ASSIGNMENT AND CONSENT
Exhibit 10 (ff)
THIS ASSIGNMENT AND CONSENT (the “Assignment”)is made and entered into this 22 day of December, 2006, by and among NJI SALES, INC., formerly known as EJI SALES, INC., a Delaware corporation, having its principal office and place of business at 000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000 (“NJI SALES”), NETJETS INTERNATIONAL, INC., formerly known as EXECUTIVE JET INTERNATIONAL, INC., a Delaware corporation, having its principal office and place of business at 000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000 (“NJI”), NETJETS SERVICES, INC., formerly known as Executive Jet Services, Inc., a Delaware corporation, whose address is 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (“SERVICES”), XXXXXXX-XXXXXX USA, INC., a Delaware corporation, having its principal office and place of business at 0000 Xxxxxxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxx 00000 (“ASSIGNOR”) and 18000 LLC, a Delaware limited liability company, whose address is c/x Xxxxxxx Holdings, Inc., 000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 (“ASSIGNEE”).
WITNESSETH:
WHEREAS, ASSIGNOR and NJI SALES entered into a Gulfstream IV-SP Purchase Agreement dated January 31, 1997 (the “Purchase Agreement”), for the purchase of a fifty percent (50%) undivided interest in Gulfstream IV-SP aircraft serial number 1295 bearing United States Registration Number N495QS (the “Aircraft”);
WHEREAS, ASSIGNOR and NJI entered into a Gulfstream IV-SP Management Agreement dated January 31, 1997, as amended, covering the Aircraft (the “Management Agreement”);
WHEREAS, ASSIGNOR and SERVICES entered into a Gulfstream IV-SP Master Interchange Agreement dated January 31, 1997, covering the Aircraft (the “Master Interchange Agreement”);
WHEREAS, ASSIGNOR and other undivided interest owners of the Aircraft entered into a Gulfstream IV-SP Owners Agreement dated January 30, 1997, covering certain agreements among themselves (the “Owners Agreement”);
WHEREAS, ASSIGNOR, Gulfstream Aerospace Corporation, NJI, NJI SALES, and SERVICES entered into an Assignment and Consent Agreement dated August 17, 1999, wherein ASSIGNOR assigned its rights to and obligations for a thirty-seven and one-half percent (37.5%) undivided interest in the Aircraft, arising from and after August 17, 1999 to Gulfstream Aerospace Corporation, and Gulfstream Aerospace Corporation assumed ASSIGNOR'S rights and obligations for a thirty-seven and one-half percent (37.5%) undivided interest in the Aircraft arising from and after August 17, 1999;
WHEREAS, pursuant to Section 7 of the Purchase Agreement, ASSIGNOR wishes to assign a six and one-quarter percent (6.25%) interest in the Aircraft (the “Assigned Interest”) and to maintain a six and one-quarter percent (6.25%) undivided interest in the Aircraft (the
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“Remaining Interest”), by assigning its rights to and obligations under the aforementioned agreements for the Assigned Interest arising from and after the date hereof to ASSIGNEE, and ASSIGNEE wishes to assume ASSIGNOR’S rights and obligations arising from and after the date hereof under the aforementioned agreements with regard to the Assigned Interest; and
WHEREAS, NJI SALES, NJI and SERVICES wish to give their consent to such assignment.
NOW, THEREFORE, the parties to this Assignment and Consent agree as follows:
| 1. | Effective upon the Closing (as hereinafter defined), ASSIGNOR hereby assigns to ASSIGNEE clear title to the Assigned Interest, and ASSIGNEE accepts ownership of the Assigned Interest and assumes all the associated obligations under the aforementioned agreements with regard to the Assigned Interest arising from and after the Closing. |
| 2. | The aforementioned agreements with regard to the Assigned Interest are hereby assigned from ASSIGNOR to ASSIGNEE for a purchase price equal to One Million Two Hundred Thousand Dollars ($1,200,000.00), plus any applicable sales tax (the “Purchase Price”) paid in immediately available funds. |
| 3. | ASSIGNOR will maintain the Remaining Interest. |
| 4. | NJI SALES, NJI and SERVICES agree and consent to this Assignment. |
| 5. | The Schedule to the Management Agreement is amended by deleting the current Schedule and replacing it with the Assigned Interest Schedule and the Remaining Interest Schedule. |
| 6. | The ASSIGNEE agrees to all terms and conditions of the aforementioned agreements and shall be entitled to all claims, rights, and benefits thereunder or resulting therefrom. |
| 7. | The Closing (the “Closing”) shall take place on December 22, 2006 provided that the Aircraft shall then be positioned on the ground in one of the following states: New Hampshire, Oregon, Alaska, Montana, Massachusetts, Connecticut, or Delaware (collectively, the “Closing Jurisdiction”). In the event NJI is unable to position the Aircraft on the ground in one of the Closing Jurisdictions on or before January 2, 2007, NJI shall use commercially reasonable efforts to position the Aircraft on the ground in one of the Closing Jurisdictions as soon as practicable. In addition to the foregoing, the following conditions shall be satisfied prior to Closing: (i) each of ASSIGNOR and ASSIGNEE has executed and delivered to NJI this Assignment and all related documents: and (ii) ASSIGNOR has delivered to NJI an executed Form 8050-2 Aircraft Xxxx of Sale for the Assigned Interest, in a form acceptable for recording with the Federal Aviation Administration (the “FAA”). NJI shall prepare and arrange for filing with the FAA Aircraft Registry, all necessary documents sufficient to transfer and record the ownership of the Assigned Interest to ASSIGNEE. |
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| 8. | This Assignment shall be governed by the laws of the State of Ohio without giving effect to Ohio’s principles of conflicts of laws, and shall be construed in a manner consistent with the obligations of the parties under the aforementioned agreements. |
| 9. | This Assignment may be executed in counterparts, which shall, individually or in the aggregate, constitute a fully executed and binding agreement. |
| 10. | From the date hereof, except as provided herein, ASSIGNOR shall have no further liability under the aforementioned agreements with regard to the Assigned Interest and the ASSIGNEE shall assume all of the ASSIGNOR’S rights, duties and liabilities under the aforementioned agreements with regard to the Assigned Interest arising from and after the date hereof. |
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IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be executed by their duly authorized representatives.
| NJI SALES, INC. | XXXXXXX-XXXXXX USA, INC. | |||||||
| (“NJI SALES”) | (“ASSIGNOR”) | |||||||
| BY: | /s/ Xxxxxxx X. Xxxx |
BY: | /s/ Xxxx X. Xxxxxxx | |||||
| Xxxxxxx X. Xxxx | Xxxx X. Xxxxxxx | |||||||
| Title: | Senior Vice President and CFO | Title: | Secretary | |||||
| 18000 LLC | NETJETS INTERNATIONAL, INC. | |||||||
| (“ASSIGNEE”) | (“NJI”) | |||||||
| By: | Xxxxxxx Holdings, Inc. | BY: | /s/ Xxxxxxx X. Xxxx | |||||
| Its: | Sole Member | Xxxxxxx X. Xxxx | ||||||
| Title: | Senior Vice President and CFO | |||||||
| By: | /s/ Xxxxxx X. Xxxxxxx |
|||||||
| Xxxxxx X. Xxxxxxx | ||||||||
| Title: | President | |||||||
| NETJETS SERVICES, INC. | ||||||||
| (“SERVICES”) | ||||||||
| BY: | /s/ Xxxxx X. Beach |
|||||||
| Xxxxx X. Beach | ||||||||
| Title: | Senior Vice President | |||||||
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ASSIGNED INTEREST SCHEDULE
| Interest Percentage | 6.25% | |
| Monthly Management Fee | $14,597 (subject to Annual Escalation)* | |
| Established Avg. Rate per Gallon for Fuel | $1.60 | |
| Fuel Variable Rate | $8.33 per Occupied Hour per $.01 Differential | |
| Minimum Telephonic Notice | 10 Hours | |
| Allotted Hours | 50 hours per year (or prorated for part thereof) | |
| Occupied Hourly Rate Charge | $3,915 (subject to Annual Escalation)* | |
| Annual Available Hours per year | 62.5 hours per year | |
| Ferry Charge | $2,301 per hour (subject to Annual Escalation)* | |
Supplemental Hourly Charge:
$12,681 per Occupied Hour (subject to Annual Escalation)* for each hour flown in excess of 50.0 Occupied Hours per year (excluding up to 12.5 Carry Over Hours, if available) or $13,950 for each hour flown in excess of 62.5 Occupied Hours per year (excluding up to 12.5 Carry Over Hours, if available).
| Gulfstream IV-SP (GIV-SP) | ||
| Serial No. | 1295 | |
| FAA Registration No. | N495QS |
| * | Annual Escalation—Each of the applicable Occupied Hourly Rate Charge, Ferry Charge and Supplemental Hourly Charge shall be adjusted by the Consumer Price Index and the Monthly Management Fee shall be adjusted by the greater of the Consumer Price Index or 3.75% (on a cumulative basis) on January 1 of each year commencing January 1, 2007. |
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EXCHANGE SCHEDULE PURSUANT TO SECTION 8
In the event Owner requests use of an Aircraft other than a Gulfstream IV-SP aircraft then the Passenger Occupied Hours applicable for such trip shall be adjusted as follows:
| Type of Aircraft |
Percentage Equivalent to Use of a Gulfstream IV-SP | |
| Citation V Ultra | 45% | |
| Hawker 400XP | 48% | |
| Citation Encore | 50% | |
| Citation Excel | 55% | |
| Hawker 800XP | 60% | |
| Citation X | 75% | |
| Gulfstream 200 | 80% | |
| Falcon 2000/ Falcon 2000EX EASy | 85% | |
| Gulfstream IV-SP / Xxxxxxxxxx 000 / Xxxxxxxxxx 000 | 000% | |
| Xxxxxxxxxx X / Xxxxxxxxxx 550 | 130% | |
| Boeing 000-000 | 000% |
NJI reserves the right in its sole discretion to amend the above percentages and to add or delete type of aircraft on sixty (6O) days prior written notice.
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REMAINING INTEREST SCHEDULE
| Interest Percentage | 6.25% | |
| Monthly Management Fee | $14,597 (subject to Annual Escalation)* | |
| Established Avg. Rate per Gallon for Fuel | $1.60 | |
| Fuel Variable Rate | $8.33 per Occupied Hour per $.01 Differential | |
| Minimum Telephonic Notice | 10 Hours | |
| Allotted Hours | 50 hours per year (or prorated for part thereof) | |
| Occupied Hourly Rate Charge | $3,915 (subject to Annual Escalation)* | |
| Annual Available Hours per year | 62.5 hours per year | |
| Ferry Charge | $2,301 per hour (subject to Annual Escalation)* | |
Supplemental Hourly Charge:
$12,681 per Occupied Hour (subject to Annual Escalation)* for each hour flown in excess of 50.0 Occupied Hours per year (excluding up to 12.5 Carry Over Hours, if available) or $13,950 for each hour flown in excess of 62.5 Occupied Hours per year (excluding up to 12.5 Carry Over Hours, if available).
| Gulfstream IV-SP (GIV-SP) | ||
| Serial No, | 1295 | |
| FAA Registration No. | N495QS |
| * | Annual Escalation—Each of the applicable Occupied Hourly Rate Charge, Ferry Charge and Supplemental Hourly Charge shall be adjusted by the Consumer Price Index and the Monthly Management Fee shall be adjusted by the greater of the Consumer Price Index or 3.75% (on a cumulative basis) on January 1 of each year commencing January 1, 2007. |
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EXCHANGE SCHEDULE PURSUANT TO SECTION 8
In the event Owner requests use of an Aircraft other than a Gulfstream IV-SP aircraft then the Passenger Occupied Hours applicable for such trip shall be adjusted as follows:
| Type of Aircraft |
Percentage Equivalent to Use of a Gulfstream IV-SP | |
| Citation V Ultra | 45% | |
| Hawker 400XP | 48% | |
| Citation Encore | 50% | |
| Citation Excel | 55% | |
| Hawker 800XP | 60% | |
| Citation X | 75% | |
| Gulfstream 200 | 80% | |
| Falcon 2000/ Falcon 2000EX EASy | 85% | |
| Gulfstream IV-SP / Xxxxxxxxxx 000 / Xxxxxxxxxx 000 | 000% | |
| Xxxxxxxxxx X / Xxxxxxxxxx 550 | 130% | |
| Boeing 000-000 | 000% |
NJI reserves the right in its sole discretion to amend the above percentages and to add or delete type of aircraft on sixty (60) days prior written notice.
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| UNITED STATES OF AMERICA U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION
AIRCRAFT XXXX OF SALE |
FORM APPROVED OMB NO. 2120-0042 | |||||
| FOR AND IN CONSIDERATION OF $1+OVC THE UNDERSIGNED OWNER(S) OF THE FULL LEGAL AND BENEFICIAL TITLE OF* THE AIRCRAFT DESCRIBED AS FOLLOWS: |
||||||
| UNITED STATES | N | 495QS | ||||
| REGISTRATION NUMBER | ||||||
| AIRCRAFT MANUFACTURER & MODEL Gulfstream Aerospace G-IV |
||||||
| AIRCRAFT SERIAL No. 1295 |
||||||
| DOES THIS 22nd DAY OF December 2006 HEREBY SELL, GRANT, TRANSFER AND DELIVER ALL RIGHTS, TITLE, AND INTERESTS IN AND TO* SUCH AIRCRAFT UNTO: |
Do Not Write In This Block FOR FAA USE ONLY | |||||
| PURCHASER | NAME AND ADDRESS (IF INDIVIDUAL(S), GIVE LAST NAME, FIRST NAME, AND MIDDLE INITIAL)
18000 LLC Xxx Xxxxxxxxxx Xxxxxx 00xx Xxxxx Xxxxxxxx Xxxx, XX 00000 |
UNDIVIDED INTEREST *6.25% of 100% | ||||
| DEALER CERTIFICATE NUMBER | ||||||
| AND TO THEIR SUCCESSORS SINGULARLY THE SAID AIRCRAFT FOREVER, AND WARRANTS THE TITLE THEREOF: | ||||||
| IN TESTIMONY WHEREOF I HAVE SET MY HAND AND SEAL THIS 22nd DAY OF December, 2006 | ||||||
| SELLER | NAME(S) OF SELLER (TYPED OR PRINTED) |
SIGNATURE(S) (IN INK) (IF EXECUTED FOR CO-OWNERSHIP, ALL MUST SIGN.) |
TITLE (TYPED OR PRINTED) | |||
| Xxxxxxx-Xxxxxx | ||||||
| USA, Inc. | /s/ Xxxx X. Xxxxxxx | Secretary | ||||
| Xxxx X. Xxxxxxx
|
||||||
ACKNOWLEDGMENT (NOT REQUIRED FOR PURPOSES OF FAA RECORDING: HOWEVER, MAY BE REQUIRED
BY LOCAL LAW FOR
VALIDITY OF THE INSTRUMENT.)
ORIGINAL:
AC Form 8050-2 (9/92) (NSN 0052-00-629-0003) Supersedes Previous Edition
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LETTER AGREEMENT
December 22, 2006
Xx. Xxxx X. Xxxxxxx
Xxxxxxx-Xxxxxx USA, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxx, Xxxxxxxx 00000
Xx. Xxxxxx Xxxxxxx
18000 LLC
c/x Xxxxxxx Holdings, Inc.
000 X. Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Dear Xx. Xxxxxxx and Xx. Xxxxxxx:
We refer to the Purchase Agreement, Management Agreement and Master Interchange Agreement each dated January 31, 1997, and the Owners Agreement dated January 30, 1997 (collectively, the “Operative Documents”) for the acquisition of a fifty percent (50%) undivided interest in Gulfstream IV-SP aircraft serial number 1295, N495QS (the “Aircraft”) by Xxxxxxx-Xxxxxx USA, Inc. a Delaware corporation whose address is 0000 Xxxxxxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxx 00000 (“ACUSA”); and which 50% undivided interest was later reduced, as of August 17, 1999, to a twelve and one-half percent (12.5%) undivided interest.
We further refer to the Assignment and Consent dated December 22, 2006 wherein ACUSA assigned half of its interest, (or a six and one-quarter percent (6.25%) undivided interest) in the Aircraft to 18000 LLC, a Delaware limited liability company whose address is c/x Xxxxxxx Holdings, Inc., 000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 (“18000”). Capitalized terms used but not defined herein with respect to the Operative Documents will have the meaning given to them in the Operative Documents.
It is hereby agreed and understood between the parties hereto that upon the effective date of the Assignment and Consent a Final hours reconciliation will take place with regard to the Allotted Hours used under the ACUSA interest. The final accounting will determine how many Allotted Hours ACUSA was entitled to use during its pro rata ownership term of the
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12.5% interest. If ACUSA flew less than the Allotted Hours to which it was entitled, then half of those unused Allotted Hours shall be made available to 18000 on the effective date of the Assignment and Consent to be used on a pro rata basis over the term (including the renewal term commencing on January 31, 2007 pursuant to that certain Renewal Amendment between 18000 and NetJets International, Inc. dated January , 2007) of the 6.25% interest in the Aircraft for so long as 18000 retains its 6.25% interest.
ACUSA does not hereby represent that there are or will be any unused Allotted Hours available to 18000 on the effective date of the Assignment.
Except to the extent the terms of the Operative Documents or the Assignment and Consent may be modified or amended by the terms of this Letter Agreement, all the terms of the Operative Documents and the Assignment and Consent shall continue in full force and effect and shall not otherwise be affected, amended or modified by this Letter Agreement.
| Sincerely, | Agreed and Accepted: | |||||
| Xxxxxxx-Xxxxxx USA, Inc. (“ACUSA”) | ||||||
| /s/ Xxxxxxx X. Xxxx |
||||||
| Xxxxxxx X. Xxxx | BY: | /s/ Xxxx X. Xxxxxxx | ||||
| Senior Vice President and CFO | TITLE: | Secretary | ||||
| NetJets International, Inc. | ||||||
| 18000 LLC | ||||||
| (“18000”) | ||||||
| By: | Xxxxxxx Holdings, Inc. | |||||
| Its: | Sole Member | |||||
| BY: | /s/ X. X. Xxxxxxx | |||||
| Xxxxxx X. Xxxxxxx | ||||||
| TITLE: | President | |||||
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Hours Reconciliation
Final Calculation1
12/22/06 RCT
| Xxxxxxx-Xxxxxx USA, Inc. |
Assignor | ||||||
| Gulfstream IV-SP | N495QS | ||||||
| Interest Size | 12.500 | % | |||||
| Standard Hours Allotted per Year | 100.0 | ||||||
| Contract Start Date | 1/30/2006 | ||||||
| Calculation Date (Estimated Assignment Effective Date) |
12/22/2006 | ||||||
| Days Used in Term 2 | 326 | ||||||
| Hours Allotted per Day | 0.27397 | ||||||
| Standard Hours Allotted for Term | 89.3 | ||||||
| Carryover Hours 3 | Renewal | 45.0 | |||||
| Total Hours Allotted for Term |
134.3 | ||||||
| Total Contract Hours Used for Term | Preliminary Invoice Ending | 12/31/2006 | 95.7 | ||||
| (Over) / Under Flown Hours | 38.6 |
| 1 |
All calculations subject to change upon final review and distribution of Flight Activity Invoice. |
| 2 |
Number of days in term will be dependent upon payment of Monthly Management Fee. |
| 3 |
Previously applied Overflown or Underflown Hours. |
| * | Does not include a flight on 12/28 from New Orleans to West Palm Beach for approx. 2.5 hours. |
| Total Contract Allotted Hours |
145.0 | |
| Total Contract Hours Used |
95.7 | |
| Actual Contract Hours Remaining |
49.3 |
| Remaining Interest |
| ||||||
| Gulfstream IV-SP |
N495QS | ||||||
| Interest Size | 6.250 | % | |||||
| Standard Hours Allotted per Year | 50.0 | ||||||
| Contract Start Date (Estimated Assignment Effective Date) |
12/22/2006 | ||||||
| Original Contract End Date | 1/30/2007 | ||||||
| Days Contract will be Active | 39.0 | ||||||
| Years Contract will be Active | 0.11 | ||||||
| Standard Hours Allotted per Day | 0.13699 | ||||||
| Standard Hours Allotted for Term | 5.3 | ||||||
| Hours Allotted per Year (Prorata hours for partial years) | 5.3 | ||||||
| (Over) / Underflown Hours | 19.3 | ||||||
| Adjusted Contract Hours Allotted for the Term plus Underflown hours. |
24.6 | ||||||
| 18000 LLC |
Assigned Interest | Assignee | |||||
| Assigned Interest Size | 6,250 | % | |||||
| Standard Hours Allotted per Year |
50.0 | ||||||
| Contract Start Date (Estimated Assignment Effective Date) |
12/22/2006 | ||||||
| Original Contract End Date | 1/30/2007 | ||||||
| Days Remaining in Term | 39 | ||||||
| Years Remaining in Term | 0.11 | ||||||
| Standard Hours Allotted per Day | 0.13699 | ||||||
| Underflown Hours from Xxxxxxx-Xxxxxx. | 19.3 | ||||||
| Standard Hours Allotted for Term | 5.3 | ||||||
| Adjusted Contract Hours Allotted for the Term plus Underflown hours from Xxxxxxx-Xxxxxx. |
24.6 | ||||||
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