AMERICAN HOMESTAR CORPORATION
AND
ROADMASTERS TRANSPORT COMPANY
TRANSPORTATION CONTRACT
This Contract made this 25 day of February, 2004, by and between RoadMasters
Transport Company, hereinafter referred to as "Carrier", a corporation whose
principal address is P. O. Xxx 0000, Xxxxxx, Xxxxx 00000 and American Homestar
Corporation, hereinafter referred to as "Shipper", a corporation whose principal
office is located at 0000 Xxxxx Xxxxx Xxxx., Xxxxx 000, Xxxxxx Xxxx, Xxxxx
00000. Shipper desires to avail itself of the transportation services of
Carrier on a contract basis in accordance with the provisions contained in this
Contract. Therefore, in consideration of the mutual covenants, conditions and
agreements set forth herein, the parties hereto agree as follows:
I. CARRIER AGREES:
1. To transport for Shipper and its subsidiaries manufactured and/or modular
homes from point of manufacture situated in the Dallas - Fort Worth
Metroplex to points in the continental United States. Carrier shall provide
service that is designed to meet the distinct needs of Shipper.
2. To transport the described property received directly from Shipper under
the terms and conditions of this Contract. The acceptance by the Carrier of
the described property and their issuance of a Xxxx of Lading to Shipper,
shall cause the terms of this Contract to be in full force and effect.
3. To performs its duties as a contract carrier as are imposed by law and to
provide insurance acceptable to the Shipper and in the amounts required by
Federal, State and Provincial agencies, but in no event less than One
Million Dollars ($1,000,000.00) per occurrence. Carrier shall provide a
certificate of insurance to Shipper, naming Shipper as an additional
insured, as of the commencement date of this Agreement. Carrier shall
indemnify and hold harmless Shipper from and against all loss, damage,
fines, expense, actions and claims for injury to persons (including injury
resulting in death), and damage to property where such loss, damage or
injury is caused by acts or omissions of Carrier, its agents, or employees,
arising out of or in connection with Carrier's discharge of its
transportation duties and responsibilities as specified in this Contract,
except as otherwise provided in Section III.
4. Carrier shall have sufficient dedicated tractors designed for the
transportation of manufactured and/or modular homes for the exclusive or
preferential use of Shipper and will provide additional tractors
("Supplemental Fleet") as may be required by Shipper to effect the movement
of designated manufactured and/or modular homes within two (2) business
days following written or faxed notification to the Carrier, weather
permitting. Shipper shall provide Carrier no
less than two (2) business days' notice of the shipping date, designation
and other necessary information for each planned movement of a home.
5. Carrier shall at all times during the term of this Contract provide Shipper
with Carrier's lowest line haul and other rates, net of any rebate for
shipping of manufactured and modular homes within the geographic area of
Shipper's operations.
6. At the option of Shipper, to provide transportation services and storage
facilities for homes which have not been picked up by Shipper's authorized
dealers within the five (5) working day term of Shipper. It is specifically
understood and agreed that the liability of Carrier for any loss to the
home while in storage awaiting pick up of an authorized dealer or further
shipping instructions by Shipper, shall be that of a warehouseman and not
that of a carrier. Fees for this service shall be set forth in the schedule
of rates and charges in Appendix A, and invoiced to Shipper when
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applicable.
7. Carrier will agree to:
a. Pull each home level.
b. Check and correct tire pressure prior to leaving plant and
periodically in route (at least every 300 miles or every stop,
whichever comes first).
c. Check and correct lug nuts for tightness prior to leaving plant and
periodically in route (at least every 300 miles or every stop,
whichever comes first).
d. Comply fully with all applicable laws, rules, regulations and other
requirements of all applicable regulatory regimes and jurisdictions.
II. SHIPPER AGREES:
1. In accordance with the terms and conditions in this Contract, Shipper
agrees to tender to carrier the property specified in Section 1, Paragraph
1 for transportation by Carrier from and to the points described herein. It
is specifically understood that Shipper will tender to Carrier 100% of the
production of its Lancaster and Forth Worth manufacturing centers for
transportation by the Carrier from the described origin points to the
described destination points except such property as may be transported by
authorized dealers of Shipper, provided, however, that Shipper may deliver
homes with its own vehicles or other contractors which Shipper has
contracted to install at a permanent homesite.
2. As full compensation for the services by Carrier to the terms and
conditions of this Contract, to pay Carrier within 30 days of receipt of
Carrier's invoice in accordance with the rates, charges and provisions
appearing in Carrier's freight xxxx/xxxx of lading, and/or schedules of
rates and charges (and amendments, supplements and revisions thereof) which
are made a part of this Contract and attached as Appendix B. It is
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specifically understood that Shipper may deduct amounts of claims or other
disputed items from Carrier's invoiced amounts once Carrier has given
reasonable information and 30 days from date of receipt at RoadMasters
Corporate Office to dispose of such claims and/or other disputed items.
III. CARRIER AND SHIPPER AGREE:
1. The initial term of this Contract, shall commence on the 1st day of March
2004, and shall expire on the last day of February 2005, provided that this
Contract shall automatically continue for two additional successive one
year terms (thus to as far as the last day of February 2007), unless
Shipper gives at least thirty (30) days advance written notice of
termination to Carrier prior to the end of any of the one year terms,
whereupon this Contract shall terminate at the end of then current year's
term of this Contract. Nothing in this paragraph shall be construed as
limiting, abridging or superseding any right of cancellation or termination
of this Contract as may be specified in any other paragraph of this
Contract.
2. All transportation performed by Carrier for Shipper hereunder shall be
subject to and governed by the terms and conditions of Carrier's attached
freight xxxx and such other rules, regulations, charges and provisions
appearing in Carrier's Fee and Service Schedule and amendments, supplements
and revisions thereof which are expressly incorporated by reference into
the Contract. To the extent that any provisions therein are in conflict
with the provisions of this Contract, the provisions of this Contract shall
be deemed as controlling.
3. In the event either party to this Contract is prevented from or delayed in
performing any of its obligations hereunder on account of any law or
legally binding order, regulation, direction, or act of any government or
any department or agency thereof having jurisdiction over such party, or on
account of war, Act of God, labor disturbances, or any cause beyond the
control of the parties, such party shall be excused from performing such
obligations to the extent of and for the term of the disability and the
other party shall be excused from performing its obligations hereunder to a
like extent; neither party shall be liable to the other for damages by
reason of any delay or suspension caused by events enumerated in this
paragraph.
4. All claims for recovery by Shipper as provided herein and as to each
shipment, must be filed with Carrier within ninety (90) days of the date of
delivery or tender of delivery of that shipment.
5. In the event a manufactured home or modular home is subsequently damaged or
injured in transit and while under the control of Carrier, the provisions
of this paragraph will control over any conflicting provisions of this
Agreement.
a. Carrier agrees that if the damaged home was a sectional home, and less
than all sections are damaged, that Carrier will promptly pay Shipper
an amount equal to Shipper's normal dealer invoice for all sections of
the home (whether or not all sections are damaged), less transport
charges and volume rebate earned by the intended dealer as of the date
of the accident. Shipper agrees that it will construct, upon Carrier's
written order and at Carrier's expense, the sections necessary to
complete any damaged home in Shipper's normal course of business.
Shipper will attempt to construct the sections with matching materials
whenever possible, but shall have no liability for failure to match
materials.
b. Carrier may request and Shipper may, at its option, agree to perform
repairs to damaged homes transported under this agreement. Such repair
will be made by Shipper at the Carrier's expense and for an amount to
be agreed upon at the time such repairs are performed. Such repairs
shall be made by Shipper in conformance with applicable codes without
warranty of any kind and are subject to the hold harmless set forth
below.
Carrier agrees that if Carrier resells any damaged home or section, whether
or not repairs have been made by shipper:
(1) Carrier will inform any potential buyer of the nature of and
extent of any damage.
(2) Carrier will inform any potential buyer in writing that the home
has no warranty from Shipper and will be sold "as is" and without
express or implied warranty other than a warranty offered by
Carrier, if any.
(3) Carrier will indemnify and hold Shipper harmless from any
damages, cost, expense, claim or demand relating to or arising
from repair or damages under the provisions of this Section,
whether based on breach of Contract, tort or any other legal
theory, it being the intent of the parties that Shipper shall
have no liability for ultimate sale of any replacement section
home. Carrier's liability shall not extend beyond the term of
Shipper's existing warranty. It is specifically understood that
Carrier has agreed to accept liability for loss of the property
caused by an Act of God and that Shipper has agreed to pay the
fees therefor as set forth in Appendix C.
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6. Except as may be otherwise specifically provided herein, the rights and
obligations of the parties with respect to shipments made pursuant to this
Contract are subject to any and all rules, regulations and orders of the
United States Government or any State Government, or any other governmental
entity, board, commission or agency thereof. This Contract shall be
construed according to the laws of the State of Texas, and if any
provisions of this Contract be declared
unlawful or unenforceable, by judicial determination or otherwise, the
remaining provisions of this Contract shall remain in full force and
effect.
7. This Contract shall not be assigned by either party without the written
consent of the other, which consent shall not be unreasonably withheld.
8. Any notice given in writing under this Contract shall be considered as
having been given by either party to the other party upon its receipt by
the other party and shall be sent by registered or certified mail to the
applicable address set forth in this Contract, or to such other addresses
as such other party may from time-to-time specify in writing as the
applicable address. Notices to the Shipper shall be sent to the attention
of the Vice President of Finance, American Homestar Corporation, 0000 Xxxxx
Xxxxx Xxxx., Xxxxx 000, Xxxxxx Xxxx, Xxxxx 00000. Notices to the Carrier
shall be sent to the attention of Xxxxxx Xxxx, Director of Sales and
Marketing, P. O. Xxx 0000, Xxxxxx, Xxxxx 00000.
9. If either party shall persistently and repeatedly refuse or fail to perform
any duty, obligation or responsibility required by the terms of this
Contract, or persistently disregard laws or regulations applicable to the
performance under the terms of this Contract or otherwise commit a
substantial violation of any provisions of this Contract, either party may,
without prejudice to any other right or remedy, state its intent to
terminate this Contract and the circumstances therefore by giving the other
party at least thirty (30) days prior written notice of such intent. In the
event that the offending party cures the complained of circumstances within
thirty (30) days of receipt of the written notice, and continues thereafter
to tender or transport the described property and to perform under this
Contract, all provisions of this Contract shall continue in full force and
effect.
10. That in the event the cost of fuel, insurance and/or other direct costs
related to the provision of the transportation services to be provided by
Carrier under this Contract shall increase or decrease, the compensation to
be paid by Carrier by Shipper for such transportation services shall be
subject to upward or downward adjustment in accordance with these costs. It
is specifically understood that, before any increase is implemented or
incurred, the Carrier shall present reasonable cost data in support thereof
to the Shipper including but not limited to fuel, insurance, and other
related direct transportation costs as well as data which may be available
and/or released by a Federal and/or State entity.
Signature Page follows:
IN WITNESS WHEREOF, the parties hereto have affixed their signatures to
this Contract as of the date set forth above.
"SHIPPER" "CARRIER"
AMERICAN HOMESTAR CORPORATION ROADMASTER TRANSPORT CO.
By: By:
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-------------------------- Xxxxx Xxxxx
Its: Its: President
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By:
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Xxxxx Xxxx
Its: Executive Vice President
By:
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Xxxxxx Xxxx
Its: Vice President, Sales and
Marketing
