EXHIBIT 10.66
AGREEMENT TO PURCHASE AND SELL PARTIAL INTEREST IN AIRCRAFT
THIS AGREEMENT TO PURCHASE AND SELL PARTIAL INTEREST IN AIRCRAFT (the
"AGREEMENT") is made and entered into as of this 27th day of September, 2004, by
and between Nelnet Corporate Services, Inc., f/k/a Nelnet Corporation (herein
referred to as "Seller"), and Crete Carrier Corporation ("Crete Carrier") and
Nebco Intermodal, Inc. ("Nebco"), (Crete Carrier and Nebco being referred to
herein individually as a "Purchaser" and collectively as the "Purchasers"), with
respect to That certain Cessna Citation Excel model aircraft, Serial No.
560-5270, Reg No. N300DA (the "Aircraft")
NOW, THEREFORE, in consideration of the mutual covenants hereafter contained,
the parties hereto agree as follows:
1. Sale of Seller's Interest in Aircraft. Seller hereby agrees to sell,
assign, transfer and deliver to Purchasers and Purchasers hereby
severally agree to purchase from the Seller, under and pursuant to the
terms and conditions hereafter set forth, Seller's undivided aggregate
45% ownership interest in the above referenced Aircraft in the following
proportion: (i) an undivided 30% interest in the Aircraft shall be
transferred to Crete Carrier, and (ii) an undivided 15% in the Aircraft
shall be transferred to Nebco.
2. Purchase Price. The purchase price for the portion of Seller's ownership
interest in the Aircraft purchased by Crete Carrier shall be Two
Million, Three Hundred Eighty Two Thousand, One Hundred Seventeen
Dollars ($2,382,117.00). The purchase price for the portion of Seller's
ownership interest in the Aircraft purchase by Nebco shall be One
Million, One Hundred Ninety One Thousand, Fifty Eight Dollars
($1,191,058.00).
3. No Encumbrance. The Seller's interest in the Aircraft shall be
transferred to Purchasers free and clear of all security interests,
liens or encumbrances of any nature whatsoever.
4. Closing. The Closing shall be set to occur no later than 2 business days
after execution of this AGREEMENT. Closing shall take place as evidenced
by executing and filing an FAA Aircraft Bill of Sale (AC Form 8050-2)
with the FAA Aircraft Registry on behalf of Purchaser, and wire
transfering the Purchase Price to Seller or its designated Qualified
Intermediary, per their written instructions, and by delivery to the
respective Purchasers of a Bill of Sale in the form attached hereto as
Exhibit A.
5. Risk of Loss. Risk of loss, damage, or destruction of the Seller's
interest in the Aircraft shall pass from Seller to Purchasers upon
Closing of the sale of Seller's interest in the Aircraft.
6. Representations. Seller represents and warrants that it is the sole
owner of an undivided 45% interest in the Aircraft, that it has good and
merchantable title to an undivided 45% interst in the Aircraft, and that
Seller's interest in the Aircraft will be transferred to the respective
Purchasers free and clear of all security interests, liens, claims, and
encumbrances whatsoever. Seller further represents and warrants that it
has no knowledge of any defect or deficiency with respect to the
Aircraft.
EXCEPT FOR THE WARRANTY OF TITLE EXPRESSLY SET FORTH HEREIN, "SELLER"
MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE REGARDING
THE "AIRCRAFT", WHICH ARE DELIVERED HEREUNDER IN AN "AS IS, WHERE IS"
CONDITION. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, "SELLER"
DISCLAIMS ALL OTHER WARRANTIES, GUARANTEES OR LIABILITIES, WHETHER
EXPRESS OR IMPLIED OR STATUTORY, SUCH AS THE CONDITION OF THE "AIRCRAFT"
AIRWORTHINESS, DESIGN, QUALITY OF WORKMANSHIP OR MATERIALS,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. BROKER'S COMMISSION. Seller and Purchasers each represent and warrant to
the other that they have taken no action which would obligate the other
parties or give rise to a valid claim for a broker's fee in connection
with this transaction and each party agrees to indemnify and forever
hold the other harmless from and against any claims for brokers'
compensations, fees, or commissions arising out of the indemnifying
party's actions.
8. TAXES. Purchasers shall pay, and shall indemnify and hold the Seller
harmless from all sales, use, property, ad valorem, value added, or
other similar taxes, fees, or other charges of any nature (excluding
taxes on net or gross income or gain realized by the Seller) together
with any penalties, fines, or interest thereon which may be assessed or
levied by the U.S. Government or other U.S. taxing authority as a result
of the Purchasers' acquiring Seller's interest in the Aircraft. Seller
shall be responsible for any taxes, fees, or charges assessed against
the Aircraft prior to Closing and shall indemnify and hold Purchasers
harmless from these taxes.
9. PRIOR AGREEMENTS. This AGREEMENT sets forth the entire contract between
the parties and supersedes all previous communications, representations,
or agreements, whether oral or written, between the parties with respect
to the sale and purchase of Seller's interest in the Aircraft. The
parties agree that the Aircraft Joint Ownership Agreement dated as of
August 22, 2002 (the "Ownership Agreement") between Seller and
Purchasers is hereby amended to delete Seller as a party thereto, and to
transfer Seller's rights and obligations pursuant to the Ownership
Agreement to Purchasers in the same proportion as Seller's ownership
interest in the Aircraft is being transferred (30% to Crete Carrier and
15% to Nebco). The Purchasers further acknowledge that Seller has fully
satisfied its obligations under the Ownership Agreement and the Seller
shall have no further duties or obligations in connection with the
Ownership Agreement. Purchasers shall severally assume all of Seller's
obligations under the Ownership Agreement arising after the Closing of
the sale pursuant to this AGREEMENT in the same proportion as Seller's
ownership interest in the Aircraft is being transferred hereunder.
Purchasers shall use best efforts in good faith to terminate or amend
the Aircraft Management Agreement dated as of August 22, 2002 (the
"Management Agreement") between Duncan Aviation, Inc. ("Duncan"),
Purchasers and Seller, so as to remove Seller as a party to such
Management Agreement, and that Purchasers hereby severally assume all of
Seller's obligations under the Management Agreement arising after the
Closing of the sale pursuant to this AGREEMENT in the same proportion as
Seller's ownership interest in the Aircraft is being transferred
hereunder . Purchasers agrees to indemnify and hold harmless Seller for
any claim of Duncan under the Management Agreement arising on or after
the date of Closing.
10. AMENDMENTS. This AGREEMENT may be amended only by a written instrument
executed by all parties.
11. AUTHORIZATION. Seller and Purchaser each warrant to the other that the
execution, delivery, and performance of this AGREEMENT has been
authorized and approved by all required corporate action, and the
parties executing this document warrant their authority to so bind the
respective parties.
12. COUNTERPARTS. This AGREEMENT may be executed in two or more
counterparts, each of which shall be deemed an original and shall be
effective when executed by both parties.
13. GOVERNING LAW. This contract shall be deemed to have been made, executed
under and governed by the law of the State of Nebraska.
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14. 1031 EXCHANGE. Seller and/or Purchasers may structure the transaction
herein contemplated as the receipt of replacement property pursuant to a
like-kind exchange under the provisions of Section 1031 of the Internal
Revenue Code of 1986, as amended, and the Treasury Regulations
promulgated thereunder (the "Regulations"). It is expressly acknowledged
that Seller and/or Purchasers may assign its rights in this AGREEMENT to
a qualified intermediary as defined in the Regulations ("Qualified
Intermediary") and at Closing, at the request of Purchasers or the
Qualified Intermediary, Seller will transfer title to the Aircraft to
Purchasers, the Qualified Intermediary or to an "Exchange Accommodation
Titleholder" as defined in Revenue Procedure 2000-37, 2000-2 C.B. 38.
Any assignment of this AGREEMENT shall be in writing and notification of
the assignment shall be given to Seller and/or Purchasers in writing at
or before Closing. Seller and/or Purchasers will cooperate with Seller
and/or Purchasers if requested by Seller and/or Purchasers to structure
the transaction in such manner, and will execute any documents that
Seller and/or Purchasers may be reasonably requested to sign that are
consistent with this AGREEMENT, provided Seller and/or Purchasers incur
no additional cost or expense and are held harmless against any
liability arising because of the intended like-kind exchange or any
challenge to or failure of this transaction to qualify for such
treatment. The conclusion of such like-kind exchange shall not be a
condition precedent to the conclusion of this AGREEMENT, or payment for
the Seller's interest in the Aircraft.
IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT TO
PURCHASE AND SELL PARTIAL INTEREST IN AIRCRAFT by their duly authorized
representative, the day and year first above written.
Nelnet Corporate Servcies, Inc., f/k/a Crete Carrier Corporation
Nelnet Corporation
By: /s/ Terry J. Heimes__ By: /s/ Tonn M. Ostergard
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Chief Financial Officer President
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Name and Title Name and Title
Nebco Intermodal, Inc.
By: /s/ Stan Malz
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Name and Title
EXHIBIT A.
WARRANTY BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS:
That Nelnet Corporate Services, Inc., f/k/a Nelnet Corporation ("SELLER"), in
consideration of the sum of ONE DOLLAR ($1.00) and other good and valuable
consideration paid to it by Crete Carrier Corporation and Nebco Intermodal, Inc.
(collectively, the "Purchaser"), the receipt of which is hereby acknowledged,
hereby sells, grants, transfers and delivers to Purchaser, its successors and
assigns all of SELLER's undivided 45% right, title and interest in and to the
airframe described as Cessna Citation Excel Serial Number 560-5270, together
with the engines installed thereon, together also with all equipment,
components, appliances, parts, instruments, avionics, appurtenances,
accessories, furnishings and other equipment of whatever nature installed in or
attached to the airframe or the engines ("Components"), together also with all
loose equipment and documents in the airframe and spare parts associated with
the airframe, engines or components, together with all repair or maintenance
agreements or programs relating to the airframe, engines or components, all
pursuant to that Agreement to Purchase and Sell Partial Interest in Aircraft
dated as of September ___, 2004 (collectively, the "Aircraft").
That SELLER hereby warrants to PURCHASER, its successors and assigns
that it is the holder of title to an undivided 45% interest in the Aircraft and
has the right to sell the same as aforesaid and that this Bill of Sale conveys
to PURCHASER good and marketable title to an undivided 45% interest in the
Aircraft, free and clear of all security interests, liens, claims, charges and
encumbrances of any nature whatsoever, and that SELLER will warrant and defend
such an undivided 45% interst in title forever against all claims and demands
whatsoever.
That SELLER agrees and acknowledges that the terms and conditions of
this Bill of Sale shall survive the delivery of this Bill of Sale and the
recording of this or any Federal Aviation Administration Bill of Sale.
IN WITNESS WHEREOF, SELLER has caused this Bill of Sale to be signed by
its duly authorized officer this ________ day of ______________________, 2004.
Nelnet Corporate Services, Inc.,
f/k/a Nelnet Corporation
By:____________________________
Its:____________________________