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Exhibit 10
(ff)
ASSIGNMENT AND
CONSENT
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 108 Traders Cross,
Suite 200, Okatie, SC 29909 (“NJI SALES”), NETJETS
INTERNATIONAL, INC., formerly known as EXECUTIVE JET INTERNATIONAL,
INC., a Delaware corporation, having its principal office and place
of business at 108 Traders Cross, Suite 200, Okatie, SC 29909
(“NJI”), NETJETS SERVICES, INC., formerly known as
Executive Jet Services, Inc., a Delaware corporation, whose address
is 4111 Bridgeway Avenue, Columbus, Ohio 43219
(“SERVICES”), ALBERTO-CULVER USA, INC., a Delaware
corporation, having its principal office and place of business at
2525 Armitage Avenue, Melrose Park, Illinois 60160
(“ASSIGNOR”) and 18000 LLC, a Delaware limited
liability company, whose address is c/o Bernick Holdings, Inc., 401
N. Michigan Avenue, Suite 1818, Chicago, Illinois 60611
(“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:
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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. |
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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. |
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3. |
ASSIGNOR will maintain the Remaining Interest. |
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4. |
NJI SALES, NJI and SERVICES agree and consent to this
Assignment. |
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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. |
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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. |
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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 Bill 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. |
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9. |
This Assignment may be executed in counterparts, which shall,
individually or in the aggregate, constitute a fully executed and
binding agreement. |
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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.
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| NJI SALES, INC. |
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ALBERTO-CULVER USA, INC. |
| (“NJI SALES”) |
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(“ASSIGNOR”) |
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| BY: |
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/s/ William D.
Wulf
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BY: |
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/s/ Gary P.
Schmidt
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William D.
Wulf |
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Gary P.
Schmidt |
| Title: |
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Senior Vice
President and CFO |
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Title: |
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Secretary |
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| 18000 LLC |
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NETJETS INTERNATIONAL, INC. |
| (“ASSIGNEE”) |
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(“NJI”) |
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| By: |
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Bernick
Holdings, Inc. |
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BY: |
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/s/ William D.
Wulf
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| Its: |
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Sole
Member |
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William
D. Wulf |
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Title: |
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Senior
Vice President and CFO |
| By: |
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/s/ Howard B.
Bernick
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Howard B.
Bernick |
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| Title: |
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President |
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| NETJETS SERVICES, INC. |
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| (“SERVICES”) |
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| BY: |
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/s/ David S. Beach
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David S.
Beach |
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| Title: |
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Senior Vice
President |
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4
ASSIGNED INTEREST
SCHEDULE
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| Interest
Percentage |
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6.25% |
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| Monthly
Management Fee |
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$14,597
(subject to Annual Escalation)* |
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| Established
Avg. Rate per Gallon for Fuel |
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$1.60 |
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| Fuel
Variable Rate |
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$8.33 per
Occupied Hour per $.01 Differential |
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| Minimum
Telephonic Notice |
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10
Hours |
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| Allotted
Hours |
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50 hours
per year (or prorated for part thereof) |
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| Occupied
Hourly Rate Charge |
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$3,915
(subject to Annual Escalation)* |
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| Annual
Available Hours per year |
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62.5
hours per year |
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