GULFSTREAM IV AND FOKKER 100 AIRCRAFT PROGRAM ADDENDUM

Transcription

1 GULFSTREAM IV AND FOKKER 100 AIRCRAFT PROGRAM ADDENDUM (10-12) MODIFIED/ADDITIONAL TERMS AND CONDITIONS FOR THE GULFSTREAM IV AND FOKKER 100 AIRCRAFT PROGRAMS The Standard Purchase Order Terms and Conditions require modification to comply with Buyer s customer s requirements. Any conflict between any of the terms and conditions herein and those appearing in the Standard Purchase Order Terms and Conditions shall be resolved in favor of this document. I. CHANGES TO THE STANDARD PURCHASE ORDER TERMS AND CONDITIONS: A. In paragraph A(1) of the Warranty clause, replace forty-eight (48) months after delivery to Buyer with fortythree (43) months from the date of delivery to Buyer s customer of the aircraft into which the supplies are incorporated, or the accumulation of 3,500 hours of flying time, or thirty-six (36) months after outfitting of the aircraft end item in which the Products have been incorporated, whichever first occurs." B. Replace the Termination for Default clause in its entirety with the following clause: 19. TERMINATION FOR DEFAULT A. The occurrence of any one or more of the following events shall constitute an Event of Default : (1) Any failure by Seller to deliver the Products or to perform the Services, when and as required by this Order, other than a failure caused by an event specified in the Excusable Delay clause; (2) Any failure by Seller to deliver to Buyer any assurance of performance within the time specified in, and otherwise in accordance with, the Adequate Assurance of Performance clause; (3) Any failure by Seller to perform or comply with any obligation set forth in the Proprietary Information clause; (4) Any failure by Seller to perform or comply with any obligation (other than as described in subparagraphs (1), (2) and (3) above) set forth in this Order and such failure shall continue unremedied for a period of thirty (30) days or more following receipt by Seller of notice from Buyer specifying such failure; (5) The suspension, dissolution or winding-up of Seller's business; Seller's insolvency, or its inability to pay debts, or its nonpayment of debts, as they become due; the institution of bankruptcy, reorganization, liquidation or other such proceedings by or against Seller or the appointment of a custodian, trustee, receiver or similar person for Seller's properties or business; an assignment by Seller for the benefit of its creditors; or any action of Seller for the purpose of effecting or facilitating any of the foregoing; or; (6) Occurrence of any Designated Event (as hereinafter defined) with respect to Seller. A Designated Event shall be deemed to have occurred at such time as: (a) A person or group (within the meaning of Section 13(d) and 14(d)(2) of The Exchange Act) becomes the Beneficial owner (as defined in Rule 13(d)(3) under The Exchange Act) of more than fifty percent (50%) of the then outstanding stock entitled to vote for the election of directors of Seller ( Voting Stock ); (b) During any period of two consecutive years, individuals who at the beginning of such period constituted Seller s Board of Directors (together with any new Director whose election by Seller s Board of Directors or whose nomination for election by Seller s shareholders was approved by a vote of at least two thirds of the Directors then still in office who either were Directors at the beginning of such period on such period of whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Directors then in office; Page 1 of 5

2 (c) Seller consolidates with or merges into another corporation or conveys, transfers or leases substantially all of its assets to any person, or any corporation consolidates with or merges into Seller, in either event pursuant to a transaction in which Voting Stock of Seller is changed or exchanged, provided that transaction between Seller and its subsidiaries or between subsidiaries shall be excluded from the operation of this clause (c); (d) Seller, any subsidiary or any employee benefit plan with the financial support of Seller purchases or otherwise acquires, directly or indirectly, beneficial ownership of 30% or more of Seller's Voting Stock within any 12-month period; or (e) On any day (a "Calculation Date") Seller makes any distribution or distributions of cash, property or securities (other than regular dividends and distributions of capital stock of Seller) to holders of Voting Stock of Seller or purchases or otherwise acquires Voting Stock of Seller if the sum of the fair market value of such distribution or purchase, plus the fair market value of all other such distributions and purchases which have occurred during the prior year, is at least 30% of the fair market value of the outstanding Voting Stock of Seller. This percentage shall be calculated on each Calculation Date by determining the percentage of the fair market value of Seller's outstanding Voting Stock as of such Calculation Date which is represented by the fair market value of the distributions and purchases which have occurred on such date and adding to that percentage all of the percentages which have been similarly calculated on the dates of all such distributions and purchases during the prior year. B. Except as provided in the Excusable Delay clause, if any Event of Default, as set forth in paragraph A above, shall occur: (1) Buyer may, by giving notice to Seller, immediately cancel this Order, in whole or in part, and Buyer shall not be required after such notice to accept the tender by Seller of any Products or Services hereunder with respect to which Buyer has elected to cancel this Order. (2) Buyer may manufacture, produce or provide, or may engage any other persons to manufacture, produce or provide, any products or services in substitution for the Products and Services to be delivered or provided by Seller hereunder with respect to which this Order has been canceled and, in addition to any other remedies or damages available to Buyer hereunder or at law or in equity, Buyer may recover from Seller the difference between the price for each such Product or Service and the aggregate cost, including, without limitation, administrative and other indirect costs, paid or incurred by Buyer to manufacture, produce or provide, or engage other persons to manufacture, produce or provide, each such Product or Service. (3) As compensation for the additional costs which Buyer will incur as a result of the actual physical transfer of production capabilities from Seller to Buyer or Buyer's designee, Seller shall, upon the request of Buyer, transfer and deliver to Buyer or Buyer's designee title (to the extent not previously transferred) to any or all of the items described in clause entitled Contractor Assistance hereinbelow, all in accordance with the terms of such request and of clause entitled Contractor Assistance. Seller shall be entitled to receive from Buyer reasonable compensation for any item accepted by Buyer which has been transferred to Buyer pursuant to the Contractor Assistance clause (except for any item the price of which shall have been paid to Seller prior to such transfer); provided, however, that such compensation shall be accounted for as a setoff against any damages payable by Seller to Buyer as a result of any Event of Default. (4) Buyer may rework or repair any Product in accordance with the Non-Conforming Products or Services clause or the Warranty clause. (5) Buyer shall, at its option, have the right to set off against, or appropriate and apply to the payment or performance of any obligation, sum or amount owing at any time to Buyer hereunder, all deposits, amounts or balances held by Buyer for the account of Seller and any amounts owed by Buyer to Seller, regardless of whether any such deposit, amount, balance or other amount or payment is then due and owing. (6) If Seller shall fail to pay when and as due any amount payable hereunder, such amount shall bear interest, payable on demand, at the per annum rate announced by Citibank, New York, New York, as its prime rate on the last working day of the month in which such amount becomes Page 2 of 5

3 due. (7) No failure on the part of Buyer in exercising any right or remedy hereunder, or as provided by law or in equity, shall impair, prejudice or constitute a waiver of any such right or remedy, or shall be construed as a waiver of any Event of Default or as an acquiescence therein. No single or partial exercise of any such right or remedy shall preclude any other or further exercise thereof or the exercise of any other right or remedy. No acceptance of partial payment or performance of any of Seller's obligations hereunder shall constitute a waiver of any Event of Default or a waiver or release of payment or performance in full by Seller of any such obligation. All rights and remedies of Buyer hereunder and at law and in equity shall be cumulative and not mutually exclusive and the exercise of one shall not be deemed a waiver of the right to exercise any other. Nothing contained in this Order shall be construed to limit any right or remedy of Buyer now or hereafter existing at law or in equity. (8) Buyer and Seller shall perform all of their obligations and exercise all their rights under this Order in a commercially reasonable way. II. ADDITIONS TO THE STANDARD PURCHASE ORDER TERMS AND CONDITIONS Insert the following additional clauses: 50. ACCEPTANCE OF ORDERS AND ADEQUATE FACILITIES Seller shall not discontinue acceptance of Orders issued by Buyer for additional quantities, beyond those covered by this Order, of the Products delivered hereunder, or similar items, without first giving Buyer thirty-six (36) months written notice. The Parties agree that the provisions of this Order will be made applicable to such orders, except to the extent any such provisions require modification so as to be suitable in orders for such additional Products or items. 51. AIRCRAFT ON GROUND SUPPORT Seller will provide Aircraft on Ground ("AOG") delivery commitments to Buyer within three (3) hours of receiving notice of an AOG requirement. Seller shall provide production support for AOG requirements on a best effort basis, 365 days a year. Such support shall be provided at no additional cost to Buyer. 52. SPARES PROVISIONING Buyer may, at its option, order spare quantities of Products set forth in this Order. The price for initial and/or replenishment spare parts for the Products acquired hereunder will not exceed the price of the production supplies ordered under this Order to the extent such spare parts' order occurs during Seller's production run of such supplies, except for special handling and packaging costs associated with the spare parts. For other spares parts ordered outside of Seller's production run, Seller shall make a "best efforts" (based on the lead time of the spare part) to price at production prices set forth in this Order. If Buyer's requested delivery date does not allow the spare parts ordered to be priced at the production run prices set forth in this Order, Seller shall inform Buyer of the best delivery date that will allow pricing at production prices. Buyer may issue such spare parts orders under this Order or under a separate spare parts order incorporating the terms and conditions of this Order. 53. CONTRACTOR ASSISTANCE A. In accordance with Termination for Convenience and Termination for Default clauses hereof, Buyer may, by written notice to Seller, require Seller to transfer to Buyer or to Buyer's designee title (to the extent not previously transferred) to any or all (i) Accountable Tooling, and other Tooling, (ii) special transportation devices, if any, (iii) Buyer-furnished property, (iv) raw materials, parts, workin-process, incomplete or completed Products, and all other parts thereof in the possession or under the effective control of Seller or any of its subcontractors, and (v) Proprietary Information of Buyer, including, without limitation, planning Data, drawings and other Proprietary Information relating to the design, production, maintenance, repair and use of all Accountable Tooling, in the possession or under the effective control of Seller or any of its subcontractors, in each case free and clear of all liens, claims Page 3 of 5

4 or other rights of any Person. Seller shall immediately transfer and deliver, and cause each of its subcontractors to transfer and deliver, any or all of the aforesaid items in accordance with any written notice or notices given hereunder by Buyer to Seller, notwithstanding any event or circumstance whatsoever, including, without limitation, any claim or dispute Seller may assert in connection with a termination of this Order or any payment for any such items. Costs associated with Seller s assistance, in accordance with the Termination for Convenience clause, shall be submitted as part of Seller s termination claim. Costs associated with a termination of this Order in accordance with the Termination for Default clause shall be provided at no cost or expense to Buyer. If Buyer shall require Seller to transfer and deliver to Buyer or Buyer's designee any of the aforesaid items, Seller shall cooperate with and shall assist Buyer in developing and implementing plans to transfer the production of Products and provision of Services to Buyer, or to any other Person designated by Buyer, in an expeditious and orderly manner and will take such other steps to assist Buyer as Buyer may request in good faith, all for the purpose of maintaining, or attempting to maintain as nearly as may be possible, production of Products in accordance with Buyer's schedule of delivery to its Customer. B. Buyer and Seller acknowledge that Buyer's ability to sell and deliver Products to its Customers will be substantially impaired if Seller delays, for any reason, its performance under this clause. Buyer and Seller also acknowledge that Seller's assistance hereunder in the event of a cancellation, in whole or in part, of this Order will be of fundamental significance to reduce incidental, consequential or other damages to Buyer. Consequently, Seller shall transfer and deliver to Buyer any or all of the aforesaid items notwithstanding any dispute or claim that Seller may have against Buyer. Seller shall not delay its performance under this clause by any action, including, without limitation, any judicial or other proceeding, or by any failure to act. Seller hereby authorizes Buyer or its representatives to enter upon its, or any of Seller's subcontractor's, premises at any time during regular business hours upon one (1) day's advance written notice, for the limited purpose of taking physical possession of any or all of the aforesaid items. At the request of Buyer, Seller shall promptly provide to Buyer a detailed list of such items, including the location thereof, and shall catalog, crate, package, mark and ship such items expeditiously and in an orderly manner and otherwise in the manner requested by Buyer, which request may specify incremental or priority shipping of certain items. Seller shall, if instructed by Buyer, store or dispose of any or all of the aforesaid items in any reasonable manner requested by Buyer. 54. WORK LOCATION Seller shall not transfer any major portion of the work it is performing hereunder to another location without the prior written approval of Buyer. 55. PROVISIONAL ACCEPTANCE A. If at the delivery date stated herein the Products are not complete or otherwise are not in conformity with the requirements of this Order, Buyer may, nevertheless, direct their delivery and may provisionally accept them upon such inspection of the Products as Buyer shall deem appropriate. Provisionally accepted Products shall be completed or otherwise brought into conformity with Order requirements by Seller at Seller's expense and as directed by Buyer. Alternatively, Buyer may elect to either perform such work at Seller's expense or to retain the non-conforming Products, in which event the price shall be equitably reduced. B. If Products are otherwise ready for delivery hereunder prior to completion of the qualification tests required by this Order or by any prior Order with Seller for Products of the type to be delivered hereunder, Buyer may nevertheless direct the Seller to deliver such Products and may provisionally accept such Products upon (1) satisfactory completion by Seller of the acceptance tests for the Products concerned, and (2) such other inspection of the Products as Buyer may deem appropriate. In the event that Products have been provisionally accepted hereunder, Seller shall, as a condition precedent to final acceptance, be obligated to complete such qualification tests successfully and to incorporate in all such Products at no increase in Order price, (1) all corrections of a type required to pass qualification tests, and (2) replacement for non-approved, non-standard parts. C. Pending final acceptance of Products that have been provisionally accepted, Buyer may, in its discretion, withhold such portion of the Order price as may be appropriate. Page 4 of 5

5 D. Nothing in this clause shall affect the Seller's obligation under other clauses of this Order. 56. TERMINATION OR CANCELLATION: INDEMNITY AGAINST SUBCONTRACTOR CLAIMS Seller shall defend, indemnify, and hold harmless Buyer from and against: A. Any and all claims, suits and proceedings against Buyer by any subcontractor or supplier of Seller in respect of any termination or cancellation; and B. Any and all costs, expenses, losses and damages incurred by Buyer in connection with any such claim, suit or proceeding. Page 5 of 5