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Kevin P. Whiteford, CSBN: 142916
WHITEFORD LA W
900 Howe Ave., Suite 250
Sacramento„CA 95825
Telephone: (916) 446-0790
kw(u.',swll ilaw.com
Attorneys for Plaintiff
BANC OF AMERICA LEASING &
CAPITAL, LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF KERN
10 BANC OF AMERICA LEASING k) CASE NO. BCV-23-103301
CAPITAL, LLC, ) Unlimited Civil
)
Plaintiff, ) DECLARATION OF IRENE D. GARZA
12 ) PURSUANT TO CODE OF CIVIL
vs. ) PROCEDURE SECTION 585(d)
13 )
H S BROTHERS EXPRESS INC.; HARJIT )
SINGH; and DOES 1 through, 50 inclusive, )
)
Defendants. )
)
17
18 I, Irene D. Garza, declare:
1. I am the Senior Vice President, Leasing Credit Manager and GVF Collection Manager
20 for Plaintiff Banc of America Leasing k Capital, LLC (hereinafter "BALC") responsible for the
21 contract that is the subject of the above-captioned case. I have worked for BALC more than 20 years,
22 and from my training and work experience with BALC, I have personal knowledge of the processes
23 and procedures used by BALC to evaluate and determine finance contract applications, document
transactions, document payments on accounts, document BALC's purchase and delivery of financed
equipment, document recovery of financed equipment, document communications with customers,
track payments and other charges due on accounts, and document attempts to collect delinquent
27 accounts. I have personal knowledge of the facts stated herein, and if called upon to do so, I could
28 and would testify competently thereto.
DIIO. 0F IRRRL'. GARzA PURsUARl ro CCP 585(d) Banc of'America Leasing, etc. vs. HS Brothers, etc., et ah
1. Case Number BCV-23-103301
2. I am an authorized custodian of the business records maintained by BALC with
respect to the loan agreement which is the subject of this action, Secured Promissory Note for
Customer No. 7738354 dated April 30, 2021 (hereinafter referred to as the "Note" ), which is also
identified in BALC's records as Account Number 588-9235796-000. I am generally familiar with
the process by which BALC creates and maintains records relating to its loans, and the obligations
of the borrowers thereunder. All records and writings maintained by BALC with respect to the Note,
and which are attached hereto, were made in the regular course of BALC's business. All records or
information maintained by BALC in connection with the subject Note and attached hereto were made
at or near the time of the act, condition, or event reflected in such document, and were created or
10 recorded by a BALC employee with a business duty to perform such tasks. I have reviewed the
records maintained by BALC in connection with the Note, and based on such review and my personal
12 knowledge, I make this declaration.
3, On April 30„2021„HS Brothers Express, Inc. (hereinafter "HS Brothers"') executed
and entered into the Note with Volvo Financial Services„a division of VFS US LLC (hereinafter
"VFS"). Pursuant to the Note, VFS agreed to finance HS Brothers's acquisition of two commercial
Volvo model VNL64T860 trucks identified in the Note (hereinafter referred collectively to as the
"Equipment" ) for HS Brothers's business. A true and correct copy of the Note is attached hereto as
18 Exhibit A and incorporated herein by this reference.
19 4. As part of the Note transaction, on April 30, 2021, Defendant Harjit Singh executed
20 a Continuing Guaranty, agreeing to personally guaranty all of HS Brothers's obligations under the
21 Note. A true and correct copy of this Continuing Guaranty (hereinafter the "Guaranty" ) is attached
22 hereto as Exhibit B and incorporated herein by this reference.
23 5. In the Note, HS Brothers confirmed that the Equipment was delivered to HS Brothers
by the vendor on April 30, 2021. Based on this representation, and in compliance with thc terms of
the Note, VFS advanced and paid the cost of the Equipment for HS Brothers,
6. BALC and its predecessor in interest have performed all conditions, covenants, and
promises required of them to be performed, in accordance with the terms and conditions of the Note
28 and Guaranty.
Drc. or IRar a D. CsRZ~~ PoRsossr ro CCP 5S5(d) Banc of America Leasing, etc. vs. H S Brothers, etc., et ah
2. Case Number BCV-23-103301
7. HS Brothers is required by the terms of the Note to repay the Equipment financing
by paying the lender 48 monthly installment payments in the amount of $ 8,157.37 each„plus certain
taxes and charges stated in the Contract. These payments commenced on June 14, 2021.
8. On July 29, 2021, VFS assigned all its right title and interest in the Contract, the
Guaranty, and the Equipment to BALC for good and valuable consideration received. Attached
hereto as Exhibit C and incorporated herein by this reference is a true and correct copy of the
assignment of the Note and Guaranty from VFS to BALC. At the time the Note and Guaranty were
assigned to BALC, HS Brothers's payments under the Note were current through July 14, 2021, there
were 46 payments left to be paid under the Note, and the remaining principal balance of the Note
10 was $ 304,547.6S.
9. The Equipment financed under the Note consisted two Volvo big rig trucks. One of
12 these trucks was a total loss and paid off by insurance in September 2021. On September 27, 2021,
BALC received the insurance payoff amount of $ 175,019.50, cutting the principal balance of thc
Note about in half. As a result of this payment„ the monthly Note payments were reduced to
$ 4,078.68.
10. On February 14, 2023, HS Brothers breached the Contract by failing to pay the
monthly installment payment then due. The last payment made by the Defendants to Plaintiff
18 pursuant to the Contract was a payment received by Plaintiff on February 8, 2023, which paid the
installment payment due January 14, 2023. The Defendants have subsequently failed and refused
20 to make any payments required by the terms of the Contract or Guaranty.
21 11. The documents attached hereto as Exhibit D are true and correct copies of BALC's
22 computer generated Payment History report for the Note from the date of the assignment to BALC
23 forward, as well as a true and accurate Statement of Account showing all amounts owing under the
Note and Guaranty. BALC's Payment History reports arc created as part of BALC's normal record
keeping system by which BALC keeps track of all payments received from each of BALC's
customers. Thc employees who make the entries on these reports do so as a required part of their
jobs. Whenever a payment is received from a customer on a loan contract„ that payment is recorded
28 by BALC's accounts receivable department on the Payment History report for the account within 24
Dec, or Ivei'a D. Gsiizw puRsusxi ia CCV SS5(d) Banc of'tnetica Leasing, etc. is. H S Brothers, etc., et ah
3. Case Number BCV-23-103301
hours of receipt of the payment. The Payment History report attached as part of Fxhibit D shows all
payments received by BALC on the Note. As shown on this report, the last successful payment from
the HS Brothers under the Note was received by BALC on February 8, 2023 (there were several
bounced payments). The Payment History also shows the application of the $ 46,275.00 proceeds of
the sale of the repossessed collateral for the Note as a credit to the HS Brothers's account on July 25,
2023. BALC received no payments under the Note other than those shown on the Exhibit D Payment
History report. As Exhibit D demonstrates, BALC received no payments from the Defendants
coming due under thc Note or Guaranty on or after February 14, 2023. As shown on the Payment
History, HS Brothers made a total of 22 monthly installment payments through February 8, 2023.
10 12. Attached hereto as Exhibit E and incorporated herein by this reference is a true and
correct amortization schedule for the Note (as modified). As indicated in the amortization schedule,
12 after the 22 installment payments received through February 8, 2023, the remaining principal
balance due under the Note was $ 101,458.42.
13. Interest accrued on the unpaid principal balance due under the Note at the contract
rate of 11.09% from the date of the last payment, February 8, 2023. On the $ 101,458.42 remaining
principal balance, this interest accrued at the rate of $ 30.83 per day ($ 101,458.42 x 0.1109 =
17 $ 11,251.74; $ 11,251.74/365 = $ 30.83). BALC was able to recover the remaining truck collateral
18 from HS Brothers, and sell it to reduce the balance due on the Note. BALC received the net proceeds
19 from this sale on July 25, 2023. For the 167 days from February 8, 2023, to July 25, 2023, interest
20 accrued on the Note in the amount of $ 5,148.61.
21 14. The "Prepayment" provision on page 2 of the Note requires HS Brothers to pay a 5%
22 prepayment penalty if the Note is paid off early or HS Brothers defaults on the Note payments.
23 Because HS Brothers defaulted on the Note payments, HS Brothers is required to pay BALC this
prepayment penalty. The 5% prepayment penalty is calculated on the remaining principal balance
of the Note. Here, as stated above„ the principal balance due at the time of HS Brothers's default
was $ 101,458.42. Therefore, HS Brothers is required by thc Note to pay BALC a prepayment
penalty of $ 5,148.61 ($ 101,458.42 x 0.05 = $ 5,148.42).
Drc. or Irrr sr: D. C)srrz r PurrsussT io CCP 585(d) Banc of Atnerica Leasing, ete. Ps. 6S Brothers, etc., et ah
4. Case Number BCV-23-103301
15. Thus, as of July 25, 2023, the Defendants owed BALC $ 111,679.95 on the Note and
Guaranty ($ 101,458.42 principal + $ 5,148.61 accrued interest + $ 5,072.92 prepayment penalty =
$ 1 11,679.95).
16. As already mentioned„BALC was able to repossess the remaining truck collateral for
the Note and sell it to reduce the balance due on the Note. BALC received net sale proceeds of
$ 46,275.00 from the sale of the collateral on July 25, 2023. The $ 46,275.00 net proceeds from the
sale of the collateral reduced the balance owed under the Note and Guaranty on July 25, 2023,
to $ 65,404.95 ($ 111,679.95 - $ 46,275.00 = $ 65,404.95).
17. The "Promise to Pay" provision at the top of page 2 of the Note requires HS Brothers
10 to pay a default rate of interest on any amounts not paid thereunder when due at the default rate of
18% annually. From and after July 25, 2023, interest accrued on the $ 65,404.95 principal balance
due at $ 32.25 per day ($ 65,404.95 x 0.18 = $ 11,772.89; $ 11,772.89/365 = $ 32.25).
18. The "Rights and Remedies of Lender" provision on page 3 of the Note requires the
HS Brothers to pay BALC "s attorneys'ees in any action to enforce the Note. The fifth paragraph
of the Guaranty, likewise„requires the guarantor to pay BALC's attorney's fees in any action to
enforce BALC's rights under that agreement.
17 I declare under penalty of perjury under the laws of the State of California that the foregoing
18 is true and correct. Executed on Februaryg 2024, at Auburn Hills, Michigan.
20 IRENE D. A A
21
22
23
S:V ctivc Files'banc of amcricaut s brothers cxprcsstcoutt docs(ttcfatdt.dcc of Sarza.wpd
27
28
DEc. QF IRENE D. CsARzA PHRsttANT To CCP 585(d) Banc ofAmerica Leasing, etc. vs. HSBt others, etc., et at
5. Case Number BCV-23-103301
VOLVO FINANCIAL SERV S Scour Promissory Note
Customer Name: H S BROTHERS EXPRESS INC Customer No.: 7738354 Dated ns of: 4/30/2021
Description of Equipment Financed (The "Equipment" )
~M VIN/
2022 Volvo VNL64T860 4V4NC9EJ4NN290664
2022 Volvo VNL64T860 4U4NC9EJ6NN290665
*Last 4 numeric characters of serial number for consuuction equipment.
Address where Equipment win be located: Total Trade Value: 0.00
9710 METROPOLlTAN WAY, BAKERSFIELD, CA 93311 Total Trade Liens: 0.00
Interest Rate on Amount Financed: 11.09
Trade in Description:
I. Equipment Cash Sales Price 280,000.00 Borrower agrees to pay the "Total Obbgation" (Item 15) in accordance with the
following schedule (and any additional page(s) of schedule attached or see
Payment Addendum for irregular payments):
2. Net Trade-in Allowance 0.00 No. of Start/Due Payment Amt. Total
(Net Value — Total Liens) Installments Date
3. Subtotal (1-2) 280,000.00 48 06/14/2021 $ 8,157.37 391,553.76
4. Sales Tax 0.00 6, Financed Insurance. If a dollar amount is shown in Item 6, Borrower has
Federal Excise Tax (% of I)
elected to finance certain insurance policies through this Secured Promissory
5, 33,057.96
Note (this "Note" ). The terms of the insurance policies are contained in separate
agreement(s) and Borrower agrees that such agreements are not part of this Note.
6. Financed Insurance 0.00
Guaranteed Auto Ptotection Delivery Date: ~4/ 0/ 0 I
7. 0.00
(GAP) and/or Debt Waiver Bonower represents to Lender that on liv D set forth above Bonower:
accepted delivety of and inspected each item of Equipment; deternuned that each
8, Origination Fees 595.00
i" item of Equipmcnt contains all of the malor components and accessories as agreed;
9. Registration/Title Fees
..'1.00
each item of Equipment is in good working order and condition; and that each item
of Equipment is fit for immediate and contmued use and conforms to Borrower's
10. Other Charges:
requirements without exception.
Other 0.00
Applied Funds - 0.00
Fl Doc Stamp 0.00
TN Record Tax 0.00
11. Total Itemizal Charges 33,733.96
12. Cash Down Payment 0.00
13. Amount Fmanced (3+11~12)ir 313,733.96
14. Interest Charge 77,819.80
15. Total Obligation 391,553.76
Co-Borrower
Borrower: 8 S BROTHERS EXPRESS INC
(if applicable):
Signature (SEAL) Signature (SEAL)
HARJIT SINGH Printed Name:
Name:
Title: President Title:
Borrower(s) Name 41 Address:
Legal Name(s): B S BROTIIERS EXPRESS INC Telephone: 66IA44-4337 Fax:
Street Address (Place of Business): 9710 METROPOLITAN WAY, BAKERSFIELD, CA, 93311 Federal ID ¹ or SSN fn 81-1384958 Co-Boirowen
Mailing Address: 9710 MFTROPOLITAN WAY, BAKERSFIELD, CA, 93311 County: KERN
State of Formation: CA or State of Residence: CA Fmail: NOEMAIL EMAILCOM
See the following pages for additional terms.
I (4) 8493834: TA 148: 9.2020
EXHIBIT A
Lender's Name gd Address:
Name: Volvo Financial Serhyices, a division of VFS US C
Street Address: 7025 Albert Pick Rd. Suite 105, Greensboro, NC 27409
Mailing Address: PO Box 26131, Greensboro, NC 27402-6131
P'remise to na . The above. signed Borrower hhs "Borrower", and ll mors than one, Jol tly and severally, the "Borrower" ) no dltlonally momises to
pay in full to Volvo Financial Services, a division of VFS US LLC, a Delaware limited liability company, {together with its successors encl assigns, the
"Lender""), at 7025 Albert Pick Road, Suite 105, P.O. Box 26131, Greensboro, North Carolina, 274024131, or at such other place as Lender designates in
writing, in lawful money of the United States of America, the principal arnaunt borrowed with interest, the "Total Obligation", as set forth in Item 15 above. In
addition to the Total Obligation, Borrower agrees, under seal, to pay all other amounts owed to Lender under this Note (collectively, the mlndebtsdness") when
due.Principal shall bear interest at the Interest Rate set forth above from the date of disbursement until the applicable due date, whether due by acceleration or
otherwise. Any payment due on a date which is a date when banking institutions are not open to the public in the State of North Carolina shall be due on the
next succeeding date on which such institutions are open. Any Indebtedness not paid when due shall bear interest from the due date or the judgment date, as
applicable, until paid at a rate {the mDefault Rate" ) which is the lesser af (i) eighteen percent (18%) per annum or (ii) the maximum rate permitted under
applicable law. All interest due under the Loan Documents shaN be computed on the basis of a 3604ay year and accrue on a daily basis for the actual number
af calendar days elapsed. Borrower agrees to pay an effective rate of interest that is the sum of (i) the Interest Rate and (ii) the additional rate of interest
resulting from any other charges or fees paid or to be paid in connection with the Loan Documents that are determined to be interest or in the nature of interest.
Rec i nd li f Pa n . Payments shall not be deemed received by I.ender until good funds are actually received by Lender. At the option of
Lender, payments shall be applied to principal, interest, and other Indebtedness in such order as Lender shall determine.
~Pre a rrt~n. Borrower may prepay the outstanding principal balance of this Note, in whole or in part, at any time, provided that as express conditions
precedent to Lender's acceptance of any prepayment, Borrower must: (I) give Lender at least 30 calendar days prior written notice of its intent to make such
prepayment; and (ii) pay to Lender a prepayment premium equal to 5% of the amount of the unpaid balance of the Total Obligation being prepaid (minus
unearned Finance Charges), hand (iii) pay to Lender the amount of the unpaid balance of the Amount Financed being prepaid on such Installment Due Date, the
Installment due on such Installment Due Date, and afi other amounts of the Indebtedness then due and remaining unpaid under the Note. At the option of
Lender, any prepayment of principal shall be applied to payments coming due under this Note in the inverse order of their due dates. In the event of a default
and collection of any amounts subsequent to default, whether or not a payment default has been declared by written notice to Borrower, Borrower shall also be
liable for the prepayment fee and unpaid balance as described above.
~ate jlILrrfiy, If any payment of principal and interest or any other Indebtedness is not received in full by Lender within 15 calendar days after its due date.
then in addition to all other rights and remedies of Lender, a late charge of five percent (5%) of the amount due and unpaid will be charged to Bonower. Such
late charge shall be immediately due and payable upon receipt of written notice from Lender and shall be an "Indebtedness" under this Note.
No Counterclaims Deductions or Offsets. All payments and obligations of Borrower under the Loan Documents will be made and performed without
counterclaim, deduction, defense, deferment, setwif, or reduction.
~Se itrit~lterest. In order to secure (i) payment of the indebtedness, afi other debts and obligations at any time owed by Borrower to Lender or its aiftliates,
and (ii) complete and full performance of any Loan Party's obligations to Lender under the Loan Documents, now existing or at any time entered into, Borrower
hereby grants to Lender a security interest in and to the equipment described above (the "Equipment" ), together with all present and future attachments,
accessions, replacements, parts, proceeds (including insurance proceeds), income, earnings, accounts, rights to payment (including monetary obligations,
whether or not earned by performance), secondary obligations incurred or ta be incurred, chattel paper„electronic chattel paper, general intangibles, payment
intangibles, warranties, service contracts, documents, and records now or hereafter arising from the Equipment (collectively, the "Collateralm). Borrower
agrees that Lender may file UCC financing statements or any other documents necessary to perfect or continue Lender's secunty interest in the Collateral in
any applicable jurisdiction, Borrower further agrees to take all actions, execute all documents and provide all additional information that Lender deems
necessary to perfect or continue its security interest in the Collateral. The security interest shall remain in full effect, without waiver or surrender of any of
Lender's rights hereunder, notwithstanding any one ar more of the following: (I) extension of the time of payment of the whole or any part of this Note; (ii) any
change in the terms and conditions of this Note; (iii) substitution of any other evidence of indebtedness for this Note; (iv) surrender, release, exchange, or
alteration of any Collateral or other security, either in whole or in part; or (v) release, settlement, discharge, compromise, change, or amendment, in whole or in
part, of any claim of Lender against any Loan Party.
ln uran n R' of Loss. All risk of loss, damage or destruction of the Equipment will at all times be on Borrower. Borrower agrees to maintain, at Borrower's
expense: (a) Special Form property insurance, or other insurance acceptable to Lender, protecting the Equipment from loss or damage by fire, theft and other
customary risks for the greater of the Equipment's replacement cost or the Indebtedness with a deductible not to exceed $ 2,500 per item of Equipment, naming
Lender as a loss payee on a "Lender's Loss Payable" endorsement; and (b) liability insurance in an amount not less than $ 1,000,000 per occunence, naming Lender
as an additional insured (collectively, "Requiral Insurance"). Borrower must provide Lender satisfactory written evidence of Required Insurance within 30 calendar
days of the commencement date of this Note, the cancellation or expiration of such Required Insurance, or of any subsequent written request fiom Lender. If
Borrower daes not da so, Lender may obtain insurance from an insurer of Lendefs choosing in such forms and amounts as i ender deems reasonable to protect
Lender*s interests (collectively, BLender's Insurance" ). Lender's Insurance will cover the Equipment and the Lender; it will not name Borrower as an insured and
may not cover all of the BorroweVs interest in the Equipment. Borrower agrees to pay Lender periadic charges for Lender's Insurance (collectively, "Insurance
Charges" ) that indude; a premium that may be higher than if the Borrower maintained the Required Insurance separately; a finance charge of up to 1.5% per month
on any advances made by Lender or Lendefs agents; and commissions, and billing and processing fees; any or afi of which may generate a ptafit to Lender and
Lender's agents. If Borrower fails to provide satisfactory evklence of Required Insurance by the due date, Lender may pay Insurance Charges by debiting Borrower's
account under any previously authorized automatic payment. Lender shall disconteue bilfing or debifing!nsurance Charges upon receipt of safisfactary evidence of
Required Insurance. Borrower shall immediately notify Lender in writing of any damage, theft or kiss to Equipment which makes any item of Equipment unfit for
continued or repairable use. Borrower hereby irrevocably appoints Lender as BorroweVs attorney-in-fact to execute and endorse all checks or drafts in Borrower's
name to collect under any insurance covering the Equipment. Lender may apply insurance proceeds to the indebtedness or any other obligation of Borrower to
Lender as Lender deems appropriate.
B rrower's R resents lons Warrantie nd reements. Borrower represents, warrants, and agrees: (a) that except for the security interest granted to
Lender, the Equipment will remain free from all liens and security interests; (b} that afi information supplied by Borrower in any financial, credit, or accounting
statement to Lender is and will be complete true, correct and genuine, and Borrower consents to the ongoing review of Borrower's credit reports during the term
of this Note; (c) that the Equipment is to be used only for business purposes; (d) that Borrower has full authority to enter into this Note and in so doing it is not
violating any law, regulation or agreement and has taken all necessary and apprapriate actions to make this Note binding and enforceable against Borrower; {e)
to defend at its own cost any action, or claim affecting the Equipment, (f) to maintain the Equipment in good operating condition, repair, and appearance, all in
conformity with all governmental regulations, insurance policies, and any warranties; (g) to promptly pay all taxes, assessments, license fees and other public or
private charges when levied against the Equipment or this Note; (h) to obtain a certificate of title on each item of Equipment showing Lender's first priority
security interest snd to preserve and perfect Lender's secuilly interesl by authorizing Lender to file linancing statements and also execute any required
financing statements; (i) to not misuse, secrete, sell, rent, lend, encumber or transfer any item of Equipment nar permit it to be operated by or be in the
possession of any other party; (j) that Lender may enter any premises at any reasonable times to inspect the Equipment; (k) to not assign or encumber any of
its rights or obligations under this Note; (I) to provide Lender with quarterly and annual financiaI statements upon request of Lender; (m) to reimburse Lender
immediately after written notice for any expenses incurred by Lender to perform any of the obligations of Borrower; and Borrower agrees not ta change its
princI pal place of business, state of formation, or legal name without 30 calendar days prior written notice to Lender; (n} to use or permit the use of each item of
Equipment only in the United States (and, solely in the case of titled Equipment, in Canada for not more than 60 calendar days during any roiling twelve (12)
calendar month period to be determined individually for each item of Equipment) in the ordinary course of its business and in compliance with all applicable
laws and regulations and insurance policies, (o) that the Equipment will not be used to transport environmentally hazardous materials, contaminants, or
waste products, except in compliance with all applicable laws, regulations, and insurance palicles; and (p) if Borrower is an individual, Borrower's legal
2 (4) 6493834: TA 148: 9.2020
name set forth above is identical to the name a g on Borrower's most recent, unexpired driver's sued by the state of his/her principal residence
'nd Borrower provide Lender with written not~thin 30 calendar days of any change Borrower's fu
will in
li
al name as shown on any licenses issued by the
state of his/her principal residence subsequent to the date of this Note; (q) that neither the Borrower nor any of its direct or indirect owners is directly or
indirectly controlled by any sanctioned person or entity, as described in any regulation, order, or guidance issued by the U.S. Department of Treasury"s Office of
Foreign Assets Control or any other U.S. government entity. Borrower acknowledges that Lender, in compliance with federal law, will be verifying certain
information about Borrower. Borrower also certifies that neither it nor any of its direct or indirect owners engages in any transactions prohibited by any U.S.
laws; and (r) it will not interfere with the operation of any telematics system in any Equipment and that Lender may monitor or access the Equipment utilization,
location and other information or reports contained in or generated by any such telematics system to ensure compliance with this Note, or for any other lawful
purpose, and may use any telematics system or information generated by the telematics system to locate the Equipment in the event of default under this Note.
gy~f~fl . Each of the following shall constitute an "Event of Default" which will allow Lender to exercise all of its rights under this Note and
appficable law: (a) any Loan Party (each such other person that firom time to time is obligated to Lender under any of the Loan Documents and/or executes any
guaranty, surety, or any or all of the obligations pursuant to the Loan Documents, or any endorser for the Borrower, together with Borrower, the "Loan Parties"
and individually a "Loan Party" ), fails to make any payment in full when due under any Loan Document; (b) the occurrence of an Event of Default under any
Loan Document or the default by any Loan Party of any obligation or liability to Lender; (c) the failure by any Loan Party to perform any obligation not involving
the payment of money, or to comply with any other term, condition, provision, covenant, or warranty applicable to such Loan Party under any of the Loan
Documents and such obligation, term, condition, provision, covenant, or wananty remains unsatisfied after 10 calendar days'ritten notice to such Loan Party;
(d) any representation or warranty made by any Loan Party in any of the Loan Documents or otherwise or any information delivered by any Loan Party in
obtaining or hereafter in connection with the credit evidenced by any Loan Document is materially incomplete, incorrect, or misleading as of the date made or
delivered; (e) any Loan Party becomes insolvent, is unable or admits in writing its inability to pay its monetary obligations as they become due, makes a general
assignment for the benefit of creditors, or applies for or acquiesces in the appointment of a trustee, receiver, or other custodian for such party or any of its
assets or property, or a trustee, receiver, or other custodian is appointed for any Loan Party or any of its assets or property; (I) commencement of any case
under the Bankruptcy Code (Title 11 of the United States Code) or any similar proceeding under any federal, stats, or foreign law by or against any Loan Party;
(g) the death, incompetence, dissolution, or liquidation of any Loan Party, the consolidation or merger of any Loan Party with any person or entity, or the taking
of any action by any Loan Party toward any dissolution, liquidation, consolidation, or merger (regardless of whether such actions occur voluntarily or by
operation of law); (h) any Loan Party ceases to do business in the ordinary course or suffers a material adverse change in its management or ownership; (i) the
sale, assignment, or transfer of all or substantially all of its assets by any Loan Party (regardless of whether such action occurs voluntarily or by operation of
law) without the consent of Lender; (j) any Loan Party, or any other person acting on behalf of such Loan Party, claims that any Loan Document or any lien or
security interest is not legal, valid, binding, or enforceable against any Loan Party, or that the priority of any lien or security interest securing any of the
Indebtedness is different than the priority represented and warranted in the Loan Documents; (k) any Loan Party shall be in default with respect to any
agreement with or obligation to any other party for the payment of borrowed money, contractual obligation, or rent, in excess of $ 1,000,000; or (I) the occurrence
of any condition or event that is a default or is designated as a default, event of default, or Event of Default in any other agreement, contract, or indebtedness of
any Loan Party to Lender or to any affiliate of Lender.
Ri hts and Remedies f Lender. Whenever an Event of Default has occurred under this Note and at any time thereafter, Lender will have afi the rights and
remedies provided by this Note, the Uniform Commercial Code ("UCC"), and other applicable law. At the option of Lender, with or without notice, any or all of
the Indebtedness then owing under this Note will be immediately due and payable in full, together with all costs and expenses, including attorneys'ees,
incurred by Lender in the enforcement of its rights and remedies under this Note. Borrower acknowledges that this Note is a "business contract" as that term is
used under N.C.G.S. $ 6-21.6 or any successor thereto. Lender may, without notice or demand or legal process, take possession of the Collateral wherever
found and, for this purpose, may enter upon the locked or unlocked property occupied or under the control of Borrower. Lender may require Borrower to
assemble the Collateral and make it available to Lender at a place to be designated by Lender. Lender, at the expense of Borrower, may make repairs deemed
necessary or desirable to the Collateral. Lender shall not be responsible for any injury or loss to the Collateral unless caused by the willful wrongful acts or
omission of Lender while the items of Collateral are in Lender's possession. Lender may, with or without obtaining possession of the Collateral or any part
thereof, sell the same at a public or private sale in the wholesale or retail market, lease, or otherwise dispose of any or all of the Collateral with or without notice
to the Borrower. Borrower agrees that the items of Equipment are of a type customarily sold in recognized markets within the meaning of the UCC. Lender may
also adverlise and sell the Equipment through internet websites through which equipment similar to the Equipment is sold, and such disposition shall be
deemed in conformity with reasonable commercial practice among dealers of the type of properly that was the subject of the disposition. At any sale or
disposition, Lender may accept a trade of properly for all or any portion of the sales price. As permitted by applicable law, Lender may, at any sale, public or
private, of the Collateral, purchase any or ail of the Collateral offered at such sale. The proceeds of any sale or sales, after deducting all expenses of Lender in
taking, storing, repairing, and selling the Collateral (including reasonable attorneys'ees and legal expenses) shall be applied to the payment of any part or all of
the Indebtedness and any other indebtedness or liability of Borrower to Lender, and any surplus thereafter remaining shall be paid to Borrower or to any other
person that may be legally entitled to such surplus. Lender shall be under no duty to select any items of Collateral over any other items or to sell the items of
Collateral pro rata or in any order but may select and sell such items as Lender may determine. Lender may, at its option, and without any obligation to do so,
pay, perform, and discharge any and all amounts, costs, expenses, and liabilities herein agreed to be paid or performed by Borrower, and all amounts so
expended by Lender shall become part of the Indebtedness secured by the Collateral and shall be immediately due and payable by Borrower upon demand and
shall bear interest at the Default Rate. Lender may pursue any legal remedy available to collect all Indebtedness and to enforce its rights in the Collateral.
Lender may exercise any or all other rights and remedies concurrently or consecutively in such order as Lender elects without diminishing Lender's rights to
later pursue remedies on any of Borrower's other obligations. Such rights and remedies shall be cumulative and nonwxclusive and shall inure to the benefit of
Lender and its successors and assigns. Neither the action nor failure of Lender to take any of the actions or exercise any of the rights or remedies granted to
Lender in this Note shall be construed to be a waiver of any of the rights or remedies of Lender. In Lender's exercise of the powers granted by Borrower under
this Note, no liability shall be asserted or enforced against Lender except for Lender's willful wrongful acts, and Borrower expressiy waives and releases Lender
from all other such claims or liabilities. To the extent permitted by law, Borrower waives all other remedies, including specific performance, the right to deduct
damages from current amounts due, and all indirect, consequential, punitive, and incidental damages.
~Bin in I EfffiE(. This Note shall be binding upon Borrower and its permitted successors and assigns and inure to the benefit of Lender and its successors and
assigns Lender may from time to time assign or transfer its rights and/or delegate its obligations under the Loan Documents in whole or in part and without
notice to or the consent of any Loan Party, Borrower may not assign or transfer its rights or delegate its obligations under this Note, in whole or in part, unless it
obtains Lender's prior written consent to such assignment, transfer or delegation; provided that such consent shall be in the Lender's sole discretion. In
addition and as permitted under applicable law, NO LOAN PARTY SHALL ASSERT AGAINST ANY ASSIGNEE OR TRANSFEREE OF LENDER ANY CLAIMS
OR DEFENSES SUCH LOAN PARTY MAY HAVE AGAINST LENDER.
x Fe s. Borrower agrees to pay on demand all reasonable external and internal costs, expenses, and fees (inctuding reasonable
uccess r'i
attorneys'ees and expenses) of Lender in enforcing the Loan Documents and the nghts and remedies of Lender regardless of whether any legal action or
proceeding is instigated. Borrower agrees that any origination fees may be shared with or rebated to the selling dealer. Such costs, expenses. and fees shall
constitute an "Indebtedness" under the Loan Documents.
ns, All of the terms and provisions of this Note shall apply to, bind and inure to the benefit of the successors and assigns of Borrower
(but this shall not permit any assignment prohibited hereby) and Lender. In the event Borrower is composed of more than one party, the obligations, covenants,
agreements, and warranties contained herein as well as the obligations arising therefrom are and shall be joint and several as to each such party.
~Spy&illiy. If any provision of this Note is 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 Note shall not be affected.
~gb l sofLs . TmsNoteshsttbesgsmtyeontywhsnacceotsdbyte d ra dshallbego emedbya dco strcadt accords cs 'Ihca laws ofthebl l of
North Carolina without regard to any conflict of law or similar provisions. This Note is intended to be effective as a contract or instrument executed under seal.
Notices an 0 mand . All demands or notices under this Note shall be in writing (including, without limitation, facsimile - receipt confirmed) and mailed,
emailed, faxed, or delivered to the address specified in this Note or in writing by the party to which such notice is given. Any demand or notice mailed shall be
3 (4} 8493834: TA 148: 9.2020
mailed"first class mail, post-prepaid, return-re uested. Demands or notices shall be effective u earlier of (i) actual receipt by the addressee, or
*
con~n,
(ii) the date shown on the return receipt, fax or delivery receipt.
R scission or Re ur f Pa en . If at any time or from time to time, whether before or after payment of the Indebtedness and performance of the
obligations in full, afi or any part of any amount received by the Lender as payment of an Indebtedness, must or is daimed to be subject to avoidance,
rescission, or return to Borrower or any other party for any reason whatsoever, such Indebtedness and any liens, security interests, and other encumbrances
that secured such Indebtedness at the time such avoidance, rescission, or returned payment was received by Lender shall be deemed to have continued in
existence or shafi be reinstated, as the case may be, all as though such payment had not been received.
Wars. Borrower waives, to the fullest extent permitted under applicable law, the right to assert any statutes of limitations as a defense to any of its
Indebtedness or obligations. Borrower waives, to the fullest extent permitted by law, presentinent, notice of dishonor, protest, notice of protest, notice of intent
to accelerate, notice of acceleration, and all other notices or demands of any kind (except notices specificafiy provided for in the Loan Documents), and (ii)
agrees that Lender may enforce this Note and any other Loan Documents against Borrower without first having sought enforcement against any other Loan
Party or any collateral secuding the Indebtedness.
Signatures in Global and National Commerce Act, any version of the Uniform Electronic Transactions Act or any other statute governing electronic transactions
(mElectronic Signature" ). Electronic Signature shall include i.oan Documents executed and delivered by photocopy, facsimile or electronic or digital signature
(including ernailed .pdf files), any of which shall be treated as an original and deemed fully binding on the parties to the same extent as original signatures.
Multiple signatures to this Note delivered separately shall constitute one original Note. By submitting an Electronic Signature on any Loan Document, Borrower
agrees (a) that Borrower consents to the use of Electronic Signatures in these Loan Documents; (b) that any of these Loan Documents in electronic form or
executed with an Electronic Signature are (i) fully enforceable and (ii) fully admissible in any legal proceeding; (c) that Borrower's Electronic Signature is
intended to authenticate this writing and have the same force and effect as Borrower's handwritten signature and (d) that reference to "signatures" in the Loan
Documents shall refer to any form of signature, whether handwritten or electronic. Lender may rely on the electronic mail address provided for each Borrower as
being conclusively controlled by and accessible to that Borrower for the purpose of delivering, receiving and executing the Loan Documents with Electronic
Signatures. Borrower agrees that no certification or other third-party verification is necessary to validate any Electronic Signature of Borrower and that the lack
of such certification or third-party verification will not in any way impact the enforceability of any Electronic Signatures or any resulting agreement between
Borrower and Lender. Borrower agrees that this Note and any other Loan Documents, if/when manually countersigned by Lender or attached to Lender's
original signature counterpart and/or in Lender's possession, shall constitute the sole original chattel paper as defined in the UCC for afi purposes and will be
admissible as legal evidence thereof. Lender may designate, at its discretion, one authoritative copy of the Loan Documents, which may be hekl in electronic or
physical form in the ordinary course of business ("Authorltathre Copy" ). If the Authoritative Copy resides in a document management system designated by
Lender for the storage of authoritative copies of electronic records, Lender or its assigns may convert the Authoritative Copy by any means, including but not
limited to printing a paper copy which is marked as the original (the mpaper Contract" ), in which case Borrower agrees that (a) Borrower's Electronic Signature
also constitutes issuance and delivery of such Paper Contract, (b) Borrower's Electronic Signature, when affixed to the Paper Contract, constitutes a legally
valid and binding signature on the Paper Contract and (c) subsequent to such conversion, your obligations will be evidenced by the Paper Contract alone.
similar provisions, and for registering, transfemng
Preview
Kevin P. Whiteford, CSBN: 142916 WHITEFORD LA W 900 Howe Ave., Suite 250 Sacramento„CA 95825 Telephone: (916) 446-0790 kw(u.',swll ilaw.com Attorneys for Plaintiff BANC OF AMERICA LEASING & CAPITAL, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF KERN 10 BANC OF AMERICA LEASING k) CASE NO. BCV-23-103301 CAPITAL, LLC, ) Unlimited Civil ) Plaintiff, ) DECLARATION OF IRENE D. GARZA 12 ) PURSUANT TO CODE OF CIVIL vs. ) PROCEDURE SECTION 585(d) 13 ) H S BROTHERS EXPRESS INC.; HARJIT ) SINGH; and DOES 1 through, 50 inclusive, ) ) Defendants. ) ) 17 18 I, Irene D. Garza, declare: 1. I am the Senior Vice President, Leasing Credit Manager and GVF Collection Manager 20 for Plaintiff Banc of America Leasing k Capital, LLC (hereinafter "BALC") responsible for the 21 contract that is the subject of the above-captioned case. I have worked for BALC more than 20 years, 22 and from my training and work experience with BALC, I have personal knowledge of the processes 23 and procedures used by BALC to evaluate and determine finance contract applications, document transactions, document payments on accounts, document BALC's purchase and delivery of financed equipment, document recovery of financed equipment, document communications with customers, track payments and other charges due on accounts, and document attempts to collect delinquent 27 accounts. I have personal knowledge of the facts stated herein, and if called upon to do so, I could 28 and would testify competently thereto. DIIO. 0F IRRRL'. GARzA PURsUARl ro CCP 585(d) Banc of'America Leasing, etc. vs. HS Brothers, etc., et ah 1. Case Number BCV-23-103301 2. I am an authorized custodian of the business records maintained by BALC with respect to the loan agreement which is the subject of this action, Secured Promissory Note for Customer No. 7738354 dated April 30, 2021 (hereinafter referred to as the "Note" ), which is also identified in BALC's records as Account Number 588-9235796-000. I am generally familiar with the process by which BALC creates and maintains records relating to its loans, and the obligations of the borrowers thereunder. All records and writings maintained by BALC with respect to the Note, and which are attached hereto, were made in the regular course of BALC's business. All records or information maintained by BALC in connection with the subject Note and attached hereto were made at or near the time of the act, condition, or event reflected in such document, and were created or 10 recorded by a BALC employee with a business duty to perform such tasks. I have reviewed the records maintained by BALC in connection with the Note, and based on such review and my personal 12 knowledge, I make this declaration. 3, On April 30„2021„HS Brothers Express, Inc. (hereinafter "HS Brothers"') executed and entered into the Note with Volvo Financial Services„a division of VFS US LLC (hereinafter "VFS"). Pursuant to the Note, VFS agreed to finance HS Brothers's acquisition of two commercial Volvo model VNL64T860 trucks identified in the Note (hereinafter referred collectively to as the "Equipment" ) for HS Brothers's business. A true and correct copy of the Note is attached hereto as 18 Exhibit A and incorporated herein by this reference. 19 4. As part of the Note transaction, on April 30, 2021, Defendant Harjit Singh executed 20 a Continuing Guaranty, agreeing to personally guaranty all of HS Brothers's obligations under the 21 Note. A true and correct copy of this Continuing Guaranty (hereinafter the "Guaranty" ) is attached 22 hereto as Exhibit B and incorporated herein by this reference. 23 5. In the Note, HS Brothers confirmed that the Equipment was delivered to HS Brothers by the vendor on April 30, 2021. Based on this representation, and in compliance with thc terms of the Note, VFS advanced and paid the cost of the Equipment for HS Brothers, 6. BALC and its predecessor in interest have performed all conditions, covenants, and promises required of them to be performed, in accordance with the terms and conditions of the Note 28 and Guaranty. Drc. or IRar a D. CsRZ~~ PoRsossr ro CCP 5S5(d) Banc of America Leasing, etc. vs. H S Brothers, etc., et ah 2. Case Number BCV-23-103301 7. HS Brothers is required by the terms of the Note to repay the Equipment financing by paying the lender 48 monthly installment payments in the amount of $ 8,157.37 each„plus certain taxes and charges stated in the Contract. These payments commenced on June 14, 2021. 8. On July 29, 2021, VFS assigned all its right title and interest in the Contract, the Guaranty, and the Equipment to BALC for good and valuable consideration received. Attached hereto as Exhibit C and incorporated herein by this reference is a true and correct copy of the assignment of the Note and Guaranty from VFS to BALC. At the time the Note and Guaranty were assigned to BALC, HS Brothers's payments under the Note were current through July 14, 2021, there were 46 payments left to be paid under the Note, and the remaining principal balance of the Note 10 was $ 304,547.6S. 9. The Equipment financed under the Note consisted two Volvo big rig trucks. One of 12 these trucks was a total loss and paid off by insurance in September 2021. On September 27, 2021, BALC received the insurance payoff amount of $ 175,019.50, cutting the principal balance of thc Note about in half. As a result of this payment„ the monthly Note payments were reduced to $ 4,078.68. 10. On February 14, 2023, HS Brothers breached the Contract by failing to pay the monthly installment payment then due. The last payment made by the Defendants to Plaintiff 18 pursuant to the Contract was a payment received by Plaintiff on February 8, 2023, which paid the installment payment due January 14, 2023. The Defendants have subsequently failed and refused 20 to make any payments required by the terms of the Contract or Guaranty. 21 11. The documents attached hereto as Exhibit D are true and correct copies of BALC's 22 computer generated Payment History report for the Note from the date of the assignment to BALC 23 forward, as well as a true and accurate Statement of Account showing all amounts owing under the Note and Guaranty. BALC's Payment History reports arc created as part of BALC's normal record keeping system by which BALC keeps track of all payments received from each of BALC's customers. Thc employees who make the entries on these reports do so as a required part of their jobs. Whenever a payment is received from a customer on a loan contract„ that payment is recorded 28 by BALC's accounts receivable department on the Payment History report for the account within 24 Dec, or Ivei'a D. Gsiizw puRsusxi ia CCV SS5(d) Banc of'tnetica Leasing, etc. is. H S Brothers, etc., et ah 3. Case Number BCV-23-103301 hours of receipt of the payment. The Payment History report attached as part of Fxhibit D shows all payments received by BALC on the Note. As shown on this report, the last successful payment from the HS Brothers under the Note was received by BALC on February 8, 2023 (there were several bounced payments). The Payment History also shows the application of the $ 46,275.00 proceeds of the sale of the repossessed collateral for the Note as a credit to the HS Brothers's account on July 25, 2023. BALC received no payments under the Note other than those shown on the Exhibit D Payment History report. As Exhibit D demonstrates, BALC received no payments from the Defendants coming due under thc Note or Guaranty on or after February 14, 2023. As shown on the Payment History, HS Brothers made a total of 22 monthly installment payments through February 8, 2023. 10 12. Attached hereto as Exhibit E and incorporated herein by this reference is a true and correct amortization schedule for the Note (as modified). As indicated in the amortization schedule, 12 after the 22 installment payments received through February 8, 2023, the remaining principal balance due under the Note was $ 101,458.42. 13. Interest accrued on the unpaid principal balance due under the Note at the contract rate of 11.09% from the date of the last payment, February 8, 2023. On the $ 101,458.42 remaining principal balance, this interest accrued at the rate of $ 30.83 per day ($ 101,458.42 x 0.1109 = 17 $ 11,251.74; $ 11,251.74/365 = $ 30.83). BALC was able to recover the remaining truck collateral 18 from HS Brothers, and sell it to reduce the balance due on the Note. BALC received the net proceeds 19 from this sale on July 25, 2023. For the 167 days from February 8, 2023, to July 25, 2023, interest 20 accrued on the Note in the amount of $ 5,148.61. 21 14. The "Prepayment" provision on page 2 of the Note requires HS Brothers to pay a 5% 22 prepayment penalty if the Note is paid off early or HS Brothers defaults on the Note payments. 23 Because HS Brothers defaulted on the Note payments, HS Brothers is required to pay BALC this prepayment penalty. The 5% prepayment penalty is calculated on the remaining principal balance of the Note. Here, as stated above„ the principal balance due at the time of HS Brothers's default was $ 101,458.42. Therefore, HS Brothers is required by thc Note to pay BALC a prepayment penalty of $ 5,148.61 ($ 101,458.42 x 0.05 = $ 5,148.42). Drc. or Irrr sr: D. C)srrz r PurrsussT io CCP 585(d) Banc of Atnerica Leasing, ete. Ps. 6S Brothers, etc., et ah 4. Case Number BCV-23-103301 15. Thus, as of July 25, 2023, the Defendants owed BALC $ 111,679.95 on the Note and Guaranty ($ 101,458.42 principal + $ 5,148.61 accrued interest + $ 5,072.92 prepayment penalty = $ 1 11,679.95). 16. As already mentioned„BALC was able to repossess the remaining truck collateral for the Note and sell it to reduce the balance due on the Note. BALC received net sale proceeds of $ 46,275.00 from the sale of the collateral on July 25, 2023. The $ 46,275.00 net proceeds from the sale of the collateral reduced the balance owed under the Note and Guaranty on July 25, 2023, to $ 65,404.95 ($ 111,679.95 - $ 46,275.00 = $ 65,404.95). 17. The "Promise to Pay" provision at the top of page 2 of the Note requires HS Brothers 10 to pay a default rate of interest on any amounts not paid thereunder when due at the default rate of 18% annually. From and after July 25, 2023, interest accrued on the $ 65,404.95 principal balance due at $ 32.25 per day ($ 65,404.95 x 0.18 = $ 11,772.89; $ 11,772.89/365 = $ 32.25). 18. The "Rights and Remedies of Lender" provision on page 3 of the Note requires the HS Brothers to pay BALC "s attorneys'ees in any action to enforce the Note. The fifth paragraph of the Guaranty, likewise„requires the guarantor to pay BALC's attorney's fees in any action to enforce BALC's rights under that agreement. 17 I declare under penalty of perjury under the laws of the State of California that the foregoing 18 is true and correct. Executed on Februaryg 2024, at Auburn Hills, Michigan. 20 IRENE D. A A 21 22 23 S:V ctivc Files'banc of amcricaut s brothers cxprcsstcoutt docs(ttcfatdt.dcc of Sarza.wpd 27 28 DEc. QF IRENE D. CsARzA PHRsttANT To CCP 585(d) Banc ofAmerica Leasing, etc. vs. HSBt others, etc., et at 5. Case Number BCV-23-103301 VOLVO FINANCIAL SERV S Scour Promissory Note Customer Name: H S BROTHERS EXPRESS INC Customer No.: 7738354 Dated ns of: 4/30/2021 Description of Equipment Financed (The "Equipment" ) ~M VIN/ 2022 Volvo VNL64T860 4V4NC9EJ4NN290664 2022 Volvo VNL64T860 4U4NC9EJ6NN290665 *Last 4 numeric characters of serial number for consuuction equipment. Address where Equipment win be located: Total Trade Value: 0.00 9710 METROPOLlTAN WAY, BAKERSFIELD, CA 93311 Total Trade Liens: 0.00 Interest Rate on Amount Financed: 11.09 Trade in Description: I. Equipment Cash Sales Price 280,000.00 Borrower agrees to pay the "Total Obbgation" (Item 15) in accordance with the following schedule (and any additional page(s) of schedule attached or see Payment Addendum for irregular payments): 2. Net Trade-in Allowance 0.00 No. of Start/Due Payment Amt. Total (Net Value — Total Liens) Installments Date 3. Subtotal (1-2) 280,000.00 48 06/14/2021 $ 8,157.37 391,553.76 4. Sales Tax 0.00 6, Financed Insurance. If a dollar amount is shown in Item 6, Borrower has Federal Excise Tax (% of I) elected to finance certain insurance policies through this Secured Promissory 5, 33,057.96 Note (this "Note" ). The terms of the insurance policies are contained in separate agreement(s) and Borrower agrees that such agreements are not part of this Note. 6. Financed Insurance 0.00 Guaranteed Auto Ptotection Delivery Date: ~4/ 0/ 0 I 7. 0.00 (GAP) and/or Debt Waiver Bonower represents to Lender that on liv D set forth above Bonower: accepted delivety of and inspected each item of Equipment; deternuned that each 8, Origination Fees 595.00 i" item of Equipmcnt contains all of the malor components and accessories as agreed; 9. Registration/Title Fees ..'1.00 each item of Equipment is in good working order and condition; and that each item of Equipment is fit for immediate and contmued use and conforms to Borrower's 10. Other Charges: requirements without exception. Other 0.00 Applied Funds - 0.00 Fl Doc Stamp 0.00 TN Record Tax 0.00 11. Total Itemizal Charges 33,733.96 12. Cash Down Payment 0.00 13. Amount Fmanced (3+11~12)ir 313,733.96 14. Interest Charge 77,819.80 15. Total Obligation 391,553.76 Co-Borrower Borrower: 8 S BROTHERS EXPRESS INC (if applicable): Signature (SEAL) Signature (SEAL) HARJIT SINGH Printed Name: Name: Title: President Title: Borrower(s) Name 41 Address: Legal Name(s): B S BROTIIERS EXPRESS INC Telephone: 66IA44-4337 Fax: Street Address (Place of Business): 9710 METROPOLITAN WAY, BAKERSFIELD, CA, 93311 Federal ID ¹ or SSN fn 81-1384958 Co-Boirowen Mailing Address: 9710 MFTROPOLITAN WAY, BAKERSFIELD, CA, 93311 County: KERN State of Formation: CA or State of Residence: CA Fmail: NOEMAIL EMAILCOM See the following pages for additional terms. I (4) 8493834: TA 148: 9.2020 EXHIBIT A Lender's Name gd Address: Name: Volvo Financial Serhyices, a division of VFS US C Street Address: 7025 Albert Pick Rd. Suite 105, Greensboro, NC 27409 Mailing Address: PO Box 26131, Greensboro, NC 27402-6131 P'remise to na . The above. signed Borrower hhs "Borrower", and ll mors than one, Jol tly and severally, the "Borrower" ) no dltlonally momises to pay in full to Volvo Financial Services, a division of VFS US LLC, a Delaware limited liability company, {together with its successors encl assigns, the "Lender""), at 7025 Albert Pick Road, Suite 105, P.O. Box 26131, Greensboro, North Carolina, 274024131, or at such other place as Lender designates in writing, in lawful money of the United States of America, the principal arnaunt borrowed with interest, the "Total Obligation", as set forth in Item 15 above. In addition to the Total Obligation, Borrower agrees, under seal, to pay all other amounts owed to Lender under this Note (collectively, the mlndebtsdness") when due.Principal shall bear interest at the Interest Rate set forth above from the date of disbursement until the applicable due date, whether due by acceleration or otherwise. Any payment due on a date which is a date when banking institutions are not open to the public in the State of North Carolina shall be due on the next succeeding date on which such institutions are open. Any Indebtedness not paid when due shall bear interest from the due date or the judgment date, as applicable, until paid at a rate {the mDefault Rate" ) which is the lesser af (i) eighteen percent (18%) per annum or (ii) the maximum rate permitted under applicable law. All interest due under the Loan Documents shaN be computed on the basis of a 3604ay year and accrue on a daily basis for the actual number af calendar days elapsed. Borrower agrees to pay an effective rate of interest that is the sum of (i) the Interest Rate and (ii) the additional rate of interest resulting from any other charges or fees paid or to be paid in connection with the Loan Documents that are determined to be interest or in the nature of interest. Rec i nd li f Pa n . Payments shall not be deemed received by I.ender until good funds are actually received by Lender. At the option of Lender, payments shall be applied to principal, interest, and other Indebtedness in such order as Lender shall determine. ~Pre a rrt~n. Borrower may prepay the outstanding principal balance of this Note, in whole or in part, at any time, provided that as express conditions precedent to Lender's acceptance of any prepayment, Borrower must: (I) give Lender at least 30 calendar days prior written notice of its intent to make such prepayment; and (ii) pay to Lender a prepayment premium equal to 5% of the amount of the unpaid balance of the Total Obligation being prepaid (minus unearned Finance Charges), hand (iii) pay to Lender the amount of the unpaid balance of the Amount Financed being prepaid on such Installment Due Date, the Installment due on such Installment Due Date, and afi other amounts of the Indebtedness then due and remaining unpaid under the Note. At the option of Lender, any prepayment of principal shall be applied to payments coming due under this Note in the inverse order of their due dates. In the event of a default and collection of any amounts subsequent to default, whether or not a payment default has been declared by written notice to Borrower, Borrower shall also be liable for the prepayment fee and unpaid balance as described above. ~ate jlILrrfiy, If any payment of principal and interest or any other Indebtedness is not received in full by Lender within 15 calendar days after its due date. then in addition to all other rights and remedies of Lender, a late charge of five percent (5%) of the amount due and unpaid will be charged to Bonower. Such late charge shall be immediately due and payable upon receipt of written notice from Lender and shall be an "Indebtedness" under this Note. No Counterclaims Deductions or Offsets. All payments and obligations of Borrower under the Loan Documents will be made and performed without counterclaim, deduction, defense, deferment, setwif, or reduction. ~Se itrit~lterest. In order to secure (i) payment of the indebtedness, afi other debts and obligations at any time owed by Borrower to Lender or its aiftliates, and (ii) complete and full performance of any Loan Party's obligations to Lender under the Loan Documents, now existing or at any time entered into, Borrower hereby grants to Lender a security interest in and to the equipment described above (the "Equipment" ), together with all present and future attachments, accessions, replacements, parts, proceeds (including insurance proceeds), income, earnings, accounts, rights to payment (including monetary obligations, whether or not earned by performance), secondary obligations incurred or ta be incurred, chattel paper„electronic chattel paper, general intangibles, payment intangibles, warranties, service contracts, documents, and records now or hereafter arising from the Equipment (collectively, the "Collateralm). Borrower agrees that Lender may file UCC financing statements or any other documents necessary to perfect or continue Lender's secunty interest in the Collateral in any applicable jurisdiction, Borrower further agrees to take all actions, execute all documents and provide all additional information that Lender deems necessary to perfect or continue its security interest in the Collateral. The security interest shall remain in full effect, without waiver or surrender of any of Lender's rights hereunder, notwithstanding any one ar more of the following: (I) extension of the time of payment of the whole or any part of this Note; (ii) any change in the terms and conditions of this Note; (iii) substitution of any other evidence of indebtedness for this Note; (iv) surrender, release, exchange, or alteration of any Collateral or other security, either in whole or in part; or (v) release, settlement, discharge, compromise, change, or amendment, in whole or in part, of any claim of Lender against any Loan Party. ln uran n R' of Loss. All risk of loss, damage or destruction of the Equipment will at all times be on Borrower. Borrower agrees to maintain, at Borrower's expense: (a) Special Form property insurance, or other insurance acceptable to Lender, protecting the Equipment from loss or damage by fire, theft and other customary risks for the greater of the Equipment's replacement cost or the Indebtedness with a deductible not to exceed $ 2,500 per item of Equipment, naming Lender as a loss payee on a "Lender's Loss Payable" endorsement; and (b) liability insurance in an amount not less than $ 1,000,000 per occunence, naming Lender as an additional insured (collectively, "Requiral Insurance"). Borrower must provide Lender satisfactory written evidence of Required Insurance within 30 calendar days of the commencement date of this Note, the cancellation or expiration of such Required Insurance, or of any subsequent written request fiom Lender. If Borrower daes not da so, Lender may obtain insurance from an insurer of Lendefs choosing in such forms and amounts as i ender deems reasonable to protect Lender*s interests (collectively, BLender's Insurance" ). Lender's Insurance will cover the Equipment and the Lender; it will not name Borrower as an insured and may not cover all of the BorroweVs interest in the Equipment. Borrower agrees to pay Lender periadic charges for Lender's Insurance (collectively, "Insurance Charges" ) that indude; a premium that may be higher than if the Borrower maintained the Required Insurance separately; a finance charge of up to 1.5% per month on any advances made by Lender or Lendefs agents; and commissions, and billing and processing fees; any or afi of which may generate a ptafit to Lender and Lender's agents. If Borrower fails to provide satisfactory evklence of Required Insurance by the due date, Lender may pay Insurance Charges by debiting Borrower's account under any previously authorized automatic payment. Lender shall disconteue bilfing or debifing!nsurance Charges upon receipt of safisfactary evidence of Required Insurance. Borrower shall immediately notify Lender in writing of any damage, theft or kiss to Equipment which makes any item of Equipment unfit for continued or repairable use. Borrower hereby irrevocably appoints Lender as BorroweVs attorney-in-fact to execute and endorse all checks or drafts in Borrower's name to collect under any insurance covering the Equipment. Lender may apply insurance proceeds to the indebtedness or any other obligation of Borrower to Lender as Lender deems appropriate. B rrower's R resents lons Warrantie nd reements. Borrower represents, warrants, and agrees: (a) that except for the security interest granted to Lender, the Equipment will remain free from all liens and security interests; (b} that afi information supplied by Borrower in any financial, credit, or accounting statement to Lender is and will be complete true, correct and genuine, and Borrower consents to the ongoing review of Borrower's credit reports during the term of this Note; (c) that the Equipment is to be used only for business purposes; (d) that Borrower has full authority to enter into this Note and in so doing it is not violating any law, regulation or agreement and has taken all necessary and apprapriate actions to make this Note binding and enforceable against Borrower; {e) to defend at its own cost any action, or claim affecting the Equipment, (f) to maintain the Equipment in good operating condition, repair, and appearance, all in conformity with all governmental regulations, insurance policies, and any warranties; (g) to promptly pay all taxes, assessments, license fees and other public or private charges when levied against the Equipment or this Note; (h) to obtain a certificate of title on each item of Equipment showing Lender's first priority security interest snd to preserve and perfect Lender's secuilly interesl by authorizing Lender to file linancing statements and also execute any required financing statements; (i) to not misuse, secrete, sell, rent, lend, encumber or transfer any item of Equipment nar permit it to be operated by or be in the possession of any other party; (j) that Lender may enter any premises at any reasonable times to inspect the Equipment; (k) to not assign or encumber any of its rights or obligations under this Note; (I) to provide Lender with quarterly and annual financiaI statements upon request of Lender; (m) to reimburse Lender immediately after written notice for any expenses incurred by Lender to perform any of the obligations of Borrower; and Borrower agrees not ta change its princI pal place of business, state of formation, or legal name without 30 calendar days prior written notice to Lender; (n} to use or permit the use of each item of Equipment only in the United States (and, solely in the case of titled Equipment, in Canada for not more than 60 calendar days during any roiling twelve (12) calendar month period to be determined individually for each item of Equipment) in the ordinary course of its business and in compliance with all applicable laws and regulations and insurance policies, (o) that the Equipment will not be used to transport environmentally hazardous materials, contaminants, or waste products, except in compliance with all applicable laws, regulations, and insurance palicles; and (p) if Borrower is an individual, Borrower's legal 2 (4) 6493834: TA 148: 9.2020 name set forth above is identical to the name a g on Borrower's most recent, unexpired driver's sued by the state of his/her principal residence 'nd Borrower provide Lender with written not~thin 30 calendar days of any change Borrower's fu will in li al name as shown on any licenses issued by the state of his/her principal residence subsequent to the date of this Note; (q) that neither the Borrower nor any of its direct or indirect owners is directly or indirectly controlled by any sanctioned person or entity, as described in any regulation, order, or guidance issued by the U.S. Department of Treasury"s Office of Foreign Assets Control or any other U.S. government entity. Borrower acknowledges that Lender, in compliance with federal law, will be verifying certain information about Borrower. Borrower also certifies that neither it nor any of its direct or indirect owners engages in any transactions prohibited by any U.S. laws; and (r) it will not interfere with the operation of any telematics system in any Equipment and that Lender may monitor or access the Equipment utilization, location and other information or reports contained in or generated by any such telematics system to ensure compliance with this Note, or for any other lawful purpose, and may use any telematics system or information generated by the telematics system to locate the Equipment in the event of default under this Note. gy~f~fl . Each of the following shall constitute an "Event of Default" which will allow Lender to exercise all of its rights under this Note and appficable law: (a) any Loan Party (each such other person that firom time to time is obligated to Lender under any of the Loan Documents and/or executes any guaranty, surety, or any or all of the obligations pursuant to the Loan Documents, or any endorser for the Borrower, together with Borrower, the "Loan Parties" and individually a "Loan Party" ), fails to make any payment in full when due under any Loan Document; (b) the occurrence of an Event of Default under any Loan Document or the default by any Loan Party of any obligation or liability to Lender; (c) the failure by any Loan Party to perform any obligation not involving the payment of money, or to comply with any other term, condition, provision, covenant, or warranty applicable to such Loan Party under any of the Loan Documents and such obligation, term, condition, provision, covenant, or wananty remains unsatisfied after 10 calendar days'ritten notice to such Loan Party; (d) any representation or warranty made by any Loan Party in any of the Loan Documents or otherwise or any information delivered by any Loan Party in obtaining or hereafter in connection with the credit evidenced by any Loan Document is materially incomplete, incorrect, or misleading as of the date made or delivered; (e) any Loan Party becomes insolvent, is unable or admits in writing its inability to pay its monetary obligations as they become due, makes a general assignment for the benefit of creditors, or applies for or acquiesces in the appointment of a trustee, receiver, or other custodian for such party or any of its assets or property, or a trustee, receiver, or other custodian is appointed for any Loan Party or any of its assets or property; (I) commencement of any case under the Bankruptcy Code (Title 11 of the United States Code) or any similar proceeding under any federal, stats, or foreign law by or against any Loan Party; (g) the death, incompetence, dissolution, or liquidation of any Loan Party, the consolidation or merger of any Loan Party with any person or entity, or the taking of any action by any Loan Party toward any dissolution, liquidation, consolidation, or merger (regardless of whether such actions occur voluntarily or by operation of law); (h) any Loan Party ceases to do business in the ordinary course or suffers a material adverse change in its management or ownership; (i) the sale, assignment, or transfer of all or substantially all of its assets by any Loan Party (regardless of whether such action occurs voluntarily or by operation of law) without the consent of Lender; (j) any Loan Party, or any other person acting on behalf of such Loan Party, claims that any Loan Document or any lien or security interest is not legal, valid, binding, or enforceable against any Loan Party, or that the priority of any lien or security interest securing any of the Indebtedness is different than the priority represented and warranted in the Loan Documents; (k) any Loan Party shall be in default with respect to any agreement with or obligation to any other party for the payment of borrowed money, contractual obligation, or rent, in excess of $ 1,000,000; or (I) the occurrence of any condition or event that is a default or is designated as a default, event of default, or Event of Default in any other agreement, contract, or indebtedness of any Loan Party to Lender or to any affiliate of Lender. Ri hts and Remedies f Lender. Whenever an Event of Default has occurred under this Note and at any time thereafter, Lender will have afi the rights and remedies provided by this Note, the Uniform Commercial Code ("UCC"), and other applicable law. At the option of Lender, with or without notice, any or all of the Indebtedness then owing under this Note will be immediately due and payable in full, together with all costs and expenses, including attorneys'ees, incurred by Lender in the enforcement of its rights and remedies under this Note. Borrower acknowledges that this Note is a "business contract" as that term is used under N.C.G.S. $ 6-21.6 or any successor thereto. Lender may, without notice or demand or legal process, take possession of the Collateral wherever found and, for this purpose, may enter upon the locked or unlocked property occupied or under the control of Borrower. Lender may require Borrower to assemble the Collateral and make it available to Lender at a place to be designated by Lender. Lender, at the expense of Borrower, may make repairs deemed necessary or desirable to the Collateral. Lender shall not be responsible for any injury or loss to the Collateral unless caused by the willful wrongful acts or omission of Lender while the items of Collateral are in Lender's possession. Lender may, with or without obtaining possession of the Collateral or any part thereof, sell the same at a public or private sale in the wholesale or retail market, lease, or otherwise dispose of any or all of the Collateral with or without notice to the Borrower. Borrower agrees that the items of Equipment are of a type customarily sold in recognized markets within the meaning of the UCC. Lender may also adverlise and sell the Equipment through internet websites through which equipment similar to the Equipment is sold, and such disposition shall be deemed in conformity with reasonable commercial practice among dealers of the type of properly that was the subject of the disposition. At any sale or disposition, Lender may accept a trade of properly for all or any portion of the sales price. As permitted by applicable law, Lender may, at any sale, public or private, of the Collateral, purchase any or ail of the Collateral offered at such sale. The proceeds of any sale or sales, after deducting all expenses of Lender in taking, storing, repairing, and selling the Collateral (including reasonable attorneys'ees and legal expenses) shall be applied to the payment of any part or all of the Indebtedness and any other indebtedness or liability of Borrower to Lender, and any surplus thereafter remaining shall be paid to Borrower or to any other person that may be legally entitled to such surplus. Lender shall be under no duty to select any items of Collateral over any other items or to sell the items of Collateral pro rata or in any order but may select and sell such items as Lender may determine. Lender may, at its option, and without any obligation to do so, pay, perform, and discharge any and all amounts, costs, expenses, and liabilities herein agreed to be paid or performed by Borrower, and all amounts so expended by Lender shall become part of the Indebtedness secured by the Collateral and shall be immediately due and payable by Borrower upon demand and shall bear interest at the Default Rate. Lender may pursue any legal remedy available to collect all Indebtedness and to enforce its rights in the Collateral. Lender may exercise any or all other rights and remedies concurrently or consecutively in such order as Lender elects without diminishing Lender's rights to later pursue remedies on any of Borrower's other obligations. Such rights and remedies shall be cumulative and nonwxclusive and shall inure to the benefit of Lender and its successors and assigns. Neither the action nor failure of Lender to take any of the actions or exercise any of the rights or remedies granted to Lender in this Note shall be construed to be a waiver of any of the rights or remedies of Lender. In Lender's exercise of the powers granted by Borrower under this Note, no liability shall be asserted or enforced against Lender except for Lender's willful wrongful acts, and Borrower expressiy waives and releases Lender from all other such claims or liabilities. To the extent permitted by law, Borrower waives all other remedies, including specific performance, the right to deduct damages from current amounts due, and all indirect, consequential, punitive, and incidental damages. ~Bin in I EfffiE(. This Note shall be binding upon Borrower and its permitted successors and assigns and inure to the benefit of Lender and its successors and assigns Lender may from time to time assign or transfer its rights and/or delegate its obligations under the Loan Documents in whole or in part and without notice to or the consent of any Loan Party, Borrower may not assign or transfer its rights or delegate its obligations under this Note, in whole or in part, unless it obtains Lender's prior written consent to such assignment, transfer or delegation; provided that such consent shall be in the Lender's sole discretion. In addition and as permitted under applicable law, NO LOAN PARTY SHALL ASSERT AGAINST ANY ASSIGNEE OR TRANSFEREE OF LENDER ANY CLAIMS OR DEFENSES SUCH LOAN PARTY MAY HAVE AGAINST LENDER. x Fe s. Borrower agrees to pay on demand all reasonable external and internal costs, expenses, and fees (inctuding reasonable uccess r'i attorneys'ees and expenses) of Lender in enforcing the Loan Documents and the nghts and remedies of Lender regardless of whether any legal action or proceeding is instigated. Borrower agrees that any origination fees may be shared with or rebated to the selling dealer. Such costs, expenses. and fees shall constitute an "Indebtedness" under the Loan Documents. ns, All of the terms and provisions of this Note shall apply to, bind and inure to the benefit of the successors and assigns of Borrower (but this shall not permit any assignment prohibited hereby) and Lender. In the event Borrower is composed of more than one party, the obligations, covenants, agreements, and warranties contained herein as well as the obligations arising therefrom are and shall be joint and several as to each such party. ~Spy&illiy. If any provision of this Note is 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 Note shall not be affected. ~gb l sofLs . TmsNoteshsttbesgsmtyeontywhsnacceotsdbyte d ra dshallbego emedbya dco strcadt accords cs 'Ihca laws ofthebl l of North Carolina without regard to any conflict of law or similar provisions. This Note is intended to be effective as a contract or instrument executed under seal. Notices an 0 mand . All demands or notices under this Note shall be in writing (including, without limitation, facsimile - receipt confirmed) and mailed, emailed, faxed, or delivered to the address specified in this Note or in writing by the party to which such notice is given. Any demand or notice mailed shall be 3 (4} 8493834: TA 148: 9.2020 mailed"first class mail, post-prepaid, return-re uested. Demands or notices shall be effective u earlier of (i) actual receipt by the addressee, or * con~n, (ii) the date shown on the return receipt, fax or delivery receipt. R scission or Re ur f Pa en . If at any time or from time to time, whether before or after payment of the Indebtedness and performance of the obligations in full, afi or any part of any amount received by the Lender as payment of an Indebtedness, must or is daimed to be subject to avoidance, rescission, or return to Borrower or any other party for any reason whatsoever, such Indebtedness and any liens, security interests, and other encumbrances that secured such Indebtedness at the time such avoidance, rescission, or returned payment was received by Lender shall be deemed to have continued in existence or shafi be reinstated, as the case may be, all as though such payment had not been received. Wars. Borrower waives, to the fullest extent permitted under applicable law, the right to assert any statutes of limitations as a defense to any of its Indebtedness or obligations. Borrower waives, to the fullest extent permitted by law, presentinent, notice of dishonor, protest, notice of protest, notice of intent to accelerate, notice of acceleration, and all other notices or demands of any kind (except notices specificafiy provided for in the Loan Documents), and (ii) agrees that Lender may enforce this Note and any other Loan Documents against Borrower without first having sought enforcement against any other Loan Party or any collateral secuding the Indebtedness. Signatures in Global and National Commerce Act, any version of the Uniform Electronic Transactions Act or any other statute governing electronic transactions (mElectronic Signature" ). Electronic Signature shall include i.oan Documents executed and delivered by photocopy, facsimile or electronic or digital signature (including ernailed .pdf files), any of which shall be treated as an original and deemed fully binding on the parties to the same extent as original signatures. Multiple signatures to this Note delivered separately shall constitute one original Note. By submitting an Electronic Signature on any Loan Document, Borrower agrees (a) that Borrower consents to the use of Electronic Signatures in these Loan Documents; (b) that any of these Loan Documents in electronic form or executed with an Electronic Signature are (i) fully enforceable and (ii) fully admissible in any legal proceeding; (c) that Borrower's Electronic Signature is intended to authenticate this writing and have the same force and effect as Borrower's handwritten signature and (d) that reference to "signatures" in the Loan Documents shall refer to any form of signature, whether handwritten or electronic. Lender may rely on the electronic mail address provided for each Borrower as being conclusively controlled by and accessible to that Borrower for the purpose of delivering, receiving and executing the Loan Documents with Electronic Signatures. Borrower agrees that no certification or other third-party verification is necessary to validate any Electronic Signature of Borrower and that the lack of such certification or third-party verification will not in any way impact the enforceability of any Electronic Signatures or any resulting agreement between Borrower and Lender. Borrower agrees that this Note and any other Loan Documents, if/when manually countersigned by Lender or attached to Lender's original signature counterpart and/or in Lender's possession, shall constitute the sole original chattel paper as defined in the UCC for afi purposes and will be admissible as legal evidence thereof. Lender may designate, at its discretion, one authoritative copy of the Loan Documents, which may be hekl in electronic or physical form in the ordinary course of business ("Authorltathre Copy" ). If the Authoritative Copy resides in a document management system designated by Lender for the storage of authoritative copies of electronic records, Lender or its assigns may convert the Authoritative Copy by any means, including but not limited to printing a paper copy which is marked as the original (the mpaper Contract" ), in which case Borrower agrees that (a) Borrower's Electronic Signature also constitutes issuance and delivery of such Paper Contract, (b) Borrower's Electronic Signature, when affixed to the Paper Contract, constitutes a legally valid and binding signature on the Paper Contract and (c) subsequent to such conversion, your obligations will be evidenced by the Paper Contract alone. similar provisions, and for registering, transfemng