EXHIBIT 99.2
AGENCY AGREEMENT
This Agreement is entered into this 25th day of May, 2004 by and between
Peritas, LLC a Delaware limited liability company (hereinafter "PERITAS"), and
Velocity Express, Inc., a Delaware corporation, located at 0000 Xxxxxxx Xxxx,
Xxxxxxxxxxx, XX 00000 (hereinafter "Agent").
WHEREAS, PERITAS is the owner and operator of rental vehicles and a vehicle
renting businesses throughout the United States; and,
WHEREAS, Agent is in the time critical logistics and delivery business at
multiple Velocity locations (the "Velocity Locations") throughout the United
States.
NOW, THEREFORE, PERITAS and Agent agree as follows:
1. Appointment of Agent. PERITAS appoints Agent as PERITAS' non-exclusive
independent rental agent for the purpose of renting Vehicles to the
public from the Velocity Locations in accordance with this Agreement.
2. Term of Agreement. This Agreement shall begin on the Effective Date and
continue in effect for twelve (12) months thereafter.
3. Compensation.
a. PERITAS shall pay Agent monthly 10% ("Commission") of Gross
Rental Revenue. "Gross Rental Revenue" means all sums paid by
renters for rental of Vehicles during the prior month from the
Velocity Locations, including time and mileage charges,
additional driver fees, but excluding sums paid for insurance,
sales, use or other taxes, government imposed fees, deposits,
fuel, and amounts collected as a result of damage to, or loss
of, rental Vehicles.
b. On the twentieth (20th) day following the last day of each
month, and upon receipt from Agent of all rental revenues and
documents required by this Agreement, PERITAS will calculate and
pay the Commission to Agent on all rental agreements closed and
collected during the prior month.
c. PERITAS may deduct from the Commission any monies owed to
PERITAS by Agent under this Agreement.
4. PERITAS' Obligations. During the term of this Agreement, PERITAS will:
a. Supply Agent with Vehicles to rent in types and quantities
determined jointly by the parties.
b. Reimburse Agent for expenses authorized by PERITAS and incurred
by Agent to prepare Vehicles for rental.
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c. Furnish Agent with Rental Agreements and Accident Report forms
in quantities determined by the parties.
d. Pay to all state, city and local authorities sales and other
related taxes incurred in the rental of Vehicles by Agent.
e. Provide training in the business of renting Vehicles.
f. Indemnify, hold harmless and defend Agent from and against all
liabilities, claims, demands, lawsuits, penalties, fines,
forfeitures, seizures, judgments, costs and expenses, including
but not limited to, reasonable attorney's fees and litigation
costs, caused by or arising out of Vehicle rental transactions
from Velocity Locations, or otherwise related to the use of a
Vehicle by a rentor in which a PERITAS-owned Vehicle is
involved, excluding claims resulting from Agent's failure to
comply with PERITAS' or Velocity's renter and credit
qualifications and Vehicle maintenance procedures.
5. Agent's Obligations. During the term of this Agreement Agent will:
a. Rent Vehicles in accordance with the terms of this Agreement,
the PERITAS Rental Agreement forms, and all other policies,
programs, procedures, standards, methods, rules and regulations
as PERITAS may prescribe from time to time. In no event will
agent rent any PERITAS vehicle for a period of more than 30
days.
b. On the first Monday of each month, deliver to PERITAS: (i) the
Gross Rental Revenue and insurance payments collected during the
prior month; (ii) copies of all rental agreements closed during
the prior month; (iii) an accurate report of Agent's monthly
rental transactions; and, (iv) all other reports reasonably
requested by PERITAS from time-to-time.
c. Collect all monies in connection with the rental of Vehicles and
hold those monies in trust for PERITAS. The title and ownership
of such monies is vested at all times in PERITAS. Agent agrees
that PERITAS may audit and correct the charges in any rental
agreement and adjust the Commission based upon he corrected
rental agreements.
d. Not permit the operation or use of the rental Vehicles not on
rent by any person except Agent's employees who are properly
qualified and licensed drivers and only for purposes of
cleaning, washing, fueling, servicing, parking and storing the
Vehicles, unless otherwise authorized by PERITAS,
e. Promptly report to PERITAS all accidents, claims, injuries,
losses or damages involving any rental Vehicle.
f. Promptly report to PERITAS any theft, conversion, or
unaccounted-for rental Vehicles.
g. Comply with all laws, regulations and ordinances of any
governmental authority having jurisdiction with respect to the
rental of Vehicles at Velocity Locations.
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h. Maintain the rental Vehicles in good running condition. PERITAS
will reimburse Agent for Agent's out of pocket costs for such
maintenance. Repairs or maintenance of Vehicles other than
routine fluid replenishment must have PERITAS' prior approval.
i. Wash and clean the exterior and interior of each Vehicle after
each rental, and keep the rental Vehicles neat, clean and
presentable for use by renters.
j. Account for all odometer mileage accumulated on the Vehicles
while in Agent's possession. In no event shall Agent allow the
use of PERITAS Vehicle's for any purpose not permitted by this
Agreement and, in the event that a Vehicle is allowed to
accumulate miles for which PERITAS is not compensated for as
provided herein, Agent will be obligated to compensate PERITAS
for such use in an amount to be agreed to by the parties.
k. Provide PERITAS or its representative with access to all books
and records relating to the rental of Vehicles at the Velocity
Locations on demand at any time, and to permit the audit or
removal of such books and records by PERITAS or its
representative. If Agent underreports Gross Rental Revenue,
Agent will pay PERITAS for the cost of the audit and will pay
PERITAS all underreported Gross Rental Revenue on demand. Agent
will retain all business records generated by the rental or
maintenance of Vehicles for at least three (3) years from the
date of each rental.
l. Reimburse PERITAS for theft, loss or damage to rental Vehicles
while in Agent's custody where such theft, loss or damage to the
Vehicle is caused by the negligent or intentional acts or
omissions of Agent, its agents or employees.
6. Transfer of Vehicles. Vehicles will be delivered to Agent and picked up
from Agent in accordance with PERITAS' procedures. All Vehicles are to
be inspected by Agent for any physical damage at the time of delivery
to, or pick up from, Agent.
7. Relationship of the Parties. Nothing contained in this Agreement or any
acts of the parties to this Agreement shall be deemed as creating the
relationship of employer-employee, franchisor-franchisee, a partnership,
or a joint venture.
8. Termination. Either party may terminate this Agreement at any time with
thirty (30) days prior written notice to the other party.
9. Requirements Upon Termination. Upon notice of termination of this
Agreement by either party, Agent will: (i) immediately stop its use of
all rental Vehicles; (ii) not rent any Vehicles unless authorized in a
prior writing by PERITAS; (iii) immediately stop Agent's use of any
PERITAS-owned trade names or service marks used in the Vehicle rental
business operated under this Agreement; (iv) account to PERITAS in
writing for all rental agreements and monies due to PERITAS; (v)
immediately deliver to PERITAS all rental Vehicles; and, (vi) pay
PERITAS all monies owed under this Agreement.
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10. Insurance. While this Agreement is in effect, PERITAS shall procure and
maintain with an insurance carrier satisfactory to PERITAS automotive
liability insurance covering the Vehicles rented or stored for rent at
Velocity Locations in an amount not less than $300,000 combined single
limit, per occurrence. Such policies of insurance will name Agent as an
additional insured.
11. Warranty. PERITAS makes no express or implied warranty concerning the
vehicles, including without limitation, the condition of the vehicles or
their merchantability or fitness for any particular purpose.
12. Notices. All notices to either party will be delivered by hand,
registered or certified mail return receipt requested, by telefax or
overnight courier to the addresses shown above, or at such other
addresses as are designated by the parties in writing.
13. Assignment; Binding Effect. Agent may not assign its rights under this
Agreement without PERITAS' prior written consent. There are no
restrictions on PERITAS' right to assign its rights or duties under this
Agreement. This Agreement will be binding upon and inure to the benefit
of the parties and their respective successors and permitted assigns.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Connecticut.
18. Integration. This writing represents the sole agreement between the
parties. All prior writings and verbal agreements are merged into this
Agreement.
IN WITNESS WHEREOF, PERITAS and Agent have signed this Agreement as of
the date first written above.
AGENT PERITAS
By: By:
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Title: Title:
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Date Signed: Date Signed:
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