Exhibit 10.10
MANAGEMENT AGREEMENT
Pyramid Coach, Inc. ("Pyramid"), a Tennessee corporation, a subsidiary of
Xxxxxx Corporation ("Xxxxxx"), a New York corporation, having its principal
place of business in Joelton, Tennessee, and DW Leasing Company, LLC ("DW"), a
Mississippi limited liability company, having its principal place of business in
Mississippi, hereby enter into this Management Agreement (this "Agreement") as
of the 16th day of June, 2001.
Now, therefore, in consideration of the mutual covenants set forth in this
Agreement, the parties to this Agreement hereby agree as follows:
1. Provision of Services. During the term of this Agreement, Pyramid shall
provide all of the management and operational services necessary and appropriate
for the leasing, operation and maintenance on behalf of DW of all motor coaches
owned by DW. Pyramid shall provide its services pursuant to this Agreement in a
manner which will qualify its activities on behalf of DW as the rendering of a
service rather than the leasing of tangible personal property subject to
Tennessee sale or use tax. Therefore, in performing its obligations under this
Agreement, Pyramid shall comply with the following provisions:
(a) Service Contract. Pyramid shall enter into a service contract with
all customers wishing to lease one of DW's motor coaches in the form of the
service contract attached as Exhibit A to this Agreement (the "Service
Agreement"). Pyramid shall not agree to any modifications to the
substantive terms of that form of agreement without the prior written
consent of DW.
(b) Performance of Obligations under Service Contract. Pyramid shall
perform all of its obligations under each Service Agreement on a timely
basis, including (without limitation) the following:
(1) Insurance. Pyramid shall obtain and maintain the
insurance coverage specified in each Service Contract and shall
name DW as an additional insured.
(2) Approved Operators. Pyramid shall allow only operators
approved by Pyramid to operate DW's motor coaches, consistent
with the approved operator provisions of each Service Agreement.
(c) Titleholder Agreement. Pyramid shall have the right to lease
each motor coach owned by DW on behalf of DW in Pyramid's name as
title owner of the motor coach. Pyramid and DW shall enter into one or
more titleholder agreements, in form and substance substantially
similar to the form of the titleholder agreement attached as Exhibit B
to this Agreement, for each motor coach owned by DW and leased
pursuant to a Service Contract. In the absence of the actual execution
and delivery of a titleholder agreement, Pyramid and DW shall have the
right to deem each other as having executed a titleholder agreement
for the applicable motor coach as of the execution date of the
applicable Service Contract.
(d) Operator Agreement. Pyramid shall have each customer enter
into an operator agreement with an approved operator for all of DW's
motor coaches in the form of the operator agreement attached as
Exhibit C to this Agreement (the "Operator Agreement"). Pyramid shall
not agree to any modifications to the substantive terms of that form
of agreement without the prior written consent of DW.
2. Delivery of Motor Coaches. Pyramid shall take and accept delivery of
each motor coach owned by DW and leased to a customer pursuant to the Service
Contract at DW's facilities in Mississippi, at the time and place that the
approved operator for the motor coach takes physical possession of the motor
coach.
3. Operating Accounts. Pyramid shall establish a separate operating account
for DW into which it shall deposit all cash receipts and from which it shall
make all cash disbursements for the benefit of DW.
4. Operational Expenses. Pyramid shall have the authority to incur and the
responsibility to advance payment of all operational expenses (except routine
fluid changes on the motor coaches) of DW relating to all motor coaches owned by
DW during the term of this Agreement, first, out of the cash receipts of DW and,
then, out of its separate funds to the extent DW does not generate sufficient
cash receipts. DW shall immediately reimburse Pyramid for any expenses advanced
from Pyramid's own funds upon receipt of an invoice for such expenses.
5. Term. The term of this Agreement shall begin on the date of this
Agreement and shall continue until terminated by either party upon at least
thirty (30) days prior written notice.
6. Compensation. For its services rendered during the term of this
Agreement Pyramid shall have the right to retain twenty percent (20%) of the
gross receipts from the operation of DW's motor coaches during the term of this
Agreement.
7. Liability. In carrying out its duties under this Agreement, Pyramid
shall not bear any liability to DW, except for actions involving willful
misconduct, fraud or gross negligence.
8. Entire Agreement. This Agreement constitutes the entire agreement of the
parties with regard to the subject matter of this Agreement and replaces and
supersedes all other written and oral agreements and statements of the parties
relating to the subject matter of this Agreement.
9. Waiver. The failure of a party to insist in any one or more instances on
the performance of any terms or conditions of this Agreement shall not operate
as a waiver of any future performance of that term or condition.
10. Assignment. No party may assign any of the party's rights or delegate
any of the party's obligations under this Agreement.
11. Governing Law. Notwithstanding the place where the parties execute this
Agreement, the internal laws of Mississippi shall govern the construction of the
terms and the application of the provisions of this Agreement.
12. Headings. The headings used in this Agreement appear strictly for the
parties' convenience in identifying the provisions of this Agreement and shall
not affect the construction or interpretation of the provisions of this
Agreement.
13. Binding Effect. This Agreement binds and inures to the benefit of the
parties and their respective successors, legal representatives, heirs and
permitted assigns.
14. Amendments. No amendments to this Agreement shall become effective or
binding on the parties, unless agreed to in writing by all of the parties, and
by the unanimous consent of the Board of Directors of Xxxxxx.
Executed on the day and year first set forth above.
Pyramid Coach, Inc.
By: [signature]
Its: Exec. Vice President
DW Leasing Company, LLC
By: /s/ Xxxxxxx X. Xxxxxx
Its: Managing Member
