each of the Units, in the ordinary course of its business, each Company receives
a manufacturer's statement or certificate of origin ("MSOs") with respect to
such Unit;
WHEREAS, as to certain Units each Company may from time to time receive or
arrange for the issuance of Certificates of Title (as defined below);
WHEREAS, in the ordinary course of business, each Company enters or may enter
into written agreements for the lease or rental of Units to each other or to
third parties (the "Leases" as hereinafter further defined);
WHEREAS, the Borrower has entered into financing arrangements with (i) BofA
pursuant to which the lenders under the Credit Agreement will, upon certain
terms and conditions, make loans and provide other financial accommodations to
Borrower and (ii) the Senior Secured Notes Trustee pursuant to the Senior
Secured Notes Indenture, providing for the issuance by the Borrower of the
Senior Secured Notes, in each case secured by substantially all of the assets
and properties of the Companies, including, but not limited to, the Units; and
WHEREAS, under the terms of the financing arrangements of Borrower with BofA,
each Company is required to deliver the MSOs, the Certificates of Title and the
Leases to the Custodians for the Custodians to hold on behalf of BofA (for the
benefit of the Secured Creditors);
WHEREAS, BofA, each Company and the Custodians desire to set forth their
respective rights, obligations and responsibilities in connection with such
arrangements;
NOW, THEREFORE, in consideration of the mutual benefits accruing hereunder and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto do hereby agree as follows:
1.
DEFINITIONS
As used above and in this Custodian Agreement, the following terms shall have
the meanings ascribed to them below:
1.1
"BOFA" MEANS BANK OF AMERICA, N.A., AND ITS SUCCESSORS AND
ASSIGNS, ACTING IN ITS CAPACITY AS ADMINISTRATIVE AGENT UNDER THE CREDIT
AGREEMENT AND AS COLLATERAL AGENT UNDER THE CREDIT DOCUMENTS AND FOR THE BENEFIT
OF THE LENDERS THEREUNDER AND THE OTHER SECURED CREDITORS, AS DEFINED THEREIN.
AS APPROPRIATE, REFERENCES HEREIN TO BOFA SHALL INCLUDE ANY SUB-COLLATERAL
AGENTS OR CO-COLLATERAL AGENTS (OTHER THAN THE CUSTODIANS) APPOINTED BY BOFA
PURSUANT TO SECTION 10.11 OF THE CREDIT AGREEMENT AND SHALL INCLUDE, WITHOUT
LIMITATION, EACH OF DBTCA AND BTCC ACTING AS SUB-COLLATERAL AGENT AS
CONTEMPLATED BY SECTION 10.15 OF THE U.S. SECURITY AGREEMENT (AS DEFINED IN THE
CREDIT AGREEMENT).
1.2
"BOFA AGREEMENTS" SHALL MEAN, COLLECTIVELY, (A) THE CREDIT
AGREEMENT, (B) EACH INTEREST RATE AGREEMENT (AS DEFINED IN THE CREDIT AGREEMENT
OR ANY OF THE VARIOUS RELATED CREDIT DOCUMENTS) AT ANY TIME SECURED PURSUANT TO
ANY OF THE CREDIT DOCUMENTS, (C) EACH SENIOR SECURED NOTES DOCUMENT UNDER WHICH
THE OBLIGATIONS OF THE COMPANIES PARTY THERETO ARE SECURED PURSUANT TO THE U.S.
SECURITY AGREEMENT AND (D) EACH GUARANTY, SECURITY AGREEMENT, PLEDGE AGREEMENT,
MORTGAGE OR OTHER COLLATERAL DOCUMENT (AS DEFINED IN THE CREDIT AGREEMENT) OR
OTHER CREDIT DOCUMENT FROM TIME TO TIME ENTERED INTO PURSUANT TO, OR IN
CONNECTION WITH, ANY OF