Exhibit 10.4
SERVICES AND OPERATING AGREEMENT
This Agreement is made effective this 6th day of May, 2002 by and between
Hamilton Aviation, Inc. (hereinafter "HAM") and Hamilton Aerospace Technologies,
Inc. (hereinafter "HAT") and collectively (hereinafter the "Parties").
WHEREAS:
HAT currently holds a FAA part 145 Certificate Repair Station for Aircraft
Maintenance and HAT has contracts for 3rd Party Maintenance (hereinafter "3rd
Party Maintenance Contracts") and desires to contract with HAM to provide labor,
equipment and premises to perform said contracts.
WHEREAS:
HAM and HAT are parties to several other agreements, including the Sale of
Assets Agreement dated April 15, 2002, the Funding and Operation Agreement
dated, April 15, 2002.
THEREFORE:
In exchange of good and valuable consideration between the Parties as described
below and other good and valuable consideration the Parties hereby do agree and
covenant the following:
1. HAT represents and warrants that it is the holder in good standing of
a FAA issued Part 145 Repair Station Certificate No. #KT3R643L, with
ratings for B-737, B727, DC-9, and MD-80 Aircraft, and HAM represents
and warrants that it has the available staff, equipment and facilities
to undertake the 3rd Party Maintenance Contracts mentioned above.
2. HAT has secured contracts with various Aircraft Operators and Leasing
Companies for Maintenance and Modification of Large Jet Aircraft that
HAM has the capability to perform.
3. HAT will pay to HAM 95% of the 3rd Party Maintenance Contract business
that HAM accepts from HAT on a payment schedule agreed to by the
Parties for each 3rd Party Maintenance Contract.
4. Additional Work required under each 3rd Party Maintenance Contract by
HAT and performed by HAM will be billed by HAM to HAT as described in
the applicable Additional Work orders signed by the Parties, and HAT
shall pay HAM for such additional work on a payment schedule agreed to
by the Parties for each 3rd Party Maintenance Contract.
5. The term of this Agreement shall be for a period consistent with the
completion time of each 3rd Party Maintenance Contract which HAM
accepts from HAT, or may be terminated or extended on request of HAT
and agreed to in writing by the Parties.
6. This Agreement is meant to facilitate the various other agreements
said parties are signatories to and mentioned above. Interpretation of
this Agreement is intended by the Parties to be governed by the
performance conditions and covenants of said other Agreements and are
a supplement to same.
7. Time is of the essence in the performance of the Parties obligations
under this Agreement.
8. Waiver. Failure of any party at any time to require performance of any
provision of this Agreement shall not limit the party's right to
enforce the provision, nor shall any waiver of any breach of any
provision be a waiver of any succeeding breach of any provision or a
waiver of the provision itself for any other provision.
9. Assignment. No assignment of this Agreement shall be permissible by
any party, without the written consent of all the other parties.
10. Law Governing. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
11. Venue. This parties to this Agreement agree that any action on this
Agreement shall be brought in a court of competent jurisdiction
located in New Castle County, Delaware.
12. Attorney Fees. In the event an arbitration, suit or action is brought
by any party under this Agreement to enforce any of its terms, or in
any appeal therefrom, it is agreed that the prevailing party shall be
entitled to reasonable attorneys' fees to be fixed by the arbitrator,
trial court and/or appellate court.
13. Presumption. This Agreement or any section thereof shall not be
construed against any party due to the fact that said -----------
Agreement or any section thereof was drafted by said party.
14. Computation of Time. In computing any period of time pursuant to this
Agreement, the day of the act, event or default from which the
designated period of time begins to run shall be included, unless it is
a Saturday, Sunday or a legal holiday, in which event the period shall
begin to run on the next day which is not a Saturday, Sunday or a legal
holiday, in which event the period shall run until the end of the next
day thereafter which is not a Saturday, Sunday or legal holiday.
15. Titles and Captions. All article, section and paragraph titles or
captions contained in this Agreement are for convenience only and
shall not be deemed part of the context nor affect the interpretation
of this Agreement.
16. Pronouns and Plurals. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural
as the identity of the Person or Persons may require.
17. Entire Agreement. This Agreement contains the entire understanding
between and among the parties and supersedes any prior understandings
and agreements among them respecting the subject matter of this
Agreement.
18. Prior Agreements. This document is the entire, final and complete
agreement of the parties and supersedes and replaces all prior or
existing written and oral agreements (including any earnest money
agreement) between the parties or their representatives relating to
the Property.
19. Modifications Must Be in Writing. This Agreement may not be changed
orally. All modifications of this Agreement must be in writing and
must have be signed by each party.
20. Agreement Binding. This Agreement shall be binding upon the heirs,
executors, administrators, successors and assigns of the parties
hereto.
21. Further Action. The parties hereto shall execute and deliver all
documents, provide all information and take or forbear from all such
action as may be necessary or appropriate to achieve the purposes of
this Agreement.
22. Good Faith, Cooperation and Due Diligence. The parties hereto
covenant, warrant and represent to each other good faith, complete
cooperation, due diligence and honesty in fact in the performance of
all obligations of the parties pursuant to this Agreement. All
promises and covenants are mutual and dependent.
23. Counterparts. This Agreement may be executed in several counterparts
and all so executed shall constitute one Agreement, binding on all the
parties hereto even though all the parties are not signatories to the
original or the same counterpart.
24. Facsimile Signatures. Facsimile transmission of any signed original
document, and the retransmission of any signed facsimile transmission,
shall be the same as delivery of the original signed document. At the
request of any party, a party shall confirm documents with a facsimile
transmitted signature by signing an original document.
25. Parties in Interest. Nothing herein shall be construed to be to the
benefit of any third party, nor is it intended that any provision
shall be for the benefit of any third party.
26. Savings Clause. If any provision of this Agreement, or the application
of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such
provision to persons or circumstances other than those as to which it
is held invalid, shall not be affected thereby.
WHEREFORE the parties do hereby set their hand and seal this 6th day of
May, 2002:
Hamilton Aviation Hamilton Aerospace
Technologies, Inc.
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By: President By: President