Exhibit 10.20





Exhibit 10.20




CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION UNDER A CONFIDENTIAL TREATMENT REQUEST, PURSUANT TO RULE 24b-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. THE REDACTED TERMS HAVE BEEN MARKED IN THIS EXHIBIT
AT THE APPROPRIATE PLACE WITH THREE ASTERISKS [***].



MASTER CONTINUING

LETTER OF CREDIT REIMBURSEMENT AND SECURITY AGREEMENT




November 24, 2009




The undersigned applicants (collectively, the “Applicants” and each, individually, an “Applicant”)
may from time to time request The Bank of Tokyo-Mitsubishi UFJ, Ltd. (hereinafter referred to,
together with its successors and/or assigns, as the “Bank”), with offices at 1251 Avenue of the
Americas, New York, NY 10020-1104, to issue one or more irrevocable standby letters of credit
(each, as the context requires or applies, and together with all amendments, renewals and
extensions thereof, a “Letter of Credit”, and collectively, the “Letter of Credit” or “Letters of
Credit”).



In order to induce the Bank to issue the Letters of Credit, and in consideration thereof, each of
the Applicants hereby agrees with the Bank as follows:



1. Application. From time to time from the date of this agreement until one (1) year from
the date hereof (the “Maturity Date”), each Applicant may request Letters of Credit subject to the
terms hereof. Each request for any Letter of Credit shall be on the Bank’s form of application
therefor as from time to time in use (each, an “Application”), must have an expiration date no
later than one (1) year from its date of issuance (subject, however, to any evergreen clause), and
the total aggregate amount of Letters of Credit which the Applicants may request and the Bank may
issue hereunder in the aggregate shall not exceed $25,000,000. Neither this Master Continuing
Letter of Credit Reimbursement Agreement (as amended or otherwise modified from time to time, this
“Agreement”) nor any Application obligates the Bank to issue, or consider any request to issue, any
proposed Letter of Credit for which an Application has been made until the Applicant has complied
with any and all requirements relating to conditions precedent, collateral security, guaranty or
credit support established for that Letter of Credit.



2. Reimbursement. The Applicants agree jointly and severally to reimburse the Bank, with
or without demand, for any and all payments the Bank makes under or otherwise with respect to any
Letter of Credit. If any Letter of Credit provides for sight payment, the due date for
reimbursement is no later than the date the Bank pays. If any Letter of Credit calls for acceptance
of a time draft, the due date for reimbursement is no later than the day preceding the date on
which payment of such draft is due.




3. Indemnity. Each Applicant hereby indemnifies the Bank against all costs, expenses,
claims and liabilities (and related costs, including reasonable attorney’s fees, expert witness
fees, court costs, and other formal or informal dispute resolution costs and expenses) that the
Bank may pay or incur arising out of, or in connection with, this Agreement, any Application, any
draft or any Letter of Credit, whether payments are made as the result of informal settlement,
nonjudicial dispute resolution process, or litigation, except to the extent incurred as the result
of the Bank’s gross negligence or willful misconduct as determined in a final non-appealable
judgment issued by a court of competent jurisdiction. This indemnity includes, without limitation,
instances in which (a) a beneficiary seeks to enforce any Letter of Credit or any advice thereof,
sues for wrongful dishonor, seeks a judicial determination, or brings any other action or
proceeding relating thereto; (b) an advising bank, confirming bank, negotiating bank, or other
intermediary seeks to be reimbursed, indemnified, or compensated; (c) the Bank delivers, with or
without endorsement, any instrument, security, or document, as contemplated by this Agreement; (d)
the Bank gives its guaranty, endorsement, or other undertaking to induce delivery, pursuant to
Section 7(h) hereof; (e) a third party seeks to enforce the rights of the



 


 









 






Applicant, any
beneficiary, any negotiating bank or other intermediary, transferee, assignee of proceeds, or
holder of a document, or to question, delay, or prevent the honor of any Letter of Credit; (f)
a government (or other de facto or de jure political body) or government agency seeks to regulate,
investigate, delay, or prevent honor of any Letter of Credit; (g) the Bank undertakes the
preparation, negotiation, amendment, or “workout”/restructuring of this Agreement or any Letter of
Credit; (h) the Bank seeks to determine, protect, or enforce the Bank’s rights and remedies under
any Letter of Credit, this Agreement, or any security agreement, guaranty, credit support, or other
undertaking entered into in connection with this Agreement or any Letter of Credit; (i) the Bank
seeks to respond to any notice of alleged fraud, forgery, or illegality in any presentation,
including active defense by the Bank in any action in which an Applicant may seek an injunction
against presentation, honor, or payment of any Letter of Credit or draft; or (j) the Bank may be
obligated by court order to pay legal fees or court costs paid or incurred by an Applicant, any
beneficiary, or any other party in any dispute involving any Application, any Letter of Credit, any
draft or this Agreement. All amounts indemnified hereunder shall be payable on demand.



4. Fees and Costs; Interest. The Applicants agree to pay the Bank, on demand or as either
provided herein or as mutually agreed in writing between the Bank and the Applicants: (a) issuance
or other processing or administration, maintenance, acceptance, transfer, drawing, amendment, and
recognition of assignment of proceeds fees and any other commissions in the amount shown on any
Application, if any, or as in effect at the Bank from time to time, or as separately agreed between
the Bank and the Applicant in writing, it being understood that the bank will not charge Applicant
any upfront, issuance or facing fees and that the fee for any amendment shall not be in excess of
$150; (b) a letter of credit fee, as charged by the Bank, which, as of the date hereof shall be
[***] basis points per annum, which shall accrue and be due and payable in arrears on the last day
of each fiscal quarter of the Applicants; (c) S.W.I.F.T. charges and other issuance costs; (d) fees
paid by the Bank to advising, confirming, and negotiating banks; (e) actual costs incurred in
determining the authenticity of any purported assignment of proceeds or the identity and capacity
of any purported successor of any beneficiary; (f) increased costs or reduction in yield if, after
the date hereof, any change in any law, rule, or regulation, treaty, or interpretation thereof
(whether or not having the force of law) regarding reserves, special deposits, insurance
assessments, fees, capital adequacy, or similar requirements shall have the effect of increasing
the Bank’s costs or reducing its yield hereunder, such amounts to be payable on the basis of the
Bank’s calculations of these amounts made in good faith, absent manifest error; (g) interest on all
unpaid amounts due with respect to this Agreement, any Application, any draft or any Letter of
Credit at a daily fluctuating rate per annum equal to the sum of [***]% plus [***], and (h) any and
all other costs and expenses (including, without limitation, reasonable attorney’s fees,
disbursements and court costs) incurred by the Bank in connection with any Letter of Credit and any
and all payments or disbursements thereunder.



5. Payments.



(a) The Applicants’ obligations hereunder shall be absolute, unconditional and irrevocable,
and shall be paid and otherwise observed under all circumstances, including, without limitation,
the following: (a) any lack of validity or enforceability of any Letter of Credit or any agreement
referenced herein or any amendment hereto or thereto, or any waiver hereof or thereof or consent to
departure herefrom or therefrom; (b) any claim, set-off, defense, or other rights which an
Applicant may have at any time against any beneficiary or any other person or entity in connection
with the Letters of Credit, any agreement referred to therein, or any unrelated transaction; (c)
any draft or document presented to the Bank under any Letter of Credit or any statement contained
therein (as the case may be) proves to be forged, fraudulent, unauthorized, invalid, insufficient,
untrue, or inaccurate in any respect whatsoever no readily apparent on its face, or does not
strictly comply with the terms of any Letter of Credit.



(b) Payments to the Bank shall be made in U. S. Dollars (unless expressly otherwise agreed or
ordered by a court of competent jurisdiction) without deduction, counterclaim or set-off in
immediately available funds before 2:00 p.m. on the due date at the Bank’s New York office set
forth on page 1 of this Agreement, ABA #[***], Account No. [***], Account Name: [***] or any other
designated account or location specified by the Bank. If the due date is not a “Banking Day”
(defined as a day, other than a Saturday, Sunday, or other day on which banks are required or
permitted to be closed in the City of New York), payment shall be made on the next Banking Day,
subject to accrual of interest and fees for the period of such extension. All payments of fees
(including any letter of credit fee) and interest hereunder shall be made on the basis of a 360 day
year for the actual number of days elapsed, from and including the day the payment obligation
arises to but excluding the date of payment (provided payment is made on such date in accordance
with this Section 5(b)).



 


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(c) If, pursuant to agreement or order of a court of competent jurisdiction, a payment is made
by an Applicant in a currency other than U.S. Dollars, it shall be computed at the Bank’s spot
selling rate for cable
transfers (or, at the Bank’s option, the rate of exchange then current in New York City) to
the place of payment in the currency in which such draft is drawn.



(d) To effect payment, the Bank may, and is hereby authorized, with or without notice, to
debit any account that the Applicants may have at the Bank.



(e) If any payment made by the Applicants to the Bank shall be rescinded or recovered, or if
the Bank for any reason is compelled to surrender, or voluntarily surrenders such payment to any
person or entity (i) because such payment is or may be avoided, invalidated, declared fraudulent,
declared void or voidable as a preference, fraudulent conveyance, impermissible setoff or diversion
of trust funds, or (ii) for any other reason, including a judgment, decree, or order of any court
or administrative body, or settlement or compromise of the same, then the obligation intended to be
satisfied shall be reinstated as though no payment had been made.



(f) Each payment by the Applicants under this Agreement shall be made without withholding for
or on account of any present or future taxes, excluding, in the case of the Bank, taxes imposed
upon its income, and taxes imposed upon it by the jurisdiction (or any political subdivision
thereof) in which the Bank is organized (all such nonexcluded taxes to be known as “Taxes”),
provided, however, that if such Taxes are required by law to be withheld from any such payment, the
Applicant shall make such withholding for the account of the Bank, make timely payment thereof to
the appropriate governmental authority, and shall pay to the Bank such additional amounts as are
necessary (including deductions applicable with respect to the additional amounts payable under
this Subsection (f)) to enable the Bank to receive an amount equal to the amount the Bank would
have received had no such deduction been made. All such Taxes shall be paid by the Applicants prior
to the date on which penalties attach or interest accrues thereon, provided, however, that if any
such penalties or interest become due, the Applicant shall make prompt payment thereof to the
applicable governmental authority. The Applicants will indemnify the Bank for the full amount of
any Taxes (including Taxes on amounts payable under this Subsection (f)) paid by the Bank and any
liability (including penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes were correctly or legally asserted. All amounts indemnified hereunder
shall be payable on demand.



6. Division of Responsibilities; External Events. The Bank, its correspondents and any
other banks involved shall have no liability for, and the Bank’s rights and remedies against the
Applicants shall not be impaired by: (a) honor of any presentation that substantially complies with
any Letter of Credit, even if that Letter of Credit requires strict compliance by the beneficiary
with respect thereto, or in accordance with the Applicants’ waiver of discrepancies and
authorization to pay; (b) electronic presentation, if authorized by any Letter of Credit; (c) the
existence, nature, amount, condition, or delivery of any property purported to be represented by
any document or any variance from any description contained therein; (d) the use which may be made
of any Letter of Credit or for any actions or omissions of the users of any Letter of Credit; (e)
the existence or non-existence of a default under any instrument secured or supported by any Letter
of Credit or any other event which gives rise to a right to call upon any Letter of Credit; (f) the
nature, form, sufficiency, accuracy, validity, genuineness, legal effect, or collectability of any
instrument, document, or policy of insurance, or any endorsement thereon (even if such instrument,
document, policy of insurance or endorsement should in fact prove to be in any or all respects
invalid, fraudulent or forged), or the relationship of any issuer thereof to the property; (g) the
solvency or responsibility of any party issuing any document; (h) any irregularity in connection
with shipment, including any default, oversight or fraud by the shipper and/or others in connection
with the property, documents, or shipment, partial or incomplete shipment or non-shipment or
transmittal thereof, or delay in arrival, failure to arrive, or failure to give notice of shipment
or arrival thereof; (i) honor of a certificate or documents signed or presented by or on behalf
of, or requesting payment to a person or entity that is the purported successor to any beneficiary,
or payment of proceeds to a purported assignee of proceeds; (j) failure of any advising bank
accurately to advise the terms of any Letter of Credit; (k) failure of any draft or document to
bear reference or adequate reference to any Letter of Credit, failure of any document to accompany
any draft or to contain instructions to notify the Applicants, failure of any person to note the
amount of any draft on the reverse of any Letter of Credit, or to surrender or take up any Letter
of Credit, or to send or forward documents separately from drafts, each of which provisions, if
contained in any Letter of Credit, may be waived by the Bank; (l) honor of a presentation on the
basis of a forged certificate, document or signature, or a certificate presented or other
presentation made in bad faith or as the result of illegal conduct by any beneficiary or a third
person or entity; (m) errors, omissions, interruptions or delays in transmission or delivery of any
messages by mail, cable, telegraph, wireless or otherwise, (n) honor of a presentation up to the
amount outstanding on any Letter of Credit, even though the draft claims an amount in excess
thereof; (o) honor of any Letter of Credit beyond the time period prescribed by the law or rules to
which it is subject;



 


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(p) reimbursement of a bank claiming the status of
negotiating bank that has not given value or that has misrepresented the basis on which it claims
reimbursement; (q) reimbursement of a bank making advances to any beneficiary before receiving
documents (“clean” or “red clause” advances) (r) dishonor of any presentation that does not
strictly comply; (s) retention of proceeds based on a blocking regulation, or assertion of the
rights of a purported governmental entity or a third party to the proceeds; or (t) consequences
arising from Act of God, weather condition, riot, civil commotion, insurrection, war, political
disturbance, strike, lockout, computer hardware or software failure or error in or inaccessibility
of data, interruption in electric or telephone service, or other causes beyond its control, delay
or loss in transit of any letter or document, or loss, delay, or error in the transmission of any
electronic message, irrespective of the cause of such event. Neither the Bank nor any of its
Affiliates (defined as a person or entity controlling, controlled by or under common control) shall
be responsible for any act, error, neglect or default, omissions, insolvency or failure in the
business of any of the Bank’s correspondents to pay or honor drafts drawn under any Letter of
Credit because of any applicable law, decree or edict, legal or illegal, of any governmental agency
now or hereafter enforced or for any matter beyond the control of the Bank and its Affiliates; and
the Applicant hereby indemnifies and holds the Bank harmless from any claim, loss, liability or
expense arising by reason thereof. The Bank is expressly authorized to rely upon and take, and
shall have no liability for relying upon and taking, any action required or permitted under (i) any
interbank payment system or clearing house rules, (ii) the International Standby Practices
published by the Institute of International Banking Law and Practice, Inc., (iii) the UCP 600 (as
defined below), (iv) the standard practice of banks that regularly issue letters of credit, or (v)
opinions, memoranda, or advice received from counsel or other professional advisors.



7. Bank Discretion in Certain Cases. Unless otherwise agreed in writing, the Bank: (a)
may issue or send any Letter of Credit by an appropriate S.W.I.F.T. message type and bind the
Applicants directly and as indemnitor to the rules applicable to S.W.I.F.T messages; (b) may select
any branch or Affiliate of the Bank or any other bank to act as an advising, confirming, and/or
negotiating bank under the law and practice of the place where it is located; (c) may assume,
unless honor of a presentation is enjoined by a court of competent jurisdiction, that such
presentation or other demand or request is nonfraudulent, and disregard any notice to the contrary;
(d) need not ascertain the authenticity or authority of any purported beneficiary signature, even
if it has previously requested a signature guaranty or if in other transactions such beneficiary is
a customer or its signature or the authority of any signatory is otherwise known or should be known
to the Bank; (e) may, but need not, notify the Applicants of the Bank’s receipt of a request for an
amendment or assignment of proceeds, receipt of a presentation, detection of a discrepancy,
notification of actions taken to cure, dishonor, or other action, inaction, or communication with
or with respect to any beneficiary (other than the Bank’s decision to honor the presentation); (f)
need not consent to any proposed amendment of any Letter of Credit; (g) may assert or waive
application of the UCP 600; (h) if any property receivable under any Letter of Credit arrives
before the Bank receives the relevant presentation under any Letter of Credit, may, in its sole
discretion, issue for the Applicants’ account a separate guaranty, indemnity, or other undertaking
to the carrier to induce delivery of the property, and shall by such action preclude the Applicant
from raising any defense or claim with respect to the Bank’s subsequent honor of the related
documents; and (i) may take such time as may be permitted under the UCP 600 to examine any
presentation. The Bank’s action or inaction in one or more instances shall not waive its right,
without notice to the Applicants, to use its discretion differently in other instances.



8. Applicants’ Responsibility for Letter of Credit Text. Notwithstanding suggestions or
recommendations made by Bank personnel, the Applicants are solely responsible for the content of
each Letter of Credit, and assume all risks that: (a) reference to nondocumentary requirements will
be ignored when presentment is made, or may cause any Letter of Credit to be interpreted by a court
as a guarantee; (b) ambiguous or inconsistent requirements may be interpreted in a manner not
intended by the Applicants; (c) permitted payment at a foreign location may invoke the application
of laws or rules of practice unfamiliar to the Applicants; (d) any Letter of Credit is not
consistent with or does not satisfy the underlying obligation or any other aspect of the
transaction between the Applicants and any beneficiary; and (e) any other risks that may be imposed
on the Applicants under the rules and laws to which any Letter of Credit is subject.


 


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9. Duty of Examination and Prompt Response. The Applicants agree (a) to promptly examine
(i) the copy of each Letter of Credit (and any amendment thereto) sent to each Applicant by the
Bank and (ii) all documents delivered to the Applicants from time to time (the Bank being under no
obligation to send or deliver the same) and (b) to promptly notify the Bank in writing within a
reasonable time (but in no event later than five Banking Days after receipt of such Letter of
Credit, or amendment, or documents, as applicable) of any claim of nonconformity of such Letter of
Credit (or amendment) or documents, as applicable, noncompliance with instructions, or other
irregularities. Each Applicant is conclusively deemed to have waived any such claim against the
Bank, its correspondents and any other banks involved unless such notice is given as aforesaid. Any
waiver of noncompliance of the documents with any Letter of Credit which is authorized by the
Applicants shall apply not only to the specific documents in question but, at the Bank’s
discretion, to any subsequent documents of the same nature or containing the same discrepancy. If
partial shipments are permitted, the Bank is authorized, without notice to the Applicants, to honor
such drafts notwithstanding any apparent disproportion between the quantity shipped and the amount
of the draft.



10. Conditions to Effectiveness. Without limiting or otherwise impairing the
discretionary nature of this Agreement and the Bank’s decision whether or not to issue the Letter
of Credit, this Agreement shall become effective upon satisfaction of the following conditions
precedent:




(a) The Bank shall have received duly executed originals of this Agreement.



(b) The Bank shall have received copies, certified by the Secretary or Assistant Secretary of
each Applicant (as defined below) of such party’s certificate of incorporation, bylaws and
resolutions or actions of such party’s Board of Directors and any other body, if necessary,
authorizing the execution of this Agreement, each Application and each Letter of Credit to which
such Applicant is party.



(c) The Bank shall have received an incumbency certificate, executed by the Secretary or
Assistant Secretary of each Applicant, which shall identify by name and title and bear the
signatures of all authorized officers of such party authorized to sign this Agreement, each
Application and each Letter of Credit to which such Applicant is party, upon which certificates the
Bank shall be entitled to rely.



(d) Arkansas Best Corporation (“ABC”) shall execute and deliver to the Bank an Account Control
Agreement among ABC, the Bank and Union Bank, N.A., dated as of even date herewith (the “Account
Control Agreement”), granting to the Bank a first priority lien and security interest in certain
“Collateral” (as defined in the Account Control Agreement), which Collateral shall be in an amount
of not less than $the amount of letters of credit outstanding. The Collateral under the Account
Control Agreement shall be held by the Bank as support for the Applicants’ obligations under this
Agreement, and shall be in form and substance satisfactory to the Bank. Notwithstanding anything
to the contrary herein contained, the parties agree that ABC shall be entitled to withdraw from the
account any funds in excess of the amount of the letters of credit outstanding from time to time.



11. Representations and Warranties. Each Applicant represents and warrants to the Bank
(which representations and warranties shall survive the issuance of each Letter of Credit) as
follows:



(a) The Applicant is a corporation or limited liability company duly organized, validly
existing and in good standing under the laws of the jurisdiction of its organization. The
Applicant has all requisite authority to execute and deliver this Agreement and to perform the
obligations herein.



(b) The execution, delivery and performance by the Applicant of this Agreement have been duly
authorized by proper proceedings and this Agreement constitutes the valid and binding obligation of
the Applicant; and neither the execution and delivery by the Applicant of this Agreement, the
consummation of the transactions herein contemplated nor compliance with the provisions will
contravene the Applicant’s organizational or charter documents, result in a breach of or constitute
a default under any material agreement, indenture, instrument or undertaking by which the Applicant
is or may be bound, or violate any law, rule, regulation, order, or governmental consent
requirement, including, without limitation, any that regulate exports, imports, or the shipping of
goods, the transfer of technology, infringement, foreign assets, foreign exchange, foreign nation
sanctions, money laundering laws, investments, margin stock, investment companies, securities
offerings, infringement, and boycotts.



(c) No authorization, approval, or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required for the due execution, delivery and
performance by the Applicant of this Agreement or the completion of any Application.



(d) The Agreement is a legal, valid and binding agreement of the Applicant, enforceable
against it in accordance with its terms.



(e) There is no pending or threatened action against the Applicant before any court,
governmental agency, or arbitrator that may materially and adversely affect the financial condition
or operations of the Applicant.


 


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(f) No documents, financial statements, reports, notices, schedules, certificates, statements,
or other writings or information furnished to the Bank by the Applicant in connection with this
Agreement or any Application are materially false or misleading.



(g) There are no Events of Default (as defined in Section 15 hereof) or any event that would
constitute an Event of Default with the passage of time, the giving of notice, or both (a
“Default”).



(h) The person (or persons) identified in this Agreement as the Applicant(s) warrants that it
is (or they are) the only real party (or parties) in interest with respect to any Letter of Credit
issued hereunder.



12. Certain Agreements. So long as this Agreement is in effect and the Applicants’
obligations hereunder have not been repaid in full, each Applicant agrees that:



(a) Each Application shall constitute a reaffirmation, as of the date of such Application, of
the representations and warranties made herein.



(b) There will not be, on the date that any Letter of Credit is issued, nor will issuance of
any Letter of Credit create, any Event of Default or Default. The Applicant will deliver a
certificate to that effect from time to time if requested by the Bank. The Applicant shall
promptly give notice in writing to the Bank of the occurrence of any Event of Default or Default.



(c) ABC will furnish to the Bank (i) as soon as available, and in any event within 120 days
after the end of each fiscal year of ABC, a copy of the annual report for such year of the ABC and
its subsidiaries, containing financial statements for such year certified in a manner acceptable to
the Bank; (ii) such other information respecting the condition or operation, financial or
otherwise, of ABC or its subsidiaries as the Bank may from time to time request; and (iii) such
other documents, including but not limited to by-laws, resolutions, certificates of incumbency, and
the like, that the Bank may from time to time request.



(d) The Applicant will (i) comply with all laws, regulations, orders, or governmental
requirements, including, without limitation, any that regulate exports, imports, or the shipping of
goods, the transfer of technology, infringement, foreign assets, foreign exchange, foreign nation
sanctions, money laundering laws, investments, margin stock, investment companies, securities
offerings, infringement, and boycotts; and (ii) furnish the Bank with such documentation and
certificates evidencing compliance with governmental requirements as the Bank may request.



13. Security Interest.




(a) To secure the payment and performance of the Applicants’ obligations hereunder, whether
present or future, absolute or contingent, due or to become due, matured or unmatured, each
Applicant hereby grants to the Bank a first priority lien and security interest in (i) certain
“Collateral” as defined in and set forth in the Account Control Agreement; (ii) deposits, cash
balances, credit balances, other funds of or owed to the Applicant and all claims against the Bank
or any Affiliate; (iv) additional property in which an Applicant grants a security interest to the
Bank or any Affiliate to secure such obligations; and (v) all substitutions therefor and cash and
noncash proceeds of the foregoing. This grant is in addition to any other grant of a security
interest or mortgage now or hereafter made by the Applicants to the Bank or any Affiliate, and to
the Bank’s right to a set off or banker’s lien, whether arising by contract or established by law.
All property described in this Section 12(a) shall be known as “Collateral.”



(b) Any delivery of Collateral to the Applicants shall be without waiver of the Bank’s rights
therein, and any rights of the Bank provided in the Bank’s standard form of receipt therefor are in
addition to and not in substitution of the rights provided herein. The Bank disclaims all
engagements, representations, and warranties upon such delivery, including those implied in law,
whether or not it has endorsed an instrument, security, or document.


 


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(c) The Applicants agree that upon and during the continuance of any Event of Default, as
defined in Section 15 below, or the initiation of any action for injunction, wrongful honor,
wrongful dishonor, or the judicial or
nonjudicial determination of the rights and remedies of a party to or affected by any Letter
of Credit, or any other event that threatens, as determined by the Bank, to extend or increase the
Bank’s contingent liability beyond the amount or time specified in any Letter of Credit, the
Applicants will deliver to the Bank additional Collateral to the Bank’s satisfaction, which
Collateral shall be held subject to this Agreement for as long as any obligations of the Applicant
remain outstanding as security for the repayment of such obligations.



14. Further Assurances; Appointment of Bank as Attorney-in-Fact. Each Applicant agrees to
do such other acts, execute and deliver such other agreements, instruments, statements, and
documents, and take such steps as may be appropriate or as the Bank may request in order to
establish, perfect, maintain, and realize upon the security interest granted herein, to satisfy any
obligation of the Applicants hereunder or as the Bank may otherwise reasonably request, and,
following the unreimbursed honor of any Letter of Credit, to recover as an assignee or subrogee of
the rights and remedies of the Applicants against any beneficiary and of any beneficiary against
the Applicants in each Letter of Credit and the related underlying obligation. Without limiting the
generality of the foregoing, the Applicant agrees, when requested by the Bank, at Applicants’
expense: (a) to procure and deliver lien search reports; (b) to prepare and/or file financing
statements; (c) to transfer or register any of the Collateral into the name of the Bank, or any
Affiliate or nominee thereof; (d) to assign or mark insurance policies and documents to reflect the
Bank’s interest; (e) to send priority notices to secured parties of record; (f) to execute the
Bank’s standard form of receipt in effect from time to time for documents delivered to the
Applicants; and (g) to procure any necessary government consents and licenses. The Bank, acting
through its officers, employees, consultants, representatives and authorized agents, is hereby
irrevocably appointed as the attorney-in-fact of the Applicants, to take all actions contemplated
by this Agreement, at the Applicants’ expense, which are not taken by the Applicants after timely
notice given by the Bank.



15. Events of Default. Each of the following (each herein called an “Event of Default”)
shall entitle the Bank to exercise the remedies specified in this Agreement:




(a) any Applicant fails to pay when due any amount required by this Agreement;



(b) breach of any representation, or warranty, or failure to perform or observe any agreement
herein;



(c) repudiation or invalidity of this Agreement or any term or provision hereof; or
repudiation or invalidity of, or an event of default under, or breach by any obligor under, any
separate security agreement, guaranty, letter of credit, comfort letter, or other agreement,
instrument, or undertaking relating to this Agreement, including, but not limited to, the Account
Control Agreement;



(d) an event of default or the demand for payment under any other undertaking of an Applicant
or any Affiliate thereof to the Bank or any Affiliate thereof (whether as primary or secondary
obligor), including, but not limited to, an event of default under that certain $325,000,000 Second
Amended and Restated Credit Agreement dated May 4, 2007;



(e) an event of default or demand for payment under any undertaking of an Applicant or any
Affiliate thereof to any other person (whether as primary or secondary obligor) which causes or
permits any acceleration of such Applicant’s or any Affiliate’s obligations thereunder;



(f) an Applicant or any Affiliate thereof admits in writing its inability to pay its debts as
they become due, or makes a general assignment for the benefit of creditors, or an Applicant or any
Affiliate is dissolved, liquidated or wound up or ceases its corporate existence, or any proceeding
is instituted by or against it seeking to adjudicate it bankrupt or insolvent under any bankruptcy,
reorganization, arrangement of debt, insolvency, receivership, dissolution law or statute, or the
Bank shall deem itself insecure;



(g) any judgment, writ, warrant of attachment, or similar process in excess of $10,000,000 is
levied against an Applicant and is not released, vacated, stayed, fully bonded, or paid within 30
days of its issue or levy;



(h) the occurrence of any of the above events with respect to any person or entity which has
guaranteed or provided any other credit support for any obligation of the Applicants to the Bank
under this Agreement or otherwise; or



(i) Applicants’ failure at any time to keep with the Bank Collateral subject to the Account
Control Agreement equal to he amount of the outstanding Letters of Credit.


 


7









 





16. Remedies. Upon the occurrence of an Event of Default:



(a) The Bank may (i) declare all of the Applicants’ outstanding obligations to the Bank
hereunder (including those which are contingent and unmatured), immediately due and payable,
without notice, demand, or opportunity to cure; or (ii) require the Applicants to deposit with the
Bank in immediately available funds in a cash collateral account maintained with the Bank or its
affiliates the amount of all of the Letters of Credit outstanding and such other obligations, which
shall be held by the Bank as collateral security for the reimbursement obligations of the
Applicants hereunder, provided that, (xi) if the Event of Default arises under Section 15(d) or (e)
and the applicable agreement provides for a notice or cure period, the Bank will observe these
requirements unless the Bank reasonably determines that observance of these requirements will
impair, reduce, or prejudice its rights; (y) in the event of a breach of Section 15(b) hereof the
Bank in its discretion may (but need not) give notice, as provided in Section 18 hereof, and give
the Applicants twenty Banking Days to effect a cure; and (z) if the Event of Default arises under
Section 15(f) or 15(h) hereof, all of the Applicants’ outstanding obligations to the Bank hereunder
(including those which are contingent and unmatured) shall become immediately due and payable,
without notice, demand, or opportunity to cure.



(b) The Bank may pursue any remedy available at law or equity to secure, collect, enforce or
secure the obligations of the Applicants hereunder, or against any person or entity primarily or
secondarily liable hereunder, or under any separate security agreement, guaranty, letter of credit,
comfort letter, or other agreement, instrument or undertaking supporting this Agreement, and may
pursue its remedies separately, successively, or concurrently.



(c) To the extent permitted by law, after honor of the presentation the Bank shall be
subrogated to the rights of (i) each beneficiary to the same extent as if the Bank were a secondary
obligor of the underlying obligation owed to such beneficiary and (ii) the Applicants to the same
extent as if the Bank were the secondary obligor of the underlying obligation owed to the
Applicants, provided, however, that for purposes of this Section 16(c) only, the Bank shall be
deemed to have honored a presentation once it has either paid or accepted a draft.



(d) If any Collateral consists of accounts, Applicants shall, at the Bank’s request, notify
the account debtors and any guarantors that payments are to be made directly to the Bank. Should
the Applicants fail to do so, the Bank shall have the right, as attorney-in-fact of the Applicant,
to make such notification. From and after such notification, Applicants (i) shall hold all amounts
recovered from an account debtor or other obligor in trust for the Bank, and shall promptly remit
the same; and (ii) shall not settle, compromise, or adjust any disputed amount, or allow any
credit, rebate, or discount, without the Bank’s prior written approval.



(e) To the extent that Collateral is not in the possession of the Bank, the Applicants shall
assemble the same and make it available to the Bank at a reasonably convenient time and place
designated by the Bank, and unless the Collateral is perishable or threatens to decline speedily in
value or is of a type customarily sold on a recognized market, the Bank will give the Applicants
notice of the time and place of any public sale or of the time after which a private sale or other
disposition is to be made by sending notice, as provided in Section 18 herein, at least five days
prior to the date of the sale or disposition, which notice the Applicants agree is reasonable.



(f) The Bank may but shall have no obligation to take any action to complete the manufacture
of any inventory, to place Collateral in a condition for sale, to register unregistered securities,
to retain any investment property, real property, or other Collateral in the expectation that a
better price may be secured at a later date, or to preserve any rights in the Collateral against
prior parties.



(g) After such sale, after deducting all costs and expenses of every kind for care,
safekeeping, preparation for sale, advertisement, sale, or delivery, the Bank may apply any
proceeds to the payment or reduction of the obligations due hereunder or under any other obligation
of the Applicants or their Affiliates to the Bank and its Affiliates, whether or not then due, in
any order of priority it may elect.



(h) Upon the occurrence and during the continuance of any Event of Default, the Bank is hereby
authorized to set-off and apply any and all deposits of any kind at any time held, and other
indebtedness at any time owing by the Bank, to or for the credit or the account of the Applicant
against any and all obligations of the Applicants,
irrespective of whether any demand is made. The Applicants will continue to be liable for any
deficiency. For purposes of this Section 16(h), “Bank” shall include the Bank and its Affiliates.
The Bank agrees promptly to notify the Applicants after any such set-off and application, provided
that the failure to give notice shall not affect the validity of such set-off and application. The
Bank’s rights under this Section 15(h) are in addition to other rights and remedies which the Bank
may have, including, without limitation, other rights of set-off.


 


8









 





17. Certain Limitations on Bank Liability. (a) The Bank shall not be liable to the
Applicants in contract, tort, or otherwise, for any special, indirect, consequential, punitive, or
exemplary damages, however arising, whether for wrongful honor, wrongful dishonor, or any other
action taken or omitted with respect to any Letter of Credit or this Agreement. (b) The Applicants’
damages are indirect to the extent that they arise from fraud or forgery on the part of any
beneficiary, successor, or transferee. (c) The Applicants must take all reasonable and appropriate
action to reduce the amount of damages to be claimed against the Bank. (d) If the Bank honors a
presentation or makes a payment for which the Applicants claim they are not required to reimburse
the Bank, the Applicants shall nevertheless on demand reimburse the Bank for the amount the Bank
paid, without prejudice to the Applicants’ right to make claim against the Bank for the amount of
its payment and for any direct damages incurred that the Applicants are unable to avoid or reduce.
(e) The Applicants’ aggregate remedies against the Bank for wrongfully honoring a presentation are
limited to the amount paid or required to be paid by the Applicants with respect to that
presentation, and the Applicants hereby agree that such amount will either be reasonable in light
of the harm anticipated in such event or, if it is not, that the Applicants will not request the
Bank to issue a Letter of Credit. (f) The Applicants hereby waive the right to obtain an injunction
against honor of any Letter of Credit or any draft drawn thereunder (or any form of legal relief
whose purpose is to prevent payment to any beneficiary) once the Bank or any bank has accepted or
negotiated a draft drawn thereunder.



18. Notices.



(a) All notices shall be directed to the Bank at the address shown on the first page of this
Agreement, to the Applicant at the address shown on the last page of this Agreement, and to both
parties at the fax and S.W.I.F.T. numbers shown on the last page of this Agreement, or at such
addresses and numbers as each party may from time to time provide to the other. Notices may not be
given by telephone conversations or by “e-mail”. All notices to the Bank are effective when
received.



(b) Until it receives a notice to the contrary, the Bank may treat each person who signs this
Agreement as entitled to act on behalf of the Applicants with respect to any Letter of Credit
issued under this Agreement.



(c) For purposes of notices required to be given under this Agreement, the Bank may rely upon
a writing apparently sent by the Applicants and a fax apparently transmitted by the Applicants. For
purposes of other communications, the Bank may rely on a telephone communication apparently that of
the Applicants. The Bank is not obligated to recognize the authenticity of any request to issue,
amend, honor, or otherwise act on or with respect to any Letter of Credit unless the Bank has
received a writing signed by the Applicants or a fax authenticated to the Bank’s satisfaction.



19. Change in Laws. If the Bank determines that any change in any law, regulation,
guideline or order or in the interpretation thereof by any court or administrative or governmental
authority charged with the administration thereof shall either (i) impose, modify or deem
applicable any reserve, special deposit or similar requirement against letters of credit issued by
the Bank or against any other extension of credit, or other assets of, or any deposits or other
liabilities of the Bank or require the inclusion of any Letter of Credit in calculations related to
the Bank’s capitalization, or (ii) impose any other condition regarding this Agreement or the
Letters of Credit, including without limitation, any requirement that the Bank pay assessments for
deposit insurance with respect to the Letters of Credit, and the result of any event referred to in
clause (i) or (ii) above shall be to increase the cost to the Bank of issuing or maintaining the
Letters of Credit or the reimbursement obligations of the Applicants or to reduce the amounts
receivable to the Bank, then upon demand by the Bank, the Applicants shall immediately pay to the
Bank from time to time, as specified by the Bank (which shall be conclusive absent manifest error
as to the amount thereof), additional amounts which shall be sufficient to compensate the Bank for
such increased cost or reduce receivables from the date demanded until payment in full. If payment
is not made on the date demanded, interest will be charged based on the calculation in Section 4(f)
hereof.


 


9









 





20. Successors and Assigns; No Third Party Benefit; Counterparts. This Agreement shall be
binding upon each Applicant, its successors and assigns, and shall inure to the benefit of, the
Bank and its successors and assigns. The Applicants may not assign their rights or obligations
hereunder except with the Bank’s prior written authorization. This Agreement confers no right or
benefit upon any person or entity other than parties to this Agreement and their respective
permitted successors and assigns. This Agreement may be executed in any number of counterparts,
all of which, when taken together, shall be deemed to constitute one and the same instrument.



21. Amendment; Course of Dealing; Waiver. No amendment of any provision of this Agreement,
no course of dealing or waiver of any right or remedy of the Bank arising under this Agreement, and
no inconsistent course of dealing or performance between the Bank and the Applicants shall be
enforceable against the Bank unless the Bank expressly agrees in a signed writing, and then only in
the specific instance and for the specific purpose for which given. No failure of the Bank’s part
to exercise, and no delay on the Bank’s part in exercising, any rights, power or remedies hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of any such rights,
powers or remedies by the Bank preclude any other or further exercising thereof or the exercise of
any other right, power or remedy. The remedies provided herein are cumulative and not exclusive of
any remedies provided at law or in equity.



22. Complete Agreement; Severability; Survival. This Agreement is the full and complete
expression of the parties’ agreement as to the subject matter hereof. If any provision or clause
hereof shall be held to be invalid, illegal, or unenforceable in any respect, this Agreement shall
be construed as if such provision or clause did not exist. This Agreement shall survive the
Applicant’s repayment and performance of all of its obligations hereunder, the termination or
expiration of all Letters of Credit issued hereunder, and the expiration of any statute of
limitations applicable to any Letter of Credit. In the event of any extension of the maturity or
time for presentation of drafts, or documents, any increase in the amount of any Letter of Credit
or any other modification of the terms of any Letter of Credit, this Agreement shall continue to be
binding upon the Applicant with regard to each Letter of Credit so extended, increased or otherwise
modified, to drafts, and to any action or inaction taken by the Bank or any of the Bank’s
correspondents in accordance with such extension, increase or other modification.



23. Currency Conversion. In the event that payment under any Letter of Credit is drawn or
purported to be drawn in a currency other than United States Dollars, the amount of reimbursement
to the Bank therefore shall be calculated on the basis of the Bank’s selling rate of exchange in
effect (for the date on which the Bank pays such draft or reimburses any of its correspondents
which paid such draft) for cable transfers to the place where and in the currency in which such
draft is payable. The Applicants shall comply with any and all governmental exchange regulations
now or hereafter applicable to any foreign exchange provided the Bank pursuant to this Section, and
shall indemnify and hold the Bank harmless from any failure to so comply. If for any cause
whatsoever, there exists at the time in question no rate of exchange generally current at the Bank
for effective cable transfer of the sort above provided for, the Applicants agree to pay the Bank
on demand an amount in United States dollars equivalent to the actual cost of settlement of the
Bank’s obligations to the payor of the draft or acceptance or any holder thereof, as the case may
be, and however and whenever such settlement may be made by the Bank, including interest of the
amount of dollars payable by the Applicant from the date of payment of such draft or acceptance to
the date of the Applicant’s payment to the Bank at the rate customarily charged to the Bank in like
circumstances.



24. Patriot Act. The Bank hereby notifies the Applicant that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies the
Applicant, which information includes the name and address of the Applicant and other information
that will allow the Bank to identify the Applicant in accordance with the Act.



25. Governing Law. This Agreement, each Application and each Letter of Credit and any
course of conduct, statements, or actions of either party relating thereto shall be subject to one
of the following (as may be stated on the face of the Letter of Credit): (i) the International
Standby Practices 1998, International Chamber of Commerce Publication No. 590 (as amended, the
“ISP”), (ii) the Uniform Customs and Practices for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500 (as from time to time amended, modified or
replaced, the “UCP 500”), or (iii) the Uniform Customs and Practices for Documentary Credits (2007
Revision), International Chamber of Commerce Publication No. 600 (as from time to time amended,
modified or replaced, the “UCP 600”), except that the term “document” shall not include a draft or
a certificate or policy of insurance, and to the extent not inconsistent with the ISP, UCP 500 or
UCP 600, as applicable, governed by the laws of the State of New York without reference to
conflicts of laws principles.


 


10









 





26. Jurisdiction. Any action or proceeding against an Applicant relating in any way to
this Agreement or any Letter of Credit may be brought and enforced in the courts of the State of
New York located in New York County or of the United States for the Southern District of New York,
and each Applicant irrevocably consents to the jurisdiction of each such court. Each Applicant
further irrevocably consents to the service of process in any such action or proceeding within or
outside such court’s territorial jurisdiction by registered or certified mail to such Applicant at
its address as shown on the last page of this Agreement. The foregoing shall not limit the Bank’s
right to serve process in any other manner permitted by law or to bring an action in any other
jurisdiction. Each Applicant hereby further waives any objection to the venue and convenience of
the forum with respect to any action which is brought before a court sitting in New York.



27. WAIVER OF JURY TRIAL. EACH APPLICANT AND THE BANK HEREBY IRREVOCABLY WAIVES ANY RIGHT
IT MAY HAVE TO TRIAL BY JURY IN ANY LITIGATION OR OTHER PROCEEDING BASED UPON OR ARISING OUT OF
THIS AGREEMENT, ANY APPLICATION, OR ANY LETTER OF CREDIT.



28. MULTIPLE APPLICANTS. If two or more parties sign this Agreement as Applicants (i) it
shall be the joint and several agreement of all such signers and binding upon their respective
successors and assigns; and (ii) the term “Applicant” shall mean all of such signers or any one or
more of them, whether or not all or any of them are referred to in any Letter of Credit.



IN WITNESS WHEREOF, the Bank and the Applicants, acting through their duly authorized
representatives, have caused this Agreement to be duly executed and signed in their respective
names the day and year first above written.



THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.




	 	 	 	 	 
	By

	 	/s/ D. Barnell
 

Name: D. Barnell
	 	 
	 

	 	Title: Authorized Signatory	 	 






Fax number: 201-521-2337

S.W.I.F.T. number: BOTK US 33




ARKANSAS BEST CORPORATION




	 	 	 	 	 
	By

	 	/s/ Judy R. McReynolds
 

Name: Judy R. McReynolds
	 	 
	 

	 	Title:   SVP, CFO and Treasurer	 	 






Address of Applicant:

Attn: Cash Management Dept.

3801 Old Greenwood Road

Fort Smith, AR 72903





Fax number: (479) 785-8650

S.W.I.F.T. number:                                        


 


11









 





ABF FREIGHT SYSTEM, INC.




	 	 	 	 	 
	By

	 	/s/ Judy R. McReynolds
 

Name: Judy R. McReynolds
	 	 
	 

	 	Title:   SVP, CFO and Treasurer	 	 






Address of Applicant:

Attn: Cash Management Dept.

3801 Old Greenwood Road

Fort Smith, AR 72903





Fax number: (479) 785-8650

S.W.I.F.T. number:                                        



ABF CARTAGE, INC.




	 	 	 	 	 
	By

	 	/s/ Judy R. McReynolds
 

Name: Judy R. McReynolds
	 	 
	 

	 	Title:   SVP, CFO and Treasurer	 	 






Address of Applicant:

Attn: Cash Management Dept.

3801 Old Greenwood Road

Fort Smith, AR 72903





Fax number: (479) 785-8650

S.W.I.F.T. number:                                        



FLEETNET AMERICA, INC.




	 	 	 	 	 
	By

	 	/s/ Judy R. McReynolds
 

Name: Judy R. McReynolds
	 	 
	 

	 	Title:   SVP, CFO and Treasurer	 	 






Address of Applicant:

Attn: Cash Management Dept.

3801 Old Greenwood Road

Fort Smith, AR 72903





Fax number: (479) 785-8650

S.W.I.F.T. number:                                        



DATA-TRONICS CORP.




	 	 	 	 	 
	By

	 	/s/ Judy R. McReynolds
 

Name: Judy R. McReynolds
	 	 
	 

	 	Title:   SVP, CFO and Treasurer	 	 






Address of Applicant:

Attn: Cash Management Dept.

3801 Old Greenwood Road

Fort Smith, AR 72903





Fax number: (479) 785-8650

S.W.I.F.T. number:                                        


 


12









 





ABF FARMS, INC.




	 	 	 	 	 
	By

	 	/s/ Judy R. McReynolds
 

Name: Judy R. McReynolds
	 	 
	 

	 	Title:   SVP, CFO and Treasurer	 	 






Address of Applicant:

Attn: Cash Management Dept.

3801 Old Greenwood Road

Fort Smith, AR 72903





Fax number: (479) 785-8650

S.W.I.F.T. number:                                        



TRANSPORT REALTY, INC.




	 	 	 	 	 
	By

	 	/s/ Judy R. McReynolds
 

Name: Judy R. McReynolds
	 	 
	 

	 	Title:   SVP, CFO and Treasurer	 	 






Address of Applicant:

Attn: Cash Management Dept.

3801 Old Greenwood Road

Fort Smith, AR 72903





Fax number: (479) 785-8650

S.W.I.F.T. number:                                        



TREAD-ARK CORPORATION




	 	 	 	 	 
	By

	 	/s/ Judy R. McReynolds
 

Name: Judy R. McReynolds
	 	 
	 

	 	Title:   SVP, CFO and Treasurer	 	 






Address of Applicant:

Attn: Cash Management Dept.

3801 Old Greenwood Road

Fort Smith, AR 72903





Fax number: (479) 785-8650

S.W.I.F.T. number:                                        



ABF AVIATION LLC




	 	 	 	 	 
	By

	 	/s/ Judy R. McReynolds
 

Name: Judy R. McReynolds
	 	 
	 

	 	Title:   SVP, CFO and Treasurer	 	 






Address of Applicant:

Attn: Cash Management Dept.

3801 Old Greenwood Road

Fort Smith, AR 72903





Fax number: (479) 785-8650

S.W.I.F.T. number:                                        


 


13









 





GLOBAL SUPPLY CHAIN SERVICES, INC.




	 	 	 	 	 
	By

	 	/s/ Judy R. McReynolds
 

Name: Judy R. McReynolds
	 	 
	 

	 	Title:   SVP, CFO and Treasurer	 	 






Address of Applicant:

Attn: Cash Management Dept.

3801 Old Greenwood Road

Fort Smith, AR 72903





Fax number: (479) 785-8650

S.W.I.F.T. number:                                        



FREIGHTVALUE, INC.




	 	 	 	 	 
	By

	 	/s/ Judy R. McReynolds
 

Name:   Judy R. McReynolds
	 	 
	 

	 	Title:    SVP, CFO and Treasurer	 	 






Address of Applicant:

Attn: Cash Management Dept.

3801 Old Greenwood Road

Fort Smith, AR 72903





Fax number: (479) 785-8650

S.W.I.F.T. number:                                        



MOVING SOLUTIONS, INC.




	 	 	 	 	 
	By

	 	/s/ Judy R. McReynolds
 

Name: Judy R. McReynolds
	 	 
	 

	 	Title:   SVP, CFO and Treasurer	 	 






Address of Applicant:

Attn: Cash Management Dept.

3801 Old Greenwood Road

Fort Smith, AR 72903





Fax number: (479) 785-8650

S.W.I.F.T. number:                                        




 


14