THIRD AMENDED AND RESTATED RECEIVABLES LOAN AGREEMENT Dated as of June 9, 2021 among ArcBest Funding LLC, as Borrower, ArcBest II, Inc., as Servicer, the financial institutions from time to time party hereto, as Lenders, the financial institutions...
Exhibit 10.1
THIRD AMENDED AND RESTATED RECEIVABLES LOAN AGREEMENT
Dated as of June 9, 2021
among
ArcBest Funding LLC,
as Borrower,
ArcBest II, Inc.,
as Servicer,
the financial institutions from time to time party hereto,
as Lenders,
the financial institutions from time to time party hereto,
as Facility Agents,
and
THE TORONTO-DOMINION BANK,
as the LC Issuer and as Administrative Agent
Table of Contents
(continued)
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Table of Contents
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Exhibit IDefinitions
Exhibit II-AForm of Borrowing Request
Exhibit II-BForm of Letter of Credit Request
Exhibit III | Jurisdiction of Organization of the Borrower Parties; Places of Business of the Borrower Parties; Locations of Records; Federal Employer Identification Number(s) |
Exhibit IV | Names of Collection Banks and Segregated Account Banks; Lock-Boxes, Segregated Accounts and Collection Accounts |
Exhibit VForm of Compliance Certificate
Exhibit VI[Reserved]
Exhibit VIIForm of Monthly Report
Exhibit VIIIForm of Weekly Report
Exhibit IXForm of Prepayment Notice
Exhibit XForm of Assignment and Acceptance
Schedule A | Documents to be Delivered to the Administrative Agent on or Prior to the Amendment and Restatement |
Schedule B | [RESERVED] |
Schedule C | Commitments |
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THIRD AMENDED AND RESTATED RECEIVABLES LOAN AGREEMENT
This THIRD Amended and Restated Receivables Loan Agreement, dated as of June 9, 2021 (this “Agreement”), is entered into by and among:
Unless defined elsewhere herein, capitalized terms used in this Agreement shall have the meanings assigned to such terms in Exhibit I.
PRELIMINARY STATEMENTS
Whereas, the Borrower, ArcBest Corporation, as Servicer, the financial institutions from time to time party thereto, as lenders, and PNC Bank, National Association, as letter of credit issuer and agent, have previously entered into that certain Second Amended and Restated Receivables Loan Agreement dated as of March 20, 2017 (as amended from time to time heretofore, the “Existing Loan Agreement”);
Whereas, concurrently herewith, (i) PNC Bank, National Association is assigning its role as administrative agent under the Existing Loan Agreement to TD Bank pursuant to that certain Assignment and Assumption Agreement, dated as of the date hereof, among the Borrower, the Servicer, PNC Bank, National Association, TD Bank and Regions Bank and (ii) ArcBest Corporation is resigning as Servicer under the Existing Loan Agreement;
Whereas, the Borrower would like to include TD Bank as a Lender, the LC Issuer, a Facility Agent and the Administrative Agent hereunder;
Whereas, each of the parties hereto, desire to amend and restate the Existing Loan Agreement in its entirety and to make certain changes as more fully set forth herein, which amendment and restatement shall become effective upon satisfaction of the conditions precedent set forth herein;
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Now, therefore, in consideration of the premises and the mutual agreements herein contained, the parties hereto agree as follows:
The Borrower will pay Interest on Loans made pursuant to this Agreement at the Alternate Base Rate, LMIR or the LIBO Rate, selected in accordance with Article IV hereof. Within the limits of the Commitment, Borrower may borrow, prepay and reborrow under this Section 1.1.
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then, on such day as notice has been given to Borrower by any Lender, any Facility Agent or the Administrative Agent of such occurrence or an Authorized Officer of the Borrower shall have knowledge thereof, the Borrower shall be deemed to have received a Collection of such Receivable (A) in the case of clauses (i)-(iv) above, in the amount of such reduction or cancellation or the difference between the actual Outstanding Balance and the amount included in calculating such Net Pool Balance, as applicable; and (B) in the case of clause (v) above, in the amount of the Outstanding Balance of such Receivable, and (in either case), (1) at all times prior to an Amortization Event, if as a result of such Deemed Collection a Borrowing Base Deficiency would occur, not later than two Business Days thereafter the Borrower shall pay to the Administrative Agent’s Account an amount necessary to cure such Borrowing Base Deficiency and (2) at all times after an Amortization Event has occurred, not later than two Business Days thereafter the Borrower shall pay an amount equal to such Deemed Collection to the Administrative Agent’s Account to be distributed in the same manner as actual cash collections are distributed pursuant to Section 2.3 hereof.
If the Borrower pays the Outstanding Balance of any Purchased Receivable under clause (B) above, the Administrative Agent agrees to release all right, title and interest it may have in and to such Purchased Receivable and the Related Security relating solely to such Receivable to the extent the applicable Originator is required to repurchase such Receivable from the Borrower, and does repurchase such Receivable, in accordance with the terms of the Receivables Sale Agreement.
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Each Letter of Credit shall:
Amounts drawn on any Letter of Credit may not be reinstated and the maximum amount of such Letter of Credit shall be permanently and irrevocably reduced by an amount equal to all amounts drawn thereon. Letters of Credit that have been fully drawn shall be deemed to have expired and shall not be revived.
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Upon receipt of any Letter of Credit Request, the LC Issuer will process such Letter of Credit Request and the certificates, documents and other papers and information delivered to it in connection therewith in accordance with its customary procedures and shall, subject to the terms and conditions set forth herein, promptly issue the Letter of Credit requested thereby (but in no event shall the LC Issuer be required to issue any Letter of Credit earlier than two (2) Business Days after its receipt of the Letter of Credit Request therefor and all such other certificates, documents and other papers and information relating thereto) by issuing the original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed by the LC Issuer and the Borrower. The LC Issuer shall promptly furnish a copy of such Letter of Credit to the Borrower.
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The Borrower also agrees with the LC Issuer that the LC Issuer shall not be responsible for, and the Borrower’s reimbursement obligations under Section 1.6(d) shall not be affected by, among other things, (i) the validity or genuineness of documents or of any endorsements thereon, even though such documents shall in fact prove to be invalid, insufficient, fraudulent or forged, (ii) any dispute between or among the Borrower and any beneficiary of any Letter of Credit or any other party to which such Letter of Credit may be transferred, (iii) or any claims whatsoever of the Borrower against any beneficiary of such Letter of Credit or any such transferee, (iv) any change in the time, manner and place of payment of, or in any other term of all or any of the obligations of the Borrower in respect of any Letter of Credit or any amendment or waiver or any consent to departure from the terms of any Letter of Credit or any document executed or delivered in connection with the issuance or payment thereof, or (v) any payment by the LC Issuer of any Letter of Credit against presentation of any document or certificate that does not strictly comply with the terms of such Letter of Credit, or any payment made by the LC Issuer under any Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of any Letter of Credit, except to the extent such actions, errors or omissions constitute or are caused by the LC Issuer’s gross negligence or willful misconduct, as determined by a court of competent jurisdiction by final nonappealable judgment.
The LC Issuer shall not be liable for (i) any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit; (ii) any error in translation or interpretation of technical terms; (iii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iv) the failure of any beneficiary or any transferee of any Letter of Credit to comply fully with conditions required in order to draw upon any Letter of Credit; or (v) any other consequences arising from causes beyond the LC Issuer’s or the LC Issuer’s correspondents’ control, except for actions, errors or omissions constituting or caused by the LC Issuer’s gross negligence or willful misconduct, as determined by a court of competent jurisdiction by final nonappealable judgment. The Borrower agrees that any action taken or omitted by the LC Issuer under or in connection with any Letter of Credit or the related drafts or documents, if done in the absence of gross negligence or willful misconduct shall be binding on the Borrower and shall not result in any liability of the LC Issuer to the Borrower. The responsibility of the LC Issuer to the Borrower in connection with any draft presented for payment under any Letter of Credit shall, in addition to any payment obligation expressly provided for in such Letter of Credit, be limited to determining that the documents (including each draft) delivered under such Letter of Credit in connection with such presentment are in conformity with such Letter of Credit.
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first, ratably to each Lender towards the payment of all accrued and unpaid Interest and Broken Funding Costs (if any) that are then due and owing to such Lender;
second, to the extent funds are available therefor after payment of clause first, to the Servicer, the accrued and unpaid Servicing Fee;
third, to the extent funds are available therefor after payment of clauses first and second, ratably to each Lender towards the payment of all accrued and unpaid fees under the Fee Letter (if any) that are then due and owing to such Lender;
fourth, to the extent funds are available therefor after payment of clauses first through third, if required under Section 1.3 or Section 1.4 or in order to avoid an Amortization Event or Unmatured Amortization Event under Section 9.1(o), (i) first, to each Lender toward the ratable reduction of the Aggregate Loan Amount; provided, that such application shall be made to such Loans as will, and otherwise in a manner reasonably calculated to, minimize the Borrower’s liability for Broken Funding Costs as a result of such application of such funds in reduction of the Aggregate Loan Amount, and (ii) second, to the Letter of Credit Collateral Account to Cash-Collateralize the LC Obligations (which shall reduce the Aggregate Credit Exposure);
fifth, to the extent funds are available therefor after payment of clauses first through fourth, to the Secured Parties for the ratable payment of all other unpaid Recourse Obligations, if any, that are then due and owing to such Secured Parties; and
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sixth, to the extent funds are available therefor after payment of clauses first through fifth, the balance, if any, to the Borrower or otherwise in accordance with the Borrower’s instructions, provided, however, that if any event has occurred and is continuing that would constitute an Amortization Event, Unmatured Amortization Event, Unmatured Servicer Termination Event or a Servicer Termination Event, any funds available to be applied pursuant to this clause sixth shall be retained in the Master Collection Accounts (unless otherwise consented to in writing by the Administrative Agent) until (i) such time as the event that would constitute an Amortization Event, Unmatured Amortization Event, Unmatured Servicer Termination Event or Servicer Termination Event has been cured or waived in accordance with the terms of this Agreement, at which time such amounts shall be paid to the Borrower or (ii) the Administrative Agent has declared the Facility Termination Date, at which time such amounts shall be applied in accordance with Section 2.3.
first, to the reimbursement of the Administrative Agent’s costs of collection and enforcement of this Agreement,
second, to the extent funds are available therefor after payment of clause first, ratably to each Lender toward the payment of all accrued and unpaid Interest and Broken Funding Costs payable to such Lender,
third, to the extent funds are available therefor after payment of clauses first and second, to the Servicer, the accrued and unpaid Servicing Fee,
fourth, to the extent funds are available therefor after payment of clauses first through third, ratably to each Lender toward the payment of all accrued and unpaid fees under the Fee Letter payable to such Lender,
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fifth, to the extent funds are available therefor after payment of clauses first through fourth, (i) first, to the Lenders toward the ratable reduction of the Aggregate Loan Amount; provided, that such application shall be made to such Loans as will, and otherwise in a manner reasonably calculated to, minimize the Borrower’s liability for Broken Funding Costs as a result of such application of such funds in reduction of the Aggregate Loan Amount, and (ii) second, to the Letter of Credit Collateral Account an amount equal to the LC Fee Expectation at such time plus the amount necessary to Cash-Collateralize the LC Obligations (which shall reduce the Aggregate Credit Exposure),
sixth, to the extent funds are available therefor after payment of clauses first through fifth, to the Secured Parties toward the ratable payment of all other Aggregate Unpaids payable to such Secured Parties, and
seventh, to the extent funds are available therefor after payment of clauses first through sixth, to the Borrower.
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Notwithstanding anything to the contrary in this Agreement or in any Transaction Document, and subject to the proviso below in this paragraph, if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Transaction Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any Transaction Document; provided, that this paragraph shall not be effective unless the Administrative Agent has delivered to the Lenders and the Borrower a Term SOFR Notice.
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“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such Benchmark or payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to this Section 4.6.
“Benchmark” means, initially, USD LIBOR; provided that if a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to USD LIBOR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to this Section 4.6.
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“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:
If the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the Transaction Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement,
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provided that, in the case of clause (1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by the Administrative Agent in its reasonable discretion.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definitions of “Alternate Base Rate,” “Business Day,” and “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions and other technical, administrative or operational matters) that the Administrative Agent decides are appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the Transaction Documents).
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“Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to the then-current Benchmark:
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) above with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect to the then-current Benchmark:
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For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes under this Agreement and under any Transaction Document in accordance with this Section 4.6, and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes under this Agreement and under any Transaction Document in accordance with this Section 4.6.
“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by
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the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
“Early Opt-in Election” means, if the then-current Benchmark is USD LIBOR, the occurrence of the following:
“Floor” means the benchmark rate floor, if any, provided in this Agreement with respect to USD LIBOR.
“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
“Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is USD LIBOR, 11:00 a.m. (London time) on the day that is two London banking days preceding the date of such setting, and (2) if such Benchmark is not USD LIBOR, the time determined by the Administrative Agent in its reasonable discretion.
“Relevant Governmental Body” means the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto.
“SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website on the immediately succeeding Business Day.
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“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York, currently at xxxx://xxx.xxxxxxxxxx.xxx, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Term SOFR Notice” shall mean a notification by the Administrative Agent to the Lenders and the Borrower of the occurrence of a Term SOFR Transition Event.
“Term SOFR Transition Event” shall mean the determination by the Administrative Agent that (a) Term SOFR has been recommended for use by the Relevant Governmental Body, (b) the administration of Term SOFR is administratively feasible for the Administrative Agent and (c) a Benchmark Transition Event has previously occurred resulting in a Benchmark Replacement in accordance with Section 4.6 that is not Term SOFR.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“USD LIBOR” means the London interbank offered rate for U.S. Dollars.
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provided, however, that nothing contained in this sentence shall limit the liability of the Borrower Parties or limit the recourse of the Indemnified Parties to the Borrower Parties for amounts otherwise specifically provided to be paid by the Borrower Parties under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to the Borrower or the Servicer) resulting from:
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Neither the Borrower nor any other Borrower Party shall be required to compensate any Lender, any Program Support Provider or the LC Issuer pursuant to the foregoing provisions of this Section 10.2 for any increased costs incurred or reductions suffered more than nine months prior to the date that the LC Issuer, such Program Support Provider or such Lender notifies the Borrower of the Regulatory Change giving rise to such increased costs or reductions and of the LC Issuer’s, such Program Support Provider’s or such Lender’s intention to claim compensation therefor.
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Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 12.3(b) hereof, from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Committed Lender under this Agreement, and the Committed Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the Committed Lender’s rights and obligations under this Agreement, the Committed Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Section 10.1 with respect to facts and circumstances occurring prior to the effective date of such assignment. Any assignment or transfer by a Committed Lender of rights or obligations under this Agreement that does not comply with this Section shall be treated for purposes of this Agreement as a sale by such Committed Lender of a participation in such rights and obligations in accordance with Section 12.2 hereof.
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Notwithstanding the foregoing, (x) no amendment, waiver or consent shall increase any Lender’s Commitment hereunder without the consent of such Lender and (y) no amendment, waiver or consent shall reduce any fees payable by the Borrower to any Lender or delay the dates on which any such fees are payable, in either case, without the consent of such Lender.
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[Signature pages follow]
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In Witness Whereof, the parties hereto have caused this Agreement to be executed and delivered by their duly authorized officers or attorneys-in-fact as of the date hereof.
ARCBEST FUNDING LLC
By: ArcBest Corporation, its sole member
By:/s/ Xxxxxx X. Xxxxxxx
Name:Xxxxxx X. Xxxxxxx
Title:Vice President – Treasurer
Address:
0000 XxXxxxx Xx.
Xxxx Xxxxx, Xxxxxxxx 00000
Attention:Xxxxxx X. Xxxxxxx
Phone:000-000-0000
E-mail:XXxxxxxx@xxxx.xxx
with a copy to:
Attention:Xxxxxxx Xxxxx
E-mail:XXxxxx@xxxx.xxx
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ArcBest II, Inc., as Servicer
By:/s/ Xxxxxx X. Xxxxxxx
Name:Xxxxxx X. Xxxxxxx
Title:Treasurer
Address:
0000 XxXxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Attention:Xxxxxx X. Xxxxxxx
Phone:000-000-0000
E-mail:XXxxxxxx@xxxx.xxx
with a copy to:
Attention:Xxxxxxx Xxxxx
E-mail:XXxxxx@xxxx.xxx
000000000 00000000
THE TORONTO-DOMINION BANK, as a Committed Lender, as the LC Issuer, as the Facility Agent for the TD Bank Lender Group and as the Administrative Agent
By:/s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title:Managing Director
Address:
The Toronto-Dominion Bank
000 Xxxxxxxx Xxxxxx Xxxx
00xx Xxxxx
Xxxxxxx, XX, X0X 0X0
Attention: ASG Asset Securitization
Email: xxxxxxxxxxxxx@xxxxxxxxxxxx.xxx
COMPUTERSHARE TRUST COMPANY OF CANADA, in its capacity as trustee of RELIANT TRUST, by its U.S. Financial Services Agent, THE TORONTO DOMINION BANKS, as a Conduit Lender
By:/s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title:Managing Director
Address:
Reliant Trust
000 Xxxxxxxx Xxxxxx Xxxx
00xx Xxxxx
Xxxxxxx, XX, X0X 0X0
Attention: ASG Asset Securitization
Email: xxxxxxxxxxxxx@xxxxxxxxxxxx.xxx
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Regions Bank, as a Committed Lender and as the Facility Agent for the Regions Bank Lender Group
By:/s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title:Managing Director
Address:
Regions Bank
Regions Business Capital
0000 Xxxx Xxxxxxxxx, X.X.
Xxxxx 0000
Attention:Xxxxx Xxxxx
Phone:(000) 000-0000
E-mail:xxxxx.xxxxx@xxxxxxx.xxx
xxxxxxxxxxxxxxxxxxxxxx@xxxxxxx.xxx
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ACKNOWLEDGED AND AGREED:
ARCBEST CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President – Treasurer
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Reaffirmation, Acknowledgement and Consent of
Guarantor
The undersigned, ArcBest Corporation, a Delaware corporation (the “Guarantor”), heretofore executed and delivered to THE TORONTO-DOMINION BANK, as Administrative Agent for the Secured Parties (in such capacity, together with its successors and assigns, the “Beneficiary”) a Second Amended and Restated Performance Guaranty dated as of June 9, 2021 (as the same may be amended, restated, supplemented or modified from time to time, the “Performance Guaranty”). Capitalized terms used (but not defined) herein have the meanings assigned thereto in the Performance Guaranty. On the date hereof, the undersigned acknowledges and consents to the Third Amended and Restated Receivables Loan Agreement, dated June 9, 2021 (the “Receivables Loan Agreement”) and confirms that the Performance Guaranty, and all obligations of the undersigned thereunder, remains in full force and effect. The undersigned further agrees that the consent of the undersigned to any further amendments to (i) the Receivables Loan Agreement, (ii) the Receivables Sale Agreement and (iii) any other Transaction Document shall not be required as a result of this consent having been obtained, except to the extent, if any, required by the Performance Guaranty referred to above. The undersigned acknowledges that the Administrative Agent is relying on the assurances provided herein in entering into the agreements set forth above.
This Reaffirmation, Acknowledgment and Consent of Performance Guarantor is executed as of June 9, 2021.
ArcBest Corporation, as Guarantor
By:/s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President – Treasurer
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EXHIBIT I
DEFINITIONS
As used in the Agreement and the Exhibits and Schedules thereto, the following terms shall have the meanings set forth in this Exhibit I (such meanings to be equally applicable to both the singular and plural forms of the terms defined). If a capitalized term is used in the Agreement, or any Exhibit or Schedule thereto, and is not otherwise defined therein or in this Exhibit I, such term shall have the meaning assigned thereto in Exhibit I to the Receivables Sale Agreement (hereinafter defined):
“ABF” ABF Freight System, Inc., an Arkansas corporation.
“Accounts Receivable Turnover Ratio” As of any Cut-Off Date, the ratio computed by dividing (a) the aggregate amount of Credit Sales during the 12 Calculation Periods ending on such Cut-Off Date by (b) the average of the aggregate Outstanding Balance of all Receivables as of the last 12 Cut-Off Dates.
“Adjusted Leverage Ratio” The ratio, determined as of the end of each fiscal quarter of the Parent for the then most-recently ended four (4) fiscal quarters, of (i) Consolidated Adjusted Funded Indebtedness to (ii) Consolidated EBITDAR.
“Advances Outstanding” On any day, the aggregate principal amount of all Loans and LC Advances outstanding on such day, after giving effect to all repayments of Loans and LC Advances and the making of new Loans or LC Advances on such day.
“Adverse Claim” A lien, security interest, charge or encumbrance, or other right or claim in, of or on any Person’s assets or properties in favor of any other Person, provided, however, that the following shall not constitute “Adverse Claims” (a) liens imposed by law for taxes that are not yet due or are being contested in good faith in appropriate proceedings, or (b) judgment liens and carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue or are being contested in good faith in appropriate proceedings.
“Affiliate” With respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person or any Subsidiary of such Person. A Person shall be deemed to control another Person if the controlling Person owns 10% or more of any class of voting securities of the controlled Person or possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownership of stock, by contract or otherwise.
“Administrative Agent” As defined in the preamble to this Agreement.
“Administrative Agent’s Account” Administrative Agent’s Account at Bank of America, Account #[ ], ABA No. [ ], Account Name: Reliant Trust, Reference: ArcBest Funding LLC.
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“Agent Fee Letter” That certain Agent Fee Letter agreement dated as of the Restatement Date, among the Borrower, the Servicer and the Administrative Agent, as it may be amended, restated or otherwise modified and in effect from time to time.
“Aggregate Credit Exposure” On any date of determination, the Aggregate Loan Amount from time to time outstanding hereunder plus the outstanding LC Obligations minus the funds on deposit in the Letter of Credit Collateral Account to Cash-Collateralize the LC Obligations. In computing the amount of Aggregate Credit Exposure, in connection with a Loan the proceeds of which will be used to finance an LC Advance pursuant to Section 1.6(d)(ii), the Borrower need not count both the principal amount of such LC Advance and the amount of such Loan.
“Aggregate Loan Amount” On any date of determination, the aggregate principal amount of all Loans from time to time outstanding hereunder.
“Aggregate Prepayment” As defined in Section 1.3(a).
“Aggregate Unpaids” At any time, an amount equal to the sum of (i) the Aggregate Loan Amount, plus (ii) the aggregate LC Amounts, plus (iii) all Recourse Obligations (whether due or accrued) at such time.
“Agreement” This Receivables Loan Agreement, as it may be amended or modified and in effect from time to time.
“Alternate Base Rate” For any day, the rate per annum equal to the higher as of such day of (i) the Prime Rate, or (ii) one-half of one percent (0.50%) above the Federal Funds Effective Rate. For purposes of determining the Alternate Base Rate for any day, changes in the Prime Rate or the Federal Funds Effective Rate shall be effective on the date of each such change.
“Amortization Date” The earliest to occur of (i) the Business Day immediately prior to the occurrence of an Event of Bankruptcy with respect to a Borrower Party, an Originator or the Parent, (ii) the Business Day specified in a written notice from the Administrative Agent following the occurrence of any other Amortization Event, and (iii) the date which is ten (10) Business Days after the Administrative Agent’s receipt of written notice from the Borrower that it wishes to terminate the facility evidenced by this Agreement.
“Amortization Event” As defined in Article IX.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to a Person from time to time concerning or relating to bribery or corruption.
“Applicable Margin” As defined in the Fee Letter.
“ArcBest II” ArcBest II, Inc., an Arkansas corporation.
“Assignment and Acceptance” means an assignment and acceptance entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 12.3 hereof), and accepted by the Administrative Agent, in substantially the form of Exhibit X or any other form approved by the Administrative Agent.
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“Authorized Officer” With respect to any Person, its president, chief executive officer, general counsel, corporate controller, treasurer or chief financial officer; provided, however, in the case of Borrower, the Authorized Officers shall be the president, chief executive, general counsel, corporate controller, treasurer or chief financial officer of the Parent, in its capacity as Managing Member of Borrower or in its capacity as Servicer, as applicable.
“Available Liquidity” The sum of (i) unencumbered cash, cash equivalents and temporary investments of the Parent and its Subsidiaries, plus (ii) the difference of (x) the Facility Limit minus (y) the Aggregate Credit Exposure (after curing any Borrowing Base Deficiency), plus (iii) any unused availability of the Parent under any other revolving liquidity facility of the Parent (if any).
“Borrower” As defined in the preamble to this Agreement.
“Borrower Parties” As defined in the preamble to this Agreement.
“Borrowing Base Deficiency” As defined in Section 1.3(b).
“Borrowing Date” Each Business Day on which a Loan is made hereunder.
“Borrowing Request” As defined in Section 1.2.
“Broken Funding Costs” For any LIBO Loan that: (i) does not become subject to an Aggregate Prepayment following the delivery of any Prepayment Notice with respect to such LIBO Loan or (ii) is terminated prior to the date on which the Interest Period ends; an amount equal to the excess, if any, of (A) the Interest that would have accrued during the remainder of the Interest Period determined by the Administrative Agent to relate to such Loan subsequent to the date of such reduction or termination (or in respect of clause (i) above, the date such Aggregate Prepayment was designated to occur pursuant to the Prepayment Notice) of the Loan if such reduction or termination had not occurred or such Prepayment Notice had not been delivered, over (B) the Interest actually accrued during the remainder of such Interest Period on such Loan.
“Business Day” Any day on which banks are not authorized or required to close in New York, New York, and The Depository Trust Company of New York is open for business, and, if the applicable Business Day relates to any computation or payment to be made with respect to the LIBO Rate or LMIR, any day on which dealings in dollar deposits are carried on in the London interbank market.
“Calculation Period” A calendar month.
“Canadian Dollar” means the lawful currency of Canada.
“Canadian Obligors” An Obligor who has agreed to pay for a Receivable at a location in Canada.
“Cash-Collateral Amount” With respect to any portion of the LC Obligations which is required to be “Cash-Collateralized”, an amount equal to 100% of such portion of the LC Obligations.
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“Cash-Collateralize” To pledge and deposit immediately available funds into the Letter of Credit Collateral Account, as collateral for the LC Obligations, the Cash-Collateral Amount as security for the portion of the LC Obligations being collateralized pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the LC Issuer.
“CBA” The Collective Bargaining Agreement effective April 1, 2018 through June 30, 2023 between the International Brotherhood of Teamsters and ABF, as the same may be amended, modified or restated.
“CBA Liquidity Period” The period commencing on the seventh (7th) day prior to any CBA Maturity Date and ending upon the extension of such existing CBA or upon ratification of a subsequent collective bargaining agreement between the International Brotherhood of Teamsters and ABF which replaces the CBA in existence on the Restatement Date.
“CBA Maturity Date” The date on which the CBA expires. As of the Restatement Date the CBA Maturity Date is June 30, 2023.
“Change of Control” (i) (a) A change in control is reported by the Parent in response to either Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or (b) any “person” or “group” (as such terms are used in Section 13(d) and Section 14(d) of the Exchange Act, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator or any such plan) is or becomes the “beneficial owner” (as defined in Rule 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of voting capital stock of the Parent (or securities convertible into or exchangeable for such capital stock) representing the Control Percentage or more of the combined voting power of the Parent’s then outstanding capital stock, (ii) the Parent ceases to directly or indirectly own 100% of the outstanding shares of voting stock, membership interests or partnership interests of each Originator, or (iii) the Parent ceases to own 100% of the membership interests of the Borrower.
“Charge-Offs” All Receivables that are written off by the Servicer or should, in accordance with the Credit and Collection Policies, be written off as uncollectible.
“Class C Special Obligor” As identified in the Fee Letter.
“Closing Date” June 15, 2012.
“Collateral” As defined in Section 13.12(b).
“Collection Account” Each concentration account, depositary account, lock-box account or similar account in which any Collections are collected or deposited which is listed on Exhibit IV (as the same may be updated from time to time in accordance with Section 7.1(m) hereof) and which is in the name of the Borrower and subject to a Collection Account Agreement at all times on and after the date hereof, including the Master Collection Account.
“Collection Account Agreement” An agreement in form reasonably acceptable to the Administrative Agent among an Originator, the Servicer and/or the Borrower, the Administrative Agent and a Collection Bank establishing control over a Collection Account.
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“Collection Bank” At any time, any of the banks holding one or more Collection Accounts.
“Collection Notice” A notice in substantially the form attached to a Collection Account Agreement from the Administrative Agent to a Collection Bank.
“Collections” With respect to any Receivable, all cash collections and other cash proceeds in respect of such Receivable, including, without limitation, all Finance Charges or other related amounts accruing in respect thereof and all cash proceeds of Related Security with respect to such Receivable.
“Commercial Paper Notes” means short-term promissory notes issued or to be issued by any Conduit Lender to fund its investments in accounts receivable or other financial assets.
“Committed Lender” means any Person that is identified on the signature pages to this Agreement as a “Committed Lender”.
“Commitment” With respect to any Committed Lender, the maximum aggregate amount which such Person is obligated to lend or pay hereunder on account of all Loans and all drawings under all Letters of Credit, on a combined basis, as set forth on Schedule C, as such amount may be modified in connection with any subsequent assignment pursuant to Section 12.3 or as increased in connection with an increase in the Facility Limit pursuant to Section 1.1(c) or a reduction in the Facility Limit pursuant to Section 1.1(b).
“Concentration Limit”
(a)For any Class C Special Obligor, 4.0% of the aggregate Outstanding Balance of all Eligible Receivables.
(b)For any Group A Obligor, 14.0% of the aggregate Outstanding Balance of all Eligible Receivables.
(c)For any Group B Obligor, 6.0% of the aggregate Outstanding Balance of all Eligible Receivables.
(d)For any Group C Obligor, 4.0% of the aggregate Outstanding Balance of all Eligible Receivables.
(e)For any Group D Obligors, 2.5% of the aggregate Outstanding Balance of all Eligible Receivables.
(f)For any Unbilled Receivables in the aggregate, 9.0% of the aggregate Outstanding Balance of all Eligible Receivables; provided however, that during a Special Calculation Period, the Concentration Limit for any Unbilled Receivables in the aggregate shall be 11.0% of the aggregate Outstanding Balance of all Eligible Receivables.
(g)For all Canadian Obligors in the aggregate, 5.0% of the aggregate Outstanding Balance of all Eligible Receivables.
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“Conduit Lender” Any Person that is identified on the signature pages to this Agreement as a “Conduit Lender”.
“Consolidated Adjusted Funded Indebtedness” As defined in the Credit Agreement.
“Consolidated EBITDAR” As defined in the Credit Agreement.
“Contingent Obligation” Of a Person means any agreement, undertaking or arrangement by which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds for the payment of, or otherwise becomes or is contingently liable upon, the obligation or liability of any other Person, other than a Pension Plan Obligation, or agrees to maintain the net worth or working capital or other financial condition of any other Person, or otherwise assures any creditor of such other Person against loss, including, without limitation, any comfort letter, operating agreement, take-or-pay contract or application for a letter of credit.
“Contract” With respect to any Receivable, any and all instruments, agreements, invoices or other writings pursuant to which such Receivable arises or which evidences such Receivable.
“Control Percentage” With respect to any Person, the percentage of the outstanding capital stock of such Person having ordinary voting power which gives the direct or indirect holder of such stock the power to elect a majority of the board of directors (or individuals or body or group of individuals performing the same or substantially similar functions as the board of directors of a corporation) of such Person.
“Controlled Group” All members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with the Borrower, are treated as a single employer under Section 414 of the Code.
“Credit Agreement” means that certain Third Amended and Restated Credit Agreement, dated as of September 27, 2019 among the Parent and those of its Subsidiaries from time to time party thereto, the Lenders from time to time party thereto, U.S. Bank National Association, a national banking association, as Administrative Agent, Branch Banking and Trust Company and PNC Bank, National Association, as syndication agents, and U.S. Bank National Association, as Sole Lead Arranger and Sole Book Runner.
“Credit and Collection Policies” The credit and collection policies and practices relating to Contracts and Receivables existing on the date hereof, as modified from time to time in accordance with this Agreement.
“Credit Exposure” On any date of determination with respect to any Lender, the aggregate principal amount of all of such Lender’s Loans plus such Lender’s participation in outstanding LC Obligations.
“Credit Extension” The making of a Loan or the issuance of a Letter of Credit, as applicable.
“Credit Sales” For any Calculation Period, the aggregate amount of all Receivables with credit terms of any kind originated or purchased by an Originator during such Calculation Period.
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“Cut-Off Date” The last day of a Calculation Period.
“Days Sales Outstanding Ratio” On any date of determination, the ratio computed as of the most recent Cut-Off Date by dividing (a) 360 by (b) the Accounts Receivable Turnover Ratio for the Calculation Period ending on such Cut-Off Date.
“Deemed Collections” Collections deemed received by the Borrower under Section 1.4.
“Default Rate” For any day, the rate per annum equal to the sum of (a) the higher as of such day of (i) the Prime Rate, or (ii) one-half of one percent (0.50%) above the Federal Funds Effective Rate, plus (b) 3.0%. For purposes of determining the Default Rate for any day, changes in the Prime Rate or the Federal Funds Effective Rate shall be effective on the date of each such change.
“Default Ratio” As of any Cut-Off Date, the ratio (expressed as a percentage) computed by dividing (i) the aggregate amount (without double-counting) of Receivables which became Defaulted Receivables or Charge-Offs during the Calculation Period that includes such Cut-Off Date, by (b) Credit Sales for the Calculation Period occurring four (4) months prior to the Calculation Period ending on such Cut-Off Date.
“Defaulted Receivable” A Receivable: (i) as to which the Obligor thereof has suffered an Event of Bankruptcy; (ii) which is a Charge-Off; or (iii) as to which any payment, or part thereof, remains unpaid for 120 days or more from the date of billing applicable to such payment.
“Defaulting Lender” Subject to Section 1.8 (b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied or waived, or (ii) pay to the Administrative Agent, any LC Issuer or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within two (2) Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent or the LC Issuer in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) is subject to, or has a direct or indirect parent company that has been subject to, an Event of Bankruptcy; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by any governmental authority or regulatory body so long as such ownership interest does not result in or provide such
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Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such governmental authority or regulatory body) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 1.8(b)) upon delivery of written notice of such determination to the Borrower, the LC Issuer, and each Lender.
“Delinquency Ratio” As of any Cut-Off Date, the ratio (expressed as a percentage) computed by dividing (i) the aggregate Outstanding Balance of Receivables that were Delinquent Receivables as of such Cut-Off Date, by (ii) the Outstanding Balance of all Receivables as of such Cut-Off Date.
“Delinquent Receivable” A Receivable (i) as to which any payment, or part thereof, remains unpaid for 90 days or more from the date of billing applicable to such payment and (ii) which does not constitute a Defaulted Receivable.
“Dilution” The amount of any reduction or cancellation of the Outstanding Balance of a Receivable as described in Section 1.4, provided, that Dilution shall not include the amount of any write-down, reserve or other reduction due to a Receivable subsequently becoming a Defaulted Receivable on account of the insolvency, bankruptcy, lack of credit worthiness or financial inability to pay off such Defaulted Receivable of the applicable Obligor.
“Dilution Horizon Ratio” As of any Cut-Off Date, a ratio (expressed as a decimal), computed by dividing (i)(a) the aggregate Credit Sales for the Calculation Period ending on such Cut-Off Date, plus (b)the aggregate Credit Sales for the Calculation Period ending during the immediately preceding Cut-Off Date by (ii) the Net Pool Balance as of such Cut-Off Date.
“Dilution Ratio” As of any Cut-Off Date, a ratio (expressed as a percentage), computed by dividing (i) the total amount of decreases in Outstanding Balance of Receivables due to Dilution during the Calculation Period ending on such Cut-Off Date, by (ii) the Credit Sales for the Calculation Period ending on the previous Cut-Off Date.
“Dilution Reserve” On any date of determination, computed as of the most recent Cut-Off Date, the product (expressed as a percentage) of (a) the sum of (i) the product of (x) the Stress Factor times (y) the Expected Dilution Ratio, plus (ii) the Dilution Volatility Component, times (b) the Dilution Horizon Ratio.
“Dilution Spike Rate” The highest Dilution Ratio over the past 12 Calculation Periods.
“Dilution Volatility Component” The product (expressed as a percentage) of (i) the positive difference (if any) between (A) the Dilution Spike Rate and (B) the Expected Dilution Ratio, and (ii) a fraction, the numerator of which is equal to the Dilution Spike Rate and the denominator of which is the Expected Dilution Ratio.
“Drawing Date” As defined in Section 1.6(d)(ii).
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“Eligible Assignee” A commercial bank having a combined capital and surplus of at least $250,000,000 with a rating of its (or its parent holding company’s) short-term securities equal to or higher than (i) A-1 by S&P and (ii) P-1 by Moody’s; provided that no Defaulting Lender or Affiliate thereof, or any Person who, becoming a Lender, would constitute a Defaulting Lender or an Affiliate thereof, shall constitute an Eligible Assignee.
“Eligible Receivable” At any time, a Receivable:
“ERISA” The Employee Retirement Income Security Act of 1974, as amended from time to time, and any rule or regulation issued thereunder.
“ERISA Affiliate” Any trade or business (whether or not incorporated) under common control with the Parent within the meaning of Section 414(b) or (c) of the Tax Code (and Sections 414(m) and (o) of the Tax Code for purposes of provisions relating to Section 412 of the Tax Code).
“Event of Bankruptcy” Shall be deemed to have occurred with respect to a Person if either:
(i)a case or other proceeding shall be commenced, without the application or consent of such Person, in any court, seeking the liquidation, reorganization, debt arrangement, dissolution, winding up, or composition or readjustment of debts of such Person, the appointment of a trustee, receiver, custodian, liquidator, assignee, sequestrator or the like for such Person or all or substantially all of its assets, or any similar action with respect to such Person under any law relating to bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts, and such case or proceeding shall continue undismissed, or unstayed and in effect, for a period of 60 consecutive days; or an order for relief in respect of such Person shall be entered in an involuntary case under the federal bankruptcy laws or other similar laws now or hereafter in effect; or
(ii)such Person shall commence a voluntary case or other proceeding under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law now or hereafter in effect, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee (other than a trustee under a deed of trust, indenture or similar instrument), custodian, sequestrator (or other similar official) for, such Person or for any substantial part of its property, or shall make any general assignment for the benefit of creditors, or shall be adjudicated insolvent, or admit in writing its inability to pay its debts generally as they become due, or, if a corporation or similar entity, its board of directors shall vote to implement any of the foregoing.
“Event of Default” Any Amortization Event described in Sections 9.1(a)-(g), Section 9.1(k) (only if such Amortization Event arises due to an event of the type described in clause (ii) or (iii) of the definition of “Change of Control”), Section 9.1(l), Sections 9.1(n)-(r), or Section 9.1(t).
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“Excess Concentration Amount” At any time with respect to any Obligor or group of Obligors described in the definition of “Concentration Limit”, the amount, if any, by which the aggregate Outstanding Balance of all Eligible Receivables of such Obligor or group of Obligors exceeds the Concentration Limit applicable to such Obligor or group of Obligors at such time.
“Exchange Rate” means, as of any date of determination with respect to a Receivable denominated in Canadian Dollars, the amount of such currency specified by the Servicer as the amount of Canadian Dollars that would be required to purchase a U.S. Dollar based on the foreign exchange market for Canadian Dollars in the most recent Monthly Report or Weekly Report delivered hereunder that demonstrated that the Net Pool Balance exceeded the sum of the Aggregate Credit Exposure plus the Required Reserve.
“Expected Dilution Ratio” At any time, the rolling average of the Dilution Ratio for the 12 Calculation Periods then most recently ended.
“Facility Account” The Borrower’s account no. [ ] at First National Bank of Fort Xxxxx or any other account designated by the Borrower from time to time.
“Facility Agent” As to any Conduit Lender or Committed Lender, the Person identified on the signature pages to this Agreement as the “Facility Agent” for such Lenders, together with its respective successors and permitted assigns.
“Facility Limit” At any time of determination, the aggregate Commitments of all Lenders, which as of the Restatement Date is equal to $50,000,000, as reduced from time to time pursuant to Section 1.1(b) or increased pursuant to Section 1.1(c); provided, however, that at no time shall any such increase cause the Facility Limit to exceed $150,000,000. References to the unused portion of the Facility Limit shall mean, at any time of determination, an amount equal to (x) the Facility Limit at such time, minus (y) the Aggregate Credit Exposure.
“Facility Termination Date” The earliest to occur of (i) the Amortization Date, and (ii) July 1, 2024.
“Federal Bankruptcy Code” Title 11 of the United States Code entitled “Bankruptcy,” as amended and any successor statute thereto.
“Federal Funds Effective Rate” Means, for any day the greater of (i) the average rate per annum as determined by the Administrative Agent at which overnight Federal funds are offered to the Administrative Agent for such day by major banks in the interbank market, and (ii) if the Administrative Agent is borrowing overnight funds from a Federal Reserve Bank that day, the average rate per annum at which such overnight borrowings are made on that day. Each determination of the Federal Funds Effective Rate by the Administrative Agent shall be conclusive and binding on the Borrower except in the case of manifest error.
“Fee Letter” That certain Fifth Amended and Restated Fee Letter agreement dated as of the Restatement Date among the Borrower, the Servicer, the Lenders, the Facility Agents and the Administrative Agent, as it may be amended, restated or otherwise modified and in effect from time to time.
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“First Post-Closing Date” June 30, 2021 (or such later date, if any, consented to in writing by the Administrative Agent in its sole discretion).
“Final Payout Date” The date on which all Aggregate Unpaids have been paid in full and the Facility Limit has been reduced to zero.
“Finance Charges” With respect to a Contract, any finance, interest, late payment charges or similar charges owing by an Obligor pursuant to such Contract.
“Fronting Exposure” At any time there is a Defaulting Lender, with respect to the LC Issuer, such Defaulting Lender’s Percentage of the LC Obligations with respect to Letters of Credit issued by the LC Issuer other than LC Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash-Collateralized in accordance with the terms hereof.
“GAAP” Generally accepted accounting principles in effect in the United States of America as in effect from time to time. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Transaction Document, and either any Borrower Party, Agent or any Lender shall so request, the Administrative Agent, each Lender and each Borrower Party affected shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP; provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) each Borrower Party shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
“Government Receivable” A Receivable as to which the Obligor is any nation or government, any federal, state, local or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative authority or functions of or pertaining to government including any authority or other quasi-governmental entity established to perform any of such functions.
“Group A Obligor” means any Obligor with short-term ratings of at least: (a) “A-1” by S&P, or if such Obligor does not have a short-term rating from S&P, a rating of at least “A+” by S&P on such Obligor’s long-term senior unsecured and uncredit-enhanced debt securities, and (b) “P-1” by Moody’s, or if such Obligor does not have a short-term rating from Moody’s, a rating of at least “A1” by Moody’s on such Obligor’s long-term senior unsecured and uncredit-enhanced debt securities; provided, however, if such Obligor is rated by only one of such rating agencies, then such Obligor will be a “Group A Obligor” if it satisfies either clause (a) or clause (b) above. Notwithstanding the foregoing, any Obligor that is a Subsidiary of an Obligor that satisfies the definition of “Group A Obligor” shall be deemed to be a Group A Obligor and shall be aggregated with the Obligor that satisfies such definition for the purposes of determining the “Excess Concentration Amount” for such Obligors, unless such deemed Obligor separately satisfies the definition of “Group A Obligor”, “Group B Obligor”, or “Group C Obligor”, in which case such Obligor shall be separately treated as a Group A Obligor, a Group B Obligor or a Group C Obligor,
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as the case may be, and shall be aggregated and combined for such purposes with any of its Subsidiaries that are Obligors.
“Group B Obligor” means an Obligor that is not a Group A Obligor, with short-term ratings of at least: (a) “A-2” by S&P, or if such Obligor does not have a short-term rating from S&P, a rating of at least “BBB+” by S&P on such Obligor’s long-term senior unsecured and uncredit-enhanced debt securities, and (b) “P-2” by Moody’s, or if such Obligor does not have a short-term rating from Moody’s, a rating of at least “Baal” by Moody’s on such Obligor’s long-term senior unsecured and uncredit-enhanced debt securities; provided, however, if such Obligor is rated by only one of such rating agencies, then such Obligor will be a “Group B Obligor” if it satisfies either clause (a) or clause (b) above. Notwithstanding the foregoing, any Obligor that is a Subsidiary of an Obligor that satisfies the definition of “Group B Obligor” shall be deemed to be a Group B Obligor and shall be aggregated with the Obligor that satisfies such definition for the purposes of determining the “Excess Concentration Amount” for such Obligors, unless such deemed Obligor separately satisfies the definition of “Group A Obligor”, “Group B Obligor”, or “Group C Obligor”, in which case such Obligor shall be separately treated as a Group A Obligor, a Group B Obligor or a Group C Obligor, as the case may be, and shall be aggregated and combined for such purposes with any of its Subsidiaries that are Obligors.
“Group C Obligor” means an Obligor that is not a Group A Obligor or a Group B Obligor, with short-term ratings of at least: (a) “A-3” by S&P, or if such Obligor does not have a short-term rating from S&P, a rating of at least “BBB-“ by S&P on such Obligor’s long-term senior unsecured and uncredit-enhanced debt securities, and (b) “P-3” by Moody’s, or if such Obligor does not have a short-term rating from Moody’s, at least “Baa3” by Moody’s on such Obligor’s long-term senior unsecured and uncredit-enhanced debt securities; provided, however, if such Obligor is rated by only one of such rating agencies, then such Obligor will be a “Group C Obligor” if it satisfies either clause (a) or clause (b) above. Notwithstanding the foregoing, any Obligor that is a Subsidiary of an Obligor that satisfies the definition of “Group C Obligor” shall be deemed to be a Group C Obligor and shall be aggregated with the Obligor that satisfies such definition for the purposes of determining the “Excess Concentration Amount” for such Obligors, unless such deemed Obligor separately satisfies the definition of “Group A Obligor”, “Group B Obligor”, or “Group C Obligor”, in which case such Obligor shall be separately treated as a Group A Obligor, a Group B Obligor or a Group C Obligor, as the case may be, and shall be aggregated and combined for such purposes with any of its Subsidiaries that are Obligors.
“Group D Obligor” means any Obligor that is not a Group A Obligor, Group B Obligor or Group C Obligor; provided, that any Obligor that is not rated by either Moody’s or S&P shall be a Group D Obligor.
“Indebtedness” Of a Person means such Person’s (i) obligations for borrowed money, (ii) obligations representing the deferred purchase price of property or services (other than accounts payable arising in the ordinary course of such Person’s business payable on terms customary in the trade, which shall include, but not be limited to all Pension Plan Obligations), (iii) obligations, whether or not assumed, secured by liens or payable out of the proceeds or production from property now or hereafter owned or acquired by such Person, (iv) obligations which are evidenced by notes, acceptances, or other instruments, (v) capitalized lease obligations,
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(vi) net liabilities under interest rate swap, exchange or cap agreements, and (vii) Contingent Obligations.
“Indemnified Amounts” As defined in Section 10.1.
“Indemnified Party” As defined in Section 10.1.
“Independent Manager” A Manager of the Borrower who (i) shall not have been at the time of such Person’s appointment or at any time during the preceding five years, and shall not be as long as such Person is a manager of the Borrower, (A) a Manager, officer, employee, partner, shareholder, member, manager or Affiliate of any of the following Persons (collectively, the “Independent Parties”): the Servicer, any Originator, or any of their respective Subsidiaries or Affiliates (other than Borrower), (B) a supplier to any of the Independent Parties, (C) a Person controlling or under common control with any partner, shareholder, member, manager, Affiliate or supplier of any of the Independent Parties, or (D) a member of the immediate family of any Manager, officer, employee, partner, shareholder, member, manager, Affiliate or supplier of any of the Independent Parties; (ii) has prior experience as an Independent Manager for a corporation or limited liability company whose charter documents required the unanimous consent of all independent Managers or managers thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy, (iii) has at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (iv) is reasonably acceptable to the Administrative Agent as evidenced in a writing executed by the Administrative Agent.
“Interest” For each day during each Interest Period relating to a Loan, an amount equal to the product of (x) the sum of (i) the applicable Interest Rate for such Loan, plus (ii) the Applicable Margin, multiplied by, (y) the principal amount of such Loan for such day, annualized on (i) a 360 basis for Interest accruing at the LIBO Rate or LMIR, or (ii) a 365 or 366 day basis, as applicable, for Interest accruing at the Alternate Base Rate.
“Interest Period” With respect to any Loan (i) the period commencing on the date of the initial funding of such Loan and ending on, but excluding, the last day of the Calculation Period in which such funding date occurs; and (ii) thereafter, each period commencing on, and including, the first day of each Calculation Period and ending on, but excluding, the first day of the following Calculation Period; provided, however, that: if any Interest Period with respect to any LIBO Loan would extend beyond the scheduled Facility Termination Date, such Interest Period shall end on the Facility Termination Date.
“Interest Rate” With respect to each Loan, the LIBO Rate, LMIR, the Alternate Base Rate or the Default Rate, as applicable.
“Interest Reserve” For any Calculation Period, the product (expressed as a percentage) of (i) 1.5 (ii) the Prime Rate as of the immediately preceding Cut-Off Date, (iii) the highest Days Sales Outstanding Ratio for the most recent 12 Calculation Periods, and (iv) 1/360.
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“LC Advance” Any drawing by the beneficiary under a Letter of Credit issued by the LC Issuer which has not been reimbursed pursuant to Section 1.6(d)
“LC Amounts” As defined in Section 1.6(d).
“LC Fee Expectation” As defined in Section 1.6(j).
“LC Issuer” TD Bank, in its capacity as issuer of Letters of Credit hereunder and any successor thereto.
“LC Obligations” At any time, the sum, without duplication, of (a) the aggregate then undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate principal amount of unreimbursed LC Advances as of such date. For purposes of determining the undrawn and unexpired amount of a Letter of Credit at any time hereunder, such amount shall be deemed to be the maximum stated amount (including any automatic increases provided by its terms) of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
“Lenders” Any Conduit Lender or Committed Lender, as applicable, and “Lenders” means, collectively, the Conduit Lenders and the Committed Lenders. For the avoidance of doubt, the LC Issuer shall constitute a “Lender” at such time as any Unreimbursed LC Amount remains outstanding.
“Lender Group” Each group consisting of a Facility Agent, one or more related Conduit Lenders, if any, one or more related Committed Lenders and a related LC Issuer, if any.
“Lender Group Limit” For any Lender Group at any time, an amount equal to the aggregate Commitments of all Committed Lenders in such Lender Group.
“Lender Group Percentage” At any time of determination, with respect to any Lender Group, a fraction (expressed as a percentage), (a) the numerator of which is (i) prior to the termination of all Commitments hereunder, the aggregate Commitments of all Committed Lenders in such Lender Group at such time or (ii) if all Commitments hereunder have been terminated, the aggregate Credit Exposure of all Lenders in such Lender Group at such time and (b) the denominator of which is (i) prior to the termination of all Commitments hereunder, the aggregate Commitments of all Lenders at such time or (ii) if all Commitments hereunder have been terminated, the Aggregate Credit Exposure at such time.
“Lender Reimbursement Payment” As defined in Section 1.6(d).
“Letter of Credit” Collectively, letters of credit issued pursuant to Section 1.6.
“Letter of Credit Collateral” As defined in Section 13.12(c).
“Letter of Credit Collateral Account” A segregated cash collateral account at the LC Issuer in the LC Issuer’s name established at any time after the date of this Agreement at the LC Issuer’s request that is under the exclusive control of the LC Issuer.
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“Letter of Credit Issuance Fee” As defined in the Fee Letter.
“Letter of Credit Request” A request by the Borrower for the issuance of a Letter of Credit pursuant to Section 1.6(b) and substantially in the form attached hereto as Exhibit II-B.
“LIBO Loan” Any Loan bearing interest at a LIBO Rate.
“LIBO Rate” For any Interest Period with respect to a LIBO Loan, the rate per annum determined on the basis of (i) the offered rate for deposits in U.S. dollars of amounts equal or comparable to the principal amount of such Loan offered for a term comparable to such Interest Period, which rates appear on the Reuters Screen LIBOR01 Page (or any successor page) effective as of 11:00 A.M., London time, two Business Days prior to the first day of such Interest Period (the “Rate Setting Day”) or if such rate is unavailable, the rate per annum (rounded upwards, if necessary, to the nearest 1/100th of one percent) based on the rates at which deposits in U.S. dollars for one month are displayed on page “LIBOR” of the Reuters Screen as of 11:00 a.m. (London time) on the Rate Setting Day (it being understood that if at least two (2) such rates appear on such page, the rate will be the arithmetic mean of such displayed rates), provided that if no such offered rates appear on such pages, the LIBO Rate for such Interest Period will be the arithmetic average (rounded upwards, if necessary, to the next higher 1/100th of 1%) of rates quoted by not less than two major banks in New York, New York, selected by the Administrative Agent, at approximately 10:00 a.m. (New York City time), two Business Days prior to the first day of such Interest Period, for deposits in U.S. dollars offered by leading European banks for a period comparable to such Interest Period in an amount comparable to the principal amount of the Loan, divided by (ii) one minus the maximum aggregate reserve requirement (including all basic, supplemental, marginal or other reserves) which is imposed against the Administrative Agent in respect of Eurocurrency liabilities, as defined in Regulation D of the Board of Governors of the Federal Reserve System as in effect from time to time (expressed as a decimal), applicable to such Interest Period. Notwithstanding the foregoing, if the LIBO Rate as determined herein would be less than zero (0.00), such rate shall be deemed to be zero percent (0.00%) for purposes of this Agreement.
“Liquidity Advance” means a loan, advance, purchase or other similar action made by a Liquidity Provider pursuant to a Liquidity Agreement.
“Liquidity Agreement” means any agreement entered into, directly or indirectly, in connection with or related to, this Agreement pursuant to which a Liquidity Provider agrees to make loans or advances to, or purchase assets from, a Conduit Lender (directly or indirectly) in order to provide liquidity or other enhancement for such Conduit Lender’s Commercial Paper Notes or other senior indebtedness.
“Liquidity Provider” means each bank, other financial institution or other Person that is at any time party to a Liquidity Agreement as a lender (or any participant thereof).
“LMIR” For any day during any Interest Period with respect to an LMIR Loan, the rate per annum determined on the basis of (i) the offered rate for deposits in U.S. dollars for a term of one month, which rates appear on the Reuters Screen LIBOR01 Page (or any successor page) effective as of 11:00 A.M., London time, on such day, or if such day is not a Business Day, then the immediately preceding Business Day; provided that if no such offered rates appear on such
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page, LMIR for such day will be the arithmetic average (rounded upwards, if necessary, to the next higher 1/100th of 1%) of rates quoted by not less than two major banks in New York, New York, selected by the Administrative Agent, at approximately 10:00 a.m. (New York City time), on such day (or if such day is not a Business Day, then the immediately preceding Business Day), for deposits in U.S. dollars offered by leading European banks for a period of one month, divided by (ii) one minus the maximum aggregate reserve requirement (including all basic, supplemental, marginal or other reserves) which is imposed against the Administrative Agent in respect of Eurocurrency liabilities, as defined in Regulation D of the Board of Governors of the Federal Reserve System as in effect from time to time (expressed as a decimal), applicable to such Interest Period. Notwithstanding the foregoing, if LMIR as determined herein would be less than zero (0.00), such rate shall be deemed to be zero percent (0.00%) for purposes of this Agreement.
“LMIR Lender” means (i) any Lender that has provided written notice to the Borrower prior to the Restatement Date of its election to be a “LMIR Lender” hereunder and (ii) any other Lender that agrees in writing with the Borrower to be a “LMIR Lender” hereunder; provided, however, that any LMIR Lender may cease to be an LMIR Lender on any day if agreed to in writing with the Borrower. As of the Restatement Date, the only LMIR Lenders are TD Bank and Reliant.
“LMIR Loan” Any Loan bearing interest at LMIR.
“Loan” Any amount disbursed as principal by Lender to Borrower under this Agreement.
“Lock-Box” Each locked postal box with respect to which a Collection Bank or a Segregated Account Bank has been granted exclusive access for the purpose of retrieving and processing payments made on the Receivables and which is listed on Exhibit IV (as the same may be updated from time to time in accordance with Section 7.1(m) hereof).
“Loss Horizon Ratio” As of any Cut-Off Date, the ratio (expressed as a decimal) computed by dividing (a) the aggregate Credit Sales for the four (4) most recent Calculation Periods (including the Calculation Period ending on such Cut-Off Date), by (b) the Net Pool Balance as of such Cut-Off Date.
“Loss Reserve” For any Calculation Period, the product (expressed as a percentage) of (i) the Stress Factor, times (ii) the highest three-month rolling average Default Ratio during the 12 Calculation Periods ending on the immediately preceding Cut-Off Date, times (iii) the Loss Horizon Ratio as of the immediately preceding Cut-Off Date.
“Majority Lenders” Lenders representing more than 50% of the aggregate Commitments of all Lenders (or, if the Commitments have been terminated, Lenders representing more than 50% of the Aggregate Credit Exposure); provided, however that at any time there are two or fewer Lenders that are not Affiliates, the term “Majority Lenders” shall mean all Lenders (other than any Defaulting Lender). At any time there is more than one Lender that is not a Defaulting Lender, the Commitments and Credit Exposure of any Defaulting Lender shall be disregarded in determining Majority Lenders.
“Master Collection Account” Each Collection Account designated as such on Exhibit IV hereto.
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“Master Contract” A Contract between an Obligor and an Originator that contains the terms upon which the carriage of freight performed by such Originator for such Obligor or each instance of provision of equipment provided by an Originator to an Obligor over the term of the Master Contract will be governed.
“Material Adverse Effect” A material adverse effect on (i) the financial condition or operations of the Parent or an Originator or the Servicer and its Subsidiaries taken as a whole, (ii) the ability of any Borrower Party to perform its obligations under this Agreement, (iii) the legality, validity or enforceability of this Agreement or any other Transaction Document, (iv) the Administrative Agent’s security interest, for the benefit of the Secured Parties, in the Purchased Receivables generally or in any significant portion of the Purchased Receivables, the Related Security or the Collections with respect thereto, (v) the Administrative Agent’s security interest, for the benefit the LC Issuer, in the Letter of Credit Collateral, or (vi) the collectibility of the Purchased Receivables generally or of any material portion of the Purchased Receivables.
“Material Indebtedness” As defined in Section 9.1(f).
“Minimum Collateral Amount” At any time, (i) with respect to Cash-Collateral consisting of cash or deposit account balances, an amount equal to 103% of the Fronting Exposure of the LC Issuer with respect to Letters of Credit issued and outstanding at such time and (ii) otherwise, an amount determined by the Administrative Agent and the LC Issuer in their sole discretion.
“Monthly Report” A report, in substantially the form of Exhibit VII hereto (appropriately completed), furnished by the Servicer to the Administrative Agent pursuant to Section 8.5.
“Monthly Reporting Date” With respect to any calendar month, the second Business Day occurring before the Settlement Date for such calendar month, or such other days of any month as Administrative Agent may request in connection with Section 8.5 hereof.
“Moody’s” Xxxxx’x Investors Service, Inc.
“Net Pool Balance” At any time, the aggregate Outstanding Balance of all Eligible Receivables at such time reduced by the Excess Concentration Amount.
“Non-Defaulting Lender” At any time, each Lender that is not a Defaulting Lender at such time.
“Notice of LC Draw” As defined in Section 1.6(d)(ii).
“Obligor” A Person obligated to make payments pursuant to a Contract.
“OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control, and any successor thereto.
“Originator” Each of ABF, ArcBest Logistics, Inc., an Arkansas corporation, ArcBest International, Inc., a Delaware corporation, Panther II Transportation, Inc., an Arkansas corporation, ArcBest Enterprise Solutions, Inc., an Arkansas corporation, ArcBest Dedicated, LLC, a Nevada limited liability company, and ArcBest II, Inc., an Arkansas corporation.
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“Outstanding Balance” Of any Receivable at any time means the then outstanding principal balance thereof. For purposes of calculating the Outstanding Balance of any Receivable that is payable in Canadian Dollars, such amount shall be converted into U.S. Dollars using the Exchange Rate in effect at the time of calculation.
“Parent” ArcBest Corporation, a Delaware corporation.
“Parent Note” The promissory note made or to be made by Parent to Borrower in a principal amount not to exceed $5,000,000, in connection with Parent’s capitalization of Borrower.
“PATRIOT Act” The USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), as amended from time to time, and any successor statute.
“PBGC” The Pension Benefit Guaranty Corporation, or any successor thereto.
“Pension Plan” A pension plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA which an Originator sponsors or maintains, or to which it makes, is making, or is obligated to make contributions, or in the case of a multiple employer plan (as described in Section 4064(a) of ERISA) has made contributions at any time during the immediately preceding five plan years.
“Pension Plan Obligation” An obligation to contribute to a Pension Plan, as required by a collective bargaining agreement.
“Percentage” At any time of determination, with respect to any Lender, a fraction (expressed as a percentage), (a) the numerator of which is (i) prior to the termination of all Commitments hereunder, its Commitment at such time or (ii) if all Commitments hereunder have been terminated, the Credit Exposure of such Lender at such time and (b) the denominator of which is (i) prior to the termination of all Commitments hereunder, the aggregate Commitments of all Lenders at such time or (ii) if all Commitments hereunder have been terminated, the Aggregate Credit Exposure at such time; provided, however that when a Defaulting Lender shall exist, “Percentage” shall mean the percentage of the aggregate Commitments (disregarding any Defaulting Lender’s Commitment) represented by such Lender’s Commitment (except that no Lender is required to fund or participate in Loans or Letters of Credit to the extent that, after giving effect thereto, its Credit Exposure would exceed the amount of its Commitment (determined as though no Defaulting Lender existed)).
“Performance Guaranty” The Second Amended and Restated Performance Guaranty, dated as of the Restatement Date, by the Parent in favor of the Administrative Agent.
“Person” An individual, partnership, corporation (including a business trust), limited liability company, joint stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof.
“Plan” An employee benefit plan (as defined in Section 3(3) of ERISA) which an Originator or any of its ERISA Affiliates sponsors or maintains or to which an Originator or any of its ERISA Affiliates makes, is making, or is obligated to make contributions and includes any
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Pension Plan, other than a Plan maintained outside the United States primarily for the benefit of Persons who are not U.S. residents.
“Pledged Assets” All of the Borrower’s right, title and interest, whether now owned and existing or hereafter arising in and to all of the Purchased Receivables, the Related Security, the Collections and all proceeds of the foregoing.
“PNC Bank Account” the bank account at PNC Bank, National Association, in the name of the Borrower, and with account number [ ].
“Prepayment Notice” As defined in Section 1.3.
“Prime Rate” A rate per annum equal to the prime rate of interest announced from time to time by the Administrative Agent (which is not necessarily the lowest rate charged to any customer), changing when and as said prime rate changes.
“Program Administration Agreement” means any administration agreement between any Conduit Lender and Program Administrator governing certain aspects of the administration of such Conduit Lender’s commercial paper facility or any other agreement having similar purposes, as in effect from time to time.
“Program Administrator” means the administrator designated for any Conduit Lender under the Program Administration Agreement.
“Program Support Agreement” means and includes any Liquidity Agreement and any other agreement entered into by any Program Support Provider providing for: (a) the issuance of one or more letters of credit for the account of any Conduit Lender, (b) the issuance of one or more surety bonds for which the such Conduit Lender is obligated to reimburse the applicable Program Support Provider for any drawings thereunder, (c) the sale by such Conduit Lender to any Program Support Provider of the rights of such Conduit Lender hereunder (including to the Loans) and/or (d) the making of loans and/or other extensions of credit to any Conduit Lender in connection with such Conduit Lender’s securitization program contemplated in this Agreement, together with any letter of credit, surety bond or other instrument issued thereunder.
“Program Support Provider” means and includes with respect to each Conduit Lender any Liquidity Provider and any other Person (other than any customer of such Conduit Lender) now or hereafter extending credit or having a commitment to extend credit to or for the account of, or to make purchases from, such Conduit Lender pursuant to any Program Support Agreement.
“Proposed Prepayment Date” As defined in Section 1.3(a).
“Purchased Receivable” All Receivables purchased by the Borrower from an Originator pursuant to the Receivables Sale Agreement and not otherwise repurchased by an Originator in accordance with the terms thereof.
“Receivable” All indebtedness and other obligations owed to the Borrower or any Originator (at the time it arises, and before giving effect to any transfer or conveyance under the Receivables Sale Agreement) or in which the Borrower or any Originator has a security interest or
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other interest, including, without limitation, any indebtedness, obligation or interest constituting an account, chattel paper, instrument or general intangible, arising in connection with any carriage of freight or other services in relation to such carriage of freight (including, without limitation, refrigeration, loading, unloading, diversion, switching and weighting charges, demurrage, detention and expedited services) by the applicable Originator or the rental or other provision of the use of trucks, tractors and trailers or other transportation equipment to third parties on a contract basis by an Originator (including, without limitation, any rents, fees, commissions, and refrigeration, loading, unloading, diversion, switching and weighting charges, demurrage, and detention) or any freight brokerage, intermodal, freight forwarding, logistics, supply chain or transportation management services by such Originator (including, without limitation, freight charges, brokerage fees, ocean shipping, air shipping, warehousing, inventory control, and expedited/time-sensitive services) and further includes, without limitation and in either case, the obligation to pay any Finance Charges with respect thereto.
“Receivables Sale Agreement” That certain Second Amended and Restated Receivables Sale Agreement, dated as of February 1, 2015, among the Originators from time to time party thereto and the Borrower, as amended and as may be amended, restated or otherwise modified from time to time after the Restatement Date.
“Records” With respect to any Receivable, all Contracts and other documents, books, records and other information (including, without limitation, tapes, disks, punch cards, and related property and rights (but not any right, title or interest to any information on any such tapes, disks, or punch cards not relating to a Receivable or any related property or rights thereto and not any right, title or interest in any computer program or data processing software or any license for the use thereof) relating to such Receivable, any Related Security therefor and the related Obligor
“Recourse Obligations” As defined in Section 2.1.
“Regulatory Change” As defined in Section 10.2.
“Related Security” All of the Borrower’s right, title and interest in, to and under and with respect to any Receivable:
(i)all security interests or liens and property subject thereto from time to time, if any, purporting to secure payment of such Receivable, whether pursuant to the Contract related to such Receivable or otherwise, together with all financing statements and security agreements describing any collateral securing such Receivable,
(ii)all guaranties, letters of credit (to the extent they may be pledged), insurance and other agreements or arrangements of whatever character from time to time supporting or securing payment of such Receivable whether pursuant to the Contract related to such Receivable or otherwise,
(iii)all service contracts and other contracts and agreements associated with such Receivable other than Master Contracts,
(iv)all Records other than Master Contracts related to such Receivable,
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(v)all of the Borrower’s right, title and interest in, to and under the Receivables Sale Agreement,
(vi)any other items constituting Supporting Obligations (as defined in Article 9 of the UCC in effect in each relevant jurisdiction) to the extent not included in clauses (i)-(v) above,
(vii)all proceeds of any of the foregoing.
“Release” As defined in Section 2.2.
“Reliant” Reliant Trust.
“Required Notice Period” The number of days required notice set forth below applicable to the Aggregate Prepayment indicated below:
Aggregate Prepayment | Required Notice Period |
Loans accruing Interest at the LIBO Rate | 3 Business Days |
Loans accruing Interest at LMIR | 3 Business Days |
Loans accruing Interest at the Alternate Base Rate | 1 Business Day |
“Required Reserve” On any day during a Calculation Period, the product of (A) the sum of (i) the Interest Reserve, (ii) the Servicing Reserve and (iii) the greater of (x) the Required Reserve Factor Floor and (y) the sum of the Loss Reserve and the Dilution Reserve, and (B) the Net Pool Balance as of the Cut-Off Date immediately preceding such Calculation Period.
“Required Reserve Factor Floor” For any Calculation Period, the sum (expressed as a percentage) of (i) 14% plus (ii) the product of the Expected Dilution Ratio and the Dilution Horizon Ratio, in each case, as of the immediately preceding Cut-Off Date.
“Restatement Date” means June 9, 2021.
“Restricted Junior Payment” (i) Any dividend or other distribution, direct or indirect, on account of any shares of any class of capital stock of the Borrower now or hereafter outstanding, except a dividend payable solely in shares of that class of stock or in any junior class of stock of the Borrower, (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of capital stock of the Borrower now or hereafter outstanding, (iii) any payment or prepayment of principal of, premium, if any, or interest, fees or other charges on or with respect to, and any redemption, purchase, retirement, defeasance, sinking fund or similar payment and any claim for rescission with respect to the Subordinated Loans (as defined in the Receivables Sale Agreement), (iv) any payment made to redeem, purchase, repurchase or retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of capital stock of the Borrower now or
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hereafter outstanding, and (v) any payment of management fees by the Borrower (except for the Servicing Fee and reasonable management fees to an Originator or its Affiliates in reimbursement of actual management services performed).
“Review” As defined in Section 7.1(d)(ii).
“S&P” S&P Global Ratings.
“Sanctioned Country” At any time, any country or territory which is itself the subject or target of any comprehensive Sanctions.
“Sanctioned Person” At any time, (a) any Person or group listed in any Sanctions related list of designated Persons maintained by OFAC or the U.S. Department of State, (b) any Person or group operating, organized or resident in a Sanctioned Country, (c) any agency, political subdivision or instrumentality of the government of a Sanctioned Country, or (d) any Person 50% or more owned, directly or indirectly, by any of the above.
“Sanctions” Economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government, including those administered by OFAC or the U.S. Department of State.
“SEC” The Securities and Exchange Commission of the United States of America and any successor commission or agency thereof.
“Second Amendment Closing Date” August 3, 2018.
“Second Post-Closing Date” July 31, 2021 (or such later date, if any, consented to in writing by the Administrative Agent in its sole discretion).
“Secured Parties” The Indemnified Parties.
“Segregated Account” An account in the name of an Originator, the Borrower or the Servicer in which no monies other than amounts constituting Collections are deposited at any time and which is listed on Exhibit IV (as the same may be updated from time to time in accordance with Section 7.1(m) hereof).
“Segregated Account Bank” At any time, any of the banks holding one or more Segregated Accounts.
“Servicer” At any time the Person (which may be the Administrative Agent) then authorized pursuant to Article VIII to service, administer and collect Purchased Receivables.
“Servicer Termination Event” As defined in Section 9.2.
“Servicing Fee” For each day in a Calculation Period:
(i)an amount equal to (A) the Servicing Fee Rate (or, at any time while ArcBest II or one of its Affiliates is the Servicer, such lesser percentage as may be agreed
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between the Borrower and the Servicer on an arms’ length basis based on then prevailing market terms for similar services), times (B) the aggregate Outstanding Balance of all Purchased Receivables at the close of business on the Cut-Off Date immediately preceding such Calculation Period, times (C) 1/360; or
(ii)on and after the Servicer’s reasonable request made at any time when ArcBest II or one of its Affiliates is no longer acting as Servicer hereunder, an alternative amount specified by the successor Servicer not exceeding (A) 110% of such Servicer’s reasonable costs and expenses of performing its obligations under this Agreement during the preceding Calculation Period, divided by (B) the number of days in the current Calculation Period.
“Servicing Fee Rate” 1.50% per annum.
“Servicing Reserve” For any Calculation Period, the product (expressed as a percentage) of (a) the highest Days Sales Outstanding Ratio during the most recent 12 Calculation Periods, (b) 1.5, (c) the Servicing Fee Rate, and (d) 1/360.
“Settlement Date” means the 17th day of each month or, if such day is not a Business Day, the Business Day immediately thereafter.
“Special Calculation Period” Any Calculation Period elected by the Borrower so long as (i) at least five (5) days prior written notice has been given to the Administrative Agent and each Lender before the next Settlement Date and (ii) not more than nine (9) Special Calculation Periods have been selected from the Restatement Date through the Facility Termination Date.
“Stress Factor” 2.25.
“Subordinated Note” As defined in the Receivables Sale Agreement.
“Subsidiary” Of a Person means (i) any corporation more than 50% of the outstanding securities having ordinary voting power of which shall at the time be owned or controlled, directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, or (ii) any partnership, association, limited liability company, joint venture or similar business organization more than 50% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled.
“TD Bank” As defined in the preamble to this Agreement.
“Termination Date Collateral Account Deficiency” As defined in Section 1.6(j).
“Tax Code” The Internal Revenue Code of 1986, as the same may be amended from time to time.
“Transaction Documents” Collectively, this Agreement, each Borrowing Request, the Receivables Sale Agreement, each Collection Account Agreement, the Administrative Agent Fee Letter, the Fee Letter, the Subordinated Notes, the Performance Guaranty, the Parent Note and all other instruments, documents and agreements executed and delivered in connection herewith.
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“UCC” The Uniform Commercial Code as from time to time in effect in the specified jurisdiction.
“Unbilled Receivable” A Receivable for which, at the time of determination, an invoice or any other evidence of the obligation of the related Obligor thereunder has not been duly submitted to such Obligor for payment of the amount thereof.
“Unfunded Vested Liabilities” For any Plan at any time, the amount (if any) by which the present value of all vested nonforfeitable accrued benefits under such Plan exceeds the fair market value of all Plan assets allocable to such benefits, all determined as of the then most recent valuation date for such Plan, but only to the extent that such excess represents a potential liability of a member of the Controlled Group to the PBGC or the Plan under Title IV of ERISA
“Unmatured Amortization Event” An event which, with the passage of time or the giving of notice, or both, would constitute an Amortization Event.
“Unmatured Servicer Termination Event” An event which, with the passage of time or the giving of notice, or both, would constitute a Servicer Termination Event.
“Unreimbursed LC Amount” As defined in Section 1.6(d).
“U.S. Dollar” and “$” means lawful currency of the United States of America.
“Voluntary Termination” The occurrence of an Amortization Event resulting from the occurrence of the “Termination Date” pursuant to Section 6.1 of the Receivables Sale Agreement.
“Voluntary Termination Notice” As defined in the Receivables Sale Agreement.
“Weekly Report” A certificate, in substantially the form of Exhibit VIII hereto (appropriately completed), furnished by the Servicer to the Administrative Agent pursuant to Section 8.5(b).
“Weekly Reporting Date” The second Business Day of each calendar week.
All accounting terms not specifically defined herein shall be construed in accordance with GAAP. Unless otherwise specified, all terms used in Article 9 of the UCC in the State of New York, and not specifically defined herein, are used herein as defined in such Article 9.
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EXHIBIT II-A
FORM OF BORROWING REQUEST
ARCBEST FUNDING LLC
BORROWING REQUEST
dated ___________, 202_
for Loan on ___________, 202_
The Toronto-Dominion Bank
000 Xxxxxxxx Xxxxxx Xxxx
00xx Xxxxx
Xxxxxxx, XX, X0X 0X0
Attention: ASG Asset Securitization
Email: xxxxxxxxxxxxx@xxxxxxxxxxxx.xxx
Ladies and Gentlemen:
Reference is made to the Third Amended and Restated Receivables Loan Agreement, dated as of June 9, 2021 (as amended, supplemented or otherwise modified from time to time, the “Receivables Loan Agreement”) among ArcBest Funding LLC (the “Borrower”), ArcBest II, Inc., as Servicer (the “Servicer”), the financial institutions from time to time party thereto, as lenders (in such capacity, the “Lenders”) and facility agents (in such capacity, the “Facility Agents”), and The Toronto-Dominion Bank, as LC Issuer (in such capacity, the “LC Issuer”) and as agent (in such capacity, the “Administrative Agent”). Capitalized terms defined in the Receivables Loan Agreement are used herein with the same meanings.
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________ 28 days
________ one month
________ [__] days (not to exceed 35 days)
[Apply $________ to payment of Aggregate Unpaids due on the Borrowing Date]. [Wire transfer $________ to account no. ________ at ___________ Bank, in [city, state], ABA No. __________, Reference: ________].
In Witness Whereof, the Borrower has caused this Borrowing Request to be executed and delivered as of this ____ day of ___________, 202_.
ARCBEST FUNDING LLC, as Borrower
By: ArcBest Corporation, its sole member
By:
Name:
Title:
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Exhibit II-B
Form of Letter of Credit Request
ArcBest Funding LLC
Letter of Credit Request
dated ______________, 202_
for issuance of Letter of Credit on ________________, 202_
The Toronto-Dominion Bank
000 Xxxxxxxx Xxxxxx Xxxx
00xx Xxxxx
Xxxxxxx, XX, X0X 0X0
Attention: ASG Asset Securitization
Email: xxxxxxxxxxxxx@xxxxxxxxxxxx.xxx
Ladies and Gentlemen:
Reference is made to the Third Amended and Restated Receivables Loan Agreement, dated as of June 9, 2021 (as amended, supplemented or otherwise modified from time to time, the “Receivables Loan Agreement”) among ArcBest Funding LLC (the “Borrower”), ArcBest II, Inc., as Servicer, the financial institutions from time to time party thereto, as lenders (in such capacity, the “Lenders”) and as facility agents (in such capacity, the “Facility Agents”), and The Toronto-Dominion Bank, as LC Issuer (in such capacity, the “LC Issuer”) and as administrative agent (in such capacity, the “Administrative Agent”). Capitalized terms defined in the Receivables Loan Agreement are used herein with the same meanings.
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Issued on behalf of: _____________
In Witness Whereof, the Borrower has caused this Letter of Credit Request to be executed and delivered as of this ____ day of ___________, 202_.
ARCBEST FUNDING LLC, as Borrower
By: ArcBest Corporation, its sole member
By:
Name:
Title:
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SCHEDULE I TO LETTER OF CREDIT REQUEST
APPLICATION
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EXHIBIT III
JURISDICTION OF ORGANIZATION OF THE BORROWER PARTIES;
PLACES OF BUSINESS OF THE BORROWER PARTIES; LOCATIONS OF RECORDS;
FEDERAL EMPLOYER IDENTIFICATION NUMBER(S)
ArcBest II, Inc.
Jurisdiction of Organization: Arkansas
Principal places of business:
0000 XxXxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Location(s) of Records:
0000 XxXxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Federal employer identification number: 00-0000000
Legal, Trade & Assumed Names: ArcBest II, Inc.
ArcBest Funding LLC
Jurisdiction of Organization: Delaware
Principal Place(s) of Business: Ft. Xxxxx, Arkansas
Location(s) of Records: 0000 XxXxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxxx 00000
Federal Employer Identification Number: 00-0000000
Legal, Trade and Assumed Names: ArcBest Funding LLC
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EXHIBIT IV
NAMES OF COLLECTION BANKS AND SEGREGATED ACCOUNT BANKS; LOCK-BOXES, SEGREGATED ACCOUNTS AND COLLECTION ACCOUNTS
Master Collection Account | |
First National Bank of Fort Xxxxx | |
Account Number: [ ] | |
| |
Collection Accounts | |
US Bank National Association | |
Account Number: | [ ] |
| |
Xxxxx Fargo Bank, N.A. | |
Account Number: | [ ] |
| |
First National Bank of Fort Xxxxx | |
Account Number: | [ ] |
Segregated Accounts |
Bank | Account Number |
[ ] | [ ] |
[ ] | [ ] |
[ ] | [ ] |
[ ] | [ ] |
[ ] | [ ] |
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EXHIBIT V
FORM OF COMPLIANCE CERTIFICATE
To: The Toronto-Dominion Bank, as Administrative Agent
This Compliance Certificate is furnished pursuant to Section 7.1(a)(iii) of that certain Third Amended and Restated Receivables Loan Agreement, dated as of June 9, 2021 among ArcBest Funding LLC (the “Borrower”), ArcBest II, Inc., as Servicer (the “Servicer”), the financial institutions from time to time party thereto, as lenders (in such capacity, the “Lenders”) and as facility agents (in such capacity, the “Facility Agents”), and The Toronto-Dominion Bank, as LC Issuer, and as Administrative Agent (the “Agreement”).
The undersigned hereby certifies that:
[1) Described below are the exceptions, if any, to paragraph 4 by listing, in detail, the nature of the condition or event, the period during which it has existed and the action which the Borrower has taken, is taking, or proposes to take with respect to each such condition or event: ____________________]
The foregoing certifications, and the financial statements delivered with this Certificate in support hereof, are made and delivered as of ______________, 202_.
By:
Name:
Title:
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SCHEDULE I TO COMPLIANCE CERTIFICATE
Calculations of Adjusted Leverage Ratio
[Attach Calculations of Adjusted Leverage Ratio]
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Exhibit VI
[Reserved]
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Exhibit VII
Form of Monthly Report
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Exhibit VIII
Form of Weekly Report
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Exhibit IX
Form of Prepayment Notice
ArcBest Funding LLC
Prepayment Notice
dated ______________, 202_
for a prepayment on ___________, 202_
The Toronto-Dominion Bank
000 Xxxxxxxx Xxxxxx Xxxx
00xx Xxxxx
Xxxxxxx, XX, X0X 0X0
Attention: ASG Asset Securitization
Email: xxxxxxxxxxxxx@xxxxxxxxxxxx.xxx
Ladies and Gentlemen:
Reference is made to the Third Amended and Restated Receivables Loan Agreement dated as of June 9, 2021 (as amended, supplemented or otherwise modified from time to time, the “Receivables Loan Agreement”) among ArcBest Funding LLC (the “Borrower”), ArcBest II, Inc., as Servicer, the financial institutions from time to time party thereto, as lenders (in such capacity, the “Lenders”) and as facility agents (in such capacity, the “Facility Agents”), and The Toronto-Dominion Bank, as LC Issuer and as Administrative Agent. Capitalized terms defined in the Receivables Loan Agreement are used herein with the same meanings.
741012885 21673258
In Witness Whereof, the Borrower has caused this Prepayment Notice to be executed and delivered as of this ____ day of ___________, 202_.
ARCBEST FUNDING LLC, as Borrower
By: ArcBest Corporation, its sole member
By:
Name:
Title:
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EXHIBIT X
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated ____________, 202_
Reference is made to the Third Amended and Restated Receivables Loan Agreement, dated as of June 9, 2021 (as amended heretofore, the “Agreement”) among ArcBest Funding LLC (the “Borrower”), ArcBest II, Inc., as Servicer, the financial institutions from time to time party thereto, as lenders (the “Lenders”) and as facility agents (the “Facility Agents”), and The Toronto-Dominion Bank, as LC Issuer (in such capacity, the “LC Issuer”) and as administrative agent (in such capacity, the “Administrative Agent”). Terms defined in the Agreement are used herein with the same meaning.
___________________ (the “Assignor”) and _________________________ (the “Assignee”) agree as follows:
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In Witness Whereof, the parties hereto have caused this Assignment and Acceptance to be executed by their respective officers thereunto duly authorized, as of the date first above written, such execution being made on Schedule 1 hereto.
THE TORONTO-DOMINION BANK, as Assignor
By:
Name:
Title:
[_______________________], as Assignee
By:
Name:
Title:
[Lending Office:]
[Address]
Accepted this ___ day of
___________, 202_ by:
THE TORONTO-DOMINION BANK, as Administrative Agent
By:
Title:
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Schedule 1
to
Assignment and Acceptance
Dated __________, 202_
Aggregate Commitment / Loans for all Lenders | Amount of Commitment / Loans Assigned | Percentage Assigned of Commitment / Loans |
$______________ | $______________ | _________% |
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Schedule A
Documents to Be Delivered to the Administrative Agent
on or Prior to the Amendment and Restatement
[Attached]
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Schedule B
[RESERVED]
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Schedule C
Commitments
COMMITTED Lender | Commitment |
TD Bank | $30,000,000 |
Regions Bank | $20,000,000 |
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