AMENDED AND RESTATED AIRCRAFT MANAGEMENT AGREEMENT
Exhibit 10.32
AMENDED AND RESTATED AIRCRAFT MANAGEMENT AGREEMENT
THIS AMENDED AND RESTATED AIRCRAFT MANAGEMENT AGREEMENT (the “Agreement”) is made
and entered into as of the 30th day of September, 2008, by and between XXXXXX AVIATION,
INC. (“Xxxxxx”), National Education Loan Network, Inc. as successor in interest to 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 Amended and Restated Aircraft Joint
Ownership Agreement (the “Joint Ownership Agreement”) of even date herewith 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 on an annual basis or at such other times as the same may be changed in any material manner.
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 $19,121.00 per month commencing on
October 1, 2008. 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 in an amount consistent with their
Ownership Percentages (“Use Amount”) in each (12) month period, unless otherwise agreed.
(c) Each party shall in any case be responsible for all actual expense incurred as a result of
its use of the Aircraft.
(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. 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.
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(e) Subject to the Aircraft’s availability for use by another Joint Owner for such Joint
Owner’s Use Amount, a Joint Owner may make reasonable use of the Aircraft for more than the Joint
Owner’s Use Amount. In such situations, the Joint Owners shall reconcile actual use and expenses
pursuant to the Joint Ownership Agreement.
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. | National Education Loan Network, Inc. | |||||
By:
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/s/ Xxxx Xxxx | By: | /s/ Xxxxxxx X. Xxxx | |||
Title:
|
Title: | |||||
| Union Financial Services, Inc. | ||||||
By:
|
/s/ Xxxxxxx X. Xxxxxx | |||||
Title:
|
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