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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 wi
