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EXHIBIT 10.15
TIP
A GE CAPITAL COMPANY
VEHICLE LEASE AGREEMENT NO.OE-146
This Vehicle Lease Agreement (the "Agreement") is made as of
7/25/2002 by and
between Transport International Pool, Inc., a Pennsylvania
corporation, with
offices at 426 W. Lancaster Avenue, Devon, Pennsylvania 19333
("Lessor") and
WESTERN EXPRESS, a TN CORPORATION ("Lessee"), with offices at
7135 CENTENNIAL
PLACE NASHVILLE, TN, TN 37209, for the vehicles set forth on
Schedule AB hereto
(the "Vehicles") In consideration of the promises and covenants
herein contained
the parties hereto agree as follows:
1. VEHICLES. Lessor hereby agrees to lease to Lessee and Lessee
hereby agrees to
lease from Lessor the Vehicles for the Lease Term set forth on
Schedule AB.
2. TERM. The Lease Term, as set forth on Schedule AB, shall
commence on the
first day of the month subsequent to the earlier of (a) delivery
of all of the
Vehicles or (b) three (3) days following written notice to
Lessee that all
vehicles are available for delivery hereunder. Each Vehicle
delivered to Lessee
prior to the commencement of the Lease Term shall be subject to
the terms and
conditions of this Agreement as of the date of delivery (the
"Vehicle Delivery
Date"). Lessee's rent obligation as to any vehicle shall
commence on the earlier
of the Vehicle Delivery Date of three (3) days following written
notice to
Lessee that the Vehicle is available for delivery.
3. DELIVERY. Lessor shall deliver to Lessee and Lessee shall
accept delivery of
each Vehicle at the Delivery Location set forth on Schedule AB.
Upon delivery,
Lessee or its agent shall sign Lessor's Standard Lease Agreement
which shall be
used solely for the purpose of identifying the Vehicles,
establishing the
Vehicle Delivery Date and documenting Vehicle condition.
4. MAINTENANCE.
A. At Lessor's expense, Lessor shall:
1 Inspect, lubricate, and provide maintenance for normal wear
and tear
as reasonably required to maintain each Vehicle in good
repair,
mechanical condition and running order;
2 Replace tires and brakes on each Vehicle in accordance with
Federal
and state vehicle safety regulations.
B. At Lessee's expense, Lessee shall:
1 Deliver to the maintenance location set forth on Schedule AB
(the
"Maintenance Location") each Vehicle requiring inspection, tire
or
brake replacement, alignment, maintenance, or repairs required
to be
performed by Lessor;
2 Provide daily safety inspections of each Vehicle and maintain
proper
axle lubricant levels, tire inflation and repair, brake
operation
and lighting including bulbs and lens replacement;
3 Maintain each Vehicle in the same condition as when
delivered,
excepting normal wear and tear, making all necessary repairs
and
replacements in compliance with all manufacturers' standards
relating thereto, using only new parts;
4 Reimburse Lessor for tires damaged by improper inflation,
impact
breaks or running flat; and
5 Pay Lessor the fair market value of tires supplied or paid for
by
Lessor that are not returned with the Vehicles.
5. DISABLED AND SUBSTITUTE VEHICLES.
A. In the event that any Vehicle shall be unavailable to Lessee
due
to a malfunction for which Lessor is responsible as provided
herein (a "Disabled
Vehicle"), Lessee shall return the Vehicle to the Maintenance
Location for
repair. If the disability is such that the Disabled Vehicle
cannot be returned
to such location, Lessor shall direct Lessee to a repair
facility of Lessor's
choosing. In the event that the required repairs are Lessor's
responsibility,
Lessor shall authorize said repairs and issue a purchase order
therefor. Lessee
shall not purchase replacement tires for Lessor's account or
charge Lessor for
any expense except upon Lessor's prior written consent. Lessor
reserves the
right to change the Maintenance Location upon thirty (30) days
notice to Lessee.
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B. In the event that any Disabled Vehicle cannot be repaired
within
three (3) business days after delivery to the Maintenance
Location or receipt of
the notice set forth above, Lessor shall make available a
standard substitute
Vehicle without modifications of approximately similar size and
capability (the
"Substitute Vehicle") at a location of Lessor's choosing. The
Substitute Vehicle
shall be subject to the terms and conditions of this Agreement
and shall be
returned to the same location within three (3) business days of
notice that the
Disabled Vehicle has been repaired, after which time Lessee
shall pay lease
charges on the Substitute Vehicle at Lessor's standard card
rates. Lessor shall
incur no liability if it cannot supply a Substitute Vehicle and
Lessee's sole
remedy shall be abatement of rent. Lease charges applicable to
the Disabled
Vehicle shall abate during the period commencing twenty-four
(24) hours
following delivery thereof to the Maintenance Location or
receipt of the notice
set forth above and ending on the earlier of the delivery of the
Substitute
Vehicle to Lessee or three (3) business days following notice to
Lessee by any
means that the original Disabled Vehicle is available.
C. In the event that a Vehicle shall become totally
destroyed,
stolen or otherwise unavailable to or unusable by Lessee for the
balance of the
Lease Term, Lessee shall provide notice thereof to Lessor.
Billing shall
terminate upon Lessor's receipt from Lessee of 115% of the Far
Market Value of
the Vehicle ("FMV") prior to damage, destruction or loss, plus
any additional
payments representing the unamortized portion of expenses
associated herewith
for such Vehicle. At its sole option, Lessor may provide a
permanent Substitute
Vehicle for the balance of the Lease Term. The lease rate for
said permanent
Substitute Vehicle may be increased over the rate applicable to
the terminated
Vehicle for specific expenses that must be recovered over the
shortened term of
the Agreement.
D. FMV shall be determined by Lessor to be the value that would
be
obtained in an arm's-length transaction between an informed and
willing buyer
and seller under no compulsion to sell and, without regard to
drayage costs.
6. USE AND OPERATION. Lessee warrants that: (a) the Vehicles
shall be used only
in the Continental United States and Canada and only for the
transportation
and/or storage of (the "Products"); (b) the Vehicles shall not
be operated by
any person other than agents or employees of Lessee, each
warranted to be a
careful, dependable operator not operating under the influence
of alcohol or
drugs, with a valid license to operate such Vehicles; (c) Lessee
shall use each
Vehicle designated as a storage Vehicle for storage purposes
only; (d) Lessee
shall comply with all current and future statutes, regulations,
rules,
ordinances and orders of any governmental or quasi-governmental
entity,
including without limitation environmental statutes,
regulations, rules,
ordinances and orders, affecting the use, operation or
maintenance of the
Vehicles (collectively "Applicable Laws"); (e) Lessee shall
comply with the
Vehicle manufacturer's loading limitations and avoid abusive
handling and
concentrated or excessive loads; and (f) Lessee shall provide
Lessor with any
Vehicle operation data as may be required by any governmental
agency and such
data shall be true and accurate. Lessee shall not use or permit
any Vehicle to
be used for third-party advertising purposes without Lessor's
prior written
consent. Lessee shall not remove any advertising placed by
Lessor on any Vehicle
without lessor's prior written consent.
7. HAZARDOUS MATERIALS.
A. Lessee shall not transport, load or store in or on any
Vehicle any
ultrahazardous materials, medical wastes, hazardous wastes,
infectious
materials, poison gases, radioactive materials, or explosives
(collectively
"Ultrahazardous Materials"). If Lessor determines that Lessee
has used the
Vehicle for such purposes, Lessor, in its sole discretion, may
require Lessee to
purchase the Vehicle at 115% of such Vehicle's FMV prior to use
for such
purposes.
B. If any Vehicle is damaged, contaminated, stained, soiled or
tainted as a
result of transporting, loading or storing Ultrahazardous
Materials or any other
substances, Lessee shall promptly restore such Vehicle to its
condition on the
Vehicle Delivery Date and, if decontaminated, provide proof of
such
decontamination including, without limitation, methodology and
pre and post
decontamination sampling results. Lessor, in its sole discretion
and at Lessee's
sole cost, may have any Vehicle inspected and tested for any
hazardous substance
or material by any inspector of Lessor's choosing. If Lessee
fails to restore
any damaged, contaminated, stained, soiled or tainted Vehicle
within seven (7)
business days of Lessor's demand therefor, Lessor may at its
sole discretion (i)
require Lessee to purchase the Vehicle at 115% of such Vehicle's
FMV prior to
use for such purposes or (ii) restore such Vehicle and invoice
Lessee for costs
incurred.
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8. HOLD HARMLESS. Lessee shall indemnify and hold Lessor
harmless from; (a) any
loss or damage Lessor may sustain as a result of any damage to
or loss of any
Vehicle due to any cause, including without limitation
collision, fire,
lightning, theft, explosion, flood, windstorm or Act of God; (b)
any loss or
damage Lessor may sustain as a result of the death or injury to,
or damage to
the property, including cargo, of any person as a result, in
whole or in part,
of the use or condition of any Vehicle; (c) any loss, claim,
liability, damages,
expense or disbursement, penalty or fine, disposal, remediation
or corrective
action cost, or forfeiture or seizure that may arise in whole or
in part from
the use or condition, actual or alleged, of any Vehicle or the
failure, actual
or alleged, of Lessee to use and maintain any Vehicles as
provided under this
Agreement and in compliance with Applicable Laws, unless such
loss or damage
arises from Lessor's gross negligence; (d) any claim, lien or
liability arising
from work performed or for materials supplied in connection with
the operation
or maintenance of any Vehicle.
9. INSURANCE. Lessee shall at its sole cost and expense procure,
and keep in
full force and effect from the initial Vehicle Delivery Date
until the return of
all Vehicles, valid and pre-paid Commercial Auto Liability
insurance and
Commercial Auto Physical Damage or Trucker's Liability insurance
and Trucker's
physical damage policies satisfactory to Lessor with coverage
for; (a) hired
autos (trailers) for bodily injury and property damage
liability, with a minimum
combined single limit of one million dollars ($1,000,000) per
occurrence or, if
any Vehicle is used to haul or store acceptable hazardous
materials, a minimum
combined single limit of five million dollars ($5,000,000) per
occurrence and
either an Environmental Impairment Liability or Pollution
Liability endorsement
equal to the combined single limit per occurrence or a separate
policy for
Environmental Impairment Liability or Pollution Liability with a
minimum
combined single limit of five million ($5,000,000) per
occurrence; (b) hired
autos (trailers) for physical damage providing collision and
comprehensive
coverage with limits equal to the fair market value of the
Vehicles with Lessor
as loss payee; and (c) Commercial General Liability for
contractual liability
coverage for hold harmless agreements, with a minimum combined
single limit of
one million dollars ($1,000,000) per occurrence. If the Vehicles
are used solely
for stationary storage of non-hazardous materials, Lessee may
provide only the
coverage set forth in subparagraph (c) hereof. If the Vehicles
are used solely
for stationary storage of acceptable hazardous materials, Lessee
may provide
only the coverage set forth in subparagraph (c) with a combined
single limit of
five million dollars ($5,000,000) per occurrence and either an
Environmental
Impairment Liability or Pollution Liability endorsement equal to
the combined
single limit per occurrence or a separate policy for
Environmental Impairment
Liability or Pollution Liability with a minimum combined single
limit of five
million ($5,000,000) per occurrence. Each of the foregoing
liability policies
shall name Lessor as an additional insured. All policies
required herein shall
require written notice to Lessor at least thirty (30) days prior
to cancellation
or material change. Lessee shall provide Lessor with prompt
written notification
of any accident or other event involving any Vehicle that may
give rise to
claims against Lessor. Lessee shall deliver to Lessor valid
certificates of
insurance evidencing that insurance coverage in compliance with
this Section 9
is in force. The first such certificate shall be delivered
within 21 days of the
initial Vehicle Delivery Date and thereafter a renewal
certificate shall be
delivered prior to expiration of the then outstanding
certificate. Failure by
Lessor to demand or collect any such certificate shall not waive
its rights
under this Section 9 or any other provision of this
Agreement.
10. VEHICLE PROTECTION PLAN. If Lessee accepts the Vehicle
Protection ("VP")
Plan and pays all required charges within 28 days of each
invoice date, Lessee
shall not be liable to Lessor for loss or damage to any Vehicle
arising from
collision, fire, lightning, theft, explosion, flood and
windstorm in excess of
the VP Deductible per Vehicle, unless such loss or damage arises
from
non-compliance with Lessee's obligations under this Agreement,
and Lessee shall
not be required to provide comprehensive insurance coverage for
physical damage
to the Vehicles. The VP Plan shall not be applicable to; (a)
tire and/or wheel
theft, unless the trailer is stolen; (b) tire damage unless the
tires are
damaged as a result of a collision; (c) collision with a road
surface, ground or
any part thereof; (d) Vehicle upset due to load shift, improper
operation or
jackknife; (e) floor damage resulting from improper loading or
unloading of the
Vehicle; (f) damage caused by a tractor/trailer coupling or
lifting operation;
or (g) damage caused by the hauling of hazardous or
Ultrahazardous Materials.
Lessee shall indemnify and hold Lessor harmless from and against
all losses,
damages and expenses not covered by the VP Plan LESSEE
ACKNOWLEDGES THAT VP IS A
DAMAGE WAIVER PROGRAM, NOT INSURANCE COVERAGE. Lessee shall
report any loss or
damage to which the VP waiver is applicable to Lessor wit
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