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EXHIBIT 10.22
AMENDED AND RESTATED CONSULTING AGREEMENT
BY AND BETWEEN
AMERICAN INTERNATIONAL AIRWAYS, INC.
AND
▇▇▇▇▇▇ ▇. KALITTA
WHEREAS, American International Airways, Inc., is currently involved in a
litigation in the United States District Court for the Northern District of
California captioned American International Airways, Inc. v. GATX Capital
Corporation, et al, No. C 97-0378 WHO ("GATX litigation");
WHEREAS, the prosecution of this lawsuit will be enhanced by the participation
of ▇▇▇▇▇▇ ▇. Kalitta ("Kalitta"), with regard to technical assistance,
preparation for, and the execution of the lawsuit;
IT IS AGREED:
1. Kalitta shall assist American International Airways, Inc., and any
successor corporation to American International Airways, Inc., ("AIA") in
the preparation for the GATX litigation when such assistance is reasonably
requested.
2. Kalitta's costs (apart from legal fees) incurred in rendering such
assistance shall be reimbursed to Kalitta.
3. Kalitta shall bear the ultimate responsibility (regardless of the outcome
of the litigation) for the payment of legal fees incurred in this
litigation from the date of this Amended Agreement forward, subject to the
provisions of Paragraph 4 below. However, AIA shall continue to pay such
legal fees until final resolution of the litigation. Such payment of legal
fees incurred from the date of this Amended Agreement forward shall be
considered an interest-free loan to Kalitta, which shall be repaid in full
within 60 days of the final resolution of the GATX litigation. For the
purposes of this Amended Agreement, the final resolution of the GATX
litigation shall occur either (a) when a final judgment has been entered in
the matter and all appeal periods have expired, or (b) when the matter has
been settled by all of the parties thereto, and either a judgment or a
dismissal with prejudice has been entered in the matter pursuant to such
settlement.
4. Any proceeds which AIA obtains from the GATX litigation, whether by virtue
of judgment, settlement, or some other form of payment, shall be divided as
follows:
FIRST: Proceeds shall be applied to reimburse AIA for any legal fees and
costs incurred by AIA in prosecuting the GATX litigation;
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SECOND: Any remaining proceeds shall be applied to the cost of any
necessary correction of mechanical problems attributable to the cargo
conversion of those Boeing 747 aircraft currently known as N701CK and
N706CK which may be required by the Federal Aviation Administration ("FAA")
(in part, the subject matter of the GATX litigation) to remove restrictions
imposed by the FAA on GATX-converted Boeing 747 aircraft due to the GATX
conversion;
and
THIRD: Any Remaining Proceeds shall be divided between AIA and Kalitta,
with Kalitta entitled to receive 90% of the Remaining Proceeds and AIA
entitled to receive 10% of the Remaining Proceeds. The Remaining Proceeds
include any amount received by AIA in excess of the fair market value of
the aircraft at such time, assuming that the GATX-conversion problems have
been remedied and special restrictions on use of the Aircraft have been
removed, if the settlement or resolution includes transferring the aircraft
to another party.
5. Regardless of the date of execution of this Agreement, the term of this
Agreement shall be from the 24-October-1997, and shall continue until the
distribution of all funds pursuant to Paragraph (4) above is complete.
6. This Agreement shall be governed and controlled in all respects by the laws
of the State of Michigan, including as to interpretation, enforceability,
validity and construction.
7. Whenever possible, each provision of this Agreement shall be interpreted in
such a way as to be effective and valid under applicable law. If a
provision is prohibited by or invalid under applicable law, it shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.
8. The terms of this Agreement may not be varied or modified in any manner,
except in a subsequent writing executed by an authorized representative of
both parties. This Agreement constitutes the entire understanding between
the parties with respect to the payment of Kalitta for consulting services
and supersedes any prior discussions, negotiations, agreements and
understandings.
9. Any controversy or claim arising out of or related to this Agreement shall
be settled by binding arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association and the
arbitration award may be entered as a final judgment in any court of
competent jurisdiction. Such arbitration shall be conducted utilizing a
single arbitrator, and such arbitration shall be conducted in Ann Arbor,
Michigan unless the parties otherwise agree in writing.
10. All notices and other communications required or permitted under this
Agreement shall
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be in writing and shall be deemed given when delivered personally or by
registered or certified mail, return receipt requested, addressed as
follows:
If to AIA: American International Airways, Inc.
▇▇▇▇ ▇. ▇-▇▇ ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: Chief Financial Officer
If to Kalitta: American International Airways, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
11. This Agreement shall be binding upon any successor corporation or other
entity to AIA. The terms of this Agreement may not be varied or modified in
any manner except in a subsequent writing executed by an authorized
representative of both parties.
12. In the event of a breach by Kalitta of this Agreement, AIA shall notify
Kalitta of such breach and shall allow Kalitta thirty days to cure such
breach, or such longer time as may be required provided that Kalitta begins
to endeavor to cure such breach within 30 days.
SO AGREED:
AMERICAN INTERNATIONAL AIRWAYS, INC. ▇▇▇▇▇▇ ▇. KALITTA
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Print: ▇▇▇▇▇▇ ▇. Kalitta
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Its: Dated:
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Dated:
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