EXHIBIT 10.67
AIRCRAFT MANAGEMENT AGREEMENT
THIS AIRCRAFT MANAGEMENT AGREEMENT (the "Agreement") is made and entered
into as of the 30th day of September, 2004, by and between XXXXXX AVIATION, INC.
("Xxxxxx") and Nelnet Corporate Services, Inc. ("Nelnet") and Union Financial
Services, Inc. ("UFS") (Nelnet and UFS being sometimes referred to herein
individually as a "Joint Owner" and collectively as the "Joint Owners") and is
made with reference to the following:
A. Joint Owners are the owners, as tenants in common, of that certain
Cessna Citation VI aircraft, Serial No. 650-0232, Registration No. N711LV (the
"Aircraft").
B. Joint Owners have agreed pursuant to the terms of an Aircraft
Joint Ownership Agreement (the "Joint Ownership Agreement") of even date
herewith executed amount them to engage the services of Xxxxxx to manage the
Aircraft.
X. Xxxxxx is desirous of managing the use, maintenance and all other
matters pertaining to the Aircraft on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, and intending to be legally bound hereby, the
parties agree as follows:
1. Joint Owners hereby engage Xxxxxx, and Xxxxxx hereby agrees, to
manage the Aircraft for the benefit of the Joint Owners. Xxxxxx hereby accepts
possession of the Aircraft from the Joint Owners for the purposes set forth
herein.
2. Xxxxxx hereby agrees to manage, maintain and operate the Aircraft for
the benefit of the Joint Owners with all due reasonable care and in accordance
with applicable insurance coverage and within the standards and guidelines
established by the Federal Aviation Administration (the "FAA") and to comply
with all laws, ordinances or regulations relating to the use, operation and
maintenance of the Aircraft. Xxxxxx will permit the Aircraft to be used only as
contemplated by the manufacturer thereof as specified in the owner's manual and
other technical materials regarding the Aircraft provided by the manufacturer.
3. Throughout the term of this Agreement, Xxxxxx will (a) inspect,
maintain, service, repair, overhaul and test the Aircraft by duly competent
personnel, in accordance with FAA approved maintenance and preventive repair
programs therefore, as required to keep the Aircraft airworthy and in good
operating condition; (b) maintain all records, logs and other materials required
by the FAA to be maintained in respect of the Aircraft and make the same
available for Joint Owners' inspection; and (c) comply with all laws of every
jurisdiction in which the Aircraft may be operated and with all rules of the FAA
and any other governmental body exercising jurisdiction over the Aircraft, and
shall maintain the Aircraft in proper condition for operation under such laws
and rules including, without limitation, all manufacturer's recommended
maintenance.
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4. (a) Xxxxxx hereby agrees to provide and make available to Joint
Owners, professionally qualified pilots who are familiar with and licensed to
operate the Aircraft and who meet and maintain the requirements of any insurance
policy covering the Aircraft. Such pilots shall be reasonably acceptable to the
Joint Owners.
(b) Joint Owners hereby direct Xxxxxx, and Xxxxxx hereby agrees,
to make all necessary take-off, flight and landing arrangements for flights
operated by Joint Owners. Xxxxxx will pay for and xxxx the Joint Owner on whose
behalf the flight is conducted, and such Joint Owner shall be liable for and
agrees to pay for, all flight operating expenses relating to such flight
including but not limited to fuel, travel and lodging expenses for the crew,
hangar and tie-down costs, landing fees, in-flight food and beverages. Fuel
purchased at a Xxxxxx facility shall be charged for at 80% of Xxxxxx'x then
current standard fuel rate. Joint Owners shall, at reasonable times, have the
right to inspect Xxxxxx'x records with respect to the Aircraft (including,
without limitation, all maintenance records).
5. Xxxxxx shall provide suitable hangar facilities for the Aircraft at
the Lincoln, Nebraska Municipal Airport which facilities shall be reasonably
acceptable to the Joint Owners.
6. (a) Joint Owners hereby direct and Xxxxxx hereby agrees to arrange
for, obtain and keep in force during the term of this Agreement, the following
insurance coverages with insurers of recognized reputation, responsibility and
having at least an A.M. Best rating of "A" or better:
(1) aircraft physical damage insurance with no deductible
with respect to the Aircraft, against loss, theft or damage, extended coverage
with respect to any engines or parts while removed from the Aircraft, for not
less than the current fair market value of the Aircraft naming the Joint Owners
as named insureds and as loss payees with losses payable as their respective
interests may appear in the event of an actual or constructive total loss.
(2) passenger and third party liability insurance for the
Aircraft in an amount not less than One Hundred Million Dollars
($100,000,000.00) combined single limit liability coverage and shall cause each
Joint Owner to be named insureds thereunder.
(b) Copies of such policies and certificates of insurance shall
be furnished to each Joint Owner upon request. Such insurance shall be
maintained by Xxxxxx in full force and effect throughout the term hereof and the
insurer shall provide each Joint Owner with thirty (30) days advance written
notice of cancellation or material alteration.
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7. Xxxxxx will provide assistance to and consult with Joint Owners in
all matters regarding the Aircraft including, but not limited to:
(a) FAA and manufacturer's correspondence and directives;
(b) Enforcement of warranty claims;
(c) Enforcement, litigation and settlement of insurance matters;
and
(d) Parts replacement, services and maintenance arrangements.
8. As compensation for the services to be provided by Xxxxxx hereunder,
Joint Owners hereby agree to pay a Monthly Management Fee to Xxxxxx in the
amount of $17,902.00 per month commencing on October 1, 2004. The Monthly
Management Fee shall be Xxxxxx`s full compensation for the salaries, benefits
and payroll taxes of the pilots of the Aircraft, the cost of providing hull and
liability insurance on the Aircraft, pilot training, navigation and weather
services, hangar rent and for providing management and scheduling services
hereunder. Each Joint Owner's pro-rata portion of the monthly Management Fee
shall be due and payable to Xxxxxx in advance not later than the 10th day of
each month. The Monthly Management Fee is subject to adjustment by mutual
agreement of the parties to reflect the then current cost of providing the
services covered thereby.
9. As compensation for the cost of providing repair and maintenance
services hereunder, each Joint Owner hereby agrees to pay Xxxxxx such Joint
Owner's pro-rata portion of the cost of maintaining and repairing the Aircraft
and its components. Determination of a Joint Owner's pro-rata portion of repair
and maintenance costs will be determined on the basis of the Joint Owner's
cumulative Actual Use Percentage determined in accordance with the Joint
Ownership Agreement as of the date the work is performed.
10. Xxxxxx shall have the exclusive right to schedule use of the
Aircraft among the Joint Owners in accordance with the following criteria:
(a) Use will be scheduled on a "first-come, first served" basis,
subject, however, to the provisions of subsection (e) of this Section 10.
(b) Each Joint Owner will be entitled to use the Aircraft for the
following number of flight hours (the "Allocated Flight Hours") during each
twelve-month period commencing with the date of this Agreement:
Nelnet 300 hours
UFS 100 hours
(c) Allocated Flight Hours not utilized during any twelve-month
period may not be carried over to subsequent periods.
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(d) A Joint Owner's use of the Aircraft will be deemed to
commence at the time the Aircraft takes off and will terminate when the Aircraft
lands at the destination Airport unless the Joint Owner requires the Aircraft to
lay-over, in which case use of the Aircraft will terminate when the Joint Owner
releases the Aircraft. In addition, one-tenth (1/10) of an hour shall be added
to each take-off and landing to account for taxi time. Each such hour of use of
the Aircraft (including such one-tenth (1/10) hour for each take-off and
landing) and rounded to the nearest one-tenth (1/10) of an hour is referred to
herein as a "Flight Hour". Flight Hours for one-way trips shall include, as
applicable, the time required to position the Aircraft from Lincoln, Nebraska to
the point of origin or to return the Aircraft to Lincoln, Nebraska from the
point of destination. Notwithstanding the foregoing, each Joint Owner agrees
that each day it uses the Aircraft (including lay-over days) shall be deemed to
be a minimum of one and one-half (1.5) Flight Hours.
(e) Subject to the Aircraft's availability for use by another
Joint Owner for such Joint Owner's Allocated Flight Hours, a Joint Owner may
make reasonable use of the Aircraft for more than the Joint Owner's annual
Allocated Flight Hours. For purposes of calculating the Joint Owner's proportion
of the Aircraft's airframe and maintenance expenses in accordance with the terms
of this Agreement, each Flight Hour, or portion thereof, in excess of the Joint
Owner's Allocated Flight Hours during any year shall be multiplied by a factor
of 1.1.
11. This Agreement is effective as of the date first written above and
will continue in effect until cancelled by Xxxxxx or by the Joint Owners holding
a majority of the Ownership Percentages upon not less than thirty (30) days
prior written notice.
12. Joint Owners acknowledge and agree that Xxxxxx shall have no
liability for delay or failure to furnish the Aircraft and pilots pursuant to
this Agreement when such failure is caused by government regulation or
authority, war, civil commotion, strikes or labor disputes, weather condition,
Acts of God or as the result of maintenance or repair activities. Joint Owners
and Xxxxxx further agree that when, in the reasonable view of the Joint Owner,
Xxxxxx or the pilots of the Aircraft, safety may be compromised, the Joint
Owner, Xxxxxx or the pilots may terminate a flight, refuse to commence a flight,
or take other action necessitated by such safety considerations without
liability for loss, injury, damage or delay.
13. Joint Owners acknowledge and agree that it is their responsibility
to ensure that operations of the Aircraft conducted on behalf of the Joint
Owners are not subject to the provisions of Part 135 of the Federal Aviation
Regulations. Each Joint Owner severally agrees that it will indemnify, defend
and hold Xxxxxx harmless from any liability, cost or expense, including cost of
defense, arising out of fines, penalties or other administrative sanctions
imposed on or threatened or assessed against Xxxxxx as a result of the failure
of such Joint Owner to comply with this obligation.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
Xxxxxx Aviation, Inc. Nelnet Corporate Services, Inc.
By:/s/ Xxxx Xxxxxxx By: /s/ Xxxxx X. Xxxxxx
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Title: Title: Chief Financial Officer
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Union Financial Services, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
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Title:
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