................32
SECTION 4.1 Credit Events...........................................32
SECTION 4.2 First Credit Event......................................32
ARTICLE V AFFIRMATIVE COVENANTS............................................34
SECTION 5.1 Corporate Existence.....................................34
SECTION 5.2 Insurance...............................................34
SECTION 5.3 Taxes...................................................34
SECTION 5.4 Financial Statements; Reports, etc......................34
SECTION 5.5 Litigation and Other Notices............................36
SECTION 5.6 Maintaining Records: Access to Premises and Records.....36
SECTION 5.7 Use of Proceeds.........................................36
SECTION 5.8 Unencumbered Assets.....................................36
ARTICLE VI NEGATIVE COVENANTS...............................................37
SECTION 6.1 [Intentionally left blank]..............................37
SECTION 6.2 Mergers, Consolidations, Sales of Assets................37
SECTION 6.3 Accounting Change.......................................37
SECTION 6.4 Guarantee...............................................37
SECTION 6.5 ERISA Liabilities.......................................37
SECTION 6.6 Funded Debt/EBITDA Ratio................................37
SECTION 6.7 Debt Service Coverage Ratio.............................38
-ii-
<PAGE>
ARTICLE VII EVENTS OF DEFAULT................................................39
SECTION 7.1 Events of Default.......................................39
SECTION 7.2 Remedies................................................41
SECTION 7.3 Occurrence and Declaration of an Event of Default.......41
ARTICLE VIII THE ADMINISTRATIVE AGENT.........................................42
SECTION 8.1 Appointment.............................................42
SECTION 8.2 Liability...............................................42
SECTION 8.3 Action by Administrative Agent..........................43
SECTION 8.4 Resignation.............................................44
SECTION 8.5 Agent as Bank...........................................44
SECTION 8.6 Ownership and Possession of Loan Documents..............45
SECTION 8.7 Indemnification.........................................45
SECTION 8.8 Independent Credit Analysis.............................45
SECTION 8.9 Process for Obtaining Approval of the Banks.............45
SECTION 8.10 Communications to the Banks.............................46
SECTION 8.11 Relationship with the Borrower..........................46
SECTION 8.12 Payments to or by the Banks.............................47
SECTION 8.13 Application of Payments.................................48
SECTION 8.14 Defaulting Banks........................................48
SECTION 8.15 Purchase of Defaulting Bank's Interest After Default....49
SECTION 8.16 Purchase Price and Payment for Defaulting Bank's
Interest................................................50
ARTICLE IX MISCELLANEOUS....................................................51
SECTION 9.1 Notices.................................................51
SECTION 9.2 Survival of Agreement...................................51
SECTION 9.3 Binding Effect..........................................52
SECTION 9.4 Successors and Assigns..................................52
SECTION 9.5 Expenses; Indemnity.....................................55
SECTION 9.6 Right of Setoff.........................................56
SECTION 9.7 Applicable Law..........................................56
SECTION 9.8 Waivers; Amendment......................................56
SECTION 9.9 Interest Rate Limitation................................57
SECTION 9.10 Entire Agreement........................................57
SECTION 9.11 Severability............................................57
SECTION 9.12 Counterparts and Signature Pages........................57
SECTION 9.13 Headings................................................58
SECTION 9.14 Arbitration.............................................58
SECTION 9.15 Jurisdiction............................................60
SECTION 9.16 Waiver of Jury Trial....................................60
SECTION 9.17 Confidentiality.........................................60
-iii-
<PAGE>
LIST OF EXHIBITS AND SCHEDULES
Exhibit "A" - Form of Assignment and Acceptance
Exhibit "B" - Form of Borrowing Notice
Exhibit "C" - Revolving Credit Note (Facility)
Exhibit "D" - Administrative Details Reply Form
Exhibit "E" - Matters to be Covered by the Legal Opinion of Counsel
Exhibit "F" - Form of Quarterly Compliance Certificate
Schedule 2.1 - Commitments of Banks
Schedule 3.5 - Material Adverse Change Since September 30, 1996
Schedule 3.15 - Borrower's and Guarantor's Significant Subsidiaries
-iv-
<PAGE>
CREDIT AGREEMENT
BY THIS CREDIT AGREEMENT (together with any amendments or
modifications, the "Agreement"), entered into as of January 16, 1997 by and
among SWIFT TRANSPORTATION CO, INC., an Arizona corporation (the "Borrower"),
the banks listed in Schedule 2.1 (the "Banks"), WELLS FARGO BANK, N.A., as
administrative agent for the Banks (in such capacity, together with any
successor agent appointed hereunder, the "Administrative Agent") and as Issuing
Bank (as hereinafter defined), and ABN AMRO BANK N.V. as Co-Agent, in
consideration of the mutual promises herein contained and for other valuable
consideration, the parties hereto do agree as follows:
RECITALS
--------
A. The Borrower has asked that the Banks provide a revolving credit
facility (the "Facility") in the maximum principal amount of $110,000,000.00 to
Borrower for general corporate purposes, including without limitation working
capital and the issuance of one or more Letters of Credit.
B. The Banks are willing to extend such credits to the Borrower on the
terms and subject to the conditions herein set forth. Effective as of the
delivery of this Agreement, the Loan Agreement dated September 30, 1993 between
the Borrower and Wells Fargo Bank, N.A. (formerly known as First Interstate Bank
of Arizona, N.A.) (the "1993 Agreement") will be terminated and replaced by this
Agreement.
Accordingly, the Borrower, the Banks, the Administrative Agent and the
Issuing Bank agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.1 Defined Terms. Although terms may be defined elsewhere in
this Agreement, as used in this Agreement, the following terms shall have the
meanings specified below:
"Administrative Agent" shall have the meaning assigned to such term in
the Preamble, and any successor thereto.
"Administrative Details Reply Form" shall mean an Administrative
Details Reply Form in the form of Exhibit "D".
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"Agency Fee" shall have the meaning assigned to such term in Section
2.6(c).
"Agreement" shall mean this Credit Agreement.
"Anniversary Date" shall mean January 16 of each year.
"Applicable Interest Rate" with respect to a given Borrowing shall mean
the interest rate in effect for that Borrowing as determined pursuant to Section
2.8 herein.
"Applicable Margin" shall mean on any date, with respect to the Loans
and the Commitment Fee, the lowest applicable factor set forth below based upon
Borrower's achievement of all of the conditions for that factor category:
<TABLE>
<CAPTION>
Unused
LIBOR Base Rate Commitment Letter of
Borrowing Borrowing Fee Credit Fee
--------- --------- ---------- ----------
<S> <C> <C> <C> <C>
Level 1: Conditions
- -------------------
Funded Debt/EBITDA Ratio less than 1.0:1 32.0 basis 0 basis 10.0 basis 40.0 basis
points points points points
Level 2: Conditions
- -------------------
Funded Debt/EBITDA Ratio less than 2.25:1 37.5 basis 0 basis 12.5 basis 45.0 basis
points points points points
Level 3: Conditions
- -------------------
Funded Debt/EBITDA Ratio equal to or 45.0 basis 0 basis 15.0 basis 50.0 basis
greater than 2.25:1 points points points points
</TABLE>
-2-
<PAGE>
For purposes of the foregoing, the Applicable Margin shall be determined for,
and as to future LIBOR Borrowings and as to existing and future Base Rate
Borrowings shall be effective as of the first day of, each fiscal quarter of
Borrower by reference to the above-specified financial ratios calculated as of
the end of the immediately preceding fiscal quarter. In the event that Borrower
fails to deliver to the Banks its Quarterly Certificate by the 65th day of a
fiscal quarter, the Level 3 Applicable Margin shall be effective until such
Quarterly Certificate shall have been delivered to the Banks.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Bank and an assignee, accepted by the Administrative Agent, in
the form of Exhibit "A".
"Average Adjusted Daily Undrawn Balance" shall equal the average daily
unused amount of the Total Commitment during the preceding calendar quarter; to
the extent the result is negative, the Balance shall be deemed to be zero. For
this purpose, the Letter of Credit Balance shall be deemed to be a use of the
Total Commitment.
"Banks," each a "Bank": See the Preamble.
"Base Rate" shall mean the Prime Rate and shall change on each day that
the Prime Rate changes.
"Base Rate Borrowing" shall mean a Borrowing bearing interest at a rate
determined by reference to the Base Rate.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States.
"Borrower": See the Preamble.
"Borrowing" shall mean an outstanding principal amount of one of the
Revolving Loans as to which a single Interest Period is in effect and with
respect to which a single Applicable Interest Rate applies.
"Borrowing Notice" shall mean a notice given pursuant to Section 2.3,
as therein described.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of Arizona) on which commercial
banks are open for business in Phoenix, Arizona, Los Angeles, California, San
Francisco, California, Detroit Michigan, and New York, New York; provided,
however, that, when used in connection with a LIBOR Borrowing, the term
"Business Day" shall exclude any day on which banks are not open for dealings in
dollar deposits in the London interbank market.
"Capital Lease" shall mean any lease of any property (whether real,
personal or mixed) required by GAAP to be accounted for as a capital lease on
the balance sheet of the lessee.
-3-
<PAGE>
"Capital Lease Obligations" of any Person shall mean the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
A "Change in Control" shall be deemed to have occurred if, after the
date hereof, (a) any person or group (within the meaning of Rule 13d-3, as in
effect on the date hereof, promulgated by the SEC under the 1934 Act), shall
acquire, directly or indirectly, beneficially or of record, shares representing
more than 50% of the aggregate ordinary voting power represented by the issued
and outstanding capital stock of the Borrower; (b) a majority of the seats
(other than vacant seats) on the board of directors become occupied by persons
not members of said board on the date hereof that were neither (i) nominated by
the board of directors of the Borrower, nor (ii) appointed by directors so
nominated; or (c) any person or group shall otherwise directly or indirectly
Control the Borrower.
"Closing Date" shall mean the date of the first Credit Event hereunder.
"Co-Agent" shall mean ABN AMRO BANK N.V. The Co-Agent shall have no
rights, duties or responsibilities under the Loan Documents beyond those of a
Bank.
"Code" shall mean the Internal Revenue Code of 1986, as the same may be
amended from time to time.
"Commitment" shall mean, with respect to each Bank, the commitment of
such Bank as to the Facility hereunder as set forth in Schedule 2.1, as such
Bank's Commitment may be permanently terminated or reduced from time to time
pursuant to Section 2.10 or 2.20. Each Bank's Commitment shall fully,
automatically and permanently terminate on the Maturity Date.
"Commitment Fee" shall have the meaning assigned to such term in
Section 2.6(a).
"Control" shall mean the power to direct or cause the direction of the
management or policies of a person, whether through rights of ownership under
voting securities, under contract or otherwise, and "Controlling" and
"Controlled" shall have meanings correlative thereto.
"Credit Event" shall have the meaning given such term in Article IV.
"Debt Service Coverage Ratio" shall have the meaning assigned to such
term in Section 6.7.
"Default Rate" shall mean a rate per annum (computed as provided in
Section 2.8(b)) equal to the Base Rate plus three percent (3%) and changing in
conformity with each change in the Base Rate.
-4-
<PAGE>
"Designated Officer" shall mean any of the Chairman of the Board,
President, the Chief Financial Officer, and the Chief Accounting Officer of the
Borrower.
"Dollars" or "$" shall mean lawful money of the United States of
America.
"Equipment" shall mean tangible personalty that is not "inventory,"
"farm equipment" or "fixtures," as the immediately preceding terms in quotations
are defined in Article Nine of the Uniform Commercial Code as in effect in and
for the State of Arizona.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that is a member of a group of which the Borrower is a member and
which is treated as a single employer under Section 414 of the Code.
"ERISA Liabilities" shall mean at any time the minimum liability with
respect to Plans that would be required to be reflected at such time as a
liability on the consolidated balance sheet of the Borrower under GAAP.
"Eurodollar Lending Office," with respect to any Bank (or transferee)
or the Administrative Agent, shall mean such office or branch as such Bank (or
transferee) or the Administrative Agent has designated to the Borrower herein in
Schedule "2.1" as the office or branch of such Bank (or transferee) or the
Administrative Agent which shall constitute the Lending Office thereof for LIBOR
Borrowings.
"Event of Default" shall have the meaning assigned to such term in
Article VII.
"Facility": See Recital A, which Facility consists of the Revolving
Loans and the Letters of Credit.
"Federal Funds Rate" shall mean, for any day, the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of San Francisco, or, if
such rate is not so published for any day which is a Business Day, the average
of the quotations for the day of such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"Fee Letter" shall mean that letter agreement between the Borrower and
the Administrative Agent with respect to the payment of the Agency Fee.
"Fees" shall mean the Commitment Fees and all other fees and charges,
if any, (other than interest) payable hereunder or otherwise payable in
connection with the Facility.
-5-
<PAGE>
"Financial Officer" of any corporation shall mean the chief financial
officer and chief accounting officer of such corporation.
"Funded Debt/EBITDA Ratio" shall have the meaning assigned to such term
in Section 6.6.
"GAAP" shall mean generally-accepted accounting principles in the
United States.
"Governmental Authority" shall mean any federal, state, tribal, local
or foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guarantee" of or by any Person shall mean any obligation, contingent
or otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other Person (the "Primary Obligor") in any
manner, whether directly or indirectly, and including without limitation any
obligation of such Person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (b) to purchase property, securities or
services for the purpose of assuring the owner of such Indebtedness of the
payment of such Indebtedness or (c) to maintain working capital, equity capital
or other financial statement condition or liquidity of the Primary Obligor so as
to enable the Primary Obligor to pay such Indebtedness; provided, however, that
the term Guarantee shall not include endorsements for collection or deposit, in
either case in the ordinary course of business.
"Guaranties" means those Continuing Guarantees of even date herewith
from the Guarantor and Swift Leasing.
"Guarantor" means SWIFT TRANSPORTATION CO, INC., a Nevada corporation.
"Indebtedness" of a Person shall mean each of the following (without
duplication) that, individually, is in excess of $100,000.00 in outstanding
amount (in Dollars or the equivalent at market exchange rates) on the date such
obligation is incurred: (a) obligations of that Person to any other Person for
payment of borrowed money, (b) Capital Lease Obligations, (c) notes and drafts
drawn or accepted by that Person payable to any other Person, whether or not
representing obligations for borrowed money (but without duplication of
indebtedness for borrowed money), (d) any obligation for the purchase price of
property the payment of which is deferred for more than one year or evidenced by
a note or equivalent instrument, (e) Guarantees of Indebtedness of third
parties, and (f) a recourse or non-recourse payment obligation of any other
Person that is secured by a Lien on any property of the first Person, whether or
not assumed by the first person, up to the fair market value (from time to time)
of such property (absent manifest evidence to the contrary, the fair market
value of such property shall be the amount determined under GAAP for financial
reporting purposes).
"Information" shall have the meaning defined in Section 9.17 hereof.
"Interest Payment Date" shall mean (a) with respect to a Base Rate
Borrowing, the first day of each month in arrears, and (b) with respect to any
LIBOR Borrowing, the last day of the Interest
-6-
<PAGE>
Period applicable thereto and, in the case of a LIBOR Borrowing with an Interest
Period of more than three months' duration (if at any time made available under
this Agreement), each day that would have been an Interest Payment Date for such
Borrowing had successive Interest Periods of three months' duration been
applicable to such Borrowing and, in addition, (c) each of (i) the date of any
refinancing or conversion of a Borrowing with or to a Borrowing of a different
Type, (ii) the date of prepayment of a Borrowing and (iii) the Maturity Date.
"Interest Period" shall mean (a) as to any LIBOR Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is one month, two months, three months or six
months thereafter, as the Borrower may elect, or, if earlier, on the Maturity
Date and (b) as to any Base Rate Borrowing, the period commencing on the date of
such Borrowing and ending on the Maturity Date, the date such Borrowing is
converted to a Borrowing of a different Type in accordance with Section 2.11 or
the date of repayment or prepayment of such Borrowing in accordance with Section
2.5 or 2.12; provided, however, that if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of LIBOR Borrowings only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"Issuing Bank" shall have the meaning assigned to such term in the
Preamble, and any successor thereto.
"Lending Office," with respect to any Bank or any transferee of the
Loans or the Administrative Agent, shall mean such office or branch as such Bank
or such transferee or the Administrative Agent has designated to the Borrower
herein as the office or branch of that Bank or such transferee or the
Administrative Agent from which Loans are to be made.
"Letter of Credit Balance" shall mean, at any time, the sum of (a) the
aggregate undrawn amount of all Letters of Credit outstanding at such time plus
(b) the aggregate amount which has been drawn under Letters of Credit but for
which the Issuing Bank or the Banks, as the case may be, have not been
reimbursed by the Borrower.
"Letter of Credit Fee" shall have the meaning defined in Section
2A.1(a) hereof.
"Letter of Credit Disbursement" shall mean any payment or disbursement
made by the Issuing Bank under or pursuant to a Letter of Credit.
"Letters of Credit" shall mean letters of credit issued by the Issuing
Bank for the account of the Borrower pursuant to Article IIA.
"LIBOR Rate" shall mean, with respect to any LIBOR Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to
the next 1/10th of 1%) for United States
-7-
<PAGE>
dollar deposits quoted by the Administrative Agent as the "Inter-Bank Market
Offered Rate," with the understanding that such rate is quoted by the
Administrative Agent for the purpose of calculating effective rates of interest
for loans making reference thereto, on the first day of an Interest Period for
delivery of funds on said date for a period of time approximately equal to the
number of days in such Interest Period and in an amount approximately equal to
the principal amount to which such Interest Period applies. Borrower understands
and agrees that the Administrative Agent may base its quotation of the
Inter-Bank Market Offered Rate upon such offers or other market indicators of
the Inter-Bank Market as the Administrative Agent in its discretion deems
appropriate including, but not limited to, the rate offered for U.S. dollar
deposits on the London Inter-Bank Market two Business Days prior to the
commencement of such Interest Period.
"LIBOR Borrowing" shall mean a Borrowing bearing interest at a rate
determined by reference to the LIBOR Rate.
"Lien" shall mean any mortgage, pledge, security interest or similar
lien.
"Loans" shall mean the loans made available by the Banks to Borrower,
in the form of Revolving Loans under the Facility.
"Loan Documents" shall mean this Agreement, the Notes, the Fee Letter,
the Guaranties and all other documents, instruments and agreements of every kind
and description at any time undertaken by any Person for the benefit of the
Banks in connection with the Loans.
"Margin Stock" shall have the meaning given such term under Regulation
U.
"Material Adverse Change" means any circumstance or event which results
in an adverse change in the tangible net worth of a Person in excess of five
percent (5%).
"Maturity Date" shall mean January 16, 2001.
"Maximum Commitment" shall mean $110,000,000.00.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate (other
than one considered an ERISA Affiliate only pursuant to subsection (m) or (o) of
Section 414 of the Code) is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
"1934 Act" shall mean the United States Securities Exchange Act of
1934, as amended.
"1993 Agreement": See the Recitals.
-8-
<PAGE>
"Note" and "Notes" shall mean, severally and collectively, revolving
credit notes of the Borrower executed and delivered as provided in Section 2.7
as such Notes might be amended, modified, extended and restated from time to
time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"Permitted Lien" shall mean a Lien permitted under Section 6.1.
"Person" shall mean any natural person (whether or not acting in a
representative capacity), corporation, limited liability company, business
trust, joint venture, association, sole proprietorship, partnership or
government, or any agency or political subdivision thereof.
"Plan" shall mean any pension plan (other than a Multiemployer Plan)
that is (1) a qualified plan under Section 401(a) of the Code, (ii) subject to
the provisions of Title IV of ERISA or Section 412 of the Code and (iii)
maintained for employees of the Borrower or any ERISA Affiliate.
"Potential Default" shall mean any event or condition which upon
notice, lapse of time or both would constitute an Event of Default.
"Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its prime rate in
effect at its principal office in Phoenix, Arizona; each change in the Prime
Rate shall be effective on the date such change is publicly announced as
effective.
"Quarterly Certificate" shall mean that Quarterly Compliance
Certificate in the form of Exhibit F.
"Redeployment Loss": See Section 2.15.
"Register": See Section 9.4(d).
"Regulation D" shall mean Regulation D of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation G" shall mean Regulation G of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation T" shall mean Regulation T of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
-9-
<PAGE>
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Reportable Event" shall mean any reportable event as defined in
Section 4043(b) of ERISA or the regulations issued thereunder with respect to a
Plan (other than a Plan maintained by an ERISA Affiliate which is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the
Code).
"Required Banks" shall mean, at any time, Banks having Commitments
representing at least 66 and 2/3% of the Total Commitment.
"Revolving Loans" shall mean the revolving lines of credit loans made
available by the Banks to the Borrower pursuant to Article II. Each Revolving
Loan shall be composed of one or more LIBOR Borrowings and/or Base Rate
Borrowings.
"SEC" shall mean the United States Securities and Exchange Commission.
"Significant Subsidiary" shall have the meaning given such term under
SEC Regulation S-X, 17 C.F.R. ss.210.1-02 and shall apply to the Guarantor and
the Borrower.
"Subsidiary" of a Person shall mean any corporation, association or
other business entity of which more than 50% of the total voting power of shares
of stock entitled to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by that
Person, by one or more of the other Subsidiaries of that Person, or by any
combination thereof and shall apply to the Guarantor and the Borrower.
"Swift Leasing" means Swift Leasing Co., Inc., an Arizona corporation.
"Termination" shall mean the payment in full of the principal amount of
all Loans, all accrued interest thereon, all fees with respect thereto and all
costs and expenses owing to the Administrative Agent and the Banks, coupled with
termination of the Facility and all other obligations (if any) of all of the
Banks to advance funds or extend credit to or for the benefit of Borrower
pursuant to this Agreement.
"Termination Date" shall mean the date of the occurrence of the last
event to occur required for Termination to occur.
"Total Commitment" shall mean at any time the aggregate amount of the
Banks' Commitments, as in effect from time to time, which amount shall not
exceed the Maximum Commitment.
"Type," when used in respect of any Borrowing, shall refer to the rate
by reference to which interest on such Borrowing is determined. For purposes
hereof, "rate" shall mean the LIBOR Rate or the Base Rate.
-10-
<PAGE>
SECTION 1.2 Terms Generally. The definitions in Section 1.1 shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. All references herein to Articles, Sections, Exhibits
and Schedules shall be deemed references to Articles and Sections of this
Agreement, and Exhibits and Schedules to this Agreement, unless the context
shall otherwise require. Except as otherwise expressly provided herein, all
terms of an accounting or financial nature shall be construed in accordance with
GAAP as in effect in the United States of America from time to time; provided,
however, that, for purposes of determining compliance with any covenant set
forth in Article VI, such terms shall be construed in accordance with GAAP as in
effect on the date of execution of this Agreement.
-11-
<PAGE>
ARTICLE II
THE REVOLVING CREDIT FACILITY
SECTION 2.1 The Commitment.
---------------
(a) Subject to the terms and conditions herein set forth, each
Bank, severally and not jointly, agrees to make advances of its Revolving Loans
to the Borrower, at any time and from time to time on and after the date hereof
and until the earlier of (i) the Maturity Date or (ii) the termination of the
Commitment of said Bank, in an aggregate principal amount at any time
outstanding not to exceed such Bank's Commitment, subject, however, to the
conditions that (A) at no time shall the outstanding aggregate principal amount
of all Borrowings made by all Banks pursuant to their Revolving Loans, together
with the Letter of Credit Balance, exceed the Maximum Commitment, and (B) at all
times the outstanding aggregate principal amount of all Borrowings advanced by
each Bank pursuant to its Revolving Loans shall equal the product of (y) the
percentage which its Commitment represents of the Maximum Commitment times (z)
the outstanding aggregate principal amount of all Borrowings advanced by all
Banks pursuant to their Revolving Loans. Such Commitments may be terminated or
reduced from time to time pursuant to Sections 2.10 and 2.20. Within the
foregoing limits, the Borrower may borrow, pay or prepay and reborrow hereunder,
on and after the date hereof and prior to the Maturity Date, subject to the
terms, conditions and limitations set forth herein.
(b) Each advance of the proceeds of the Revolving Loans shall
constitute a single Borrowing. Each such Borrowing shall be in a principal
amount which is an integral multiple of $100,000.00 and not less than
$1,000,000.00 (or, if less, a principal amount equal to the remaining balance of
the available Commitments).
SECTION 2.2 [Intentionally left blank]
SECTION 2.3 Procedures for Borrowings Under the Revolving Loans.
----------------------------------------------------
(a) Each advance under the Revolving Loans shall be a single
LIBOR Borrowing or a single Base Rate Borrowing, as the Borrower may request.
Borrowings of more than one Type may be outstanding at the same time; provided,
however, that (i) the Borrower shall not be entitled to request any Borrowing
which, if made, would result in an aggregate of more than ten separate
Borrowings being outstanding collectively under the Revolving Loans at any one
time and (ii) each LIBOR Borrowing shall be in a principal amount which is an
integral multiple of $100,000.00 and not less than $1,000,000.00. For purposes
of the foregoing, Borrowings having different Interest Periods, regardless of
whether they commence on the same date, shall be considered separate Borrowings.
(b) In order to request a Borrowing, the Borrower shall give
to the Administrative Agent written or telecopy notice (or telephone notice
promptly confirmed in writing or by telecopy) in the form of Exhibit "B" (a
"Borrowing Notice") not later than 9:00 a.m., Arizona time, (a) in the
-12-
<PAGE>
case of a LIBOR Borrowing, three Business days before a proposed Borrowing and
(b) in the case of a Base Rate Borrowing, on the day of a proposed Borrowing.
Each Borrowing Notice shall be irrevocable and shall in each case specify (i)
whether the Borrowing then being requested is to be a LIBOR Borrowing or a Base
Rate Borrowing; (ii) the date of such Borrowing (which shall be a Business Day)
and the amount thereof; (iii) if such Borrowing is to be a LIBOR Borrowing, the
Interest Period with respect thereto; and (iv) if such Borrowing is to refinance
all or any part of any outstanding Borrowing, the identity and amount of such
Borrowing that the Borrower requests to be refinanced. If no election as to the
Type of Borrowing is specified in any Borrowing Notice, then the requested
Borrowing shall be a Base Rate Borrowing. If no Interest Period with respect to
any LIBOR Borrowing is specified in any Borrowing Notice, then the Borrower
shall be deemed to have selected an Interest Period of one month's duration.
Subject to Section 2.11, if the Borrower shall not have given notice in
accordance with this Section of its election to refinance a LIBOR Borrowing
prior to the end of the Interest Period in effect for such Borrowing, then the
Borrower (unless such Borrowing is repaid at the end of such Interest Period)
shall be deemed to have given notice of an election to refinance such Borrowing
with a Base Rate Borrowing.
SECTION 2.4 Loans.
------
(a) Each Loan shall be made as part of a Borrowing made by the
Banks ratably in accordance with their Commitments; provided, however, that the
failure of any Bank to make any Loan shall not in itself relieve any other Bank
of its obligation to lend hereunder (it being understood, however, that no Bank
shall be responsible for the failure of any other Bank to make any Loan required
to be made by such other Bank).
(b) Each Bank shall make any LIBOR Borrowing by causing either
at its option any domestic branch or the Eurodollar Lending Office of such Bank
to make such Loan; provided that any exercise of such option shall not affect
the obligation of the Borrower to repay such Loan in accordance with the terms
of this Agreement and the Note.
(c) Subject to Section 2.3, each Bank shall make each Loan to
be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to the Administrative Agent in Phoenix, Arizona, not
later than 11:30 a.m., Arizona time, and the Administrative Agent shall by 12:00
noon, Arizona time, credit the amounts so received to the general deposit
account of the Borrower with the Administrative Agent (or such other account as
the Borrower may designate) or, if a Borrowing shall not occur on such date
because any condition precedent herein specified shall not have been met, return
the amounts so received to the respective Banks. Loans shall be made by the
Banks pro rata in accordance with Section 2.16. Unless the Administrative Agent
shall have received notice from a Bank prior to the date of any Borrowing that
such Bank will not make available to the Administrative Agent such Bank's
portion of any future Borrowing, the Administrative Agent may assume that such
Bank has made such portion available to the Administrative Agent on the date of
such Borrowing in accordance with this paragraph (c) and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent that such Bank shall not
have made such portion available to the Administrative Agent, such Bank and the
Borrower severally agree to repay
-13-
<PAGE>
to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the
Administrative Agent at (i) in the case of the Borrower, the interest rate
applicable at the time to the Loans comprising such Borrowing and (ii) in the
case of such Bank, the Federal Funds Rate. If such Bank shall repay to the
Administrative Agent such corresponding amount, such amount shall constitute
such Bank's Loan as part of such Borrowing for purposes of this Agreement.
(d) In the event a Bank fails to make its portion of a
Borrowing, Borrower may request in writing to the Administrative Agent that such
portion be advanced by the remaining Banks. So long as no Event of Default shall
have occurred and be continuing and so long as the aggregate principal amount of
each Bank's Revolving Loans after giving effect to the additional Loan would not
exceed its Commitment, the remaining Banks shall make Loans in the amount of
such portion pro rata in accordance with Section 2.16.
SECTION 2.5 Refinancings. Subject to Section 2.11, the Borrower may
refinance all or any part of any Borrowing with a Borrowing of the same or a
different Type made pursuant to Section 2.3, and at any time may combine all
Base Rate Borrowings into a single Borrowing, subject to the conditions and
limitations set forth herein and elsewhere in this Agreement. Any Borrowing or
part thereof so refinanced or combined shall be deemed to have been repaid in
accordance with Section 2.7 with the proceeds of a new Borrowing hereunder, and
the proceeds of the new Borrowing (except to the extent, if any, they exceed the
principal amount of the Borrowing(s) being refinanced) shall not be disbursed to
the Borrower pursuant to Section 2.4(c).
SECTION 2.6 Fees.
-----
(a) The Borrower agrees to pay to each Bank, through the
Administrative Agent, (i) quarterly in arrears for each calendar quarter ending
each March 31, June 30, September 30 and December 31, on a date not later than
five Business Days after such calendar quarter has ended, commencing December
31, 1996 and (ii) on the date on which the respective Commitment of such Bank
shall be terminated as provided herein, for the period from the end of the
preceding calendar quarter to the date of such termination, a commitment fee
(each a "Commitment Fee") on a prorated basis at a rate per annum equal to the
Applicable Margin as to the Commitment Fee on the Average Adjusted Daily Undrawn
Balance during the preceding calendar quarter (or shorter period (1) commencing
with the date hereof or (2) ending with the Maturity Date or any other date on
which the respective Commitment of such Bank shall be terminated). All
Commitment Fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days. The Commitment Fees due to each Bank shall
commence to accrue on the date hereof and shall cease to accrue on the earlier
of the Maturity Date and the termination of the respective Commitment of Bank as
provided herein.
(b) All Fees shall be paid to each Bank on the dates due, in
Dollars in immediately available funds to the Administrative Agent for
distribution, if and or appropriate, among the Banks.
-14-
<PAGE>
Once paid, any Fees paid to any Bank in advance shall only be refundable by a
Bank if such Bank fails to make any Loan in accordance with its Commitment.
(c) The Borrower agrees to pay to the Administrative Agent,
for its own account, any fee provided for in the Fee Letter (the "Agency Fee")
at the times provided therein.
(d) Of the Letter Credit Fee paid to the Issuing Bank, an
amount equal to the LIBOR Borrowing Applicable Margin shall be paid to each
Bank, through the Administrative Agent on a prorated basis.
SECTION 2.7 Notes; Repayment of Revolving Loans. The Revolving Loan
made by each Bank shall be evidenced by a separate Note duly completed and
executed on behalf of the Borrower, dated the date of said Bank's Commitment, in
the form of Exhibit C hereto, payable to the order of such Bank in a principal
amount equal to said Bank's Commitment. Each Note shall bear interest from the
date thereof on the outstanding principal balance thereof as set forth in
Section 2.8. Each Bank may (and is hereby authorized by the Borrower, at said
Bank's discretion, to) endorse on a schedule attached to the Note held by such
Bank (or on a continuation of such schedule attached to each such Note and made
a part thereof), or otherwise to record in such Bank's internal records, an
appropriate notation evidencing the date and amount of each Borrowing under the
Revolving Loan of such Bank, each payment or prepayment of principal of any such
Borrowing and the other information provided for on such schedule; provided,
however, that the failure of any Bank to make such a notation or any error
therein shall not in any manner affect the obligation of the Borrower to repay
each Borrowing under the Revolving Loans in accordance with the terms of the
Notes.
SECTION 2.8 Interest on Revolving Loans.
----------------------------
(a) Subject to the provisions of Sections 2.9 and 2.11, each
LIBOR Borrowing shall bear interest (computed on the basis of the actual number
of days elapsed over a year of 360 days) at a rate per annum equal to, the LIBOR
Rate for the Interest Period in effect for such LIBOR Borrowing plus the
Applicable Margin. Interest on each LIBOR Borrowing shall be payable on each
applicable Interest Payment Date. The LIBOR Rate for each Interest Period shall
be determined by the Administrative Agent, and such determination shall be made
in accordance with the provisions of this Agreement. The Administrative Agent
shall promptly advise the Borrower and each Bank of such determination.
(b) Subject to the provisions of Sections 2.9 and 2.11, each
Base Rate Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days, as the case may be) at a rate
per annum equal to the Base Rate plus the Applicable Margin. Interest on each
Base Rate Borrowing shall be payable on each applicable Interest Payment Date.
The Base Rate shall be determined by the Administrative Agent and such
determination shall be made in accordance with the provisions of this Agreement.
The Administrative Agent shall promptly advise the Borrower and each Bank of
such determination.
-15-
<PAGE>
SECTION 2.9 Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Revolving Loan or any other
amount becoming due hereunder, whether by scheduled maturity, notice of
prepayment, acceleration or otherwise, the Borrower shall on demand from time to
time pay interest, to the extent permitted by law, on such defaulted amount up
to (but not including the date of actual payment (after as well as before
judgment) at the Default Rate.
SECTION 2.10 Termination and Reduction of Commitments.
-----------------------------------------
(a) The Commitment shall be automatically terminated on the
Maturity Date. The Borrower, however, has the right to request, upon at least
sixty (60) days written notice to each Bank prior to each Anniversary Date, the
extension of the Maturity Date for an additional one year period; provided,
however, that approval of any such extension shall be at the sole and absolute
discretion of the Banks and any such approval shall require the affirmative
consent of all Banks.
(b) Upon at least three Business Days' prior irrevocable
written or telecopy notice to the Administrative Agent, Borrower may at any time
in whole permanently terminate, or from time to time in part permanently reduce,
each such Commitment; provided, however, that each partial reduction of the
Maximum Commitment shall be in an integral multiple of $100,000.00 and in a
minimum principal amount of $1,000,000.00; and provided further, that the
Borrower shall not be permitted to terminate or reduce the Maximum Commitment
if, as a result respectively, the aggregate principal amount of the Revolving
Loans together with the Letter of Credit Balance outstanding hereunder would
exceed such reduced amount of the Maximum Commitment.
SECTION 2.11 Conversion and Continuation of Borrowings. The Borrower
shall have the right at any time upon prior irrevocable notice to the
Administrative Agent not later than 10:00 a.m., Arizona time, (i) on the day of
conversion, to convert any LIBOR Borrowing into a Base Rate Borrowing, (ii)
three Business Days prior to conversion or continuation, to convert any Base
Rate Borrowing into a LIBOR Borrowing or to continue any LIBOR Borrowing as a
LIBOR Borrowing for an additional Interest Period, and (iii) three Business Days
prior to conversion, to convert the Interest Period with respect to any LIBOR
Borrowing to another permissible Interest Period, subject in each case to the
following:
(a) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, the aggregate principal amount of
such Borrowing converted or continued shall be an integral multiple of
$100,000.00 and not less than $1,000,000.00;
(b) each conversion shall be effected by the Banks by applying
the proceeds of the new Borrowing resulting from such conversion to the
Borrowing (or portion thereof) being converted; accrued interest on a Borrowing
(or portion thereof) being converted shall be paid by the Borrower at the time
of conversion;
(c) any LIBOR Borrowing may be converted only at the end of
the Interest Period applicable thereto;
-16-
<PAGE>
(d) any portion of a Borrowing maturing or required to be
repaid in less than one month may not be converted into or continued as a LIBOR
Borrowing;
(e) any portion of a LIBOR Borrowing which cannot be continued
as a LIBOR Borrowing by reason of clauses (c) and (d) above shall be
automatically converted at the end of the Interest Period in effect for such
Borrowing into a Base Rate Borrowing; and
(f) each conversion or continuation shall be made pro rata
among the Banks in accordance with the respective principal amounts of the
converted or continued Borrowings.
Each notice pursuant to this Section shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Borrowing that the Borrower requests be converted or continued, (ii) whether
such Borrowing is to be converted to or continued as a LIBOR Borrowing or a Base
Rate Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted to or continued as a LIBOR Borrowing, the Interest Period with respect
thereto. If no Interest Period is specified in any such notice with respect to
any conversion to or continuation as a LIBOR Borrowing, the Borrower shall be
deemed to have selected an Interest Period of one month's duration. The
Administrative Agent shall advise the other Banks of any notice given pursuant
to this Section and of each Bank's portion of any converted or continued
Borrowing. If the Borrower shall not have given notice in accordance with this
Section to continue any LIBOR Borrowing into a subsequent Interest Period (and
shall not otherwise have given notice in accordance with this Section to convert
such Borrowing), such Borrowing shall, at the end of the Interest Period
applicable thereto (unless repaid pursuant to the terms hereof), automatically
be continued as a Base Rate Borrowing.
SECTION 2.12 Prepayment.
-----------
(a) The Borrower shall have the right at any time and from
time to time to prepay any Borrowing, in whole or in part, upon written or
telecopy notice (or telephone notice promptly confirmed by written or telecopy
notice) to the Administrative Agent, such notice to be three Business Days with
respect to a LIBOR Borrowing and one Business Day with respect to a Base Rate
Borrowing; provided, however, that each partial prepayment shall be in an amount
which is an integral multiple of $100,000.00 and not less than $1,000,000.00.
(b) On the date of any termination or reduction of the Maximum
Commitment pursuant to Section 2.10, the Borrower shall pay or prepay an amount
of the Revolving Loan such that the sum of the aggregate principal amount of
such Loan outstanding together with the Letter of Credit Balance will not exceed
the respective Commitment after giving effect to such termination or reduction.
(c) Each notice of prepayment shall specify the prepayment
date and the principal amount of each Borrowing (or portion thereof) to be
prepaid, shall be irrevocable and shall commit the Borrower to prepay such
Borrowing (or portion thereof) by the amount stated therein on the date stated
therein. All prepayments under this Section shall be subject to Section 2.15 but
otherwise
-17-
<PAGE>
without premium or penalty. All prepayments under this Section shall be
accompanied by a payment of accrued interest on the amount being prepaid to the
date of payment.
SECTION 2.13 Reserve Requirements; Change in Circumstances.
----------------------------------------------
(a) If any Bank shall have determined that the adoption after
the date hereof of any law, rule, regulation or guideline regarding capital
adequacy, or any change after the date hereof in any of the foregoing or in the
interpretation or administration of any of the foregoing by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or any Lending Office of such
Bank) or any Bank's holding company with any request or directive promulgated
after the date hereof regarding capital adequacy (whether or not having the
force of law) of any such Governmental Authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on such
Bank's or on the capital of such Bank's holding company, if any, as a
consequence of this Agreement, the issuance of a Letter of Credit or the
Revolving Loan made by such Bank to a level below that which such Bank or such
Bank's holding company could have achieved but for such adoption, change or
compliance (taking into consideration such Bank's policies and the policies of
such Bank's holding company with respect to capital adequacy) by an amount
deemed by such Bank in good faith to be material, then from time to time the
Borrower shall pay to such Bank such additional amount or amounts as will
compensate such Bank or such Bank's holding company for any such reduction
suffered, except that Borrower shall not be obligated to compensate any Bank for
any costs associated with an increase in its administrative burden resulting
from any such adoption, change or compliance.
(b) Notwithstanding any other provision herein, if after the
date of this Agreement any change in applicable law or regulation (either by way
of changes in existing laws or regulations or the introductions of new laws or
regulations) or in the interpretation or administration thereof by any
Governmental Authority charged with the interpretation or administration thereof
(whether or not having the force of law) shall change the basis of taxation of
payments to any Bank of the principal of or interest on any LIBOR Borrowing made
by such Bank, Fees or other amounts payable hereunder (other than changes in
respect of taxes imposed on the net income of such Bank), or shall impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of or credit extended by
such Bank, including without limitation any reserve requirement that may be
applicable to "eurocurrency liabilities" under and as defined in Regulation D,
or shall impose on such Bank or the London interbank market any other condition
affecting this Agreement or any LIBOR Borrowing made by such Bank, and the
result of any of the foregoing shall be to increase the cost to such Bank of
making or maintaining any LIBOR Borrowing or to reduce the amount of any sum
received or receivable by such Bank hereunder or under the Note (in respect of
LIBOR Borrowing only), whether of principal, interest or otherwise, by an amount
deemed by such Bank in good faith to be material, then, the Borrower will pay to
such Bank upon demand such additional amount or amounts as will compensate such
Bank for such additional costs incurred or reduction suffered.
-18-
<PAGE>
(c) A certificate of a Bank setting forth such amount or
amounts as shall be necessary to compensate such Bank or its holding company as
specified in paragraph (a) or (b) above, as the case may be, and setting forth
in reasonable detail the manner in which such amount or amounts shall have been
determined shall be delivered to the Borrower and shall be made on a reasonable
basis. The Borrower shall pay each Bank the amount shown as due on any such
certificate delivered by it within 10 days after its receipt of the same.
(d) Failure on the part of any Bank to demand compensation for
any increased costs or reduction in amounts received or receivable with respect
to any period shall not constitute a waiver of said Bank's right to demand
compensation with respect to such period or any other period. The protection of
this Section shall be available to any Bank regardless of any possible
contention of the invalidity or inapplicability of the law, rule, regulation,
guideline or other change or condition which shall have occurred or been
imposed, provided that if such Bank is compensated for such increased costs or
reduction by any Governmental Authority or third party in the event such
invalidity or inapplicability is finally determined, then such Bank shall return
to Borrower the respective compensation paid by Borrower, up to the lesser of
such amount as is received by such Bank or such amount as was paid by Borrower.
(e) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section shall
survive Termination, provided that Borrower shall have no further obligation to
the Banks under this Section unless a certificate setting forth the amount of
such obligation shall have been delivered by the Banks pursuant to paragraph (c)
above within ninety (90) calendar days after the Termination Date.
(f) Each Bank or the Administrative Agent on behalf of the
Banks shall give notification to the Borrower of any event or prospective event
which will give rise to the operation of paragraphs (a) or (b) of this Section,
such notification to be sent within thirty (30) days of the date of the public
promulgation of the effective date of any such law, rule, regulation, guidelines
or change therein.
(g) Notwithstanding any other provisions herein to the
contrary, if after receipt of any notice from a Bank that the Borrower is
obligated to pay additional amounts to the Bank pursuant to any change arising
under Section 2.13(a) or (b), Borrower shall have the option to prepay or
convert any Borrowing adversely affected by any change described in Paragraph
(a) or (b) of this section within seven (7) days of receipt of any such notice
from a Bank, without the obligation to pay to such Bank with respect to such
prepayment or conversion any amount or amounts otherwise payable to such Bank by
Borrower pursuant to this Section 2.13
SECTION 2.14 Change in Legality.
-------------------
(a) Notwithstanding any other provision herein, if any change
in any law or regulation or in the interpretation thereof by any Governmental
Authority charged with the administration or interpretation thereof shall make
it unlawful for any Bank to make or maintain any LIBOR Borrowing or to give
effect to its obligations as contemplated hereby with respect to any
-19-
<PAGE>
LIBOR Borrowing, then by written notice to the Borrower setting forth in
reasonable detail the relevant circumstances and the effect thereof, such Bank
may:
(i) declare that LIBOR Borrowings will not thereafter
be made by such Bank hereunder, whereupon any request by the Borrower
for a LIBOR Borrowing shall be deemed a request for a Base Rate
Borrowing unless such declaration shall be subsequently withdrawn; and
(ii) require that all outstanding LIBOR Borrowings
made by it be converted to Base Rate Borrowings, in which event all
such LIBOR Borrowings shall be automatically converted to Base Rate
Borrowings as of the effective date of such notice as provided in
paragraph (b) below.
In the event any Bank shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the LIBOR Borrowings that would have been made by such Bank or the
converted LIBOR Borrowings of such Bank shall instead be applied to repay the
Base Rate Borrowings made by such Bank in lieu of, or resulting from the
conversion of, such LIBOR Borrowings.
(b) For purposes of this Section, a notice to the Borrower by
any Bank shall be effective as to each LIBOR Borrowing, if lawful, on the last
day of the Interest Period currently applicable to such LIBOR Borrowing; in all
other cases such notice shall be effective on the date of receipt by the
Borrower.
(c) Each Bank shall use its best efforts to give prompt
notification to the Borrower of any event or prospective event which will give
rise to the operation of paragraph (a) of this Section.
SECTION 2.15 Redeployment Loss. The Borrower shall pay to each Bank on
demand against any Redeployment Loss (defined below) arising as a consequence of
any payment, prepayment, failure to borrow or convert to a LIBOR Borrowing after
giving notice of its intent to so borrow or convert pursuant to Sections 2.3(b)
or 2.11, or conversion of a LIBOR Borrowing required by any other provision of
this Agreement or otherwise made or deemed made on a date other than the last
day of the Interest Period applicable thereto. "Redeployment Loss" shall mean,
in each circumstance, the amount which is the sum of the discounted monthly
differences for each month from the month of prepayment through the month in
which such LIBOR Borrowing matures, calculated as follows for each such month:
(a) Determine the amount of interest which would have
accrued each month on the amount prepaid at the interest rate
applicable to such amount had it remained outstanding until the last
day of the LIBOR Borrowing applicable thereto.
(b) Subtract from the amount determined in (a) above
the amount of interest which would have accrued for the same month on
the amount prepaid for
-20-
<PAGE>
the remaining term of such LIBOR Borrowing at the LIBOR Rate in effect
on the date of prepayment for new loans in a principal amount equal to
the amount prepaid made for such term.
(c) If the result obtained in (b) for any month is
greater than zero, discount that difference by the LIBOR Rate used in
(b) above.
A certificate of any Bank setting forth in reasonable detail any amount or
amounts which Bank is entitled to receive pursuant to this Section and setting
forth in reasonable detail the manner in which such amounts shall have been
determined shall be delivered to the Borrower and shall be reasonably made.
Without prejudice to the survival of any other agreement contained herein, the
agreements and obligations contained in this Section shall survive Termination
provided that Borrower shall have no further obligation to any Bank under this
Section unless a certificate setting forth the amount of such obligation shall
have been delivered by such Bank pursuant to the preceding sentence within
ninety (90) calendar days after the Termination Date.
SECTION 2.16 Pro Rata Treatment. Except as required under Section 2.14
or permitted by Section 2.20, each Borrowing, each payment or prepayment of
principal of any Borrowing, each payment of interest on the Loans, each payment
of the Fees, each reduction of the Commitments and each refinancing of any
Borrowing with a Borrowing of any Type, shall be allocated pro rata among the
Banks in accordance with their respective Commitments (or, if such Commitments
shall have expired or been terminated, in accordance with the respective
principal amounts of their outstanding Loans). Each Bank agrees that in
computing such Bank's portion of any Borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each Bank's percentage of
such Borrowing to the next higher or lower whole dollar amount.
SECTION 2.17 Sharing of Setoffs. Each Bank agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower, or pursuant to a secured claim under Section 506 of Title 11 of
the United States Code or other security or interest arising from, or in lieu
of, such secured claim, received by such Bank under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Loan or Loans as a result
of which the unpaid principal portion of the Loans of such Bank shall be
proportionately less than the unpaid principal portion of the Loans of any other
Bank, it shall be deemed simultaneously to have purchased from such other Bank
at face value, and shall promptly pay to such other Bank the purchase price for,
a participation in the Loans of such other Bank, so that the aggregate unpaid
principal amount of the Loans and participations in the Loans held by each Bank
shall be in the same proportion to the aggregate unpaid principal amount of all
Loans then outstanding as the principal amount of its Loans prior to such
exercise of banker's lien, setoff or counterclaim or other event was to the
principal amount of all Loans outstanding prior to such exercise of banker's
lien, setoff or counterclaim or other event; provided, however, that, if any
such purchase or purchases or adjustments shall be made pursuant to this Section
and the payment giving rise thereto shall thereafter be recovered, such purchase
or purchases or adjustments shall be rescinded to the extent of such recovery
and the purchase price or prices or adjustment restored without interest. The
Borrower expressly consents to the foregoing arrangements and agrees that
-21-
<PAGE>
any Bank holding a participation in a Loan deemed to have been so purchased may
exercise any and all rights of banker's lien, setoff or counterclaim with
respect to any and all moneys owing by the Borrower to such Bank by reason
thereof as fully as if such Bank had made a Loan directly to the Borrower in the
amount of such participation.
SECTION 2.18 Payments.
---------
(a) The Borrower shall make each payment (including without
limitation principal of or interest on any Borrowing or any Fees or other
amounts) hereunder and under any other Loan Document no later than 12:00 noon,
Arizona time, on the date when due in Dollars to the Administrative Agent at its
offices at 201 Third Street, San Francisco, California 94103, Attention: Agency
Department, or at such other location as it may direct the Borrower in writing
to use, in immediately available funds. Any payment received by the
Administrative Agent after 12:00 noon, Arizona time, shall be deemed to have
been received by Administrative Agent on the next Business Day.
(b) Whenever any payment (including without limitation
principal of or interest on any Borrowing or any Fees or other amounts)
hereunder or under any other Loan Document shall become due, or otherwise would
occur, on a day that is not a Business Day, such payment may be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of interest or Fees, if applicable.
SECTION 2.19 Taxes.
------
(a) All payments by the Borrower under this Agreement shall be
made without setoff or counterclaim and in such amounts as may be necessary in
order that all such payments after deduction or withholding for or on account of
any present or future taxes, levies, imposts, duties, withholdings or other
charges of whatsoever nature and all liabilities with respect thereto, other
than any taxes on or measured by the gross or net income of a Bank pursuant to
(i) the income and/or franchise tax laws of the jurisdictions in which such Bank
is incorporated or organized or in which the principal office of such Bank or
the branch that is a party to this Agreement of that Bank is located, and (ii)
the income and/or franchise tax laws of the jurisdictions in which the Lending
Office or the Eurodollar Lending Office of that Bank are then located (all such
nonexcluded taxes, levies, imposts, duties, withholdings and liabilities being
hereinafter referred to as "Taxes"), shall not be less than the amounts
otherwise specified to be paid by the Borrower to or for the account of the
Administrative Agent or Bank (or any transferee or assignee (each, a
"Transferee")) under this Agreement. Upon request of the Borrower in writing,
each Bank shall designate a different Lending Office or Eurodollar Lending
Office, as the case may be, if such designation will avoid the imposition of
Taxes and if such designation will not, in the sole judgment of such Bank, be
otherwise disadvantageous to such Bank. With respect to each deduction or
withholding for or on account of any Taxes of the Administrative Agent or any
Bank (or Transferee), Borrower shall promptly (and in any event not later than
45 days thereafter) furnish to such Administrative Agent or Bank (or Transferee)
a receipt evidencing payment thereof.
-22-
<PAGE>
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as "Stamp Taxes").
Each Bank that is organized outside the United States represents and warrants
that as of the Closing Date, it is not aware of any Stamp Tax imposed by the
jurisdiction in which it is incorporated that applies to this Agreement or any
payment made to such Bank hereunder.
(c) The Borrower will indemnify each Bank (or Transferee) and
the Administrative Agent for the full amount of Taxes and Stamp Taxes (including
without limitation any Taxes or Stamp Taxes imposed by any jurisdiction on
amounts payable under this Section) paid by such Bank (or Transferee) or the
Administrative Agent, as the case may be, and any liability (including without
limitation penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Stamp Taxes were correctly or legally
asserted by the relevant taxing authority or other Governmental Authority. Such
indemnification shall be made within 30 days after the date any Bank (or
Transferee) or the Administrative Agent, as the case may be, makes written
demand therefor. If a Bank, as the result of any Tax with respect to which the
Borrower is required to make a payment pursuant to this Section shall realize a
tax credit or refund in its country or other jurisdiction of incorporation or
organization or in the jurisdiction in which its principal office or Lending
Office or Eurodollar Lending Office is then located, which tax credit or refund
would not have been realized but for the Borrower's payment of such Tax, such
Bank shall pay to the Borrower an amount equal to such tax credit or refund (to
the extent of amounts that have been paid by the Borrower under this Section
with respect to such credit or refund) net of all out-of-pocket expenses of such
Bank; provided that the Borrower, upon the request of the Bank, agrees to return
such credit or refund (plus penalties, interest or other charges) to such Bank
in the event such Bank is required to repay such credit or refund to the
relevant taxing authority. Any amount required to be calculated pursuant to this
Section shall be calculated in good faith by the Bank (or Transferee) or the
Administrative Agent, and such calculation shall be conclusive and binding upon
the parties hereto.
(d) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section shall
survive Termination, provided that Borrower shall have no further obligation to
the Banks under this Section unless a certificate setting forth the amount of
such obligation shall have been delivered by the Banks to the Borrower within
ninety (90) calendar days after the Termination Date.
(e) Each Bank (or Transferee) that is organized outside the
United States (i) on or before the date it becomes a party to this Agreement and
(ii) with respect to each Lending Office or Eurodollar Lending Office located
outside the United States of such Bank (or Transferee), on or before the date
such office or branch becomes a Lending Office or Eurodollar Lending Office,
shall deliver to the Borrower and the Administrative Agent such certificates,
documents or other evidence, as required by the Code or Treasury Regulations
issued pursuant thereto, including Internal Revenue Service Form 1001 or Form
4224, properly completed and duly executed by such Bank (or Transferee)
establishing that payments received hereunder are (i) not subject to withholding
under the Code because such payment is effectively connected with the conduct by
such Bank (or
-23-
<PAGE>
Transferee) of a trade or business in the United States or (ii) totally exempt
from United States Federal withholding tax under a provision of an applicable
tax treaty. In addition, each such Bank (or Transferee) shall, if legally able
to do so, thereafter deliver such certificates, documents or other evidence from
time to time establishing that payments received hereunder are not subject to
such withholding upon receipt of a written request therefor from the Borrower or
the Administrative Agent. Unless the Borrower and the Administrative Agent have
received forms or other documents satisfactory to them indicating that payments
hereunder or under the Notes are not subject to United States Federal
withholding tax, the Borrower or the Administrative Agent shall withhold such
taxes from such payments at the applicable statutory rate.
(f) The Borrower shall not be required to pay any additional
amounts to any Bank (or Transferee) or the Administrative Agent in respect to
United States Federal withholding tax pursuant to paragraph (a) above if the
obligation to pay such additional amounts would not have arisen but for a
failure by such Bank (or Transferee) or the Administrative Agent to deliver the
certificates, documents or other evidence specified in the preceding paragraph
(e) unless such failure is attributable to (i) a change in applicable law,
regulation or official interpretation thereof or (ii) an amendment or
modification to or a revocation of any applicable tax treaty or a change in
official position regarding the application or interpretation thereof, in each
case on or after the date such Bank (or Transferee) or the Administrative Agent
becomes a party to this Agreement (or, if applicable, on or after the date a
Lending Office or Eurodollar Lending Office of such Bank (or Transferee) or
Administrative Agent became a Lending Office or Eurodollar Lending Office
hereunder).
(g) Nothing contained in this Section shall require any Bank
(or Transferee) or the Administrative Agent to make available any of its tax
returns (or any other information relating to its taxes) which it deems to be
confidential.
(h) Each Bank or the Administrative Agent on behalf of the
Banks shall give notification to the Borrower of any event or prospective event
which will give rise to the operation of paragraphs (a), (b) or (c) of this
Section, such notification to be sent within thirty (30) days of the date of the
public promulgation of the effective date of any such Taxes or Stamp Taxes.
SECTION 2.20 Termination or Assignment of Commitments Under Certain
------------------------------------------------------
Circumstances.
- --------------
(a) If any Bank (or Transferee) or the Administrative Agent
claims any additional amounts payable pursuant to Section 2.13 or Section 2.19
or exercises its rights under Section 2.14, it shall (consistent with legal and
regulatory restrictions) (i) promptly notify the Borrower (through the
Administrative Agent) of the circumstances giving rise to such additional
amounts or the exercise of such rights and (ii) file any certificate or document
requested by the Borrower or change the jurisdiction of its applicable Lending
Office or take any other action if the making of such a filing or change or the
taking of such action would avoid the need for or reduce the amount of any such
additional amounts which may thereafter accrue or avoid the circumstances giving
rise to such exercise and would not, in the sole determination of such Bank (or
Transferee), be otherwise disadvantageous to such Bank (or Transferee).
-24-
<PAGE>
(b) In the event that any Bank shall have delivered a notice
or certificate pursuant to Section 2.13 or 2.14, or the Borrower shall be
required to make additional payments to any Bank under Section 2.19, the
Borrower shall have the right, at its option and own expense, upon notice to
such Bank and the Administrative Agent, (i) in the case of Sections 2.13, 2.14
or 2.19 only, to terminate the Commitment of such Bank or (ii) in all cases
described in this paragraph, to require such Bank to transfer and assign without
recourse (in accordance with and subject to the restrictions contained in
Section 9.4) all its interests, rights and obligations under this Agreement to
another financial institution reasonably acceptable to the Administrative Agent
which shall assume such obligations; provided that (i) no such termination or
assignment shall conflict with any law, rule or regulation or order of any
Governmental Authority and (ii) the Borrower or the assignee, as the case may
be, shall pay to the affected Bank in immediately available funds on the date of
such termination or assignment the principal of and interest accrued to the date
of payment on the Loans made by it hereunder and all other amounts accrued for
its account or owed to it hereunder, including without limitation amounts
payable and owed to it pursuant to Sections 2.13, 2.14 and 2.19, if any.
(c) Each Bank represents and warrants to the Borrower that as
of the date hereof it is not aware of any claims available to it under Section
2.13, 2.14 or 2.19 or any circumstances which it has determined will enable it
to make any such claims.
-25-
<PAGE>
ARTICLE IIA
LETTERS OF CREDIT
SECTION 2A.1 Standby Letters of Credit.
--------------------------
(a) Provided that the Borrower has satisfied the conditions
precedent contained in Section 2A.1(b) hereof, the Issuing Bank agrees, from
time to time, to issue and/or renew Letters of Credit on behalf of the Borrower
so long as (i) upon such issuance or renewal, an issuance fee (the "Letter of
Credit Fee") is paid by Borrower to the Issuing Bank in an amount equal to the
Applicable Margin as to the Letter of Credit Fee times the amount of each Letter
of Credit, and (ii) the outstanding aggregate principal amount of all Borrowings
made by all Banks pursuant to their Revolving Credit Loan, together with the
Letter of Credit Balance, after giving effect to such Letter of Credit, will not
exceed the Maximum Commitment.
(b) The obligation of the Issuing Bank to issue and/or renew
any Letters of Credit on behalf of the Borrower shall be subject to the
following conditions precedent on the date of issuance or renewal of each such
Letter of Credit:
(i) The Borrower shall execute and deliver to the
Issuing Bank an application for letter of credit, specifying the amount
of the requested letter of credit, the requested term thereof, which
term may not exceed one year, and the beneficiary thereof; and
(ii) No Event of Default shall exist and no event or
condition shall exist that after notice or lapse of time, or both would
constitute an Event of Default.
SECTION 2A.2 Notice. The Issuing Bank shall give the Administrative
Agent, which shall in turn give to each Bank, prompt written or telecopy advice
of any notice received from the Borrower pursuant to this paragraph.
SECTION 2A.3 Letter of Credit Participations.
--------------------------------
(a) By the issuance of a Letter of Credit and without any
further action on the part of the Issuing Bank or the Banks in respect thereof,
the Issuing Bank hereby grants to each Bank, and each Bank hereby acquires from
the Issuing Bank, a participation in such Letter of Credit equal to such Bank's
Commitment percentage, based upon the Commitments in effect at the time of any
drawing thereunder (or, if the Commitments shall have been terminated pursuant
to Article VII, the Commitments in effect immediately prior to such
termination), of the face amount of such Letter of Credit, effective upon the
issuance of such Letter of Credit; provided, however, that no Bank shall be
required to acquire participations in Letters of Credit that would result in its
pro rata percentage, based upon its Commitment, of the Letter of Credit Balance
exceeding its Commitment. In consideration and in furtherance of the foregoing,
each Bank hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the Issuing Bank, in accordance with
-26-
<PAGE>
Section 2A.4 below, such Bank's pro rata percentage of each unreimbursed Letter
of Credit Disbursement made by the Issuing Bank.
(b) Each Bank acknowledges and agrees that its acquisition of
participations pursuant to paragraph (a) above in respect of Letters of Credit
is absolute and unconditional and shall not be affected by any circumstance
whatsoever, including without limitation the occurrence and continuance of any
Event of Default hereunder, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever; provided that nothing
herein shall constitute a waiver of any rights a Bank may have by reason of the
gross negligence or wilful misconduct of the Issuing Bank.
SECTION 2A.4 Disbursement and Reimbursement.
-------------------------------
(a) Promptly after it shall have ascertained that any draft
and any accompanying documents presented under a Letter of Credit appear to be
in strict conformity with the terms and conditions of such Letter of Credit, the
Issuing Bank shall give telephone and telecopy notice to the Borrower
(separately to Mr. Riley and to Mr. Lyding) and the Administrative Agent of the
receipt and amount of such draft and the date on which payment thereon will be
made. If the Administrative Agent shall not have received from the Borrower the
payment required pursuant to paragraph (b) below by 10:00 a.m., Arizona time,
one Business Day after the date on which payment of a draft presented under any
Letter of Credit has been made, the Administrative Agent shall promptly so
notify the Issuing Bank and each Bank, specifying in the notice to each Bank
such Bank's pro rata percentage, based upon the Commitments, of such Letter of
Credit Disbursement. Each Bank shall pay to the Administrative Agent, not later
than 1:00 p.m., Arizona time, on such date, such Bank's percentage of such
Letter of Credit Disbursement, which the Administrative Agent shall promptly pay
to the Issuing Bank. The Administrative Agent will promptly remit to each Bank
such Bank's percentage of any amounts subsequently received by the
Administrative Agent from the Borrower in respect of such Letter of Credit
Disbursement; provided that (i) amounts so received for the account of any Bank
prior to payment by such Bank of amounts required to be paid by it hereunder in
respect of any Letter of Credit Disbursement and (ii) amounts representing
interest on any Letter of Credit Disbursement for the period prior to the
payment by such Bank of such amounts shall in each case be remitted to the
Issuing Bank.
(b) If the Issuing Bank shall pay any draft presented under a
Letter of Credit, the Borrower shall pay to the Issuing Bank or to the
administrative Agent for the account of the Issuing Bank or, if the
Administrative Agent shall have received the payments provided in paragraph (a)
above with respect to such drawing, for the accounts of the Banks, an amount
equal to the amount of such draft before 10:00 a.m., Arizona time, on the
Business Day immediately following the date of payment of such draft, together
with interest on such amount at a rate per annum equal to the interest rate in
effect for Base Rate Borrowings from (and including) the date of payment of such
draft to (but excluding) the date of such payment by the Borrower. The
obligation of the Borrower to pay the amounts referred to above in this
paragraph (b) shall be absolute, unconditional and irrevocable and shall be
satisfied strictly in accordance with their terms irrespective of:
-27-
<PAGE>
(i) any lack of validity or enforceability of any
Letter of Credit;
(ii) the existence of any claim, setoff, defense or
other right which the Borrower or any other Person may at any time have
against the beneficiary under any Letter of Credit, the Administrative
Agent, any Issuing Bank or any Bank (other than the defense of payment
in accordance with the terms of this Agreement or a defense based on
the gross negligence or wilful misconduct of the Issuing Bank) or any
other Person in connection with this Agreement or any other
transaction;
(iii) any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any
respect; provided that payment by the Issuing Bank under such Letter of
Credit against presentation of such draft or document shall not have
constituted gross negligence or wilful misconduct;
(iv) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document which does not
comply in any immaterial respect with the terms of such Letter of
Credit; provided that such payment shall not have constituted gross
negligence or wilful misconduct; or
(v) any other circumstance or event whatsoever,
whether or not similar to any of the foregoing; provided that such
other circumstance or event shall not have been the result of gross
negligence or wilful misconduct of the Issuing Bank.
It is understood that in making any payment under a Letter of
Credit (1) the Issuing Bank's exclusive reliance on the documents presented to
it under such Letter of Credit as to any and all matters set forth therein,
including without limitation, reliance on the amount of any draft presented
under such Letter of Credit, whether or not the amount due to the beneficiary
equals the amount of such draft and whether or not any document presented
pursuant to such Letter of Credit proves to be forged, fraudulent or invalid in
any respect, if such document on its face appears to be in order, and whether or
not any other statement or any other document presented pursuant to such Letter
of Credit proves to be forged or invalid or any statement therein proves to be
inaccurate or untrue in any respect whatsoever, and (2) any noncompliance in any
immaterial respect of the documents presented under a Letter of Credit with the
terms thereof shall, in either case, not be deemed wilful misconduct or gross
negligence of the Issuing Bank.
-28-
<PAGE>
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower and the Guarantor each hereby represents and warrants to
the Administrative Agent and the Banks as follows:
SECTION 3.1 Organization; Corporate Powers; Etc. (a) The Borrower is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation; (b) the Borrower has the corporate
power and authority to own its property and assets and to carry on its business
as now conducted and is qualified to do business in every jurisdiction where
such qualification is required except where the failure to so qualify would not
result in a material adverse effect on the business, assets, operations or
condition (financial or otherwise) of the Borrower; and (c) the Borrower has the
corporate power to execute, deliver and perform this Agreement and the other
Loan Documents and to borrow hereunder.
SECTION 3.2 Authorization; Etc. The execution, delivery and performance
by the Borrower of this Agreement, the Borrowings hereunder, and the issuance,
execution and delivery of the Notes: (a) have been duly authorized by all
requisite corporate action; (b) will not violate (i) any provision of law, any
order of any court, or any rule, regulation or order of any other agency of
government, (ii) the Articles of Incorporation or By-laws of the Borrower or
(iii) any provision of any material indenture, agreement or other instrument to
which the Borrower is a party, or by which the Borrower or any of its properties
or assets are or may be bound; (c) will not be in conflict with, result in a
breach of or constitute (alone, with notice, with lapse of time, or with any
combination of these factors) a default under any indenture, agreement or other
instrument referred to in (b)(iii) above; and (d) will not result in the
creation or imposition of any Lien upon any property or assets of the Borrower
that is not a Permitted Lien. Except for filings which may be required under the
1934 Act, no registration with or consent or approval of, or other action by,
any Governmental Authority is required in connection with the execution,
delivery and performance of this Agreement, the execution and delivery of the
Notes or the Borrowings hereunder.
SECTION 3.3 Enforceability.
(a) This Agreement constitutes, and each other Loan Document
when duly executed and delivered by the Borrower will constitute, the legal,
valid and binding obligation of the Borrower, enforceable in accordance with its
terms, subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other laws of general applicability
relating to or affecting creditors' rights from time to time in effect and to
general principles of equity (regardless of whether such enforcement is
considered in a proceeding at law or in equity).
(b) The Guaranties constitute the legal, valid and binding
obligations of the Guarantor and Swift Leasing, respectively.
SECTION 3.4 Financial Condition and Information.
------------------------------------
-29-
<PAGE>
(a) The Borrower has heretofore furnished to the Banks copies
of (i) the consolidated balance sheets of the Borrower as of September 30, 1996,
and the related consolidated statements of income and shareholder's equity of
the Borrower for the year ended December 31, 1995, and for the fiscal period
ended December 31, 1995, including without limitation the related notes, audited
by and including the opinion the independent public accountants of the Borrower,
and (ii) the Annual Report on Form 10-K for the fiscal year ended December 31,
1995 of the Borrower. Such financial statements fairly state the consolidated
financial condition of the Borrower as of the respective dates thereof and the
consolidated results of the operations and changes in financial position of the
Borrower for the periods covered thereby. All such financial statements,
including related schedules and notes thereto, have been prepared in accordance
with GAAP.
(b) Borrower (both before and after giving effect to the
transactions contemplated hereby) is solvent, has assets having a fair value in
excess of the amount required to pay its probable liabilities on its existing
debts as they become absolute and matured, and has, and will have, access to
adequate capital for the conduct of its business and the ability to pay its
debts from time to time incurred in connection therewith as such debts mature.
SECTION 3.5 No Material Adverse Change. There has been no Material
Adverse Change in the business, operations, assets or condition (financial or
otherwise) of the Guarantor, the Borrower and its Significant Subsidiaries,
taken as a whole (except as disclosed in the financial statements referred to in
Section 3.4 or as otherwise disclosed on Schedule 3.5 attached hereto).
SECTION 3.6 Litigation. There are no actions, suits or proceedings at
law or in equity or by or before any governmental instrumentality or other
agency now pending or, to the knowledge of the Borrower, threatened against or
affecting the Borrower or any property or rights of the Borrower which would be
reasonably likely in the aggregate to (i) materially impair the ability of the
Borrower to perform its obligations under this Agreement or the Notes or
materially impair the ability of the Borrower to carry on business substantially
as now being conducted or (ii) result in any material adverse change in the
business, assets, operations, or condition (financial or otherwise) of the
Borrower.
SECTION 3.7 Federal Reserve Regulations.
----------------------------
(a) The Borrower is not engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately, (i)
to purchase or carry Margin Stock or to extend credit to others for the purpose
of purchasing or carrying Margin Stock or to refund indebtedness originally
incurred for such purpose, or (ii) for any purpose which entails a violation of,
or which is inconsistent with, the provisions of the Regulations of the Board,
including Regulation G, U or X.
-30-
<PAGE>
SECTION 3.8 Investment Company Act. The Borrower is not an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
SECTION 3.9 Public Utility Holding Company Act. The Borrower is not a
"holding company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
SECTION 3.10 Tax Returns. As of the filing date of the Borrower's Form
10-K, Form 10-Q or Form 8-K most recently filed with the SEC, the Borrower has
duly filed or caused to be filed all federal, state and local tax returns which
are required to have been filed and has paid or caused to be paid all material
taxes required to be paid by it, except taxes the validity of which is being
contested in good faith by appropriate proceedings and with respect to which the
Borrower has set aside on its books such reserves as are required by GAAP.
SECTION 3.11 ERISA. As of the filing date of the Borrower's Form 10-K,
Form 10-Q or Form 8-K most recently filed with the SEC, the Borrower had no
material undisclosed ERISA Liabilities under any Plans.
SECTION 3.12 Title to Properties: Possession. The Borrower has good and
indefeasible title to, or valid leasehold interests in, all its material
properties and assets, subject only to encumbrances, adverse claims and defects
in title which do not involve any risk of loss that is material to the Borrower
and the Subsidiaries taken as a whole. All such assets and properties are free
and clear of all Liens other than those permitted by Section 6.1. The Borrower
has all licenses and rights necessary to enable it to use all material
technology used by it in its operations.
SECTION 3.13 Use of Proceeds. The Borrower will use the proceeds of any
borrowing hereunder solely for the purposes set forth in the Recitals to this
Agreement.
SECTION 3.14 Environmental and Safety Matters. As of the filing date of
the Borrower's Form 10-K, Form 10-Q or Form 8-K most recently filed with the
SEC, the Borrower and the Subsidiaries had no material undisclosed environmental
liabilities.
SECTION 3.15 Subsidiaries. All Significant Subsidiaries are correctly
identified on Schedule "3.15" hereto.
-31-
<PAGE>
ARTICLE IV
CONDITIONS TO CREDIT EVENTS
The obligations of the Banks to make each and every Loan, and to make
each and every advance of the proceeds thereof (each of the foregoing events
being called a "Credit Event") are subject to the prior or contemporaneous
satisfaction of the following conditions:
SECTION 4.1 Credit Events. On the date of each Credit Event, including
the date of each refinancing of a Borrowing as contemplated by Section 2.5:
(a) The Administrative Agent shall have received in
respect of such advance or refinancing a Borrowing Notice as required
by Section 2.3.
(b) The representations and warranties set forth in
Article III hereof shall have been true and correct in all material
respects both (i) on the date hereof and (ii) as of such date, except
to the extent such representations and warranties expressly relate and
are limited to a different date.
(c) At the time of and immediately after such advance
or refinancing no Event of Default or Potential Default shall have
occurred and be continuing.
Each advance or refinancing hereunder shall be deemed to constitute a
representation and warranty by the Borrower on the date of such Credit Event as
to the satisfaction of the conditions specified in paragraphs (b) and (c) of
this Section 4.1.
SECTION 4.2 First Credit Event. On the Closing Date:
-------------------
(a) Each Bank shall have received a duly executed copy of this
Agreement.
(b) The Administrative Agent shall have received the Fee
Letter and payment of all expenses owed to the Banks pursuant to Section 9.5(a)
and of all Fees that are then due and payable.
(c) Each Bank shall have received a duly executed Revolving
Note complying with the provisions of Section 2.7.
(d) The Administrative Agent shall have received a favorable
written opinion of legal counsel to the Borrower, the Guarantor and Swift
Leasing, dated the Closing Date and addressed to the Administrative Agent and
the Banks, to the effect set forth in Exhibit "E" hereto.
-32-
<PAGE>
(e) All legal matters incident to this Agreement and the first
Credit Event hereunder shall be reasonably satisfactory to the Banks and to the
legal counsel for the Administrative Agent.
(f) The Administrative Agent shall have received as to each of
the Borrower, the Guarantor and Swift Leasing (i) a copy of its Certificate or
Articles of Incorporation, including all amendments thereto, certified as of a
recent date by the Secretary of State of the state of its organization, and a
certificate from such Secretary of State as of a recent date, as to its good
standing; (ii) a certificate of its Secretary or Assistant Secretary dated the
Closing Date and certifying (A) that attached thereto is a true and complete
copy of its By-Laws as in effect on the Closing Date and at all times since a
date prior to the date of the resolutions described in the next clause of this
sentence, (B) that attached thereto is a true and complete copy of resolutions
duly adopted by its Board of Directors, authorizing the execution, delivery and
performance of the Loan Documents and the Credit Events hereunder, and that such
resolutions have not been modified, rescinded or amended and are in full force
and effect, (C) that its Certificate or Articles of Incorporation have not been
amended since the date of the last amendment thereto shown on its certificate of
good standing furnished pursuant to clause (i) above, and (D) as to the
incumbency and specimen signature of each officer executing any Loan Document or
any other document delivered in connection herewith on its behalf; and (iii) a
certificate of another officer as to the incumbency and specimen signature of
the Secretary or Assistant Secretary executing the certificate pursuant to (ii)
above.
(g) The Administrative Agent shall have received a
certificate, dated the Closing Date and signed on behalf of the Borrower by a
Financial Officer of the Borrower, confirming compliance with the conditions
precedent set forth in paragraphs (b) and (c) of Section 4.1.
(h) The Administrative Agent shall have received all amounts
due and payable hereunder or under the other Loan Documents on or prior to the
Closing Date.
(i) The Administrative Agent shall have received evidence
satisfactory to it that the 1993 Agreement has been or will be terminated and
all loans and other amounts and letters of credit outstanding thereunder have
been or will be paid in full or assumed hereunder, on or prior to the Closing
Date.
(j) The Administrative Agent shall have received duly executed
copies of the Guaranties.
-33-
<PAGE>
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower and the Guarantor each covenants and agrees that, at all
times prior to Termination, unless the Required Banks shall otherwise consent in
writing, it will:
SECTION 5.1 Corporate Existence. Do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its corporate
existence, material rights, licenses, permits and franchises material to the
conduct of its business; comply in all material respects with all applicable
laws, rules, regulations, and orders (except that force majeure events will
excuse noncompliance so long as noncompliance would not materially impair the
creditworthiness of the Borrower) whether now in effect or hereafter enacted
where the failure to so comply would be reasonably likely to have a material
adverse effect on the business, assets, operations or condition (financial or
otherwise) of the Borrower; and, at all times maintain and preserve all material
property required for the conduct of its business as presently or hereafter
conducted.
SECTION 5.2 Insurance. Maintain adequate insurance by financially sound
and reputable insurers of all properties of a character usually insured by
companies engaged in the same or a similar business operating on a similar
economic scale in the same vicinity against loss or damage resulting from fire
or other risks insured against by extended coverage and of the kind customarily
insured against by such companies, and maintain in full force and effect public
liability insurance against claims for personal injury, death or property damage
occurring upon, in, about or in connection with the use of any properties
occupied or controlled by it in such amounts as shall be customary among
companies engaged in the same or similar businesses and similarly situated and
maintain such other insurance as may be required by law; provided, however, that
nothing in this Section 5.2 shall preclude the Borrower from being self-insured
to the extent customary with companies in the same or similar business.
SECTION 5.3 Taxes. Pay and discharge promptly any taxes, assessments
and governmental charges or levies imposed upon it or upon its income or profits
or in respect of its material property (real or personal), before the same shall
become delinquent; provided, however, that neither the Borrower nor any of the
Subsidiaries shall be required to pay and discharge or to cause to be paid and
discharged any such obligation, tax, assessment, charge, levy or claim so long
as the validity or amount thereof shall be contested in good faith by
appropriate proceedings and the Borrower or such Subsidiary, as appropriate,
shall set aside on its books such reserves as are required by GAAP with respect
thereto.
SECTION 5.4 Financial Statements; Reports, etc.
-----------------------------------
(a) In the case of the Guarantor, cause to be furnished to
each Bank (as Information subject to the applicable requirements of Section 9.17
herein, if any):
-34-
<PAGE>
(i) within 120 days after the end of each fiscal
year, consolidated (and if requested by the Banks consolidating), (A) a
balance sheet, (B) a statement of income and (C) a statement of cash
flow, each showing the financial condition of the Guarantor and its
Subsidiaries as of the close of such fiscal year and the results of
operations during such fiscal year, all the foregoing financial
statements to be prepared in accordance with GAAP, audited by an
accounting firm of nationally recognized standing with an unqualified
opinion from such firm;
(ii) within five days of filing with the SEC, but in
no event later than 65 days after the end of each fiscal quarter of
each fiscal year of the Guarantor, Guarantor's Form 10-Q for such
fiscal quarter together with consolidating (if applicable and if
requested by the Banks) and fully consolidated company-prepared
financial statements including, without limitation, consolidating (if
applicable and if requested by the Banks and fully consolidated balance
sheets as of the end of that fiscal quarter, and consolidating (if
applicable and if requested by the Banks) and fully consolidated
statements of income for the fiscal quarter;
(iii) concurrently with each delivery of the
statements referred to in (i) and (ii) above, the Quarterly Certificate
certifying that to the best of its, his or her knowledge no Event of
Default or Potential Default has occurred, or, if such an Event of
Default or Potential Default has occurred, specifying the nature and
extent thereof and accompanied by a statement of a Financial Officer of
the Guarantor specifying any corrective action taken or proposed to be
taken with respect thereto, and setting forth in reasonable detail in
the form of Exhibit F the calculation of financial measures and ratios
required to demonstrate compliance with the covenants, conditions and
agreements contained herein, all determined as of the end of the period
covered by said statements;
(iv) within 45 days of their being filed, in addition
to those delivered by Guarantor to Bank pursuant to (ii) above, copies
of all reports (other than preliminary proxy statements) filed by the
Guarantor with the SEC (or any Governmental Authority succeeding to any
or all of the functions of the SEC) under the requirements of the 1934
Act, or any successor statute; and
(v) promptly, from time to time, such other
information regarding the operations, business affairs and financial
condition of the Guarantor as the Administrative Agent may reasonably
request.
(b) In the case of the Borrower, furnish to each Bank (as
Information subject to the applicable requirements of Section 9.17 herein, if
any):
(i) within ninety (90) days after the end of each
fiscal year, (i) a consolidated balance sheet, (ii) a consolidated
statement of income and (iii) a consolidated statement of cash flow,
each showing the financial condition of the
-35-
<PAGE>
Borrower as of the close of such fiscal year and the results of
operations during such fiscal year;
(ii) concurrently with each delivery of the statement
above, a statement by a Financial Officer certifying that to the best
of its, his or her knowledge no Event of Default or Potential Default
has occurred, or, if such an Event of Default or Potential Default has
occurred, specifying the nature and extent thereof and accompanied by a
statement of a Financial Officer of the Borrower specifying any
corrective action taken or proposed to be taken with respect thereto;
and
(iii) promptly, from time to time, such other
information regarding the operations, business affairs and financial
condition of the Borrower as the Administrative Agent may reasonably
request.
SECTION 5.5 Litigation and Other Notices. Give the Administrative Agent
prompt written or telecopy notice of the following:
(a) any Event of Default or Potential Default and the steps,
if any, proposed to be taken by the Borrower with respect thereto;
(b) the filing or commencement of any action, suit or formal
proceeding at law or in equity or by or before any court or hearing officer of
any Governmental Authority, or any other event or condition, which has resulted
in, or which is reasonably likely to result in, a material adverse change in the
business, operations or condition (financial or otherwise) of the Borrower and
the Subsidiaries taken as a whole and which has not been reported in the
Borrower's most recent SEC filings on Form 10-K, 10-Q or 8-K.
SECTION 5.6 Maintaining Records: Access to Premises and Records.
Maintain all financial records in accordance with GAAP, and upon reasonable
notice permit representatives of the Administrative Agent and each Bank to have
access to such financial records and the premises of the Borrower at reasonable
times and to make such excerpts from such records as such representatives may
deem necessary, provided that each person obtaining information shall hold all
confidential information obtained in accordance with the restrictions set forth
in Section 9.17.
SECTION 5.7 Use of Proceeds. Use the proceeds of the Loans solely for
the purposes set forth in Recitals hereto.
SECTION 5.8 Unencumbered Assets. Cause Guarantor to maintain at all
times assets (as so reported on its consolidated financial statements)
consisting of cash, net accounts receivables, real estate at net book value
(which may consist of no more than $50,000,000.00) and rolling stock (such as
trucks and trailers) at net book value which are free and clear of any and all
Liens, in an amount of not less than 120% of the sum of its accounts payable (as
so described on its consolidated financial statements) and its total outstanding
unsecured Indebtedness, including without limitation both funded and unfunded
but committed Indebtedness.
-36-
<PAGE>
ARTICLE VI
NEGATIVE COVENANTS
The Borrower and the Guarantor each covenants and agrees that, at all
times prior to Termination, it will not, and will not permit any Subsidiary to:
SECTION 6.1 [Intentionally left blank].
SECTION 6.2 Mergers, Consolidations, Sales of Assets. Dissolve or
liquidate, or merge or consolidate with or into any corporation or entity, or
turn over the management or operation of its property, assets or businesses to
any other person, firm or corporation, or make any material change in its
ownership, management structure or management personnel. Nothing herein shall
preclude Guarantor or Borrower from acquiring other companies in the same, or a
related type, of business currently engaged in by Borrower, its Affiliates or
its Subsidiaries, including but not limited to transportation, leasing, truck
repair, logistics, consulting, brokerage, warehousing, packaging, material
handling and related services, which other companies may be merged into
Guarantor or Borrower or into one of Guarantor's or Borrower's subsidiaries nor
shall it preclude any of Borrower's subsidiaries from merging into any such
acquired company.
SECTION 6.3 Accounting Change. Change the times of commencement or
termination of its fiscal year or other accounting periods, or change its
methods of accounting unless any such change conforms to GAAP and does not
result in a violation of Section 6.6 or Section 6.7.
SECTION 6.4 Guarantee. Guarantee, directly or indirectly, or otherwise
become contingently liable or obligated for, any indebtedness or obligations of
any other person or entity except for the endorsement in the ordinary course of
business of negotiable instruments for deposit or collection.
SECTION 6.5 ERISA Liabilities. Create or suffer to exist ERISA
Liabilities in an aggregate amount for all Plans in excess of $10,000,000.00;
provided, however, that this Section shall not apply to normal contributions
made to its Plans in the normal course of its business which contributions are
not delinquent.
SECTION 6.6 Funded Debt/EBITDA Ratio. Permit Guarantor's Funded
Debt/EBITDA Ratio to exceed 2.75 to 1 at the end of any fiscal quarter, where
"Funded Debt/EBITDA Ratio" is defined as the ratio of Funded Debt to EBITDA.
"Funded Debt" is defined as the sum of Borrower's outstanding current portions
of its long-term debt, noncurrent portions of its long-term debt, letters of
credit, surety bonds, Guarantees and Capital Lease Obligations. "EBITDA" is
defined as the sum of Borrower's net earnings, interest expense, tax expenses,
depreciation expense and amortization of intangibles expense for the prior four
quarters, all as reported by Guarantor in its financial statements. With respect
to Funded Debt, if a new equity offering occurs and funds from the equity
offering are used to repay the current portion of long-term debt ("CPLTD"), the
CPLTD from the prior relevant period shall be restated to reduce CPLTD by the
like amount that was repaid by the proceeds from the equity offering.
-37-
<PAGE>
SECTION 6.7 Debt Service Coverage Ratio. Permit Guarantor's Debt
Service Coverage Ratio to be less than 1.25 to 1 at the end of any fiscal
quarter, calculated on a rolling four (4) quarter basis, where "Debt Service
Coverage Ratio" is defined as the ratio of (A) the sum of its net earnings,
depreciation expense, amortization of intangibles expenses, interest expense,
operating lease expense and net change in deferred taxes, to (B) the sum of
current portions of its long-term debt and Capital Lease Obligations plus
interest expense and operating lease expense in the prior period, all as
reported by Guarantor in its financial statements. With respect to the
denominator, if a new equity offering occurs and funds from the equity offering
are used to repay the current portion of long-term debt ("CPLTD"), the CPLTD
from the prior relevant period shall be restated to reduce CPLTD by the like
amount that was repaid by the proceeds from the equity offering.
-38-
<PAGE>
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.1 Events of Default. In case of the happening of any of the
following events (herein called "Events of Default"):
(a) default shall be made in the payment of any
principal of any Loan, when and as the same shall become due and
payable, whether at the due date thereof or by acceleration thereof or
otherwise which shall not have been cured after receipt of written
notice thereof from the Administrative Agent to the Borrower and the
expiration of a period of three Business Days thereafter;
(b) default shall be made in the payment of any
interest on any Loan or any Fee, indemnification amount or any other
amount due from the Borrower under the Loan Documents (other than an
amount referred to in (a) above), when and as the same shall become due
and payable which shall not have been cured after receipt of written
notice thereof from the Administrative Agent to the Borrower and the
expiration of a period of three Business Days thereafter;
(c) any material representation or warranty made or
deemed made by the Borrower in connection with the Loan Documents or in
any report, certificate or other instrument furnished by the Borrower
pursuant to the Loan Documents or with the Borrowings hereunder shall
prove to have been false or misleading in any material respect when
made or delivered or when deemed made in accordance with the terms
hereof; provided that if any such breach of representation or warranty
has been subsequently remedied (such that if made or given as of the
date of remedy it is no longer false or misleading in any material
respect) and such breach has caused no material adverse effect on the
rights or interests of any Bank under this Agreement, such breach shall
no longer constitute a Potential Default or Event of Default hereunder.
(d) the Borrower, the Guarantor or any Subsidiary
shall fail to make when due any payment (of whatever amount) on
Indebtedness aggregating in excess of $7,500,000.00 (whether due by
scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to
such Indebtedness, or any failure by the Borrower or the Guarantor to
perform any covenant or agreement on its part to be performed under any
agreement or instrument evidencing or security relating to any
Indebtedness in excess of $7,500,000.00 may result in the acceleration
of the maturity of a portion of such Indebtedness;
(e) the Borrower or the Guarantor or Swift Leasing
shall (i) voluntarily commence any proceeding or file any petition
seeking relief under Title 11
-39-
<PAGE>
of the United States Code or any other Federal, state or foreign
bankruptcy, insolvency or similar law, (ii) consent to the institution
of, or fail to controvert in a timely and appropriate manner, any such
proceeding or the filing of any such petition, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian,
sequestrator or similar official for such corporation or for a
substantial part of its property, (iv) file an answer admitting the
material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors,
(vi) become unable, admit in writing its inability or fail generally to
pay its debts as they become due, or (vii) take corporate action for
the purpose of effecting any of the foregoing;
(f) an involuntary proceeding shall be commenced or
an involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of the Borrower or the
Guarantor or Swift Leasing or of a substantial part of the property of
any of them under Title 11 of the United States Code or any other
Federal, state or foreign bankruptcy, insolvency or similar law, (ii)
the appointment of a receiver, trustee, custodian, sequestrator or
similar official for the Borrower or the Guarantor or Swift Leasing or
for a substantial part of the property of any of them, or (iii) the
winding-up or liquidation of the Borrower or the Guarantor or Swift
Leasing; and such proceeding or petition shall continue undismissed for
60 days or an order or decree approving or ordering any of the
foregoing shall be entered;
(g) either of (A) the occurrence of any one or more
Reportable Events or (B) a failure to make a "required payment" under
the provisions of Section 412(n)(1) of the Code shall have occurred
with respect to any Plan or Plans and the occurrence of either (A) or
(B) above shall have resulted in any of (1) liability of the Borrower
to the PBGC or to one or more Plans in an aggregate amount exceeding
$10,000,000.00 (excluding normal contributions made to the Plans in the
normal course of its business, which contributions are not delinquent),
(2) the termination of the respective Plan or Plans by the PBGC, (3)
the appointment by the appropriate United States District Court of a
trustee to administer such Plan or Plans, or (4) for the imposition of
a Lien in favor of such Plan or Plans;
(h) any material provision of the Loan Documents
ceases to be valid and binding on or enforceable against the Borrower
or the Guarantor;
(i) there shall have occurred a Change in Control;
(j) the liquidation, termination or dissolution of
Borrower or any such endorser or Guarantor or Swift Leasing; or
(k) the occurrence of any Material Adverse Change in
the financial condition of Borrower, any endorser of the Notes or the
Guarantor or Swift Leasing.
-40-
<PAGE>
SECTION 7.2 Remedies. Upon the occurrence of any Event of Default, and
at any time thereafter during the continuance of such event, the Administrative
Agent, shall, at the sole option of the Required Banks and if so directed by the
Required Banks, by written or telecopy notice to the Borrower, take either or
both of the following actions at the same or different times:
(i) terminate forthwith any or all Commitments of the
Banks,
(ii) declare any or all of the Loans to be forthwith
due and payable, whereupon the principal of such Loans, together with
accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrower accrued hereunder and under the Notes,
shall become forthwith due and payable together with interest thereon
as provided in Section 2.9, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived by
the Borrower, anything contained herein or in any Note to the contrary
notwithstanding, and
(iii) require that the Borrower deposit cash with the
Administrative Agent in an amount equal to the Letter of Credit Balance
as collateral (under its sole dominion and control) for the repayment
of drawings under outstanding Letters of Credit;
provided, however, that in the case of an Event of Default specified in
paragraph (g) or (h) above involving the Borrower, without notice to the
Borrower or any other act by the Administrative Agent or the Banks, the
Commitments shall automatically terminate and all Loans together with all such
interest, Fees and other amounts, shall become immediately due and payable, all
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived by the Borrower, anything contained herein or
in any Note to the contrary notwithstanding.
SECTION 7.3 Occurrence and Declaration of an Event of Default. If the
Administrative Agent obtains actual knowledge of the occurrence of an Event of
Default, the Administrative Agent shall, within three (3) Business Days of
obtaining of such knowledge, give written notice of such occurrence to each of
the Banks. In addition, if any Bank obtains actual knowledge of the occurrence
of an Event of Default, that Bank shall, within three (3) Business Days of
obtaining such knowledge, give written notice of such occurrence to the
Administrative Agent and the Administrative Agent shall give written notice of
such occurrence to each of the Banks.
-41-
<PAGE>
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.1 Appointment. In order to expedite the transactions
contemplated by this Agreement, Wells Fargo Bank, N.A. is hereby appointed to
act as Administrative Agent on behalf of the Banks. Each of the Banks, and each
subsequent holder of any Note by its acceptance thereof, hereby irrevocably
authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are specifically delegated to the Administrative Agent
by the terms and provisions hereof and of the other Loan Documents, together
with such actions and powers as are reasonably incidental thereto. The
Administrative Agent is hereby expressly authorized by the Banks, without hereby
limiting any implied authority, (a) to receive on behalf of the Banks all
payments of principal of and interest on the Loans and all other amounts due to
the Banks hereunder, and promptly to distribute to each Bank its proper share of
each payment so received; (b) to give notice on behalf of each of the Banks to
the Borrower of any Default or Event of Default specified in this Agreement of
which the Administrative Agent has actual knowledge acquired in connection with
its agency hereunder; and (c) to distribute to each Bank copies of all notices,
financial statements and other materials delivered by the Borrower pursuant to
this Agreement as received by the Administrative Agent.
SECTION 8.2 Liability. Neither the Administrative Agent nor any of its
directors, officers, employees or agents shall be liable as such for any action
taken or omitted by any of them except for its or his own gross negligence or
wilful misconduct, or be responsible for any statement, warranty or
representation herein or the contents of any document delivered in connection
herewith, or be required to ascertain or to make any inquiry concerning the
performance or observance by the Borrower of any of the terms, conditions,
covenants or agreements contained in any Loan Document. The Administrative Agent
shall not be responsible to the Banks or the holders of the Notes for the due
execution, genuineness, validity, enforceability or effectiveness of this
Agreement, the Notes or any other Loan Documents or other instruments or
agreements. The Administrative Agent may deem and treat the payee of any Note as
the owner thereof for all purposes hereof until it shall have received from the
payee of such Note notice, given as provided herein, of the transfer thereof.
The Administrative Agent shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by either
the Required Banks (if the consent of only the Required Banks is required by the
provisions of this Agreement with respect to an issue) or all the Banks (if the
consent of all the Banks is required by the provisions of this Agreement with
respect to an issue), as applicable, and, except as otherwise specifically
provided herein, such instructions and any action or inaction pursuant thereto
shall be binding on all the Banks and each subsequent holder of any Note. The
Administrative Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper Person or
Persons. Neither the Administrative Agent nor any of its directors, officers,
employees or agents shall have any responsibility to the Borrower on account of
the failure of or delay in performance or breach by any Bank of any of its
obligations hereunder or to any Bank on account of the failure of or delay in
performance or breach by any other Bank or the Borrower of any of their
respective obligations hereunder or under any other Loan Document or
-42-
<PAGE>
in connection herewith or therewith. The Administrative Agent may execute any
and all duties hereunder by or through agents or employees and shall be entitled
to rely upon the advice of legal counsel selected by it with respect to all
matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
SECTION 8.3 Action by Administrative Agent.
-------------------------------
(a) The Banks hereby acknowledge that the Administrative Agent
shall be under no duty to take any discretionary action permitted to be taken by
it pursuant to the provisions of this Agreement unless it shall be requested in
writing to do so by the Required Banks.
(b) Except as hereinafter provided, the Administrative Agent
may, with the consent of the Required Banks, (i) agree to the modification of or
waiver of any of the terms of any of the Loan Documents, or (ii) consent to any
act or omission by the Borrower, or (iii) exercise any rights which the
Administrative Agent may have with respect to the Loans, the Notes or any of the
other Loan Documents. Unless in each case consented to in writing by all the
Banks, the Administrative Agent, however, shall not (i) agree to the
modification or waiver of any of the terms of any of the Loan Documents, or (ii)
consent to any act or omission by the Borrower, or (iii) exercise any rights
which the Administrative Agent may have with respect to the Loans, the Notes, or
any of the other Loan Documents, if any such agreement, modification, waiver,
consent or exercise would:
(i) change or modify the interest rate and repayment
provisions set forth in the Loan Documents;
(ii) increase the Maximum Commitment;
(iii) extend the Maturity Date;
(iv) postpone any date for payment or forgive the
payment of principal of, or interest on, the Loans or the payment of
any other sum due under the Loan Documents;
(v) change or modify the Fees, other than the Agency
Fee, or the payment of such Fees;
(vi) release the Guarantor; or
(vii) amend or modify the provisions of Section 2.13,
2.14, 2.16, 2.19, 9.5, 9.6, 9.8(b) or this Section 8.3(b), the
definition of "Required Banks," or Section 6.6 or Section 6.7.
(c) Upon receipt of a Borrowing Notice from the Borrower, the
Administrative Agent shall provide to each Bank a telecopy notice of such
Borrowing (or telephone notice promptly
-43-
<PAGE>
confirmed by telecopy) (i) in the case of a LIBOR Borrowing, not later than 9:30
a.m., Arizona time, three Business Days before a proposed LIBOR Borrowing, and
(b) in the case of a Base Rate Borrowing, not later than 9:30 a.m., Arizona
time, on the Business Day of a proposed Base Rate Borrowing.
(d) The Administrative Agent agrees to distribute to each Bank
by 4:00 p.m., Arizona time, its pro rata share of each payment or prepayment of
principal of any Loan, each payment of interest on the Loans, and each payment
of the Commitment Fee and Facility Fee that is received from the Borrower prior
to 12:00 noon, Arizona time. Any such payments received after 12:00 noon,
Arizona time, on any Business Day shall be made available to the Banks on or
before 4:00 p.m., Arizona time, on the immediately following Business Day.
(e) The Administrative Agent agrees to distribute promptly to
each Bank a copy of all Information received from the Borrower and all
amendments and modifications of the Loan Documents.
(f) The Administrative Agent agrees to distribute or cause to
be distributed no later than thirty (30) days after the Closing Date to each
Bank a copy of the Loan Documents.
SECTION 8.4 Resignation. The Administrative Agent may not, without the
consent of the Borrower, resign at any time. Upon receiving such consent, and
subject to giving 30 days' prior written notice to the Banks, the Administrative
Agent may resign as Administrative Agent hereunder. Upon any such resignation,
the Required Banks, with the consent of the Borrower (which consent shall not be
unreasonably withheld), shall have the right to appoint from the Banks a
successor. If no successor shall have been so appointed by the Required Banks
and shall have accepted such appointment within 30 days after the Administrative
Agent gives notice of its resignation, then the Administrative Agent may, on
behalf of the Banks, appoint a successor Administrative Agent which shall be a
bank with an office in Phoenix, Arizona, having a combined capital and surplus
of at least $50,000,000.00 or an Affiliate of any such bank. Upon the acceptance
of any appointment as Administrative Agent hereunder by a successor bank, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent and such retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.5 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as an Administrative Agent.
SECTION 8.5 Agent as Bank. With respect to the Loans made by it
hereunder and the Notes issued to it, the Administrative Agent in its individual
capacity and not as an Administrative Agent shall have the same rights and
powers as any other Bank and may exercise the same as though it were not the
Administrative Agent, and the Administrative Agent and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
the Borrower or any Subsidiary or other Affiliate thereof as if it were not the
Administrative Agent.
-44-
<PAGE>
SECTION 8.6 Ownership and Possession of Loan Documents. Each Bank shall
own an undivided interest in the Borrowings and the Loan Documents equal to its
pro rata Commitment from time to time. The Administrative Agent shall hold the
Loan Documents in its possession, as agent, at its office at 100 West
Washington, Phoenix, Arizona 85003, or at such other location as the
Administrative Agent shall designate in writing to the Banks, for the pro rata
benefit of itself as one of the Banks and each of the other Banks; provided,
however, that the Administrative Agent shall deliver to each Bank an original
promissory note executed by the Borrower and evidencing such Bank's Commitment.
The Administrative Agent shall keep and maintain complete and accurate files and
records of all matters pertaining to the Borrowings. Upon reasonable prior
notice to the Administrative Agent by a Bank, the files and records shall be
made available to such Bank and its respective representatives and agents for
inspection and copying during normal business hours.
SECTION 8.7 Indemnification. Each Bank agrees (i) to reimburse the
Administrative Agent, on demand, in the amount of its pro rata share (based on
its Commitment hereunder) of any expenses incurred for the benefit of the Banks
by the Administrative Agent, including counsel fees and compensation of agents
and employees paid for services rendered on behalf of the Banks, which shall not
have been reimbursed by the Borrower and (ii) to indemnify and hold harmless the
Administrative Agent and any of its directors, officers, employees or agents, on
demand, in the amount of such pro rata share, from and against any and all
liabilities, taxes, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by or asserted against it in its capacity as the
Administrative Agent or any of them in any way relating to or arising out of
this Agreement or any other Loan Document or any action taken or omitted by it
or any of them under this Agreement or any other Loan Document, to the extent
the same shall not have been reimbursed by the Borrower; provided that no Person
shall be liable to the Administrative Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or wilful
misconduct of the Administrative Agent or any of its directors, officers,
employees or agents.
SECTION 8.8 Independent Credit Analysis. Each Bank acknowledges that it
has, independently and without reliance upon the Administrative Agent or any
other Bank and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Bank also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Bank and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement or any other Loan Document, any related agreement or any
document furnished hereunder or thereunder.
SECTION 8.9 Process for Obtaining Approval of the Banks.
--------------------------------------------
(a) With respect to obtaining the consent, approval, or
determination of all of the Banks or of the Required Banks, the Administrative
Agent or any Bank may request that the Banks make a determination pursuant to
this Agreement. In the case of a request by any such Bank, the request shall be
made through the Administrative Agent and the Administrative Agent shall request
-45-
<PAGE>
a determination of the Banks in accordance with this Section 8.9. All
communications from the Administrative Agent to the Banks requesting the Banks'
determination, consent, approval, disapproval and/or joinder shall:
(i) Be given in the form of a written notice to each
of the Banks;
(ii) Be accompanied by a description of the matter or
thing as to which such determination, approval, consent, disapproval or
joinder is requested, and shall advise each of the Banks where such
matter or thing may be inspected, or shall otherwise adequately
describe the matter or issue to be resolved;
(iii) Include, to the extent not previously provided
to the Banks, all written materials (to the extent necessary to make an
informed decision) and a description of all oral information (to the
extent necessary to make an informed decision) provided to the
Administrative Agent in respect of the matter or issue to be resolved;
and
(iv) Include such other information and
recommendations as the Administrative Agent may reasonably deem
appropriate.
(b) Subject to Paragraph (c) of this Section 8.9, the Banks
shall reply within seven (7) calendar days after such written notice is given by
the Administrative Agent; provided, however, that if the Administrative Agent
notifies the Banks that, pursuant to the Loan Documents, the matter with respect
to which such consent, approval, disapproval or joinder is sought requires that
the Administrative Agent respond within a certain time period and/or provides
that if a response is not given within a certain time period such approval or
consent shall be deemed given, the Banks shall reply by the earlier of (i) two
(2) Business Days before such time period expires (as designated by the
Administrative Agent) or (ii) three (3) Business Days after such written notice
is given by the Administrative Agent.
(c) With respect to each Bank, unless a Bank shall give
written notice to the Administrative Agent that such Bank does consent to or
approve any matter as to which such Bank's consent or approval is sought within
the applicable time frame, such Bank shall be deemed to have disapproved of and
not consented to such recommendation or determination.
SECTION 8.10 Communications to the Banks. All communications from the
Borrower to the Banks relating to the Loan Documents and the Borrowings shall be
sent by or through the Administrative Agent.
SECTION 8.11 Relationship with the Borrower. Consistent with the agency
established hereunder, the Banks acknowledge and agree that the Administrative
Agent, in accordance with its respective rights and duties under the Loan
Documents, shall have the sole and exclusive authority to bind the
Administrative Agent and the Banks with respect to matters relating to the Loan
Documents. To the extent that any matter has been approved by all of the Banks
or by the Required
-46-
<PAGE>
Banks in accordance with the provisions of this Agreement, the Administrative
Agent is authorized to execute such documents and instruments as the
Administrative Agent may deem prudent to evidence and confirm such approval.
SECTION 8.12 Payments to or by the Banks.
----------------------------
(a) The Banks shall be entitled to interest on the amount of
Borrowings held by each Bank for the period of time such Borrowings are
outstanding at the rates set forth in this Agreement, to the extent that such
payments are actually received from the Borrower. If permitted pursuant to
Section 2.9 of this Agreement, the Administrative Agent shall charge and collect
interest at the Default Rate unless the Required Banks otherwise agree.
(b) Other Fees to the extent applicable shall be paid to the
Banks in accordance with Section 2.6.
(c) Amounts paid by the Borrower pursuant to any provision of
the Loan Documents providing for payment, compensation, or reimbursement to one
or more, but not necessarily all, of the Banks, shall be paid to the Bank or
Banks incurring such expenses or otherwise entitled to compensation under any of
those provisions, with each Bank entitled to receive any payment, reimbursement,
or compensation pursuant to any of such Sections or other provisions being
obligated to provide to the Administrative Agent and the Borrower a certificate
setting forth in reasonable detail the basis for the amount of any request for
compensation, payment or reimbursement under any of those Sections or other
provisions.
(d) Regular monthly payments of interest and any other
payments to the Administrative Agent on behalf of the Banks (other than payments
to be applied to the outstanding principal amount of Borrowings, which payments
will be applied as provided in Section 8.13), received by the Administrative
Agent shall be made available to the Banks entitled thereto in accordance with
Section 8.3(d).
(e) If and to the extent any Bank shall not have made any
payment required pursuant to Section 2.4, such Bank agrees to pay the
Administrative Agent, forthwith on demand, such amount, together with interest
thereon at the Federal Funds Rate, for each day from such date until the date
such amount is paid to the Administrative Agent as provided in Section 2.4(c).
The failure of any Bank to make available to the Administrative Agent any amount
required pursuant to Section 2.4 shall not relieve any other Bank of its
obligation hereunder to make available as aforesaid such payment, as specified
above, nor shall any Bank be relieved of its obligations to make such payments
for any other reason.
(f) Funds shall be transferred to the Banks in accordance with
the funds transfer instructions given to the Administrative Agent and by the
Administrative Agent to the Banks from time to time on or before the times
specified in Section 8.3(d).
-47-
<PAGE>
(g) If and to the extent the Administrative Agent shall not
have made any payment required pursuant to Section 8.3(d) to a Bank, the
Administrative Agent agrees to pay such Bank forthwith on demand, such amount,
together with interest thereon at the Federal Funds Rate, for each day from such
date until the date such amount is paid pursuant to Section 8.3(d).
SECTION 8.13 Application of Payments. All monies collected or received
by the Administrative Agent on account of the Loans or in respect of security
for the Loans, directly or indirectly, shall be applied in the following order
of priority, except to the extent otherwise required by Article II of this
Agreement, in which case the provisions of Article II shall control:
(a) To the payment of all costs and expenses due to the
Administrative Agent and/or the Banks pursuant to the Loan Documents, including
costs incurred in collection of such monies, including, without limitation, the
payment to the Banks of the amounts described in Section 8.12(d);
(b) To outstanding interest on the Loans, which amount shall
be allocated between the Banks in accordance with the actual principal amount of
Loans held by each Bank throughout the period in question as determined by the
Administrative Agent on a daily basis; provided, however, that if amounts
received by the Administrative Agent are not sufficient to pay in full all such
outstanding interest on the Loans, such amount shall be allocated among the
Banks pro rata in accordance with the amount of Loans held by each Bank during
the period in question; and
(c) To the payment of principal on the Loans in accordance
with the principal amount of Loans held by each Bank.
SECTION 8.14 Defaulting Banks.
-----------------
(a) If for any reason any of the Banks shall fail or refuse to
abide by its obligations under the Loan Documents (each a "Defaulting Bank"),
then, in addition to the rights and remedies that may be available to the
Administrative Agent and the other Banks at law and in equity, but subject to
the notice and cure periods hereinafter set forth, such Defaulting Bank's right
to participate in the administration of the Loans and the Loan Documents,
including without limitation, any rights to consent to or direct any action or
inaction of the Administrative Agent, all of the Banks, or to be taken into
account in the calculation of the Required Banks (other than the right to vote
with respect to a decision as to its Loans to extend the Maturity Date thereof,
or to amend the interest rate and repayment provisions thereof or to modify such
Bank's Commitment), shall be suspended during the pendency of such failure or
refusal. A Bank shall be deemed to be a Defaulting Bank if (i) such Bank shall
have failed to pay to the Administrative Agent any amount due pursuant to this
Agreement within five (5) Business Days after written notice by the
Administrative Agent to such Bank stating such payment is due from such Bank to
the Administrative Agent; (ii) such Bank shall have failed to perform any of its
other obligations under this Agreement or the Loan Documents in any material
respect. and such failure shall not have been cured within 30 days after written
notice by the Administrative Agent to such Bank of such failure, or if such
failure cannot reasonably be cured within such 30 day period, within such longer
period of time as may be necessary to complete such
-48-
<PAGE>
cure, so long as such Bank commences such cure within such 30-day period and
thereafter diligently pursues such cure to completion within not more than 120
days after such written notice; or (iii) such Bank shall institute or be subject
to any bankruptcy, insolvency, receivership, conservatorship, reorganization,
liquidation or similar proceedings under state or federal law; provided,
however, in the case of a failure described in clause (i) or clause (ii) of this
sentence, if within the 5-Business Day period described in clause (i) or the 30
day period described in clause (ii), as applicable, the Bank in question in good
faith disputes such default asserting that such default has not occurred (and
provided that such Bank has satisfied its funding obligations pursuant to the
provisions of Section 2.4), such Bank shall not be deemed to be a Defaulting
Bank until such Bank is found to be in default pursuant to a final judicial or
arbitration determination and such Bank does not thereafter take the action
necessary to cure the default within 10 Business Days following the date of the
final determination.
(b) With respect to each Defaulting Bank, any Current Bank
shall, in addition to any other rights or remedies available at law or equity,
be entitled, in the case of the failure of a Defaulting Bank to pay its pro rata
share (the "Defaulting Bank's Share") in a Loan made pursuant to Section 2.4, to
pay to the Administrative Agent the Defaulting Bank's Share (pro rata if made by
more than one Current Bank, based on the pro rata shares of the Current Banks
making the payment). If one or more of the Current Banks pays the Defaulting
Banks' Share, in addition to any other rights and remedies available to the
Banks, each Current Bank making such payment may elect to do either of the
following with respect to the payment made by such Current Bank:
(i) Notify the Administrative Agent to adjust the pro
rata shares of the Defaulting Bank and the Current Bank making payment
of the Defaulting Bank's Share, allocating the Defaulting Bank's Share
to the Current Bank as of the date the Loan was made; or
(ii) Receive all amounts which the Defaulting Bank
would otherwise be entitled to receive pursuant to this Agreement with
respect to the Defaulting Bank's Share (including interest accruing
under the Loan Documents on the Loan, to the extent of the Defaulting
Bank's Share of such Loan), pro rata according to the portion of the
Defaulting Bank's Share paid by such Current Bank, until such Current
Bank has been repaid the full amount of the Defaulting Bank's Share,
together with accrued interest paid by the Borrower under the Agreement
with respect thereto.
SECTION 8.15 Purchase of Defaulting Bank's Interest After Default. If a
Bank becomes a Defaulting Bank under Section 8.14, each Bank which is not a
Defaulting Bank (a "Current Bank") shall have the right, but not the obligation,
in its sole discretion to acquire (or if more than one Current Bank exercises
such right, each such Current Bank shall have the right to acquire, pro rata
according to its pro rata shares, or in such other proportions as they may
mutually agree), the interest in the Commitment and the Loans of a Defaulting
Bank. Upon any such purchase, the Defaulting Bank's interest in the Commitment
and the Loans and its rights hereunder as a Bank (but not its liability in
respect thereof or under the Loan Documents or this Agreement for events
occurring prior to such purchase) shall terminate at the date of purchase, and
the Defaulting Bank shall promptly
-49-
<PAGE>
execute all documents reasonably requested to surrender and transfer such
interest including an Assignment and Acceptance agreement and the canceled Note
shall be returned to the Borrower. Current Banks exercising purchase rights
under this Agreement must, as a precondition to the exercise of such rights,
concurrently exercise their corresponding purchase rights under this Agreement.
SECTION 8.16 Purchase Price and Payment for Defaulting Bank's Interest.
The purchase price for the interest in the Commitment and the Loans of a
Defaulting Bank shall be equal to the total outstanding Loans owed by the
Borrower to the Defaulting Bank as of the date of such purchase, including
without limitation any outstanding interest related thereto up to the date of
such purchase, together with any accrued but unpaid Fees payable to the
Defaulting Bank through such date. Payment of the purchase price for the
Defaulting Bank's interest in the Commitment and the Loans so acquired shall be
made on the date of such purchase.
-50-
<PAGE>
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed or sent by telecopy, graphic scanning or other telegraphic
communications equipment of the sending party, as follows:
(a) if to the Borrower, to it at Post Office Box
29243, Phoenix, Arizona 85038-9243, Attention: William F. Riley
(Telecopy No. 602/907-7503, Telephone No. 602/907-7406) and separately
Attention: Stephen J. Lyding (Telecopy No. 602/907-7503, Telephone No.
602/907-7554).
with a copy to: Lane & Ehrlich, Ltd., 4001 North
Third Street, Phoenix, Arizona 85012, Attention: Gerald F. Ehrlich
(Telecopy No. 602/ 264-5006);
(b) if to the Administrative Agent, to it at the
following:
(i) as to Borrowing Notices and as to
payments, 201 Third Street, San Francisco, California 94103,
Attention: Agency Department (Telecopy No. 415/512-9408); and
(ii) as to all other notices and
communications, 100 West Washington, Phoenix, Arizona 85003,
Attention: Kathleen P. Sowa #4101-251 (Telecopy No.
602/229-4409);
(c) if to a Bank, to it at its address (or telecopy
number) set forth in Schedule 2.1 or in the Assignment and Acceptance
pursuant to which such Bank shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or other telegraphic communications equipment of the sender, or on the
date five Business Days after dispatch by certified or registered mail if
mailed, in each case delivered, sent or mailed (properly addressed) to such
party as provided in this Section or in accordance with the latest unrevoked
direction from such party given in accordance with this Section.
SECTION 9.2 Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Banks and shall survive the making by the Banks of
the Loans, and the execution and delivery to the Banks of the Notes evidencing
such Loans, regardless
-51-
<PAGE>
of any investigation made by the Banks or on their behalf, and shall continue in
full force and effect until Termination has occurred.
SECTION 9.3 Binding Effect. This Agreement shall become effective when
it shall have been executed by the Borrower and the Administrative Agent and
when the Administrative Agent shall have received copies hereof which, when
taken together, bear the signatures of each Bank, and thereafter shall be
binding upon and inure to the benefit of the Borrower, the Administrative Agent
and each Bank and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights hereunder or any interest
herein without the prior consent of all the Banks and the Administrative Agent.
SECTION 9.4 Successors and Assigns.
(a) Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
assigns of such party; and all covenants, promises and agreements by or on
behalf of the Borrower, the Administrative Agent or the Banks that are contained
in this Agreement shall bind and inure to the benefit of their respective
successors and assigns.
(b) Each Bank at its own expense may assign to one or more
assignees all or a portion of its interests, rights and obligations under this
Agreement (including all or a portion of its Commitment, and the Loans at the
time owing to it and the Notes held by it); provided, however, that (i) except
in the case of an assignment to a Bank or an Affiliate of any Bank, the
Administrative Agent and, so long as there is no Event of Default outstanding,
the Borrower must give their prior written consent to such assignment (which
consent shall not be unreasonably withheld), (ii) each such assignment shall be
of a constant, and not a varying, percentage of all the assigning Bank's rights
and obligations under this Agreement, (iii) except in the case of an assignment
to a Bank or an Affiliate of any Bank, the amount of the Commitment of the
assigning Bank subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $10,000,000.00 or such lesser
amount if such amount is the entire Commitment of the assigning Bank, (iv) the
parties to each such assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with the Note or Notes subject to
such assignment and, except in the case of an assignment to a Bank or an
Affiliate of any Bank, a processing and recordation fee of $2,500 (which fee
shall not in any way be the responsibility of the Borrower), (v) the assignee,
if it shall not be a Bank, shall deliver to the Administrative Agent an
Administrative Details Reply Form and (vi) any increased costs by reason of any
such assignment will not be borne by the Borrower. Upon acceptance and recording
pursuant to paragraph (e) of this Section 9.4, from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be at
least five Business Days after the execution thereof, (A) the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have all the rights and obligations of a Bank
under this Agreement and (B) the assigning Bank thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Bank's rights
-52-
<PAGE>
and obligations under this Agreement, such Bank shall cease to be a party hereto
(but shall continue to be entitled to the benefits of Sections 2.13, 2.15, 2.19
and 9.5, as well as to any Fees accrued for its account hereunder and not yet
paid)).
(c) By executing and delivering an Assignment and Acceptance,
the assigning Bank thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Bank warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Commitment and the outstanding balances of its Loans, without giving effect
to assignments thereof which have not become effective, are as set forth in such
Assignment and Acceptance, (ii) except as set forth in (i) above, such assigning
Bank makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, any other
Loan Document or any other instrument or document furnished pursuant hereto or
the financial condition of the Borrower or any Subsidiary or the performance or
observance by the Borrower or any Subsidiary of any of its obligations under
this Agreement, any other Loan Document or any other instrument or document
furnished pursuant hereto; (iii) such assignee represents and warrants that it
is legally authorized to enter into such Assignment and Acceptance; (iv) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the most recent financial statements delivered pursuant to Section 5.4
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and
Acceptance; (v) such assignee will independently and without reliance upon the
Administrative Agent, such assigning Bank or any other Bank and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement; (vi) such assignee appoints and authorizes the Administrative Agent
to take such action as agent on its behalf and to exercise such powers under
this Agreement as are delegated to the Administrative Agent by the terms hereof,
together with such powers as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all the
obligations which by the terms of this Agreement are required to be performed by
it as a Bank.
(d) The Administrative Agent shall maintain at one of its
offices in Phoenix, Arizona, a copy of each Assignment and Acceptance delivered
to it and a register for the recordation of the names and addresses of the
Banks, and the Commitment of, and principal amount of the Loans owing to, each
Bank pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive in the absence of manifest error and
the Borrower, the Administrative Agent and the Banks may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Bank
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Borrower and any Bank, at any reasonable time and from
time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Bank and an assignee together with the Note
or Notes subject to such assignment, an Administrative Details Reply Form
completed in respect of the assignee (unless the assignee shall
-53-
<PAGE>
already be a Bank hereunder), the processing and recordation fee referred to in
paragraph (b) above and, if required, the written consent of the Borrower and
the Administrative Agent to such assignment, the Administrative Agent shall (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Borrower and
the Banks. Within five Business Days after receipt of notice, the Borrower, at
its own expense, shall execute and deliver to the Administrative Agent, in
exchange for the surrendered Note or Notes, a new Note or Notes to the order of
such assigning Bank in a principal amount equal to the applicable Commitment
retained by it. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes; such
new Notes shall be dated the date of the surrendered Notes which they replace
and shall otherwise be in substantially the form of Exhibit C. Canceled Notes
shall be returned to the Borrower.
(f) Each Bank may without the consent of the Borrower or the
Administrative Agent sell participations to one or more banks or other entities
in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it and the
Notes held by it); provided, however, that (i) such Bank's obligations under
this Agreement shall remain unchanged, (ii) such Bank shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the participating banks or other entities shall be entitled to the benefit
of the cost protection provisions contained in Sections 2.13, 2.15 and 2.19 to
the same extent as if they were Banks (however no participating bank or entity
shall be entitled to claim a greater amount than could have been claimed by the
Bank from whom the participation was acquired) and (iv) the Borrower, the
Administrative Agent and the other Banks shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and obligations
under this Agreement, and such Bank shall retain the sole right to enforce the
obligations of the Borrower relating to the Loans and to approve any amendment,
modification or waiver of any provision of this Agreement. No entity acquiring a
participation pursuant to this paragraph (f) shall by virtue of such
participation have any direct voting rights under this Agreement.
(g) Any Bank or participant may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 9.4, disclose to the assignee or participant or proposed assignee
or participant any information relating to the Borrower furnished to such Bank
by or on behalf of the Borrower; provided that, prior to any such disclosure of
such information, each such assignee or participant or proposed assignee or
participant shall execute an agreement whereby such assignee or participant
shall agree to preserve the confidentiality of such information on terms no less
restrictive than those applicable to Banks pursuant to Section 9.17.
(h) Any Bank may at any time assign all or any portion of its
rights under this Agreement and the Notes issued to it to a Federal Reserve
Bank; provided that no such assignment shall release a Bank from any of its
obligations hereunder.
(i) The Borrower shall not assign or delegate any of its
rights or duties hereunder without the prior written consent of the Banks.
-54-
<PAGE>
SECTION 9.5 Expenses; Indemnity.
--------------------
(a) The Borrower agrees to pay all out-of-pocket expenses
reasonably incurred by the Administrative Agent and any Bank in connection with
the preparation of this Agreement and the other Loan Documents or in connection
with any amendments, modifications or waivers of the provisions hereof or
thereof (whether or not the transactions hereby contemplated shall be
consummated) or reasonably incurred by the Administrative Agent and any Bank in
connection with the enforcement or protection of their rights in connection with
this Agreement and the other Loan Documents or in connection with the Loans made
or the Notes issued hereunder, including without limitation the reasonable fees,
charges and disbursements of the counsel for the Administrative Agent and any
Bank, and, in connection with any such enforcement or protection, the reasonable
fees, charges and disbursements of counsel for the Administrative Agent and any
Bank. The Borrower further agrees that it shall indemnify the Administrative
Agent and any Bank from and hold them harmless against any documentary taxes,
assessments or charges made by any Governmental Authority by reason of the
execution and delivery of this Agreement or any of the other Loan Documents.
(b) The Borrower agrees to indemnify the Administrative Agent,
each Bank and each of their respective affiliates, directors, officers,
employees and agents (each such person being called an "Indemnitee") against,
and to hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including without limitation reasonable
counsel fees, charges and disbursements, incurred by or asserted against any
Indemnitee arising out of, in any way connected with, or as a result of (i) the
execution or delivery of this Agreement or any other Loan Document or any
agreement or instrument contemplated thereby, the performance by the parties
thereto of their respective obligations thereunder or the consummation of the
transactions contemplated thereby, (ii) the use of the proceeds of the Loans
pursuant to the request of the Borrower or (iii) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) The provisions of this Section shall remain operative and
in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Administrative Agent and any Bank. All amounts due
under this Section shall be payable on written demand therefor.
SECTION 9.6 Right of Setoff. Subject to the provisions of Section 2.17,
if an Event of Default shall have occurred and be continuing and any Bank shall
have requested the Administrative Agent to declare the Loans immediately due and
payable pursuant to Article VII, each Bank is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held
-55-
<PAGE>
and other indebtedness at any time owing by such Bank to or for the credit or
the account of the Borrower against any of and all the obligations of the
Borrower now or hereafter existing under this Agreement and any other Loan
Documents held by such Bank, irrespective of whether or not such Bank shall have
made any demand under this Agreement or such other Loan Document and although
such obligations may be unmatured; provided that such right of setoff shall not
apply to amounts which may be held in (i) trust accounts or (ii) asset
management accounts, including without limitation brokerage accounts, cash
management accounts or other money management or investment accounts of a
non-depository nature with any Bank. The rights of each Bank under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Bank may have.
SECTION 9.7 Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
ARIZONA APPLICABLE TO CONTRACTS MADE AND TO BE ENFORCED ENTIRELY WITHIN THAT
STATE.
SECTION 9.8 Waivers; Amendment.
-------------------
(a) No failure or delay of a party hereto in exercising any
power or right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the parties hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies which they would
otherwise have. No waiver of any provision of this Agreement or any other Loan
Document or consent to any departure by a party therefrom shall in any event be
effective unless the same shall be permitted by Paragraph (b) of this Section
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. No notice or demand on a party in any case
shall entitle that party to any other or further notice or demand in similar or
other circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrower and the Required Banks; provided, however,
that any such agreement shall have been consented to by all the Banks to the
extent required pursuant to the provisions of Section 8.3(b); provided further
that no such agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent hereunder without the prior written consent
of the Administrative Agent. Each Bank and each holder of a Note shall be bound
by any waiver, amendment or modification authorized by this Section regardless
of whether its Note shall have been marked to make reference thereto, and any
consent by any Bank or holder of a Note pursuant to this Section shall bind any
Person subsequently acquiring a Note from it, whether or not such Note shall
have been so marked.
SECTION 9.9 Interest Rate Limitation. Notwithstanding anything herein
or in the Notes to the contrary, if at any time the applicable interest rate,
together with all fees and charges which are treated as interest under
applicable law (collectively, the "Charges"), as provided for herein or in any
other document executed in connection herewith, or otherwise contracted for,
charged, received,
-56-
<PAGE>
taken or reserved by any Bank, shall exceed the maximum lawful rate (the
"Maximum Rate") which may be contracted for, charged, taken, received or
reserved by such Bank in accordance with applicable law, the rate of interest
payable under the Notes held by such Bank, together with all Charges payable to
such Bank, shall be limited to the Maximum Rate. Borrower hereby agrees to the
payment of interest with respect to the Loans and Borrowings under the Loans at
the respective applicable rates determined pursuant to this Agreement, in each
case as increased by any rate of interest resulting from any charges in the
nature of interest paid or payable in connection with the Loans, the Notes
and/or this Agreement.
SECTION 9.10 Entire Agreement. This Agreement and the other Loan
Documents constitute the entire contract between the parties relating to the
subject matter hereof. Any previous agreement among any of the parties with
respect to the subject matter hereof is superseded by this Agreement and the
other Loan Documents. Nothing in this Agreement or in the other Loan Documents,
expressed or implied, is intended to confer upon any party other than the
parties hereto and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the other Loan Documents.
SECTION 9.11 Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 9.12 Counterparts and Signature Pages. This Agreement may be
executed in two or more counterparts, each of which shall constitute an original
but all of which when taken together shall constitute but one contract. Delivery
of an executed counterpart of a signature page to this Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this Agreement. All parties hereto authorize the Administrative Agent to
gather and attach manually executed counterpart signature pages to counterpart
copies of this Agreement in order to constitute one or more counterparts bearing
evidence of manual execution by all parties.
SECTION 9.13 Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.14 Arbitration.
------------
(a) Arbitration. Upon the demand of any party, any Dispute
shall be resolved by binding arbitration (except as set forth in (e) below) in
accordance with the terms of this Agreement. A "Dispute" shall mean any action,
dispute, claim or controversy of any kind, whether in contract or tort,
statutory or common law, legal or equitable, now existing or hereafter arising
under or in connection with, or in any way pertaining to, any of the Loan
Documents, or any past, present or
-57-
<PAGE>
future extensions of credit and other activities, transactions or obligations of
any kind related directly or indirectly to any of the Loan Documents, including
without limitation, any of the foregoing arising in connection with the exercise
of any self-help, ancillary or other remedies pursuant to any of the Loan
Documents. Any party may by summary proceedings bring an action in court to
compel arbitration of a Dispute. Any party who fails or refuses to submit to
arbitration following a lawful demand by any other party shall bear all costs
and expenses incurred by such other party in compelling arbitration of any
Dispute.
(b) Governing Rules. Arbitration proceedings shall be
administered by the American Arbitration Association ("AAA") or such other
administrator as the parties shall mutually agree upon in accordance with the
AAA Commercial Arbitration Rules. All Disputes submitted to arbitration shall be
resolved in accordance with the Federal Arbitration Act (Title 9 of the United
States Code), notwithstanding any conflicting choice of law provision in any of
the Loan Documents. The arbitration shall be conducted at a location in Arizona
selected by the AAA or other administrator. If there is any inconsistency
between the terms hereof and any such rules, the terms and procedures set forth
herein shall control. All statutes of limitation applicable to any Dispute shall
apply to any arbitration proceeding. All discovery activities shall be expressly
limited to matters directly relevant to the Dispute being arbitrated. Judgment
upon any award rendered in any arbitration may be entered in any court having
jurisdiction; provided however, that nothing contained herein shall be deemed to
be a waiver by any party that is a bank of the protections afforded to it under
12 U.S.C. ss. 91 or any similar applicable state law.
(c) No Waiver; Provisional Remedies, Self-Help and
Foreclosure. No provision hereof shall limit the right of any party to exercise
self-help remedies such as setoff, foreclosure against or sale of any real or
personal property collateral or security, or to obtain provisional or ancillary
remedies, including without limitation injunctive relief, sequestration,
attachment, garnishment or the appointment of a receiver, from a court of
competent jurisdiction before, after or during the pendency of any arbitration
or other proceeding. The exercise of any such remedy shall not waive the right
of any party to compel arbitration hereunder.
(d) Arbitrator Qualifications and Powers; Awards. Arbitrators
must be active members of the Arizona State Bar or retired judges of the state
or federal judiciary of Arizona with expertise in the substantive law applicable
to the subject matter of the Dispute. Arbitrators are empowered to resolve
Disputes by summary rulings in response to motions filed prior to the final
arbitration hearing. Arbitrators (i) shall resolve all Disputes in accordance
with the substantive law of the state of Arizona, (ii) may grant any remedy or
relief that a court of the state of Arizona could order or grant within the
scope hereof and such ancillary relief as is necessary to make effective any
award, and (iii) shall have the power to award recovery of all costs and fees,
to impose sanctions and to take such other actions as they deem necessary to the
same extent a judge could pursuant to the Federal Rules of Civil Procedure, the
Arizona Rules of Civil Procedure or other applicable law. Any Dispute in which
the amount in controversy is $5,000,000 or less shall be decided by a single
arbitrator who shall not render an award of greater than $5,000,000 (including
damages, costs, fees and expenses). By submission to a single arbitrator, each
party expressly waives any right or claim to recover more than $5,000,000. Any
Dispute in which the amount in controversy exceeds
-58-
<PAGE>
$5,000,000 shall be decided by a majority vote of a panel of three arbitrators
one of whom shall have experience representing borrowers; provided however, that
all three arbitrators must actively participate in all hearings and
deliberations.
(e) Judicial Review. Notwithstanding anything herein to the
contrary, in any arbitration in which the amount in controversy exceeds
$25,000,000, the arbitrators shall be required to make specific, written
findings of fact and conclusions of law. In such arbitrations (i) the
arbitrators shall not have the power to make any award which is not supported by
substantial evidence or which is based on legal error, (ii) an award shall not
be binding upon the parties unless the findings of fact are supported by
substantial evidence and the conclusions of law are not erroneous under the
substantive law of the State of Arizona, and (iii) the parties shall have in
addition to the grounds referred to in the Federal Arbitration Act for vacating,
modifying or correcting an award the right to judicial review of (A) whether the
findings of fact rendered by the arbitrators are supported by substantial
evidence, and (B) whether the conclusions of law are erroneous under the
substantive law of the State of Arizona. Judgment confirming an award in such a
proceeding may be entered only if a court determines the award is supported by
substantial evidence and not based on legal error under the substantive law of
the State of Arizona.
(f) Miscellaneous. To the maximum extent practicable, the AAA,
the arbitrators and the parties shall take all action required to conclude any
arbitration proceeding within 180 days of the filing of the Dispute with the
AAA. No arbitrator or other party to any arbitration proceeding may disclose the
existence, content or results thereof, except for disclosures of information by
a party required in the ordinary course of its business, by applicable law or
regulation, or to the extent necessary to exercise any judicial review rights
set forth herein. If more than one agreement for arbitration by or between the
parties potentially applies to a Dispute, the arbitration provision most
directly related to the Loan Documents or the subject matter of the Dispute
shall control. This arbitration provision shall survive termination, amendment
or expiration of any of the Loan Documents or any relationship between the
parties.
SECTION 9.15 Jurisdiction.
-------------
(a) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of Arizona State court or Federal court of the United States of
America sitting in Phoenix, Arizona, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement or the
other Loan Documents, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in such Arizona State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any Bank may otherwise
have to bring any action or proceeding relating to this Agreement or the other
Loan Documents against the Borrower or its properties in the courts of any
jurisdiction.
-59-
<PAGE>
(b) Each of the parties hereto hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the other Loan Documents in any Arizona State or Federal court sitting in
Phoenix, Arizona. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
SECTION 9.16 Waiver of Jury Trial. Each party hereto hereby waives, to
the fullest extent permitted by applicable law, any right it may have to a trial
by jury in respect of any litigation directly or indirectly arising out of,
under or in connection with this Agreement or any of the other Loan Documents.
Each party hereto (a) certifies that no representative, agent or attorney of any
other party has represented, expressly or otherwise, that such other party would
not, in the event of litigation, seek to enforce the foregoing waiver and (b)
acknowledges that it and the other parties hereto have been induced to enter
into this Agreement and the other Loan Documents, as applicable, by (among other
things) the mutual waivers and certifications in this Section.
SECTION 9.17 Confidentiality. Each Bank agrees to keep confidential
(and to cause its officers, directors, employees, agents and representatives to
keep confidential) the Information (as defined below), except that any Bank
shall be permitted to disclose Information (i) to such of its officers,
directors, employees, agents and representatives (including outside counsel) as
need to know such Information; (ii) to the extent required by applicable laws
and regulations or by any subpoena or similar legal process, or requested by any
bank regulatory authority (provided that such Bank shall, except for Information
requested by any such bank regulatory authority, promptly notify Borrower (to
the extent practicable and lawful, notice shall be given to the Borrower before
such disclosure is made so as to permit Borrower to seek a protective order) of
the circumstances and content of each such disclosure and shall request
confidential treatment of any Information so disclosed); (iii) to the extent
such Information (A) becomes publicly available other than as a result of a
breach of this Agreement, (B) becomes available to such Bank on a non
confidential basis from a source other than the Borrower or its Affiliates or
(C) was available to such Bank on a nonconfidential basis prior to its
disclosure to such Bank by the Borrower or its Affiliates; or (iv) to the extent
the Borrower shall have consented to such disclosure in writing. As used in this
Section 9.17, as to any Bank, "Information" shall mean any financial statements,
materials, documents and other information that the Borrower or any of its
Affiliates may have furnished or may hereafter furnish to such Bank in
-60-
<PAGE>
connection with this Agreement or any other materials prepared by any such
person from any of the foregoing.
IN WITNESS WHEREOF, the Borrower, the Administrative Agent and the
Banks have caused this Agreement to be duly executed by their respective
authorized officers as of the day and year first above written.
SWIFT TRANSPORTATION CO., INC.,
an Arizona corporation
By: /s/ William F. Riley, III
-------------------------------------
Name: William F. Riley, III
-----------------------------------
Its:Executive Vice President and CFO
------------------------------------
"Borrower"
WELLS FARGO BANK, N.A.
By: /s/ K. Sowa
-------------------------------------
Name:Kathleen P. Sowa
-----------------------------------
Its: Vice President
------------------------------------
"Administrative Agent and Issuing Bank"
WELLS FARGO BANK, N.A.
By: /s/ K. Sowa
-------------------------------------
Name: Kathleen P. Sowa
-----------------------------------
Its: Vice President
------------------------------------
"Bank"
ABN AMRO BANK N.V.
BY: ABN AMRO NORTH AMERICA, INC., as
-61-
<PAGE>
agent
By: /s/ Ellen M. Coleman
-------------------------------------
Name: Ellen M. Coleman
-----------------------------------
Its: Vice President/Director
------------------------------------
By: /s/ Paul K. Stimpfl
-------------------------------------
Name: Paul K. Stimpfl
-----------------------------------
Its: Vice President/Director
------------------------------------
"Co-Agent and Bank"
THE CHASE MANHATTAN BANK, a New York
banking corporation
By: /s/ Andris G. Kalnins
-------------------------------------
Name: Andris G. Kalnins
-----------------------------------
Its: Vice President
------------------------------------
"Bank"
THE FIRST NATIONAL BANK OF CHICAGO, a
national banking association
By: /s/ James B. Junker
-------------------------------------
Name: James B. Junker
-----------------------------------
Its: Vice President/Authorized Agent
------------------------------------
"Bank"
-62-
<PAGE>
The undersigned Guarantor acknowledges and accepts this Agreement and
joins as a party as to its obligations hereunder.
SWIFT TRANSPORTATION CO., INC. a Nevada
corporation
By: /s/ William F. Riley, III
-------------------------------------
Name: William F. Riley, III
-----------------------------------
Title: Executive Vice President and CFO
------------------------------------
"Guarantor"
-63-
<PAGE>
EXHIBIT "A"
FORM OF ASSIGNMENT AND ACCEPTANCE
---------------------------------
______________, 19___
Reference is made to the Credit Agreement dated as of January 16,
1997 (the "Credit Agreement"), among SWIFT TRANSPORTATION CO., INC., an Arizona
corporation (the "Borrower"), the lenders named therein (the "Banks"), WELLS
FARGO BANK, N.A., as Administrative Agent for the Banks (in such capacity, the
"Administrative Agent") and ABN AMRO BANK N.V., as Co-Agent. Terms defined in
the Credit Agreement and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse, from
the Assignor, effective as of the Effective Date set forth on the reverse
hereof, the interests set forth on the reverse hereof (the "Assigned Interest")
in the Assignor's rights and obligations under the Credit Agreement, including,
without limitation, the interests set forth on the reverse hereof in the
Commitment of the Assignor on the Effective Date and the Loans owing to the
Assignor which are outstanding on the Effective Date, together with unpaid
interest accrued on the assigned Loans to the Effective Date and the amount, if
any, set forth on the reverse hereof of the Fees accrued to the Effective Date
for the account of the Assignor. Each of the Assignor and the Assignee hereby
makes and agrees to be bound by all the representations, warranties and
agreements set forth in Section 9.4(c) of the Credit Agreement, a copy of which
has been received by each such party. From and after the Effective Date (i) the
Assignee shall be a party to and be bound by the provisions of the Credit
Agreement and, to the extent of the interests assigned by this Assignment and
Acceptance, have the rights and obligations of a Bank thereunder and under the
Loan Documents and (ii) the Assignor shall, to the extent of the interests
assigned by this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
2. This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) the Notes evidencing the Loans included
in the Assigned Interest, (ii) the appropriate forms specified in Section
2.19(e) of the Credit Agreement, duly completed and executed by such Assignee,
(iii) if the Assignee is not already a Bank under the Credit Agreement, an
Administrative Details Reply Form in the form of Exhibit "D" to the Credit
Agreement and (iv) a processing fee of $2,500.00.
3. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of Arizona.
<PAGE>
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notice:
Effective Date of Assignment
(may not be fewer than 5 Business
Days after the Date of Assignment):
Percentage Assigned of
Facility/Commitment (set
forth, to at least 8
decimals, as a percentage of
the Facility and the
aggregate Commitments of all
Banks thereunder)
Principal Amount Assigned
Facility
Commitment $________________ ______________%
Assigned:
Loans:
Fees Assigned
(if any):
The terms set forth above and
on the reverse side hereof are
hereby agreed to: Accepted
__________________, as Assignor _________________________________
By__________________________ By__________________________
Its___________________ Its___________________
__________________, as Assignor
By__________________________ By__________________________
Its___________________ Its___________________
-2-
<PAGE>
EXHIBIT "B"
FORM OF BORROWING NOTICE
------------------------
WELLS FARGO BANK, N.A.
201 Third Street
San Francisco, California 94103
Attention: Agency Department Date:______________
(Telecopy No. 415/512-9408) Time:______________
Dear Sir or Madam:
The undersigned, SWIFT TRANSPORTATION CO., INC., an Arizona
corporation ("Borrower"), refers to the Credit Agreement dated as of January 16,
1997 (as it may hereafter be amended, modified, extended or restated from time
to time, the "Credit Agreement"), among Borrower, the Banks named therein, WELLS
FARGO BANK, N.A. as Administrative Agent for the Banks, and ABN AMRO BANK N.V.,
as Co-Agent. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement. The
Borrower hereby gives notice that it requests a Borrowing pursuant to Section
2.3 of the Credit Agreement and sets forth below the terms of such requested
Borrowing:
A. Type of Borrowing1 ____________________
B. Advance date of Borrowing ____________________
C. Principal Amount of Borrowing2 ____________________
D. LIBOR Borrowing Interest
Period and last day thereof3 ____________________
- ------------------------------
1 LIBOR Borrowing or Base Rate Borrowing.
2 Each Borrowing under the Revolving Loan shall be a principal amount
which is an integral multiple of $100,000.00 and not less than $1,000,000.00.
3 Which shall be subject to the definition of "Interest Period" and end
not later than the Maturity Date.
<PAGE>
E. Refinancing Election (Identity
of Borrowing to be refinanced)4
Date ____________________
Type ____________________
Amount ____________________
Last Day of Interest Period ____________________
Upon acceptance of the Borrowing to be made by the Banks in response
to this request, Borrower shall be deemed to have represented and warranted to
the Banks that, as of the date of such Credit Event, the conditions specified in
Section 4.1 of the Credit Agreement are satisfied.
Sincerely,
SWIFT TRANSPORTATION CO., INC.,
an Arizona corporation
By
--------------------------------------
Its
-------------------------------
An officer of Borrower duly
authorized to request
Borrowings under the Credit
Agreement
- -------------------------
4 Identity shall include the date and amount of Borrowing, the Type and, with
respect to LIBOR Borrowings, the last day of Interest Period.
-2-
<PAGE>
EXHIBIT "C"
REVOLVING CREDIT NOTE
(Facility)
$_____________ ______________, 19___
Phoenix, Arizona
FOR VALUE RECEIVED, SWIFT TRANSPORTATION CO., INC., an Arizona
corporation (hereinafter called "Maker"), hereby promises to pay to the order of
_____________________________________ (the "Bank"), at the main office of WELLS
FARGO BANK, N.A. (the "Administrative Agent"), at 201 Third Street, San
Francisco, California 94103, Attention: Agency Department or at such other
location as the Administrative Agent may notify the Maker in writing, in Dollars
in immediately available funds, the principal sum of
____________________________________ AND ____/100 DOLLARS ($_________________)
or the aggregate unpaid principal amount of all Borrowings of the Revolving
Loans (as such terms and each other capitalized term used herein are defined in
the Credit Agreement hereinafter referred to) made by the Bank pursuant to the
Credit Agreement, whichever is less, and to pay interest in like funds from the
date hereof on the unpaid balance thereof at the rates of interest per annum and
at the times specified in the Credit Agreement.
Principal hereof shall be payable in the amounts and at the times set
forth in the Credit Agreement.
This Note is one of the revolving credit notes referred to in Section
2.7 of the Credit Agreement dated as of January 16, 1997 by and among Maker, the
Banks named therein, the Administrative Agent and ABN AMRO BANK N.V. as Co-Agent
(as the same may be amended, modified or restated from time to time, the "Credit
Agreement"). All of the terms, conditions and covenants of the Credit Agreement
are expressly made a part of this Note by reference in the same manner and with
the same effect as if set forth herein at length and Bank or any transferee of
this Note (sequentially, the "Holder") is entitled to the benefits of and
remedies provided in the Credit Agreement and any other agreements by and
between Maker and Bank. Reference is made to the Credit Agreement for provisions
regarding the maturity, payment, prepayment and acceleration of the indebtedness
evidenced hereby.
After maturity, including maturity upon acceleration, all unpaid
amounts of this Note shall bear interest at the Default Rate. Maker agrees to
pay all collection expenses, including reasonable attorneys' fees and court
costs, incurred in the collection or enforcement of all or any part of this Note
in which the Holder is the prevailing party. In the event of any court
proceedings, court costs and attorneys' fees shall be set by the court and not
by jury and shall be included in any judgment obtained by the Holder. Maker
agrees to an effective rate of interest that is the rate stated above plus any
additional rate of interest resulting from any other charges in the nature of
interest paid or to be paid
<PAGE>
by or on behalf of Maker, or any benefit receivable to be received by holder
hereof in connection with this Note.
Failure of the Holder to exercise any option hereunder shall not
constitute a waiver of the right to exercise same in the event of any subsequent
default, or in the event of continuance of any existing default after demand for
strict performance hereof.
This Note is entitled to the benefit of the Credit Agreement and the
other Loan Documents.
This Note shall be binding upon Maker and its successors and assigns
and shall inure to the benefit of the payee hereof, and any subsequent
transferees of this Note, and their successors and assigns.
This Note shall be governed by and construed according to the laws of
the State of Arizona.
IN WITNESS WHEREOF, Maker has caused this Note to be executed by its
duly authorized corporate agent as of the day and year first above written.
SWIFT TRANSPORTATION CO., INC., an
Arizona corporation
By
--------------------------------------
Its
-------------------------------
"MAKER"
-2-
<PAGE>
EXHIBIT "D"
ADMINISTRATIVE DETAILS REPLY FORM
---------------------------------
Re: $110,000,000.00 Facility for SWIFT TRANSPORTATION CO., INC.
1. Name of Entity For Signature Page:___________________________________
2. Name of Entity as it Should
Appear in Any Publicity: ______________________________
(if different than above)
3. Name of Person to Receive Draft
Credit Agreement at Bank: ________________________________________
4. Name of Person to Sign
Credit Agreement: ______________________________
<TABLE>
<CAPTION>
5. Contacts: Credit Contact Operations Contact Legal Counsel
-------------- ------------------ -------------
<S> <C> <C> <C>
Name: ____________________ _____________________ _____________________
Title: ____________________ _____________________ _____________________
Address: ____________________ _____________________ _____________________
-------------------- --------------------- ---------------------
-------------------- --------------------- ---------------------
Telephone: ____________________ _____________________ _____________________
Facsimile #: ____________________ _____________________ _____________________
Telex #: ____________________ _____________________ _____________________
Answerback: ____________________ _____________________ _____________________
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
6. Payment Instructions:
<S> <C> <C> <C> <C>
Method of Payment: Fedwire _________________ Chips _________________
Pay to: __________________________________________________________
Name of Bank: __________________________________________________________
City, State, Zip: __________________________________________________________
ABA Number: _______________________ Reference: ________________
Account Number: _______________________ Account Name:_________________
Attention: __________________________________________________________
</TABLE>
-2-
<PAGE>
EXHIBIT "E"
MATTERS TO BE COVERED BY THE LEGAL OPINION
OF COUNSEL
1. The _________________ is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of ____________, and
has all corporate power and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
2. Each Subsidiary identified in Schedule "3.15" of the Credit
Agreement is a corporation duly incorporated, validly existing, and in good
standing under the laws of the jurisdiction of its incorporation, and has all
corporate power and all material governmental licenses, authorizations, consents
and approvals to carry on its business as now conducted.
3. The execution, delivery and performance by the ___________ of the
Loan Documents are within ____________'s corporate power, have been duly
authorized by all necessary corporate action, and require no action by or in
respect of, or filing with, any Governmental Authority and neither the execution
and delivery thereof nor the consummation of the transactions contemplated
thereby nor compliance by the ____________ with any, nor the ____________'s
performance of all, of the terms and provisions of the Loan Documents will
contravene any law applicable to it or conflict with, result in any breach of,
or constitute any default under, its certificate of incorporation or by-laws
(both as amended to date) or conflict with, result in any breach of, or
constitute default under, or result in the creation of a Lien under, or require
the consent of any trustee or creditor pursuant to, any indenture, mortgage,
chattel mortgage, deed of trust, conditional sales contract, lease, bank loan or
credit agreement to which the ____________ is a party or by which it or its
assets are bound, known to us.
4. Each Loan Document has been duly authorized and delivered by the
_________, and is the legal, valid and binding obligation of the _____________,
enforceable against it in accordance with its terms, except as enforcement
thereof may be limited by applicable bankruptcy, insolvency or other laws or
equitable principles of general application relating to the enforcement of
creditors' rights.
5. To the best knowledge of such counsel after due inquiry, there are
no actions, suits or proceedings pending or threatened in any court or before
any regulatory commission, board or other administrative or other governmental
entity against or affecting the Borrower which could reasonably be expected to
have a material adverse effect on its ability to enter into or perform its
obligations under any of the Loan Documents or on the condition (financial or
otherwise), operations, business or prospects of the ____________, except those
described in the Borrower's report on Form 10-K for its most recently completed
fiscal year ended ___________, _______, delivered to the Bank.
<PAGE>
6. No consent, approval, waiver, license or authorization or other
action by or filing with any governmental authority is required in connection
with the execution and delivery by the ____________ of the Loan Documents except
for those which have already been obtained and are in full force and effect.
7. The ____________ is not an "investment company" nor a company
"controlled" by an "investment company," within the meaning of the Investment
Company Action of 1940, as amended.
-2-
<PAGE>
EXHIBIT "F"
QUARTERLY COMPLIANCE CERTIFICATE
FOR FISCAL QUARTER ENDING
________________, 19__
WELLS FARGO BANK, N.A.
100 West Washington
Phoenix, Arizona 85003
Attn: Kathleen P. Sowa Date:___________________
#4101-251
Dear Ladies and Gentlemen:
This Quarterly Compliance Certificate refers to the Credit Agreement
dated as of January 16, 1997 (as it may hereafter be amended, modified, extended
or restated from time to time, the "Credit Agreement"), among SWIFT
TRANSPORTATION CO., INC., an Arizona corporation ("Borrower"), the Banks named
therein, WELLS FARGO BANK, N.A. as Administrative Agent for the Banks and ABN
AMRO BANK N.V. as Co-Agent. Capitalized terms used and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
Pursuant to Section 5.4 of the Credit Agreement, the undersigned, a
Financial Officer of Guarantor, certifies that:
1. Enclosed are the required financial statements for the [quarter]
[fiscal year] ending for Guarantor as required under Section 5.4 of the Credit
Agreement.
2. To the best of the undersigned's knowledge, no "Event of Default"
or Potential Default has occurred [or if so, specifying the nature and extent
thereof and any corrective actions taken or to be taken].
3. As of the last day of the Reporting Quarter, the computations
below were true and correct:
<TABLE>
<CAPTION>
I. Section 5.8 Unencumbered Assets
<S> <C> <C>
Numerator: Cash ___________________
+ Net Accounts Receivable ___________________
+ Real Estate at net book value ___________________
(not to exceed $50,000,000.00) ___________________
+ Rolling Stock at net book value ___________________
= Unencumbered Assets __________________A
Divided by
<PAGE>
Denominator: Accounts Payable
+ Facility $110,000,000
+ Other (funded and nonfunded, but committed)
outstanding unsecured Indebtedness ___________________
= Total __________________B
Percentage: Equals (A/B): __________________%
Minimum Permitted: _______________120%
II. Section 6.6 Funded Debt/EBITDA Ratio
Calculated on a rolling 4 quarter basis
Numerator: Current Funded Debt
+ Noncurrent Funded Debt ___________________
+ Letters of Credit ___________________
+ Surety Bonds ___________________
+ Guarantees ___________________
+ Capital Lease Obligations ___________________
= Funded Debt __________________A
Divided by
Denominator: Net Earnings
+ Depreciation & Amortization Exp. ___________________
+ Interest Expense ___________________
+ Tax Expenses ___________________
= EBITDA __________________B
________________A/B
Maximum Permitted: ______________2.75x
III. Section 6.7 Debt Service Coverage Ratio
Calculated on a rolling 4 quarter basis
Numerator: Net Earnings
+ Depreciation & Amortization Exp. ___________________
+ Interest Expense ___________________
+ Operating Lease Expense ___________________
+/- Change in Deferred Taxes ___________________
Equals: __________________A
Divided by
Denominator: Current portion of long-term debt
+ Current portion of Capital Lease Obligations ___________________
+ Interest Expense ___________________
+ Operating Lease Expense ___________________
Equals: __________________B
Equals: ________________A/B
Minimum Required: ______________1.25x
</TABLE>
-2-
<PAGE>
SWIFT TRANSPORTATION CO., INC., a Nevada
corporation
By:
-------------------------------------
Name:
-----------------------------------
Its:
------------------------------------
-3-
<PAGE>
SCHEDULE 2.1
COMMITMENTS OF BANKS
as to the Facility
as of January 16, 1997
<TABLE>
<CAPTION>
Euro Dollar
Bank % $
------------ --------- ---------
Lending Office
--------------
<S> <C> <C> <C> <C>
1. Wells Fargo Bank, N.A. 31.8182% $ 35,000,000.00 _________________
2. ABN AMRO BANK N.V. 27.2727% $ 30,000,000.00 _________________
3. The Chase Manhattan Bank 22.7273% $ 25,000,000.00 _________________
4. The First National Bank of 18.1818% $ 20,000,000.00 _________________
Chicago
Maximum Commitment 100% $110,000,000.00 _________________
</TABLE>
Addresses
- ---------
1. 100 West Washington
Phoenix, Arizona 85003
Attention: Kathleen P. Sowa #4101-251
(602) 528-1133 (fax 602/229-4409)
2. 300 South Grand Avenue, Suite 1115
Los Angeles, California 90071
Attention: Ellen M. Coleman
(213) 687-2306 (fax 213/687-2061)
3. 270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Andris Kalnins
(212) 270-5732 (fax 212/270-5127)
4. One First National Plaza
Chicago, Illinois 60670
Attention: James B. Junker
<PAGE>
SCHEDULE 3.5
MATERIAL ADVERSE CHANGE SINCE SEPTEMBER 30, 1996
None.
-2-
<PAGE>
SCHEDULE 3.15
SUBSIDIARIES OF SWIFT TRANSPORTATION CO., INC.,
A NEVADA CORPORATION
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. West's Best Freight System, Inc., a Wyoming corporation
7. A & S Shop Facility, Inc., a Montana corporation
8. Common Market Equipment Co., Inc., an Arizona corporation
9. Swift Transportation Co. of Virginia, Inc., a Virginia corporation
10. Swift Logistics Co., Inc., an Arizona corporation
11. Swift of Texas Co., Inc., a Texas corporation
SWIFT TRANSPORTATION CO., INC. & SUBSIDIARIES
Schedule of Computation of Net Earnings Per Share
(in thousands, except per share amounts)
<TABLE>
<CAPTION>
Year Ended December 31
----------------------
1996 1995 1994
---- ---- ----
<S> <C> <C> <C>
Net Earnings $27,422 $23,040 $22,629
====== ====== ======
Weighted average shares:
Common shares outstanding 24,956 24,578 24,480
Common equivalent shares issuable upon exercise
of employee stock options (1)
713 770 845
------ ------ ------
Total weighted average shares - primary 25,669 25,348 25,325
Incremental common equivalent shares (calculated using
the higher of period or average fair market values) (2) 47 -- 59
------ ------ ------
Total weighted average shares - fully
diluted 25,716 25,348 25,384
====== ====== ======
Primary net earnings per common and equivalent share $ 1.07 $ .91 $ .89
======== ======== ========
Fully diluted net earnings per common and equivalent
share (2) $ 1.07 $ .91 $ .89
======== ======== ========
</TABLE>
- --------------------
Notes:
(1) Amount calculated using the treasury stock method and fair market
values.
(2) The calculation is submitted in accordance with regulation S-K Item
601(b)(11) although not required by footnote 2 to paragraph 14 of APB
Opinion No. 15 because it results in dilution of less than 3%.
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, 333-16865 and 333-20651 on form S-3 and in the Registration Statements
No. 33-85940 and 33-85944 on Form S-8 of Swift Transportation Co., Inc. of our
report dated February 14, 1997, relating to the consolidated balance sheets of
Swift Transportation Co., Inc. and subsidiaries as of December 31, 1996 and
1995, 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,
1996, which report appears in the December 31, 1996 annual report on Form 10-K
of Swift Transportation Co., Inc.
KPMG Peat Marwick LLP
Phoenix, Arizona
March 27, 1997
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Jerry C. Moyes and William F. Riley, III, and each of them, his true
and lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign the Annual Report on Form 10-K for the fiscal year ended
December 31, 1996, for filing with the Securities and Exchange Commission by
Swift Transportation Co., Inc., a Nevada corporation, together with any and all
amendments to such Form 10-K, and to file the same with all exhibits thereto,
and all documents in connection therewith, with the Securities and Exchange
Commission, granting to such 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 such attorneys-in-fact and agents, or each of them, may
lawfully do or cause to be done by virtue hereof.
DATED: March 21, 1997
/s/ Robert W. Cunningham
----------------------------------------
Robert W. Cunningham
STATE OF ARIZONA )
) ss.
County of Maricopa )
On this 21st day of March, 1997, before me, the undersigned Notary
Public, personally appeared Robert W. Cunningham, known to me to be the person
whose name is subscribed to the within instrument and acknowledged that he
executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Anne Tanner
-----------------------------------------
Notary Public
My commission expires:
April 30, 1999
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Jerry C. Moyes and William F. Riley, III, and each of them, his true
and lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign the Annual Report on Form 10-K for the fiscal year ended
December 31, 1996, for filing with the Securities and Exchange Commission by
Swift Transportation Co., Inc., a Nevada corporation, together with any and all
amendments to such Form 10-K, and to file the same with all exhibits thereto,
and all documents in connection therewith, with the Securities and Exchange
Commission, granting to such 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 such attorneys-in-fact and agents, or each of them, may
lawfully do or cause to be done by virtue hereof.
DATED: March 14, 1997
/s/ Rodney K. Sartor
-----------------------------------------
Rodney K. Sartor
STATE OF ARIZONA )
) ss.
County of Maricopa )
On this 14th day of March, 1997, before me, the undersigned Notary
Public, personally appeared Rodney K. Sartor, known to me to be the person whose
name is subscribed to the within instrument and acknowledged that he executed
the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Anne Tanner
-----------------------------------------
Notary Public
My commission expires:
April 30, 1999
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Jerry C. Moyes and William F. Riley, III, and each of them, her true
and lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for her and in her name, place and stead, in any and all
capacities, to sign the Annual Report on Form 10-K for the fiscal year ended
December 31, 1996, for filing with the Securities and Exchange Commission by
Swift Transportation Co., Inc., a Nevada corporation, together with any and all
amendments to such Form 10-K, and to file the same with all exhibits thereto,
and all documents in connection therewith, with the Securities and Exchange
Commission, granting to such 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 she might or could do in person, hereby ratifying
and confirming all that such attorneys-in-fact and agents, or each of them, may
lawfully do or cause to be done by virtue hereof.
DATED: February 17, 1997
/s/ A. E. Frei
-----------------------------------------
Alphonse E. Frei
STATE OF ARIZONA )
) ss.
County of Maricopa )
On this 7th day of March, 1997, before me, the undersigned Notary
Public, personally appeared Alphonse E. Frei, known to me to be the person whose
name is subscribed to the within instrument and acknowledged that he executed
the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Anne Tanner
-----------------------------------------
Notary Public
My commission expires:
April 30, 1999
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Jerry C. Moyes and William F. Riley, III, and each of them, his true
and lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign the Annual Report on Form 10-K for the fiscal year ended
December 31, 1996, for filing with the Securities and Exchange Commission by
Swift Transportation Co., Inc., a Nevada corporation, together with any and all
amendments to such Form 10-K, and to file the same with all exhibits thereto,
and all documents in connection therewith, with the Securities and Exchange
Commission, granting to such 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 such attorneys-in-fact and agents, or each of them, may
lawfully do or cause to be done by virtue hereof.
DATED: February 14, 1997
/s/ L. A. Edwards
-----------------------------------------
Lou A. Edwards
STATE OF ARIZONA )
) ss.
County of Maricopa )
On this 14th day of February, 1997, before me, the undersigned Notary
Public, personally appeared Lou A. Edwards, known to me to be the person whose
name is subscribed to the within instrument and acknowledged that he executed
the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Nancy C. Andersen
-----------------------------------------
Notary Public
My commission expires:
March 26, 1997
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Jerry C. Moyes and William F. Riley, III, and each of them, his true
and lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign the Annual Report on Form 10-K for the fiscal year ended
December 31, 1996, for filing with the Securities and Exchange Commission by
Swift Transportation Co., Inc., a Nevada corporation, together with any and all
amendments to such Form 10-K, and to file the same with all exhibits thereto,
and all documents in connection therewith, with the Securities and Exchange
Commission, granting to such 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 such attorneys-in-fact and agents, or each of them, may
lawfully do or cause to be done by virtue hereof.
DATED: February 17, 1997
/s/ Earl H. Scudder, Jr.
-----------------------------------------
Earl H. Scudder, Jr.
STATE OF NEBRASKA )
) ss.
County of Lancaster )
On this 17th day of February, 1997, before me, the undersigned Notary
Public, personally appeared Earl H. Scudder, Jr., known to me to be the person
whose name is subscribed to the within instrument and acknowledged that he
executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Laura J. Carlson
-----------------------------------------
Notary Public
My commission expires:
September 23, 2000
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL
INFORMATION EXTRACTED FROM THE FINANCIAL
STATEMENTS AS OF DECEMBER 31, 1996 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
STATEMENTS.
</LEGEND>
<CIK> 863557
<NAME> SWIFT TRANSPORTATION CO., INC.
<MULTIPLIER> 1,000
<CURRENCY> US DOLLARS
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<EXCHANGE-RATE> 1
<CASH> 1,210
<SECURITIES> 0
<RECEIVABLES> 78,280
<ALLOWANCES> 0
<INVENTORY> 3,997
<CURRENT-ASSETS> 95,904
<PP&E> 370,446
<DEPRECIATION> 95,597
<TOTAL-ASSETS> 380,605
<CURRENT-LIABILITIES> 58,966
<BONDS> 0
0
0
<COMMON> 28
<OTHER-SE> 226,638
<TOTAL-LIABILITY-AND-EQUITY> 380,605
<SALES> 562,259
<TOTAL-REVENUES> 562,259
<CGS> 0
<TOTAL-COSTS> 508,680
<OTHER-EXPENSES> (739)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 7,106
<INCOME-PRETAX> 47,212
<INCOME-TAX> 19,790
<INCOME-CONTINUING> 27,422
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 27,422
<EPS-PRIMARY> 1.07
<EPS-DILUTED> 1.07
</TABLE>
