EXHIBIT 10.2
Terminal Agreement
This terminal agreement, being on this 4th day of October, 2004 by and
between XRG Logistics, Inc., a Florida corporation or its assigns with its main
headquarters located at #0 Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000, a common and
contract Carrier of general commodities operating by the authority of the
Federal Highway Administration (FHA) and applicable Public Utility Commission(s)
hereinafter referred to as " Carrier" and AGB Transportation Services, LLC, a
Delaware Corporation with headquarters at 0000 Xxxxxx Xxxxx, Xxxxxxxxx, XX,
00000, hereafter referred to as " Agent " .
I. Premises
Witnesseth: Whereas Carrier agrees to hire Agent as their
representative at his principal office located at 0000 Xxxxxx Xxxxx, Xxxxxxxxx,
XX, 00000, to be identified as TERMINAL NUMBER 2, or whatever terminal
designation at a later date and to solicit commodities Carrier is authorized to
haul interstate by the authority of the FHA and intrastate by the authority of
the applicable Public Utility Commission and to direct the transportation of
shipments on a commission basis on behalf of Carrier to points and places
Carrier is authorized to serve by the FHA or applicable Public Utility
Commission.
Whereas, Agent agrees to represent Carrier as Terminal Manager and to
solicit commodities Carrier is authorized to haul by authority of the FHA or
applicable Public Utility Commission on behalf of Carrier as set forth above for
the consideration here-in-after stated.
Now, it is therefore mutually agreed between the parties hereto as
follows:
II. Terms and Conditions
A. Responsibility of Carrier
(1) Carrier agrees to assign a series of freight bills / delivery
receipt forms to be used on all outbound shipments billed by Carrier. Carrier
also agrees to provide all necessary legal documentation and paperwork required
to properly represent Carrier on interstate and intrastate shipments, including
but not limited to: certificates of insurance, copies of all operating
authorities, equipment trip leases, driver and vehicle applications, maintenance
reports, and a copy of carrier's applicable rate schedules or tariff .
(2) Carrier agrees to pay commissions on line hauls and related
stop-off charges, excluding accessorial charges and Fuel Surcharges, if paid
entirely to the truck. Any amounts of Accessorial charges or Fuel Surcharges not
paid entirely to the truck, will then be allocated as follows: Carrier will
retain all excess revenues not paid to truck in any amount up to 15% of the
accessorial charge. Agent will then be paid any excess not paid to truck and not
retained by Carrier.
(3) Carrier agrees to present to Agent a weekly summary of account
standings and a weekly report itemizing all shipments received for that process
week in addition to an account of commissions due. (Commission reports will be
provided weekly, with a one-week delay for processing time allowance.)
(4) Rate of commission to Agent will be as follows:
(a) 85% of invoice amount on shipments that are secured,
processed and supervised under the direction of Agent, less the related expenses
paid including the compensation to a permanently leased truck or trip-leased
truck. The intent is that any or all expenses are not to exceed 85% of the total
revenue invoiced.
(b) 3% of invoice amount on shipments designated Agent
Accounts that are processed and supervised under the direction of Agent, but
moved by a permanently leased truck of another terminal or related XRG company,
but not to exceed 85% of revenue in total expenses including truck pay.
(c) 82% of invoice amount less related costs to move the load,
on shipments that are not secured by Agent and are not otherwise processed or
supervised by Agent, but moved by a permanently leased truck or trip-leased
truck of Agent, or 50% of the commission paid to all Agents involved in a
shipment that is moved by brokering to another motor carrier.
(d) 50% of the difference between Gross freight revenue less
purchased transportation for loads brokered to other carriers.
NOTE: Revenue collected by Carrier for driver assistance in loading or
unloading; fuel surcharges; truck ordered not used, detention of drivers and/or
vehicle storage, and special hauling permits will not be included in the invoice
amounts for Agent commissions if paid entirely to the truck or trucking company.
If these amounts are not paid entirely to the truck or trucking company, the
Agent shall receive that amount of revenue which remains after said payment is
made and the Carrier has deducted 15% of the Gross Revenue billed. These amounts
are paid when collected by XRG Logistics.
(e) The Carrier will offer a monthly productivity bonus to the
Agent, structured as follows: The number of active trucks will be agreed to on
the first of each month. Revenue in excess of $10,000 per unit of truck revenue
would be paid 1/2 of 1% of all the revenue generated. For instance, if there
were 80 trucks insured or leased on the first of any month, and the Agent
generated $800,000 in truck revenue, XRG Logistics (Highbourne Division) would
pay the Agency a bonus of $4,000, or .005 of the total Truck revenue for the
month.
(5) Carrier will not be responsible for any expenses incurred for the
operation of the agent's terminal; i.e. telephone, rents, utilities, taxes,
employee expenses, or any other expenses incidental to the operation of the
agent's terminal.
B. Responsibility of Agent
(1) Agent agrees to submit to corporate office all legal documentation
and properly prepared paperwork pertaining to each shipment as required by all
regulatory commissions including but not limited to the Federal Highway
Administration, U.S. Department of Transportation and will assure Carrier that
all drivers whose services are enlisted by Agent are in compliance with all
Federal Motor Carrier Safety Regulations as set forth in title 49 code of
Federal Regulations, Parts 40, 325, 382, 383, 385, 386, 387, 390-397, and 399.
(Carrier has provided Copy of which to Agent.) Agent also agrees to submit all
documentation necessary for Carrier to secure payment from shippers on a timely
basis. Agent agrees to report daily activity concerning dispatch and checks
issued for payments authorized by Agent. Agents found to be in violation of any
part of this provision will be responsible for all costs and or fines incurred
upon Carrier by any regulatory commission. Non-compliance with this provision
shall result in an assessment of $200.00 per occurrence toward Agent.
(2) Agent agrees and understands that terminal checks, if available,
are to be used exclusively in payment of transportation services. Agent agrees
and understands that issuance of any monies from credit card funding services
(i.e. Tchek fuel and cash cards), if available, are to be used exclusively in
payment of transportation services.
Agent agrees to be responsible as follows for all freight charges for
customers that have been secured by Agent that are not collected within 90 days:
There would be recourse of the commission paid only on Carrier credit-insured
customers. A list will be available each day on the system. Non-approved
customers could be hauled with full recourse (entire invoice amount), but only
to agreed upon limits. Loads moved prior to credit approval would be at full
risk to the Agency, regardless or subsequent credit approval. Credit approval
will not be reasonably withheld. "Cut" freight bills, (paid less than invoice
amount) are the responsibility of Agent in the week the short payment has been
received. Duplicate invoices, and invoices without original Bills of Lading and
Proof of Delivery would be subject to full recourse to the Agent if unpaid
within 90 days.
(4) Agent agrees to be responsible for all freight charges from
customers that are listed on carriers "No Load" list. This list will include
customers that have a history of either slow or bad payment schedules. No
commissions will be paid until payment is received by carrier for the shipment.
(5) Agent agrees to allow Carrier to conduct reasonable credit
investigation on customers secured by Agent prior to performing any
transportation services, and to abide by credit terms, or to be at risk for
receivables. Credit insurance will be available to Agent at a cost to be agreed
to by the parties. If an account is credit approved, Agent is liable for
commission earned on open invoices only.
(6) Agent agrees to be responsible for all monies on company checks
that are stolen or lost and cashed before notifying Carrier of loss of checks.
Agent also agrees and understands that he/she is responsible for all checks
cashed by fraudulent, deceptive misrepresentation of company business.
(7) Agent agrees to be responsible for all monies paid out that result
in overpayment to Owner / Operator or contractors under the control and
supervision of Agent, if those amounts were paid to the Owner/Operator at the
direction of the Agent.
(8) Agent agrees to be responsible for all overcharge claims that are a
result of incorrect freight rates or billing errors of the agent.
(9) Agent agrees to be responsible for insurance deductible on cargo
losses that cannot be recuperated from their Owner / operators, if Agent settles
the operators for loads that have a pending claim.
(10) Agent agrees to be responsible for the protection of freight
bills, Company checks, permits, stickers, fuel decals and any other company
documents in their possession.
(11) Agent has no authority to speak on behalf of the Carrier to any
outside media or to any regulatory agency of a State, Federal Government, to
legal counsel, or any other professional or consulting service. Agent has no
authority to represent Carrier or enter into any contractual agreements or legal
proceedings without prior written consent from the President of the Carrier.
C. Indemnification
(1) Agent shall indemnify and save harmless Carrier from any and all
claims, loss or damage of any kind whatsoever, including direct, indirect,
incidental or consequential damages, along with costs including reasonable
attorney's fees connected therewith, brought by any person or persons arising
out of, directly or indirectly, agent's negligent or unlawful transportation of
property or for any other negligent or unlawful performance in connection with
this agreement.
D. Default
In the event that either party shall fail to perform any covenant or
condition required under this agreement to be performed by that party, and such
default in performance shall have continued for a period of thirty (30)
consecutive days after notice thereof given by the non-defaulting party, then
the non-defaulting party may declare the other party in default. Upon
declaration of default, the non-defaulting party may elect to treat this
agreement as immediately terminated. Conditions of Default are attached hereto
as Addendum A.
E. Modifications and Effectiveness
It is agreed that there are no oral representations, agreements or
understandings affecting this agreement and that any future representations,
agreements, understandings or waivers to be binding upon the parties hereto,
must be reduced to writing by way of either addendum to or revisions thereof to
the original agreement.
Either party's failure strictly to enforce any provision of this
agreement shall not be construed as a waiver thereof excusing the other party
from performance.
F. Assignment
It is agreed that the Carrier may at any time without the consent of
the Agent, assign this Agency Agreement to any operating subsidiary of the
parent company of XRG Logistics, Inc. XRG, Inc., or any designate of XRG, Inc.
III. Execution
IN WITNESS WHEREOF, Carrier and Agent, intending to be legally bound,
do hereby sign this agreement on the above date first written which shall be the
effective date.
Agent: Carrier:
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AGB Transportation Services, LLC XRG Logistics, Inc.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxx Xxxxx Xxxxxxx
ADDENDUM TO TERMINAL AGREEMENT
The terminal agreement between AGB Transportation Services, LLC and XRG
Logistics, Inc. dated October 4, 2004 shall be amended to include the following:
1) The agreement shall be in force for a period of five (5) years from
the date of the agreement.
2) Xxxxx Xxxxxx, AGB Transportation Services, LLC, its officers or
Directors agree to the following:
Confidential Relationship and Covenant Not to Compete. All information furnished
by XRG, Inc to Xxxxx Xxxxxx, AGB Transportation Services, LLC, its officers or
Directors and all services rendered by Xxxxx Xxxxxx, AGB Transportation
Services, LLC, its officers or Directors to XRG, Inc, shall be treated as
confidential and proprietary and shall not be disclosed to any third parties.
Xxxxx Xxxxxx, AGB Transportation Services, LLC, its officers or Directors
further agree that during the term of this Agreement, they shall not directly or
indirectly, either as principal, agent, manager, employee, owner, partner, or
stockholder, solicit any client of XRG, Inc. During the term of this Agreement,
Xxxxx Xxxxxx, AGB Transportation Services, LLC, its officers or Directors shall
not directly or indirectly, either as a principal, agent, manager, employee,
owner, partner, or stockholder, solicit or encourage any employee of XRG, Inc to
terminate their employment with XRG,. Xxxxx Xxxxxx, AGB Transportation Services,
LLC, its officers or Directors acknowledge that all work product, programs,
source codes, flow charts, operating procedures, systems design and other
materials that are developed by Xxxxx Xxxxxx, AGB Transportation Services, LLC,
its officers or Directors in accordance with the terms of this Agreement are the
proprietary information and property of XRG, Inc.
/s/ Xxxxx Xxxxxx /s/ Xxxxx X. Xxxxxxx
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Xxxxx Xxxxxx Xxxxx X Xxxxxxx
For AGB Transportation Services, LLC President, XRG, Inc.
