exv10w10






Exhibit 10.10




[CONFORMED COPY]




[(WITH AMENDMENTS NO. 1 AND 2)]




CREDIT AGREEMENT,




dated as of May 10, 2007,



among



SAINT ACQUISITION CORPORATION,

SWIFT TRANSPORTATION CO., INC.,

an Arizona corporation,

and

SWIFT TRANSPORTATION CO., INC.,

a Nevada corporation,

as the Borrowers,



SAINT CORPORATION,

as a Guarantor,



VARIOUS FINANCIAL INSTITUTIONS AND OTHER PERSONS

FROM TIME TO TIME PARTIES HERETO,

as the Lenders



MORGAN STANLEY SENIOR FUNDING, INC.,

WACHOVIA BANK, NATIONAL ASSOCIATION, and

J.P. MORGAN SECURITIES INC.,

as the Co-Syndication Agents,



LASALLE BANK NATIONAL ASSOCIATION,

as the Documentation Agent,



and



MORGAN STANLEY SENIOR FUNDING, INC.,

as the Administrative Agent.



 





MORGAN STANLEY SENIOR FUNDING, INC.,

WACHOVIA CAPITAL MARKETS, LLC, and

J.P. MORGAN SECURITIES INC.,

as the Joint Lead Arrangers and Joint Bookrunners



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	2	 
	 
	 	 	 	 
	Section 1.1. Defined Terms
	 	 	2	 
	Section 1.2. Use of Defined Terms
	 	 	37	 
	Section 1.3. Cross-References
	 	 	37	 
	Section 1.4. Accounting and Financial Determinations
	 	 	37	 
	 
	 	 	 	 
	ARTICLE II COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES, NOTES AND LETTERS OF CREDIT
	 	 	37	 
	 
	 	 	 	 
	Section 2.1. Commitments
	 	 	37	 
	Section 2.2. Reduction of the Commitment Amounts
	 	 	42	 
	Section 2.3. Borrowing Procedures
	 	 	42	 
	Section 2.4. Continuation and Conversion Elections
	 	 	44	 
	Section 2.5. Funding
	 	 	44	 
	Section 2.6. Issuance Procedures
	 	 	45	 
	Section 2.7. Register; Notes
	 	 	48	 
	 
	 	 	 	 
	ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
	 	 	49	 
	 
	 	 	 	 
	Section 3.1. Repayments and Prepayments; Application
	 	 	49	 
	Section 3.2. Interest Provisions
	 	 	53	 
	Section 3.3. Fees
	 	 	55	 
	 
	 	 	 	 
	ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS
	 	 	56	 
	 
	 	 	 	 
	Section 4.1. LIBO Rate Lending Unlawful
	 	 	56	 
	Section 4.2. Deposits Unavailable
	 	 	56	 
	Section 4.3. Increased LIBO Rate Loan Costs, etc
	 	 	57	 
	Section 4.4. Funding Losses
	 	 	57	 
	Section 4.5. Increased Capital Costs
	 	 	58	 
	Section 4.6. Taxes
	 	 	58	 
	Section 4.7. Payments, Computations; Proceeds of Collateral, etc
	 	 	61	 
	Section 4.8. Sharing of Payments
	 	 	62	 
	Section 4.9. Setoff
	 	 	63	 
	Section 4.10. Mitigation
	 	 	63	 






i









 





TABLE OF CONTENTS
(continued)




	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	Section 4.11. Removal of Lenders
	 	 	63	 
	Section 4.12. Application to Synthetic Participation Fees
	 	 	64	 
	 
	 	 	 	 
	ARTICLE V CONDITIONS TO CREDIT EXTENSIONS
	 	 	64	 
	 
	 	 	 	 
	Section 5.1. Initial Credit Extension
	 	 	64	 
	Section 5.2. All Credit Extensions
	 	 	70	 
	Section 5.3. Subsequent Credit Extensions
	 	 	70	 
	 
	 	 	 	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES
	 	 	71	 
	 
	 	 	 	 
	Section 6.1. Organization, etc
	 	 	71	 
	Section 6.2. Due Authorization, Non-Contravention, etc
	 	 	71	 
	Section 6.3. Government Approval, Regulation, etc
	 	 	71	 
	Section 6.4. Validity, etc
	 	 	72	 
	Section 6.5. Financial Information
	 	 	72	 
	Section 6.6. No Material Adverse Change
	 	 	72	 
	Section 6.7. Litigation, Labor Controversies, etc
	 	 	72	 
	Section 6.8. Subsidiaries
	 	 	72	 
	Section 6.9. Ownership of Properties
	 	 	72	 
	Section 6.10. Taxes
	 	 	73	 
	Section 6.11. Pension and Welfare Plans
	 	 	73	 
	Section 6.12. Environmental Warranties
	 	 	73	 
	Section 6.13. Accuracy of Information
	 	 	74	 
	Section 6.14. Regulations U and X
	 	 	74	 
	Section 6.15. Solvency
	 	 	75	 
	Section 6.16. Tax Status
	 	 	75	 
	 
	 	 	 	 
	ARTICLE VII COVENANTS
	 	 	75	 
	 
	 	 	 	 
	Section 7.1. Affirmative Covenants
	 	 	75	 
	Section 7.2. Negative Covenants
	 	 	82	 
	 
	 	 	 	 
	ARTICLE VIII EVENTS OF DEFAULT
	 	 	98	 
	 
	 	 	 	 
	Section 8.1. Listing of Events of Default
	 	 	98	 
	Section 8.2. Action if Bankruptcy
	 	 	100	 
	Section 8.3. Action if Other Event of Default
	 	 	101	 






-ii-









 





TABLE OF CONTENTS
(continued)




	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	ARTICLE IX THE ADMINISTRATIVE AGENT
	 	 	101	 
	 
	 	 	 	 
	Section 9.1. Actions
	 	 	101	 
	Section 9.2. Funding Reliance, etc
	 	 	102	 
	Section 9.3. Exculpation
	 	 	102	 
	Section 9.4. Successor
	 	 	102	 
	Section 9.5. Loans by Morgan Stanley
	 	 	103	 
	Section 9.6. Credit Decisions
	 	 	103	 
	Section 9.7. Copies, etc
	 	 	103	 
	Section 9.8. Reliance by Administrative Agent
	 	 	104	 
	Section 9.9. Defaults
	 	 	104	 
	Section 9.10. Lead Arrangers, Other Agents
	 	 	104	 
	Section 9.11. Posting of Approved Electronic Communications
	 	 	104	 
	 
	 	 	 	 
	ARTICLE X HOLDINGS GUARANTY
	 	 	106	 
	 
	 	 	 	 
	Section 10.1. Guaranty
	 	 	106	 
	Section 10.2. Reinstatement, etc
	 	 	106	 
	Section 10.3. Guaranty Absolute, etc
	 	 	107	 
	Section 10.4. Waiver, etc
	 	 	108	 
	Section 10.5. Postponement of Subrogation, etc
	 	 	108	 
	 
	 	 	 	 
	ARTICLE XI MISCELLANEOUS PROVISIONS
	 	 	108	 
	 
	 	 	 	 
	Section 11.1. Waivers, Amendments, etc
	 	 	108	 
	Section 11.2. Notices; Time
	 	 	110	 
	Section 11.3. Payment of Costs and Expenses
	 	 	110	 
	Section 11.4. Indemnification
	 	 	111	 
	Section 11.5. Survival
	 	 	112	 
	Section 11.6. Severability
	 	 	112	 
	Section 11.7. Headings
	 	 	112	 
	Section 11.8. Execution in Counterparts, Effectiveness, etc
	 	 	113	 
	Section 11.9. Governing Law; Entire Agreement
	 	 	113	 
	Section 11.10. Successors and Assigns
	 	 	113	 






-iii-









 





TABLE OF CONTENTS
(continued)




	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	Section 11.11. Sale and Transfer of Credit Extensions; Participations in Credit
Extensions; Notes
	 	 	113	 
	Section 11.12. Other Transactions
	 	 	117	 
	Section 11.13. Forum Selection and Consent to Jurisdiction
	 	 	117	 
	Section 11.14. Waiver of Jury Trial
	 	 	118	 
	Section 11.15. National Security Laws
	 	 	118	 
	 
	 	 	 	 
	ARTICLE XII NATURE OF BORROWERS’ OBLIGATIONS
	 	 	119	 
	 
	 	 	 	 
	Section 12.1. Nature of Obligations
	 	 	119	 
	Section 12.2. Independent Obligation
	 	 	119	 
	Section 12.3. Authorization
	 	 	119	 
	Section 12.4. Reliance
	 	 	120	 
	Section 12.5. Contribution; Subrogation
	 	 	120	 
	Section 12.6. Waiver
	 	 	120	 






-iv-









 





	 	 	 	 	 

	SCHEDULE I

	 	-
	 	Disclosure Schedule
	SCHEDULE II

	 	-
	 	Percentages; LIBOR Office; Domestic Office
	 
	 	 	 	 
	EXHIBIT A-1

	 	-
	 	Form of Revolving Note
	EXHIBIT A-2

	 	-
	 	Form of Term Note
	EXHIBIT A-3

	 	-
	 	Form of Swing Line Note
	EXHIBIT B-1

	 	-
	 	Form of Borrowing Request
	EXHIBIT B-2

	 	-
	 	Form of Issuance Request
	EXHIBIT C

	 	-
	 	Form of Continuation/Conversion Notice
	EXHIBIT D

	 	-
	 	Form of Lender Assignment Agreement
	EXHIBIT E

	 	-
	 	Form of Compliance Certificate
	EXHIBIT F

	 	-
	 	Form of Subsidiary Guaranty
	EXHIBIT G

	 	-
	 	Intercreditor Agreement
	EXHIBIT H

	 	-
	 	Form of Pledge and Security Agreement
	EXHIBIT I

	 	-
	 	Form of Rollover Purchasers Pledge Agreement






-v-









 





CREDIT AGREEMENT




     THIS CREDIT AGREEMENT, dated as of May 10, 2007, is among SAINT ACQUISITION CORPORATION, a
Nevada corporation (“Acquisition Co.”), SWIFT TRANSPORTATION CO., INC., an Arizona
corporation (“Swift Arizona”), SWIFT TRANSPORTATION CO., INC., a Nevada corporation
(“Swift Nevada”), SAINT CORPORATION, a Nevada corporation (“Holdings”), the various
financial institutions and other Persons (such capitalized term and all other capitalized terms
used in this preamble and the recitals set forth below shall, unless otherwise defined therein,
have the meanings set forth in Section 1.1) from time to time parties hereto (the
“Lenders”), MORGAN STANLEY SENIOR FUNDING, INC. (“Morgan Stanley”), WACHOVIA BANK,
NATIONAL ASSOCIATION (“Wachovia Bank”), and J.P. MORGAN SECURITIES INC. (“J.P. Morgan
Securities”), as the co-syndication agents (in such capacities, the “Co-Syndication
Agents”), LASALLE BANK NATIONAL ASSOCIATION, as the documentation agent (in such capacity, the
“Documentation Agent”) and administrative agent (in such capacity, the “Administrative
Agent”) and MORGAN STANLEY, WACHOVIA CAPITAL MARKETS, LLC (“Wachovia Securities”) and
J.P. MORGAN SECURITIES as the joint lead arrangers and joint bookrunners (in such capacities, the
“Lead Arrangers”).



W I T N E S S E T H:




     WHEREAS, Mr. Jerry Moyes, an individual (“Mr. Moyes”), and the Additional Moyes
Investors (together with Mr. Moyes, the “Rollover Purchasers”) own all of the Capital
Securities of Holdings;



     WHEREAS, Holdings owns all of the Capital Securities of Acquisition Co.;



     WHEREAS, Holdings intends to acquire (the “Acquisition”) all of the issued and
outstanding Capital Securities of Swift Nevada by way of a merger between Acquisition Co. and Swift
Nevada (the “Merger”) pursuant to that certain Agreement and Plan of Merger, among Swift
Nevada, Holdings and Acquisition Co., dated as of January 19, 2007, (as amended, supplemented,
amended and restated or otherwise modified from time to time as permitted hereunder, the
“Merger Agreement”);



     WHEREAS, upon the consummation of the Merger, Swift Nevada will be the surviving corporation;



     WHEREAS, prior to the Acquisition and on or prior to the effectiveness of this Agreement, all
Capital Securities of Swift Nevada held directly or beneficially by the Rollover Purchasers will be
contributed to Holdings in exchange for common equity of Holdings (the “Rollover Equity
Investment”);



     WHEREAS, the Borrowers wish to obtain senior secured credit facilities for the purpose of (i)
financing a portion of the purchase price of the Acquisition; (ii) refinancing certain Indebtedness
of Swift Nevada and its Subsidiaries; (iii) making a loan from Swift Nevada to the Rollover
Purchasers (the “Shareholder Loan”) which will be used by the Rollover Purchasers to
refinance certain debt of the Rollover Purchasers; (iv) paying fees, costs and expenses incurred in
connection with the Acquisition and the Merger and in connection with the financing



 









 




described herein (the “Transaction Costs”); and (v) funding working capital
requirements and other general corporate purposes, including Permitted Acquisitions;




     WHEREAS, in order to consummate the Acquisition and the Merger, to pay the Transaction Costs
and to provide for the ongoing working capital needs and general corporate purposes of Interstate
Equipment Leasing, Inc. (“IEL”), the Revolving Loan Borrower and its Subsidiaries (the
foregoing, including the Acquisition, the Merger, all transactions related thereto (including the
transactions contemplated by the Loan Documents and the other capital raising transactions
described below in these recitals) and the payment of the Transaction Costs, being herein referred
to as the “Transactions”):




     (a) the Rollover Purchasers will make the Rollover Equity Investment;




     (b) Mr. Moyes and Vickie Moyes will contribute (the “IEL Equity Contribution”)
100% of the issued and outstanding Capital Securities of IEL to Holdings;




     (c) the Revolving Loan Lenders will provide a Commitment pursuant to which Revolving
Loans may be made and Letters of Credit may be issued from time to time prior to the
Revolving Loan Commitment Termination Date in an amount not to exceed the Revolving Loan
Commitment Amount;




     (d) the Term Loan Lenders will provide a Commitment pursuant to which Term Loans will
be made, in a maximum original principal amount of up to the Term Loan Commitment Amount, to
the Term Loan Borrower in a single Borrowing on the Closing Date;




     (e) the Synthetic Lenders will provide a Synthetic Letter of Credit Commitment pursuant
to which Synthetic Letters of Credit will be issued from time to time in an amount not to
exceed the Synthetic Letter of Credit Commitment Amount; and




     (f) second-priority senior secured floating rate notes (the “Senior Floating
Notes”) and second-priority senior secured fixed rate notes (the “Senior Fixed
Notes”, and together with the Senior Floating Notes, collectively, the “Senior
Notes”) will be issued by the Term Loan Borrower resulting in aggregate gross proceeds
of $835,000,000 on the Closing Date; and



     WHEREAS, the Lenders and the Issuers are willing, on the terms and subject to the conditions
hereinafter set forth, to extend the Commitments and make Loans to the Borrowers and issue (or
participate in) Letters of Credit;



     NOW, THEREFORE, the parties hereto agree as follows:



ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS




     SECTION 1.1. Defined Terms. The following terms (whether or not underscored) when
used in this Agreement, including its preamble and recitals, shall, except where the context



2









 




otherwise requires, have the following meanings (such meanings to be equally applicable to the
singular and plural forms thereof):




     “Acquisition” is defined in the third recital.



     “Acquisition Co.” is defined in the preamble.



     “Additional Moyes Investors” means, collectively, Vickie Moyes, an individual, Jerry
and Vickie Moyes Family Trust Dated 12/11/87, an Illinois trust, Todd Moyes Trust Dated 4/27/07, an
Illinois trust, Hollie Moyes Trust Dated 4/27/07, an Illinois trust, Chris Moyes Trust Dated
4/27/07, an Illinois trust, Lyndee Moyes Nester Trust Dated 4/27/07, an Illinois trust, Marti Lyn
Moyes Trust Dated 4/27/07, an Illinois trust, and Michael J. Moyes Trust Dated 4/27/07, an Illinois
trust.



     “Administrative Agent” is defined in the preamble and includes each other
Person appointed as the successor Administrative Agent pursuant to Section 9.4.



     “Affected Lender” is defined in Section 4.11.



     “Affiliate” of any Person means any other Person which, directly or indirectly,
controls, is controlled by or is under common control with such Person. “Control” of a
Person means the power, directly or indirectly, (i) to vote 10% or more of the Capital Securities
(on a fully diluted basis) of such Person having ordinary voting power for the election of
directors, managing members or general partners (as applicable), or (ii) to direct or cause the
direction of the management and policies of such Person (whether by contract or otherwise).



     “Agreement” means, on any date, this Credit Agreement as originally in effect on the
Closing Date and as thereafter from time to time amended, supplemented, amended and restated or
otherwise modified from time to time and in effect on such date.



     “Alternate Base Rate” means, on any date and with respect to all Base Rate Loans, a
fluctuating rate of interest per annum (rounded upward, if necessary, to the next highest 1/16 of
1%) equal to the higher of (i) the rate published in the Wall Street Journal as the “prime
rate” (or equivalent), in each case as in effect from time to time, and (ii) the Federal Funds Rate
in effect on such day plus 1/2 of 1%. Changes in the rate of interest on that portion of any Loans
maintained as Base Rate Loans will take effect simultaneously with each change in the Alternate
Base Rate. The Administrative Agent will give notice promptly to the Borrowers and the Lenders of
changes in the Alternate Base Rate; provided that the failure to give such notice shall not
affect the Alternate Base Rate in effect after such change, provided, further, that
in no event will the Alternate Base Rate be less than 3.25%. [Amendment No. 2, Section 2.1]



     “Amendment No. 2” means the Consent and Amendment No. 2, dated as of October 7, 2009,
by and among the Borrowers, the Guarantors, the Administrative Agent and the Required Lenders party
thereto. [Amendment No. 2, Section 1.2]



     “Applicable Margin” means (i) for the first two full Fiscal Quarters after the Closing
Date, (a) 3.00% in the case of Loans maintained as Eurodollar Loans, (b) 2.00% in the case of Loans
maintained as Base Rate Loans and (c) 3.00% in the case of Synthetic Participation Fees;



3









 




and (ii) thereafter, the applicable percentage set forth below corresponding to the relevant
Applicable Rating: [Amendment No. 2, Section 2.2]




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Applicable
	 	 	 	 	Applicable	 	Applicable	 	Margin for
	 	 	 	 	Margin for	 	Margin for	 	Synthetic
	Pricing	 	Applicable	 	Base Rate	 	LIBO Rate	 	Participation
	Level	 	Rating	 	Loans	 	Loans	 	Fees
	I
	 	>B2 and B
	 	4.50
	 	5.50
	 	5.50
	II
	 	B2 and B
	 	4.75
	 	5.75
	 	5.75
	III
	 	<B2 and B
	 	5.00
	 	6.00
	 	6.00






     For purposes of the foregoing, (i) if the Applicable Ratings established by Moody’s and S&P
are not equivalent such that (A) one Applicable Rating results in Pricing Level I and the other
Applicable Rating results in Pricing Level II, then Pricing Level I shall apply; (B) one Applicable
Rating results in Pricing Level II and the other Applicable Rating results in Pricing Level III,
then Pricing Level III shall apply; or (C) one Applicable Rating results in Pricing Level I and the
other Applicable Rating results in Pricing Level III, then Pricing Level II shall apply; (ii) if
only one Applicable Rating is available as a result of either S&P or Moody’s failure to continue to
rate Holdings, then the Pricing Level shall be based on such Applicable Rating that remains
available; and (iii) if both S&P and Moody’s withdraw their Applicable Ratings, then Pricing Level
III shall apply until the earlier of (A) such time as S&P and/or Moody’s provides another
Applicable Rating or (B) the Required Lenders have agreed to an alternative pricing grid or other
method for determining Pricing Levels pursuant to an effective amendment to this Agreement.



     The Applicable Margin shall be determined and adjusted, if necessary, as of the date on which
any change in an Applicable Rating is announced by the relevant rating agency (each such adjustment
date, a “Rate Determination Date”).



     Each Applicable Margin shall be effective from a Rate Determination Date until the next such
Rate Determination Date. The Administrative Agent shall determine the appropriate Applicable
Margin in the pricing matrix promptly upon notice of a ratings change by the Borrowers as required
pursuant to Section 7.1.14 and shall promptly notify the Borrowers and the Lenders of any
change thereof. Such determinations by the Administrative Agent shall be conclusive absent
manifest error. Adjustments in the Applicable Margin shall be effective as to existing Credit
Extensions as well as any new Credit Extension made thereafter.



     “Applicable Rating” means as to (i) Moody’s, its Corporate Family Rating (or
equivalent) for Holdings and (ii) S&P, its Corporate Rating (or equivalent) for Holdings.



     “Approved Fund” means any Person (other than a natural Person) that (i) is engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business, and (ii) is administered or managed by a Lender,



4









 




an Affiliate of a Lender or a Person or an Affiliate of a Person that administers or manages a
Lender.




     “Attributable Debt” means, in respect of any Motor Vehicle Financing, and at any time
of determination, the present value of the obligation of the lessee for net rental payments during
the remaining term of the lease associated with such sale and leaseback transaction, including any
period for which such lease has been extended or may, at the option of the lessor, be extended.
Such present value shall be calculated using a discount rate equal to the rate of interest implicit
in such transaction, determined in accordance with GAAP; provided, however, that if
such sale and leaseback transaction results in a Capital Lease Liability, the amount of
Indebtedness represented thereby will be determined in accordance with the definition of
“Capitalized Lease Liabilities.”



     “Authorized Officer” means, relative to any Obligor, those of its officers, general
partners or managing members (as applicable) whose signatures and incumbency shall have been
certified to the Administrative Agent, the Lenders and the Issuers pursuant to
Section 5.1.1.



     “Base Rate Loan” means a Loan bearing interest at a fluctuating rate determined by
reference to the Alternate Base Rate.



     “Benchmark Return” means, with respect to the Synthetic Deposits and any Investment
Period related to such Synthetic Deposits, a per annum rate equal to the sum of (i) the interest
rate that would be earned on such Synthetic Deposits during such Investment Period if such
Synthetic Deposits constituted a LIBO Rate Loan hereunder which (x) had an outstanding principal
amount equal to the aggregate amount of such Synthetic Deposits, (y) accrued interest at the LIBO
Rate (Reserve Adjusted) and (z) had an Interest Period equal in duration to such Investment Period
plus (ii) the Applicable Margin in effect for Synthetic Participation Fees during such Investment
Period.



     “Borrowers” means, collectively, the Term Loan Borrower and the Revolving Loan
Borrower; provided that, following the Closing Date, all actions and notices (in each case
whether required or voluntary) with respect to the Loans and Commitments shall, unless expressly
stated otherwise, be made by or, in the case of notices, made by or delivered to, Swift Nevada.



     “Borrowing” means the Loans of the same type and, in the case of LIBO Rate Loans,
having the same Interest Period made by all Lenders required to make such Loans on the same
Business Day and pursuant to the same Borrowing Request in accordance with Section 2.3.



     “Borrowing Request” means a Loan request and certificate duly executed by an
Authorized Officer of the applicable Borrower substantially in the form of Exhibit B-1
hereto.



     “Business Day” means (i) any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in New York, New York, and
(ii) relative to the making, continuing, prepaying or repaying of any LIBO Rate Loans, any day
which is a Business Day described in clause (i) above and which is also a day on which
dealings in Dollars are carried on in the London interbank eurodollar market.



5









 





     “Capital Expenditures” means, for any period, the aggregate amount of (i) all
expenditures of Holdings and its Subsidiaries for fixed or capital assets made during such period
which, in accordance with GAAP, would be classified as capital expenditures; provided that
the amount of any such expenditure with respect to the acquisition or capitalized lease of any
Motor Vehicle made in any period shall be net of any proceeds received from the sale, or the value
received from any trade-in, of a Motor Vehicle in connection with such acquisition or capitalized
lease in such period, and (ii) Capitalized Lease Liabilities incurred by Holdings and its
Subsidiaries during such period.



     “Capital Securities” means, with respect to any Person, all shares, interests,
participations or other equivalents (however designated, whether voting or non-voting) of such
Person’s capital, whether now outstanding or hereafter issued.



     “Capitalized Lease Liabilities” means, with respect to any Person, all monetary
obligations of such Person and its Subsidiaries under any leasing or similar arrangement which have
been (or, in accordance with GAAP, should be) classified as capitalized leases, and for purposes of
each Loan Document the amount of such obligations shall be the capitalized amount thereof,
determined in accordance with GAAP, and the stated maturity thereof shall be the date of the last
payment of rent or any other amount due under such lease prior to the first date upon which such
lease may be terminated by the lessee without payment of a premium or a penalty.



     “Captive Insurance Company” means, each of Mohave Transportation Insurance Company, an
Arizona corporation and Red Rock Risk Retention Group, Inc., an Arizona corporation. [Amendment No.
2, Section 2.3]



     “Cash Balance” means, as of any date of determination, the aggregate amount of cash
and Cash Equivalent Investments that would be required to be reflected on the Borrowers’
consolidated balance sheet in accordance with GAAP as determined in good faith by the Borrowers,
minus (i) all amounts held in any LKE Account in connection with the LKE Program, (ii) all amounts
held in an account in the name of any Subsidiary that is not a Guarantor and (iii) any other
amounts required to be held as regulatory capital or minimum capitalization requirements on behalf
of a Captive Insurance Company. [Amendment No. 2, Section 2.11]



     “Cash Collateralize” means, with respect to a Letter of Credit, the deposit of
immediately available funds into a cash collateral account maintained with (or on behalf of) the
Administrative Agent on terms satisfactory to the Administrative Agent in an amount equal to the
Stated Amount of such Letter of Credit.



     “Cash Equivalent Investment” means, at any time:




     (a) any direct obligation of (or unconditionally guaranteed by) the United States or a
State thereof (or any agency or political subdivision thereof, to the extent such
obligations are supported by the full faith and credit of the United States or a State
thereof) maturing not more than one year after such time;




     (b) commercial paper maturing not more than 270 days from the date of issue, which is
issued by (i) a corporation (other than an Affiliate of any Obligor) organized



6









 







under the laws of any State of the United States or of the District of Columbia and
rated A-1 or higher by S&P or P-1 or higher by Moody’s, or (ii) any Lender of the type
described in clause (c)(i) below (or its holding company);




     (c) any certificate of deposit, time deposit or bankers acceptance, maturing not more
than one year after its date of issuance, which is issued or accepted by any bank organized
under the laws of the United States (or any State thereof or the District of Columbia) and
which has (x) a credit rating of A2 or higher from Moody’s or A or higher from S&P and (y) a
combined capital and surplus greater than $500,000,000;




     (d) any repurchase agreement having a term of 30 days or less entered into with any
Lender or any commercial banking institution satisfying the criteria set forth in
clause (c)(i) which (i) is secured by a fully perfected security interest in any
obligation of the type described in clause (a), and (ii) has a market value at the
time such repurchase agreement is entered into of not less than 100% of the repurchase
obligation of such commercial banking institution thereunder;




     (e) shares of any money market mutual fund that (i) has substantially all of its assets
invested continuously in the types of investments referred to in clause (a) through (d)
above, (ii) has net assets of not less than $500,000,000, and (iii) has the highest rating
obtainable from either S&P or Moody’s; or




     (f) so long as the representations and warranties set forth in Section 6.14
remain true and correct, debt securities (other than of Holdings or any of its Subsidiaries
or Affiliates) that are listed on a national securities exchange or Nasdaq or freely traded
in the over-the counter market so long as (i) the amount invested in such securities does
not exceed in the aggregate $10,000,000 and (ii) such debt securities have received a rating
of A2 or higher from Moody’s and A or higher from S&P.



     “Cash Management Obligations” means, with respect to either Borrower or any Guarantor,
any direct or indirect liability, contingent or otherwise, of such Person in respect of cash
management services (including treasury, depository, overdraft (daylight and temporary), credit or
debit card, electronic funds transfer and other cash management arrangements) provided after the
Closing Date by a Person who is (or was at the time such Cash Management Obligations were incurred)
a Lender or any Affiliate thereof, including obligations for the payment of fees, interest
(including interest accruing during the pendency of any proceeding of the type described in
Section 8.1.9, whether or not allowed in such proceeding), charges, expenses, attorneys’
fees and disbursements in connection therewith to the extent provided for in the documents
evidencing such cash management services.



     “Casualty Event” means the damage, destruction or condemnation of or any taking under
power of eminent domain or by condemnation or similar proceeding of, any property of any Person or
any of its Subsidiaries.



     “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended.



7









 





     “CERCLIS” means the Comprehensive Environmental Response Compensation Liability
Information System List.



     “Change in Control” means




     (a) at all times after the consummation of the Merger, the failure of Holdings, at any
time after the consummation of the Merger to directly own beneficially and of record on a
fully diluted basis 100% of the outstanding Capital Securities of Swift Nevada, such Capital
Securities to be held free and clear of all Liens (other than Liens (i) permitted pursuant
to clauses (f), (g), (h), (j) and (k) of Section
7.2.3 or (ii) granted under a Loan Document or the Senior Note Documents);




     (b) the failure of Swift Nevada, at all times after the consummation of the Merger, to
directly own beneficially and of record on a fully diluted basis 100% of the outstanding
Capital Securities of Swift Arizona, such Capital Securities to be held free and clear of
all Liens (other than Liens (i) permitted pursuant to clauses (f), (g),
(h), (j) and (k) of Section 7.2.3 or (ii) granted under a
Loan Document or the Senior Note Documents);




     (c) at any time prior to the creation of a Public Market, the failure of the Rollover
Purchasers or their Affiliates to directly or indirectly own beneficially and of record on a
fully diluted basis at least 50.1% [Amendment No. 2, Section 2.4] of the outstanding Capital
Securities of Holdings, such Capital Securities to be held free and clear of all Liens
(other than Liens (i) permitted pursuant to clauses (f), (g), (h),
(j) and (k) of Section 7.2.3 or (ii) granted under a Loan Document,
the Senior Note Documents or the Shareholder Loan Documents);




     (d) at any time after the creation of a Public Market any person or group (within the
meaning of Sections 13(d) and 14(d) under the Exchange Act), other than Mr. Moyes and the
other Rollover Purchasers, shall become the ultimate “beneficial owner” (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of Capital
Securities representing more than 20% of the Capital Securities of Holdings on a fully
diluted basis; or




     (e) the occurrence of any “Change of Control” (or similar term) under (and as
defined in) any Senior Note Document.



     “Closing Date” means the date of the initial Credit Extension hereunder, which shall
be the date this Agreement becomes effective pursuant to Section 11.8, but in no event
shall such date be later than September 30, 2007.



     “Closing Date Certificate” means the closing date certificate executed and delivered
by an Authorized Officer of Holdings in form and substance reasonably satisfactory to the
Administrative Agent.



     “Code” means the Internal Revenue Code of 1986, and the regulations thereunder, in
each case as amended, reformed or otherwise modified from time to time.



8









 





     “Commitment” means, as the context may require, the Term Loan Commitment, Revolving
Loan Commitment, Revolving Letter of Credit Commitment, Synthetic Letter of Credit Commitment or
Swing Line Loan Commitment.



     “Commitment Amount” means, as the context may require, the Term Loan Commitment
Amount, the Revolving Loan Commitment Amount, the Revolving Letter of Credit Commitment Amount, the
Synthetic Letter of Credit Commitment Amount or the Swing Line Loan Commitment Amount.



     “Commitment Termination Date” means, as the context may require, the Term Loan
Commitment Termination Date, the Synthetic Letter of Credit Commitment Termination Date or the
Revolving Loan Commitment Termination Date.



     “Commitment Termination Event” means (i) the occurrence of any Event of Default with
respect to any Borrower described in clauses (a) through (d) of
Section 8.1.9, or (ii) the occurrence and continuance of any other Event of Default and
either (x) the declaration of all or any portion of the Loans to be due and payable pursuant to
Section 8.3, or (y) the giving of notice by the Administrative Agent, acting at the
direction of the Required Lenders, to the Borrowers that the Commitments have been terminated.



     “Compliance Certificate” means a certificate duly completed and executed by an
Authorized Officer of Holdings, substantially in the form of Exhibit E hereto, together
with such changes thereto as the Administrative Agent may from time to time request for the purpose
of monitoring Holdings’ compliance with the financial covenants contained herein.



     “Contingent Liability” means any agreement, undertaking or arrangement by which any
Person guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or
indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or
otherwise to invest in, a debtor, or otherwise to assure a creditor against loss) the Indebtedness
of any other Person (other than by endorsements of instruments in the course of collection), or
guarantees the payment of dividends or other distributions upon the Capital Securities of any other
Person. The amount of any Person’s obligation under any Contingent Liability shall (subject to any
limitation set forth therein) be deemed to be the outstanding principal amount of the debt,
obligation or other liability guaranteed thereby.



     “Continuation/Conversion Notice” means a notice of continuation or conversion and
certificate duly executed by an Authorized Officer of any Borrower, substantially in the form of
Exhibit C hereto.



     “Controlled Group” means all members of a controlled group of corporations and all
members of a controlled group of trades or businesses (whether or not incorporated) under common
control which, together with the Term Loan Borrower, are treated as a single employer under
Section 414(b) or 414(c) of the Code or Section 4001 of ERISA.



     “Copyright Security Agreement” means any Copyright Security Agreement executed and
delivered by any Obligor in substantially the form of Exhibit C to the Pledge and Security
Agreement, as amended, supplemented, amended and restated or otherwise modified from time to time.



9









 





     “Co-Syndication Agents” is defined in the preamble.



     “Credit Extension” means, as the context may require, (i) the making of a Loan or a
Synthetic Deposit by a Lender, or (ii) the issuance of any Letter of Credit, or the extension of
any Stated Expiry Date of any existing Letter of Credit, by an Issuer.



     “Default” means any Event of Default or any condition, occurrence or event which,
after notice or lapse of time or both, would constitute an Event of Default.



     “Defaulting Lender” means any Lender that (i) refuses (which refusal has not been
retracted prior to an Eligible Assignee agreeing to replace such Lender as a “Lender” pursuant to
Section 11.11) or has failed to make available its portion of any Borrowing or to fund its
portion of any unreimbursed obligation under Section 2.6.1 or (ii) has notified the
Borrowers or the Administrative Agent in writing that such Lender does not intend to comply with
its obligations under Section 2.1.



     “Disbursement” is defined in Section 2.6.2.



     “Disbursement Date” is defined in Section 2.6.2.



     “Disclosure Schedule” means the Disclosure Schedule attached hereto as Schedule
I, as it may be amended, supplemented, amended and restated or otherwise modified from time to
time by the Borrowers with the written consent of the Required Lenders.



     “Disregarded Subsidiaries” is defined in clause (a) of Section 7.2.6.



     “Disposition” (or similar words such as “Dispose”) means any sale, transfer,
lease, contribution or other conveyance (including by way of merger) of, or the granting of
options, warrants or other rights to, any of Holdings’ or any of its Subsidiaries’ assets
(including the sale, transfer or other conveyance of accounts receivable and the sale or issuance
of Capital Securities of Subsidiaries of Holdings other than pursuant to a Public Offering) to any
other Person (other than to a Borrower or a Guarantor) in a single transaction or series of
transactions.



     “Documentation Agent” is defined in the preamble.



     “Dollar” and the sign “$” mean lawful money of the United States.



     “Domestic Office” means the office of a Lender designated as its “Domestic
Office” on Schedule II hereto or in a Lender Assignment Agreement, or such other office
within the United States as may be designated from time to time by notice from such Lender to the
Administrative Agent and the Borrowers.



     “EBITDA” means, for any applicable period, the sum of




     (a) Net Income;



     plus



10









 






     (b) to the extent deducted in determining Net Income, the sum (without duplication) of
(i) amounts attributable to amortization (including amortization of goodwill, other
intangibles, Transaction Costs, and financing fees and related expenses), (ii) income tax
expense, (iii) Interest Expense, amortization or write off of debt discount and debt
issuance costs and commissions, discounts and other fees and charges associated with
Indebtedness, (iv) depreciation of assets, (v) [intentionally omitted], (vi) non-cash
impairment charges, (vii) non-cash expenses resulting from the grant of stock and stock
options and other compensation to management personnel of Holdings and its Subsidiaries
pursuant to a written incentive plan or agreement, (viii) other non-cash items that are
extraordinary, unusual or otherwise non-recurring items (including without duplication any
losses with respect to the cancellation or early extinguishment of Indebtedness), (ix) fees
and expenses incurred in connection with the closing of any Qualified Receivables
Transaction, (x) fees and expenses paid by the Borrowers to any financial advisor, including
the financial advisors of the Lenders pursuant to Section 4.1 of Amendment No. 1 dated as of
July 29, 2008 and Section 2.1(e) of Amendment No. 2, (xi) professional fees and expenses
incurred in connection with the preparation, execution and delivery of the Amendment No. 2
to the Credit Agreement and the supplements to each of the Senior Notes Indentures executed
in connection therewith, each dated as of October 13, 2009, (xii) fees and expenses incurred
in connection with the evaluation and preparation of the bond offering contemplated during
the 2009 Fiscal Year, (xiii) any losses or expenses resulting from any Swap Termination
Payments, and (xiv) any losses attributable to non-cash mark-to-market adjustments on
Hedging Obligations;



     minus




     (c) to the extent included in determining Net Income, the sum (without duplication) of
(i) any income or gain resulting from any Senior Notes Contribution or any Swap Termination
Payments, (ii) any non-cash income or gain that is extraordinary, unusual or otherwise
non-recurring including without duplication any gain with respect to the cancellation or
early extinguishment of Indebtedness, (iii) income tax gains and (iv) any income or gain
attributable to non-cash mark-to-market adjustments on Hedging Obligations. [Amendment No.
2, Section 2.5]



     “Eligible Assignee” means (i) a Lender; (ii) an Affiliate of a Lender; (iii) an
Approved Fund; or (iv) any other Person (other than a natural Person, the Borrowers, any Affiliate
of the Borrowers or any other Person taking direction from, or working in concert with, the
Borrowers or any of the Borrowers’ Affiliates).



     “Environmental Laws” means all applicable federal, state or local statutes, laws,
ordinances, codes, rules, regulations and guidelines (including consent decrees and administrative
orders) relating to public health and safety and protection of the environment.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any
successor statute thereto of similar import, together with the regulations thereunder, in each case
as in effect from time to time. References to Sections of ERISA also refer to any successor
Sections thereto.



11









 





     “Event of Default” is defined in Section 8.1.



     “Excess Cash Flow” means, for any Fiscal Year, the excess (if any), of




     (a) EBITDA for such Fiscal Year;



     over




     (b) to the extent included in determining EBITDA for such Fiscal Year, the sum
(determined without duplication for such Fiscal Year) of (i) Interest Expense actually paid
in cash by the Term Loan Borrower and its Subsidiaries, (ii) scheduled principal repayments,
to the extent actually made, of Term Loans pursuant to clause (c) of
Section 3.1.1 (exclusive of (x) repayments made in connection with a refinancing of
any portion of such Indebtedness and (y) voluntary repayments financed with permitted
Indebtedness), scheduled repayments, to the extent actually made, of any other Indebtedness
permitted under Section 7.2.2 and permitted to be repaid pursuant to Section
7.2.8 (including scheduled lease or other repayments, in connection with the Motor
Vehicle Financing) and voluntary repayments of Indebtedness permitted under Section
7.2.2 and, if applicable, permitted to be repaid pursuant to Section 7.2.8
(excluding, for all purposes of this clause (ii), repayments of Revolving Loans or
Swing Line Loans or similar types of Indebtedness except to the extent the Revolving Loan
Commitments or similar commitments are permanently reduced in connection with such
repayments), (iii) all income Taxes actually paid in cash by the Term Loan Borrower and its
Subsidiaries, (iv) Capital Expenditures made in cash (exclusive of Capital Expenditures
financed with the proceeds of Indebtedness, equity issuances, casualty proceeds or other
proceeds which are not included in EBITDA), (v) cash consideration actually paid in respect
of Permitted Acquisitions or other capital Investments permitted under Section 7.2.5
(including in real estate assets), (vi) Restricted Payments (x) permitted under clauses
(a) and (c) of Section 7.2.6 and which are paid in cash during such
period or (y) estimated in good faith by Swift Nevada to be payable in respect of such
period, (vii) Investments in either [Amendment No. 2, Section 2.27] Captive Insurance
Company permitted under clause (p) of Section 7.2.5 and (viii) amounts
received as a prepayment of principal on the Shareholder Loan, to the extent such amounts
are applied in accordance with clause (i) of Section 3.1.1 and Section
3.1.2.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “Exemption Certificate” is defined in clause (e) of Section 4.6.



     “Existing Credit Agreement” means that certain Second Amended and Restated Revolving
Credit Agreement, dated as of December 16, 2005, between Swift Arizona, the lenders from time to
time party thereto and SunTrust Bank, as Administrative Agent.



     “Federal Funds Rate” means, for any period, a fluctuating interest rate per annum
equal for each day during such period to




     (a) the weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as



12









 







published for such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York; or




     (b) if such rate is not so published for any day which is a Business Day, the average
of the quotations for such day on such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it.



     “Fee Letter” means the confidential Amended and Restated Fee Letter, dated February 8,
2007, among Morgan Stanley, Wachovia Securities, Wachovia Bank, J.P. Morgan Securities, JP Morgan
Chase Bank, N.A., Mr. Moyes and Holdings.



     “Filing Agent” is defined in Section 5.1.13.



     “Filing Statements” is defined in Section 5.1.13.



     “Fiscal Quarter” means a quarter ending on the last day of March, June, September or
December.



     “Fiscal Year” means any period of twelve consecutive calendar months ending on
December 31; references to a Fiscal Year with a number corresponding to any calendar year (e.g.,
the “2007 Fiscal Year”) refer to the Fiscal Year ending on December 31 of such calendar
year.



     “Foreign Subsidiary” means any Subsidiary that is not a U.S. Subsidiary (including,
but not limited to, any Subsidiary organized under the laws of Puerto Rico).



     “F.R.S. Board” means the Board of Governors of the Federal Reserve System or any
successor thereto.



     “GAAP” is defined in Section 1.4.



     “Governmental Authority” means the government of the United States, any other nation
or any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other Person exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government.



     “Guarantor” means, collectively, Holdings, each Subsidiary Guarantor and each other
Person that has guaranteed the Obligations, including Swift Nevada with respect to the Obligations
of Swift Arizona in its capacity as a Borrower and Swift Arizona with respect to the Obligations of
Swift Nevada in its capacity as a Borrower.



     “Guaranty” means, as the context requires, the guaranty issued by Holdings pursuant to
Article X or the Subsidiary Guaranty.



     “Hazardous Material” means (i) any “hazardous substance”, as defined by
CERCLA, (ii) any “hazardous waste”, as defined by the Resource Conservation and Recovery
Act, as



13









 




amended, or (iii) any pollutant or contaminant or hazardous, dangerous or toxic chemical,
material or substance (including any petroleum product) within the meaning of any other applicable
federal, state or local law, regulation, ordinance or requirement (including consent decrees and
administrative orders) relating to or imposing liability or standards of conduct concerning any
hazardous, toxic or dangerous waste, substance or material, all as amended.




     “Hedge Termination Value” has the meaning given to such term in the Intercreditor
Agreement. [Amendment No. 2, Section 2.11]



     “Hedging Obligations” means, with respect to any Person, all liabilities of such
Person under any Rate Protection Agreement. [Amendment No. 2, Section 2.6]



     “herein”, “hereof”, “hereto”, “hereunder” and similar terms
contained in any Loan Document refer to such Loan Document as a whole and not to any particular
Section, paragraph or provision of such Loan Document.



     “Holdings” is defined in the preamble.



     “IEL” is defined in the seventh recital.



     “IEL Equity Contribution” is defined in the seventh recital.



     “Immaterial Subsidiary” means a Subsidiary that is not a Material Subsidiary.



     “Impermissible Qualification” means any qualification or exception to the opinion or
certification of any independent public accountant as to any financial statement delivered
hereunder (i) which is of a “going concern” or similar nature, (ii) which relates to the
limited scope of examination of matters relevant to such financial statement, or (iii) which
relates to the treatment or classification of any Item in such financial statement and which, as a
condition to its removal, would require an adjustment to such Item the effect of which would be to
cause the Person delivering such financial statement to be in Default.



     “including” and “include” means including without limiting the generality of
any description preceding such term, and, for purposes of each Loan Document, the parties hereto
agree that the rule of ejusdem generis shall not be applicable to limit a general statement, which
is followed by or referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.



     “Indebtedness” of any Person means:




     (a) all obligations of such Person for borrowed money or advances and all obligations
of such Person evidenced by bonds, debentures, notes or similar instruments;




     (b) all obligations, contingent or otherwise, relative to the face amount of all
letters of credit, whether or not drawn, and banker’s acceptances issued for the account of
such Person;




     (c) all Capitalized Lease Liabilities of such Person;



14









 






     (d) net Hedging Obligations of such Person;




     (e) whether or not so included as liabilities in accordance with GAAP, all obligations
of such Person to pay the deferred purchase price of property or services (excluding trade
accounts payable in the ordinary course of business which are not overdue for a period of
more than 90 days or, if overdue for more than 90 days, as to which a dispute exists and
adequate reserves in conformity with GAAP have been established on the books of such
Person), and indebtedness secured by (or for which the holder of such indebtedness has an
existing right, contingent or otherwise, to be secured by) a Lien on property owned or being
acquired by such Person (including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness shall have been assumed by
such Person or is limited in recourse;




     (f) obligations arising under Synthetic Leases;




     (g) to the extent not otherwise included in any of the foregoing clauses, Attributable
Debt; and




     (h) all Contingent Liabilities of such Person in respect of any of the foregoing.



     The Indebtedness of any Person shall include the Indebtedness of any other Person (including
any partnership in which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person’s ownership interest in or other relationship with such Person,
except to the extent the terms of such Indebtedness provide that such Person is not liable
therefor.



     “Indemnified Liabilities” is defined in Section 11.4.



     “Indemnified Parties” is defined in Section 11.4.



     “Interco Subordination Agreement” means a Subordination Agreement, in form and
substance reasonably satisfactory to the Administrative Agent, executed and delivered by two or
more Obligors pursuant to the terms of this Agreement, as amended, supplemented, amended and
restated or otherwise modified from time to time.



     “Intercreditor Agreement” means the Intercreditor Agreement, dated as of the date
hereof and substantially in the form of Exhibit G hereto, executed and delivered by the
Second Lien Agent, the Obligors and the Administrative Agent pursuant to the terms of this
Agreement, as amended, supplemented, amended and restated or otherwise modified from time to time.



     “Interest Coverage Ratio” means, as of the last day of any Fiscal Quarter, the ratio
computed for the period consisting of such Fiscal Quarter and each of the three immediately
preceding Fiscal Quarters of:




     (a) EBITDA (for all such Fiscal Quarters)



     to



15









 






     (b) the sum (for all such Fiscal Quarters) of Interest Expense;


provided that, with respect to the four consecutive Fiscal Quarter period ending (i)
December 31, 2007, Interest Expense for purposes hereof shall be actual Interest Expense for the
two Fiscal Quarter period ending December 31, 2007 multiplied by two, and (ii) March 31, 2008,
Interest Expense for purposes hereof shall be actual Interest Expense for the three Fiscal Quarter
period ending March 31, 2008 multiplied by one and one-third.




     “Interest Expense” means, for any applicable period, and without duplication for such
period or among one or more prior periods, the aggregate interest expense (both accrued and paid
and net of interest income received during such period by Holdings and its Subsidiaries, other than
any interest income resulting from payments of interest by the Rollover Purchasers on the
Shareholder Loan) of Holdings and its Subsidiaries (including all fees, expenses, interest, and/or
yield incurred in connection with any Qualified Receivables Transaction set forth in clause (ii) of
the definition of “Total Debt” and all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers’ acceptances and net cash costs under applicable Hedging
Obligations (but excluding any Swap Termination Payments) for such applicable period, including the
portion of any payments in respect of Capitalized Lease Liabilities allocable to interest expense
(whether or not actually paid during such period), but excluding any amortization or write-off of
financing or other debt issuance costs otherwise included therein. [Amendment No. 2, Section 2.7]



     “Interest Period” means, relative to any LIBO Rate Loan, the period beginning on (and
including) the date on which such LIBO Rate Loan is made or continued as, or converted into, a LIBO
Rate Loan pursuant to Section 2.3 or 2.4 and ending on (but excluding) the day
which numerically corresponds to such date one, two, three or six months thereafter and, if
available to all applicable Lenders, nine or 12 months thereafter (or, if such month has no
numerically corresponding day, on the last Business Day of such month), as any Borrower may select
in its relevant notice pursuant to Section 2.3 or 2.4; provided that (i)
the Borrowers shall not be permitted to select Interest Periods to be in effect at any one time
which have expiration dates occurring on more than eight different dates, (ii) if such Interest
Period would otherwise end on a day which is not a Business Day, such Interest Period shall end on
the next following Business Day (unless such next following Business Day is the first Business Day
of a calendar month, in which case such Interest Period shall end on the Business Day next
preceding such numerically corresponding day), and (iii) no Interest Period for any Loan may end
later than the Stated Maturity Date for such Loan.



     “Investment” means, relative to any Person, (i) any loan, advance or extension of
credit made by such Person to any other Person, including the purchase by such Person of any bonds,
notes, debentures or other debt securities of any other Person, (ii) Contingent Liabilities in
favor of any other Person, and (iii) any Capital Securities held by such Person in any other
Person. The amount of any Investment shall be the original principal or capital amount thereof
less all returns of principal or equity thereon and shall, if made by the transfer or exchange of
property other than cash, be deemed to have been made in an original principal or capital amount
equal to the fair market value of such property at the time of such Investment.



16









 





     “Investment Period” means, relative to any Synthetic Deposits, the period beginning on
(and including) the date on which such Synthetic Deposit is deposited or on the last day of the
preceding Investment Period and ending on (but excluding) the day which numerically corresponds to
such date one month thereafter (or, if such month has no numerically corresponding day, on the last
Business Day of such month); provided that (i) if any such Investment Period would
otherwise end on a day which is not a Business Day, such Investment Period shall end on the next
following Business Day (unless such next following Business Day is the first Business Day of a
calendar month, in which case such Investment Period shall end on the Business Day next preceding
such numerically corresponding day), (ii) the first Investment Period shall be comprised of the
period beginning on (and including) the Closing Date and ending on the day which numerically
corresponds to such date one month thereafter (subject to clause (i) above) and (iii) no
Investment Period may end later than the Synthetic Facility Maturity Date.



     “ISP Rules” is defined in Section 11.9.



     “Issuance Request” means a Letter of Credit request and certificate duly executed by
an Authorized Officer of the Revolving Loan Borrower (or, in the case of any Issuance Request
delivered on or prior to the Closing Date, Acquisition Co.), substantially in the form of
Exhibit B-2 hereto.



     “Issuers” means the Revolving Issuer and the Synthetic Issuer.



     “J.P. Morgan Securities” is defined in the preamble.



     “Lead Arrangers” is defined in the preamble.



     “Lender Assignment Agreement” means an assignment agreement substantially in the form
of Exhibit D hereto.



     “Lenders” is defined in the preamble and includes any Person which becomes a
Lender hereunder pursuant to a Lender Assignment Agreement.



     “Lender’s Environmental Liability” means any and all losses, liabilities, obligations,
penalties, claims, litigation, demands, defenses, costs, judgments, suits, proceedings, damages
(including consequential damages), disbursements or expenses of any kind or nature whatsoever
(including reasonable attorneys’ fees at trial and appellate levels and experts’ fees and
disbursements and expenses incurred in investigating, defending against or prosecuting any
litigation, claim or proceeding) which may at any time be imposed upon, incurred by or asserted or
awarded against the Administrative Agent, any Lender or any Issuer or any of such Person’s
Affiliates, shareholders, directors, officers, employees, and agents in connection with or arising
from:




     (a) any Hazardous Material on, in, under or affecting all or any portion of any
property of Holdings or any of its Subsidiaries, the groundwater thereunder, or any
surrounding areas thereof to the extent caused by Releases from Holdings’ or any of its
Subsidiaries’ or any of their respective predecessors’ properties;



17









 






     (b) any misrepresentation, inaccuracy or breach of any warranty contained or referred
to in Section 6.12 (without regard to “knowledge” or “materiality” qualifications or
exceptions contained in such representations or warranties);




     (c) any violation or claim of violation by Holdings or any of its Subsidiaries of any
Environmental Laws; or




     (d) the imposition of any Lien for damages caused by or the recovery of any costs for
the cleanup, release or threatened release of Hazardous Material by Holdings or any of its
Subsidiaries, or in connection with any property owned or formerly owned by Holdings or any
of its Subsidiaries.



     “Letter of Credit” means, as the context may require, a Revolving Letter of Credit
and/or a Synthetic Letter of Credit.



     “Letter of Credit Outstandings” means, as the context may require, the Revolving
Letter of Credit Outstandings and/or the Synthetic Letter of Credit Outstandings, in each case
after giving effect to the participations of the Lenders therein pursuant to Section 2.6.1.



     “Leverage Ratio” means, as of the last day of any Fiscal Quarter, the ratio of




     (a) Total Debt outstanding on the last day of such Fiscal Quarter



     to




     (b) EBITDA computed for the period consisting of such Fiscal Quarter and each of the
three immediately preceding Fiscal Quarters.



     “LIBO Rate” means, relative to any Interest Period for LIBO Rate Loans, the rate of
interest equal to the average (rounded upwards, if necessary, to the nearest 1/16 of 1%) of the
rates per annum at which Dollar deposits in immediately available funds are offered to the
Administrative Agent’s LIBOR Office in the London interbank market as at or about 11:00 a.m.
London, England time two Business Days prior to the beginning of such Interest Period for delivery
on the first day of such Interest Period, and in an amount approximately equal to the amount of the
Administrative Agent’s LIBO Rate Loan and for a period approximately equal to such Interest Period,
provided, however, in no event will the LIBO Rate be less than 2.25%. [Amendment
No. 2, Section 2.8]



     “LIBO Rate Loan” means a Loan bearing interest, at all times during an Interest Period
applicable to such Loan, at a rate of interest determined by reference to the LIBO Rate (Reserve
Adjusted).



18









 





     “LIBO Rate (Reserve Adjusted)” means, relative to any Loan to be made, continued or
maintained as, or converted into, a LIBO Rate Loan for any Interest Period, a rate per annum
(rounded upwards, if necessary, to the nearest 1/16 of 1%) determined pursuant to the following
formula:



	 	 	 	 	 	 	 

	LIBO Rate

	 	=
	 	LIBO Rate
	 	 
	(Reserve Adjusted)

	 	 	 	          1.00 — LIBOR Reserve Percentage          
	 	 





The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate Loans will be determined by
the Administrative Agent on the basis of the LIBOR Reserve Percentage in effect two Business Days
before the first day of such Interest Period.




     “LIBOR Office” means the office of a Lender designated as its “LIBOR Office”
on Schedule II hereto or in a Lender Assignment Agreement, or such other office designated
from time to time by notice from such Lender to the Borrowers and the Administrative Agent, whether
or not outside the United States, which shall be making or maintaining the LIBO Rate Loans of such
Lender.



     “LIBOR Reserve Percentage” means, relative to any Interest Period for LIBO Rate Loans,
the reserve percentage (expressed as a decimal) equal to the maximum aggregate reserve requirements
(including all basic, emergency, supplemental, marginal and other reserves and taking into account
any transitional adjustments or other scheduled changes in reserve requirements) specified under
regulations issued from time to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of or including “Eurocurrency Liabilities”, as currently defined in
Regulation D of the F.R.S. Board, having a term approximately equal or comparable to such Interest
Period.



     “Lien” means any security interest, mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or otherwise), charge against or interest in
property, or other priority or preferential arrangement of any kind or nature whatsoever, to secure
payment of a debt or performance of an obligation.



     “Liquidity” means, at any time, the sum of (i) an amount equal to the aggregate unused
portion of the Revolving Loan Commitments at such time and (ii) cash and Cash Equivalent
Investments held by Holdings and its Subsidiaries as of such date. [Amendment No. 2, Section 2.11]



     “LKE Account” has the meaning given to such term in the Pledge and Security Agreement.
[Amendment No. 2, Section 2.11]



     “LKE Program” means that certain program established by Swift Nevada and its
Subsidiaries for the disposition and exchange of trucks, trailers and other transportation assets
in exchanges intended to qualify as “like-kind exchanges” under Section 1031 of the Code with
Chicago Deferred Exchange Corporation or any other qualified institution acting as the “qualified
intermediary” (as defined under Section 1031 of the Code or the Treasury Regulations promulgated
thereunder) for such exchanges.



19









 





     “Loan Documents” means, collectively, this Agreement, the Notes, the Letters of
Credit, each Rate Protection Agreement, the Fee Letter, the Security Agreements, the Subsidiary
Guaranty, the Intercreditor Agreement, and each other agreement, certificate, document or
instrument delivered in connection with any Loan Document, whether or not specifically mentioned
herein or therein.



     “Loans” means, as the context may require, a Revolving Loan, a Term Loan or a Swing
Line Loan of any type.



     “Material Adverse Effect” means a material adverse effect on (i) the business,
financial condition, operations, performance or properties of any Borrower, or of Holdings and its
Subsidiaries taken as a whole; (ii) the rights and remedies of any Secured Party under any Loan
Document; or (iii) the ability of any Obligor (other than an Immaterial Subsidiary) to perform its
Obligations under any Loan Document.



     “Material Subsidiary” means, at any date of determination, any Subsidiary of Holdings
(other than a Borrower) (i) whose total assets at the last day of the consecutive four quarter
period ending on the last day of the most recent fiscal period for which financial statements have
been delivered pursuant to clause (a) or (b) of Section 7.1.1 were equal to
or greater than 5% of the consolidated total assets of Holdings and its Subsidiaries for such date
or (ii) whose gross revenues for such consecutive four quarter period were equal to or greater than
5% of the consolidated gross revenues of Holdings and its Subsidiaries for such consecutive four
quarter period, in each case determined in accordance with GAAP.



     “Maximum Capital Expenditures Amount” is defined in Section 7.2.7.



     “Maximum Cash Balance” means $50,000,000. [Amendment No. 2, Section 2.11]



     “Merger” is defined in the third recital.



     “Merger Agreement” is defined in the third recital.



     “Moody’s” means Moody’s Investors Service, Inc.



     “Morgan Stanley” is defined in the preamble.



     “Mortgage” means each mortgage, deed of trust or agreement executed and delivered by
any Obligor in favor of the Administrative Agent for the benefit of the Secured Parties pursuant to
the requirements of this Agreement in form and substance reasonably satisfactory to the
Administrative Agent, under which a Lien is granted on the real property and fixtures described
therein, in each case as amended, supplemented, amended and restated or otherwise modified from
time to time.



     “Mortgaged Property” means each parcel of real property owned by the Borrowers or any
Guarantor in the United States with a fair market value (as determined by Swift Nevada in good
faith) in excess of $1,000,000.



20









 





     “Motor Vehicle Financing” means a secured debt financing (whether in the form of a
secured financing, a sale and leaseback transaction, a Capital Lease Liability or otherwise) to be
entered into by one or more U.S. Subsidiaries of Swift Nevada collateralized by specified Motor
Vehicles and related assets, which financing (i) may include (x) one or more tranches of secured
debt financings and/or sale and leasebacks of Motor Vehicles, and (y) one or more put options
exercisable by such U.S. Subsidiary that would require the lender thereunder to purchase specified
Motor Vehicles at certain times and agreed upon prices and to lease back such Motor Vehicles to
such U.S. Subsidiary at certain agreed upon rental prices and lease terms, and (ii) shall not
exceed $500,000,000 over the term of this Agreement and the terms, conditions and documentation of
which shall be reasonably satisfactory to the Administrative Agent.



     “Motor Vehicles” means motor vehicles, trailers, containers and related equipment
owned or leased by any Subsidiary of Holdings.



     “Moyes Senior Fixed Notes” means the $89,352,000 of Senior Fixed Notes held by Mr.
Moyes, which Senior Fixed Notes will be transferred to Swift Nevada and cancelled in accordance
with the provisions set forth in the Shareholder Loan Amendment. [Amendment No. 2, Section 1.2]



     “Mr. Moyes” is defined in the first recital.



     “Net Casualty Proceeds” means, with respect to any Casualty Event, the amount of any
cash insurance proceeds or condemnation awards received by Holdings, the Borrowers or any of their
respective Subsidiaries in connection with such Casualty Event, but excluding (i) any proceeds or
awards required to be paid to a creditor (other than the Lenders) which holds a first priority Lien
permitted by clause (d) of Section 7.2.3 on the property which is the subject of
such Casualty Event, (ii) any actual and reasonable costs incurred by Holdings, the Borrowers or
any of their respective Subsidiaries in connection with the adjustment or settlement of any claims
of Holdings, the Borrowers or such Subsidiary in respect thereof, (iii) any bona fide direct
expenses incurred in connection with any Casualty Event, including income taxes (or Restricted
Payments to its shareholders with respect to such income taxes permitted to be paid in accordance
with clause (a) of Section 7.2.6) estimated in good faith by the seller thereof to
be payable as a result of any gain recognized in connection therewith and (iv) any proceeds
received as a result of a recovery under any subrogation claim.



     “Net Debt Proceeds” means with respect to any Indebtedness incurred by Holdings or any
of its Subsidiaries after the date hereof of the type specified in clause (a) of the
definition of “Indebtedness” not otherwise permitted by Section 7.2.2, the excess of (i)
the gross cash proceeds received by such Person arising from such incurrence, over (ii) all
reasonable and customary legal, investment banking, brokerage and accounting and other professional
fees, sales commissions expenses, costs and disbursements actually incurred in connection with such
Indebtedness.



     “Net Disposition Proceeds” means the gross cash proceeds received by Holdings or any
of its U.S. Subsidiaries from any Disposition (other than in respect of (i) proceeds of a capital
contribution from, or the issuance of any Capital Securities to, the Rollover Purchasers, Holdings,
the Borrowers or any of their respective Subsidiaries, or (ii) proceeds received in



21









 




respect of the issuance of Capital Securities, warrants or options or the exercise of any such
warrants or options under any management or employee stock option plan) pursuant to clauses
(c) and (g) (in the case of clause (g), only to the extent a prepayment is
required pursuant to such clause (g)) of Section 7.2.11 and any cash payment
received in respect of promissory notes or other non-cash consideration delivered to Holdings and
its U.S. Subsidiaries in respect thereof, minus the sum of (i) all reasonable and customary legal,
investment banking, brokerage and accounting fees and expenses incurred in connection with such
Disposition; (ii) all taxes (or Restricted Payments made by Holdings to its shareholders with
respect to such taxes permitted to be paid in accordance with clause (a) of Section
7.2.6) actually paid or estimated by Holdings to be payable in cash within the next 12 months
in connection with such Disposition; provided that the amount of estimated taxes (or
estimated Restricted Payments) in excess of the amount of taxes actually required to be paid in
cash in respect of such Disposition within such 12-month period shall constitute Net Disposition
Proceeds; (iii) payments made by Holdings or any of its U.S. Subsidiaries to retire Indebtedness
(other than the Credit Extensions) where payment of such Indebtedness, including any premium or
penalty, is required by the terms of such Indebtedness in connection with such Disposition; and
(iv) the amount of any reserves established to fund contingent liabilities estimated in good faith
to be payable and that are directly attributable to such event (as determined reasonably and in
good faith by the chief financial or chief accounting officer of the Term Loan Borrower),
provided that, upon any termination of any such reserve, all amounts not paid-out in
connection therewith shall be deemed to be “Net Disposition Proceeds” of such Disposition.




     “Net Equity Proceeds” means with respect to any Public Offering occurring after the
Closing Date, the excess of (i) the gross cash proceeds received by such Person from such
sale, exercise or issuance, over (ii) all reasonable and customary underwriting commissions
and legal, investment banking, brokerage and accounting and other professional fees, sales
commissions and disbursements actually incurred in connection with such sale, exercise or issuance
which have not been paid to Affiliates of Holdings or the Borrowers in connection therewith.



     “Net Income” means, for any period, the aggregate of all amounts (exclusive of all
amounts in respect of any extraordinary gains or extraordinary losses) which would be included as
net income in accordance with GAAP on the consolidated financial statements of Holdings and its
Subsidiaries for such period.



     “Non-Affected Replacement Lender” is defined in Section 4.11.



     “Non-Excluded Taxes” means any Taxes, with respect to the Administrative Agent, any
Lender, or any other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, other than (i) Taxes that are imposed on the overall net income (however
denominated) and franchise Taxes imposed in lieu thereof, (a) by any Governmental Authority under
the laws of which such Lender is organized or has its principal office or maintains its applicable
lending office or (b) by any Governmental Authority solely as a result of a present or former
connection between such recipient and the jurisdiction of such Governmental Authority (other than
any such connection arising solely from such recipient having executed, delivered or performed its
obligations or received a payment under, or enforced, any of the Loan Documents), (ii) any branch
profits Taxes imposed by the United States or any similar Tax imposed by any other jurisdiction in
which the Borrower is located and (iii) Taxes imposed as a



22









 




result of any Lender or the Administrative Agent’s gross negligence or willful misconduct (as
determined by a court of competent jurisdiction in a final and non-appealable decision).




     “Non-U.S. Lender” means any Lender that is not a “United States person”, as
defined under Section 7701(a)(30) of the Code.



     “Note” means, as the context may require, a Revolving Note, a Term Note, or a Swing
Line Note.



     “Obligations” means all obligations (monetary or otherwise, whether absolute or
contingent, matured or unmatured) of the Borrower and each other Obligor arising under or in
connection with a Loan Document, including Reimbursement Obligations and the principal of and
premium, if any, and interest (including interest accruing during the pendency of any proceeding of
the type described in Section 8.1.9, whether or not allowed in such proceeding) on the
Loans.



     “Obligor” means, as the context may require, Holdings, Acquisition Co., Swift Nevada,
Swift Arizona, each Subsidiary Guarantor and each other Person (other than a Secured Party)
obligated under any Loan Document (other than any of the Rollover Purchasers). [Amendment No. 2,
Section 1.1]



     “Organic Document” means, relative to any Obligor, as applicable, its certificate of
incorporation, by-laws, certificate of partnership, partnership agreement, certificate of
formation, limited liability agreement, operating agreement and all shareholder agreements, voting
trusts and similar arrangements applicable to any of such Obligor’s Capital Securities.



     “Other Taxes” means any and all stamp, documentary or similar Taxes, or any other
excise or property Taxes or similar levies that arise on account of any payment made or required to
be made under any Loan Document or from the execution, delivery, registration, recording or
enforcement of any Loan Document.



     “Participant” is defined in clause (e) of Section 11.11.



     “Patent Security Agreement” means any Patent Security Agreement executed and delivered
by any Obligor in substantially the form of Exhibit A to the Pledge and Security Agreement, as
amended, supplemented, amended and restated or otherwise modified from time to time.



     “PBGC” means the Pension Benefit Guaranty Corporation and any Person succeeding to any
or all of its functions under ERISA.



     “Pension Plan” means a “pension plan”, as such term is defined in Section 3(2)
of ERISA, which is subject to Title IV of ERISA (other than a multiemployer plan as defined in
Section 4001(a)(3) of ERISA), and to which the Term Loan Borrower or any corporation, trade or
business that is, along with the Term Loan Borrower, a member of a Controlled Group, may have
liability, including any liability by reason of having been a substantial employer within the
meaning of Section 4063 of ERISA at any time during the preceding five years, or by reason of being
deemed to be a contributing sponsor under Section 4069 of ERISA.



23









 





     “Percentage” means, as the context may require, any Lender’s Revolving Loan
Percentage, Synthetic Deposit Percentage or Term Percentage.



     “Permitted Acquisition” means an acquisition (whether pursuant to an acquisition of
Capital Securities, assets or otherwise) by any Subsidiary of Swift Nevada from any Person of all
or substantially all of the assets of, all of the Capital Securities of, or a business line or unit
or division of such Person in which the following conditions are satisfied:




     (a) immediately before and after giving effect to such acquisition no Default shall
have occurred and be continuing or would result therefrom (including under
Section 7.1.8 and Section 7.2.1); and




     (b) Holdings shall have delivered to the Administrative Agent a Compliance Certificate
for the period of four full Fiscal Quarters ended immediately preceding such acquisition
(prepared in good faith and in a manner and using such methodology which is consistent with
the most recent financial statements delivered pursuant to Section 7.1.1) giving
pro forma effect to the consummation of such acquisition and evidencing
compliance with the covenants set forth in Section 7.2.4.



     “Person” means any natural person, corporation, limited liability company,
partnership, joint venture, association, trust or unincorporated organization, Governmental
Authority or any other legal entity, whether acting in an individual, fiduciary or other capacity.



     “Pledge and Security Agreement” means the pledge and security agreement executed and
delivered by an Authorized Officer of each Borrower and each Guarantor pursuant to the terms of
this Agreement, substantially in the form of Exhibit H hereto as amended, supplemented,
amended and restated or otherwise modified from time to time.



     “Pricing Level” means the level on the table in the definition of “Applicable
Margin” corresponding to the Applicable Rating of Holdings then in effect.



     “Public Market” means, with respect to Holdings, (i) one or more Public Offerings have
been consummated and (ii) not less than 35% of the common stock (or equivalent) of Holdings has
been distributed by means of an effective registration statement under the Securities Act of 1933,
as amended.



     “Public Offering” means a public offering and sale of the Capital Securities of
Holdings or any of its Subsidiaries pursuant to a prospectus, registration statement or similar
document under the Securities Act of 1933, as amended.



     “Qualified Receivables Transaction” means any Securitization Transaction of a
Receivables Subsidiary that meets the following conditions:




     (i) the Board of Directors of Swift Nevada shall have determined in good faith
that such Qualified Receivables Transaction (including financing terms, covenants,
termination events and other provisions) is in the aggregate economically fair and
reasonable to Swift Nevada and the Receivables Subsidiary;



24









 






     (ii) all sales of Receivables Assets to the Receivables Subsidiary are made at
fair market value (as determined in good faith by Swift Nevada);




     (iii) the financing terms, covenants, termination events and other provisions
thereof shall be market terms (as determined in good faith by Swift Nevada) and may
include Standard Securitization Undertakings;




     [Amendment No. 1, Section 1.4 deleted former clause (iv)]




     (iv) no Default shall have occurred and be continuing or would result
therefrom; and




     (v) the proceeds pursuant to such Qualified Receivables Transaction are applied
in accordance with Sections 3.1.1 and 3.1.2.



     “Quarterly Payment Date” means the last day of March, June, September and December,
or, if any such day is not a Business Day, the next succeeding Business Day.



     “Rate Protection Agreement” means, collectively, any currency rate or interest rate
swap, cap, collar or similar agreement or any commodity swap, cap, collar, floor, futures, exchange
or similar agreement entered into by any Subsidiary of Holdings under which the counterparty of
such agreement is (or at the time such agreement was entered into, was) a Lender, the
Administrative Agent or an Affiliate of any thereof. [Amendment No. 2, Section 2.9]



     “Receivables Assets” means a right of a Person to receive payment arising from a sale
or lease of goods or the performance of services by such Person pursuant to an arrangement with
another Person pursuant to which such other Person is obligated to pay for such goods or services
under terms that permit the purchase of such goods and services on credit and shall include, in any
event, any items of property that would be classified as an “account,” “chattel paper,” “payment
intangible” or “instrument” under the UCC and any supporting obligations and any assets related
thereto which are customarily transferred, or in respect of which security interests are
customarily granted, in connection with an asset securitization transactions involving receivables,
in each case so as long as the documentation in connection therewith is reasonably satisfactory to
the Administrative Agent.



     “Receivables Subsidiary” means Swift Receivables and any other direct or indirect
wholly owned Subsidiary of Swift Arizona that (i) is a special purpose entity engaged in Qualified
Receivables Transactions, (ii) engages in no activities other than in connection with the purchase,
sale or financing of Receivables Assets and any business or activities reasonably incidental or
related thereto, (iii) is designated by the board of directors (or equivalent governing body) of
the applicable Subsidiary (as provided below) as a Receivables Subsidiary and (iv) meets the
following conditions:




     (a) no portion of the Indebtedness or any other obligations (contingent or otherwise)
of such Receivables Subsidiary:




     (i) is guaranteed by Holdings or any of its Subsidiaries;



25









 






     (ii) is recourse to or obligates Holdings or any of its Subsidiaries; or




     (iii) subjects any property or assets of Holdings or any of its Subsidiaries,
directly or indirectly, contingently or otherwise, to the satisfaction thereof;




     (b) with which neither Holdings nor any of its Subsidiaries has any material contract,
agreement, arrangement or understanding (other than Standard Securitization Undertakings);
and




     (c) to which neither Holdings nor any of its Subsidiaries has any obligation to
maintain or preserve such entity’s financial condition or cause such entity to achieve
certain levels of operating results.



     Any such designation by the board of directors (or equivalent governing body) of the
applicable Subsidiary shall be evidenced by a certified copy of the resolution of the board of
directors (or equivalent governing body) of such Subsidiary giving effect to such designation and
an officers certificate certifying that such designation complies with the foregoing conditions



     “Refunded Swing Line Loans” is defined in clause (b) of Section 2.3.2.



     “Register” is defined in clause (a) of Section 2.7.



     “Reimbursement Obligation” means a Revolving Reimbursement Obligation and/or a
Synthetic Reimbursement Obligation.



     “Related Parties” is defined in Section 11.4.



     “Release” means a “release”, as such term is defined in CERCLA.



     “Replacement Lender” is defined in clause (h) of Section 11.11.



     “Replacement Notice” is defined in Section 4.11.



     “Required Lenders” means, at any time, Lenders holding more than 50% of the Total
Exposure Amount.



     “Resource Conservation and Recovery Act” means the Resource Conservation and Recovery
Act, 42 U.S.C. Section 6901, et seq., as amended.



     “Restricted Payment” means (i) the declaration or payment of any dividend on, or the
making of any payment or distribution on account of, or setting apart assets for a sinking or other
analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of, any
class of Capital Securities of the Borrowers or any other Subsidiary or any warrants, options or
other right or obligation to purchase or acquire any such Capital Securities, whether now or
hereafter outstanding, or (ii) the making of any other distribution in respect of such Capital
Securities, in each case either directly or indirectly, whether in cash, property or obligations
of



26









 




the Borrowers or any other Subsidiary or otherwise (in the case of clause (i) and (ii) above,
other than dividends or distributions payable solely in common stock of Holdings or any
Subsidiary).




     “Revolving Issuer” means LaSalle Bank National Association in its capacity as Issuer
of the Revolving Letters of Credit. At the request of LaSalle Bank National Association and with
the consent of the Revolving Loan Borrower (not to be unreasonably withheld), another Lender may
issue one or more Revolving Letters of Credit hereunder.



     “Revolving Letter of Credit” is defined in clause (a) of
Section 2.1.2.



     “Revolving Letter of Credit Commitment” means the Revolving Issuer’s obligation to
issue Revolving Letters of Credit pursuant to Section 2.1.2 and, with respect to each
Revolving Loan Lender, such Lender’s Revolving Letter of Credit Participation Obligations.



     “Revolving Letter of Credit Commitment Amount” means, on any date, a maximum amount of
$175,000,000, as such amount may be permanently reduced from time to time pursuant to
Section 2.2.



     “Revolving Letter of Credit Outstandings” means, on any date, an amount equal to the
sum of (i) the then aggregate undrawn Stated Amount of all issued and outstanding Revolving Letters
of Credit, and (ii) the then aggregate amount of all unpaid and outstanding Revolving Reimbursement
Obligations.



     “Revolving Letter of Credit Participation Obligation” is defined in clause (a)
of Section 2.6.1.



     “Revolving Loan Borrower” means Swift Arizona.



     “Revolving Loan Commitment” means, relative to any Lender, such Lender’s obligation
(if any) to make Revolving Loans pursuant to clause (a) of Section 2.1.1.



     “Revolving Loan Commitment Amount” means, on any date, $300,000,000, as such amount
may be reduced from time to time pursuant to Section 2.2.



     “Revolving Loan Commitment Termination Date” means the earliest of (i) the Closing
Date (if the initial Credit Extension has not occurred on or prior to such date), (ii) the fifth
anniversary of the Closing Date, (iii) the date on which the Revolving Loan Commitment Amount is
terminated in full or reduced to zero pursuant to the terms of this Agreement, and (iv) the date on
which any Commitment Termination Event occurs.


Upon the occurrence of any event described in the preceding clause (iii) or (iv),
the Revolving Loan Commitments shall terminate automatically and without any further action.




     “Revolving Loan Exposure” means, as of any date of determination, (a) prior to the
termination of the Revolving Loan Commitments, the aggregate amount of all Revolving Loan
Commitments; and (b) after the termination of the Revolving Loan Commitments, the sum of (i) the
aggregate outstanding principal amount of all Revolving Loans and (ii) all Revolving Letter of
Credit Outstandings.



27









 





     “Revolving Loan Lender” is defined in clause (a) of Section 2.1.1.



     “Revolving Loan Percentage” means, relative to any Lender, the applicable percentage
relating to Revolving Loans set forth opposite its name on Schedule II hereto under the
Revolving Loan Commitment column or set forth in a Lender Assignment Agreement under the Revolving
Loan Commitment column, as such percentage may be adjusted from time to time pursuant to Lender
Assignment Agreements executed by such Lender and its Assignee Lender and delivered pursuant to
Section 11.11. A Lender shall not have any Revolving Loan Commitment if its percentage
under the Revolving Loan Commitment column is zero.



     “Revolving Loans” is defined in clause (a) of Section 2.1.1.



     “Revolving Note” means a promissory note of the Revolving Loan Borrower payable to any
Revolving Loan Lender, in the form of Exhibit A-1 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the aggregate Indebtedness
of the Revolving Loan Borrower to such Revolving Loan Lender resulting from outstanding Revolving
Loans, and also means all other promissory notes accepted from time to time in substitution
therefor or renewal thereof.



     “Revolving Reimbursement Obligation” is defined in Section 2.6.3.



     “Rollover Equity Investment” is defined in the fifth recital.



     “Rollover Purchasers” is defined in the first recital.



     “Rollover Purchasers Blocked Account” means any Account (as defined in the Shareholder
Loan Agreement) in respect of which a Shareholder Loan Control Agreement (i) has been executed and
delivered by a Rollover Purchaser, Swift Nevada and the financial institution at which such Account
is maintained and (ii) is in full force and effect.



     “Rollover Purchasers Pledge Agreement” means the pledge agreement executed and
delivered by each Rollover Purchaser (or any Person authorized to act on behalf of any such
Rollover Purchaser) pursuant to the terms of this Agreement, substantially in the form of
Exhibit I hereto as amended, supplemented, amended and restated or otherwise modified from
time to time.



     “S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill
Companies, Inc.



     “SEC” means the Securities and Exchange Commission.



     “Second Lien Agent” means U.S. Bank National Association in its capacity as second
lien agent for the Senior Notes Trustees and the holders of the Senior Notes, and each of its
successors and assigns.



     “Secured Parties” means, collectively, the Lenders, the Issuers, the Administrative
Agent, each counterparty to a Rate Protection Agreement that is (or at the time such Rate
Protection Agreement was entered into, was) a Lender or an Affiliate thereof, each Person to whom a



28









 




Borrower or a Guarantor owes Cash Management Obligations and (in each case), each of their
respective successors, transferees and assigns.




     “Securitization Transactions” means any transaction or series of transactions entered
into by Holdings or any of its Subsidiaries pursuant to which any Person issues interests, the
proceeds of which are used to finance a discrete pool of Receivables Assets (in each case whether
now existing or arising in the future), and which may include a grant of a security interest in any
such Receivables Assets (whether now existing or arising in the future) of Holdings or any of its
Subsidiaries.



     “Security Agreements” means (i) the Pledge and Security Agreement, (ii) the Rollover
Purchasers Pledge Agreement and (iii) each other agreement pursuant to which the Administrative
Agent is granted a Lien to secure the Obligations.



     “Senior Fixed Notes” is defined in the seventh recital.



     “Senior Floating Notes” is defined in the seventh recital.



     “Senior Floating Notes Trustee” is defined in the definition of “Senior Note
Indentures”.



     “Senior Note Documents” means the Senior Notes, the Senior Note Indentures and all
other agreements, documents and instruments executed and delivered with respect to the Senior Notes
or the Senior Note Indentures, as the same may be amended, supplemented, amended and restated or
otherwise modified from time to time in accordance with this Agreement and the Senior Note
Indenture.



     “Senior Note Indentures” means, collectively, (i) the Indenture, dated the date
hereof, between the Term Loan Borrower, the Person acting as trustee thereunder (the “Senior
Floating Notes Trustee”) and the guarantors named therein, pursuant to which the Senior
Floating Notes and any supplemental issuance of “second-priority senior secured floating rate
notes” thereunder are issued, as the same may be amended, supplemented, amended and restated or
otherwise modified from time to time in accordance with this Agreement and such Senior Note
Indenture and (ii) the Indenture, dated the date hereof, between the Term Loan Borrower, the Person
acting as trustee thereunder (together with the Senior Floating Notes Trustee, the “Senior
Notes Trustee”) and the guarantors named therein, pursuant to which the Senior Fixed Notes and
any supplemental issuance of “second-priority senior secured fixed rate notes” thereunder are
issued, as the same may be amended, supplemented, amended and restated or otherwise modified from
time to time in accordance with this Agreement and such Senior Note Indenture.



     “Senior Notes” is defined in the seventh recital.



     “Senior Notes Contribution” means the contribution by Mr. Moyes of, and the
cancellation or retirement by Swift Nevada of, the $36,400,000 of Senior Floating Notes and the
$89,352,000 of Senior Fixed Notes owned by Mr. Moyes, in each case, as contemplated in Amendment
No. 2. [Amendment No. 2, Section 1.2]



     “Senior Notes Trustee” is defined in the definition of “Senior Note
Indentures”.



29









 





     “Shareholder Loan” is defined in the sixth recital.



     “Shareholder Loan Agreement” means the credit agreement, dated as of the date hereof,
among the Rollover Purchasers as borrowers thereunder and Swift Nevada as the lender thereunder, as
the same may be amended, supplemented, amended and restated or otherwise modified from time to time
in accordance with the terms thereof and this Agreement.



     “Shareholder Loan Amendment” means that certain Amendment No. 1 to the Shareholder
Loan Agreement, to be dated as of October 13, 2009, by and between the Rollover Purchasers and
Swift Nevada, amending the terms of the Shareholder Loan Agreement, in the form attached to
Amendment No. 2. [Amendment No. 2, Section 1.2]



     “Shareholder Loan Control Agreement” means a tri-party blocked account control
agreement among Swift Nevada, any financial institution and any Rollover Purchaser with respect to
any Accounts (as defined in the Shareholder Loan Agreement) pursuant to which Restricted Payments
permitted pursuant to clause (b) of Section 7.2.6 are required to be deposited.



     “Shareholder Loan Documents” means the Shareholder Loan Agreement, the Shareholder
Loan Notes, the Shareholder Loan Pledge Agreement and all other agreements, documents, certificates
and instruments executed and delivered with respect to the Shareholder Loan Agreement, the
Shareholder Loan Notes and the Shareholder Loan Pledge Agreement, including any Shareholder Loan
Control Agreement, in each case as the same may be amended, supplemented, amended and restated or
otherwise modified from time to time in accordance with this Agreement and the Shareholder Loan
Agreement.



     “Shareholder Loan Notes” means the “Notes” as defined in the Shareholder Loan
Agreement, as amended, supplemented, amended and restated or otherwise modified from time to time
in accordance with this Agreement and the Shareholder Loan Agreement.



     “Shareholder Loan Pledge Agreement” means the “Borrower Pledge Agreement” as defined
in the Shareholder Loan Agreement, as amended, supplemented, amended and restated or otherwise
modified from time to time in accordance with this Agreement and the Shareholder Loan Agreement.



     “Solvent” means, with respect to any Person and its Subsidiaries on a particular date,
that on such date




     (a) the fair value of the property of such Person and its Subsidiaries on a
consolidated basis is greater than the total amount of liabilities, including contingent
liabilities, of such Person and its Subsidiaries on a consolidated basis;




     (b) the present fair salable value of the assets of such Person and its Subsidiaries on
a consolidated basis is not less than the amount that will be required to pay the probable
liability of such Person and its Subsidiaries on a consolidated basis on its debts as they
become absolute and matured;



30









 






     (c) such Person does not intend to, and does not believe that it or its Subsidiaries
will, incur debts or liabilities beyond the ability of such Person and its Subsidiaries to
pay as such debts and liabilities mature; and




     (d) such Person and its Subsidiaries on a consolidated basis is not engaged in business
or a transaction, and such Person and its Subsidiaries on a consolidated basis is not about
to engage in a business or a transaction, for which the property of such Person and its
Subsidiaries on a consolidated basis would constitute an unreasonably small capital. The
amount of Contingent Liabilities at any time shall be computed as the amount that, in light
of all the facts and circumstances existing at such time, can reasonably be expected to
become an actual or matured liability.



     “Standard Securitization Undertakings” means representations, warranties, covenants
and indemnities entered into by Holdings or any of its Subsidiaries which are reasonably customary
(as determined in good faith by Holdings) in a securitization of Receivables Assets.



     “Stated Amount” means, on any date and with respect to a particular Letter of Credit,
the total amount then available to be drawn under such Letter of Credit.



     “Stated Expiry Date” is defined in Section 2.6.



     “Stated Maturity Date” means (i) with respect to all Term Loans, the seventh
anniversary of the Closing Date, (ii) with respect to all Revolving Loans and Swing Line Loans, the
fifth anniversary of the Closing Date and (iii) with respect to all Synthetic Deposits, the
Synthetic Facility Maturity Date.



     “Subsidiary” means, with respect to any Person, any other Person of which more than
50% of the outstanding Voting Securities of such other Person (irrespective of whether at the time
Capital Securities of any other class or classes of such other Person shall or might have voting
power upon the occurrence of any contingency) is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more other Subsidiaries of such Person, or by
one or more other Subsidiaries of such Person. Unless the context otherwise specifically requires,
the term “Subsidiary” shall be a reference to a Subsidiary of Holdings. Except for
purposes of Sections 6.10, 6.11, 6.12,
7.1.2 (solely with respect
to compliance with applicable laws), 7.1.6 and 8.1.7 and clause (d) of
Section 7.2.1, Swift Puerto Rico shall be deemed not to be a Subsidiary of Holdings or any
of its Subsidiaries for purposes of this Agreement, any term or provision hereof to the contrary
notwithstanding.



     “Subsidiary Guarantor” means each Subsidiary that has executed and delivered to the
Administrative Agent the Subsidiary Guaranty (including by means of a delivery of a supplement
thereto).



     “Subsidiary Guaranty” means the subsidiary guaranty executed and delivered by an
Authorized Officer of each U.S. Subsidiary (other than either [Amendment No. 2, Section 2.27]
Captive Insurance Company and any Receivables Subsidiary) pursuant to the terms of this Agreement,
substantially in the form of Exhibit F hereto, as amended, supplemented, amended and
restated or otherwise modified from time to time.



31









 





     “Swap Termination Payments” means any cash payments made to pay Hedge Termination
Value or any other cash payoff or termination amount or other costs attributable to the early
termination or voluntary unwind of interest rate swaps entered into prior to October 7, 2009.
[Amendment No. 2, Section 2.11]



     “Swift Arizona” is defined in the preamble.



     “Swift Nevada” is defined in the preamble.



     “Swift Puerto Rico” means Swift Transportation of Puerto Rico, Inc.



     “Swift Receivables” means Swift Receivables Corporation, a Delaware corporation.



     “Swing Line Lender” means, subject to the terms of this Agreement, Morgan Stanley.



     “Swing Line Loan” is defined in clause (b) of Section 2.1.1.



     “Swing Line Loan Commitment” is defined in clause (b) of
Section 2.1.1.



     “Swing Line Loan Commitment Amount” means, on any date, $25,000,000, as such amount
may be reduced from time to time pursuant to Section 2.2.



     “Swing Line Note” means a promissory note of the Revolving Loan Borrower payable to
the Swing Line Lender, in the form of Exhibit A-3 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the aggregate Indebtedness
of the Revolving Loan Borrower to the Swing Line Lender resulting from outstanding Swing Line
Loans, and also means all other promissory notes accepted from time to time in substitution
therefor or renewal thereof.



     “Synthetic Account Balance” means, at any time, the aggregate amount on deposit in the
Synthetic Deposit Account excluding any interest or other earnings or income earned or accrued
thereon.



     “Synthetic Deposit” is defined in clause (b) of Section 2.1.4.



     “Synthetic Deposit Account” means the account established by the Administrative Agent
with the Synthetic Depository with the title “Synthetic Lenders (Swift Transportation)
Credit-Linked Deposit Account” (or similar title) pursuant to clause (a) of Section
2.1.4.



     “Synthetic Deposit Allocation” is defined in clause (a) of Section
2.1.4.



     “Synthetic Deposit Amount” means, with respect to any Synthetic Lender as of any date,
an amount equal to the product of (a) such Lender’s Synthetic Deposit Percentage as of such date
multiplied by (b) the Synthetic Letter of Credit Commitment Amount as of such date.



     “Synthetic Deposit Earnings” means, with respect to Synthetic Deposits and any
applicable period of time, the amount of interest or other income or earnings actually earned and
received as a result of the investment of such Synthetic Deposits during such period (as mutually



32









 




agreed between Swift Nevada and the Synthetic Depository as provided pursuant to clause
(b) of Section 2.1.4).




     “Synthetic Deposit Percentage” means, relative to any Synthetic Lender, the applicable
percentage relating to Synthetic Deposits set forth opposite its name on Schedule II hereto
under the Synthetic Deposit column or set forth in a Lender Assignment Agreement under the
Synthetic Deposit column, as such percentage may be adjusted from time to time pursuant to Lender
Assignment Agreements executed by such Lender and its assignee Lender and delivered pursuant to
Section 11.11.



     “Synthetic Depository” means LaSalle Bank National Association or one or more of its
Affiliates or, if LaSalle Bank National Association or one or more of its Affiliates shall cease to
be the Synthetic Issuer, such other institution, from time to time, as agreed by the Borrowers and
the Administrative Agent.



     “Synthetic Facility Maturity Date” means the seventh anniversary of the Closing Date.



     “Synthetic Issuer” means LaSalle Bank National Association in its capacity as issuer
of the Synthetic Letters of Credit. At the request of LaSalle Bank National Association and with
the consent of the Revolving Loan Borrower (not to be unreasonably withheld), another Lender may
issue one or more Synthetic Letters of Credit hereunder.



     “Synthetic Lease” means, as applied to any Person, any lease (including leases that
may be terminated by the lessee at any time) of any property (whether real, personal or mixed) (i)
that is not a capital lease in accordance with GAAP; and (ii) in respect of which the lessee
retains or obtains ownership of the property so leased for federal income tax purposes, other than
any such lease under which that Person is the lessor.



     “Synthetic Lender” means, as of any time of determination, any Lender which has a
Synthetic Deposit Percentage pursuant to Schedule II hereto or pursuant to a Lender
Assignment Agreement which, in either case, is greater than 0%.



     “Synthetic Letter of Credit” is defined in clause (a) of Section
2.1.5.



     “Synthetic Letter of Credit Commitment” means the Synthetic Issuer’s obligation to
issue Synthetic Letters of Credit pursuant to Section 2.1.5 and, with respect to each
Synthetic Lender, such Lender’s Synthetic Participation Obligation.



     “Synthetic Letter of Credit Commitment Amount” means, on any date, a maximum of
$150,000,000, as such amount may be permanently reduced from time to time pursuant to
Section 2.2.1.



     “Synthetic Letter of Credit Commitment Termination Date” means the earliest of (i) the
seventh anniversary of the Closing Date, (ii) the date on which the Synthetic Letter of Credit
Commitment Amount is terminated in full or permanently reduced to zero pursuant to the terms of
this Agreement, and (iii) the date on which any Commitment Termination Event occurs.



33









 





     “Synthetic Letter of Credit Outstandings” means, on any date, an amount equal to the
sum of (i) the then aggregate Stated Amount of all issued and outstanding Synthetic Letters of
Credit and (ii) the then aggregate amount of all unpaid and outstanding Synthetic Reimbursement
Obligations.



     “Synthetic Participation Fee” is defined in Section 3.3.4.



     “Synthetic Participation Obligation” is defined in clause (b) of
Section 2.6.1.



     “Synthetic Reimbursement Obligation” is defined in Section 2.6.3.



     “Taxes” means all income, stamp or other taxes, duties, levies, imposts, charges,
assessments, fees, deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, and all interest, penalties or similar
liabilities with respect thereto.



     “Term Loan Borrower” means, collectively, (i) at all times prior to the Merger,
Acquisition Co. and (ii) at all times on and after the Merger, Swift Nevada.



     “Term Loan Commitment” means, relative to any Lender, such Lender’s obligation (if
any) to make Term Loans pursuant to Section 2.1.3.



     “Term Loan Commitment Amount” means, on any date, $1,720,000,000.



     “Term Loan Commitment Termination Date” means the earliest of (i) the Closing Date (if
the Term Loans have not been made on or prior to such date), and (ii) the Closing Date (immediately
after the making of the Term Loans on such date), and (iii) the date on which any Commitment
Termination Event occurs. Upon the occurrence of any event described in clause (ii) or
(iii), the Term Loan Commitments shall terminate automatically and without any further
action.



     “Term Loans” is defined in Section 2.1.3.



     “Term Note” means a promissory note of the Term Loan Borrower payable to any Lender,
in the form of Exhibit A-2 hereto (as such promissory note may be amended, endorsed or
otherwise modified from time to time), evidencing the aggregate Indebtedness of the Term Loan
Borrower to such Lender resulting from outstanding Term Loans, and also means all other promissory
notes accepted from time to time in substitution therefor or renewal thereof.



     “Term Percentage” means, relative to any Lender, the applicable percentage relating to
Term Loans set forth opposite its name on Schedule II hereto under the Term Loan Commitment
column or set forth in a Lender Assignment Agreement under the Term Loan Commitment column, as such
percentage may be adjusted from time to time pursuant to Lender Assignment Agreements executed by
such Lender and its Assignee Lender and delivered pursuant to Section 11.11. A Lender
shall not have any Term Loan Commitment if its percentage under the Term Loan Commitment column is
zero.



34









 





     “Termination Date” means the date on which all Obligations have been paid in full in
cash, the Synthetic Lenders have received the full amount of their Synthetic Deposit, all Letters
of Credit have been terminated or expired (or been Cash Collateralized), all Rate Protection
Agreements have been terminated and all Commitments shall have terminated.



     “Total Debt” means, on any date, (i) the outstanding principal amount of all
Indebtedness of Holdings and its Subsidiaries of the type referred to in clause (a) (which,
in the case of the Revolving Loans, shall be deemed to equal the aggregate principal amount of the
Revolving Loans outstanding as of last day of the Fiscal Quarter ending on or immediately preceding
the date of determination), clause (b) (which, in the case of Letter of Credit Outstandings
shall (i) exclude obligations of the type described in clause (i) of the definitions of
“Revolving Letter of Credit Outstandings” and “Synthetic Letter of Credit Outstandings”, as
applicable, and (ii) be deemed to equal the average daily amount of Letter of Credit Outstandings
for the Fiscal Quarter ending on or immediately preceding the date of determination), clause
(c) (which, in the case of Capital Lease Liabilities with respect to Motor Vehicles, shall be
deemed to equal the average daily amount of such Capital Lease Liabilities outstanding for the
Fiscal Quarter ending on or immediately preceding the date of determination), clause (f)
(which shall be deemed to equal the average daily amount of Synthetic Lease obligations outstanding
for the Fiscal Quarter ending on or immediately preceding the date of determination) and clause
(g) (which shall be deemed to equal the average daily balance of Attributable Debt outstanding
for the Fiscal Quarter ending on or immediately preceding the date of determination), in each case
of the definition of “Indebtedness” (exclusive of intercompany Indebtedness between and
among Holdings and its Subsidiaries) and any Contingent Liability in respect of any of the
foregoing plus (ii) for any Qualified Receivables Transaction in excess of $210,000,000,
the total amount of incremental outstanding purchases in excess of $210,000,000; minus
(iii) cash and Cash Equivalent Investments held by Holdings and its Subsidiaries with the exception
of any amounts held in an account in the name of any Subsidiary that is not a Guarantor (other than
amounts up to $40,000,000 which are required to be held as regulatory capital or minimum
capitalization requirements on behalf of either Captive Insurance Company or which are to be used
in the ordinary course of business by such Captive Insurance Company or by another non-Guarantor
Subsidiary existing as of the date of Amendment No. 2; provided that the amount of cash and
Cash Equivalent Investments of non-Guarantor Subsidiaries which are not the Captive Insurance
Companies is limited to $5,000,000); minus with respect to the calculation of Total Debt
for the fiscal period ending December 31, 2009 only, the Moyes Senior Fixed Notes so long as (x)
such Moyes Senior Fixed Notes are placed in trust or escrow with an escrow agent in accordance with
the provisions set forth in the Shareholder Loan Amendment prior to the cancellation thereof, and
(y) at the time of reporting Leverage Ratio, the Moyes Senior Fixed Notes have in fact been
cancelled. For the avoidance of doubt, any obligation to pay Hedge Termination Value or any other
payoff, termination amounts or costs attributable to the early termination or voluntary unwind of
any Hedging Obligations shall be excluded from Total Debt prior to the payment thereof. [Amendment
No. 2, Section 2.10]



     “Total Exposure Amount” means, on any date of determination (and without duplication),
the sum of (i) the outstanding principal amount of all Term Loans, plus (ii) the Revolving
Loan Exposure plus (iii) the aggregate amount of all Synthetic Deposits.



35









 





     “Trademark Security Agreement” means any Trademark Security Agreement executed and
delivered by any Obligor substantially in the form of Exhibit B to the Pledge and Security
Agreement, as amended, supplemented, amended and restated or otherwise modified from time to time.



     “Transaction Costs” is defined in the sixth recital.



     “Transaction Documents” means, collectively, the Loan Documents, the Senior Note
Documents, the Merger Agreement and the documents evidencing the Shareholder Loan and any other
material document executed or delivered in connection with the IEL Equity Contribution and the
Rollover Equity Investment.



     “Transactions” is defined in the seventh recital.



     “Transplace Promissory Note” means the Subordinated Promissory Note, dated January 7,
2005, in the original principal sum of $6,331,492, made by Transplace Texas, LP in favor of Swift
Transportation Co., Inc., a Nevada corporation.



     “type” means, relative to any Loan, the portion thereof, if any, being maintained as a
Base Rate Loan or a LIBO Rate Loan.



     “UCC” means the Uniform Commercial Code as in effect from time to time in the State
of New York; provided that if, with respect to any Filing Statement or by reason of any
provisions of law, the perfection or the effect of perfection or non perfection of the security
interests granted to the Administrative Agent pursuant to the applicable Loan Document is governed
by the Uniform Commercial Code as in effect in a jurisdiction of the United States other than New
York, then “UCC” means the Uniform Commercial Code as in effect from time to time in such
other jurisdiction for purposes of the provisions of each Loan Document and any Filing Statement
relating to such perfection or effect of perfection or non perfection.



     “United States” or “U.S.” means the United States of America, its fifty states
and the District of Columbia.



     “U.S. Subsidiary” means any Subsidiary that is incorporated or organized under the
laws of the United States, a state thereof or the District of Columbia.



     “Voting Securities” means, with respect to any Person, Capital Securities of any class
or kind ordinarily having the power to vote for the election of directors, managers or other voting
members of the governing body of such Person.



     “Wachovia Bank” is defined in the preamble.



     “Wachovia Securities” is defined in the preamble.



     “Welfare Plan” means a “welfare plan”, as such term is defined in Section 3(1) of
ERISA.



36









 





     “wholly owned Subsidiary” means any Subsidiary all of the outstanding Capital
Securities of which (other than any director’s qualifying shares or investments by foreign
nationals mandated by applicable laws) is owned directly or indirectly by Holdings.



     SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the context otherwise
requires, terms for which meanings are provided in this Agreement shall have such meanings when
used in each other Loan Document and the Disclosure Schedule.



     SECTION 1.3. Cross-References. Unless otherwise specified, references in a Loan
Document to any Article or Section are references to such Article or Section of such Loan Document,
and references in any Article, Section or definition to any clause are references to such
clause of such Article, Section or definition.



     SECTION 1.4. Accounting and Financial Determinations. Unless otherwise specified,
all accounting terms used in each Loan Document shall be interpreted, and all accounting
determinations and computations thereunder (including under Section 7.2.4 and the
definitions used in such calculations) shall be made, in accordance with those generally accepted
accounting principles (“GAAP”) applied in the preparation of the financial statements
referred to in clause (a) of Section 5.1.7. Unless otherwise expressly provided,
all financial covenants and defined financial terms shall be computed on a consolidated basis for
Holdings and its Subsidiaries, in each case without duplication.



ARTICLE II

COMMITMENTS, BORROWING AND ISSUANCE

PROCEDURES, NOTES AND LETTERS OF CREDIT




     SECTION 2.1. Commitments. On the terms and subject to the conditions of this
Agreement, the Lenders and the Issuers severally agree to make Credit Extensions as set forth
below.



     SECTION 2.1.1. Revolving Loan Commitment and Swing Line Loan Commitment. From time
to time on any Business Day occurring from and after the Closing Date but prior to the Revolving
Loan Commitment Termination Date,




     (a) each Lender that has a Revolving Loan Commitment (referred to as a “Revolving
Loan Lender”), agrees that it will make loans (relative to such Lender, its
“Revolving Loans”) to the Revolving Loan Borrower equal to such Lender’s Revolving
Loan Percentage of the aggregate amount of each Borrowing of the Revolving Loans requested
by the Revolving Loan Borrower to be made on such day; and




     (b) the Swing Line Lender agrees that it will make loans (its “Swing Line
Loans”) to the Revolving Loan Borrower equal to the principal amount of the Swing Line
Loan requested by the Revolving Loan Borrower to be made on such day. The Commitment of the
Swing Line Lender described in this clause is herein referred to as its “Swing
Line Loan Commitment”.


On the terms and subject to the conditions hereof, the Revolving Loan Borrower may from time to
time borrow, prepay and reborrow Revolving Loans and Swing Line Loans. No Revolving






37









 







Loan Lender shall be permitted or required to make any Revolving Loan if, after giving effect
thereto and the use of proceeds thereof, the aggregate outstanding principal amount of all
Revolving Loans of such Revolving Loan Lender, together with such Lender’s Revolving Loan
Percentage of the aggregate amount of all Swing Line Loans and Revolving Letter of Credit
Outstandings, would exceed such Lender’s Revolving Loan Percentage of the then existing Revolving
Loan Commitment Amount. Furthermore, the Swing Line Lender shall not be permitted or required to
make Swing Line Loans if, after giving effect thereto, (i) the aggregate outstanding principal
amount of all Swing Line Loans would exceed the then existing Swing Line Loan Commitment Amount or
(ii) unless otherwise agreed to by the Swing Line Lender, in its sole discretion, the sum of all
Swing Line Loans and Revolving Loans made by the Swing Line Lender plus the Swing Line
Lender’s Revolving Loan Percentage of the aggregate amount of Revolving Letter of Credit
Outstandings would exceed the Swing Line Lender’s Revolving Loan Percentage of the then existing
Revolving Loan Commitment Amount.




     SECTION 2.1.2. Revolving Letter of Credit Commitment. From time to time on any
Business Day occurring from the Closing Date but three days prior to the Revolving Loan Commitment
Termination Date, the relevant Revolving Issuer agrees that it will




     (a) issue one or more standby letters of credit (relative to such Issuer, its
“Revolving Letter of Credit”) for the account of any Borrower or any Subsidiary
Guarantor in the Stated Amount requested by the Revolving Loan Borrower on such day; or




     (b) extend the Stated Expiry Date of an existing standby Revolving Letter of Credit
previously issued hereunder.


No Issuer shall be permitted or required to issue any Revolving Letter of Credit if, after giving
effect thereto, (i) the aggregate amount of all Revolving Letter of Credit Outstandings would
exceed the Revolving Letter of Credit Commitment Amount or (ii) the sum of the aggregate amount of
all Revolving Letter of Credit Outstandings plus the aggregate principal amount of all Revolving
Loans and Swing Line Loans then outstanding would exceed the Revolving Loan Commitment Amount.




     SECTION 2.1.3. Term Loan Commitment. In a single Borrowing (which shall be a
Business Day) occurring on or prior to the applicable Commitment Termination Date, each Lender that
has a Term Loan Commitment agrees that it will make loans (relative to such Lender, its “Term
Loans”) to the Term Loan Borrower equal to such Lender’s Term Loan Percentage of the aggregate
amount of the Term Loan Borrowing of Term Loans requested by the Borrower to be made on such day.
No amounts paid or prepaid with respect to Term Loans may be reborrowed.



     SECTION 2.1.4. Synthetic Deposit Account. (a) On or prior to the Closing Date, the
Administrative Agent shall cause the Synthetic Deposit Account to be established for purposes of
receiving deposits made to such account by (or on behalf of) the Synthetic Lenders as required
pursuant to clause (b) of Section 2.6.1 and clause (b) of this Section in
connection with the purchase by such Synthetic Lenders of participation interests in Synthetic
Letters of Credit. The Administrative Agent (or any of its sub-agents or Affiliates) shall
maintain in the Register



38









 




records enabling it to determine at any time the portion of the Synthetic Deposit Account
allocable to each Synthetic Lender held in the Synthetic Deposit Account based on such Synthetic
Lender’s Synthetic Deposit Percentage (such amount, as evidenced by such records, being referred to
as such Lender’s “Synthetic Deposit Allocation”). The Administrative Agent shall also
maintain in the Register the Synthetic Deposit Allocations for assignee Lenders as shall be
required pursuant to Section 11.11. No Person (other than the Administrative Agent or any
of its sub-agents or Affiliates, for the benefit of the Synthetic Issuer or otherwise) shall have
the right to make any withdrawals from the Synthetic Deposit Account or exercise any other right or
power with respect thereto, except as expressly provided in clause (c) below. Without
limiting the generality of the foregoing, each party hereto acknowledges and agrees that (x)
neither the Synthetic Deposit Account, nor any amount on deposit at any time in the Synthetic
Deposit Account, (i) shall be the property of any Secured Party (other than the Administrative
Agent (or its applicable sub-agent or Affiliate) for the benefit of the Synthetic Issuer) or any
Obligor or (ii) shall constitute “collateral” under the Loan Documents other than in favor of the
Synthetic Issuer as cash collateral in respect of Synthetic Participation Obligations and (y) no
Obligor shall have any right or title to, or interest in, the Synthetic Deposit Account or any
amount on deposit at any time in the Synthetic Deposit Account. In addition, each Synthetic Lender
hereby grants to Morgan Stanley & Co. Incorporated (or such other Affiliate of the Administrative
Agent or other designee from time to time designated by the Administrative Agent) for the benefit
of the Synthetic Issuer a security interest in its rights and interests in such Synthetic Lender’s
Synthetic Deposit to secure the obligations of such Synthetic Lender hereunder. For purposes of
perfecting such security interest, each Synthetic Lender hereby instructs the Synthetic Depository
as the bank in which the Synthetic Deposits are maintained, and the Synthetic Depository hereby
agrees, to follow the instructions of Morgan Stanley & Co. Incorporated (or such other Affiliate of
the Administrative Agent or other designee from time to time designated by the Administrative
Agent) in respect of the Synthetic Deposits without further consent by such Synthetic Lender. Each
Synthetic Lender agrees that its right, title and interest with respect to the Synthetic Deposit
Account shall be limited to the right to require its Synthetic Deposit Allocation to be used as
expressly set forth herein and that it will have no right to require the return of its Synthetic
Deposit other than as expressly provided herein (each Synthetic Lender hereby acknowledging that
its Synthetic Deposit constitutes payment for its Synthetic Participation Obligations and that the
Synthetic Issuer will be issuing, amending, renewing and extending Synthetic Letters of Credit in
reliance on the availability of such Lender’s Synthetic Deposit to discharge such Lender’s
obligations in accordance with clause (c) of this Section and Section 2.6.3). The
funding of the Synthetic Deposits and the agreements with respect thereto set forth in this
Agreement constitute arrangements solely among the Administrative Agent (including its applicable
sub-agents or Affiliates), the Synthetic Issuer and the Synthetic Lenders with respect to the
funding and reimbursement obligations of the Synthetic Lenders under this Agreement, and do not
constitute loans, extensions of credit or other financial accommodations to any Obligor and shall
not relieve the Revolving Loan Borrower of its Synthetic Reimbursement Obligations.





     (b) On the Closing Date, each Synthetic Lender shall fund to and as directed by the
Administrative Agent an amount in Dollars equal to such Lender’s Synthetic Deposit Amount
for the purpose of cash collateralizing such Synthetic Lender’s Synthetic Participation
Obligation (each such amount being such Lender’s “Synthetic Deposit”). Upon receipt
of such Synthetic Deposits on the Closing Date, the Administrative Agent,



39









 







on behalf of each Synthetic Lender, shall deposit an amount equal to the aggregate
amount of Synthetic Deposits in the Synthetic Deposit Account. Once such Synthetic Lender
has funded its Synthetic Deposit to the Administrative Agent in full in cash, and the
Administrative Agent has made such deposit in full in cash into the Synthetic Deposit
Account, all obligations of such Synthetic Lender to reimburse the Synthetic Issuer with
respect to any draw paid by it under any Synthetic Letter of Credit (pursuant to Section
2.6 or otherwise) shall be satisfied in full, and such Synthetic Lender shall not have
any further or other funding obligation whatsoever hereunder in respect of any Synthetic
Reimbursement Obligations. Subject to clause (d) of this Section, upon the deposit
of each Synthetic Lender’s Synthetic Deposit in the Synthetic Deposit Account, the Synthetic
Depository shall cause such Synthetic Deposits to be invested in such instruments or other
investments as mutually agreed upon by the Synthetic Depository and Swift Nevada (and the
Synthetic Lenders and the Synthetic Issuer hereby authorize the Synthetic Depository to
create a managed investment account to invest Synthetic Deposits and to manage investments
in such account).




     (c) Amounts on deposit in the Synthetic Deposit Account may be withdrawn by (or with
the written consent of) the Administrative Agent from time to time in its reasonable
determination, including, without limitation, as follows:




     (i) The Administrative Agent shall withdraw (or cause to be withdrawn) from the
Synthetic Deposit Amount the amount of Synthetic Deposit Earnings to be paid from
time to time to the Synthetic Lenders pursuant to the last sentence of
Section 3.3.4.




     (ii) In the event the Borrowers do not reimburse the Synthetic Issuer pursuant
to Section 2.6.2, the Administrative Agent shall withdraw (or cause to be
withdrawn) from the Synthetic Deposit Account the amount of such unreimbursed
Disbursement (and reflect in the Register the Synthetic Deposit Allocation of each
Synthetic Lender in the amount of such Synthetic Lender’s Synthetic Deposit
Percentage of such unreimbursed Disbursement) and make such amount available to the
Synthetic Issuer, and the Synthetic Account Balance shall be reduced by such amount.




     (iii) In the event either Borrower voluntarily decides to permanently reduce
the Synthetic Letter of Credit Commitment Amount pursuant to Section 2.2.1,
the Administrative Agent shall withdraw (or cause to be withdrawn) from the
Synthetic Deposit Account an amount equal to such reduction, and pay to each
Synthetic Lender an amount equal to the product of (A) such Lender’s Synthetic
Deposit Percentage multiplied by (B) the aggregate amount of such reduction, and the
Synthetic Account Balance shall be reduced by such amount.




     (iv) Upon the occurrence of the Synthetic Letter of Credit Commitment
Termination Date, all amounts in the Synthetic Deposit Account shall be returned to
the Synthetic Lenders based on such Synthetic Lender’s Synthetic Deposit



40









 







Percentage to the extent such amounts are not being used to Cash Collateralize
Synthetic Letter of Credit Outstandings.




     (d) Notwithstanding anything to the contrary in this Agreement, neither the
Administrative Agent, nor any of its sub-agents or Affiliates (other than in each case with
respect to its own willful misconduct or gross negligence) nor the Borrowers shall be liable
for any losses due to (i) the misappropriation of any Synthetic Deposit or Synthetic Deposit
Earnings or (ii) any delay or failure of the Synthetic Depository to distribute the
Synthetic Deposits or Synthetic Deposit Earnings or any portion thereof to the
Administrative Agent (or its sub-agent or Affiliate) or any Synthetic Lender, as applicable
(it being understood and agreed for greater certainty that this clause shall not limit any
obligation of the Borrowers hereunder to pay any Synthetic Participation Fee). Nothing in
this Agreement or any other Loan Document shall constitute or create (nor is there any
intention to constitute or create) any guarantee by the Administrative Agent, the Synthetic
Issuer or any other Person of the amount of Synthetic Deposit Earnings at any time, or of
any rate of return on the investment of any Synthetic Deposit held in the Synthetic Deposit
Account.




     (e) If the Synthetic Issuer is enjoined from taking any action referred to in
clause (c) of this Section, or if the Synthetic Issuer reasonably determines that,
by operation of law, it may reasonably be precluded or prohibited from taking any such
action, or if any Obligor or Synthetic Lender challenges in any legal proceeding any of the
acknowledgements, agreements or characterizations set forth in any clause of this Section,
then, in any such case (and so long as such event or condition shall be continuing), and
notwithstanding anything contained herein to the contrary, the Synthetic Issuer shall not be
required to issue, renew or extend any Synthetic Letter of Credit.




     (f) In the event any payment of a Synthetic Reimbursement Obligation shall be required
to be refunded by the Synthetic Issuer to the Borrowers after the return of the Synthetic
Deposits to the Synthetic Lenders as permitted hereunder, each Synthetic Lender agrees to
acquire and fund a participation in such refunded amount equal to the lesser of its
Synthetic Deposit Percentage thereof and the amount of its Synthetic Deposit that shall have
been so returned.



     SECTION 2.1.5 Synthetic Letters of Credit. From time to time on any Business Day
occurring on or after the Closing Date but five Business Days prior to the Synthetic Facility
Maturity Date, the relevant Synthetic Issuer agrees that it will, to the extent requested by either
Borrower,




     (i) issue one or more standby letters of credit (relative to such Synthetic
Issuer, its “Synthetic Letter of Credit”) for the account of the Borrowers
or any Subsidiary Guarantor in the Stated Amount requested by such Borrower on such
day; or




     (ii) extend the Stated Expiry Date of an existing Synthetic Letter of Credit
previously issued hereunder.



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     No Synthetic Issuer shall be permitted or required to issue any Synthetic Letter of Credit if,
after giving effect thereto, (i) the aggregate amount of all Synthetic Letter of Credit
Outstandings would exceed the Synthetic Letter of Credit Commitment Amount or (ii) the aggregate
amount of all Synthetic Letter of Credit Outstandings would exceed the Synthetic Account Balance.
Each Synthetic Letter of Credit shall provide for the payment of sight drafts, other written
demands for payment, or acceptances of usance drafts when presented for honor thereunder in
accordance with the terms thereof and when accompanied by the documents described therein.



     SECTION 2.2. Reduction of the Commitment Amounts. The Commitment Amounts are subject
to reduction from time to time as set forth below.



     SECTION 2.2.1. Optional. The Revolving Loan Borrower (or either Borrower, in the
case of the Synthetic Letter of Credit Commitment Amount) may, from time to time on any Business
Day occurring after the Closing Date, voluntarily reduce the amount of the Revolving Loan
Commitment Amount, the Swing Line Loan Commitment Amount, the Revolving Letter of Credit Commitment
Amount or the Synthetic Letter of Credit Commitment Amount on the Business Day so specified by such
Borrower; provided that, all such reductions shall require at least one Business Day’s
prior notice to the Administrative Agent and be permanent, and any partial reduction of any
Commitment Amount shall be in a minimum amount of $5,000,000 and in an integral multiple of
$1,000,000. Any optional or mandatory reduction of the Revolving Loan Commitment Amount pursuant
to the terms of this Agreement which reduces the Revolving Loan Commitment Amount below the sum of
(i) the Swing Line Loan Commitment Amount and (ii) the Revolving Letter of Credit Commitment Amount
shall result in an automatic and corresponding reduction of the Swing Line Loan Commitment Amount
and/or Revolving Letter of Credit Commitment Amount (as directed by the Revolving Loan Borrower in
a notice to the Administrative Agent delivered together with the notice of such voluntary reduction
in the Revolving Loan Commitment Amount) to an aggregate amount not in excess of the Revolving Loan
Commitment Amount, as so reduced, without any further action on the part of the Swing Line Lender
or any Issuer. In no event shall the Synthetic Letter of Credit Commitment Amount be reduced to an
amount that is less than the Synthetic Letter of Credit Outstandings.



     SECTION 2.3. Borrowing Procedures. Loans (other than Swing Line Loans) shall be made
by the Lenders in accordance with Section 2.3.1, Swing Line Loans shall be made by the
Swing Line Lender in accordance with Section 2.3.2 and Synthetic Deposits shall be made by
the Synthetic Lenders in accordance with Section 2.3.3.



     SECTION 2.3.1. Borrowing Procedure. In the case of Loans (other than Swing Line
Loans), by delivering a Borrowing Request to the Administrative Agent on or before 12:00 p.m. on a
Business Day, the Borrowers may from time to time irrevocably request, on not less than one
Business Day’s notice in the case of Base Rate Loans, or three Business Days’ notice in the case of
LIBO Rate Loans, and in either case not more than five Business Days’ notice, that a Borrowing be
made, in the case of LIBO Rate Loans, in a minimum amount of $5,000,000 and an integral multiple of
$1,000,000, in the case of Base Rate Loans, in a minimum amount of $1,000,000 and an integral
multiple of $500,000 or, in either case, in the unused amount of the applicable Commitment. On the
terms and subject to the conditions of this Agreement, each Borrowing shall be comprised of the
type of Loans, and shall be made on the Business Day,



42









 




specified in such Borrowing Request. In the case of Loans other than Swing Line Loans, on or
before 10:00 a.m. on such Business Day each Lender that has a Commitment to make the Loans being
requested shall deposit with the Administrative Agent same day funds in an amount equal to such
Lender’s Percentage of the requested Borrowing. Such deposit will be made to an account which the
Administrative Agent shall specify from time to time by notice to the Lenders. To the extent funds
are received from the Lenders, the Administrative Agent shall make such funds available to the
applicable Borrower by wire transfer to the accounts such Borrower shall have specified in its
Borrowing Request. No Lender’s obligation to make any Loan shall be affected by any other Lender’s
failure to make any Loan. Notwithstanding the foregoing, any Borrowing Request with respect to any
Loan required to be delivered prior to the Closing Date may be delivered by Acquisition Co.




     SECTION 2.3.2. Swing Line Loans; Participations, etc.




     (a) By telephonic notice to the Swing Line Lender on or before 12:00 noon on a Business
Day (followed (before the close of business on the same Business Day) by the delivery of a
confirming Borrowing Request), the Revolving Loan Borrower may from time to time irrevocably
request that Swing Line Loans be made by the Swing Line Lender in an aggregate minimum
principal amount of $500,000 and an integral multiple of $100,000. All Swing Line Loans
shall be made as Base Rate Loans and shall not be entitled to be converted into LIBO Rate
Loans. The proceeds of each Swing Line Loan shall be made available by the Swing Line
Lender to the Revolving Loan Borrower by wire transfer to the account the Revolving Loan
Borrower shall have specified in its notice therefor by the close of business on the
Business Day telephonic notice is received by the Swing Line Lender. Upon the making of
each Swing Line Loan, and without further action on the part of the Swing Line Lender or any
other Person, each Revolving Loan Lender (other than the Swing Line Lender) shall be deemed
to have irrevocably purchased, to the extent of its Revolving Loan Percentage, a
participation interest in such Swing Line Loan, and such Revolving Loan Lender shall, to the
extent of its Revolving Loan Percentage, be responsible for reimbursing within one Business
Day the Swing Line Lender for Swing Line Loans which have not been reimbursed by the
Revolving Loan Borrower in accordance with the terms of this Agreement.




     (b) If (i) any Swing Line Loan shall be outstanding for more than four Business Days,
(ii) any Swing Line Loan is or will be outstanding on a date when the Revolving Loan
Borrower requests that a Revolving Loan be made, or (iii) any Default shall occur and be
continuing, then each Revolving Loan Lender (other than the Swing Line Lender) irrevocably
agrees that it will, at the request of the Swing Line Lender, make a Revolving Loan (which
shall initially be funded as a Base Rate Loan) in an amount equal to such Lender’s Revolving
Loan Percentage of the aggregate principal amount of all such Swing Line Loans then
outstanding (such outstanding Swing Line Loans hereinafter referred to as the “Refunded
Swing Line Loans”). On or before 11:00 a.m. on the first Business Day following receipt
by each Revolving Loan Lender of a request to make Revolving Loans as provided in the
preceding sentence, each Revolving Loan Lender shall deposit in an account specified by the
Swing Line Lender the amount so requested in same day funds and such funds shall be applied
by the Swing Line Lender to repay the Refunded Swing Line Loans. At the time the Revolving
Loan Lenders make



43









 







the above referenced Revolving Loans the Swing Line Lender shall be deemed to have
made, in consideration of the making of the Refunded Swing Line Loans, Revolving Loans in an
amount equal to the Swing Line Lender’s Revolving Loan Percentage of the aggregate principal
amount of the Refunded Swing Line Loans. Upon the making (or deemed making, in the case of
the Swing Line Lender) of any Revolving Loans pursuant to this clause, the amount so funded
shall become an outstanding Revolving Loan and shall no longer be owed as a Swing Line Loan.
All interest payable with respect to any Revolving Loans made (or deemed made, in the case
of the Swing Line Lender) pursuant to this clause shall be appropriately adjusted to
reflect the period of time during which the Swing Line Lender had outstanding Swing Line
Loans in respect of which such Revolving Loans were made. Each Revolving Loan Lender’s
obligation to make the Revolving Loans referred to in this clause shall be absolute
and unconditional and shall not be affected by any circumstance, including (i) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have against the
Swing Line Lender, any Obligor or any Person for any reason whatsoever; (ii) the occurrence
or continuance of any Default; (iii) any adverse change in the condition (financial or
otherwise) of any Obligor; (iv) the acceleration or maturity of any Obligations or the
termination of any Commitment after the making of any Swing Line Loan; (v) any breach of any
Loan Document by any Person; or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.



     SECTION 2.3.3. Synthetic Deposits. Either Borrower may irrevocably request that
Synthetic Deposits be made on the Closing Date by the Synthetic Lenders by delivering a Borrowing
Request to the Administrative Agent on or prior the Closing Date.



     SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 12:00 p.m. on a Business
Day, the Borrowers may from time to time irrevocably elect, on not less than one Business Day’s
notice in the case of Base Rate Loans, or three Business Days’ notice in the case of LIBO Rate
Loans, and in either case not more than five Business Days’ notice, that all, or any portion in an
aggregate minimum amount of $1,000,000 and an integral multiple of $1,000,000 be, in the case of
Base Rate Loans, converted into LIBO Rate Loans or be, in the case of LIBO Rate Loans, converted
into Base Rate Loans or continued as LIBO Rate Loans (in the absence of delivery of a
Continuation/Conversion Notice with respect to any LIBO Rate Loan at least three Business Days (but
not more than five Business Days) before the last day of the then current Interest Period with
respect thereto, such LIBO Rate Loan shall, on such last day, automatically convert to a Base Rate
Loan); provided that (x) each such conversion or continuation shall be pro rated among the
applicable outstanding Loans of all Lenders that have made such Loans, and (y) no portion of the
outstanding principal amount of any Loans may be continued as, or be converted into, LIBO Rate
Loans when any Event of Default has occurred and is continuing.



     SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its obligation to
make, continue or convert LIBO Rate Loans hereunder by causing one of its foreign branches or
Affiliates (or an international banking facility created by such Lender) to make or maintain such
LIBO Rate Loan; provided that, such LIBO Rate Loan shall nonetheless be deemed to have been
made and to be held by such Lender, and the obligation of the Borrowers to repay such LIBO Rate
Loan shall nevertheless be to such Lender for the account of such foreign branch, Affiliate



44









 




or international banking facility. In addition, each Borrower hereby consents and agrees
that, for purposes of any determination to be made for purposes of Section 4.1,
4.2, 4.3 or 4.4, it shall be conclusively assumed that each Lender elected
to fund all LIBO Rate Loans by purchasing Dollar deposits in its LIBOR Office’s interbank
eurodollar market.




     SECTION 2.6. Issuance Procedures. By delivering to the applicable Issuer and the
Administrative Agent an Issuance Request on or before 12:00 p.m. on a Business Day, the applicable
Borrower (or, in the case of any Issuance Request to be delivered prior to the Closing Date,
Acquisition Co.) may from time to time irrevocably request on not less than three nor more than ten
Business Days’ notice, in the case of an initial issuance of a Letter of Credit and not less than
three Business Days’ prior notice, in the case of a request for the extension of the Stated Expiry
Date of a standby Letter of Credit (in each case, unless a shorter notice period is agreed to by
the Issuer, in its sole discretion), that an Issuer issue, or extend the Stated Expiry Date of, a
Letter of Credit in such form as may be requested by such Borrower and approved by such Issuer,
solely for the purposes described in Section 7.1.7. Each Letter of Credit shall by its
terms be stated to expire on a date (its “Stated Expiry Date”) no later than the earlier to
occur of (i) the Revolving Loan Commitment Termination Date or Synthetic Letter of Credit
Commitment Termination Date, as applicable or (ii) (unless otherwise agreed to by an Issuer, in its
sole discretion) one year from the date of its issuance. Each Issuer will make available to the
beneficiary thereof the original of the Letter of Credit which it issues.



     SECTION 2.6.1. Other Lenders’ Participation. (a) Upon the issuance of each Revolving
Letter of Credit, and without further action, each Revolving Loan Lender (other than the applicable
Revolving Issuer) shall be deemed to have irrevocably purchased, to the extent of its Revolving
Loan Percentage, a participation interest in such Revolving Letter of Credit (including the
Contingent Liability and any Revolving Reimbursement Obligation with respect thereto) (each a
“Revolving Letter of Credit Participation Obligation”), and such Revolving Loan Lender
shall, to the extent of its Revolving Loan Percentage, reimburse the applicable Revolving Issuer
within one Business Day following receipt of a notice pursuant to this Section for Revolving
Reimbursement Obligations which have not been reimbursed by the Revolving Loan Borrower in
accordance with Section 2.6.3. In addition, such Revolving Loan Lender shall, to the
extent of its Revolving Loan Percentage, be entitled to receive a ratable portion of the Revolving
Letter of Credit fees payable pursuant to Section 3.3.3 with respect to each Revolving
Letter of Credit (other than the issuance fees payable to the Revolving Issuer of such Revolving
Letter of Credit pursuant to the last sentence of Section 3.3.3) and of interest payable
pursuant to Section 3.2 with respect to any Revolving Reimbursement Obligation. To the
extent that any Revolving Loan Lender has reimbursed any Revolving Issuer for a Disbursement, such
Revolving Loan Lender shall be entitled to receive its ratable portion of any amounts subsequently
received (from the Revolving Loan Borrower or otherwise) in respect of such Disbursement.



     (b) Upon the issuance of each Synthetic Letter of Credit, and without further action, each
Synthetic Lender shall be deemed to have irrevocably purchased, to the extent of its Synthetic
Deposit Percentage, a participation interest in such Synthetic Letter of Credit (including the
Contingent Liability or Synthetic Reimbursement Obligation with respect thereto) (each, a
“Synthetic Participation Obligation”). Each Synthetic Lender’s Synthetic Participation
Obligation shall be cash collateralized (as provided in Section 2.1.4), in favor of the
Synthetic Issuer, by such Synthetic Lender’s Synthetic Deposit. Such Synthetic Lender’s Synthetic



45









 




Deposit shall be available for withdrawal by the Administrative Agent, in the amounts
contemplated by and otherwise in accordance with clause (c)(ii) of Section 2.1.4,
to reimburse the Synthetic Issuer for Synthetic Reimbursement Obligations.




     SECTION 2.6.2. Disbursements. An Issuer will notify the applicable Borrower and the
Administrative Agent promptly of the presentment for payment of any Letter of Credit issued by such
Issuer, together with notice of the date (the “Disbursement Date”) such payment shall be
made (each such payment, a “Disbursement”). Subject to the terms and provisions of such
Letter of Credit and this Agreement, the applicable Issuer shall make such payment to the
beneficiary (or its designee) of such Letter of Credit. Prior to 12:00 p.m. on the first Business
Day following the Disbursement Date, the Borrowers will reimburse the Administrative Agent, for the
account of the applicable Issuer, for all amounts which such Issuer has disbursed under such Letter
of Credit, together with interest thereon at a rate per annum equal to the rate per annum then in
effect for Base Rate Loans plus the then Applicable Margin for such Loans for the period from the
Disbursement Date through the date of such reimbursement. Without limiting in any way the
foregoing and notwithstanding anything to the contrary contained herein or in any separate
application for any Letter of Credit, the Revolving Loan Borrower (in respect of Revolving Letters
of Credit) and each Borrower (in respect of Synthetic Letters of Credit) hereby acknowledges and
agrees that it shall be obligated to reimburse the applicable Issuer upon each Disbursement of a
Letter of Credit, and it shall be deemed to be the obligor for purposes of each such Letter of
Credit issued hereunder (whether the account party on such Letter of Credit is a Borrower or a
Subsidiary Guarantor).



     SECTION 2.6.3. Reimbursement. The obligation (a “Revolving Reimbursement
Obligation” in the case of a drawing under a Revolving Letter of Credit and a “Synthetic
Reimbursement Obligation” in the case of a drawing under a Synthetic Letter of Credit) of the
Borrowers under Section 2.6.2 to reimburse an Issuer with respect to each Disbursement
(including interest thereon), and, upon the failure of the Borrowers to reimburse an Issuer, each
Revolving Loan Lender’s obligation under Section 2.6.1 to pay to such Revolving Issuer its
applicable Percentage of any Disbursements and the right of the Synthetic Issuer to be paid with
amounts on deposit in the Synthetic Deposit Account pursuant to clause (c)(ii) of
Section 2.1.4, shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which the Borrowers or such Lender,
as the case may be, may have or have had against such Issuer or any Lender, including any defense
based upon the failure of any Disbursement to conform to the terms of the applicable Letter of
Credit (if, in such Issuer’s good faith opinion, such Disbursement is determined to be appropriate)
or any non-application or misapplication by the beneficiary of the proceeds of such Letter of
Credit and irrespective of any withdrawal by the Administrative Agent from the Synthetic Deposit
Account to repay unreimbursed Synthetic Reimbursement Obligations; provided that, after
paying in full its Reimbursement Obligation hereunder, nothing herein shall adversely affect the
right of the Borrowers or such Lender, as the case may be, to commence any proceeding against an
Issuer for any wrongful Disbursement made by such Issuer under a Letter of Credit as a result of
acts or omissions constituting gross negligence or willful misconduct on the part of such Issuer.



     SECTION 2.6.4. Deemed Disbursements. (a) Upon the occurrence and during the
continuation of any Default under Section 8.1.9 or upon notification by the Administrative
Agent (acting at the direction of the Required Lenders) to the Revolving Loan Borrower of its



46









 




obligations under this Section, following the occurrence and during the continuation of any
other Event of Default,





     (i) the aggregate Stated Amount of all Revolving Letters of Credit shall,
without demand upon or notice to the Revolving Loan Borrower or any other Person, be
deemed to have been paid or disbursed by the applicable Revolving Issuer of such
Revolving Letters of Credit (notwithstanding that such amount may not in fact have
been paid or disbursed); and




     (ii) the Revolving Loan Borrower shall be immediately obligated to reimburse
such Revolving Issuer for the amount deemed to have been so paid or disbursed by
such Revolving Issuer.




     (b) Upon the occurrence and during the continuation of any Default under
Section 8.1.9 or upon notification by the Administrative Agent (acting at the
direction of the Required Lenders) to either Borrower of its obligations under this Section,
following the occurrence and during the continuation of any other Event of Default,




     (i) the aggregate Stated Amount of all Synthetic Letters of Credit shall,
without demand upon or notice to either Borrower or any other Person, be deemed to
have been paid or disbursed by the applicable Synthetic Issuer of such Synthetic
Letters of Credit (notwithstanding that such amount may not in fact have been paid
or disbursed); and




     (ii) the Borrowers shall be immediately obligated to reimburse such Synthetic
Issuer for the amount deemed to have been so paid or disbursed by such Synthetic
Issuer.




     (c) Amounts payable by the Borrowers pursuant to this Section shall be deposited in
immediately available funds with (or at the direction of) the Administrative Agent and held
as collateral security for the Reimbursement Obligations. When all Defaults giving rise to
the deemed disbursements under this Section have been cured or waived the Administrative
Agent shall return to the Borrowers all amounts then on deposit with the Administrative
Agent pursuant to this Section which have not been applied to the satisfaction of the
Reimbursement Obligations.



     SECTION 2.6.5. Nature of Reimbursement Obligations. The Borrowers, each other
Obligor and, to the extent set forth in Section 2.6.1, each Revolving Loan Lender and
Synthetic Lender shall assume all risks of the acts, omissions or misuse of any Letter of Credit by
the beneficiary thereof. No Issuer (except to the extent of its own gross negligence or willful
misconduct) shall be responsible for:




     (a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any
Letter of Credit or any document submitted by any party in connection with the application
for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged;



47









 






     (b) the form, validity, sufficiency, accuracy, genuineness or legal effect of any
instrument transferring or assigning or purporting to transfer or assign a Letter of Credit
or the rights or benefits thereunder or the proceeds thereof in whole or in part, which may
prove to be invalid or ineffective for any reason;




     (c) failure of the beneficiary to comply fully with conditions required in order to
demand payment under a Letter of Credit;




     (d) errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise; or




     (e) any loss or delay in the transmission or otherwise of any document or draft
required in order to make a Disbursement under a Letter of Credit.


None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers
granted to any Issuer or any Lender hereunder. In furtherance and not in limitation or derogation
of any of the foregoing, any action taken or omitted to be taken by an Issuer in good faith (and
not constituting gross negligence or willful misconduct) shall be binding upon each Obligor and
each such Secured Party, and shall not put such Issuer under any resulting liability to any Obligor
or any Secured Party, as the case may be.




     SECTION 2.7. Register; Notes. The Register shall be maintained on the following
terms.




     (a) Each Borrower hereby designates the Administrative Agent to serve as the Borrowers’
agent, solely for the purpose of this clause, to maintain a register (the
“Register”) on which the Administrative Agent will record each Lender’s Commitment,
the Loans made by each Lender, the Synthetic Deposit Allocations of each Synthetic Lender,
and each repayment in respect of the principal amount of the Loans, annexed to which the
Administrative Agent shall retain a copy of each Lender Assignment Agreement delivered to
the Administrative Agent pursuant to Section 11.11. Failure to make any
recordation, or any error in such recordation, shall not affect any Obligor’s Obligations.
The entries in the Register shall be conclusive, in the absence of manifest error, and the
Borrowers, the Administrative Agent and the Lenders shall treat each Person in whose name a
Loan or Synthetic Deposit is registered (or, if applicable, to which a Note has been issued)
as the owner thereof for the purposes of all Loan Documents, notwithstanding notice or any
provision herein to the contrary. Any assignment or transfer of a Commitment, the Loans or
Synthetic Deposits made pursuant hereto shall be registered in the Register only upon
delivery to the Administrative Agent of a Lender Assignment Agreement that has been executed
by the requisite parties pursuant to Section 11.11. No assignment or transfer of a
Lender’s Commitment, Loans or Synthetic Deposits shall be effective unless such assignment
or transfer shall have been recorded in the Register by the Administrative Agent as provided
in this Section.




     (b) Each Borrower agrees that, upon the request to the Administrative Agent by any
Lender, each Borrower will execute and deliver to such Lender a Note evidencing the Loans
made to such Borrower by, and payable to the order of, such Lender in a



48









 







maximum principal amount equal to such Lender’s Percentage of the original applicable
Commitment Amount. Each Borrower hereby irrevocably authorizes each Lender to make (or
cause to be made) appropriate notations on the grid attached to such Lender’s Note (or on
any continuation of such grid), which notations, if made, shall evidence, inter alia, the
date of, the outstanding principal amount of, and the interest rate and Interest Period
applicable to the Loans evidenced thereby. Such notations shall, to the extent not
inconsistent with notations made by the Administrative Agent in the Register, be conclusive
and binding on each Obligor absent manifest error; provided that the failure of any
Lender to make any such notations shall not limit or otherwise affect any Obligations of any
Obligor.



ARTICLE III

REPAYMENTS, PREPAYMENTS, INTEREST AND FEES




     SECTION 3.1. Repayments and Prepayments; Application. Each Borrower agrees that the
Loans shall be repaid and prepaid pursuant to the following terms.



     SECTION 3.1.1. Repayments and Prepayments. The Borrowers shall repay in full the
unpaid principal amount of each Loan upon the applicable Stated Maturity Date therefor. Prior
thereto, payments and prepayments of the Loans and refunding of the Synthetic Deposits shall or may
be made as set forth below.




     (a) From time to time on any Business Day,




     (i) the Borrowers may make a voluntary prepayment, in whole or in part, of the
outstanding principal amount of any Loans (other than Swing Line Loans);
provided that, if such prepayment occurs during the period from the Closing
Date through (and including) the first anniversary of the Closing Date, the
Borrowers shall have paid a prepayment premium of 1% of the principal amount so
prepaid in connection with any voluntary prepayment of Term Loans; provided,
further, that, (A) any such prepayment of the Term Loans shall be made
pro rata among Term Loans of the same type and, if applicable,
having the same Interest Period of all Lenders that have made such Term Loans
(applied to the remaining amortization payments for the Term Loans in such amounts
as the Term Loan Borrower shall determine) and any such prepayment of Revolving
Loans shall be made pro rata among the Revolving Loans of the same
type and, if applicable, having the same Interest Period of all Lenders that have
made such Revolving Loans; (B) all such voluntary prepayments shall, in the case of
Base Rate Loans, require at least one but no more than five Business Days’ prior
notice and, in the case of LIBO Rate Loans, at least three but no more than five
Business Days’ prior notice, in each case to the Administrative Agent; and (C) all
such voluntary partial prepayments shall be, in the case of LIBO Rate Loans, in an
aggregate minimum amount of $5,000,000 and an integral multiple of $1,000,000 and,
in the case of Base Rate Loans, in an aggregate minimum amount of $1,000,000 and an
integral multiple of $100,000;



49









 






     (ii) the Borrowers may make a voluntary prepayment, in whole or in part, of the
outstanding principal amount of any Swing Line Loans; provided that (A) all
such voluntary prepayments shall require prior telephonic notice to the Swing Line
Lender on or before 1:00 p.m. on the day of such prepayment (such notice to be
confirmed in writing within 24 hours thereafter); and (B) all such voluntary partial
prepayments shall be in an aggregate minimum amount of $200,000 and an integral
multiple of $100,000; and




     (iii) subject to clause (b)(ii) of this Section, the Borrowers may
cause all or a portion of the Synthetic Deposits to be returned to the Synthetic
Lenders by reducing the Synthetic Letter of Credit Commitment Amount pursuant to
Section 2.2.1; provided that (A) all such voluntary reductions of
the Synthetic Deposits shall require at least one but no more than five Business
Days’ prior notice to the Administrative Agent, (B) all such voluntary partial
returns of the Synthetic Deposits shall be in an aggregate minimum amount of
$5,000,000 and an integral multiple of $1,000,000 and (C) the aggregate amount of
such return pursuant to this clause (iii) shall not exceed the excess of (x)
the aggregate amount of Synthetic Deposits held in the Synthetic Deposit Account
immediately prior to such reduction, over (y) the Synthetic Letter of Credit
Commitment Amount immediately after giving effect to such reduction.




     (b) (i) On each date when the sum of (A) the aggregate outstanding principal amount of
all Revolving Loans and Swing Line Loans and (B) the aggregate amount of all Revolving
Letter of Credit Outstandings exceeds the Revolving Loan Commitment Amount (as it may be
reduced from time to time pursuant to this Agreement), the Revolving Loan Borrower shall
make a mandatory prepayment of Revolving Loans or Swing Line Loans (or both) and, if
necessary, Cash Collateralize all Revolving Letter of Credit Outstandings, in an aggregate
amount equal to such excess.




     (ii) On each date when the aggregate amount of all Synthetic Letter of Credit
Outstandings exceeds the Synthetic Account Balance or the Synthetic Letter of Credit
Commitment Amount, the Borrowers shall immediately make a mandatory deposit in the
Synthetic Deposit Account to Cash Collateralize all Synthetic Letter of Credit
Outstandings in an aggregate amount equal to such excess.




     (iii) In the event the Administrative Agent has made a withdrawal from the
Synthetic Deposit Account to repay unreimbursed Synthetic Reimbursement Obligations,
the Borrowers shall immediately make a mandatory deposit in the Synthetic Deposit
Account equal to such withdrawn amount.




     (c) On each Quarterly Payment Date commencing September 30, 2007, the Term Loan
Borrower shall make a scheduled repayment of the aggregate outstanding principal amount, if
any, of all Term Loans in the amount equal to (i) 0.25% of the original aggregate
outstanding principal amount with respect to each Quarterly Payment Date occurring on or
prior to September 30, 2013 and (ii) 23.5% of the original aggregate



50









 







outstanding principal amount with respect to each Quarterly Payment Date thereafter
(with the balance due on the Stated Maturity Date).




     (d) Concurrently with the receipt by Holdings or any of its Subsidiaries of any Net
Equity Proceeds, the Borrowers shall make a mandatory prepayment of the outstanding Loans in
an amount equal to 75% of such Net Equity Proceeds, to be applied as set forth in
Section 3.1.2.




     (e) Concurrently with the receipt by Holdings or any of its Subsidiaries of any Net
Debt Proceeds, the Borrowers shall make a mandatory prepayment of the Loans in an amount
equal to 100% of such Net Debt Proceeds, to be applied as set forth in
Section 3.1.2.




     (f) Within 5 Business Days of receipt of any Net Disposition Proceeds or Net Casualty
Proceeds by Holdings or any of its Subsidiaries, the Borrowers shall (subject to the next
proviso) deliver to the Administrative Agent a calculation of the amount of such proceeds,
and, to the extent the aggregate amount of such proceeds received exceeds $5,000,000 in any
Fiscal Year or $25,000,000 in the aggregate since the Closing Date, the Borrowers shall make
a mandatory prepayment of the Loans in an amount equal to 100% of such excess Net
Disposition Proceeds or Net Casualty Proceeds; provided that upon written notice by
the Term Loan Borrower to the Administrative Agent not more than 5 Business Days following
receipt of any Net Disposition Proceeds or Net Casualty Proceeds (so long as no Event of
Default has occurred and is continuing), such proceeds may be retained by Holdings and its
Subsidiaries (and be excluded from the prepayment requirements of this clause (f))
if (i) the Term Loan Borrower informs the Administrative Agent in such notice of its good
faith intention to apply (or cause one or more of the Subsidiary Guarantors to apply) such
Net Disposition Proceeds or Net Casualty Proceeds to the acquisition of fixed or capital
assets or properties in the U.S. consistent with the businesses permitted to be conducted
pursuant to Section 7.2.1 (including by way of merger, acquisition or other
permitted Investment pursuant to Section 7.2.5), and (ii) within 365 days following
the receipt of such Net Disposition Proceeds or Net Casualty Proceeds, such proceeds are
applied to such acquisition or are contractually committed to be applied to such
acquisition. The amount of such Net Disposition Proceeds or Net Casualty Proceeds unused
after such 365 day period (or which cease to be so contractually committed after such
period) shall be applied to prepay the Loans as set forth in Section 3.1.2. At any
time after receipt of any such Net Disposition Proceeds or Net Casualty Proceeds in excess
of $5,000,000 in any Fiscal Year or $25,000,000 in the aggregate since the Closing Date, but
prior to the application thereof to a mandatory prepayment or the acquisition of other
assets or properties as described above, upon the request by the Administrative Agent to the
Term Loan Borrower during the continuance of a Default, the Borrowers shall deposit (or
cause to be deposited) an amount equal to such Net Disposition Proceeds into a cash
collateral account maintained with (or, at the Administrative Agent’s discretion, on behalf
of) (and subject to documentation reasonably satisfactory to) the Administrative Agent for
the benefit of the Secured Parties (and over which the Administrative Agent shall have a
first priority perfected Lien) pending application as a prepayment or to be released as
requested by the Term Loan Borrower in respect of such acquisition. Amounts deposited in
such cash collateral



51









 







account shall be invested in Cash Equivalent Investments, as directed by the Term Loan
Borrower.




     (g) For each Fiscal Year (beginning with the close of the 2007 Fiscal Year), not later
than five days after the date on which the financial statements of Holdings referred to in
clause (b) of Section 7.1.1 for such Fiscal Year are required to be
delivered to the Lenders, the Borrowers shall make a mandatory prepayment of the Loans in
an amount equal to 75% of the Excess Cash Flow (if any) for such Fiscal Year, less any
voluntary prepayments of Loans made during such Fiscal Year (excluding prepayments of
Revolving Loans except to the extent any such prepayment is accompanied by a permanent
reduction of the Revolving Loan Commitments), to be applied as set forth in
Section 3.1.2; provided that the amount of such prepayment required pursuant
to this clause (g) shall be reduced to an amount equal to (i) 50% of the Excess Cash
Flow (if any) for any applicable Fiscal Year if the Leverage Ratio on the last day of the
last Fiscal Quarter of such Fiscal Year was less than or equal to 3.75:1.00 and (ii) 25% of
the Excess Cash Flow (if any) for any applicable Fiscal Year if the Leverage Ratio on the
last day of the last Fiscal Quarter of such Fiscal Year was less than or equal to 2.75:1.00,
provided, further that the payment which would otherwise be due pursuant to
this Section 3.1.1(g) in Fiscal Year 2010 (with respect to Fiscal Year 2009) shall be
reduced by $75,000,000 (but not below zero), and the payment which would otherwise be due
pursuant to this Section 3.1.1(g) in Fiscal Year 2011 (with respect to Fiscal Year 2010)
shall be reduced by $40,000,000 (but not below zero). [Amendment No. 2, Section 2.12]




     (h) Immediately upon any acceleration of the Stated Maturity Date of any Loans pursuant
to Section 8.2 or Section 8.3, the Borrowers shall repay all the Loans,
unless, pursuant to Section 8.3, only a portion of all the Loans is so accelerated
(in which case the portion so accelerated shall be so repaid).




     (i) Concurrently with the receipt by Holdings or any of its Subsidiaries of any
proceeds from (x) the initial funding by unaffiliated purchasers or lenders of [Amendment
No. 1, Section 1.5] any Qualified Receivables Transaction with an aggregate financing
commitment in excess of $210,000,000, but not any replacement or refinancing thereof
(whether immediate or delayed) or any reinvestment purchases, and any initial funding by
unaffiliated purchasers or lenders of an increase in the amount of aggregate financing
commitments (or purchase limit or similar concept) under all Qualified Receivables
Transactions with an aggregate financing commitment in excess of $210,000,000, [Amendment
No. 1, Section 1.5] (y) the Motor Vehicle Financing or (z) any prepayment of principal on
the Shareholder Loan (which in the case of clauses (x) and (y) above shall
be net of all reasonable and customary legal, investment banking, brokerage, accounting and
other professional fees, sales commission expenses, costs and disbursements (including
without limitation any fees or expenses paid pursuant to Section 4.2 of Amendment No. 1 to
this Credit Agreement, dated July 29, 2008) [Amendment No. 1, Section 1.5] actually incurred
in connection with such transaction), the Borrowers shall make (or cause to be made) a
mandatory prepayment of the outstanding Loans in an amount equal to 100% of such proceeds,
in the case of any Motor Vehicle Financing or prepayment of principal of the Shareholder
Loan, or 100% of the proceeds in excess of



52









 







$210,000,000 in the case of any Qualified Receivables Transaction, [Amendment No. 1,
Section 1.5] to be applied as set forth in Section 3.1.2.




     (j) If the Cash Balance as at the last day of any Fiscal Quarter exceeds the Maximum
Cash Balance, such excess shall, within ten (10) calendar days of such date, be applied as a
mandatory reduction of the outstanding Revolving Loans. [Amendment No. 2, Section 2.12]


Each prepayment of any Loans made pursuant to this Section shall be without premium or penalty,
except as may be required by clause (a) above or Section 4.4, provided
that, notwithstanding the foregoing, if a mandatory prepayment of LIBO Rate Loans is required
pursuant to clause (g) or clause (j) of Section 3.1.1, on a date that is
not an Interest Payment Date, the Borrowers may delay such mandatory prepayment until the next
succeeding Interest Payment Date so long as the Borrowers deposit an amount equal to such mandatory
prepayment into a cash collateral account maintained with (or, at the Administrative Agent’s
discretion, on behalf of) (and subject to documentation reasonably satisfactory to) the
Administrative Agent for the benefit of the Secured Parties (and over which the Administrative
Agent shall have a first priority perfected Lien). [Amendment No. 2, Section 2.12]




     SECTION 3.1.2. Application. Amounts prepaid pursuant to Section 3.1.1 shall
be applied as set forth in this Section.




     (a) Subject to clause (b), each prepayment or repayment of the principal of the
Loans shall be applied, to the extent of such prepayment or repayment, first, to the
principal amount thereof being maintained as Base Rate Loans, and second, subject to the
terms of Section 4.4, to the principal amount thereof being maintained as LIBO Rate
Loans.




     (b) Each prepayment of the Loans made pursuant to clauses (c), (d),
(e), (f), (g) and (i) of Section 3.1.1 shall be
applied (i) first, pro rata to a mandatory prepayment of the outstanding principal amount of
all Term Loans (applied first to the next eight scheduled installments thereof in forward
chronological order and, thereafter, in inverse order to the remaining scheduled
installments, and (ii) second, once all Term Loans have been repaid in full, to the
repayment of any outstanding Revolving Loans until paid in full, and then to Cash
Collateralize Letters of Credit Outstandings.




     (c) Each prepayment of the Revolving Loans made pursuant to clause (j) of Section
3.1.1 shall be applied to the repayment of any outstanding Revolving Loans (without a
reduction of the Revolving Loan Commitments) until paid in full. To the extent the amount
required to prepay the Revolving Loans pursuant to Section 3.1.1(j) exceeds the amount of
outstanding Revolving Loans at such time, such excess shall be retained by the Borrowers.
[Amendment No. 2, Section 2.13]



     SECTION 3.2. Interest Provisions. Interest on the outstanding principal amount of
the Loans shall accrue and be payable in accordance with the terms set forth below.



53









 





     SECTION 3.2.1. Rates. Pursuant to an appropriately delivered Borrowing Request or
Continuation/Conversion Notice, the Borrowers may elect that the Loans comprising a Borrowing
accrue interest at a rate per annum:




     (a) on that portion maintained from time to time as a Base Rate Loan, equal to the sum
of the Alternate Base Rate from time to time in effect plus the Applicable Margin;
provided that Swing Line Loans shall always accrue interest at the Alternate Base
Rate plus the then effective Applicable Margin for Revolving Loans maintained as Base Rate
Loans; and




     (b) on that portion maintained as a LIBO Rate Loan, during each Interest Period
applicable thereto, equal to the sum of the LIBO Rate (Reserve Adjusted) for such Interest
Period plus the Applicable Margin.


All LIBO Rate Loans shall bear interest from and including the first day of the applicable Interest
Period to (but not including) the last day of such Interest Period at the interest rate determined
as applicable to such LIBO Rate Loan.




     SECTION 3.2.2. Post-Default Rates. After the date any principal amount of any Loan,
any Synthetic Participation Fee or any Reimbursement Obligation is due and payable (whether on the
Stated Maturity Date, upon acceleration or otherwise), or after any other monetary Obligation of
the Borrowers shall have become due and payable or after the occurrence of any Event of Default
described in clauses (a) through (d) of Section 8.1.9, the Borrowers shall
jointly and severally be obligated to pay, but only to the extent permitted by law, interest (after
as well as before judgment) on such amounts at a rate per annum equal to (i) in the case of overdue
principal on any Loan or any overdue Synthetic Participation Fee, the rate of interest that
otherwise would be applicable to such Loan or Synthetic Participation Fee plus 2% per annum; and
(ii) in the case of overdue interest, fees, and other monetary Obligations, the Alternate Base Rate
plus 2% per annum.



     SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be payable by the
Borrowers, without duplication:




     (a) on the Stated Maturity Date therefor;




     (b) on the date of any payment or prepayment, in whole or in part, of principal
outstanding on such Loan on the principal amount so paid or prepaid;




     (c) with respect to Base Rate Loans, on each Quarterly Payment Date occurring after the
Closing Date;




     (d) with respect to LIBO Rate Loans, on the last day of each applicable Interest Period
(and, if such Interest Period shall exceed three months, on the date occurring on each
three-month interval occurring after the first day of such Interest Period);



54









 






     (e) with respect to any Base Rate Loans converted into LIBO Rate Loans on a day when
interest would not otherwise have been payable pursuant to clause (c), on the date
of such conversion; and




     (f) on that portion of any Loans the Stated Maturity Date of which is accelerated
pursuant to Section 8.2 or Section 8.3, immediately upon such acceleration.


Interest accrued on Loans or other monetary Obligations after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise) shall be payable upon
demand.




     SECTION 3.3. Fees. The Borrowers, jointly and severally, agree to pay the fees set
forth below. All such fees shall be non-refundable.



     SECTION 3.3.1. Commitment Fee. The Borrowers jointly and severally agree to pay to
the Administrative Agent for the account of each Lender, for the period (including any portion
thereof when any of its Commitments are suspended by reason of any Borrower’s inability to satisfy
any condition of Article V) commencing on the Closing Date and continuing through the
applicable Commitment Termination Date, a commitment fee in an amount equal to 1.00% [Amendment No.
2, Section 2.14] per annum, in each case on such Lender’s Percentage of the sum of the average
daily unused portion of the applicable Commitment Amount (net of Revolving Letter of Credit
Outstandings, in the case of the Revolving Loan Commitment Amount). All commitment fees payable
pursuant to this Section shall be calculated on a year comprised of 360 days and payable by the
Borrowers in arrears on the Closing Date and thereafter on each Quarterly Payment Date, commencing
with the first Quarterly Payment Date following the Closing Date, and on the Revolving Loan
Commitment Termination Date. The principal amount of outstanding Swing Line Loans shall not
constitute usage of the Revolving Loan Commitment with respect to the calculation of commitment
fees to be paid by the Borrowers to the Lenders.



     SECTION 3.3.2. Administrative Agent’s Fee. The Borrowers agree to pay to the
Administrative Agent, for its own account, the fees in the amounts and on the dates set forth in
the Fee Letter.



     SECTION 3.3.3. Letter of Credit Fees. The Borrowers, jointly and severally, agree to
pay to the Administrative Agent, for the pro rata account of the applicable Revolving Issuer and
each Revolving Loan Lender, a Revolving Letter of Credit fee in a per annum amount equal to the
Applicable Margin then in effect with respect to LIBO Rate Loans, multiplied by the Stated Amount
of each such Revolving Letter of Credit, such fees being payable quarterly in arrears on each
Quarterly Payment Date following the date of issuance of each Revolving Letter of Credit and on
the Revolving Loan Commitment Termination Date. The Borrowers, jointly and severally, further
agree to pay to the applicable Issuer quarterly in arrears on each Quarterly Payment Date following
the date of issuance of each Revolving Letter of Credit and on the Revolving Loan Commitment
Termination Date an issuance and fronting fee as agreed to by the Borrowers and such Issuer.



55









 





     SECTION 3.3.4. Synthetic Letter of Credit Fees. From the Closing Date, a fee (the
“Synthetic Participation Fee”) will accrue in respect of the Synthetic Deposits of the
Synthetic Lenders, which fee shall be calculated as follows: (i) for each relevant Investment
Period for such Synthetic Deposits, the product of (x) the Benchmark Return for such Investment
Period multiplied by (y) the average daily amount of the Synthetic Letter of Credit
Commitment Amount for such Investment Period (whether or not such Commitment is used or otherwise
available), less (ii) the amount of Synthetic Deposit Earnings for such Investment Period.
The Borrowers, jointly and severally, agree to pay the Synthetic Participation Fee to the
Administrative Agent, for the pro rata account of the Synthetic Lenders (determined on the basis of
their respective Synthetic Deposit Amounts), without duplication, on (a) the Stated Maturity Date
for such Synthetic Deposit, (b) the date of any return of a Synthetic Deposit pursuant to
clause (a)(iii) of Section 3.1.1 on the amount of such deemed Synthetic Deposits so
returned, and (c) the last day of each Investment Period. In addition, within two Business Days of
any date set forth in the preceding sentence, the Administrative Agent shall pay (or cause to be
paid) to each Synthetic Lender, on the same pro rata basis for any applicable Investment Period as
set forth above in this Section, the Synthetic Deposit Earnings as of the date set forth in the
preceding sentence for such Investment Period.



ARTICLE IV

CERTAIN LIBO RATE AND OTHER PROVISIONS




     SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall determine (which
determination shall, upon notice thereof to the Term Loan Borrower and the Administrative Agent, be
conclusive and binding on the Borrowers) that the introduction of or any change in or in the
interpretation of any law makes it unlawful, or any Governmental Authority asserts that it is
unlawful, for such Lender to make or continue any Loan as, or to convert any Loan into, a LIBO Rate
Loan, the obligations of such Lender to make, continue or convert any such LIBO Rate Loan shall,
upon such determination, forthwith be suspended until such Lender shall notify the Administrative
Agent that the circumstances causing such suspension no longer exist, and all outstanding LIBO Rate
Loans payable to such Lender shall automatically convert into Base Rate Loans at the end of the
then current Interest Periods with respect thereto or sooner, if required by such law or assertion.



     SECTION 4.2. Deposits Unavailable. If the Administrative Agent shall have determined
that




     (a) Dollar deposits in the relevant amount and for the relevant Interest Period are not
available to it in its relevant market; or




     (b) by reason of circumstances affecting its relevant market, adequate means do not
exist for ascertaining the interest rate applicable hereunder to LIBO Rate Loans;


then, upon notice from the Administrative Agent to the Term Loan Borrower and the Lenders, the
obligations of all Lenders under Section 2.3 and Section 2.4 to make or continue
any Loans as, or to convert any Loans into, LIBO Rate Loans shall forthwith be suspended until the
Administrative Agent shall notify the Term Loan Borrower and the Lenders that the circumstances
causing such suspension no longer exist.







56









 








     SECTION 4.3. Increased LIBO Rate Loan Costs, etc. The Borrowers, jointly and
severally, agree to reimburse each Lender and Issuer for any increase in the cost to such Lender or
Issuer of, or any reduction in the amount of any sum receivable by such Secured Party in respect
of, such Secured Party’s Commitments and the making of Credit Extensions hereunder (including the
making, continuing or maintaining (or of its obligation to make or continue) any Loans as, or of
converting (or of its obligation to convert) any Loans into, LIBO Rate Loans) or such Secured
Party’s Synthetic Deposit that arise in connection with any change in, or the introduction,
adoption, effectiveness, interpretation, reinterpretation or phase-in after the Closing Date of,
any law or regulation, directive, guideline, decision or request (whether or not having the force
of law) of any Governmental Authority, except for such changes with respect to increased capital
costs and Taxes which are governed by Sections 4.5 and 4.6, respectively. Each
affected Secured Party shall promptly notify the Administrative Agent and the Term Loan Borrower in
writing of the occurrence of any such event, stating the reasons therefor and the additional amount
required fully to compensate such Secured Party for such increased cost or reduced amount. Such
additional amounts shall be, jointly and severally, payable by the Borrowers directly to such
Secured Party within five days of its receipt of such notice, and such notice shall, in the absence
of manifest error, be conclusive and binding on the Borrowers. Notwithstanding anything to the
contrary in this Section, the Borrowers shall not be required to compensate a Lender pursuant to
this Section for any amounts incurred more than nine months prior to the earlier to occur of (i)
the date of such Lender’s annual audit for the period in which such circumstance occurred and (ii)
the date that such Lender notifies the Term Loan Borrower of such Lender’s intention to claim
compensation therefor; provided that, if the circumstances giving rise to such claim have a
retroactive effect, then such nine-month period shall be extended to include the period of such
retroactive effect.



     SECTION 4.4. Funding Losses. In the event any Lender shall incur any loss or expense
(including any loss or expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to make or continue any portion of the principal amount of any
Loan as, or to convert any portion of the principal amount of any Loan into, a LIBO Rate Loan) as a
result of




     (a) any conversion or repayment or prepayment of the principal amount of any LIBO Rate
Loan on a date other than the scheduled last day of the Interest Period applicable thereto,
whether pursuant to Article III or otherwise;




     (b) any Loans not being made as LIBO Rate Loans in accordance with the Borrowing
Request therefor;




     (c) any Loans not being continued as, or converted into, LIBO Rate Loans in accordance
with the Continuation/Conversion Notice therefor; or




     (d) any withdrawal of any amount from the Synthetic Deposit Account on a date other
than the scheduled last day of the then applicable Investment Period;


then, upon the written notice of such Lender to the Term Loan Borrower (with a copy to the
Administrative Agent), the Borrowers shall, within five days of its receipt thereof, pay directly
to such Lender such amount as will (in the reasonable determination of such Lender) reimburse






57









 







such Lender for such loss or expense (excluding loss of anticipated profits). Such written notice
shall, in the absence of manifest error, be conclusive and binding on the Borrowers.




     SECTION 4.5. Increased Capital Costs. If any change in, or the introduction,
adoption, effectiveness, interpretation, reinterpretation or phase-in of, any law or regulation,
directive, guideline, decision or request (whether or not having the force of law) of any
Governmental Authority affects or would affect the amount of capital required or expected to be
maintained by any Secured Party or any Person controlling such Secured Party, and such Secured
Party determines (in good faith but in its sole and absolute discretion) that the rate of return on
its or such controlling Person’s capital as a consequence of the Commitments or the Credit
Extensions made, or the Letters of Credit participated in, by such Secured Party is reduced to a
level below that which such Secured Party or such controlling Person could have achieved but for
the occurrence of any such circumstance, then upon notice from time to time by such Secured Party
to the Term Loan Borrower, the Borrowers shall within five days following receipt of such notice
pay directly to such Secured Party additional amounts sufficient to compensate such Secured Party
or such controlling Person for such reduction in rate of return; provided that each Secured
Party claiming compensation pursuant to this Section 4.5 shall deliver to Term Loan
Borrower (with a copy to the Administrative Agent) a written statement, setting forth in reasonable
detail the basis of the calculation of such compensation in accordance with such Secured Party’s
standard practice and shall certify that the claim for compensation referred to therein is
generally consistent with such Secured Party’s treatment of similarly situated customers of such
Secured Party whose transactions with such Secured Party are similarly affected by the change in
circumstances giving rise to such payment, but such Secured Party shall not be required to disclose
any confidential or proprietary information therein. A statement of such Secured Party as to any
such additional amount or amounts shall, in the absence of manifest error, be conclusive and
binding on the Borrowers. In determining such amount, such Secured Party may use any method of
averaging and attribution that it (in its sole and absolute discretion) shall deem applicable.
Notwithstanding anything to the contrary in this Section, the Borrowers shall not be required to
compensate a Lender pursuant to this Section for any amounts incurred more than nine months prior
to the earlier to occur of (i) the date of such Lender’s annual audit for the period in which such
circumstance occurred and (ii) the date that such Lender notifies the Term Loan Borrower of such
Lender’s intention to claim compensation therefor; provided that, if the circumstances
giving rise to such claim have a retroactive effect, then such nine-month period shall be extended
to include the period of such retroactive effect.



     SECTION 4.6. Taxes. Each Borrower covenants and agrees as follows with respect to
Taxes.




     (a) Any and all payments by the Borrowers under each Loan Document shall be made
without setoff, counterclaim or other defense, and free and clear of, and without deduction
or withholding for or on account of, any Taxes. In the event that any Taxes are imposed and
required to be deducted or withheld from any payment required to be made by any Obligor to
or on behalf of any Secured Party under any Loan Document, then:




     (i) subject to clause (f), if such Taxes are Non-Excluded Taxes, the
amount of such payment shall be increased as may be necessary so that such payment
is made, after withholding or deduction for or on account of such Taxes,



58









 







in an amount that is not less than the amount provided for in such Loan
Document; and




     (ii) the Borrowers shall withhold the full amount of such Taxes from such
payment (as increased pursuant to clause (a)(i)) and shall pay such amount
to the Governmental Authority imposing such Taxes in accordance with applicable law.




     (b) In addition, the Borrowers shall be, jointly and severally, obligated to pay all
Other Taxes imposed to the relevant Governmental Authority imposing such Other Taxes in
accordance with applicable law.




     (c) As promptly as practicable after the payment of any Non-Excluded Taxes or Other
Taxes, and in any event within 45 days of any such payment being due, the Borrowers shall
furnish to the Administrative Agent a copy of an official receipt (or a certified copy
thereof) evidencing the payment of such Non-Excluded Taxes or Other Taxes. The
Administrative Agent shall make copies thereof available to any Lender upon request
therefor.




     (d) Subject to clause (f), the Borrowers shall be, jointly and severally,
obligated to indemnify each Secured Party for any Non-Excluded Taxes and Other Taxes levied,
imposed or assessed on (and whether or not paid directly by) such Secured Party whether or
not such Non-Excluded Taxes or Other Taxes are correctly or legally asserted by the relevant
Governmental Authority. Promptly upon having knowledge that any such Non-Excluded Taxes or
Other Taxes have been levied, imposed or assessed, and promptly upon notice thereof by any
Secured Party, the Borrowers shall be, jointly and severally, obligated to pay such
Non-Excluded Taxes or Other Taxes directly to the relevant Governmental Authority
(provided that no Secured Party shall be under any obligation to provide any such
notice to the Borrowers). In addition, the Borrowers shall be, jointly and severally,
obligated to indemnify each Secured Party for any incremental Taxes that may become payable
by such Secured Party as a result of any failure of any Borrower to pay any Taxes when due
to the appropriate Governmental Authority or to deliver to the Administrative Agent,
pursuant to clause (c), documentation evidencing the payment of Taxes or Other
Taxes. With respect to indemnification for Non-Excluded Taxes and Other Taxes actually paid
by any Secured Party or the indemnification provided in the immediately preceding sentence,
such indemnification shall be made within 30 days after the date such Secured Party makes
written demand therefor. The written demand shall include a certificate setting forth the
amount of such Taxes and, in reasonable detail, the calculation and basis for such Tax.
The Administrative Agent and any Lender pursuant to Section 4.6 shall take all
reasonable actions (consistent with its internal policy and legal and regulatory
restrictions) requested by the Borrowers to assist the Borrowers, as the case may be, at the
sole expense of the Borrowers, to recover from the relevant taxation authority or
Governmental Authority any Taxes in respect of which amounts were paid pursuant to
clauses (a), (b) or (d) of Section 4.6; provided,
however, neither the Administrative Agent nor any Lender will be required to take
any action that would be, in the sole judgment of such Administrative Agent or such Lender,
legally inadvisable, or commercially or otherwise disadvantageous in any respect, and in no



59









 







event shall the Administrative Agent or any Lender be required to disclose any tax
returns or any other information that, in its sole judgment of the Lender, is confidential.
Each Borrower acknowledges that any payment made to any Secured Party or to any Governmental
Authority in respect of the indemnification obligations of the Borrowers provided in this
clause shall constitute a payment in respect of which the provisions of clause (a)
and this clause shall apply.




     (e) (i) Each Lender that is a United States Person, as defined in section 7701(a)(30)
of the Code (other than Persons that are corporations or otherwise exempt from United States
backup withholding tax), on or prior to the date on which such Lender becomes a Lender
hereunder (and from time to time thereafter upon the request of the Term Loan Borrower or
the Administrative Agent, but only for so long as such Lender is legally entitled to do so),
shall deliver to the Term Loan Borrower and the Administrative Agent either (a) a properly
completed and duly executed United States Internal Revenue Form W-9 or any successor form,
certifying that such Person is exempt from United States backup withholding Tax on payments
made hereunder or (b) if such Lender is disregarded for federal income tax purposes, the
documents that would be required by this clause (e) with respect to its beneficial
owner if such beneficial owner were the Lender or the Administrative Agent.




     (ii) Each Non-U.S. Lender, on or prior to the date on which such Non-U.S. Lender
becomes a Lender hereunder (and from time to time thereafter upon the request of the Term
Loan Borrower or the Administrative Agent, but only for so long as such Non-U.S. Lender is
legally entitled to do so), shall deliver to the Term Loan Borrower and the Administrative
Agent either (a) in the case of a Non-U.S. Lender that is treated as a corporation for U.S.
federal income tax purposes, two duly completed copies of either (i) Internal Revenue
Service Form W-8BEN claiming eligibility of the Non-U.S. Lender for benefits of an income
tax treaty to which the United States is a party or (ii) Internal Revenue Service Form
W-8ECI, or in either case an applicable successor form; or (b) in the case of a Non-U.S.
Lender described in clause (e)(ii)(a) above that is not legally entitled to deliver
either form listed in clause (e)(ii)(a), above (i) a certificate to the effect that
such Non-U.S. Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A)
of the Code, (B) a “10 percent shareholder” of any Borrower within the meaning of
Section 881(c)(3)(B) of the Code, or (C) a controlled foreign corporation receiving interest
from a related person within the meaning of Section 881(c)(3)(C) of the Code (referred to as
an “Exemption Certificate”) and (ii) two duly completed copies of Internal Revenue
Service Form W-8BEN or applicable successor form; or (c) in the case of a Non-U.S. Lender
that is treated as a partnership or other non-corporate entity for U.S. federal income tax
purposes, a complete and properly executed IRS Form W-8IMY (or any successor forms thereto)
(including all required documents and attachments).




     (f) The Borrowers shall not be obligated to pay any additional amounts to any Lender
pursuant to clause (a)(i), or to indemnify any Lender pursuant to
clause (d), in respect of United States federal withholding taxes to the extent
imposed as a result of (i) the failure of such Lender to deliver to the Term Loan Borrower
the form or forms and/or an Exemption Certificate, as applicable to such Lender, pursuant to
clause (e), (ii) such form or forms and/or Exemption Certificate not establishing a
complete exemption



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from U.S. federal withholding tax on payments of interest or Synthetic Participation
Fees or the information or certifications made therein by the Lender being untrue or
inaccurate on the date delivered in any material respect, or (iii) the Lender designating a
successor lending office at which it maintains its Loans which has the effect of causing
such Lender to become obligated for tax payments in excess of those in effect immediately
prior to such designation; provided that, the Borrowers shall be, jointly and
severally, obligated to pay additional amounts to any such Lender pursuant to
clause (a)(i), and to indemnify any such Lender pursuant to clause (d), in
respect of United States federal withholding taxes if (i) any such failure to deliver a form
or forms or an Exemption Certificate or the failure of such form or forms or Exemption
Certificate to establish a complete exemption from U.S. federal withholding tax or
inaccuracy or untruth contained therein resulted from a change in any applicable statute,
treaty, regulation or other applicable law or any interpretation of any of the foregoing
occurring after the Closing Date, which change rendered such Lender no longer legally
entitled to deliver such form or forms or Exemption Certificate or otherwise ineligible for
a complete exemption from U.S. federal withholding tax, or rendered the information or
certifications made in such form or forms or Exemption Certificate untrue or inaccurate in a
material respect, (ii) the redesignation of the Lender’s lending office was made at the
request of any Borrower or (iii) the obligation to pay any additional amounts to any such
Lender pursuant to clause (a)(i) or to indemnify any such Lender pursuant to
clause (d) is with respect to an Assignee Lender that becomes an Assignee Lender as
a result of an assignment made at the request of any Borrower.




     (g) Notwithstanding the Borrowers’ right to deduct or withhold any Non-Excluded Taxes
imposed with respect to a Synthetic Participation Fee pursuant to clause (a)
of Section 4.6 and notwithstanding anything to the contrary in this Agreement, the
Administrative Agent shall have the right to withhold the full amount of any Non-Excluded
Taxes imposed and required to be deducted or withheld from the payment of Synthetic
Participation Fees. If the Administrative Agent makes such deduction or withholding, the
Administrative Agent shall (i) pay such amount to the Governmental Authority imposing such
Taxes in accordance with applicable law, (ii) pay such Synthetic Participation Fee net of
any such deduction or withholding, and (iii) make available upon request a copy of an
official receipt (or certified copy thereof) evidencing the payment of such Taxes to a
Borrower.



     SECTION 4.7. Payments, Computations; Proceeds of Collateral, etc.




     (a) Unless otherwise expressly provided in a Loan Document, all payments by the
Borrowers pursuant to each Loan Document shall be made by the Borrowers to the
Administrative Agent for the pro rata account of the Secured Parties entitled to receive
such payment. All payments shall be made without setoff, deduction or counterclaim not
later than 12:00 p.m. on the date due in same day or immediately available funds to such
account as the Administrative Agent shall specify from time to time by notice to the Term
Loan Borrower. Funds received after that time shall be deemed to have been received by the
Administrative Agent on the next succeeding Business Day. The Administrative Agent shall
promptly remit in same day funds to each Secured Party its share, if any, of such payments
received by the Administrative Agent for the account of



61









 







such Secured Party. All interest (including interest on LIBO Rate Loans) and fees
shall be computed on the basis of the actual number of days (including the first day but
excluding the last day) occurring during the period for which such interest or fee is
payable over a year comprised of 360 days (or, in the case of interest on a Base Rate Loan
(calculated at other than the Federal Funds Rate), 365 days or, if appropriate, 366 days).
Payments due on other than a Business Day shall (except as otherwise required by
clause (ii) of the proviso of the definition of “Interest Period”) be made
on the next succeeding Business Day and such extension of time shall be included in
computing interest and fees in connection with that payment.




     (b) All amounts received as a result of the exercise of remedies under the Loan
Documents (including from the proceeds of collateral securing the Obligations) or under
applicable law shall be applied upon receipt to the Obligations as follows: (i) first, to
the payment of all Obligations owing to the Administrative Agent, in its capacity as the
Administrative Agent (including the fees and expenses of counsel to the Administrative
Agent), (ii) second, after payment in full in cash of the amounts specified in
clause (b)(i), to the ratable payment of all interest (including interest accruing
after the commencement of a proceeding in bankruptcy, insolvency or similar law, whether or
not permitted as a claim under such law) and fees owing under the Loan Documents, and all
costs and expenses owing to the Secured Parties pursuant to the terms of the Loan Documents,
until paid in full in cash, (iii) third, after payment in full in cash of the amounts
specified in clauses (b)(i) and (b)(ii), to the ratable payment of the
principal amount of the Loans then outstanding, the aggregate Reimbursement Obligations then
owing, the Cash Collateralization for Contingent Liabilities under Letter of Credit
Outstandings (and each Synthetic Lender shall be entitled to receive its Synthetic Deposit
Percentage of the amounts in the Synthetic Deposit Account to the extent such amounts are
not being used, after giving effect to this clause, to cash collateralize Synthetic Letter
of Credit Outstandings), credit exposure owing to Secured Parties under Rate Protection
Agreements and Cash Management Obligations owing to the Secured Parties, (iv) fourth, after
payment in full in cash of the amounts specified in clauses (b)(i) through
(b)(iii), to the ratable payment of all other Obligations owing to the Secured
Parties, and (v) fifth, after payment in full in cash of the amounts specified in
clauses (b)(i) through (b)(iv), and following the Termination Date, to each
applicable Obligor or any other Person lawfully entitled to receive such surplus. For
purposes of clause (b)(iii), “credit exposure” means, at any time for any
Secured Party with respect to a Rate Protection Agreement to which such Secured Party is a
party, (A) for any date on or after the date such Rate Protection Agreement has been closed
out and termination value(s) determined in accordance therewith, such termination value(s),
and (B) for any date prior to the date referenced in preceding clause (A), the amount(s)
determined as the mark-to-market value(s) for such Rate Protection Agreement by such Secured
Party.



     SECTION 4.8. Sharing of Payments. If any Secured Party shall obtain any payment or
other recovery (whether voluntary, involuntary, by application of setoff or otherwise) on account
of any Credit Extension or Reimbursement Obligation (other than pursuant to the terms of
Section 4.3, 4.4, 4.5 or 4.6) in excess of its pro
rata share of payments obtained by all Secured Parties, such Secured Party shall purchase
from the other Secured Parties such participations in Credit Extensions made by them as shall be
necessary to cause such purchasing Secured Party to



62









 




share the excess payment or other recovery ratably (to the extent such other Secured Parties
were entitled to receive a portion of such payment or recovery) with each of them; provided
that, if all or any portion of the excess payment or other recovery is thereafter recovered from
such purchasing Secured Party, the purchase shall be rescinded and each Secured Party which has
sold a participation to the purchasing Secured Party shall repay to the purchasing Secured Party
the purchase price to the ratable extent of such recovery together with an amount equal to such
selling Secured Party’s ratable share (according to the proportion of (a) the amount of such
selling Secured Party’s required repayment to the purchasing Secured Party to (b) total amount so
recovered from the purchasing Secured Party) of any interest or other amount paid or payable by the
purchasing Secured Party in respect of the total amount so recovered. Each Borrower agrees that
any Secured Party purchasing a participation from another Secured Party pursuant to this
Section may, to the fullest extent permitted by law, exercise all its rights of payment (including
pursuant to Section 4.9) with respect to such participation as fully as if such Secured
Party were the direct creditor of such Borrower in the amount of such participation. If under any
applicable bankruptcy, insolvency or other similar law any Secured Party receives a secured claim
in lieu of a setoff to which this Section applies, such Secured Party shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner consistent with the
rights of the Secured Parties entitled under this Section to share in the benefits of any recovery
on such secured claim.




     SECTION 4.9. Setoff. Each Secured Party shall, upon the occurrence and during the
continuance of any Default described in clauses (a) through (d) of
Section 8.1.9 or, with the consent of the Required Lenders, upon the occurrence and during
the continuance of any other Event of Default, have the right to appropriate and apply to the
payment of the Obligations owing to it (whether or not then due), and (as security for such
Obligations) each Borrower hereby grants to each Secured Party a continuing security interest in,
any and all balances, credits, deposits, accounts or moneys of such Borrower then or thereafter
maintained with such Secured Party; provided that any such appropriation and application
shall be subject to the provisions of Section 4.8. Each Secured Party agrees promptly to
notify the Term Loan Borrower and the Administrative Agent after any such appropriation and
application made by such Secured Party; provided that the failure to give such notice shall
not affect the validity of such setoff and application. The rights of each Secured Party under
this Section are in addition to other rights and remedies (including other rights of setoff under
applicable law or otherwise) which such Secured Party may have.



     SECTION 4.10. Mitigation. Each Lender agrees that if it makes any demand for payment
under Sections 4.3, 4.5 or 4.6, it will use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions and so long as such efforts would
not be disadvantageous to it, as determined in its sole discretion) to designate a different
lending office if the making of such a designation would reduce or obviate the need for the
Borrowers to make payments under Section 4.3, 4.5 or 4.6.



     SECTION 4.11. Removal of Lenders. If any Lender (an “Affected Lender”) (i)
makes a demand upon any Borrower for (or if any Borrower is otherwise required to pay) amounts
pursuant to Section 4.3, 4.5 or 4.6, or (ii) becomes a Defaulting Lender,
the Borrowers may, at their sole cost and expense, within 90 days of receipt by the Borrower of
such demand or notice (or the occurrence of such other event causing any Borrower to be required to
pay such



63









 




compensation) or within 90 days of such Lender becoming a Defaulting Lender, as the case may
be, give notice (a “Replacement Notice”) in writing to the Administrative Agent and such
Affected Lender of its intention to cause such Affected Lender to sell all or any portion of its
Loans, Commitments, Notes and/or Synthetic Deposit to another financial institution or other Person
(a “Non-Affected Replacement Lender”) designated in such Replacement Notice;
provided that no Replacement Notice may be given by the Borrowers if (A) such replacement
conflicts with any applicable law or regulation or (B) prior to any such replacement, such Lender
shall have taken any necessary action under Section 4.5 or 4.6 (if applicable) so
as to eliminate the continued need for payment of amounts owing pursuant to Section 4.5 or
4.6 and withdrew its request for compensation under Section 4.3, 4.5 or
4.6. If the Administrative Agent shall, in the exercise of its reasonable discretion and
within 30 days of its receipt of such Replacement Notice, notify the Term Loan Borrower and such
Affected Lender in writing that the Non-Affected Replacement Lender is reasonably satisfactory to
the Administrative Agent (such consent not being required where the Non-Affected Replacement Lender
is already a Lender), then such Affected Lender shall, subject to the payment of any amounts due
pursuant to Section 4.4, assign, in accordance with Section 11.11, the portion of
its Commitments, Loans, Notes (if any), Synthetic Deposits and other rights and obligations under
this Agreement and all other Loan Documents (including Reimbursement Obligations, if applicable)
designated in the replacement notice to such Non-Affected Replacement Lender; provided that
(A) such assignment shall be without recourse, representation or warranty and shall be on terms and
conditions reasonably satisfactory to such Affected Lender and such Non-Affected Replacement
Lender, and (B) the purchase price paid by such Non-Affected Replacement Lender shall be in the
amount of such Affected Lender’s Loans designated in the Replacement Notice, Synthetic Deposits
and/or its Percentage of outstanding Reimbursement Obligations, as applicable, together with all
accrued and unpaid interest and fees in respect thereof, plus all other amounts (including the
amounts demanded and unreimbursed under Sections 4.3, 4.5 and 4.6), owing
to such Affected Lender hereunder. Upon the effective date of an assignment described above, the
Non-Affected Replacement Lender shall become a “Lender” for all purposes under the Loan Documents.
Each Lender hereby grants to the Administrative Agent an irrevocable power of attorney (which power
is coupled with an interest) to execute and deliver, on behalf of such Lender as assignor, any
assignment agreement necessary to effectuate any assignment of such Lender’s interests hereunder in
the circumstances contemplated by this Section.




     SECTION 4.12. Application to Synthetic Participation Fees. The foregoing provisions
of this Article IV (other than Section 4.6) shall apply, mutatis mutandis, to
Synthetic Participation Fees as if Synthetic Participation Fees were interest on Loans and to
Synthetic Deposits as if Synthetic Deposits were LIBO Rate Loans.



ARTICLE V

CONDITIONS TO CREDIT EXTENSIONS




     SECTION 5.1. Initial Credit Extension. The obligations of the Lenders and, if
applicable, the Issuer to make the initial Credit Extension shall be subject to the prior or
concurrent satisfaction of each of the conditions precedent set forth in this Article.



     SECTION 5.1.1. Resolutions, etc. The Administrative Agent shall have received from
each Obligor, as applicable, (i) a copy of a good standing certificate, dated a date reasonably



64









 




close to the Closing Date, for each such Person and (ii) a certificate, dated as of the
Closing Date, duly executed and delivered by such Person’s Secretary or Assistant Secretary,
managing member or general partner, as applicable, as to





     (a) resolutions of each such Person’s Board of Directors (or other managing body, in
the case of entities other than a corporation) then in full force and effect authorizing, to
the extent relevant, all aspects of the Transactions applicable to such Person and the
execution, delivery and performance of each Loan Document to be executed by such Person and
the transactions contemplated hereby and thereby;




     (b) the incumbency and signatures of those of its officers, managing member or general
partner, as applicable, authorized to act with respect to each Loan Document to be executed
by such Person; and




     (c) the full force and validity of each Organic Document of such Person and copies
thereof;


upon which certificates each Secured Party may conclusively rely until it shall have received a
further certificate of the Secretary, Assistant Secretary, managing member or general partner, as
applicable, of any such Person canceling or amending the prior certificate of such Person.




     SECTION 5.1.2. Closing Date Certificate. The Administrative Agent shall have
received the Closing Date Certificate, dated as of the Closing Date and duly executed and delivered
by an Authorized Officer of Holdings, in which certificate Holdings shall agree and acknowledge
that the statements made therein shall be deemed to be true and correct representations and
warranties of Holdings and its Subsidiaries as of such date, and, at the time each such certificate
is delivered, such statements shall in fact be true and correct in all material respects. All
documents and agreements (including the Transaction Documents) required to be appended to the
Closing Date Certificate shall be in form and substance reasonably satisfactory to the
Administrative Agent, shall have been executed and delivered by the requisite parties, and shall be
in full force and effect.



     SECTION 5.1.3. Consummation of Transactions. The Administrative Agent shall have
received evidence reasonably satisfactory to it that all actions necessary to consummate the
Transactions shall have been taken in accordance with all applicable law and in accordance with the
terms of each applicable Transaction Document, without amendment or waiver of any material
provision thereof. The Administrative Agent shall also have received:




     (a) copies of all material documentation relating to the Transactions, including the
Merger Agreement and the related schedules and exhibits;




     (b) evidence reasonably satisfactory to it that the Rollover Purchasers have made the
Rollover Equity Investment;




     (c) evidence reasonably satisfactory to it that the Senior Note Documents have been
entered into and the Senior Notes have been issued in the amount of $835,000,000 and the
Administrative Agent shall be reasonably satisfied with the terms



65









 







and conditions thereof. The Administrative Agent shall also have received duly
executed copies of the Senior Note Documents;




     (d) evidence reasonably satisfactory to it that Mr. Moyes and Vickie Moyes have made
the IEL Equity Contribution;




     (e) evidence reasonably satisfactory to it that the Shareholder Loan has been or will
be made simultaneously with the consummation of the other Transactions;




     (f) copies of all Shareholder Loan Documents, including the Shareholder Loan Notes
evidencing the Shareholder Loan between the Rollover Purchasers and Swift Nevada; and




     (g) evidence reasonably satisfactory to it that the Rollover Purchasers have pledged
all of the issued and outstanding Capital Securities of Holdings owned by them to each of
the Secured Parties and Swift Nevada.



     SECTION 5.1.4. Payment of Outstanding Indebtedness, etc. All Indebtedness identified
in Item 7.2.2(b) of the Disclosure Schedule, together with all interest, all prepayment
premiums and other amounts due and payable with respect thereto, shall have been paid in full from
the proceeds of the initial Credit Extension and the commitments in respect of such Indebtedness
shall have been terminated (other than letters of credit under the Existing Credit Agreement which
will be backed by Letters of Credit), and all Liens securing payment of any such Indebtedness shall
have been released and the Administrative Agent shall have received all Uniform Commercial Code
Form UCC-3 termination statements or other instruments as may be suitable or appropriate in
connection therewith.



     SECTION 5.1.5. Intercreditor Agreement. The Administrative Agent shall have received
the Intercreditor Agreement, dated as of the Closing Date, duly executed and delivered by the
Administrative Agent, the Second Lien Agent, each Borrower and each Guarantor.



     SECTION 5.1.6. Delivery of Notes. The Administrative Agent shall have received, for
the account of each Lender that has requested a Note, such Lender’s Notes duly executed and
delivered by an Authorized Officer of the applicable Borrower.



     SECTION 5.1.7. Financial Information, etc. The Administrative Agent shall have
received




     (a) a pro forma consolidated balance sheet and related pro forma
consolidated statements of income and cash flows of Holdings as of and for the twelve-month
period ending at the most recent fiscal quarter ending at least 45 days prior to the Closing
Date prepared after giving effect to the Transactions as if the Transactions had occurred as
of such date (in the case of such balance sheet) or at the beginning of such period (in the
case of such other financial statements), in each case which financial statements shall be
in a form consistent with the financial statements or forecasts previously provided to the
Lead Arrangers by Swift Nevada.



66









 






     (b) evidence that Swift Nevada’s adjusted EBITDA for the year ended December 31, 2006
was no less than $481,900,000.



     SECTION 5.1.8. Compliance Certificate. The Administrative Agent shall have received
an initial Compliance Certificate on a pro forma basis as if the Transactions have been consummated
and the initial Credit Extension had been made as of the first day of the Fiscal Quarter in which
the Merger was consummated and as to such items therein as the Administrative Agent reasonably
requests, dated the date of the initial Credit Extension, duly executed (and with all schedules
thereto duly completed) and delivered by the chief financial or accounting Authorized Officer of
Holdings.



     SECTION 5.1.9. Solvency, etc. The Administrative Agent shall have received a
solvency certificate duly executed and delivered by the chief financial or accounting Authorized
Officer of Holdings, dated as of the Closing Date, attesting to the solvency of Holdings, the
Borrowers and the Guarantors, on a pro forma basis, after giving effect to the
Transactions, in form and substance reasonably satisfactory to the Administrative Agent.



     SECTION 5.1.10. Guarantees. The Administrative Agent shall have received the
Subsidiary Guaranty, dated as of the date hereof, duly executed and delivered by an Authorized
Officer of each U.S. Subsidiary (other than either [Amendment No. 2, Section 2.27] Captive
Insurance Company or any Receivables Subsidiary).



     SECTION 5.1.11. Security Agreements. The Administrative Agent shall have received,
with counterparts for each Lender, executed counterparts of the Security Agreements, each dated as
of the date hereof, duly executed and delivered by each applicable Obligor thereunder, together
with




     (a) certificates (in the case of Capital Securities that are certificated securities
(as defined in the UCC)) evidencing all of the issued and outstanding Capital Securities
owned by each Obligor (i) in the case of the Borrower and the Guarantors, in its U.S.
Subsidiaries and 65% of the issued and outstanding Voting Securities of each Foreign
Subsidiary (together with all the issued and outstanding non-voting Capital Securities of
such Foreign Subsidiary) directly owned by each Obligor, and (ii) in the case of the
Rollover Purchasers, in Holdings, which certificates in each case shall be accompanied by
undated instruments of transfer duly executed in blank, or, for any Capital Securities that
are uncertificated securities (as defined in the UCC), confirmation and evidence reasonably
satisfactory to the Administrative Agent that the security interest therein has been
transferred to and perfected by the Administrative Agent for the benefit of the Secured
Parties in accordance with Articles 8 and 9 of the UCC and all laws otherwise applicable to
the perfection of the pledge of such Capital Securities.




     (b) Filing Statements suitable in form for naming Acquisition Co., Holdings, Swift
Arizona, Swift Nevada, each other Subsidiary Guarantor and the Rollover Purchasers as a
debtor and the Administrative Agent as the secured party, or other similar instruments or
documents to be filed under the UCC of all jurisdictions as may be necessary or, in the
opinion of the Administrative Agent, desirable to perfect the security interests of the
Administrative Agent pursuant to such Security Agreement;



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     (c) UCC Form UCC-3 termination statements, if any, necessary to release all Liens and
other rights of any Person (i) in any collateral described in any security agreement
previously granted by any Person, and (ii) securing any of the Indebtedness identified in
Item 7.2.2(b) of the Disclosure Schedule, together with such other UCC Form
UCC-3 termination statements as the Administrative Agent may reasonably request from such
Obligors; and




     (d) certified copies of UCC Requests for Information or Copies (Form UCC-11), or a
similar search report, dated a date reasonably near to the Closing Date, listing all
effective financing statements which name any Obligor (under its present name and any
previous names) as the debtor, together with copies of such financing statements (none of
which shall, except with respect to Liens permitted by Section 7.2.3, evidence a
Lien on any collateral described in any Loan Document).



     SECTION 5.1.12. Intellectual Property Security Agreements. The Administrative Agent
shall have received a Patent Security Agreement, a Copyright Security Agreement and a Trademark
Security Agreement, as applicable, each dated as of the Closing Date, duly executed and delivered
by each Obligor that, pursuant to a Security Agreement, is required to provide such intellectual
property security agreements to the Administrative Agent.



     SECTION 5.1.13. Filing Agent, etc. All Uniform Commercial Code financing statements
or other similar financing statements and Uniform Commercial Code (Form UCC-3) termination
statements required pursuant to the Loan Documents (collectively, the “Filing Statements”)
shall have been delivered (including by way of electronic mail) to Corporation Service Company or
another similar filing service company acceptable to the Administrative Agent (the “Filing
Agent”). The Filing Agent shall have acknowledged in a writing satisfactory to the
Administrative Agent and its counsel (i) the Filing Agent’s receipt (including by way of electronic
mail) of all Filing Statements, (ii) that the Filing Statements have either been submitted for
filing in the appropriate filing offices or will be submitted for filing in the appropriate offices
within ten days following the Closing Date and (iii) that the Filing Agent will notify the
Administrative Agent and its counsel of the results of such submissions within 30 days following
the Closing Date.



     SECTION 5.1.14. Insurance. The Administrative Agent shall have received (i)
certificates of insurance from one or more insurance companies reasonably satisfactory to the
Administrative Agent, evidencing coverage required to be maintained pursuant to each Loan Document
and endorsements naming the Administrative Agent on behalf of the Secured Parties as loss payee or
additional insured, as applicable and (ii) certified copies of the insurance policies (or binders
in respect thereof), from one or more insurance companies reasonably satisfactory to the
Administrative Agent, evidencing coverage required to be maintained pursuant to each Loan Document.



     SECTION 5.1.15. Mortgage. The Administrative Agent shall have received counterparts
of each Mortgage with respect to each Mortgaged Property, dated as of the date hereof, duly
executed and delivered by the applicable Obligor, together with



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     (a) evidence of the completion (or satisfactory arrangements for the completion) of all
recordings and filings of each Mortgage with respect to each Mortgaged Property as may be
necessary or, in the opinion of the Administrative Agent, desirable to create a valid,
perfected first priority Lien against the properties purported to be covered thereby;




     (b) mortgagee’s title insurance policies in favor of the Administrative Agent for the
benefit of the Secured Parties in amounts and in form and substance and issued by insurers,
satisfactory to the Administrative Agent, with respect to the property purported to be
covered by each such Mortgage, insuring that title to such property is marketable and that
the interests created by each such Mortgage constitute valid first Liens thereon free and
clear of all defects and encumbrances other than as approved by the Administrative Agent,
and if required by the Administrative Agent and if available, revolving credit endorsement,
comprehensive endorsement, variable rate endorsement, access and utilities endorsements,
mechanic’s lien endorsement and such other endorsements as the Administrative Agent shall
reasonably request and shall be accompanied by evidence of the payment in full of all
premiums thereon; and




     (c) such other approvals, opinions, or documents as the Administrative Agent may
request in form and substance reasonably satisfactory to the Administrative Agent including
consents and estoppel agreements from landlords, in form and substance reasonably
satisfactory to the Administrative Agent;



     provided, however, that the obligation to deliver such Mortgages shall not be
a condition to the initial Credit Extension on the Closing Date, so long as the Obligors have used
commercially reasonable efforts to deliver such Mortgages on the Closing Date and deliver such
Mortgages within 60 days after the Closing Date (or such later date as the Administrative Agent may
agree).



     SECTION 5.1.16. Opinions of Counsel. The Administrative Agent shall have received
opinions, dated the Closing Date and addressed to the Administrative Agent and all Lenders, from




     (a) Skadden, Arps, Slate, Meagher & Flom LLP, New York counsel to the Obligors, in form
and substance reasonably satisfactory to the Administrative Agent; and




     (b) local counsel to the Obligors in the following jurisdictions, in form and
substance, and from counsel, reasonably satisfactory to the Administrative Agent:




     (i) The Scudder Law Firm, Arizona counsel to the Obligors;




     (ii) The Scudder Law Firm, Tennessee counsel to the Obligors;




     (iii) Beckley Singleton, Nevada counsel to the Obligors; and




     (iv) Handler, Thayer & Duggan, L.L.C., Illinois counsel to the Obligors.



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     SECTION 5.1.17. Closing Fees, Expenses, etc. The Administrative Agent shall have
received for its own account, or for the account of each Lender, as the case may be, all fees,
costs and expenses due and payable pursuant to Sections 3.3 and, if then invoiced,
11.3.



     SECTION 5.1.18. Reorganization. The Administrative Agent shall have received
evidence reasonably acceptable to it indicating that the reorganization of Swift Nevada’s
Subsidiaries has occurred (or will occur contemporaneously with the consummation of the
Transactions) pursuant to which (i) Swift Arizona will become the sole direct wholly owned
Subsidiary of Swift Nevada and (ii) all of the other Subsidiaries of Swift Nevada will become
direct or indirect Subsidiaries of Swift Arizona.



     SECTION 5.1.19. Patriot Act Disclosures. The Administrative Agent and each Lender
shall have received all Patriot Act disclosures reasonably requested by them prior to execution of
this Agreement.



     SECTION 5.2. All Credit Extensions. The obligation of each Lender and each Issuer to
make any Credit Extension (including the initial Credit Extension) shall be subject to the
satisfaction of each of the conditions precedent set forth below.



     SECTION 5.2.1. Credit Extension Request, etc. Subject to Section 2.3.2, the
Administrative Agent shall have received a Borrowing Request if Loans are being requested, or an
Issuance Request if a Letter of Credit is being requested or extended.



     SECTION 5.2.2. Satisfactory Legal Form. All documents executed or submitted pursuant
hereto by or on behalf of any Obligor shall be reasonably satisfactory in form and substance to the
Administrative Agent and its counsel.



     SECTION 5.3. Subsequent Credit Extensions. The obligation of each Lender and each
Issuer to make any Credit Extension other than the initial Credit Extension on the Closing Date
shall be subject to the satisfaction of the condition precedent set forth below.



     SECTION 5.3.1. Compliance with Warranties, No Default, etc. Both before and after
giving effect to such Credit Extension the following statements shall be true and correct:




     (a) the representations and warranties set forth in each Loan Document shall be true
and correct in all material respects with the same effect as if then made (unless stated to
relate solely to an earlier date, in which case such representations and warranties shall
have been true and correct in all material respects as of such earlier date), in each case
other than representations and warranties which are subject to a materiality qualifier, in
which case such representations and warranties shall be (or shall have been) true and
correct;




     (b) no Default shall have then occurred and be continuing; and




     (c) After giving pro forma effect to such Credit Extension and the application of the
proceeds thereof, the Cash Balance on the date of such Credit Extension shall not exceed the
Maximum Cash Balance plus any proceeds of such Credit Extension to be used for the payment
of the next scheduled interest payment due with respect to the



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Loans and the Senior Notes; provided that such interest payment shall be made within
five days of such Credit Extension. [Amendment No. 2, Section 2.15]



ARTICLE VI

REPRESENTATIONS AND WARRANTIES




     On the date of each Credit Extension (other than the initial Credit Extension) each of
Holdings and the Borrowers represents and warrants to each Secured Party as set forth in this
Article.



     SECTION 6.1. Organization, etc. Each Obligor [Amendment No. 2, Section 1.3] is
validly organized and existing and in good standing under the laws of the state or jurisdiction of
its incorporation or organization, is duly qualified to do business and is in good standing as a
foreign entity in each jurisdiction where the nature of its business requires such qualification
(except in jurisdictions where the failure to be so qualified or in good standing has not had and
could not reasonably be expected to result in a Material Adverse Effect), and each Obligor has full
power and authority and holds all requisite governmental licenses, permits and other approvals to
enter into and perform its Obligations under each Loan Document to which it is a party, to own and
hold under lease its property and to conduct its business substantially as currently conducted by
it.



     SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution, delivery and
performance by each Obligor of each Loan Document executed or to be executed by it, each Obligor’s
participation in the consummation of all aspects of the Transactions, and the execution, delivery
and performance by Holdings, the Borrowers or (if applicable) any other Obligor of the agreements
executed and delivered by it in connection with the Transactions [Amendment No. 2, Section 1.4] are
in each case within such Person’s powers, have been duly authorized by all necessary action, and do
not




     (a) contravene any (i) Obligor’s Organic Documents, if applicable, (ii) court decree or
order binding on or affecting any Obligor or (iii) law or governmental regulation binding on
or affecting any Obligor; or




     (b) result in (i) or require the creation or imposition of, any Lien on [Amendment No.
2, Section 1.4] any properties of such Obligors, [Amendment No. 2, Section 1.4] except (in
the case of both clause (a) above and this clause (b)) as
permitted by this Agreement, or (ii) a default under any material contractual restriction
binding on or affecting any Obligor.



     SECTION 6.3. Government Approval, Regulation, etc. No authorization or approval or
other action by, and no notice to or filing with, any Governmental Authority or other Person (other
than those that have been, or on the Closing Date will be, duly obtained or made and which are, or
on the Closing Date will be, in full force and effect) is required for the consummation of the
Transaction or the due execution, delivery or performance by any Obligor of any Loan Document to
which it is a party, or for the due execution, delivery and/or performance of the Loan Documents,
in each case by the parties thereto or the consummation of the Transactions except, to the extent
such failure to obtain such approval or to provide such



71









 




notice (other than in respect of a Governmental Authority) could not reasonably be expected to
result in a Material Adverse Effect. Neither Holdings nor any of its Subsidiaries is an
“investment company” within the meaning of the Investment Company Act of 1940, as amended.




     SECTION 6.4. Validity, etc. Each Loan Document to which any Obligor is a party
constitutes the legal, valid and binding obligations of such Obligor, enforceable against such
Obligor in accordance with their respective terms (except, in any case, as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors’ rights generally and by principles of equity).



     SECTION 6.5. Financial Information. The consolidated financial statements of
Holdings and its Subsidiaries furnished to the Administrative Agent and each Lender pursuant to
Section 5.1.7 have been prepared in accordance with GAAP consistently applied, and present
fairly in all material respects the consolidated financial condition of the Persons covered thereby
as at the dates thereof and the results of their operations for the periods then ended. All
balance sheets, all statements of income and of cash flow and all other financial information of
Holdings and its Subsidiaries furnished pursuant to Section 7.1.1 have been and will for
periods following the Closing Date be prepared in accordance with GAAP consistently applied with
the financial statements delivered pursuant to Section 5.1.7, and do or will present fairly
in all material respects the consolidated financial condition of the Persons covered thereby as at
the dates thereof and the results of their operations for the periods then ended.



     SECTION 6.6. No Material Adverse Change. There has been no material adverse change
in the financial condition, results of operations, performance, business or properties, of Holdings
and its Subsidiaries, taken as a whole, since December 31, 2006.



     SECTION 6.7. Litigation, Labor Controversies, etc. There is no pending or, to the
knowledge of Holdings or any of its Subsidiaries, threatened litigation, action, proceeding or
labor controversy (i) except as disclosed in Item 6.7 of the Disclosure Schedule,
affecting Holdings any of its Subsidiaries, or any of their respective properties, businesses,
assets or revenues, which could reasonably be expected to have a Material Adverse Effect, and no
material adverse development has occurred in any labor controversy, litigation, arbitration or
governmental investigation or proceeding disclosed in Item 6.7 of the Disclosure
Schedule, or (ii) which purports to affect the legality, validity or enforceability of any Loan
Document, the Transaction Documents or the Transactions.



     SECTION 6.8. Subsidiaries. Holdings has no Subsidiaries, except those Subsidiaries
which are identified in Item 6.8 of the Disclosure Schedule, or which are permitted
to have been organized or acquired in accordance with Section 7.2.5 or 7.2.10.



     SECTION 6.9. Ownership of Properties. Holdings and each of its Subsidiaries owns (i)
in the case of owned real property, good and marketable fee title to, and (ii) in the case of owned
personal property, good and valid title to, or, in the case of leased real or personal property,
valid and enforceable leasehold interests (as the case may be) in, all of its properties and
assets, tangible and intangible, of any nature whatsoever, free and clear in each case of all Liens
or claims, except for minor defects in title that do not materially interfere with its ability to
conduct



72









 




business or to utilize such assets for their intended purposes and Liens permitted pursuant to
Section 7.2.3. Set forth in Item 6.9 of the Disclosure Schedule is a true and
complete list of each Mortgaged Property.




     SECTION 6.10. Taxes. Holdings and each of its Subsidiaries has filed all tax returns
and reports required by law to have been filed by it and has paid all Taxes thereby shown to be due
and owing, except any such Taxes which are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on
its books.



     SECTION 6.11. Pension and Welfare Plans. During the twelve-consecutive-month period
prior to the Closing Date and prior to the date of any Credit Extension hereunder, no steps have
been taken to terminate any Pension Plan, and no contribution failure has occurred with respect to
any Pension Plan sufficient to give rise to a Lien under Section 302(f) of ERISA. No condition
exists or event or transaction has occurred with respect to any Pension Plan which might reasonably
be expected to result in the incurrence by the Borrowers or any member of the Controlled Group of
any material liability, fine or penalty. Except as disclosed in Item 6.11 of the
Disclosure Schedule, neither any Borrower nor any member of the Controlled Group has any
contingent liability with respect to any post-retirement benefit under a Welfare Plan, other than
liability for continuation coverage described in Part 6 of Title I of ERISA.



     SECTION 6.12. Environmental Warranties. Except as set forth in Item 6.12 of
the Disclosure Schedule:




     (a) all facilities and property (including underlying groundwater) owned or leased by
Holdings or any of its Subsidiaries have been, and continue to be, owned or leased by
Holdings and its Subsidiaries in compliance with all Environmental Laws, except to the
extent the failure to be in compliance could not reasonably be expected to result in a
Material Adverse Effect;




     (b) there have been no past, and there are no pending or threatened (i) claims,
complaints, notices or requests for information received by Holdings or any of its
Subsidiaries with respect to any alleged violation of any Environmental Law, or
(ii) complaints, notices or inquiries to Holdings or any of its Subsidiaries regarding
potential liability under any Environmental Law, in each case, that singly or in the
aggregate have had, or could reasonably be expected to have, a Material Adverse Effect;




     (c) there have been no Releases of Hazardous Materials at, on or under any property now
or previously owned or leased by Holdings or any of its Subsidiaries that have, or could
reasonably be expected to have, a Material Adverse Effect;




     (d) Holdings and its Subsidiaries have been issued and are in compliance with all
permits, certificates, approvals, licenses and other authorizations relating to
environmental matters, except to the extent the non-issuance or the failure to be in
compliance could not reasonably be expected to result in a Material Adverse Effect;




     (e) no property now or previously owned or leased by Holdings or any of its
Subsidiaries is listed or proposed for listing (with respect to owned property only) on the



73









 







National Priorities List pursuant to CERCLA, on the CERCLIS or on any similar state
list of sites requiring investigation or clean-up;




     (f) there are no underground storage tanks, active or abandoned, including petroleum
storage tanks, on or under any property now or previously owned or leased by Holdings or any
of its Subsidiaries that, singly or in the aggregate, have, or could reasonably be expected
to have, a Material Adverse Effect;




     (g) neither Holdings nor any Subsidiary has directly transported or directly arranged
for the transportation of any Hazardous Material to any location which is listed or proposed
for listing on the National Priorities List pursuant to CERCLA, on the CERCLIS or on any
similar state list or which is the subject of federal, state or local enforcement actions or
other investigations which may lead to material claims against Holdings or such Subsidiary
for any remedial work, damage to natural resources or personal injury, including claims
under CERCLA;




     (h) there are no polychlorinated biphenyls or friable asbestos present at any property
now or previously owned or leased by Holdings or any Subsidiary that, singly or in the
aggregate, have, or could reasonably be expected to have, a Material Adverse Effect; and




     (i) no conditions exist at, on or under any property now or previously owned or leased
by Holdings which, with the passage of time, or the giving of notice or both, would give
rise to liability under any Environmental Law that singly or in the aggregate have had, or
could reasonably be expected to have, a Material Adverse Effect.



     SECTION 6.13. Accuracy of Information. None of the factual information, when taken
as a whole, heretofore or contemporaneously furnished in writing to any Secured Party by or (with
the knowledge of Holdings or any Borrower) on behalf of any Obligor [Amendment No. 2, Section 1.5]
in connection with any Loan Document or any transaction contemplated hereby (including the
Transactions) contains, as of the date such information was furnished (and as modified or
supplemented by other information so furnished) any untrue statement of a material fact, or omits
to state any material fact necessary to make any information not misleading, and no other factual
information, when taken as a whole, hereafter furnished in connection with any Loan Document by or
(with the knowledge of Holdings or any Borrower) on behalf of any such Obligor to any Secured Party
will contain, as of the date such information was furnished (and as modified or supplemented by
other information so furnished), any untrue statement of a material fact or will omit to state any
material fact necessary to make any information, when taken as a whole, not misleading on the date
as of which such information is dated or certified.



     SECTION 6.14. Regulations U and X. Neither Holdings nor any of its Subsidiaries is
engaged in the business of extending credit for the purpose of buying or carrying margin stock, and
no proceeds of any Credit Extensions will be used to purchase or carry margin stock in a way which
violates, or would be inconsistent with, F.R.S. Board Regulation U or Regulation X. Terms for
which meanings are provided in F.R.S. Board Regulation U or Regulation X or any regulations
substituted therefor, as from time to time in effect, are used in this Section with such meanings.



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     SECTION 6.15. Solvency. The Borrowers and the Guarantors, taken as a whole, on a
consolidated basis, both before and after giving effect to any Credit Extension, are Solvent.



     SECTION 6.16. Tax Status.




     (a) At all times after January 17, 2007 and prior to the effective date of the
termination of Holdings’ S Corporation (as defined under Section 1361(a)(1) of the Code)
status by revocation pursuant to Section 1362(d) of the Code or otherwise, Holdings is
treated as an S Corporation as defined under Section 1361(a)(1) of the Code for U.S. federal
income tax purposes.




     (b) From and after the election by Holdings to be treated as an S Corporation (as
defined under Section 1361(a)(1) of the Code) pursuant to Section 1362 of the Code, until
either the time of a Public Offering of Capital Securities of either Holdings, Swift Nevada
or Swift Arizona or the termination of Holdings’ S Corporation status by revocation pursuant
to Section 1362(d) of the Code or otherwise, each U.S. Subsidiary of Holdings (other than
Acquisition Co. and each Captive Insurance Company) is treated as a Qualified Subchapter S
Subsidiary as defined under Section 1361(b)(3)(B) of the Code or otherwise disregarded as
separate from its owner for U.S. federal income tax purposes.




     (c) Prior to the termination of Holdings’ S Corporation status by revocation pursuant
to Section 1362(d) of the Code or otherwise, Swift Nevada will be converted into a limited
liability company and at all times after such conversion will be treated as an entity
disregarded from its owner, Holdings, for U.S. federal, and to the extent applicable, state
and local, income tax purposes and no election or other action will be taken by the Obligors
that is inconsistent with such treatment.




     (d) From and after the termination of Holdings’ S Corporation status by revocation
pursuant to Section 1362(d) of the Code or otherwise, Holdings will be treated as an
association taxable as a corporation for U.S. federal, state and local income tax purposes.
[Amendment No. 2, Section 1.6]



ARTICLE VII

COVENANTS




     SECTION 7.1. Affirmative Covenants. Each of Holdings and the Borrower agrees with
each Lender, each Issuer and the Administrative Agent that until the Termination Date has occurred,
each of Holdings and the Borrower will, and will cause its Subsidiaries to, perform or cause to be
performed the obligations set forth below.



     SECTION 7.1.1. Financial Information, Reports, Notices, etc. Holdings will furnish
to the Administrative Agent (and the Administrative Agent will make available to each Lender)
copies of the following financial statements, reports, notices and information:




     (a) within 45 days after the end of each of the first three Fiscal Quarters of each
Fiscal Year (or (i) if Holdings is required to file such information on a Form 10-Q with the
SEC, promptly following such filing or (ii) in the case of the Fiscal Quarter ended March
31, 2007, on or prior to July 1, 2007), an unaudited consolidated balance



75









 







sheet of Holdings and its Subsidiaries as of the end of such Fiscal Quarter and
consolidated statements of income and cash flow of Holdings and its Subsidiaries for such
Fiscal Quarter and for the period commencing at the end of the previous Fiscal Year and
ending with the end of such Fiscal Quarter (which, in the case of the Fiscal Quarter ending
June 30, 2007, shall be in a form consistent with the financial statements provided by Swift
Nevada on its Form 8-K for the Fiscal Quarter ended March 31, 2007), and including (in each
case), in comparative form the figures for the corresponding Fiscal Quarter in, and year to
date portion of, the immediately preceding Fiscal Year, certified as complete and correct by
the chief financial or accounting Authorized Officer of Holdings (subject to normal year-end
audit adjustments); provided that, with respect to the financial information
required under this clause (a) for the period ending June 30, 2007 which was not
otherwise provided as set forth above, such financial information will be delivered on or
before August 29, 2007;




     (b) within 90 days after the end of each Fiscal Year, a copy of the consolidated
balance sheet of Holdings and its Subsidiaries, and the related consolidated statements of
income and cash flow of Holdings and its Subsidiaries for such Fiscal Year (or if Holdings
is required to file such information on a Form 10-K with the SEC, promptly following such
filing), setting forth in comparative form the figures for the immediately preceding Fiscal
Year which (i) shall be audited (without any Impermissible Qualification) by independent
public accountants reasonably acceptable to the Administrative Agent, and (ii) shall include
a calculation of the financial covenants set forth in Section 7.2.4 and state that,
in performing the examination necessary to deliver the audited financial statements of
Holdings, as of the date of delivery, no knowledge was obtained of any Event of Default;
provided that financial statements for Fiscal Year 2007 will include separate
audited statements for IEL for the period from January 1, 2007 to the Closing Date, separate
audited consolidated financial statements of Swift Nevada and its Subsidiaries for the
period from January 1, 2007 to the Closing Date, and consolidated financial statements of
Holdings from the Closing Date to December 31, 2007; and provided further that, comparative
financial information for Fiscal Year 2007 to other years will be provided by Holdings in an
unaudited pro forma presentation only;




     (c) concurrently with the delivery of the financial information pursuant to clauses
(a) and (b) (commencing with the delivery of the financial information pursuant
to clause (b) for the Fiscal Year ending December 31, 2007), a Compliance
Certificate, executed by the chief financial or accounting Authorized Officer of Holdings,
(i) showing compliance with the financial covenants set forth in Section 7.2.4 and
stating that no Default has occurred and is continuing (or, if a Default has occurred,
specifying the details of such Default and the action that Holdings or an Obligor has taken
or proposes to take with respect thereto), (ii) stating that no Subsidiary has been formed
or acquired since the delivery of the last Compliance Certificate (or, if a Subsidiary has
been formed or acquired since the delivery of the last Compliance Certificate, a statement
that such Subsidiary has complied with Section 7.1.8), (iii) indicating (x) the
amounts of any Net Disposition Proceeds, Net Casualty Proceeds, Net Equity Proceeds, Net
Debt Proceeds or net proceeds to be applied pursuant to clause (i) of Section
3.1.1 and (y) in the case of any Net Disposition Proceeds or Net Casualty Proceeds, the
amounts of any such proceeds being retained by the applicable Obligors pursuant to
clause (f) of Section 3.1.1



76









 







and the time period within which such proceeds are to be applied, (iv) indicating any
changes to the Schedules to any Security Agreement provided pursuant to the terms of such
Security Agreement, (v) providing the information required with respect to Motor Vehicles
required under clause (a)(i) of Section 4.6 of the Pledge and Security Agreement and (vi) in
the case of a Compliance Certificate delivered concurrently with the financial information
pursuant to clause (b), including a calculation of Excess Cash Flow;




     (d) as soon as available and in any event no later than the date the annual financial
statements are delivered pursuant to clause (b), an annual budget, prepared on a
quarterly basis for such Fiscal Year and containing consolidated projected financial
statements (including balance sheets and statements of operations and cash flows) of
Holdings and its Subsidiaries, in substantially the form of the projections previously
delivered to the Administrative Agent;




     (e) as soon as possible and in any event within three days after Holdings or any other
Obligor obtains knowledge of the occurrence of a Default, a statement of an Authorized
Officer of Holdings or the Term Loan Borrower setting forth details of such Default and the
action which Holdings or such Obligor has taken and proposes to take with respect thereto;




     (f) as soon as possible and in any event within three days after Holdings or any other
Obligor obtains knowledge of (i) the occurrence of any material adverse development with
respect to any litigation, action, proceeding or labor controversy described in
Item 6.7 of the Disclosure Schedule or (ii) the commencement of any
litigation, action, proceeding or labor controversy of the type and materiality described in
Section 6.7, notice thereof and, to the extent the Administrative Agent requests,
copies of all documentation relating thereto;




     (g) promptly after the sending or filing thereof, copies of all reports, notices,
prospectuses and registration statements which any Obligor files with the SEC or any
national securities exchange;




     (h) promptly upon becoming aware of (i) the institution of any steps by any Person to
terminate any Pension Plan, (ii) the failure to make a required contribution to any Pension
Plan if such failure is sufficient to give rise to a Lien under Section 302(f) of ERISA,
(iii) the taking of any action with respect to a Pension Plan which could result in the
requirement that any Obligor furnish a bond or other security to the PBGC or such Pension
Plan, or (iv) the occurrence of any event with respect to any Pension Plan which could
result in the incurrence by any Obligor of any material liability, fine or penalty, notice
thereof and copies of all documentation relating thereto;




     (i) promptly upon receipt thereof, copies of all “management letters” submitted to
Holdings or any other Obligor by the independent public accountants referred to in
clause (b) in connection with each audit made by such accountants;



77









 






     (j) promptly following the mailing or receipt of any notice or report delivered under
the terms of the Senior Note Documents or the Shareholder Loan Documents, copies of such
notice or report;




     (k) all PATRIOT Act Disclosures, to the extent reasonably requested by the
Administrative Agent or any Lender; and




     (l) such other financial and other information as any Lender or Issuer through the
Administrative Agent may from time to time reasonably request (including information and
reports in such detail as the Administrative Agent may reasonably request (i) with respect
to the terms of and information provided pursuant to the Compliance Certificate and (ii)
from Swift Nevada, with respect to the Rollover Purchasers to the extent Swift Nevada has
the right under the Shareholder Loan Documents to request such information and reports).



     SECTION 7.1.2. Maintenance of Existence; Compliance with Contracts, Laws, etc.
Holdings will, and will cause each of its Subsidiaries to, preserve and maintain its legal
existence (except as otherwise permitted by Section 7.2.10), perform in all material
respects their obligations under material agreements to which Holdings or a Subsidiary is a party,
and comply in all material respects with all applicable laws, rules, regulations and orders,
including the payment (before the same become delinquent), of all Taxes, imposed upon Holdings or
its Subsidiaries or upon their property except to the extent being diligently contested in good
faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been
set aside on the books of Holdings or its Subsidiaries, as applicable.



     SECTION 7.1.3. Maintenance of Properties. Holdings will, and will cause each of its
Subsidiaries to, maintain, preserve, protect and keep its and their respective properties in good
repair, working order and condition (ordinary wear and tear excepted), and make necessary repairs,
renewals and replacements so that the business carried on by Holdings and its Subsidiaries may be
properly conducted at all times, unless Holdings or such Subsidiary determines in good faith that
the continued maintenance of such property is no longer economically desirable, necessary or useful
to the business of Holdings or any of its Subsidiaries or the Disposition of such property is
otherwise permitted by Section 7.2.10 or 7.2.11.



     SECTION 7.1.4. Insurance. Holdings will, and will cause each of its Subsidiaries to
maintain:




     (a) insurance on its property with financially sound and reputable insurance companies
against loss and damage in at least the amounts (and with only those deductibles), and
against such risks as are consistent with past practices of Holdings and its Subsidiaries;
and




     (b) all worker’s compensation, employer’s liability insurance or similar insurance as
may be required under the laws of any state or jurisdiction in which it may be engaged in
business.



     Without limiting the foregoing, all insurance policies required pursuant to this Section shall
(i) name the Administrative Agent on behalf of the Secured Parties as mortgagee



78









 




(in the case of property insurance) or additional insured (in the case of liability
insurance), as applicable, and provide that no cancellation or modification of the policies will be
made without thirty days’ prior written notice to the Administrative Agent and (ii) be in addition
to any requirements to maintain specific types of insurance contained in the other Loan Documents.




     SECTION 7.1.5. Books and Records. Holdings will, and will cause each of its
Subsidiaries to, keep books and records in accordance with GAAP which accurately reflect all of its
business affairs and transactions in all material respects and permit the Administrative Agent, and
during the continuance of an Event of Default, each other Secured Party or any of their respective
representatives, at reasonable times during normal business hours and intervals upon reasonable
notice to Holdings, to visit Holdings’, the Borrowers’ and each of their respective Subsidiaries’
offices, to discuss such Person’s financial matters with its officers and employees, and its
independent public accountants (and Holdings hereby authorizes such independent public accountant
to discuss each such Person’s financial matters with each Secured Party or their representatives
whether or not any representative of such Person is present, provided that Holdings shall be given
the opportunity to be present at any such meeting) and to examine (and photocopy extracts from) any
of its books and records. Holdings shall pay any fees of such independent public accountant
incurred in connection with any Secured Party’s exercise of its rights pursuant to this Section.



     SECTION 7.1.6. Environmental Law Covenant. Holdings will, and will cause each of its
Subsidiaries to,




     (a) use and operate all of its and their facilities and properties in compliance with
all Environmental Laws, keep all necessary permits, approvals, certificates, licenses and
other authorizations relating to environmental matters in effect and remain in compliance
therewith, and handle all Hazardous Materials in compliance with all applicable
Environmental Laws, except in each case, to the extent the failure to do so could not
reasonably be expected to result in a Material Adverse Effect; and




     (b) promptly notify the Administrative Agent and provide copies upon receipt of all
written claims, complaints, notices or inquiries relating to the condition of its facilities
and properties in respect of, or as to compliance with, Environmental Laws, and shall
promptly resolve any non-compliance with Environmental Laws and keep its property free of
any Lien imposed by any Environmental Law, except in each case, to the extent the failure to
do so could not reasonably be expected to result in a Material Adverse Effect.



     SECTION 7.1.7. Use of Proceeds. The Borrowers will apply the proceeds of the Credit
Extensions as follows:




     (a) in the case of Term Loans, (i) to finance, in part, the Transactions and (ii) to
make the Shareholder Loan;




     (b) to repay the Indebtedness identified in Item 7.2.2(b) of the Disclosure
Schedule;



79









 






     (c) in the case of Revolving Loans, for working capital and general corporate purposes
of IEL, the Revolving Loan Borrower and its Subsidiaries, including Permitted Acquisitions
by the Revolving Loan Borrower and its Subsidiaries; and




     (d) for issuing Letters of Credit for the account of IEL, the Revolving Loan Borrower
and its Subsidiaries in connection with their respective general corporate purposes.



     SECTION 7.1.8. Future Guarantors, Security, etc. Holdings will, and will cause each
U.S. Subsidiary (other than either [Amendment No. 2, Section 2.27] Captive Insurance Company and
any Receivables Subsidiary) to, execute any documents, Filing Statements, agreements and
instruments, and take all further action (including filing Mortgages, providing title insurance
policies, and delivering other documents in support thereof, but only to the extent such documents
were required in connection with the Mortgages provided on the Closing Date) that may be required
under applicable law, or that the Administrative Agent may reasonably request, in order to
effectuate the transactions contemplated by the Loan Documents and in order to grant, preserve,
protect and perfect the validity and first priority (subject to Liens permitted by
Section 7.2.3) of the Liens created or intended to be created by the Loan Documents.
Holdings will cause any subsequently acquired or organized U.S. Subsidiary to execute a supplement
(in form and substance satisfactory to the Administrative Agent) to the Subsidiary Guaranty and
each other applicable Loan Document in favor of the Secured Parties. In addition, from time to
time, Holdings will, and will cause each of its Subsidiaries to, at its cost and expense, promptly
secure the Obligations by pledging or creating, or causing to be pledged or created, perfected
Liens with respect to such of its assets and properties as the Administrative Agent or the Required
Lenders shall designate, it being agreed that it is the intent of the parties that the Obligations
shall be secured by, among other things, substantially all of the assets of Holdings and its U.S.
Subsidiaries (other than either [Amendment No. 2, Section 2.27] Captive Insurance Company and any
Receivables Subsidiary) (including real and personal property acquired subsequent to the Closing
Date, including Mortgaged Properties), subject to the limitations set forth herein and in the other
Loan Documents; provided that neither Holdings nor its Subsidiaries shall be required to
pledge more than 65% of the Voting Securities of any Foreign Subsidiary unless such pledge would
not result in materially adverse tax consequences to Holdings and its Subsidiaries, taken as a
whole. Such Liens will be created under the Loan Documents in form and substance reasonably
satisfactory to the Administrative Agent, and Holdings shall deliver or cause to be delivered to
the Administrative Agent all such instruments and documents (including legal opinions, title
insurance policies and lien searches) as the Administrative Agent shall reasonably request to
evidence compliance with this Section.



     SECTION 7.1.9. Rate Protection Agreements. Within 90 days following the Closing
Date, the Term Loan Borrower will enter into interest rate swap, cap, collar or similar
arrangements designed to protect the Term Loan Borrower against fluctuations in interest rates with
respect to at least 50% of the outstanding principal amount of Term Loans for a period of at least
three years from the Closing Date, on terms reasonably satisfactory to the Administrative Agent.



     SECTION 7.1.10. Maintenance of Ratings. Holdings will use its commercially
reasonable efforts to cause a (i) Corporate Rating by S&P or Corporate Family Rating by



80









 




Moody’s and (ii) senior secured credit rating with respect to the Loans from each of S&P and
Moody’s to be available at all times until the Stated Maturity Date for the Term Loans.




     SECTION 7.1.11. Actions Under Shareholder Loan Documents. Swift Nevada will, to the
extent not in violation of the terms of any Shareholder Loan Document, take, or omit to take, any
action under, or with respect to, any Shareholder Loan Document, in each case as the Administrative
Agent or Required Lenders may direct, provided, that except in the event an “Event of
Default” under Section 8.1.7 of the Shareholder Loan Agreement has occurred and is continuing in
respect of Jerry Moyes or Vickie Moyes, neither the Administrative Agent nor the Required Lenders
shall direct Swift Nevada to either (i) accelerate the Shareholder Loan, (ii) foreclose any
collateral (other than cash or Cash Equivalent Investments and any Senior Notes) for the
Shareholder Loan or (iii) exercise any other remedies in connection therewith (provided that in no
event shall the Administrative Agent or Swift Nevada be required to refrain from taking any action
required to prove, perfect, preserve or protect Swift Nevada’s claims in respect of the Shareholder
Loan and any rights in, and perfection and priority of its Liens on, any collateral therefor),
unless the failure to take any such action could reasonably be expected to materially impair the
collateral, taken as a whole, for the Loans. [Amendment No. 2, Section 2.16]



     SECTION 7.1.12. Post-Closing Obligations.




     (a) Mortgages. To the extent not delivered on the Closing Date, within 60 days
after the Closing Date (or such later dates from time to time as consented to by the
Administrative Agent in its reasonable discretion), the Administrative Agent shall have
received counterparts of each Mortgage with respect to a Mortgaged Property, duly executed
and delivered by the applicable Obligor, together with evidence of the completion (or
reasonably satisfactory arrangements for the completion) of all recordings and filings of
each Mortgage as necessary to create a valid, perfected first priority Lien against the
properties purported to be covered thereby.




     (b) Motor Vehicles. Within 270 days after the Closing Date (or such later
dates from time to time as consented to by the Administrative Agent in its reasonable
discretion), the Borrower and each Guarantor shall (i) cause the recordation or notation of
the Administrative Agent’s security interest on the certificates of title or ownership in
respect of each Motor Vehicle owned by such Obligor for which a Lien is required to be
perfected in favor of the Administrative Agent pursuant to the Pledge and Security Agreement
and (ii) deliver reasonably satisfactory evidence to the Administrative Agent of (x) such
recordation or notation and (y) all other actions necessary, or in the reasonable opinion of
the Administrative Agent desirable, to create, effect, perfect and protect the security
interests purported to be created in such Motor Vehicles pursuant to the Loan Documents.




     (c) [Amendment No. 2, Section 1.7 deleted Section 7.1.12(c)]



     SECTION 7.1.13. Swift Puerto Rico. Holdings and the Borrowers shall cause (i) the
liquidation, wind-up or dissolution of Swift Puerto Rico within 270 days following the Closing



81









 




Date and (ii) the assets of Swift Puerto Rico, if any, will be acquired by, transferred to or
otherwise distributed to Swift Arizona or one or more of its Subsidiaries.




     SECTION 7.1.14. Ratings Information. The Borrowers shall, no later than one (1)
Business Day after Holdings or either Borrower obtains knowledge of any such change, give notice to
the Administrative Agent (by telephone, followed promptly by written notice) of any change (either
expressly or pursuant to a letter from S&P or Moody’s stating an “implied” rating, excluding in all
cases any private indicative ratings that Holdings or the Borrowers may request from time to time
from Moody’s or S&P) in Holdings’ corporate rating by Moody’s or S&P, together with details
thereof, and of any announcement by S&P or Moody’s that its rating in respect of Holdings is “under
review” or that any such rating has been placed on a “Credit Watch List”® or “watch list” or that
any similar action has been taken by S&P or Moody’s.



     SECTION 7.1.15. Tax Sharing Agreement; Tax Treatment of Amendment No. 2.




     (a) After the termination of Holdings’ S Corporation status by revocation pursuant to
Section 1362(d) of the Code or otherwise, Holdings shall enter into a tax sharing agreement
among it and its Subsidiaries, provided that such tax sharing agreement shall not be entered
into without the consent of the Administrative Agent, which consent shall not be
unreasonably withheld or delayed.




     (b) Unless otherwise required pursuant to law, the Obligors shall file tax returns and
associated reports, statements and filings consistent with the treatment of the Amendment
No. 2 as (i) a tax-free reorganization pursuant to Section 368(a)(1)(E) of the Code, and
(ii) a “plan of reorganization” within the meaning of Treasury Regulation Section
1.368-2(g). [Amendment No. 2, Section 1.15]



     SECTION 7.1.16. Contribution of Moyes Senior Fixed Notes. The Borrowers shall, on or
before January 15, 2010, cause the Moyes Senior Fixed Notes to be transferred to Swift Nevada and
retired or cancelled and the Indebtedness of the Obligors with respect thereto cancelled.
[Amendment No. 2, Section 2.26]



     SECTION 7.2. Negative Covenants. Each of Holdings and the Borrowers covenants and
agrees with each Lender, each Issuer and the Administrative Agent that until the Termination Date
has occurred, each of Holdings and the Borrowers will, and will cause its Subsidiaries to, perform
or cause to be performed the obligations set forth below.



     SECTION 7.2.1. Business Activities. Except as otherwise expressly permitted
hereunder:




     (a) Holdings will not, and will not permit any of its Subsidiaries to, engage in any
business activity except those business activities engaged in on the date of this Agreement
and activities reasonably incidental or reasonably related thereto.




     (b) Without limiting the effect of any provision contained in clause (a) above,
after the consummation of the Acquisition, Holdings will not engage in any business activity
other than those incidental to (i) its continuing ownership of all of the Capital Securities
of Swift Nevada and IEL and activities incidental thereto, and its compliance



82









 







with the obligations applicable to it under each Loan Document, (ii) the performance of
the Transactions, (iii) its payment of overhead expenses and taxes (or, to the extent
permitted by clause (a) of Section 7.2.6, making of distributions to its
shareholders for the payment of taxes), and (iv) the acquisition and ownership, directly or
indirectly through one or more Subsidiaries, of all of the Capital Securities of Sparks
Finance LLC, and to subsequently contribute or otherwise transfer the ownership interests in
Sparks Finance LLC, directly or indirectly through one or more Subsidiaries, to Swift
Leasing Co., Inc. or another Subsidiary Guarantor. [Amendment No. 2, Section 1.8]




     (c) Without limiting the effect of any provision contained in clause (a) above,
Swift Nevada will not engage in any business activity other than those incidental to (i) its
continuing ownership of all of the Capital Securities of Swift Arizona and activities
incidental thereto, and its compliance with the obligations applicable to it under each Loan
Document, (ii) the performance of the Transactions, (iii) its payment of overhead expenses
and taxes (or, to the extent permitted by clause (a) of Section 7.2.6,
making of distributions to Holdings for the payment of taxes), (iv) the maintenance or
disposition (in whole or in part) of its minority ownership of the Capital Securities of (x)
Asphalt Media, Inc. and (y) Transplace, Inc., in each case so long as Swift Nevada’s
ownership interests in such companies do not increase above its ownership interests as of
the Closing Date and (v) its Investment in the Transplace Promissory Note.




     (d) Swift Puerto Rico will not engage in any business activity other than those
incidental to its liquidation, winding up or dissolution.




     (e) Notwithstanding anything to the contrary contained in this Agreement or any other
Loan Document, Swift Receivables will not engage in any business activity other than those
specified in the definition of “Receivables Subsidiary.”



     SECTION 7.2.2. Indebtedness. Holdings will not, and will not permit any of its
Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, other than:




     (a) Indebtedness in respect of the Obligations;




     (b) until the Closing Date, Indebtedness that is to be repaid in full with proceeds of
the initial Credit Extensions as further identified in Item 7.2.2(b) of the
Disclosure Schedule;




     (c) Indebtedness existing as of the Closing Date which is identified in
Item 7.2.2(c) of the Disclosure Schedule, and extensions, amendments,
renewals, restatements, replacements and refinancings of such Indebtedness, in each case so
long as after giving effect to any such extension, amendment, renewal, restatement,
replacement or refinancing (i) the maturity date of any principal amount thereof is no
shorter than the maturity existing on the Closing Date and (ii) the principal amount of such
Indebtedness does not exceed that which is outstanding on the Closing Date (as such amount
has been reduced following the Closing Date);




     (d) unsecured Indebtedness (i) incurred in the ordinary course of business of Holdings’
Subsidiaries (in the nature of open accounts extended by suppliers on normal



83









 







trade terms in connection with purchases of goods and services which are not overdue
for a period of more than 90 days or, if overdue for more than 90 days, as to which a
dispute exists and adequate reserves in conformity with GAAP have been established on the
books of such Subsidiary) and (ii) in respect of performance, surety or appeal bonds
provided, in each case, in the ordinary course of business, but excluding (in each case),
Indebtedness incurred through the borrowing of money or Contingent Liabilities in respect
thereof;




     (e) Indebtedness (i) (A) in respect of Capitalized Lease Liabilities other than with
respect to Motor Vehicles and (B) evidencing the deferred purchase price of newly acquired
assets or incurred to finance the acquisition of new assets or the construction or
improvement of any fixed assets of Holdings’ Subsidiaries (pursuant to purchase money
mortgages or otherwise, whether owed to the seller or a third party), which assets are used
in the ordinary course of business of such Subsidiaries and such Indebtedness is incurred
within 90 days of the acquisition or completion of such construction or improvements of such
property) and extensions, renewals, amendments, restatements, refinancings and replacements
of any such Indebtedness that do not increase the outstanding principal amount thereof or
shorten the maturity of the principal amount of such Indebtedness, in each case from that
which existed at the time of any such extension, renewal, amendment, restatement,
refinancing or replacement; provided that the aggregate amount of all Indebtedness
outstanding pursuant to this clause (e)(i) shall not at any time exceed $50,000,000
and (ii) to the extent permitted under Section 7.2.7, in respect of Capitalized
Lease Liabilities with respect to Motor Vehicles;




     (f) unsecured Indebtedness of any Subsidiary owing to any Borrower or any other
Subsidiary, which Indebtedness




     (i) (x) if the obligee under any such Indebtedness is a Borrower or a
Guarantor, shall be evidenced by one or more promissory notes in form and substance
satisfactory to the Administrative Agent, which promissory notes shall be duly
executed and delivered in pledge to the Administrative Agent pursuant to a Loan
Document, and (y) if the obligee under any such Indebtedness is not a Borrower or a
Guarantor, such obligee shall have previously executed and delivered to the
Administrative Agent the Interco Subordination Agreement, in each case such
Indebtedness shall not be forgiven or otherwise discharged for any consideration
other than payment in full or in part in cash (provided that only the amount
repaid in part shall be discharged); and




     (ii) if incurred by a Subsidiary that is not a Subsidiary Guarantor, shall not
(when aggregated with all other Indebtedness of the type described in this
clause (ii) and the amount of all Investments made by the Revolving Loan
Borrower and the Subsidiary Guarantors in Subsidiaries which are not Subsidiary
Guarantors under clause (e)(i) of Section 7.2.5), exceed $50,000,000
in the aggregate;



84









 






     (g) unsecured Indebtedness (not evidenced by a note or other instrument) incurred by a
Borrower owing to a Subsidiary that has previously executed and delivered to the
Administrative Agent the Interco Subordination Agreement;




     (h) Indebtedness of the Borrowers and the Guarantors incurred pursuant to the terms of
the Senior Note Documents in a principal amount not to exceed $835,000,000 as such amount is
reduced on or after the Closing Date in accordance with the terms hereof and any extensions,
renewals, amendments, restatements, refinancings and replacement of any such Indebtedness
that do not increase the outstanding principal amount or shorten the maturity of any
principal amount thereof, in each case from that which existed at the time of any such
extension, renewal, amendment, restatement, refinancing or replacement;




     (i) Indebtedness of a Person existing at the time such Person became a Subsidiary of
Holdings, but only if such Indebtedness was not created or incurred in contemplation of such
Person becoming a Subsidiary and any refinancings, refundings, renewals, replacements or
extensions thereof (without any increase in the principal amount thereof or any shortening
of the maturity of any principal amount thereof, in each case from that which existed at the
time of any such extension, renewal, amendment, restatement, refinancing or replacement) and
the aggregate outstanding amount of all Indebtedness existing pursuant to this
clause does not exceed $50,000,000 at any time;




     (j) other unsecured Indebtedness of the Revolving Loan Borrower and its Subsidiaries
(other than Indebtedness of Foreign Subsidiaries owing to the Borrower or Subsidiary
Guarantors) in an aggregate amount at any time outstanding not to exceed $60,000,000;




     (k) Indebtedness under Hedging Obligations entered into in the ordinary course of
business and not for speculative purposes (it being understood that the entering into of
offsetting hedges or trades to close open positions on existing Hedging Obligations shall
be deemed not to be for speculative purposes); [Amendment No. 2, Section 2.17]




     (l) Indebtedness in respect of judgments or awards not deemed to be a default under
Section 8.1.6;




     (m) Indebtedness consisting of customary purchase price adjustments, earn-outs,
indemnification obligations and similar items incurred in connection with acquisitions and
asset sales not restricted by Sections 7.2.10 or 7.2.11 in an amount not to
exceed $45,000,000 at any time;




     (n) Guarantees by Holdings’ Subsidiaries of obligations of any Subsidiary to the extent
of any Indebtedness permitted to be incurred by this Section 7.2.2 or otherwise
incurred in the ordinary course of business;




     (o) Indebtedness incurred by any Receivables Subsidiary in connection with any
Qualified Receivables Transaction permitted by clause (d) of Section 7.2.11;



85









 







provided that such Indebtedness is strictly limited in recourse to such
Receivables Subsidiary and its assets, except in respect of Standard Securitization
Undertakings;




     (p) Indebtedness of a Borrower or a Subsidiary Guarantor owing to a [Amendment No. 2,
Section 2.27] Captive Insurance Company; provided that the amount of Indebtedness in
this clause (p) does not exceed $35,000,000 in original principal amount over the
term of this Agreement;




     (q) Indebtedness with respect to the Motor Vehicle Financing, so long as the proceeds
received in connection therewith are applied pursuant to clause (i) of Section
3.1.1 and Section 3.1.2; or




     (r) Attributable Debt incurred in connection with a sale and leaseback transaction
permitted pursuant to Section 7.2.15, so long as the proceeds received in connection
therewith are applied pursuant to clause (i) of Section 3.1.1 and
Section 3.1.2.


provided that no Indebtedness otherwise permitted by clause (c), (e),
(f)(ii), (h), (i), (j), (m), (o)or (q) shall be
assumed, created or otherwise incurred if a Default has occurred and is then continuing or would
result therefrom.




     SECTION 7.2.3. Liens. Holdings will not, and will not permit any of its Subsidiaries
to, create, incur, assume or permit to exist any Lien upon any of its property (including Capital
Securities of any Person), revenues or assets, whether now owned or hereafter acquired, except:




     (a) Liens securing payment of the Obligations;




     (b) until the Closing Date, Liens securing payment of Indebtedness of the type
described in clause (b) of Section 7.2.2;




     (c) Liens existing as of the Closing Date and disclosed in Item 7.2.3(c) of the
Disclosure Schedule securing Indebtedness described in clause (c) of
Section 7.2.2, and, to the extent set forth in such clause (c), any
extensions, amendments, renewals, restatements, replacements or refinancings of such
Indebtedness; provided that, in the event of any such extension, amendment, renewal,
restatement, replacement or refinancing, no such Lien shall encumber any additional property
and the amount of Indebtedness secured by such Lien is not increased from that existing on
the Closing Date, less the amount of any payments, prepayments or other amortization of such
Indebtedness after the Closing Date;




     (d) Liens securing Indebtedness of the type permitted under clause (e) of
Section 7.2.2; provided that (i) such Lien is granted within 90 days after
such Indebtedness is incurred (except in the case of any extension, renewal, amendment,
restatement, replacement or refinancing), (ii) the Indebtedness secured thereby (if it is of
the type described in subclause (e)(i)(B) of such Section 7.2.2) does not
exceed 90% of the lesser of the cost or the fair market value of the applicable property,
improvements or equipment at the time of such acquisition (or construction) and (iii) such
Lien secures only the assets that are the subject of the Indebtedness referred to in such
clause (e);



86









 






     (e) Liens securing Indebtedness permitted by clause (i) of
Section 7.2.2; provided that such Liens existed prior to such Person
becoming a Subsidiary, were not created in anticipation thereof and attach only to assets of
such Person;




     (f) statutory or common law Liens in favor of carriers, warehousemen, mechanics,
materialmen and landlords granted in the ordinary course of business for amounts not overdue
for a period of more than thirty (30) days or being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP shall have
been set aside on its books;




     (g) Liens incurred or deposits made in the ordinary course of business in connection
with worker’s compensation, unemployment insurance or other forms of governmental insurance
or benefits, or to secure performance of tenders, statutory obligations, bids, leases, trade
contracts, governmental contracts or other similar obligations (other than for borrowed
money) entered into in the ordinary course of business or to secure obligations on surety
and appeal bonds or performance bonds;




     (h) judgment Liens in existence for less than 45 days after the entry thereof or with
respect to which execution has been stayed or the payment of which is covered in full
(subject to a customary deductible) by insurance maintained with responsible insurance
companies and which do not otherwise result in an Event of Default under
Section 8.1.6;




     (i) easements, rights-of-way, zoning restrictions, minor defects or irregularities in
title and other similar encumbrances not interfering in any material respect with the value
or use of the property to which such Lien is attached;




     (j) Liens for Taxes not at the time delinquent or thereafter payable without penalty or
being diligently contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books;




     (k) second priority Liens securing Indebtedness permitted by clause (h) of
Section 7.2.2 and subject to the Intercreditor Agreement; provided that no
such Lien shall extend to or cover any assets other than the assets subject to the Liens
granted to Administrative Agent;




     (l) Liens in favor of the Secured Parties pursuant to a pledge of any note or other
instrument evidencing the Shareholder Loan in a principal amount not to exceed $560,000,000,
plus any amounts added to the principal as paid-in-kind interest;




     (m) purported Liens evidenced by the filing of precautionary UCC financing statements
relating solely to operating leases of personal property entered into in the ordinary course
of business;




     (n) bankers liens and rights of set-off with respect to customary depositary
arrangements entered into in the ordinary course of business of IEL the Revolving Loan
Borrower and its Subsidiaries;



87









 






     (o) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;




     (p) any Liens on the assets of any Receivables Subsidiary, and any Liens on Receivables
Assets of Holdings or any other Subsidiary, in each case, in connection with a Qualified
Receivables Transaction; [Amendment No. 1, Section 1.6]




     (q) Liens on the assets of IEL, the Revolving Loan Lender and its Subsidiaries not
otherwise permitted by this Section so long as neither (i) the aggregate outstanding
principal amount of the obligations secured thereby nor (ii) the aggregate fair market value
(determined as of the date such Lien is incurred) of the assets subject thereto exceeds (as
to IEL, the Revolving Loan Borrower and all Subsidiaries collectively) $25,000,000 at any
one time;




     (r) any zoning or similar law or right reserved to or vested in any Governmental
Authority to control or regulate the use of any real property that does not materially
interfere with the ordinary conduct of the business of any Subsidiary;




     (s) Liens on insurance policies and the proceeds thereof securing the financing of the
premiums with respect thereto;




     (t) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for sale of goods entered into by the Borrowers in the ordinary course of
business; and




     (u) Liens on Motor Vehicles securing Indebtedness permitted by clause (q) of
Section 7.2.2.



     SECTION 7.2.4. Financial Condition and Operations. Holdings will not permit any of
the events set forth below to occur.




     (a) Holdings will not permit the Leverage Ratio for any period ending on the last day
of any Fiscal Quarter set forth below to be greater than the ratio set forth opposite such
Fiscal Quarter: [Amendment No. 2, Section 2.18]



	 	 	 	 	 
	Fiscal Quarter Ending	 	Ratio
	September 30,2009
	 	 	6.75:1.00	 
	December 31, 2009
	 	 	6.75:1.00	 
	March 31, 2010
	 	 	6.75:1.00	 
	June 30, 2010
	 	 	6.75:1.00	 
	September 30, 2010
	 	 	6.60:1.00	 
	December 31, 2010
	 	 	6.60:1.00	 
	March 31, 2011
	 	 	6.35:1.00	 
	June 30, 2011
	 	 	6.35:1.00	 
	September 30, 2011
	 	 	6.00:1.00	 
	December 31, 2011
	 	 	6.00:1.00	 
	March 31, 2012
	 	 	5.75:1.00	 






88









 






	 	 	 	 	 
	Fiscal Quarter Ending	 	Ratio
	June 30, 2012
	 	 	5.75:1.00	 
	September 30, 2012
	 	 	5.75:1.00	 
	December 31, 2012
	 	 	5.25:1.00	 
	March 31, 2013
	 	 	5.25:1.00	 
	June 30, 2013
	 	 	4.75:1.00	 
	September 30, 2013
	 	 	4.75:1.00	 
	December 31, 2013
	 	 	4.50:1.00	 
	March 31, 2014
	 	 	4.50:1.00	 
	June 30, 2014
	 	 	4.50:1.00	 







     (b) Holdings will not permit the Interest Coverage Ratio for any period ending on the
last day of any Fiscal Quarter set forth below set forth below to be less than the ratio set
forth opposite such Fiscal Quarter: [Amendment No. 2, Section 2.19]



	 	 	 	 	 
	Fiscal Quarter Ending	 	Ratio
	September 30, 2009
	 	 	1.25:1.00	 
	December 31, 2009
	 	 	1.25:1.00	 
	March 31, 2010
	 	 	1.25:1.00	 
	June 30, 2010
	 	 	1.25:1.00	 
	September 30, 2010
	 	 	1.25:1.00	 
	December 31, 2010
	 	 	1.25:1.00	 
	March 31, 2011
	 	 	1.30:1.00	 
	June 30, 2011
	 	 	1.30:1.00	 
	September 30, 2011
	 	 	1.40:1.00	 
	December 31, 2011
	 	 	1.45:1.00	 
	March 31, 2012
	 	 	1.45:1.00	 
	June 30, 2012
	 	 	1.50:1.00	 
	September 30, 2012
	 	 	1.50:1.00	 
	December 31, 2012
	 	 	1.50:1.00	 
	March 31, 2013
	 	 	1.70:1.00	 
	June 30, 2013
	 	 	1.70:1.00	 
	September 30, 2013
	 	 	1.70:1.00	 
	December 31, 2013
	 	 	1.70:1.00	 
	March 31, 2014
	 	 	1.80:1.00	 
	June 30, 2014
	 	 	1.80:1.00	 







     (c) Commencing with the Fiscal Quarter ended September 30, 2009, Holdings will not
permit Liquidity as of the last day of each Fiscal Quarter to be less than $65,000,000.
[Amendment No. 2, Section 2.20]



     SECTION 7.2.5. Investments. Holdings will not, and will not permit any of its
Subsidiaries to, purchase, make, incur, assume or permit to exist any Investment in any other
Person, except:




     (a) Investments existing on the Closing Date and identified in Item 7.2.5(a) of
the Disclosure Schedule;



89









 






     (b) Cash Equivalent Investments;




     (c) Investments received in connection with the bankruptcy or reorganization of, or
settlement of delinquent accounts and disputes with, customers and suppliers, in each case
in the ordinary course of business;




     (d) Investments consisting of any deferred portion of the sales price received by any
Subsidiary in connection with any Disposition permitted under Section 7.2.11;




     (e) Investments by way of contributions to capital or purchases of Capital Securities
by Holdings in any Subsidiary or by any Subsidiary in any other Subsidiary; provided
that, the aggregate amount of intercompany loans made pursuant to clause (f)(ii) of
Section 7.2.2 and Investments under this clause (e) made by Obligors in
Subsidiaries that are not Obligors shall not exceed the amount set forth in
clause (f)(ii) of Section 7.2.2 at any time;




     (f) Investments constituting (i) accounts receivable arising, (ii) trade debt granted,
or (iii) deposits made in connection with the purchase price of goods or services, in each
case in the ordinary course of business;




     (g) Investments in Capital Securities constituting Permitted Acquisitions;
provided that (i) each such Investment shall result in the acquisition of a wholly
owned U.S. Subsidiary and (ii) the Leverage Ratio as of the period of four consecutive
Fiscal Quarters most recently ended prior to the date of such Permitted Acquisition is,
after giving pro forma effect to such Permitted Acquisition, at least .25 less than is
otherwise required pursuant to clause (a) of Section 7.2.4 at the time of
such Permitted Acquisition;




     (h) the Shareholder Loan in a principal amount, together with any amounts loaned to the
Rollover Purchasers from the proceeds of the Senior Notes, not to exceed, prior to the
contribution of the Moyes Senior Fixed Notes, $466,000,000 (giving effect to the
cancellation of $94,000,000 of such Shareholder Loan upon the effectiveness of the Amendment
No. 2), and thereafter, $235,000,000, plus any amounts added to the principal as
paid-in-kind interest at any time; [Amendment No. 2, Section 2.21]




     (i) Contingent Liabilities permitted by Section 7.2.2;




     (j) loans and advances (i) to employees (including drivers of Motor Vehicles) of
Holdings or any of its Subsidiaries in the ordinary course of business (including for
travel, fuel costs, tolls, entertainment and relocation expenses) and (ii) to non-employee
owner/operators of Motor Vehicles in the ordinary course and consistent with past practices
(in the nature of advances for fuel costs, tolls, repairs and other similar ordinary course
items);




     (k) Capital Expenditures permitted by Section 7.2.7;




     (l) intercompany loans permitted by clause (f) of Section 7.2.2 and
clause (g) of Section 7.2.2;



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     (m) Investments made in connection with Permitted Acquisitions permitted by clause
(b) of Section 7.2.10;




     (n) Hedging Obligations permitted by clause (k) of Section 7.2.2;




     (o) advances in the ordinary course of business consistent with past practices (i) by
IEL to finance the purchase of Motor Vehicles by non-employee owner/operators who were
previously leasing such Motor Vehicles from IEL and (ii) by Swift Arizona or its
Subsidiaries to finance tuition costs of student/trainees enrolled in driver training
academies of Swift Arizona or one of its Subsidiaries; provided that the amount of
advances pursuant to this clause (o) shall not exceed $20,000,000 in the aggregate
at any time outstanding (as reflected on the balance sheet of Holdings);




     (p) Investments made to a [Amendment No. 2, Section 2.27] Captive Insurance Company, in
an amount not to exceed the minimum amount of capitalization required pursuant to regulatory
capital requirements; or




     (q) other Investments in an amount not to exceed $40,000,000 over the term of this
Agreement provided that no Investments may be made by any Obligor in Subsidiaries
that are not Obligors unless the proceeds of such Investments are used in the ordinary
course of business of such Subsidiary or are required by such Subsidiary to be in compliance
with any minimum capitalization or regulatory capital requirements or other applicable law;
[Amendment No. 2, Section 2.22]


provided, however, that (i) any Investment which when made complies with the
requirements of the definition of the term “Cash Equivalent Investment” may continue to be
held notwithstanding that such Investment if made thereafter would not comply with such
requirements, and (ii) no Investment otherwise permitted by clause (g), (m) or
(q) shall be permitted to be made if any Default has occurred and is continuing or would
result therefrom.




     SECTION 7.2.6. Restricted Payments, etc. Holdings will not, and will not permit any
of its Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any
Restricted Payment, other than Restricted Payments made by its Subsidiaries either to the Borrowers
or to Guarantors and, on a pro rata basis, to its equity holders (with respect to any non-wholly
owned Subsidiary), except:




     (a) so long as Holdings is treated as an S Corporation (as defined under Section
1361(a)(1) of the Code) and to the extent its U.S. Subsidiaries are treated as Qualified
Subchapter S Subsidiaries (as defined under Section 1361(b)(3)(b) of the Code) or otherwise
disregarded as separate from Holdings for U.S. federal income tax purposes (“Disregarded
Subsidiaries”), Restricted Payments to Holdings and, without duplication, Restricted
Payments to the equityholders of Holdings in an aggregate amount equal to 39% of Holdings’
consolidated taxable income, assuming for purposes of this calculation that (i) Holdings is
a C corporation, (ii) Holdings’ only Subsidiaries are Disregarded Subsidiaries, and (iii)
the consolidated taxable income of Holdings is reduced by the amounts received by Swift
Nevada in respect of any amounts paid pursuant to clause (b) below;



91









 






     (b) so long as (i) there shall exist no Default (both before and after giving effect to
the payment thereof), (ii) Holdings is in pro forma compliance with Section 7.2.4
(both before and after giving effect to the payment thereof), and (iii) there shall exist no
default under Section 8.1.7 of the Shareholder Loan Agreement, Restricted Payments to
Holdings and Restricted Payments to the Rollover Purchasers in an aggregate amount equal to
the actual cash amount of interest due and payable under the Shareholder Loan, without
regard to any “gross-up” or similar amounts in respect of taxes, if any, on any such
distribution; provided that (x) such distribution shall be made no earlier than one
day prior to the date such interest is due pursuant to clause (c) of Section 3.2.2 of the
Shareholder Loan Agreement and (y) the proceeds of such distribution by Holdings to the
Rollover Purchasers shall be immediately deposited in a Rollover Purchasers Blocked Account
to be applied to the payment of such interest; and




     (c) so long as there shall exist no Default (both before and after giving effect to the
payment thereof), Restricted Payments pursuant to and in accordance with stock option plans
or other benefit plans for present or former management or employees of Holdings and its
Subsidiaries, in an amount not to exceed $5,000,000 in any Fiscal Year and $40,000,000 over
the term of this Agreement; provided that, to the extent Restricted Payments made in
accordance with this clause (c) in any Fiscal Year do not exceed $5,000,000,
Restricted Payments made in accordance with this clause (c) in the immediately
succeeding Fiscal Year may be increased by an amount equal to such unutilized amount from
such prior Fiscal Year.



     SECTION 7.2.7. Capital Expenditures. Holdings will not, and will not permit any of
its Subsidiaries to, make or commit to make Capital Expenditures (inclusive of Capitalized Lease
Liabilities pursuant to clause (e) of Section 7.2.2) in any Fiscal Year which
aggregate in excess of the amount set forth below opposite such Fiscal Year (each amount, the
“Maximum Capital Expenditures Amount”):




     (a) Except as provided in clause (b) below:



	 	 	 	 	 
	 	 	Capital
	Fiscal Year	 	Expenditure Amount
	2009
	 	$	120,000,000	 
	2010
	 	$	350,000,000	 
	2011
	 	$	500,000,000	 
	2012
	 	$	500,000,000	 
	2013
	 	$	500,000,000	 
	2014
	 	$	500,000,000	 







     (b) If the Leverage Ratio calculated as at the end the last day of the last Fiscal
Quarter of any Fiscal Year is less than or equal to 4.50:1.00, then the Maximum Capital
Expenditures Amounts below shall apply for the following Fiscal Year:



92









 





	 	 	 	 	 
	 	 	Capital
	Fiscal Year	 	Expenditure Amount
	2009
	 	$	160,000,000	 
	2010
	 	$	400,000,000	 
	2011
	 	$	725,000,000	 
	2012
	 	$	800,000,000	 
	2013
	 	$	645,000,000	 
	2014
	 	$	785,000,000	 







provided, in each case, that the Maximum Capital Expenditures Amount for any Fiscal
Year shall be increased by an amount equal to the excess, if any, of the Maximum Capital
Expenditures Amount for the previous Fiscal Year (without giving effect to any adjustment in
accordance with this proviso) over the actual amount of Capital Expenditures for such
previous Fiscal Year. [Amendment No. 2, Section 2.23]



     SECTION 7.2.8. No Prepayment of Certain Indebtedness. Holdings will not, and will
not permit any of its Subsidiaries to:




     (a) make any payment or prepayment of principal of, or premium or interest on, any
Indebtedness incurred under the Senior Note Documents (including any redemption or
retirement thereof) (i) other than the stated, scheduled date for payment of interest set
forth in the Senior Note Documents, or (ii) which would violate the terms of this Agreement,
the Intercreditor Agreement or the Senior Note Documents;




     (b) redeem, retire, purchase, defease or otherwise acquire any Indebtedness incurred
under the Senior Note Documents;




     (c) make any deposit (including the payment of amounts into a sinking fund or other
similar fund) for any of the foregoing purposes; or




     (d) make any payment or prepayment of principal of, or premium or interest on, any
Indebtedness that is by its express written terms subordinated to the payment of the
Obligations at any time when an Event of Default has occurred and is continuing
provided, notwithstanding anything to the contrary in clauses (a), (b), or (c) of
this Section 7.2.8, that up to $125,752,000 face value of Senior Notes owned by Mr. Moyes
may be transferred to Swift Nevada and retired and the Indebtedness in respect thereof may
be cancelled in connection with the Senior Notes Contribution in accordance with the
provisions of the Shareholder Loan Amendment. [Amendment No. 2, Section 1.9]



     SECTION 7.2.9. Issuance of Capital Securities. Holdings will not, and will not
permit any of its Subsidiaries to, issue any Capital Securities (whether for value or otherwise) to
any Person other than (in the case of Subsidiaries) to Holdings, the Borrowers or a Guarantor (or,
in the case of Holdings, to the Rollover Purchasers) unless the Net Equity Proceeds or Net
Disposition Proceeds, as the case may be, from such issuance are applied to prepay the Loans as
required by the terms of this Agreement.



     SECTION 7.2.10. Consolidation, Merger; Permitted Acquisitions, etc. Holdings will
not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or



93









 




merge into or with, any other Person, or purchase or otherwise acquire all or substantially
all of the assets of any Person (or any division thereof), except:





     (a) any Subsidiary may liquidate or dissolve voluntarily into, and may merge with and
into, the Revolving Loan Borrower or any of its Subsidiaries (provided that a
Subsidiary Guarantor may only liquidate or dissolve into, or merge with and into, the
Revolving Loan Borrower or another Subsidiary Guarantor), and the assets or Capital
Securities of any Subsidiary may be purchased or otherwise acquired by the Revolving Loan
Borrower or any of its Subsidiaries (provided that the assets or Capital Securities
of any Subsidiary Guarantor may only be purchased or otherwise acquired by the Revolving
Loan Borrower or another Subsidiary Guarantor); provided, further, that in
no event shall any Subsidiary consolidate with or merge with and into any other Subsidiary
unless, after giving effect thereto, the Administrative Agent shall have a perfected pledge
of, and security interest in and to, at least the same percentage of the issued and
outstanding interests of Capital Securities (on a fully diluted basis) and other assets of
the surviving Person as the Administrative Agent had immediately prior to such merger or
consolidation in form and substance reasonably satisfactory to the Administrative Agent and
its counsel, pursuant to such documentation and opinions as shall be necessary in the
opinion of the Administrative Agent to create, perfect or maintain the collateral position
of the Secured Parties therein;




     (b) any Person may merge with or into or consolidate with a Guarantor (other than
Holdings or a Borrower), or a Guarantor (other than Holdings or a Borrower) may merge or
consolidate with such Person, in a transaction in which (i) the surviving entity is such
Guarantor or (ii) if the surviving entity will not be such Guarantor, simultaneously with
such transaction, the Person formed by such consolidation or in which such Guarantor is
merged, shall become a Subsidiary Guarantor and the Person shall comply with
Section 7.1.8 in connection therewith;




     (c) the purchase of all or substantially all of the assets of any Person (or any
division of any such Person), or the acquisition of such Person by merger, in each case if
(i) such purchase or acquisition constitutes a Permitted Acquisition, and (ii) the Leverage
Ratio as of the period of four consecutive Fiscal Quarters most recently ended prior to the
date of such Permitted Acquisition is, after giving pro forma effect to such Permitted
Acquisition, at least .25 less than is otherwise required pursuant to clause (a) of
Section 7.2.4 at the time of such Permitted Acquisition; and




     (d) Holdings may acquire, directly or indirectly through one or more Subsidiaries, 100%
of the Capital Securities of Sparks Finance LLC, and any other Subsidiary of Holdings that
is a Subsidiary Guarantor may subsequently acquire, directly or indirectly through one or
more Subsidiaries, Sparks Finance LLC from Holdings. [Amendment No. 2, Section 1.10]



     SECTION 7.2.11. Permitted Dispositions. Holdings will not, and will not permit any
of its Subsidiaries to, Dispose of any of Holdings’, the Borrowers’ or such other Subsidiaries’
assets (including with respect to the sale, transfer or other conveyance of (i) accounts receivable
or (ii)



94









 




Capital Securities of Subsidiaries) to any Person in one transaction or series of
transactions, except:





     (a) a Disposition of inventory or obsolete, damaged, worn out or surplus personal
property Disposed of in the ordinary course of its business, including Motor Vehicles
(whether in connection with the LKE Program or otherwise);




     (b) a Disposition permitted by Sections 7.2.6, 7.2.9, 7.2.10 or
7.2.15;




     (c) a Disposition that (i) is for fair market value and the consideration received
consists of no less than 80% in cash, (ii) results in Net Disposition Proceeds which, when
taken together with the Net Disposition Proceeds of all other assets Disposed of pursuant to
this clause (c) since the Closing Date, does not exceed (individually or in the
aggregate) $100,000,000 [Amendment No. 2, Section 2.24] and (iii) results in Net Disposition
Proceeds that are applied, if required by such Sections, pursuant to Sections 3.1.1
and 3.1.2 provided, that notwithstanding clause (i) of this Section
7.2.11(c), the proceeds of a Disposition(s) may be non-cash to the extent the
Disposition(s) is pursuant to an exchange for a similar asset in a transaction intended to
qualify as a “like-kind exchange” under Section 1031 of the Code; [Amendment No. 1, Section
1.7]




     (d) a Disposition of Receivables Assets to any or by any Receivables Subsidiary in
connection with any Qualified Receivables Transaction so long as the proceeds from such
Disposition are applied pursuant to Section 3.1.1 and Section 3.1.2, if
required thereby; [Amendment No. 1, Section 1.8]




     (e) a Disposition of Cash Equivalent Investments in the ordinary course of business;




     (f) a Disposition or discount without recourse of accounts receivable that are overdue
for more than 60 days in the ordinary course of business and consistent with past practices
in connection with the compromise or collection thereof;




     (g) Dispositions of Motor Vehicles and related assets pursuant to the exercise of a put
option or sale and leaseback in connection with the Motor Vehicle Financings, so long as the
proceeds from such Disposition, to the extent such proceeds are not required pursuant to the
terms of the Motor Vehicle Financing to be applied to the repayment of the Motor Vehicle
Financing, are applied pursuant to Section 3.1.1 and Section 3.1.2;




     (h) Dispositions of the Capital Securities of Asphalt Media, Inc. and Transplace, Inc;
and




     (i) the satisfaction, forgiveness and cancellation of up to $325,000,000 of the
Shareholder Loan in accordance with the terms set forth in the Shareholder Loan Amendment.
[Amendment No. 2, Section 1.11]



     SECTION 7.2.12. Modification of Certain Agreements. Holdings will not, and will not
permit any of its Subsidiaries to, consent to any amendment, supplement, waiver or other



95









 




modification of, or enter into any forbearance from exercising any rights with respect to the
terms or provisions contained in (or, in the case of clause (b), forgive or cancel any
amounts owed or to be owed under):





     (a) the Senior Note Documents, except as may be permitted pursuant to Section 5.3 of
the Intercreditor Agreement;




     (b) the Shareholder Loan Documents;




     (c) any of the other Transaction Documents; or




     (d) the Organic Documents of Holdings, the Borrowers or any of their respective
Subsidiaries, if the result would have an adverse effect on the rights or remedies of any
Secured Party;


provided, that notwithstanding the prohibition set forth above, (i) the Organic Documents
of Holdings and its Subsidiaries may be amended or modified to the extent necessary in connection
with the termination of Holdings’ and such Subsidiaries’ S Corporation and Qualified Subchapter S
Subsidiary status, respectively, pursuant to Section 1362(d) and 1361(b)(3) of the Code or
otherwise, provided that Swift Nevada shall have been converted into a limited liability company
prior to such conversion as contemplated in Section 6.16(c), (ii) the Organic Documents of Swift
Nevada may be amended, substituted or modified in connection with its conversion into a limited
liability company, (iii) the Organic Documents of Sparks Finance LLC may be amended or modified in
connection with its changes in ownership contemplated in Section 7.2.13(iv), (iv) up to
$325,000,000 of the outstanding principal amount of the Shareholder Loan may be forgiven and
cancelled in connection with the Senior Notes Contribution on the terms set forth in the
Shareholder Loan Amendment, (v) the Shareholder Loan Documents may be amended as set forth in
Exhibit A to the Amendment No. 2, and (vi) the Senior Notes Indentures may be amended as
contemplated in connection with Amendment No. 2; provided that any such amendments or
modifications of the Organic Documents described in clauses (i) and (ii) above shall be in form and
substance substantially similar to the documents reviewed and approved by the Administrative Agent
in connection with Amendment No. 2 (provided that the Administrative Agent shall have reviewed and
approved of the amendments no later than the “Amendment Part 1 Effective Date”, as defined in
Amendment No. 2) or, such amendments or modifications are otherwise in a form reasonably acceptable
to the Administrative Agent; provided, further, that if the termination of Holdings’ status
as an S Corporation is to occur subsequent to the Amendment Part 2 Effective Date, (a) the
Borrowers shall notify the Administrative Agent not fewer than fifteen (15) Business Days prior to
such termination, (b) prior to any such termination, Swift Nevada shall be converted to a limited
liability company treated at all times after such conversion to a limited liability company as an
entity disregarded from its owner, Holdings, for U.S. federal, and to the extent applicable, state
and local income tax purposes and (c) if (i) the termination would, based on the circumstances at
the time and the Borrowers’ good-faith, reasonable projections, be expected to result in a material
increase in the tax liabilities of Holdings and its Subsidiaries, as compared to the amount that
would have been distributed to equityholders of Holdings pursuant to Section 7.2.6(a) of the Credit
Agreement had Holdings retained its S corporation status or (ii) the termination could reasonably
be expected to have an adverse tax or other effect on Lenders (or in






96









 







the case of tax effects, any of their direct or indirect owners) constituting the Required Lenders,
then such termination shall not occur without the prior written consent of the Required Lenders and
the Administrative Agent. [Amendment No. 2, Section 1.12]




     SECTION 7.2.13. Transactions with Affiliates. Except as identified in Item
7.2.13 of the Disclosure Schedule, Holdings will not, and will not permit any of its
Subsidiaries to, enter into or cause or permit to exist any arrangement, transaction or contract
(including for the purchase, lease or exchange of property or the rendering of services) with any
Affiliate, unless such arrangement, transaction or contract (i) is on fair and reasonable terms no
less favorable to Holdings or such Subsidiary than it could obtain in an arm’s-length transaction
with a Person that is not an Affiliate and (ii) is of the kind which would be entered into by a
prudent Person in the position of Holdings or such Subsidiary with a Person that is not one of its
Affiliates, provided that, notwithstanding the foregoing, Holdings’ Subsidiaries may (i)
make Restricted Payments permitted by Section 7.2.6, (ii) enter into the transactions
permitted by Sections 7.2.2, 7.2.5, 7.2.9, 7.2.10 and
7.2.11, (iii) enter into transactions between or among the Borrowers and the Subsidiary
Guarantors to the extent not prohibited under any Loan Document, (iv) Holdings may acquire from
Swift Nevada, and Swift Nevada may acquire from Swift Arizona, 100% of the Capital Securities of
Sparks Finance LLC, and Holdings may subsequently contribute or otherwise transfer such interest in
Sparks Finance LLC, directly or through one or more direct and indirect Subsidiaries, to Swift
Leasing Co., Inc. or another Subsidiary Guarantor, (v) accept payment for, cancel or forgive up to
$325,000,000 of the Shareholder Loan and modify the Shareholder Loan Documents, all as set forth in
and only as provided in the Shareholder Loan Amendment, and (vi) redeem and retire up to
$125,752,000 face value of Senior Notes owned by Mr. Moyes, all as set forth in and only as
provided in Section 7.2.8, all as more fully described in the Shareholder Loan Amendment.
[Amendment No. 2, Section 1.13]



     SECTION 7.2.14. Restrictive Agreements, etc. Holdings will not, and will not permit
any of its Subsidiaries to, enter into any agreement prohibiting:




     (a) the creation or assumption of any Lien upon its properties, revenues or assets,
whether now owned or hereafter acquired;




     (b) the ability of any Obligor to amend or otherwise modify any Loan Document; or




     (c) the ability of any Subsidiary to make any payments, directly or indirectly, to
Holdings or the Borrowers, including by way of dividends, advances, repayments of loans,
reimbursements of management and other intercompany charges, expenses and accruals or other
returns on investments.


The foregoing prohibitions shall not apply to restrictions contained (i) in any Loan Document, (ii)
in the case of clause (a), (A) any agreement governing any Indebtedness permitted by
clause (e) of Section 7.2.2 as to the assets financed with the proceeds of such
Indebtedness, (B) customary restrictions and conditions contained in agreements relating to the
sale of a Subsidiary or any of its assets pending such sale, provided such restrictions and
conditions apply only to the Subsidiary or assets that is to be sold and such sale is permitted
hereunder, (C) customary restrictions and conditions contained in agreements relating to a
Qualified Receivables






97









 







Transaction permitted hereunder and the Motor Vehicle Financing, (D) agreements binding on a
Subsidiary at the time such Subsidiary becomes a Subsidiary of the Borrower so long as such
agreement is not entered into in contemplation of such occurrence, (E) agreements that are
customary provisions in joint venture agreements and other similar agreements applicable to joint
ventures permitted hereunder, (F) restrictions or conditions imposed by any agreement relating to
secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to
the property or assets securing such Indebtedness, (G) customary provisions in leases, subleases,
licenses, sublicenses or permits so long as such restrictions relate only to the property subject
thereto, and (H) restrictions and conditions existing on the Closing Date contained in agreements
that are not material contractual obligations of Holdings or any of its Subsidiaries (but shall
apply to any extension of renewal of, or any amendment or modification expanding the scope of such
restriction or condition), or (iii) in the case of clauses (a) and (c), (A) any
agreement of a Foreign Subsidiary governing the Indebtedness permitted by clause (f)(ii) of
Section 7.2.2 and (B) any Senior Note Documents.




     SECTION 7.2.15. Sale and Leaseback. Holdings will not, and will not permit any of
its Subsidiaries to, directly or indirectly enter into any agreement or arrangement providing for
the sale or transfer by it of any property (now owned or hereafter acquired) to a Person and the
subsequent lease or rental of such property or other similar property from such Person, other than
a sale and leaseback entered into in connection with the Motor Vehicle Financing, so long as the
proceeds of such transaction are applied pursuant to Section 3.1.1 and Section
3.1.2.



     SECTION 7.2.16. Tax Status of future U.S. Subsidiaries. So long as Holdings is an S
Corporation for U.S. federal income tax purposes, all subsequently acquired or organized U.S.
Subsidiaries of Holdings (other than the Captive Insurance Companies) shall be treated as Qualified
Subchapter S Subsidiaries as defined under Section 1361(b)(3)(B) of the Code or otherwise
disregarded as separate from Holdings for U.S. federal income tax purposes and no election or other
action will be taken by the Obligors that is inconsistent with such treatment. [Amendment No. 2,
Section 1.14]



ARTICLE VIII

EVENTS OF DEFAULT




     SECTION 8.1. Listing of Events of Default. Each of the following events or
occurrences described in this Article shall constitute an “Event of Default”.



     SECTION 8.1.1. Non-Payment of Obligations. (i) The Borrower shall default in the
payment or prepayment when due of (x) any principal on any Loan, or any Reimbursement Obligation or
any deposit of cash for collateral purposes pursuant to Section 2.6.4, or any deposit into
the Synthetic Deposit Account pursuant to clause (b)(ii) or (b)(iii) of Section
3.1.1 or (y) any interest on any Loan or any fee described in Article III or any other
monetary Obligation, and such default shall continue unremedied for a period of three days after
such amount was due or (ii) any Guarantor shall default in the payment when due of any payment
Obligation under a Guaranty.



     SECTION 8.1.2. Breach of Warranty. Any representation or warranty of any Obligor
made or deemed to be made in any Loan Document (including any certificates delivered



98









 




pursuant to Article V) is or shall be incorrect when made or deemed to have been made
in any material respect.




     SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations. The Borrower
shall default in the due performance or observance of any of its obligations under clauses
(a), (b), (c), (e), and (f) of Section 7.1.1,
Section 7.1.7, Section 7.1.12, Section 7.1.16 [Amendment No. 2, Section
2.25] or Section 7.2, or Holdings shall default in the due performance or observance of any
of its obligations under Article X of this Agreement.



     SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. Any Obligor shall
default in the due performance and observance of any other agreement contained in any Loan Document
executed by it, and such default shall continue unremedied for a period of 45 days after the
earlier to occur of (i) notice thereof given to Holdings or any Borrower by the Administrative
Agent or any Lender or (ii) the date on which any Obligor has knowledge of such default.



     SECTION 8.1.5. Default on Other Indebtedness. A default shall occur in the payment
of any amount when due (subject to any applicable grace period), whether by acceleration or
otherwise, of any principal or stated amount of, or interest or fees on, any Indebtedness (other
than Indebtedness described in Section 8.1.1) of Holdings or any of its Subsidiaries or any
other Obligor having a principal or stated amount, individually or in the aggregate, in excess of
$30,000,000, or a default shall occur in the performance or observance of any obligation or
condition with respect to such Indebtedness if the effect of such default is to accelerate the
maturity of any such Indebtedness or such default shall continue unremedied for any applicable
period of time sufficient to permit the holder or holders of such Indebtedness, or any trustee or
agent for such holders, to cause or declare such Indebtedness to become due and payable or to
require such Indebtedness to be prepaid, redeemed, purchased or defeased, or require an offer to
purchase or defease such Indebtedness to be made, prior to its expressed maturity.



     SECTION 8.1.6. Judgments. Any (i) judgment or order for the payment of money
individually or in the aggregate in excess of $30,000,000 (exclusive of any amounts fully covered
by insurance (less any applicable deductible) and as to which the insurer has acknowledged its
responsibility to cover such judgment or order) shall be rendered against Holdings or any of its
Subsidiaries or any other Obligor and such judgment shall not have been vacated or discharged or
stayed or bonded pending appeal within 45 days after the entry thereof or enforcement proceedings
shall have been commenced by any creditor upon such judgment or order or (b) non-monetary judgment
or order that has had, or could reasonably be expected to have, a Material Adverse Effect.



     SECTION 8.1.7. Pension Plans. Any of the following events shall occur with respect
to any Pension Plan:




     (a) the institution of any steps by any Borrower, any member of its Controlled Group or
any other Person to terminate a Pension Plan if, as a result of such termination, such
Borrower or any such member could be required to make a contribution to such Pension Plan,
or could reasonably expect to incur a liability or obligation to such Pension Plan, in
excess of $10,000,000; or



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     (b) a contribution failure occurs with respect to any Pension Plan sufficient to give
rise to a Lien under section 302(f) of ERISA.



     SECTION 8.1.8. Change in Control. Any Change in Control shall occur.



     SECTION 8.1.9. Bankruptcy, Insolvency, etc. Holdings, any of its Subsidiaries or any
other Obligor shall:




     (a) become insolvent or generally fail to pay, or admit in writing its inability or
unwillingness generally to pay, debts as they become due;




     (b) apply for, consent to, or acquiesce in the appointment of a trustee, receiver,
sequestrator or other custodian for any substantial part of the property of any thereof, or
make a general assignment for the benefit of creditors;




     (c) in the absence of such application, consent or acquiescence, permit or suffer to
exist the appointment of a trustee, receiver, sequestrator or other custodian for a
substantial part of the property of any thereof, and such trustee, receiver, sequestrator or
other custodian shall not be discharged within 60 days; provided that Holdings, each
Borrower, each Subsidiary and each other Obligor hereby expressly authorizes each Secured
Party to appear in any court conducting any relevant proceeding during such 60-day period to
preserve, protect and defend their rights under the Loan Documents;




     (d) permit or suffer to exist the commencement of any bankruptcy, reorganization, debt
arrangement or other case or proceeding under any bankruptcy or insolvency law or any
dissolution, winding up or liquidation proceeding, in respect thereof, and, if any such case
or proceeding is not commenced by Holdings, any Borrower, any Subsidiary or any Obligor,
such case or proceeding shall be consented to or acquiesced in by Holdings, such Borrower,
such Subsidiary or such Obligor, as the case may be, or shall result in the entry of an
order for relief or shall remain for 60 days undismissed; provided that Holdings,
each Borrower, each Subsidiary and each Obligor hereby expressly authorizes each Secured
Party to appear in any court conducting any such case or proceeding during such 60-day
period to preserve, protect and defend their rights under the Loan Documents; or




     (e) take any action authorizing, or in furtherance of, any of the foregoing.



     SECTION 8.1.10. Impairment of Security, etc. Any Loan Document or any Lien granted
thereunder shall (except in accordance with its terms), in whole or in part, terminate, cease to be
effective or cease to be the legally valid, binding and enforceable obligation of any Obligor party
thereto; any Obligor or any other party shall, directly or indirectly, contest in any manner such
effectiveness, validity, binding nature or enforceability; or, except as permitted under any Loan
Document, any Lien securing any Obligation shall, in whole or in part, cease to be a perfected
first priority Lien.



     SECTION 8.2. Action if Bankruptcy. If any Event of Default described in clauses
(a) through (d) of Section 8.1.9 with respect to any Borrower shall occur, the
Commitments (if not theretofore terminated) shall automatically terminate and the outstanding
principal amount of all



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outstanding Loans and all other Obligations (including Reimbursement Obligations) shall
automatically be and become immediately due and payable, without notice or demand to any Person and
each Obligor shall automatically and immediately be obligated to Cash Collateralize all Letter of
Credit Outstandings.




     SECTION 8.3. Action if Other Event of Default. If any Event of Default (other than
any Event of Default described in clauses (a) through (d) of Section 8.1.9
with respect to any Borrower) shall occur for any reason, whether voluntary or involuntary, and be
continuing, the Administrative Agent, upon the direction of the Required Lenders, shall by notice
to any Borrower declare all or any portion of the outstanding principal amount of the Loans and
other Obligations (including Reimbursement Obligations) to be due and payable and/or the
Commitments (if not theretofore terminated) to be terminated, whereupon the full unpaid amount of
such Loans and other Obligations which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand or presentment, and/or, as the case may
be, the Commitments shall terminate and the Borrowers shall automatically and immediately be,
jointly and severally, obligated to Cash Collateralize all Letter of Credit Outstandings.
Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents shall be
vested exclusively in, and all actions and proceedings at law in connection with such enforcement
shall be instituted and maintained exclusively by, the Administrative Agent in accordance with this
Section and Section 8.2 for the benefit of all the Lenders and the Issuer;
provided, however, that the foregoing shall not prohibit (i) any Issuer or the
Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its
capacity as Issuer or Swing Line Lender, as the case may be) hereunder and under the other Loan
Documents, or (ii) any Lender from exercising setoff rights in accordance with Section 4.9.



ARTICLE IX

THE ADMINISTRATIVE AGENT




     SECTION 9.1. Actions. Each Lender hereby appoints Morgan Stanley as (i) its
Administrative Agent under and for purposes of each Loan Document and (ii) the First Lien Agent
under, and as defined in, the Intercreditor Agreement. Each Lender authorizes the Administrative
Agent (including in its capacity as First Lien Agent under, and as defined in, the Intercreditor
Agreement) to act on behalf of such Lender under each Loan Document and, in the absence of other
written instructions from the Required Lenders received from time to time by the Administrative
Agent (with respect to which the Administrative Agent agrees that it will comply, except as
otherwise provided in this Section or as otherwise advised by counsel in order to avoid
contravention of applicable law), to exercise such powers hereunder and thereunder as are
specifically delegated to or required of the Administrative Agent by the terms hereof and thereof,
together with such powers as may be incidental thereto (including the release of Liens on (x)
assets Disposed of in accordance with the terms of the Loan Documents and (y) Motor Vehicles in
connection with the Motor Vehicle Financing). Each Lender hereby indemnifies (which indemnity
shall survive any termination of this Agreement) the Administrative Agent, pro rata according to
such Lender’s proportionate Total Exposure Amount, from and against any and all liabilities,
obligations, losses, damages, claims, costs or expenses of any kind or nature whatsoever which may
at any time be imposed on, incurred by, or asserted against, the Administrative Agent in any way
relating to or arising out of any Loan Document (including



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attorneys’ fees), and as to which the Administrative Agent is not reimbursed by the Borrowers;
provided that no Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, claims, costs or expenses which are determined by a court of
competent jurisdiction in a final proceeding to have resulted from the Administrative Agent’s gross
negligence or willful misconduct. The Administrative Agent shall not be required to take any
action under any Loan Document, or to prosecute or defend any suit in respect of any Loan Document,
unless it is indemnified hereunder to its satisfaction. If any indemnity in favor of the
Administrative Agent shall be or become, in the Administrative Agent’s determination, inadequate,
the Administrative Agent may call for additional indemnification from the Lenders and cease to do
the acts indemnified against hereunder until such additional indemnity is given. The
Administrative Agent may perform any of its duties under any Loan Document by or through its
officers, directors, agents, employees, Affiliates or other designees.




     SECTION 9.2. Funding Reliance, etc. Unless the Administrative Agent shall have been
notified in writing by any Lender by 3:00 p.m. on the Business Day prior to a Borrowing that such
Lender will not make available the amount which would constitute its Percentage of such Borrowing
on the date specified therefor, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent and, in reliance upon such assumption, make available
to the Borrowers a corresponding amount. If and to the extent that such Lender shall not have made
such amount available to the Administrative Agent, such Lender and the Borrowers severally (but
jointly and severally between the Borrowers) agree to repay the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day from the date the
Administrative Agent made such amount available to the Borrowers to the date such amount is repaid
to the Administrative Agent, at the interest rate applicable at the time to Loans comprising such
Borrowing (in the case of the Borrowers) and (in the case of a Lender), at the Federal Funds Rate
(for the first two Business Days after which such amount has not been repaid), and thereafter at
the interest rate applicable to Loans comprising such Borrowing.



     SECTION 9.3. Exculpation. Neither the Administrative Agent nor any of its directors,
officers, employees or agents shall be liable to any Secured Party for any action taken or omitted
to be taken by it under any Loan Document, or in connection therewith, except for its own willful
misconduct or gross negligence, nor responsible for any recitals or warranties herein or therein,
nor for the effectiveness, enforceability, validity or due execution of any Loan Document, nor for
the creation, perfection or priority of any Liens purported to be created by any of the Loan
Documents, or the validity, genuineness, enforceability, existence, value or sufficiency of any
collateral security, nor to make any inquiry respecting the performance by any Obligor of its
Obligations. Any such inquiry which may be made by the Administrative Agent shall not obligate it
to make any further inquiry or to take any action.



     SECTION 9.4. Successor. The Administrative Agent may resign as such at any time upon
at least 30 days’ prior notice to the Term Loan Borrower and all Lenders. If the Administrative
Agent at any time shall resign, the Required Lenders may appoint another Lender as a successor
Administrative Agent which shall thereupon become the Administrative Agent hereunder. If no
successor Administrative Agent shall have been so appointed by the Required Lenders, and shall have
accepted such appointment, within 30 days after the retiring Administrative Agent’s giving notice
of resignation, then the retiring Administrative Agent may,



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on behalf of the Lenders, appoint a successor Administrative Agent, which shall be one of the
Lenders or a commercial banking institution organized under the laws of the United States (or any
State thereof) or a United States branch or agency of a commercial banking institution, and having
a combined capital and surplus of at least $250,000,000; provided that, if such retiring
Administrative Agent is unable to find a commercial banking institution which is willing to accept
such appointment and which meets the qualifications set forth in above, the retiring Administrative
Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall assume and
perform all of the duties of the Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor as provided for above. Upon the acceptance of any appointment
as Administrative Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall be entitled to receive from the retiring Administrative Agent such
documents of transfer and assignment as such successor Administrative Agent may reasonably request,
and shall thereupon succeed to and become vested with all rights, powers, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from
its duties and obligations under the Loan Documents. After any retiring Administrative Agent’s
resignation hereunder as the Administrative Agent, the provisions of this Article shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was the Administrative
Agent under the Loan Documents, and Section 11.3 and Section 11.4 shall continue to
inure to its benefit.




     SECTION 9.5. Loans by Morgan Stanley. Morgan Stanley shall have the same rights and
powers with respect to (x) the Credit Extensions made by it or any of its Affiliates, and (y) the
Notes held by it or any of its Affiliates as any other Lender and may exercise the same as if it
were not the Administrative Agent. Morgan Stanley and its Affiliates may accept deposits from,
lend money to, and generally engage in any kind of business with Holdings, the Borrowers or any
Subsidiary or Affiliate of Holdings or the Borrowers as if Morgan Stanley were not the
Administrative Agent hereunder.



     SECTION 9.6. Credit Decisions. Each Lender acknowledges that it has, independently
of the Administrative Agent and each other Lender, and based on such Lender’s review of the
financial information of the Borrowers, the Loan Documents (the terms and provisions of which being
satisfactory to such Lender) and such other documents, information and investigations as such
Lender has deemed appropriate, made its own credit decision to extend its Commitments. Each Lender
also acknowledges that it will, independently of the Administrative Agent and each other Lender,
and based on such other documents, information and investigations as it shall deem appropriate at
any time, continue to make its own credit decisions as to exercising or not exercising from time to
time any rights and privileges available to it under the Loan Documents.



     SECTION 9.7. Copies, etc. The Administrative Agent shall give prompt notice to each
Lender of each notice or request required or permitted to be given to the Administrative Agent by
any Borrower pursuant to the terms of the Loan Documents (unless concurrently delivered to the
Lenders by such Borrower). The Administrative Agent will distribute to each Lender each document
or instrument received for its account and copies of all other communications received by the
Administrative Agent from any Borrower for distribution to the Lenders by the Administrative Agent
in accordance with the terms of the Loan Documents.



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     SECTION 9.8. Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely upon any certification, notice or other communication (including any thereof by
telephone, telecopy, telegram or cable) believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper Person, and upon advice and statements of legal
counsel, independent accountants and other experts selected by the Administrative Agent. As to any
matters not expressly provided for by the Loan Documents, the Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, thereunder in accordance with
instructions given by the Required Lenders or all of the Lenders as is required in such
circumstance, and such instructions of such Lenders and any action taken or failure to act pursuant
thereto shall be binding on all Secured Parties. For purposes of applying amounts in accordance
with this Section, the Administrative Agent shall be entitled to rely upon any Secured Party that
has entered into a Rate Protection Agreement with any Obligor, or any Secured Party with respect to
which Cash Management Obligations are outstanding, for a determination (which such Secured Party
agrees to provide or cause to be provided upon request of the Administrative Agent) of the
outstanding Obligations or Cash Management Obligations owed to such Secured Party under any Rate
Protection Agreement or in respect of Cash Management Obligations. Unless it has actual knowledge
evidenced by way of written notice from any such Secured Party and any Borrower to the contrary,
the Administrative Agent, in acting in such capacity under the Loan Documents, shall be entitled to
assume that no Rate Protection Agreements or Obligations in respect thereof, or any Cash Management
Obligations, are in existence or outstanding between any Secured Party and any applicable Obligor.



     SECTION 9.9. Defaults. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default unless the Administrative Agent has received a
written notice from a Lender or any Borrower specifying such Default and stating that such notice
is a “Notice of Default”. In the event that the Administrative Agent receives such a
notice of the occurrence of a Default, the Administrative Agent shall give prompt notice thereof to
the Lenders. The Administrative Agent shall (subject to Section 11.1) take such action
with respect to such Default as shall be directed by the Required Lenders; provided that,
unless and until the Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from taking such action,
with respect to such Default as it shall deem advisable in the best interest of the Secured Parties
except to the extent that this Agreement expressly requires that such action be taken, or not be
taken, only with the consent or upon the authorization of the Required Lenders or all Lenders.



     SECTION 9.10. Lead Arrangers, Other Agents. The Lead Arrangers, the Co-Syndication
Agents and the Documentation Agent shall not have any right, power, obligation, liability,
responsibility or duty under this Agreement (or any other Loan Document) other than those
applicable to all Lenders as such. Without limiting the foregoing, the Lead Arrangers, the
Co-Syndication Agents and the Documentation Agent shall not have or be deemed to have any fiduciary
relationship with any other Lender. Each Lender acknowledges that it has not relied, and will not
rely, on the Lead Arrangers, the Co-Syndication Agents or the Documentation Agent in deciding to
enter into this Agreement and each other Loan Document to which it is a party or in taking or not
taking action hereunder or thereunder.



     SECTION 9.11. Posting of Approved Electronic Communications.



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     (a) Each Borrower hereby agrees, unless directed otherwise by the Administrative Agent
or unless the electronic mail address referred to below has not been provided by the
Administrative Agent to any Borrower, that it will, or will cause its Subsidiaries to,
provide to the Administrative Agent all information, documents and other materials that it
is obligated to furnish to the Administrative Agent pursuant to the Loan Documents or to the
Lenders under Section 7.1.1, including all notices, requests, financial statements,
financial and other reports, certificates and other information materials, but excluding any
such communication that (i) is or relates to a Borrowing Request, a Continuation/Conversion
Notice or an Issuance Request, (ii) relates to the payment of any principal or other amount
due under this Agreement prior to the scheduled date therefor, (iii) provides notice of any
Default under this Agreement or any other Loan Document or (iv) is required to be delivered
to satisfy any condition precedent to the effectiveness of this Agreement and/or any
Borrowing or other extension of credit hereunder (all such non-excluded communications being
referred to herein collectively as “Communications”), by transmitting the
Communications in an electronic/soft medium that is properly identified in a format
reasonably acceptable to the Administrative Agent to an electronic mail address as directed
by the Administrative Agent. In addition, each of Holdings and each Borrower agrees, and
agrees to cause its Subsidiaries, to continue to provide the Communications to the
Administrative Agent or the Lenders, as the case may be, in the manner specified in the Loan
Documents but only to the extent requested by the Administrative Agent.




     (b) The Borrowers further agree that the Administrative Agent may make the
Communications available to the Lenders by posting the Communications on Intralinks or a
substantially similar electronic transmission system (the “Platform”).




     (c) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE INDEMNIFIED PARTIES DO
NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS OR THE ADEQUACY OF THE
PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO
WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE INDEMNIFIED PARTIES IN CONNECTION
WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE INDEMNIFIED PARTIES HAVE ANY
LIABILITY TO ANY OBLIGOR, ANY LENDER OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR
NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING
OUT OF ANY OBLIGOR’S OR THE ADMINISTRATIVE AGENT’ TRANSMISSION OF COMMUNICATIONS THROUGH THE
INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY INDEMNIFIED PARTY IS FOUND IN A FINAL
RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH INDEMNIFIED
PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR BAD FAITH.



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     (d) The Administrative Agent agrees that the receipt of the Communications by the
Administrative Agent at its e-mail address delivered to any Borrower shall constitute
effective delivery of the Communications to the Administrative Agent for purposes of the
Loan Documents. Each Lender agrees that receipt of notice to it (as provided in the next
sentence) specifying that the Communications have been posted to the Platform shall
constitute effective delivery of the Communications to such Lender for purposes of the Loan
Documents. Each Lender agrees to notify the Administrative Agent in writing (including by
electronic communication) from time to time of such Lender’s e-mail address to which the
foregoing notice may be sent by electronic transmission and that the foregoing notice may be
sent to such e-mail address.



     Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give any
notice or other communication pursuant to any Loan Document in any other manner specified in such
Loan Document.



ARTICLE X

HOLDINGS GUARANTY




     SECTION 10.1. Guaranty. Holdings hereby absolutely, unconditionally and irrevocably:




     (a) guarantees the full and punctual payment when due, whether at stated maturity, by
required prepayment, declaration, acceleration or otherwise, of all Obligations of the
Borrowers now or hereafter existing, whether for principal, interest (including interest
accruing at the then applicable rate provided in the Agreement after the occurrence of any
Default set forth in Section 8.1.9, whether or not a claim for post-filing or
post-petition interest is allowed under applicable law following the institution of a
proceeding under bankruptcy, insolvency or similar laws), fees, Reimbursement Obligations,
expenses or otherwise (including all such amounts which would become due but for the
operation of the automatic stay under Section 362(a) of the United States Bankruptcy Code,
11 U.S.C. §362(a), and the operation of Sections 502(b) and 506(b) of the United States
Bankruptcy Code, 11 U.S.C. §502(b) and §506(b)); and




     (b) indemnifies and holds harmless each Secured Party for any and all costs and
expenses (including attorneys’ fees and expenses) incurred by such Secured Party after the
occurrence and during the continuance of an Event of Default in enforcing any rights under
this Agreement;


Holdings’ obligations under this Article constitute a guaranty of payment when due and not of
collection, and each Borrower specifically agrees that it shall not be necessary or required that
any Secured Party exercise any right, assert any claim or demand or enforce any remedy whatsoever
against any Borrower or any other Person before or as a condition to the obligations of Holdings
hereunder.




     SECTION 10.2. Reinstatement, etc. Holdings hereby agrees that its obligations under
this Article shall continue to be effective or be reinstated, as the case may be, if at any time
any payment (in whole or in part) of any of the Obligations is invalidated, declared to be
fraudulent or preferential, set aside, rescinded or must otherwise be restored by any Secured
Party,



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including upon the occurrence of any Default set forth in Section 8.1.9 or otherwise,
all as though such payment had not been made.




     SECTION 10.3. Guaranty Absolute, etc. Holdings’ obligations under this Article shall
in all respects be a continuing, absolute, unconditional and irrevocable guaranty of payment, and
shall, unless thereafter reinstated in accordance with Section 10.2, remain in full force
and effect until the Termination Date. Holdings guarantees, to the fullest extent permitted under
applicable law, that the Obligations will be paid strictly in accordance with the terms of each
Loan Document under which they arise, regardless of any law, regulation or order now or hereafter
in effect in any jurisdiction affecting any of such terms or the rights of any Secured Party with
respect thereto. The liability of Holdings under this Article shall, to the fullest extent
permitted under applicable law, be absolute, unconditional and irrevocable irrespective of:




     (a) any lack of validity, legality or enforceability of any Loan Document (other than
this Article X);




     (b) the failure of any Secured Party:




     (i) to assert any claim or demand or to enforce any right or remedy against the
Borrowers or any other Person (including any other Guarantor) under the provisions
of any Loan Document or otherwise, or




     (ii) to exercise any right or remedy against any other Guarantor of, or
collateral securing, any Obligations;




     (c) any change in the time, manner or place of payment of, or in any other term of, all
or any part of the Obligations, or any other extension, compromise or renewal of any
Obligation;




     (d) any reduction, limitation, impairment or termination of any Obligations for any
reason, including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to (and each Borrower hereby irrevocably waives, until payment of all
Obligations, any right to or claim of) any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality, nongenuineness,
irregularity, compromise, unenforceability of, or any other event or occurrence affecting,
any Obligations or otherwise;




     (e) any amendment to, rescission, waiver, or other modification of, or any consent to
or departure from, any of the terms of any Loan Document;




     (f) any addition, exchange or release of any collateral or of any Person that is (or
will become) a Guarantor of the Obligations, or any surrender or non-perfection of any
collateral, or any amendment to or waiver or release or addition to, or consent to or
departure from, any other guaranty held by any Secured Party securing any of the
Obligations; or



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     (g) any other circumstance which might otherwise constitute a defense available to, or
a legal or equitable discharge of, any Borrower, any surety or any Guarantor (other than the
defense of payment in full in cash or performance in full).



     SECTION 10.4. Waiver, etc. Except for any notices expressly required to be delivered
to a Borrower hereunder, each Borrower hereby waives promptness, diligence, notice of acceptance
and any other notice with respect to any of the Obligations and the guaranty set forth in this
Article X and any requirement that any Secured Party protect, secure, perfect or insure any
Lien, or any property subject thereto, or exhaust any right or take any action against any Borrower
or any other Person (including Holdings) or entity or any collateral securing the Obligations, as
the case may be.



     SECTION 10.5. Postponement of Subrogation, etc. Holdings agrees that it will not
exercise any rights which it may acquire by way of rights of subrogation hereunder, nor shall
Holdings seek or be entitled to seek any contribution or reimbursement from any Borrower, in
respect of any payment made hereunder, until following the Termination Date. Any other amount paid
to Holdings on account of any such subrogation rights prior to the Termination Date shall be held
in trust for the benefit of the Secured Parties and shall immediately be paid and turned over to
the Administrative Agent for the benefit of the Secured Parties in the exact form received by
Holdings (duly endorsed in favor of the Administrative Agent, if required), to be credited and
applied against the Obligations, whether matured or unmatured, in accordance with
Section 4.7; provided that if the Obligors have made payment to the Secured Parties
of all or any part of the Obligations and the Termination Date has occurred, then at any Borrower’s
request, the Administrative Agent (on behalf of the Secured Parties) will, at the expense of
Holdings, execute and deliver to such Borrower appropriate documents (without recourse and without
representation or warranty) necessary to evidence the transfer by subrogation to such Borrower of
an interest in the Obligations resulting from such payment. In furtherance of the foregoing, at
all times prior to the Termination Date, Holdings shall refrain from taking any action or
commencing any proceeding against any Borrower (or its successors or assigns, whether in connection
with a bankruptcy proceeding or otherwise) to recover any amounts in respect of payments made
hereunder to any Secured Party.



ARTICLE XI

MISCELLANEOUS PROVISIONS




     SECTION 11.1. Waivers, Amendments, etc. The provisions of each Loan Document (other
than Rate Protection Agreements, Letters of Credit or a Fee Letter, which shall be modified only in
accordance with their respective terms) may from time to time be amended, modified or waived, if
such amendment, modification or waiver is in writing and consented to by the Borrowers, Holdings
and the Required Lenders; provided that no such amendment, modification or waiver shall:




     (a) modify clause (b) of Section 4.7, Section 4.8 (as each
relates to sharing of payments) or this Section, in each case, without the consent of all
Lenders;




     (b) increase the aggregate amount of any Credit Extensions required to be made by a
Lender pursuant to its Commitments, extend the final Commitment



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Termination Date of Credit Extensions made (or participated in) by a Lender or extend
the final Stated Maturity Date for any Lender’s Loan or Synthetic Deposit, in each case
without the consent of such Lender (it being agreed, however, that any vote to rescind any
acceleration made pursuant to Section 8.2 and Section 8.3 of amounts owing
with respect to the Loans and other Obligations shall only require the vote of the Required
Lenders);




     (c) reduce (other than by way of (and to the extent of) payment in cash) the principal
amount of or reduce the rate of interest on any Lender’s Loan, reduce any fees or prepayment
premium described in Article III payable to any Lender or extend the date on which
interest or fees are payable in respect of such Lender’s Loans, in each case without the
consent of such Lender (provided that the vote of Required Lenders shall be
sufficient to (i) waive the payment, or reduce the increased portion, of interest accruing
under Section 3.2.2 and (ii) amend the definition of “Applicable Margin” following
the withdrawal by S&P and Moody’s of an Applicable Rating);




     (d) reduce the percentage set forth in the definition of “Required Lenders” or
modify any requirement hereunder that any particular action be taken by (i) all Lenders
without the consent of all Lenders or (ii) any specific Lender without the consent of such
Lender;




     (e) increase the Stated Amount of any Letter of Credit unless consented to by the
Issuer of such Letter of Credit;




     (f) except as otherwise expressly provided in a Loan Document, release (i) any Borrower
from its Obligations under the Loan Documents, (ii) Holdings or any other Guarantor (other
than an Immaterial Subsidiary) from its obligations under a guaranty of the Obligations or
(iii) all or substantially all of the collateral under the Loan Documents, in each case
without the consent of all Lenders; or




     (g) affect adversely the interests, rights or obligations of the Administrative Agent
(in its capacity as the Administrative Agent), any Issuer (in its capacity as Issuer), or
the Swing Line Lender (in its capacity as Swing Line Lender) unless consented to by the
Administrative Agent or such Issuer, as the case may be.


No failure or delay on the part of any Secured Party in exercising any power or right under any
Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any
such power or right preclude any other or further exercise thereof or the exercise of any other
power or right. No notice to or demand on any Obligor in any case shall entitle it to any notice
or demand in similar or other circumstances. No waiver or approval by any Secured Party under any
Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to
subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar
waiver or approval thereafter to be granted hereunder.




     Any term or provision of this Section 11.1 to the contrary notwithstanding, if the
Administrative Agent, Holdings and the Borrowers shall have jointly identified an obvious error or
any error or omission of a technical or immaterial nature in any provision of the Loan



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Documents, then the Administrative Agent, Holdings and the Borrowers shall be permitted to
amend such provision and such amendment shall become effective without any further action or
consent of any other party to any Loan Document.




     SECTION 11.2. Notices; Time. All notices and other communications provided under
each Loan Document shall be in writing or by facsimile and addressed, delivered or transmitted, if
to Holdings, any Borrower, the Administrative Agent, a Lender or an Issuer, to the applicable
Person at its address or facsimile number set forth on Schedule II hereto or set forth in
the Lender Assignment Agreement, or at such other address or facsimile number as may be designated
by such party in a notice to the other parties. Any notice, if mailed and properly addressed with
postage prepaid or if properly addressed and sent by pre-paid courier service, shall be deemed
given when received; any notice, if transmitted by facsimile, shall be deemed given when the
confirmation of transmission thereof is received by the transmitter. Electronic mail and Internet
and intranet websites may be used only to distribute routine communications by the Administrative
Agent to the Lender, such as financial statements and other information as provided in
Section 7.1.1 and for the distribution and execution of Loan Documents for execution by the
parties thereto, and may not be used for any other purpose. The parties hereto agree that delivery
of an executed counterpart of a signature page to this Agreement and each other Loan Document by
facsimile (or electronic transmission) shall be effective as delivery of an original executed
counterpart of this Agreement or such other Loan Document. Unless otherwise indicated, all
references to the time of a day in a Loan Document shall refer to New York time.



     SECTION 11.3. Payment of Costs and Expenses. The Borrowers, jointly and severally,
agree to pay on demand all reasonable and documented expenses of the Administrative Agent
(including the fees and out-of-pocket expenses of Mayer, Brown, Rowe & Maw LLP, counsel to the
Administrative Agent and of local counsel, if any, who may be retained by or on behalf of the
Administrative Agent) in connection with:




     (a) the negotiation, preparation, execution and delivery of each Loan Document and each
Shareholder Loan Document, including schedules and exhibits, and any amendments, waivers,
consents, supplements or other modifications to any Loan Document and any Shareholder Loan
Document as may from time to time hereafter be required, whether or not the transactions
contemplated hereby are consummated; and




     (b) the filing or recording of any Loan Document (including the Filing Statements) or
any Shareholder Loan Document and all amendments, supplements, amendment and restatements
and other modifications to any thereof, searches made following the Closing Date in
jurisdictions where Filing Statements (or other documents evidencing Liens in favor of the
Secured Parties) have been recorded and any and all other documents or instruments of
further assurance required to be filed or recorded by the terms of any Loan Document; and




     (c) the preparation and review of the form of any document or instrument relevant to
any Loan Document or Shareholder Loan Document.



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     The Borrowers further, jointly and severally, agree to pay, and to save each Secured Party
harmless from all liability for, any stamp or other taxes which may be payable in connection with
the execution or delivery of each Loan Document, each Shareholder Loan Document the Credit
Extensions or the issuance of the Notes. The Borrowers also, jointly and severally, agree to
reimburse the Administrative Agent (in the case of clauses (x) and (y) below) and
each other Secured Party (in the case of clause (y) below) upon demand for all reasonable
out-of-pocket expenses (including reasonable attorneys’ fees and legal expenses of counsel to the
Administrative Agent (and in the case of clause (y) below, each other Secured Party))
incurred by the Administrative Agent (and in the case of clause (y) below, each other
Secured Party)) in connection with (x) the negotiation of any restructuring or “work-out” with any
Borrower, whether or not consummated, of any Obligations and (y) the enforcement of any
Obligations.



     SECTION 11.4. Indemnification. In consideration of the execution and delivery of
this Agreement by each Secured Party, the Borrowers hereby, jointly and severally, agree to
indemnify, exonerate and hold each Secured Party (in the case of any counterparty to any Rate
Protection Agreement, solely in its capacity as a Secured Party) and each of their respective
officers, directors, employees and agents (collectively, the “Indemnified Parties,” and any
such Secured Party’s respective officers, directors, employees and agents being, collectively,
“Related Parties”) free and harmless from and against any and all actions, causes of
action, suits, losses, costs, liabilities and damages, and expenses incurred in connection
therewith (irrespective of whether any such Indemnified Party is a party to the action for which
indemnification hereunder is sought), including reasonable attorneys’ fees and disbursements,
whether incurred in connection with actions between or among the parties hereto or the parties
hereto and third parties (collectively, the “Indemnified Liabilities”), incurred by the
Indemnified Parties or any of them as a result of, or arising out of, or relating to:




     (a) any transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of any Credit Extension, including all Indemnified Liabilities
arising in connection with the Transactions;




     (b) the entering into and performance of any Loan Document by any of the Indemnified
Parties (including any action brought by or on behalf of any Borrower as the result of any
determination by the Required Lenders pursuant to Article V not to fund any Credit
Extension; provided that any such action is resolved in favor of such Indemnified
Party);




     (c) any investigation, litigation or proceeding related to any acquisition or proposed
acquisition by any Obligor or any Subsidiary thereof of all or any portion of the Capital
Securities or assets of any Person, whether or not an Indemnified Party is party thereto;




     (d) any investigation, litigation or proceeding related to any environmental cleanup,
audit, compliance or other matter relating to the protection of the environment or the
Release by any Obligor or any Subsidiary thereof of any Hazardous Material;




     (e) the presence on or under, or the escape, seepage, leakage, spillage, discharge,
emission, discharging or releases from, any real property owned or operated



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by any Obligor or any Subsidiary thereof of any Hazardous Material (including any
losses, liabilities, damages, injuries, costs, expenses or claims asserted or arising under
any Environmental Law), regardless of whether caused by, or within the control of, such
Obligor or Subsidiary; or




     (f) each Lender’s Environmental Liability (the indemnification herein shall survive
repayment of the Obligations and any transfer of the property of any Obligor or its
Subsidiaries by foreclosure or by a deed in lieu of foreclosure for any Lender’s
Environmental Liability, regardless of whether caused by, or within the control of, such
Obligor or such Subsidiary);


except for Indemnified Liabilities arising for the account of a particular Indemnified Party by
reason of the relevant Indemnified Party’s (or any Related Party of such Indemnified Party) gross
negligence or willful misconduct. Each Obligor and its successors and assigns hereby waive,
release and agree not to make any claim or bring any cost recovery action against, any Indemnified
Party under CERCLA or any state equivalent, or any similar law now existing or hereafter enacted.
It is expressly understood and agreed that to the extent that any Indemnified Party is strictly
liable under any Environmental Laws, each Obligor’s obligation to such Indemnified Party under this
indemnity shall likewise be without regard to fault on the part of any Obligor with respect to the
violation or condition which results in liability of an Indemnified Party. If and to the extent
that the foregoing undertaking may be unenforceable for any reason, each Obligor agrees to make the
maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which
is permissible under applicable law. To the extent permitted by applicable law, the Borrowers
shall not assert, and hereby waive, any claim against any Indemnified Party on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement or any other Loan
Document, any Credit Extension or the use of the proceeds thereof.




     SECTION 11.5. Survival. The obligations of the Borrowers under
Sections 2.6.3, 4.3, 4.4, 4.5, 4.6, 4.7,
11.3 and 11.4, and the obligations of the Lenders under Section 9.1, shall
in each case survive any assignment from one Lender to another (in the case of
Sections 11.3 and 11.4) and the occurrence of the Termination Date. The
representations and warranties made by each Obligor in each Loan Document shall survive the
execution and delivery of such Loan Document.



     SECTION 11.6. Severability. Any provision of any Loan Document which is prohibited
or unenforceable in any jurisdiction shall, as to such provision and such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of such Loan Document or affecting the validity or enforceability of such
provision in any other jurisdiction.



     SECTION 11.7. Headings. The various headings of each Loan Document are inserted for
convenience only and shall not affect the meaning or interpretation of such Loan Document or any
provisions thereof.



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     SECTION 11.8. Execution in Counterparts, Effectiveness, etc. This Agreement may be
executed by the parties hereto in several counterparts, each of which shall be an original and all
of which shall constitute together but one and the same agreement. This Agreement shall become
effective when counterparts hereof executed on behalf of Holdings, Acquisition Co., Swift Nevada,
Swift Arizona, the Administrative Agent and each Lender (or notice thereof satisfactory to the
Administrative Agent), shall have been received by the Administrative Agent.



     SECTION 11.9. Governing Law; Entire Agreement. EACH LOAN DOCUMENT (OTHER THAN THE
LETTERS OF CREDIT, TO THE EXTENT SPECIFIED BELOW AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN A
LOAN DOCUMENT) WILL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK). EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO LAWS
OR RULES ARE DESIGNATED, THE INTERNATIONAL STANDBY PRACTICES (ISP98 INTERNATIONAL CHAMBER OF
COMMERCE PUBLICATION NUMBER 590 (THE “ISP RULES”)) AND, AS TO MATTERS NOT GOVERNED BY THE
ISP RULES, THE INTERNAL LAWS OF THE STATE OF NEW YORK. The Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject matter thereof and supersede any
prior agreements, written or oral, with respect thereto.



     SECTION 11.10. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors and assigns;
provided that the Borrowers may not assign or transfer its rights or obligations hereunder
to any Person without the consent of all Lenders.



     SECTION 11.11. Sale and Transfer of Credit Extensions; Participations in Credit
Extensions; Notes. Each Lender may assign, or sell participations in, its Loans, Letters of
Credit, Synthetic Deposits and Commitments to one or more other Persons in accordance with the
terms set forth below.




     (a) Subject to clause (b), any Lender may assign to one or more Eligible
Assignees all or a portion of its rights and obligations under the Loan Documents (including
all or a portion of its Commitments, Synthetic Deposits and the Loans at the time owing to
it); provided that:




     (i) except in the case of (A) an assignment of the entire remaining amount of
the assigning Lender’s Commitments, Synthetic Deposits and the Loans at the time
owing to it or (B) an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund with respect to a Lender, the aggregate amount of the Commitments
(which for this purpose includes Loans and Synthetic Deposits outstanding
thereunder) or principal outstanding balance of the Loans or aggregate Synthetic
Deposits of the assigning Lender subject to each such assignment (determined as of
the date the Lender Assignment Agreement with respect to such assignment is
delivered to the Administrative Agent) shall not be



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less than (x) in the case of Term Loans, Term Loan Commitments or Synthetic
Deposits, $1,000,000 and (y) in the case of Revolving Loans or Revolving Loan
Commitments, $5,000,000, in each case unless the Administrative Agent and, so long
as no Event of Default has occurred and is continuing, the Borrowers, otherwise
consent;




     (ii) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender’s rights and obligations under this Agreement with
respect to the Loans, Synthetic Deposits and the Commitments assigned, except that
this clause (a)(ii) shall not prohibit any Lender from assigning all or a
portion of its rights and obligations among separate tranches on a non-pro rata
basis; and




     (iii) the parties to each assignment shall execute and deliver to the
Administrative Agent a Lender Assignment Agreement and if the Eligible Assignee is
not already Lender, administrative details information with respect to such Eligible
Assignee and applicable tax forms.




     (b) Except in the case of assignments made pursuant to the primary syndication of the
Commitments under this Agreement, any assignment proposed pursuant to clause (a) to
any Person (other than a Lender or an Approved Fund) shall be subject to the prior written
approval of (i) the Administrative Agent (not to be unreasonably withheld), (ii) in the case
of any assignment of any Revolving Loan Commitment, the Swing Line Lender and each Revolving
Issuer, (iii) in the case of any assignment of Synthetic Deposits, each Synthetic Issuer
(not to be unreasonably withheld) and (iv) solely with respect to assignments of Revolving
Loans and Revolving Loan Commitments, and so long as no Event of Default has occurred and is
continuing on the date such assignment is to become effective, the Borrowers (not to be
unreasonably withheld). If the consent of the Borrowers to an assignment or to an Eligible
Assignee is required hereunder (including a consent to an assignment which does not meet the
minimum assignment thresholds specified in this Section), the Borrowers shall be deemed to
have given its consent ten Business Days after the date notice thereof has been delivered by
the assigning Lender (through the Administrative Agent) to the Borrowers, unless such
consent is expressly refused by the Borrowers in writing prior to such tenth Business Day.




     (c) Subject to acceptance and recording thereof by the Administrative Agent pursuant to
clause (d), from and after the effective date specified in each Lender Assignment
Agreement, (i) the Eligible Assignee thereunder shall (if not already a Lender) be a party
hereto and, to the extent of the interest assigned by such Lender Assignment Agreement, have
the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning
Lender thereunder shall (subject to Section 11.5) be released from its obligations
under the Loan Documents, to the extent of the interest assigned by such Lender Assignment
Agreement (and, in the case of a Lender Assignment Agreement covering all of the assigning
Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a
party hereto, but shall (as to matters arising prior to the effectiveness of the Lender
Assignment Agreement) continue



114









 







to be entitled to the benefits of any provisions of the Loan Documents which by their
terms survive the termination of this Agreement). Any term or provision hereof to the
contrary notwithstanding, no portion of any Synthetic Deposit of any assigning Synthetic
Lender shall be refunded in connection with any assignment by such Synthetic Lender, but
instead (x) the applicable Eligible Assignee shall purchase from such assigning Synthetic
Lender that portion of the Synthetic Deposit identified in the applicable Lender Assignment
Agreement for such consideration as is mutually agreed upon by such parties; and (y) such
assigned portion of such Synthetic Deposit shall remain on deposit in the Synthetic Deposit
Account and, upon the effectiveness of such assignment, shall become the Synthetic Deposit
of such Eligible Assignee. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with the terms of this Section shall be treated
for purposes of the Loan Documents as a sale by such Lender of a participation in such
rights and obligations in accordance with clause (e).




     (d) The Administrative Agent shall record each assignment made in accordance with this
Section in the Register pursuant to clause (a) of Section 2.7. The Register
shall be available for inspection by any Borrower and any Lender, at any reasonable time
upon reasonable prior notice to the Administrative Agent. In connection with each
assignment of Synthetic Deposit Amounts, the Synthetic Deposit of the assignor Lender shall
not be released, but shall instead be purchased by the relevant Eligible Assignee and
continue to be held for application (to the extent not already applied) in accordance with
Article II to satisfy such Eligible Assignee’s obligations in respect of Synthetic
Deposit Amounts and Synthetic Letters of Credit. Each Synthetic Lender agrees that
immediately prior to each assignment by a Synthetic Lender, a corresponding portion of the
Synthetic Deposit in respect of the assignor Lender’s Synthetic Deposit Allocation shall be
purchased by the Eligible Assignee and shall be transferred from the assignor’s Synthetic
Deposit Allocation to the Eligible Assignee’s Synthetic Deposit Allocation.




     (e) Any Lender may, without the consent of, or notice to, any Person, sell
participations to one or more Persons (other than individuals) (a “Participant”) in
all or a portion of such Lender’s rights or obligations under the Loan Documents (including
all or a portion of its Commitments, Synthetic Deposits or the Loans owing to it);
provided that, (i) such Lender’s obligations under the Loan Documents shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (iii) the Borrowers, the Administrative Agent and
the other Lenders shall continue to deal solely and directly with such Lender in connection
with such Lender’s rights and obligations under the Loan Documents. Any agreement or
instrument pursuant to which a Lender sells a participation shall provide that such Lender
shall retain the sole right to enforce the rights and remedies of a Lender under the Loan
Documents and to approve any amendment, modification or waiver of any provision of the Loan
Documents; provided that, such agreement or instrument may provide that such Lender
will not, without the consent of the Participant, take any action of the type described in
clauses (a) through (d) or clause (f) of Section 11.1 with
respect to Obligations participated in by that Participant. Subject to clause (f),
the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 4.3, 4.4, 4.5, 4.6,



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7.1.1, 11.3 and 11.4 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to clause (c). To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 4.9 as though it were a Lender, but only if such Participant agrees to be
subject to Section 4.8 as though it were a Lender.




     (f) A Participant shall not be entitled to receive any greater payment under
Section 4.3, 4.4, 4.5, 4.6, 11.3 or 11.4
than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrowers’ prior written consent. A Participant that would be
a Non-U.S. Lender if it were a Lender shall not be entitled to the benefits of
Section 4.6 unless the Borrowers are notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrowers, to comply with
the requirements set forth in Section 4.6 as though it were a Lender. Any Lender
that sells a participating interest in any Loan, Commitment, Synthetic Deposit or other
interest to a Participant under this Section shall indemnify and hold harmless the Borrowers
and the Administrative Agent from and against any taxes, penalties, interest or other costs
or losses (including reasonable attorneys’ fees and expenses) incurred or payable by the
Borrowers or the Administrative Agent as a result of the failure of the Borrower or the
Administrative Agent to comply with its obligations to deduct or withhold any Taxes from any
payments made pursuant to this Agreement to such Lender or the Administrative Agent, as the
case may be, which Taxes would not have been incurred or payable if such Participant had
been a Non-U.S. Lender that was entitled to deliver to the Borrowers, the Administrative
Agent or such Lender, and did in fact so deliver, a duly completed and valid Form W-8BEN or
W-8ECI (or applicable successor form) entitling such Participant to receive payments under
this Agreement without deduction or withholding of any United States federal taxes.




     (g) Any Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender, including
any pledge or assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment of a security interest shall release a Lender from any of
its obligations hereunder or substitute any such pledgee or assignee for such Lender as a
party hereto.




     (h) In the event that S&P or Moody’s, shall, after the date that any Person becomes a
Revolving Loan Lender or Synthetic Lender, downgrade the long-term certificate of deposit
ratings of such Lender, and the resulting ratings shall be below BBB- or Baa3,
respectively, or the equivalent, then the Revolving Loan Borrower, the Swing Line Lender and
each Issuer shall each have the right, but not the obligation, upon notice to such Revolving
Loan Lender or Synthetic Lender, as applicable, and the Administrative Agent, to replace
such Revolving Loan Lender or Synthetic Lender with an Eligible Assignee or a financial
institution (a “Replacement Lender”) acceptable to the Revolving Loan Borrower, the
Administrative Agent, the Issuers and the Swing Line Lender (such consents not to be
unreasonably withheld or delayed; provided that no such consent shall be required if
the Replacement Lender is an existing Revolving Loan Lender or Synthetic Lender, as
applicable), and upon any such downgrading of any Revolving Loan Lender’s or Synthetic
Lender’s long-term certificate of deposit rating,



116









 







such Revolving Loan Lender or Synthetic Lender, as applicable, hereby agrees to
transfer and assign (in accordance with this Section) all of its Commitments and other
rights and obligations under the Loan Documents (including Reimbursement Obligations) to
such Replacement Lender; provided that, (i) such assignment shall be without
recourse, representation or warranty (other than that such Lender owns the Commitments,
Loans and Notes being assigned, free and clear of any Liens) and (ii) the purchase price
paid by the Replacement Lender shall be in the amount of (x) in the case of any Revolving
Loan Lender, such Revolving Loan Lender’s Loans and its Percentage of outstanding
Reimbursement Obligations and (y) in the case of any Synthetic Lender, such Synthetic
Lender’s Synthetic Deposit and its Percentage of Outstanding Reimbursement Obligations, in
each case, together with all accrued and unpaid interest and fees in respect thereof, plus
all other amounts (other than the amounts (if any) demanded and unreimbursed under
Sections 4.2 through (and including) 4.6, which shall be paid by the
Borrowers), owing to such Revolving Loan Lender or Synthetic Lender, as applicable,
hereunder. Upon any such termination or assignment, such Revolving Loan Lender or Synthetic
Lender, as applicable, shall cease to be a party hereto but shall continue to be entitled to
the benefits of, and subject to the obligations of, any provisions of the Loan Documents
which by their terms survive the termination of this Agreement.




     (i) Any Lender that sells a participating interest in any Loan or other interest to a
Participant shall, as agent of the Borrower solely for the purpose of this Section
11.11, record in book entries maintained by such Lender the name and the amount of
the participating interest of each Participant entitled to receive payments in respect of
such participating interests.



     SECTION 11.12. Other Transactions. Nothing contained herein shall preclude the
Administrative Agent, any Issuer or any other Lender from engaging in any transaction, in addition
to those contemplated by the Loan Documents, with the Borrowers or any of its Affiliates in which
the Borrowers or such Affiliate is not restricted hereby from engaging with any other Person.



     SECTION 11.13. Forum Selection and Consent to Jurisdiction. ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, ANY LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE
AGENT, THE LENDERS, ANY ISSUER OR THE BORROWERS IN CONNECTION HEREWITH OR THEREWITH MAY BE BROUGHT
AND MAINTAINED IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED THAT, ANY SUIT SEEKING ENFORCEMENT AGAINST ANY
COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT’S OPTION, IN THE COURTS OF
ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH BORROWER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR NOTICES SPECIFIED IN SECTION
11.2. EACH BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED



117









 




BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY
SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY BORROWER HAS OR HEREAFTER MAY
ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH
SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH
RESPECT TO ITSELF OR ITS PROPERTY, SUCH BORROWER HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT
PERMITTED BY LAW SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THE LOAN DOCUMENTS.




     SECTION 11.14. Waiver of Jury Trial. THE ADMINISTRATIVE AGENT, EACH LENDER, EACH
ISSUER, HOLDINGS AND EACH BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE TO THE
FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, EACH LOAN DOCUMENT, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE
ADMINISTRATIVE AGENT, SUCH LENDER, SUCH ISSUER, HOLDINGS OR SUCH BORROWER IN CONNECTION THEREWITH.
EACH OF HOLDINGS AND EACH BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT
IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT, EACH
LENDER AND EACH ISSUER ENTERING INTO THE LOAN DOCUMENTS. EACH PARTY HERETO 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.



     SECTION 11.15. National Security Laws. Each Lender hereby notifies the Borrowers
that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56, signed into
law October 26, 2001 (the “Act”)), it is required to obtain, verify and record information
that identifies the Borrowers, which information includes the name, address and tax identification
number of the Borrowers and other information that will allow such Lender to identify the Borrowers
in accordance with the Act.


Notwithstanding any other provision of this Agreement, no Lender will assign its rights and
obligations under this Agreement, or sell participations in its rights and/or obligations under
this Agreement, to any Person who is (i) listed on the Specially Designated Nationals and Blocked
Persons List maintained by the U.S. Department of Treasury Office of Foreign Assets Control
(“OFAC”) and/or on any other similar list maintained by OFAC pursuant to any authorizing
statute, executive order or regulation or (ii) either (A) included within the term “designated
national” as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515 or (B) designated
under Sections 1(a), 1(b), 1(c) or 1(d) of Executive Order No. 13224, 66 Fed. Reg.






118









 







49079 (published September 25, 2001) or similarly designated under any related enabling legislation
or any other similar executive orders.




ARTICLE XII

NATURE OF BORROWERS’ OBLIGATIONS




     SECTION 12.1. Nature of Obligations. Notwithstanding anything to the contrary
contained elsewhere in this Agreement, it is understood and agreed by the various parties to this
Agreement that all Obligations to repay principal of, interest on, and all other amounts with
respect to, all Loans and all other Obligations pursuant to this Agreement in respect of the Loans
or Commitments and under any Note (including without limitation, all fees, indemnities, taxes and
other Obligations in connection therewith or in connection with the related Commitments) shall
constitute the joint and several obligations of the Borrowers. In addition to the direct
obligations with respect to the Obligations as described above, all such Obligations shall be
guaranteed pursuant to, and in accordance with the terms of, the Subsidiary Guaranty.



     SECTION 12.2. Independent Obligation. The obligations of each of the Borrowers with
respect to the Obligations are independent of the obligations of the other or any other guarantor,
and a separate action or actions may be brought and prosecuted against each Borrower, whether or
not the other or any other guarantor is joined in any such action or actions. Each Borrower
waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting
its liability hereunder or the enforcement thereof. Any payment by either Borrower or other
circumstance which operates to toll any statute of limitations as to such Person shall, to the
fullest extent permitted by law, operate to toll the statute of limitations as to each Borrower.



     SECTION 12.3. Authorization. To the extent that Borrowers are jointly and severally
liable for any Obligation, each of the Borrowers authorizes the Administrative Agent and the
Lenders without notice or demand (except as shall be required by applicable statute and cannot be
waived), and without affecting or impairing its liability hereunder, from time to time to:




     (a) exercise or refrain from exercising any rights against the other Borrower or any
guarantor or others or otherwise act o refrain from acting;




     (b) release or substitute the other Person, endorsers, guarantors or other obligors;




     (c) settle or compromise any of the Obligations of the other Person or any other
Obligor, any security therefor or any liability (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and may subordinate the payment of all
or any part thereof to the payment of any liability (whether due or not) of either Borrower
to its creditors other than the Lenders;




     (d) apply any sums paid by the other Person or any other Person, however realized to
any liability or liabilities of such Person or other Person remain unpaid; and/or




     (e) consent to or waive any breach of, or act, omission or default under, this
Agreement or any of the instruments or agreements referred to herein, or otherwise, by the
other Person or any other Person.



119









 





     SECTION 12.4. Reliance. It is not necessary for the Administrative Agent or any
other Lender to inquire into the capacity or powers of either Borrower or any of their respective
Subsidiaries or the officers, directors, members, partners or agents acting or purporting to act on
its behalf, and any Obligations made or created in reliance upon the professed exercise of such
powers shall constitute the joint and several obligations of the Borrowers hereunder.



     SECTION 12.5. Contribution; Subrogation. Neither Borrower shall have any rights of
contribution or subrogation with respect to the other as a result of payments made by it hereunder,
in each case unless and until all Obligations have been repaid in full in cash.



     SECTION 12.6. Waiver. Each of Borrower waives any right to require the
Administrative Agent or the other Lenders to (i) proceed against the other any guarantor or any
other party, (ii) proceed against or exhaust any security held from the other, any guarantor or any
other party or (iii) pursue any other remedy in the Administrative Agent’s or the Lenders’ power
whatsoever. Each of Borrower waives any defense based on or arising out of any defense of the
other, any guarantor or any other party other than payment in full in cash of the respective
Obligations, including, without limitation, any defense based on or arising out of the disability
of the other, any guarantor or any other party, or the unenforceability of the Obligations or any
part thereof from any cause, or the cessation from any cause of the liability of the other, in each
case other than as a result of the payment in full in cash of the respective Obligations. The
Administrative Agent and the Lenders may, at their election, foreclose on any security held by the
Administrative Agent or the other Secured Parties by one or more judicial or non-judicial sales,
whether or not every aspect of any such sale is commercially reasonable, or exercise any other
right or remedy the Administrative Agent and the other Lenders may have against either Borrower or
any other party, or any security, without affecting or impairing in any way the liability of either
Person hereunder except to the extent the respective Obligations have been paid in full in cash.
Each of Borrower waives, to the fullest extent permitted by law, any defense arising out of any
such election by the Administrative Agent and the other Lenders even though such election operates
to impair or extinguish any right of reimbursement or subrogation or other right or remedy of such
Person against the other or any other guarantor or party or any security.



120









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized as of the day and year first above written.



	 	 	 	 	 	 	 

	 	 	SAINT CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 
	 	 	Facsimile No.:	 	 
	 
	 	 	 	 	 	 
	 	 	Attention:	 	 
	 
	 	 	 	 	 	 
	 	 	SAINT ACQUISITION CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 
	 	 	Facsimile No.:	 	 
	 
	 	 	 	 	 	 
	 	 	Attention:	 	 
	 
	 	 	 	 	 	 
	 	 	SWIFT TRANSPORTATION CO., INC.,	 	 
	 	 	a Nevada corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 
	 	 	Facsimile No.:	 	 
	 
	 	 	 	 	 	 
	 	 	Attention:	 	 






 









 





	 	 	 	 	 	 	 

	 	 	SWIFT TRANSPORTATION CO., INC.,	 	 
	 	 	an Arizona corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 
	 	 	Facsimile No.:	 	 
	 
	 	 	 	 	 	 
	 	 	Attention:	 	 






2









 





	 	 	 	 	 	 	 

	 	 	MORGAN STANLEY SENIOR FUNDING, INC.	 	 
	 

	 	 	 	as the Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	WACHOVIA CAPITAL MARKETS, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	J.P. MORGAN SECURITIES INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	LASALLE BANK NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






3









 





SCHEDULE I




DISCLOSURE SCHEDULE TO CREDIT AGREEMENT



ITEM 6.7. Litigation.



ITEM 6.8. Existing Subsidiaries.



ITEM 6.9 Mortgaged Properties.



ITEM 6.11. Employee Benefit Plans.



ITEM 6.12. Environmental Matters.



ITEM 7.2.2(b) Indebtedness to be Paid.




	 	 	 
	CREDITOR	 	OUTSTANDING PRINCIPAL AMOUNT
	 	 	 
	 	 	 




ITEM 7.2.2(c) Indebtedness to Remain Outstanding.




	 	 	 
	CREDITOR	 	OUTSTANDING PRINCIPAL AMOUNT
	 	 	 
	 	 	 




ITEM 7.2.3(c) Ongoing Liens.



ITEM 7.2.5(a) Ongoing Investments.



ITEM 7.2.13 Transactions with Affiliates.




 









 





PERCENTAGES;

LIBOR OFFICE;

DOMESTIC OFFICE




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	PERCENTAGES
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	SYNTHETIC
	NAME AND NOTICE	 	 	 	DOMESTIC	 	REVOLVING LOAN	 	TERM LOAN	 	DEPOSIT
	ADDRESS OF LENDER	 	LIBO OFFICE	 	OFFICE	 	COMMITMENT	 	COMMITMENT	 	PERCENTAGE
	Morgan Stanley Senior Funding, Inc.

	 	One Pierrepont Plaza,

Floor 7

Brooklyn, NY 11201

Attn: Sandy Tung
	 	One Pierrepont Plaza,

Floor 7

Brooklyn, NY 11201

Attn: Sandy Tung
	 	 	45.000000	%	 	 	52.223837	%	 	 	50.000000	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	JPMorgan Chase Bank, N.A.

	 	270 Park Avenue, 4th Floor

New York, NY 10017

Attn: Robert Kellas
	 	270 Park Avenue, 4th Floor

New York, NY 10017

Attn: Robert Kellas
	 	 	20.000000	%	 	 	20.000000	%	 	 	20.000000	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Wachovia Bank, National Association

	 	301 S. College Street
Charlotte, NC 28244

Attn: Andrew Payne
	 	301 S. College Street
Charlotte, NC 28244

Attn: Andrew Payne
	 	 	20.000000	%	 	 	20.000000	%	 	 	20.000000	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	LaSalle Bank National Association

	 	135 S. LaSalle Street
Chicago, IL 60603

Attn: David Thomas
	 	135 S. LaSalle Street
Chicago, IL 60603

Attn: David Thomas
	 	 	15.000000	%	 	 	7.776163	%	 	 	10.000000	%






 









 





NAME AND NOTICE ADDRESS OF HOLDINGS AND BORROWERS





	1)	 	Saint Acquisition Corporation
	 
	 	 	PO Box 20683
	 
	 	 	Phoenix, AZ 85043
	 
	 	 	Attn: Jerry Moyes, President and CEO / Elly Penrod
	 
	 	 	Fax: 602-275-6417
	 
	2)	 	Saint Corporation
	 
	 	 	PO Box 20683
	 
	 	 	Phoenix, AZ 85043
	 
	 	 	Attn: Jerry Moyes, President and CEO / Elly Penrod
	 
	 	 	Fax: 602-275-6417
	 
	3)	 	Swift Transportation Co., Inc., an Arizona corporation
	 
	 	 	c/o Swift Transportation Co., Inc.
	 
	 	 	2200 South 75th Avenue
	 
	 	 	Phoenix, AZ 85043
	 
	 	 	Attn: Robert T. Goates
	 
	 	 	Fax: 623-907-7503
	 
	4)	 	Swift Transportation Co., Inc., a Nevada corporation
	 
	 	 	c/o Swift Transportation Co., Inc.
	 
	 	 	2200 South 75th Avenue
	 
	 	 	Phoenix, AZ 85043
	 
	 	 	Attn: Robert T. Goates
	 
	 	 	Fax: 623-907-7503