YELL Yellow Corporation

Exhibit 10.1

NCI – RITCHIE BROS. AGENCY AGREEMENT

This Agency Agreement (this “Agreement”) is dated as of the 16th day of October, 2023 (the “Effective Date”), by and between Nations Capital, LLC, Ritchie Bros. Auctioneers (America) Inc., IronPlanet, Inc., Ritchie Bros. Auctioneers (Canada) Ltd. and IronPlanet Canada Ltd. (collectively, the “Agent”)), and Yellow Corporation and its affiliated debtors and debtors-in-possession (collectively, the “Company” or the “Debtors”). Agent is in the business of marketing and selling assets on behalf of its clients. The Company is the owner, lessee and possessor of the Rolling Stock Assets (as defined below) and desires to engage Agent as its exclusive agent to sell such assets as more fully described herein. Therefore, in consideration of the covenants contained herein, Agent and the Company (individually, each a “Party,” and together, the “Parties”) do hereby agree as follows:

A.  The Company hereby engages Agent as its exclusive marketing and sales agent, and Agent hereby accepts such engagement, with respect to the marketing, sale, and disposition of the Company’s rolling stock, machinery and equipment (the “Rolling Stock Assets”) located at, in, or in the vicinity of the properties owned or leased by the Company (the “Company Properties”), which Rolling Stock Assets are specifically identified in Exhibit A attached hereto and by this reference incorporated herein.¹

B.  For purposes of marketing and selling the Rolling Stock Assets, Agent shall market and sell the Rolling Stock Assets during the Term (defined below) of this Agreement substantially consistent with the Disposition Plan (defined below) utilizing private treaty, online, webcast, or unreserved public auctions, and such other sale strategies as the Company (in consultation with the Consultation Parties (as defined in the Bidding Procedures Order) (as defined below)) and Agent mutually agree.²

C.  The Company and its advisors, in consultation with the Consultation Parties, shall work with Agent promptly to identify any Rolling Stock Assets that are subject to an executory contract or unexpired lease, and Agent shall, within thirty (30) days following the entry of the Retention Order (defined below), evaluate whether assumption and assignment or rejection of such contracts or leases will maximize value for the Debtors and their estates. The Company shall cooperate with Agent in connection with Agent’s review of executory contracts and unexpired leases. Agent will also, within thirty (30) days following the entry of the Retention Order, recommend which contracts and leases shall be assumed or develop an alternate strategy with respect to all or any of such contracts and leases subject to the Company’s input in consultation with the Consultation Parties. Any assumption of an executory contract or lease, the sale by the

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Agent of any leased Assets listed at Exhibit B hereto, or alternative strategy with respect to such contracts and leases, shall be subject to the Company’s consent in consultation with the Consultation Parties. A schedule of the Company’s leased or financed Rolling Stock Assets, which may be marketed and sold by the Agent pursuant to this Agreement, and exclusive of the Rolling Stock Assets that are the subject of leases or financings as to which the Debtors have stipulated as of the Effective Date to stay relief, is shown in Exhibit B.³

D.  Rolling Stock Assets comprise the property identified in Exhibit A hereto, together with (in each case only if and to the extent currently in the Company’s possession and/or readily available/accessible to the Company) manuals, certificates of title, certificates of origin, bills of sale, machinery history documentation (including usage, maintenance and repair records), manufacturer and other warranties, and keys associated with or related to such Rolling Stock Assets, wherever located, including at the Company Properties; provided that, unless agreed in writing between the Agent and the Company, Agent shall not be responsible for the maintenance, removal, disposal, or other disposition of Assets (as defined in the Bidding Procedures Order) not constituting Rolling Stock Assets from the Company Properties. Assets that, if and to the extent known, contain unusually dangerous or environmentally hazardous substances shall not be considered Rolling Stock Assets even if they are listed on Exhibit A.

In order to permit the successful marketing, disposition and sale of the Rolling Stock Assets, the Company grants to Agent the exclusive right to sell the Rolling Stock Assets for a period beginning on the Effective Date and continuing for a period of eighteen (18) months thereafter (such period, the “Term”), which Term may be extended by mutual agreement of the Company (in consultation with the Consultation Parties) and Agent. The Company acknowledges that Agent, its members or its affiliated entities may be engaged to sell or market similar assets by other persons or entities during the Term, and that any such engagement shall not constitute or be deemed to be a violation of this Agreement. All inquiries regarding the Rolling Stock Assets made to the Company or its representatives shall be redirected to Agent, and Company shall, on or as soon as reasonably practicable following the Effective Date, share with Agent all indications of interest, offers and proposals to purchase or remarket and sell any of the Rolling Stock Assets.

Agent understands that the Company is conducting the sale of the Company’s Assets in accordance with the Order (I)(A) Approving Bidding Procedures for the Sale or Sales of the Debtors’ Assets; (B) Scheduling Auctions and Approving the Form and Manner of Notice Thereof; (C) Approving Assumption and Assignment Procedures; (D) Scheduling Sale Hearings and Approving the Form and Manner of Notice Thereof; (II)(A) Approving the Sale of the Debtors’ Assets Free and Clear of Liens, Claims, Interests and Encumbrances, and (B) Approving the Assumption and Assignment of Executory Contracts and Unexpired Leases; and (III) Granting Related Relief [Docket No. 575] (the “Bidding Procedures Order”). Agent agrees to coordinate and work in consultation with the Company’s advisors in accordance with the Bidding Procedures Order to maximize the value of the Rolling Stock Assets and in consultation with (as required by the Bidding Procedures Order or herein) the Consultation Parties.

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A.  Rolling Stock Services. In connection with the marketing, disposition and sale (including removal, transportation, and storage of, as applicable) of the Rolling Stock Assets (the “Rolling Stock Services”), Agent will:

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B.  Rolling Stock Services Fees.

With respect to Rolling Stock Assets that are missing or are in unsalable condition only (as reasonably determined by Agent, “Unsaleable Assets”), the Gross Proceeds ranges shown above will be adjusted downward based on existing orderly liquidation values provided to and accepted by the Agent. Agent acknowledges it has reviewed and accepted such orderly liquidation values of the Rolling Stock Assets provided by the Company to Agent in the Company’s data room in advance of entering this Agreement. In the event adjustment(s) are required pursuant to this provision, each tier of Gross Proceeds shown above will be adjusted downward ratably based on the contribution of the Unsalable Assets to the total orderly liquidation values provided to and accepted by the Agent. The Gross Proceeds ranges shown above will be adjusted downward based on Strategic Bulk Sales.

Pursuant to Section III.C of this Agreement, Agent will work with Company to mutually agree upon budgeted amounts for Rolling Stock Services Expenses and Transportation Fees (each as defined herein). In the event that total budgeted amounts of Rolling Stock Services Expenses (excluding title transfer fees) and Transportation Fees exceeds $38.4 million, each of the Gross Proceeds ranges shown above will be adjusted upward by the dollar amount that the total budgeted amounts exceed $38.4 million. Further, in the event the Company incurs occupancy costs after the Removal Date solely on account of Rolling Stock Assets remaining on such properties, each of the Gross Proceeds ranges shown above will be adjusted upward by the dollar amount of such occupancy costs pursuant to Section III.A(vi); provided, however, if the Company (in consultation with the Consultation Parties) and Agent agree to extend the Removal Date (including by amendment to the Disposition Plan) in order to maximize the Gross Proceeds, then the Gross Proceeds ranges shown above will not be adjusted upwards unless additional costs are

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incurred beyond such extended Removal Date; provided further that Agent acknowledges and agrees that the Removal Date (i.e., the date that is six (6) months from the date of entry of the Retention Order) shall not be extended except in the Company’s sole and exclusive discretion.

For the avoidance of doubt, the above ranges apply marginally, i.e., the next fee tier only applies to each dollar of Gross Proceeds in excess of the cutoff for the prior tier.

With respect to leased Rolling Stock Assets, the Rolling Stock Services Fee shall be 10% for any amount of Gross Proceeds therefrom.

C.  Rolling Stock Services Expenses. Agent shall market and sell the Rolling Stock Assets in a commercially practical and prompt manner, including in various phases if commercially reasonable to do so, consistent with the Disposition Plan and this Agreement. Agent shall advance (up to the agreed Rolling Stock Services Expenses budget)⁵, and shall be entitled to reimbursement by the Company for all Rolling Stock Services Expenses on a cost basis, regardless of whether or not any Rolling Stock Assets are sold, and which expenses shall be recovered from the collected Gross Proceeds of the sale of Rolling Stock Assets only. “Rolling Stock Services Expenses” mean the Agent’s commercially reasonable and documented

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out-of-pocket expenses for repair and refurbishment costs to be incurred solely to maximize the Net Proceeds to the Company and title transfer fees equal to or less than (if applicable) $50.00 per title. Agent will not charge the Company for storage of any Rolling Stock Assets following their removal of such Rolling Stock Assets from the Company Properties. Notwithstanding anything to the contrary provided herein, Agent shall not be obligated to advance payment of Rolling Stock Services Expenses or Transportation Fees in excess of the Rolling Stock Services Expenses budget or the Transportation Fees budget, respectively, and shall thereafter use commercially best efforts, unless agreed otherwise with the Company, to dispose of the remaining Rolling Stock Assets “AS IS” “WHERE IS” during the duration of the Term, with any additional costs incurred by the Company for occupancy adjusting the Gross Proceeds tiers upwards by such costs incurred following the Removal Date; provided that if the aggregate of Rolling Stock Services Expenses and Transportation Fees incurred exceed $38.4 million (not to be exceeded without Company’s prior written consent in consultation with the Consultation Parties), then the Gross Proceeds ranges in Section III.B.(i) above shall be adjusted upwards by such amount in excess of $38.4 million.

D.  Transportation Fees. Agent shall advance (up to the agreed Transportation Fees budget)⁶ and shall be entitled to reimbursement of its expenses on a cost basis for (a) removing all Rolling Stock Assets from off the Company Properties’ premises consistent with the Disposition Plan and this Agreement and (b) transporting such Rolling Stock Assets to Agent Locations in a commercially practicable and economical manner (such fees and costs, the “Transportation Fees”). In addition to the Rolling Stock Services Fees, the Company shall be responsible for Transportation Fees, both of which shall be recovered from the collected Gross Proceeds derived from the sale of Rolling Stock Assets only. Notwithstanding anything to the contrary provided herein, Agent shall not be obligated to advance payment of Rolling Stock Services Expenses or Transportation Fees in excess of the Rolling Stock Services Expenses budget or the Transportation Fees budget, respectively, and shall thereafter use commercially best efforts, unless agreed otherwise with the Company, to dispose of the remaining Rolling Stock Assets “AS IS” “WHERE IS” during the duration of the Term, with any additional costs incurred by the Company for occupancy adjusting the Gross Proceeds tiers upwards by such costs incurred; provided that if the aggregate of Rolling Stock Services Expenses and Transportation Fees incurred exceed $38.4 million (not to be exceeded without Company’s prior written consent in consultation with the Consultation Parties), then the Gross Proceeds ranges in Section III.B.(i) above shall be adjusted upwards by such amount in excess of $38.4 million.

Agent shall provide the Company (which shall in turn provide to the Consultation Parties) an updated Rolling Stock Services Expenses budget and an updated Transportation Fees budget as promptly as practicable (and no event later than fourteen (14) days) following Agent’s incurrence of eighty (80) percent, or $30.7 million, of the abovementioned $38.4 million budget for Rolling Stock Services Expenses and Transportation Fees.

E.  Transaction Fee. Agent is authorized to charge purchasers a transaction fee (the “Transaction Fee”). With respect to Rolling Stock Assets sold at a public auction run by Ritchie Bros. Auctioneers (America) Inc. or its affiliates, any Transaction Fee collected shall not exceed the following: (a) 10% on all lots selling for USD 12,000 or less, with a minimum fee of

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USD 100 per lot,⁷ (b) 4.85% on all lots selling for over USD 12,000 up to USD 75,000, with a minimum fee of USD 1,200 per lot or, (c) USD 3,638 on all lots selling for over USD 75,000. For the avoidance of doubt, any Rolling Stock Assets sold through a private treaty or other mutually agreeable sales platforms that are not sold via public unreserved auction shall not be subject to the Transaction Fee. The Transaction Fee shall not be considered Gross Proceeds for the purpose of calculating the Rolling Stock Services Fees hereunder. Agent agrees that fifty (50) percent of each Transaction Fee shall be credited against the Rolling Stock Service Fee earned and owing to Agent in connection with the applicable sale.

Company may terminate this Agreement at any time for cause (including Agent’s fraud, gross negligence, willful misconduct or abdication of responsibility in fulfilling the Agreement), but not as a result of the aggregate of Rolling Stock Services Expenses and Transportation Fees exceeding $38.4 million with the Company’s prior written consent in consultation with the Consultation Parties. In the event of a termination for cause, no fees shall be paid to Agent other than any undisputed fees already earned and payable (including any related reimbursable expenses).

Each Party shall have the right to terminate this Agreement upon not less than thirty (30) days’ written notice in the event that a Force Majeure Event occurs and is continuing for a period in excess of three (3) consecutive months and materially interferes with or delays either Party’s ability to perform under this Agreement or materially increases the cost of the Rolling Stock Services or transportation services. “Force Majeure Event” means any act, event, circumstance or condition that (i) is beyond the commercially reasonable control of and unforeseeable by, or which, if foreseeable, could not be avoided in whole or in material part by the exercise of due diligence by, either the Company or Agent who is relying on such act, event, circumstance or condition as justification for not performing an obligation under this Agreement and (ii) materially interferes with, or materially increases the cost of, performing such Party’s obligations under this Agreement, to the extent that such act, event, circumstance or condition is not the result of the willful or negligent act, error or omission or breach of this Agreement by such Party.

EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING BROUGHT UNDER THIS AGREEMENT.

A.  In connection with the Rolling Stock Services to be provided by Agent hereunder, the Company shall and hereby grants to Agent the following rights and authority:

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A.  The Company represents and warrants to Agent and covenants that, subject to entry of the Retention Order (as defined below) and entry of a Bankruptcy Court order approving the

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sale of the Rolling Stock Assets free and clear of all claims, liens, encumbrances and interests: (i) the Company has all legal right and authority to sell the Rolling Stock Assets; (ii) the Company has taken all necessary actions required to authorize the execution, delivery and performance of this Agreement and the related documents contemplated hereby, and no further consent or approval is required for the Company to enter into and deliver the Agreement and to perform its obligations under the Agreement; (iii) other than the Retention Order, no court order or decree of any domestic, federal, provincial, state or local governmental authority or regulatory body is in effect that would prevent or impair, or is required for the Company’s consummation of, the transactions contemplated by this Agreement, and no consent of any third party which has not been obtained is required therefore; (iv) Company has the authority to grant the limited license to Agent to utilize the Company Properties and to use the name “Yellow Corporation” as well as commercial marks and logos related thereto as provided for under this Agreement; (v) Agent shall have access to the Rolling Stock Assets and the Company Properties in accordance with this Agreement (provided that, if any Rolling Stock Asset listed on Exhibit A is not present on the Company Property as represented by Company, Company shall assist Agent to locate and gain possession of such Rolling Stock Asset. Agent is not obligated to locate, gain possession of, or expend any funds in connection with repossessing any such Rolling Stock Asset before the Removal Date or the expiration of the Term, but once such Rolling Stock Asset is located and available for transportation by Agent, Agent will include the transportation of such Rolling Stock Asset as part of Agent’s transportation services and within the remaining Transportation Fees budget; (vi) the Company’s representations and descriptions of the Rolling Stock Assets on Exhibit A are, to the best of the Company’s knowledge, materially accurate, true and complete; and (vii) all Rolling Stock Assets to be marketed and sold by Agent are, or will be at the time of sale (subject to entry of the Retention Order providing the same) free and clear of all liens, claims, and encumbrances of any kind whatsoever. The Company further represents and warrants to Agent that any amounts due and payable hereunder to Agent shall be free and clear of any liens, claims, or encumbrances of any kind whatsoever.

B.  Agent represents and warrants to Company that (i) Agent and each of the entities comprising Agent is duly organized, validly existing and in good standing under the laws of the province or state of its formation and (ii) Agent has taken all necessary actions required to authorize the execution, delivery and performance of this Agreement and the related documents contemplated hereby, and no further consent or approval is required for Agent to enter into and deliver the Agreement and to perform its obligations under the Agreement.

A.  Agent understands that the Rolling Stock Assets will be sold AS IS and WHERE IS, without representation or warranty of any nature of kind whatsoever, and the Company does not make any representations or warranties with respect to the Rolling Stock Assets, except for specifically stated under Section VI of this Agreement (provided, however, any existing or remaining manufacturer’s warranty shall remain and be transferred to the extent permissible and practicable to any buyer). The Company hereby agrees to indemnify and hold Agent harmless from any and all claims, causes of actions, damages, losses, or liabilities (including, without limitation, reasonable and documented attorney’s fees) of any kind arising from or related to (i) the Company’s material breach of any of its obligations, representations and warranties hereunder, (ii) its performance or failure to perform hereunder, (iii) the Company’s failure to pay

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any personal property taxes associated with the Rolling Stock Assets, and (iv) the fraud, negligence, gross negligence (including omissions) or willful misconduct of the Company, its officers, directors, employees, agents or representatives. The Company further agrees to indemnify and hold Agent harmless from any and all claims, causes of actions, damages, losses, or liabilities (including, without limitation, reasonable attorney’s fees) of any kind arising from any misrepresentations concerning the Rolling Stock Assets made by the Company to Agent. Notwithstanding the foregoing, the Company shall not in any circumstances indemnify Agent from any claims or causes of action arising from any fraud, negligence, gross negligence (including omissions) or willful misconduct of Agent or its respective officers, directors, employees, agents, contractors, consultants or representatives.

B.  Agent hereby agrees to indemnify and hold the Company and its affiliates and their officers, directors, principals, shareholders, affiliates, members, consultants, attorneys, advisors, and employees (collectively, “Company Indemnified Parties”) harmless from any and all claims, causes of actions, damages, losses, or liabilities (including, without limitation, reasonable attorney’s fees), including those asserted by any buyer or prospective buyer, arising from or related to (i) Agent’s material breach of any of its obligations, representations and warranties hereunder, (ii) its performance or failure to perform hereunder, (iii) the fraud, negligence, gross negligence (including omissions) or willful misconduct of Agent, its officers, directors, employees, agents, Third Parties, affiliates, contractors or representatives, or (iv) any liability or other claims asserted by Agent’s consultants, members, employees, representatives, affiliates, contractors and principals (excluding Company Indemnified Parties) against a Company Indemnified Party arising out of or related to Agent’s conduct of the sale of the Rolling Stock Assets, except claims arising from the Company’s gross negligence, willful misconduct or unlawful behavior. Notwithstanding the foregoing, Agent shall not in any circumstances indemnify Company from any claims or causes of action arising from any fraud, negligence, gross negligence (including omissions) or willful misconduct of the Company or its respective officers, directors, employees, agents, contractors, consultants or representatives.

The Company agrees to procure and/or maintain, at least for the duration of the Term, insurance in appropriate amounts in respect of all Rolling Stock Assets (including, without limitation, commercial general liability, property damage, fire and other perils insurance) until sold and no longer in the care, custody, or control of the Company or its agents. Such coverage shall be on at least an actual cash value (market value) basis and subject to no more than a commercially reasonable deductible.

At all times during the Term of this Agreement, Agent shall maintain, at its sole cost and expense, general liability insurance, including: (a) contractual liability, with minimum limits of $1,000,000 per occurrence; (b) automobile liability insurance with minimum limits of not less than $1,000,000 per occurrence combined with single limit for bodily injury and property damage; and (c) workers’ compensation insurance (including employer’s liability) in an amount not less than such amount required by applicable law. Commercial general liability and automobile liability shall be endorsed to include the Company as an additional insured. Coverage shall be primary and receive no contribution from any insurance available to the additional insureds. Policies shall be issued by insurance companies having an A.M. Best rating of at least A-VII. Agent agrees to be

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responsible for loss or damage arising during the Term as a result of the negligence of Agent, its agents or employees. Other than the foregoing, risk of loss or damage to the Rolling Stock Assets remains with the Company regardless of whether located on Company Property or Agent Property, including in the event Agent procures less expensive insurance for Company.

On behalf of themselves and their respective insurers, to the fullest extent allowed by applicable law, the Company and the Agent and their respective affiliates each waive and release the right to pursue the other party or its affiliates, whether in subrogation or otherwise, for any loss, liability, or damage of any kind or nature to the extent covered by their own insurance.

Agent shall promptly provide certificates of insurance to the Company evidencing required insurance and shall promptly provide notice to Company upon receipt of any notice of cancellation, non-renewal, or material change in coverage from its insurers. If Agent utilizes subcontractors in Agent’s performance of this Agreement, Agent shall require and warrant that said subcontractors possess the requisite type and amounts of insurance as required by contract and law. It is specifically agreed that the types and amounts of insurance required herein shall not limit or otherwise affect Agent’s liability or obligation to indemnify and hold the additional insureds harmless as provided by the indemnification provisions of this Agreement. 

Agent and the Company understand and agree that Agent shall not take title to any Rolling Stock Assets and, unless agreed by the Company and Agent for Agent to remit such taxes to the applicable taxing authorities from Gross Proceeds, shall not be responsible or liable for the remittance, withholding and payment of any federal, state, local, and/or provincial sales taxes (including any retail sales taxes, HST, GST, and land transfer taxes) and all other taxes, duties, fees or other like charges of any jurisdiction properly payable in connection with the sale and transfer of the Rolling Stock Assets.

The Company agrees to as promptly as reasonably practicable request entry of an order, under sections 363, 327, and 328 of chapter 11 of title 11, United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”), in form and substance acceptable to Agent and to the Consultation Parties, each in their reasonable discretion, authorizing the Company’s retention of Agent under this Agreement, which the Company agrees to use the Company’s best efforts to obtain (the “Retention Order”). The Company will provide Agent and the Consultation Parties with a draft of the motion seeking such Retention Order and a draft of the proposed Retention Order at least two (2) business days (or otherwise as soon as reasonably practicable) before filing them with the Bankruptcy Court. The Company will use reasonable efforts to ensure that the Retention Order specifically provides that: (i) Agent is being retained pursuant to sections 327 and 328 of the Bankruptcy Code by the Company and the Agreement is authorized pursuant to section 363 of the Bankruptcy Code; (ii) the payment of all fees and reimbursement of expenses hereunder to Agent is approved under section 328 of the Bankruptcy Code and shall be free and clear of all liens, claims, and encumbrances; (iii) all such payments of fees and reimbursement of expenses shall be made without further order of the Bankruptcy Court and in accordance with this Agreement;

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(iv) Agent shall not be required to comply with any licensing restrictions; (v) Agent is authorized to employ Third Parties (defined below) in connection with the performance of its Rolling Stock Services as set forth herein; and (vi) Agent is not required to maintain time records or file interim or final fee applications. The Agent acknowledges that the Company’s obligations under this Agreement are only enforceable in the event, and to the extent, this Agreement is approved by the Bankruptcy Court pursuant to the Retention Order. Company’s proposed Retention Order shall provide that Agent’s fees and reimbursement of expenses provided for hereunder shall not be subject to review by any party in interest, the Office of the United States Trustee, or the Bankruptcy Court.

A.  Agent shall not subcontract the whole of its obligations under this Agreement, but shall be permitted to utilize independent contractors and subcontractors for performing various obligations. Any cooperating brokers, sub-brokers, sub-agents, independent contractors or other third parties enlisted by Agent in connection with its performance of the Rolling Stock Services and not otherwise employed by Agent (any such third party, a “Third Party”) may be engaged upon such terms as are commercially reasonable in the market(s) in which such Third Parties are engaged or as otherwise provided herein. Agent shall be responsible for any fees or commissions payable to any such Third Parties in connection with its performance of the Rolling Stock Services. The Parties agree that their relationship is one of principal and agent and no partnership or joint venture is created by or through the performance of this Agreement. Agent is not a fiduciary of the Company and is not assuming any fiduciary duty to the Company or their bankruptcy estates. Agent shall provide the Company with monthly notice of material contractual engagements entered into with Third Party(ies) for the fulfillment of its duties and obligations under this Agreement, which notice the Company shall deliver to the Consultation Parties and their advisors.

B.  This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof.

C.  Agent shall be entitled to compensation and reimbursement of expenses for Rolling Stock Services rendered under this Agreement and this Agreement shall be binding upon the Company or any successor or assignee, including any trustee appointed in Company’s chapter 11 cases or any successor case.

D.  The Parties hereto agree, and the Company hereby expressly acknowledges, that Agent has not guaranteed the Company any recovery or return from the sale of the Rolling Stock Assets.

E.  The Company and Agent shall deal with each other fairly and in good faith so as to allow each Party to perform its duties and earn the benefits of this Agreement.

F.  THE COMPANY AND AGENT AGREE THAT THE ROLLING STOCK ASSETS WILL BE OFFERED FOR SALE AND WILL BE SOLD WITHOUT REGARD TO RACE, COLOR, RELIGIOUS CREED, ANCESTRY, AGE, NATIONAL ORIGIN, DISABILITY, SEX, GENDER, OR FAMILIAL STATUS.

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G.  TECHNOLOGY DISCLAIMER: AGENT DOES NOT WARRANT THAT THE FUNCTIONS, FEATURES, OR CONTENT CONTAINED IN ANY WEBSITE USED IN CONNECTION WITH THE SALE OF THE ROLLING STOCK ASSETS, INCLUDING ANY THIRD-PARTY SOFTWARE, PRODUCTS OR OTHER MATERIALS USED IN CONNECTION WITH ANY SUCH WEBSITE, WILL BE TIMELY, SECURE, UNINTERRUPTED, OR THAT DEFECTS WILL BE CORRECTED; PROVIDED AGENT AGREES TO USE BEST EFFORTS TO PROMPTLY CORRECT ANY SUCH INTERRUPTIONS AND/OR DEFECTS.

H.  The Company recognizes and acknowledges that the services to be provided by Agent pursuant to this Agreement are, in general, transactional in nature, and Agent will not be billing the Company by the hour nor maintaining time records unless required pursuant to Bankruptcy Court order. It is agreed that Agent is not requested by the Company to maintain such time records and that its compensation will be fixed on the terms and conditions, including percentages, set forth herein. Agent represents and warrants that it has the expertise in performing the Rolling Stock Services under this Agreement.

I.  Any correspondence or required notice shall be addressed as follows:

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J.  This Agreement shall be deemed drafted by the parties hereto, and there shall be no presumption against either party in the interpretation of this Agreement.

K.  By executing or otherwise accepting this Agreement, the Company and Agent acknowledge and represent that they are represented by and have consulted with independent legal counsel with respect to the terms and conditions contained herein.

L.  This Agreement may be executed in original counterparts, and if executed and delivered via facsimile or other electronic signature shall be deemed the equivalent of an original.

M.  This Agreement creates no third-party beneficiaries, subject to the rights of the Consultation Parties as set forth in this Agreement. In the event that a Consultation Party forecloses on Rolling Stock Assets that are its collateral, Agent agrees to continue to market and sell such assets on terms substantially similar to those contained in this Agreement for the benefit of such Consultation Party, with such Consultation Party bearing any and all costs which would have otherwise been incurred by the Company under this Agreement with respect to such Rolling Stock Assets.

N.  This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to conflict of laws provisions. The Parties consent to the exclusive jurisdiction of the Bankruptcy Court to hear and determine all disputes arising out of or in relation to this Agreement.

O.  Agent recognizes that it may come into possession of information relating to the business of the Company that is not available to the general public or that reasonably or logically

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may be considered to be confidential or proprietary (“Confidential Information”). Agent shall hold confidential and not use (except as necessary to perform its obligations under this Agreement) or disclose (unless required by a court of competent jurisdiction), and shall cause its employees, agents, contractors, directors, and other representatives to hold confidential all Confidential Information. Upon the Company’s request, all such information shall be destroyed, deleted or returned to the Company in any physical medium. Confidential Information shall not include information that is or becomes publicly available through no wrongful act of Agent, is furnished to others by the Company without similar restrictions on their right to use or disclose, is known by Agent without any proprietary restrictions at the time of receipt of such information from the Company or becomes rightfully known to Agent without proprietary restrictions from a source other than the Company, is independently developed by Agent by persons who did not have access, directly or indirectly, to the Confidential Information, or that is provided by Agent to Company in a report disclosed by the Company.

This Agreement may not be transferred or assigned without the express written consent of the other Parties (the Company, in each case, in consultation with the Consultation Parties), provided that Agent shall be permitted to engage or retain, and utilize, contractors and subcontractors to assist in the performance of the Rolling Stock Services. This Agreement does not create, and shall not be construed as creating, any rights enforceable by any person not a Party to this Agreement, subject to the rights of the Consultation Parties under this Agreement. The Parties hereto are acting as independent contractors and nothing contained herein shall be deemed to create any other type of partnership, joint venture or other relationship. This Agreement may not be modified or amended except by an instrument in writing executed by an authorized representative of each of the Parties to this Agreement (the Company, in each case, in consultation with the Consultation Parties) (and which may not be amended or modified in any manner which adversely affects a Consultation Party’s rights hereunder without the written consent of such adversely affected Consultation Party). If any part or subpart of this agreement is found or held to be invalid, that invalidity shall not affect the enforceability and binding nature of any other part of this Agreement. No Party shall be considered in default hereunder to the extent that performance by such Party is prevented or delayed by any unforeseeable cause, existing or future, which is beyond the commercially reasonable control of such Party. The Parties do hereby agree that this Agreement and related documents be drawn up in the English language only.

The Company hereby appoints Agent as its attorney-in-fact with a limited power of attorney (“LPOA”) to execute on the Company’s behalf, all documents necessary and required to transfer title to, and permit registration of ownership of, any portion of the Rolling Stock Assets to any buyer; provided, however, if original titles or a notarized LPOA are required by federal, state, provincial or local regulation to transfer title, the Company will provide Agent with either, as applicable, (i) signed original titles, or (ii) a notarized LPOA and unsigned original titles at least two weeks prior to any auction or private treaty disposition of any of the Rolling Stock Assets. Failure to provide title(s) and/or an LPOA as required may prevent the Rolling Stock Assets being made available for sale until such documentation is provided. Agent agrees to exercise the LPOA in good faith.

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IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement as of the date written below.

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EXHIBIT A

Rolling Stock Assets

EXHIBIT B

Leased or Financed Rolling Stock Assets