Exhibit 99.5
SERVICES AND OPERATING AGREEMENT
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This Agreement is made effective this 6th day of May, 2002 by and between
▇▇▇▇▇▇▇▇ Aviation, Inc. (hereinafter "HAM) and ▇▇▇▇▇▇▇▇ 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, incuding 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. #HOCR426X with ratings for
B737, B727, DC-9, and MD-80 Aircraft, and HAM represents and warrants that
it has the available staff, equipment and faci1ities 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 maybe 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 shill 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 ▇▇▇▇▇▇▇ money agreement) between the
parties or their representatives relating to the Property.
19. Modification 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. Goodfaitb 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 maybe executed in several counterparts and all
so executed shall constitute one Agreement, binding on all the parties
hereto even through 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 retransmissions 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.
▇▇▇▇▇▇▇▇ Aviation ▇▇▇▇▇▇▇▇ Aerospace Technologies, Inc.
By: President President
