EXHIBIT 10.12
VOLVO MASTER LEASE AGREEMENT
VOLVO TRUCK FINANCE NORTH AMERICA INC.
LESSEE NAME AND ADDRESS
Legal Name: Western Express, Inc.
Check One: Corporation [X] Partnership [ ] Joint Venture [ ] Individual [ ] LLC [ ]
Street Address: 120 Ewing Drive
Mailing Address:
City: Nashville State: TN Zip: 37207
County: Davidson Telephone: 615-227-3900 Facsimile: 615-227-5521
Federal ID/SN: 62-1457385 ICC No. 260323
Customer No. 2000356
1. LEASE: Subject to the terms and conditions of this Master Lease Agreement
(this "AGREEMENT") Volvo Truck Finance North America, Inc., a Delaware
corporation with its principal place of business in North Carolina ("Lessor"),
agrees to lease to Lessee and Lessee agrees to lease from Lessor the motor
vehicles, trailers, and such other equipment (collectively, the "VEHICLES")
described in the Schedules to be attached to this Agreement from time to time
(each a "SCHEDULE") as may be agreed upon by Lessor and Lessee. All of the terms
and conditions of each Schedule and all other documents executed by Lessor and
Lessee shall be incorporated by this reference in this Agreement. Lessee's
obligations with respect to the Vehicles as described in the respective Schedule
shall become irrevocable upon the execution of the Certificate of Acceptance for
such Vehicles.
(a) Acceptance of Vehicles by Lessee. Upon completion of delivery of
all of the Vehicles described on a Schedule, Lessee shall inspect such Vehicles
and, if in good order and in conformance with any applicable purchase order or
supply contract, Lessee will accept delivery of the Vehicles on behalf of the
Lessor, and execute and deliver the applicable Certificate of Acceptance.
(b) Lessor's Obligations to Fund Any Schedule. Notwithstanding any
other provision of this Agreement, Lessor shall have no obligation to lease the
Vehicles on any Schedule or pay the manufacturer or supplier until all of the
following conditions precedent are fulfilled to the reasonable satisfaction of
Lessor with respect to such Schedule (each a "CLOSING DATE"): (i) All of the
representations and warranties made by Lessee in this Lease or the Schedule are
true and accurate as of the Closing Date; (ii) Lessor has received evidence of
Lessee's compliance with the insurance requirements of this Agreement; (iii)
Lessor has received UCC financing statements as required by Lessor; (iv) Lessee
has provided a certificate of its secretary or other authorized officer
certifying, (1) the accuracy of its charter documents; (2) resolutions of its
governing board duly authorizing the execution, delivery, and performance of
this Agreement, the Schedules, and all other related documents (the foregoing,
together with any guaranty being collectively the "LEASE DOCUMENTS"); and (3)
the incumbency and signatures of the officers authorized to execute the Lease
Documents; (v) receipt of the Schedule and all exhibits or attachments duly
executed by Lessee; (vi) confirmation of the absence of an Event of Default or
an event which, but for the passage of time or the giving of notice or both
would constitute an Event of Default, on the Closing Date; and (vii) no
enactment of any statute or adoption of any regulation which has or will have an
adverse effect on the anticipated federal or state income tax consequences to
Lessor, in which case Lessee shall not be obligated to lease from Lessor any
Vehicles not already subject to a Certificate of Acceptance. If any of the
conditions precedent specified in the preceding (i)-(vii) are not satisfied or
waived by Lessor in its sole and absolute discretion, Lessee shall promptly pay
Lessor and indemnify, defend, and hold Lessor harmless against all amounts which
Lessor has expended or may become obligated to pay and any claims, including the
claims of any supplier or manufacturer, with respect to any Vehicle and the
transactions contemplated under the applicable Schedule.
2. FINANCE LEASE: This Agreement is a "FINANCE LEASE" as defined in
Section 2A-103 of the Uniform Commercial Code (the "UCC") as adopted in the
State of North Carolina (25-2A-101 et seq., General Statutes of North Carolina).
Lessee acknowledges that Lessor has neither selected, manufactured, nor supplied
the Vehicles. Lessee selected the Vehicles and the suppliers of the Vehicles.
Lessor is acquiring the Vehicles at the request of Lessee in connection with
this Agreement. Lessee received and approved copies of the purchase order(s) or
supply contract(s) for the Vehicles prior to entering into this Agreement.
3. PRECAUTIONARY SECURITY AGREEMENT: Should it be determined,
notwithstanding the express intent of the parties, that this Agreement is not a
"finance lease" or a lease under the UCC but rather an agreement intended for
security, then solely in that event and for the expressly limited purposes
thereof, Lessee grants Lessor a security interest in the Vehicles to secure the
prompt payment and performance, when and as due, of the obligations and
indebtedness of Lessee to Lessor under this Agreement. Lessee hereby also grants
Lessor a security interest in all accessions and additions to, substitutions and
replacements for, and proceeds (including insurance proceeds), accounts, and
income arising from or generated by the Vehicles. Lessee hereby appoints the
Lessor as agent for the benefit of the Lessee and grants Lessor an irrevocable
power of attorney, to take any and all actions and to execute and file all
documents necessary to establish, maintain, and continue the perfected security
interest of Lessor in the Vehicles, in the name of and on behalf of Lessee, at
Lessee's sole cost and expense. This power of attorney is coupled with an
interest and is irrevocable during the term this Agreement. Lessee shall take
all actions and execute and file all documents reasonably requested by Lessor to
establish, maintain, and continue the perfected security interest of Lessor.
Lessee shall, within ten (10) days after receipt of notice from Lessor, pay all
costs and expenses of filing and recording (including the costs of all searches
deemed necessary by Lessor) to establish, maintain, and determine the validity
and priority of Lessor's security interest.
4. TERM: Unless terminated earlier by Lessor with respect to each
Schedule, this Agreement shall be effective from the date such Schedule is
executed by Lessor for a term expiring on the Lease Termination Date. Lessee's
right to use and possess the Vehicles described on any Schedule will begin when
all of the following have occurred: (a) Lessee has executed the applicable
Certificate of Acceptance and all other documents required thereby; (b) Lessee
has supplied Lessor with evidence of insurance coverage on the Vehicles
acceptable to Lessor in its reasonable discretion; and (c) Lessee has paid to
Lessor both the Advance Rent and the Interim Rent, if any, designated on the
applicable Schedule. Notwithstanding any other provision of this Agreement, the
term of this Agreement for each Schedule shall continue until all of the
Vehicles is returned to Lessor in the condition required by the Schedule. As of
any applicable date, the Stipulated Loss Value for a Vehicle is the Lessor's
Cost as shown on the applicable Schedule multiplied by the Stipulated Loss
Factor as of the applicable date and as designated on Exhibit B to such
Schedule. THIS AGREEMENT IS A "NET LEASE" AND MAY NOT BE TERMINATED BY LESSEE
FOR ANY REASON WHATSOEVER.
5. RENTAL PAYMENTS: Lessee shall make all of the following payments to
Lessor (collectively "RENT"): (a) the Advance Rent set forth on any Schedule
will be due on the Date of Acceptance and, subject to the terms of this
Agreement, will be applied to the last Regular Monthly Rental Payment; (b)
Interim Rent set forth on any Schedule will be due on the Date of Acceptance and
will be calculated by multiplying the Daily Lease Rate Factor times the number
of days between the Date of Acceptance to and including the Base Lease
Commencement Date; (c) Regular Monthly Rental Payments will be due during the
Base Lease Term in the amount and on the dates stated in the applicable
Schedule, with the first Regular Monthly Rental Payment due on the Base Lease
Commencement Date unless other provided in the Schedule; and (d) All sales and
use taxes and the like will accompany each payment in an amount sufficient to
pay such taxes and other charges in full. Notwithstanding any other provision of
this Agreement, the term of this Agreement and Lessee's obligations to pay Rent
on a Vehicle shall continue if Lessee has not returned the Vehicle to Lessor in
the condition required by this Agreement on the Lease Termination Date (unless
Lessee had previously paid Lessor the Stipulated Loss Value for such Vehicle or
is exercising any option to purchase the Vehicle) until the Vehicle is returned
to
Lessor in the required condition. Lessee agrees to make all payments of Rent in
the manner required by Lessor, including but not limited to by wire transfer,
electronic funds transfer or by automatic withdrawal from Lessee's accounts.
6. ABSOLUTE NON-TERMINABLE OBLIGATION: LESSEE'S OBLIGATION TO MAKE PAYMENT
OF ALL RENT AND ALL OTHER AMOUNTS WHEN DUE AND TO OTHERWISE PERFORM AS REQUIRED
UNDER THIS AGREEMENT SHALL BE ABSOLUTE AND UNCONDITIONAL AND SHALL NOT BE
SUBJECT TO ANY ABATEMENT, REDUCTION, SET-OFF, DEFENSE, COUNTERCLAIM,
INTERRUPTION, DEFERMENT OR RECOUPMENT OR TERMINATION, UNDER ANY CIRCUMSTANCE OR
FOR ANY REASON WHATSOEVER, AND SHALL NOT REQUIRE PRIOR NOTICE OR DEMAND. Any
default under a warranty, service contract, or insurance policy, even when
obtained through or from Lessor, does not constitute a defense to Lessee's
obligation to make each and every payment in full when due under this Agreement.
Lessee will make all Rent and other payments directly to Lessor at such places
as Lessor may from time to time designate in writing. Payments will be applied
when actually received on good funds by Lessor. To compensate Lessor for the
additional costs of processing late payments, a one-time late charge of 5% will
be charged on any payment not actually received within ten days of its due date.
All other monetary obligations due and not paid when due will bear interest at
the lesser of 18% per annum or the maximum rate allowed by law. Lessor may, at
its option, apply all payments to any past due charges and then to charges not
yet due.
7. NO WARRANTY: LESSOR, NOT BEING THE MANUFACTURER, SUPPLIER, OR VENDOR OF
THE VEHICLES MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE
VALUE, CONDITION, QUALITY, MATERIAL, DESIGN, MERCHANTABILITY, OR FITNESS OR
SUITABILITY OF ANY VEHICLES FOR ANY PURPOSE. LESSEE ACKNOWLEDGES THAT LESSEE HAS
SELECTED THE VEHICLES BASED ON LESSEE'S OWN JUDGEMENT AND HAS NOT RELIED ON ANY
STATEMENTS OR REPRESENTATIONS OF LESSOR. In no event will Lessor be liable for
loss or damage to cargo, contents, attachments, lost profits or to the Vehicles,
or incidental, special, or consequential damages of any nature, regardless of
cause. So long as no Event of Default has occurred Lessor hereby assigns to
Lessee the right to enforce all warranties made by the manufacturer, supplier,
or vendor of the Vehicles.
8. LESSEE'S REPRESENTATIONS: Lessee warrants and represents to Lessor,
expressly acknowledging that Lessor is relying on these warranties and
representations, as of date of this Agreement and/or each Closing Date, as
applicable, and until all of Lessee's obligations under this Agreement have been
satisfied in full, that: (i) all information supplied by Lessee to Lessor in any
financial, credit or accounting statement is and will be true, correct, valid
and genuine; (ii) the Vehicles are to be used only for business purposes; (iii)
Lessee is duly organized, validly existing, and in good standing under the laws
of the state of its formation; (iv) Lessee has the full authority to enter into
each of the Lease Documents and to perform all of its obligations under each of
the Lease Documents; (v) Lessee has duly authorized, executed, and delivered
each of the Lease Documents to which it is a party, and each such Lease Document
constitutes the legal, valid, and binding obligation of Lessee, enforceable
against Lessee in accordance with its terms; (vi) that each of the Lease
Documents does not require the approval of any stockholder, trustee, or holder
of any obligation of Lessee and does not and will not violate any law, rule, or
order now binding upon Lessee, or the charter, by - laws, or other governing
documents of Lessee, or violate the provisions of, constitute a default under,
or result in the creation of any lien or encumbrance upon the property of Lessee
under, any contract or agreement to which Lessee is a party or by which it or
its assets are bound or require the consent or approval or the giving of notice
to the Federal, or any state, or local government (other than customary titling,
registration, and security interest filings); (vii) there are no pending or
overtly threatened actions or proceedings, which is either, individually, or in
the aggregate, would materially adversely affect the financial condition of
Lessee or Lessee's ability to fully perform all of its obligations under all of
the Lease Documents; (viii) Lessee maintains its principal place of business at
the
address set forth on page 1 of this Agreement; and (ix) Lessor's ownership of
and interest in the Vehicles shall at all times be prior to any other interests
in the Vehicles.
9. LESSEE'S OBLIGATIONS AND COVENANTS: In addition to and not in limitation of
any other agreements of Lessee under the Lease Documents, Lessee agrees at its
sole expense: (a) to use each Vehicle only in the United States (or in Canada
for not more than 60 days per rolling 12 calendar month period to be determined
individually for each Vehicle) in accord with all applicable laws, regulations,
and insurance policies; (b) to keep each Vehicle free from all claims, liens,
encumbrances and attachments of any kind whatsoever; (c) to file, report, and
pay on its and Lessor's behalf by the applicable due date all taxes, fees, and
assessments on the Vehicles and the Lease, sending a copy of such filing and
payment contemporaneously to Lessor; (d) to defend any action, proceeding or
claim affecting the Vehicles or Lessor's interest therein; (e) to obtain a
certificate of title on each of the Vehicles showing Lessor's title to the
Vehicles, and to preserve and perfect Lessor's title to all of the Vehicles; (f)
that Lessee will not (or permit any party to) misuse, secrete, sell, rent, lend,
encumber, transfer, or illegally use any of the Vehicles nor permit any Vehicle
to be operated by or be in the possession of any party other than Lessee; (g)
Lessee will not use or permit the use of any Vehicles off an improved road or
for transportation of passengers or of material designated as hazardous,
radioactive, toxic, flammable, or explosive, or environmentally hazardous,
unsafe, or dangerous under any state, federal, or local law, rule, or
requirement; (h) that Lessor may enter any premises to inspect the Vehicles,
Vehicles or Lessee's books and records regarding the Vehicles at any time during
usual business hours; (i) to provide Lessor with its complete financial
information, including Income Statements and Balance Sheets, compiled according
to generally accepted accounting principles-- unaudited on a quarterly basis
within 60 days after the end of each quarter and audited on an annual basis
within 90 days after year end; (j) to give Lessor prompt written notice of any
lien or claim for which it is obligated to indemnify Lessor; and (k) that Lessee
will not alter or permit the alteration of any Vehicles without the prior
written consent of Lessor, and that Lessee will remove or cause the removal of
all markings prior to the return of the Vehicles to Lessor.
10. VEHICLE CONDITION: In addition to any other requirements of this Agreement,
Lessee will, at its sole expense, maintain each of the Vehicles so as to meet
all of the following requirements: (a) each Vehicle will be preserved in first
class operating condition, repair, and appearance in accordance with all
manufacturer service requirements and warranties; (b) all replacement and
substitute parts and accessories will be original Vehicle manufacture, or from
commercially reputable providers with similar or superior value, serviceability,
and warranty; (c) each Vehicle will be kept in roadworthy condition so as to
continuously and fully comply with all government requirements, including the
United States Department of Transportation. If Lessor notifies Lessee that any
Vehicle is not being maintained within the above standards, Lessee will have 20
days from the date of receipt of the written notification to make the necessary
corrections.
11. INSURANCE AND RISK OF LOSS: All risk of loss, damage or destruction of the
Vehicles will at all times be on Lessee. Lessee will keep the Vehicles insured
at Lessee's expense against liability in an amount not less that $1,000,000 per
occurrence, and loss or damage by fire, theft and other customary risks for the
greater of the full insurable values or the then applicable Stipulated Loss
Value for the Vehicles. Coverage and insurer will be subject to Lessor's
approval, provided however that such insurer shall have a Best Class rating of
at least B+VI. Lessor and any third party designated by Lessor shall be named as
an additional insured and/or loss payee, as applicable, on each policy. Each
policy will further provide that Lessor's interest can not be invalidated by an
act, omissions, or neglect of anyone other than Lessor and that the insurer will
give Lessor thirty days advance written notice of any policy cancellation, or
non-renewal, whether such cancellation is at the direction of Lessee or insurer.
Lessee will promptly deliver a copy of each policy or insurance certificate to
Lessor and proof of renewal at least 30 days prior to expiration or
cancellation. If Lessee fails to provide the required insurance, Lessor may
purchase such insurance at Lessee's expense, purchase of which need not include
liability coverage or protection of Lessee's interest. Lessee irrevocably
appoints Lessor as Lessee's attorney-in-fact to execute and endorse all
documents, checks or drafts received in payment of loss or damage under any
insurance policy.
Lessee will immediately notify Lessor in writing of any substantial damage,
theft or loss which makes any Vehicle unfit for continued or repairable use at
which time Lessee will pay to Lessor the Stipulated Loss Value for the Vehicle
calculated as of the day upon which the next Regular Monthly Rental Payment is
due, together with all other sums then owed in connection with the Vehicle. Upon
receipt of the Stipulated Loss Value and all other amounts then due, Lessor
shall transfer title to the Vehicle "Where-Is," "As-Is" to Lessee or as Lessee
directs, with Lessee being responsible for all costs of such transfer. Lessor
has no obligation to replace any Vehicle and may apply insurance proceeds to any
of Lessee's obligations as Lessor deems appropriate.
12. RETURN OF VEHICLES: In addition to the other requirements of this Agreement,
whenever Lessee's right to possess any of the Vehicles terminates, for any
reason whatsoever, including after the occurrence of an Event of Default, Lessee
will promptly, at its sole expense, assemble and return the Vehicles to
locations selected by Lessor. Lessee will also return to Lessor all license
plates, registration certificates, manufacturer warranty agreements, maintenance
records and other documents relating to the Vehicles. Upon return of a Vehicle,
should the average annual miles exceed the maximum mileage provision as
specified in the applicable Schedule, Lessee will pay to Lessor an additional
return charge equal to the Mileage Rate set forth on the Schedule, times the
number of excess miles. If Lessor takes possession of any property not subject
to its interests, it shall notify Lessee and may dispose of the property if
Lessee fails to take possession within thirty (30) days. If a Vehicle is not
returned in the condition set forth below, Lessee shall pay to Lessor within
five (5) days of receipt of written notice from Lessor an amount to repair and
recondition the Vehicle, in order to offset its decline in value, and to obtain
the appropriate licenses and registration.
(a) ROADWORTHY. Each Vehicle will be in roadworthy condition, and all
original equipment or replacement equipment of similar value made by
the same manufacturer will be intact and in first class working
condition, free of mechanical problems to any of its parts and
accessories. Permanently installed attachments must remain with the
Vehicle unless a written exception is executed by each of Lessor and
Lessee. If attachments are removed, the Vehicle must be returned to
its original condition.
(b) CAB AND BODY. The cost of necessary repairs to sheet metal (cab,
body, fuel tanks) will not exceed four hours labor, flat rated
against Mitchell or other industry accepted guide, and $200
replacement parts at truck manufacturers published "fleet" price.
All decals, permits, numbers, and other customer identification will
be removed from each Vehicle by Lessee in such a manner as not to
damage the surface. Interior trim will be free of tears, and no
glass will be broken, chipped or cracked. The windshield seal must
be free of visible gasket/adhesive material. All mechanical and
electrical equipment including radios, heaters and air conditioners
must be in proper operating condition.
(c) MECHANICAL POWER TRAIN. The Vehicle must be capable of performing at
85% of its rated capacity, at the wheels, under full load without
excess oil leakage or blow-by. The condition of the engine and power
train will be determined by diagnostic testing conducted by National
Truck Protection Co., Inc. or conducted at a service center
authorized by Lessor which uses National Tuck Protection Co., Inc.
standards. Passwords for the engine electronic program, if
applicable, must be supplied.
(d) SYSTEMS. Cooling and lubrication systems will not be contaminated or
leaking between fluid systems nor will any system be damaged by the
failure to properly maintain fluids. Batteries must be of original
CCA rating and capable of holding a charge starting the Vehicle.
(e) TIRES, WHEELS, AND BRAKES. Tires and wheels will be made of matched
generic type, quality, and design as originally supplied and have at
least 9/32" tread on front tires and 12/32" tread on
rear tires. Front tires will be original casings. Rear tires may
have first time recapped casings. Brake linings will have at least
50% remaining wear. There must be no irregular, or unusual wear or
damage to the tread or sidewalls. All rear wheel positions must be
of matched tread design.
(f) DOCUMENTS AND RECORDS. Each Vehicle will have a title free and clear
of all liens and encumbrances, meet any ICC requirements, have a
state inspection certificate valid for at least 120 days after the
date of return; proof of payment of ad valorem, highway and all
other taxes, a copy of a vehicle maintenance packet, license plates
and registration compliance, and a valid, current DOT inspection
certification.
(g) INSPECTIONS. Not more than 90 days and not less than 45 days prior
to return of a Vehicle on the applicable Lease Termination Date,
Lessee will make the Vehicles available so that Lessor may conduct a
"walk-around" appraisal. Inspections may be made by National Truck
Protection at the request and expense of Lessor if the Vehicles meet
the National Truck Protection standard. Lessee is responsible for
the cost of inspection of Vehicles not meeting the established
National Truck Protection standard.
13. ASSIGNMENT:
(a) TRANSFER BY LESSOR: LESSOR MAY ASSIGN OR TRANSFER THIS AGREEMENT
ANY SCHEDULE OR LESSOR'S INTEREST IN ANY OF THE VEHICLES WITHOUT NOTICE TO
LESSEE. Any assignee or transferee of Lessor shall have all of the rights, but
none of the obligations, of Lessor under this Agreement and Lessee agrees that
it will not assert against any assignee or transferee of Lessor any defense,
counterclaim, or offset which Lessee may have against Lessor. Lessee
acknowledges that any assignment or transfer by Lessor shall not materially
change Lessee's duties or obligations under this Lease nor materially increase
the burden or risks imposed on Lessee.
(b) TRANSFER BY LESSEE: LESSEE SHALL NOT ASSIGN, SUBLEASE, TRANSFER, OR
DISPOSE OF ALL OR ANY PART OF ITS RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT OR
IN THE VEHICLES, OR ENTER INTO ANY SUBLEASE OF ALL OR ANY OF THE VEHICLES,
WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR, (REGARDLESS OF WHETHER SUCH ACTION
OCCURS VOLUNTARILY OR BY OPERATION OF LAW).
(c) SECURITY INTEREST AND ASSIGNMENT: Notwithstanding the prohibition
against assignments or subleases without Lessor's prior written consent, Lessee
hereby transfers, conveys, and assigns to Lessor and grants to Lessor a security
interest in all of Lessee's right, title, and interest in, but none of its
obligations under any sublease of the Vehicles, and all proceeds and income
arising therefrom. Any sublease permitted under this Agreement shall be in form
and contain terms and conditions acceptable to Lessor and assigned to Lessor by
form approved by Lessor, all such approvals by Lessor to be granted or withheld
in Lessor's sole and absolute discretion.
14. LESSEE'S INDEMNITIES: Lessee agrees that: (a) Lessee will indemnify and hold
harmless Lessor and its agents for, from, and against all losses, penalties,
claims, and causes of action including legal fees and expenses of every kind and
nature related to this Agreement or the selection, manufacture, purchase,
delivery, lease, possession, use, misuse, contents, repair, collision, personal
injury, death, condition or return of any of the Vehicles; (b) Lessor may, at
its sole option, take any action Lessor deems necessary to cure any Event of
Default, and Lessee will immediately and fully compensate Lessor for such
action; and (c) Lessor is entitled to the accelerated cost recovery (or
depreciation) deductions with respect to each Vehicle. Should any taxing
authority disallow, eliminate, reduce, recapture, or disqualify, in whole or in
part, any tax benefits with respect to any Vehicle (whether because of a change
in tax law or policy or because of a change in the status or
condition of the Vehicle), then Lessee will immediately pay a sum that permits
Lessor to receive (on an after-tax basis over the full term of the Lease) the
same after-tax cash flow and after-tax yield that Lessor may have reasonably
assumed upon entering into the Lease. Any written request from Lessor for such a
payment will be binding, unless objected to within 14 days of notification, and
due upon request.
15. EVENTS OF DEFAULT: Each of the following shall constitute an Event of
Default which will allow Lessor to exercise all of its rights under this
Agreement and applicable law: (a) Lessee fails to make any payment in full when
due under this Agreement; (b) Lessee breaches any provision, covenant, or
warranty in this Agreement and such breach continues after ten (10) days written
notice to Lessee; (c) any of the Vehicles is lost, severely damaged, destroyed
or attached and Lessor does not receive the Stipulated Loss Value for such
Vehicle, plus all other amounts then due under this Agreement for such Vehicle,
within ten (10) days after the date on which such damage, destruction, or
attachment occurs; (d) an odometer on any Vehicle fails or appears to have been
tampered with and is not repaired within two weeks; (e) Lessee or any guarantor
dies, becomes insolvent or ceases to do business in the ordinary course, or
suffers a material adverse change in its management or ownership; (f) a petition
in bankruptcy is filed by or against Lessee or any guarantor, or Lessee or
guarantor admits its inability or is unable to pay its debts as they come due,
or a receiver or trustee is appointed for Lessee or any guarantor; (g) any
guarantor, surety or endorser for Lessee defaults on any obligation or liability
to Lessor; (h) Lessee or any guarantor shall default with respect to any
agreement with, or obligation to, any other party for the payment of borrowed
money, contractual obligation, or rent, and such default exceeds an aggregate
amount of One Million Dollars ($1,000,000); (i) any representation or warranty
made by Lessee or any guarantor in any of the Lease Documents or any information
delivered by Lessee or any guarantor in obtaining or hereafter in connection
with the credit evidenced by this Agreement is materially incomplete, incorrect
or misleading as of the date made or delivered; (j) the consolidation or merger
of Lessee or guarantor with any other person or entity, or the taking of any
action by Lessee or any guarantor towards a dissolution, liquidation,
consolidation, or merger; and (k) the sale or transfer (voluntarily or by
operation of law) by Lessee or any guarantor of all or substantially all of
Lessee's or any guarantor's assets to any person or entity.
16. WAIVER OF DEFAULTS: Lessor may, in its sole discretion, waive an Event of
Default or permit a cure of an Event of Default, at Lessee's sole expense. Any
such waiver will not constitute a waiver of any other Events of Defaults or a
waiver of the same type of an Event of Default at another time.
17. REMEDIES: Whenever an Event of Default has occurred under this Agreement,
Lessor will have all the rights and remedies provided by this Agreement, the
UCC, and other applicable law. Lessor's rights and remedies are cumulative. At
the option of Lessor, with or without notice, Lessee's rights to the Vehicles
may be canceled and all rental payments and other amounts owed under this
Agreement will be immediately due and payable in full, together with all costs
and expenses, including attorneys' fees, incurred by Lessor in the enforcement
of its rights and remedies under this Lease. Lessor may take possession of any
Vehicles (with or without legal process) and, to the extent permitted by law,
may enter any locked or unlocked premises for that purpose. Lessor may, at its
option, sell, lease, or otherwise dispose of any or all of the Vehicles after it
obtains possession. Upon such sale, Lessee will pay to Lessor immediately, as
liquidated damages for loss of bargain and not as a penalty, the amount by which
the Stipulated Loss Value exceeds the net sales proceeds of such Vehicles in
addition to all other amounts due. If any Vehicle is not immediately returned to
Lessor, or if Lessor is prevented from retaking possession, Lessee will pay
Lessor immediately the Stipulated Loss Value for such Vehicle as of the date
rental payments are next due, in addition to all other owed charges. Lessor may
at its sole discretion seek remedies with respect to Lessee's obligations on
some or all of the Schedules without diminishing Lessor's rights to separately
or later pursue remedies on any of Lessee's other obligations. To the extent
permitted by law, Lessee waives all other remedies, including specific
performance, the right to deduct damages from current amounts due, and all
indirect, consequential, punitive, and incidental damages.
18. STATUTE OF LIMITATIONS: Any action by Lessee against Lessor under this
Agreement shall be commenced within one (1) year after any such cause of action
accrues.
19. SURVIVAL: The representations, warranties, and covenants of the Lessee in
this Agreement shall survive the execution and delivery of this Agreement
20. INTEGRATION, ENTIRE AGREEMENT: This Agreement and the Schedules attached
hereto constitute this agreement and understanding of Lessor and Lessee and
supersede all prior representations, warranties, agreements, understandings, and
negotiations. Acceptance of late payments shall not waive the TIME IS OF THE
ESSENCE PROVISION, the right of Lessor to require that subsequent payments be
made when due, or the right of Lessor to declare an Event of Default if
subsequent payments are not made when due.
21. COSTS, EXPENSES, AND FEES: In the event of any dispute between the parties,
the prevailing party in such dispute shall recover from the other all fees and
expenses (including reasonable attorney's fees and expenses) incurred in
connection with such dispute, regardless of whether litigation is instigated.
22. SEVERABILITY: If any provision of any of this Agreement if unenforceable,
such provision shall be modified to the minimum extent possible to make such
provision enforceable and the enforceability of the other provisions of this
Agreement shall not be affected.
23. CHOICE OF LAW: This Agreement shall not be effective until accepted by
Lessor at its North Carolina headquarters and shall be governed by the
substantive (and not choice of law or conflicts) laws of the State of North
Carolina.
24. TIME IS OF THE ESSENCE: Time is of the essence with regard to each provision
of this Agreement as to which time is a factor.
25. NOTICES AND DEMANDS: All demands or notices under this Agreement shall be in
writing (including without limitation, telecopy or facsimile, receipt confirmed)
and mailed, telecopied, or delivered to the address previously specified in
writing by the party to whom such notice is being given. Any demand or notice
mailed shall be mailed first-class mail, post-prepaid, return-receipt requested.
Demands or notices shall be effective upon the earlier of (i) actual receipt by
the addressee or (ii) the date shown on the return receipt, fax confirmation, or
delivery receipt.
26. RESCISSION OR RETURN OF PAYMENTS: If at any time, all or any part of any
amount received by the Lessor under this Agreement, must or is claimed to be
subject to avoidance, rescission, or return to Lessee or any other party for any
reason whatsoever, such obligations and any liens, security interests and other
encumbrances that secured such obligations at the time such avoidance,
rescission, or returned payment was received by Lessor shall be deemed to have
continued in existence or shall be reinstated, as the case may be, all as though
such payment had not been received.
27. HEADINGS: The headings at the beginning of sections of this Agreement are
solely for convenience and d not modify any sections.
28. NUMBER AND GENDER: The singular shall include the plural and vice versa and
each gender shall include the other genders.
29. MULTIPLE FINANCE ACCOMMODATIONS: If Lessee has more than one lease or other
finance accommodation with Lessor, Lessee agrees that (i) this Agreement and the
documents relating to such other finance accommodation shall all remain in
effect and neither shall supersede the other, regardless of whether
this Agreement and such other financing documents have differing terms,
conditions, and requirements; and (ii) regardless of any such differences,
Lessee shall comply with all of the terms, condition, and requirements of this
Agreement and of such other financing documents
30. WAIVERS: Lessee waives, to the fullest extent permitted by law, presentment,
notice of dishonor, and all other notices of demands of any kind (except as
otherwise expressly provided in this Agreement).
31. AMENDMENT OR MODIFICATION: No term or provision of this Agreement maybe
amended, waived, modified, discharged, or terminated orally but only in writing,
executed by the parties. By executing this Agreement, Lessee agrees to be bound
by the terms of this Lease and, to the extent applicable, the provision
concerning a separately signed document pursuant to UCC Section 2A-208 has been
satisfied.
Dated: As of the 23rd day of January, 1997.
LESSEE: VOLVO TRUCK FINANCE NORTH AMERICA, INC.
Western Express, Inc. 7823 National Service Road
P O Box 26131
Greensboro, North Carolina 27402-6131
/s/ James Wieck /s/ Lee C. Huss
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By (Signature) By (Signature)
Sec. Manager, Customer Accounts
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