ACCELERATED DELIVERIES. 15.1 In the event Seller, for any reason, is able to offer to Buyer a Bombardier Global Express XRS aircraft with a scheduled presentation date for inspection before the Delivery Period set forth in Article 2.2 consistent with Seller’s contractual obligations to other customers in effect on the date of this Agreement and Seller does not require such aircraft, acting in good faith, for management of its production schedule and completion skyline with existing customers (it being understood that no customer having executed a purchase agreement with Seller after the Buyer has executed this Agreement will be allowed to move ahead of the Buyer once the Buyer has signed the specification for the Completion Work), or for use in the corporate fleet of Bombardier Inc. or its subsidiaries or affiliates (an “Earlier Aircraft”), Seller shall offer in writing to Buyer (the “Move-Up Option Notice”) the option to purchase such Earlier Aircraft in lieu of the Aircraft (the “Move-Up Option”). Seller’s obligation set forth in the preceding sentence extends not only to Global Express XRS aircraft currently in production as of the date of this Agreement, but also to places in Seller’s production line that become available after the date of this Agreement and that are used by Seller to manufacture a Global Express XRS aircraft consistent with Seller’s obligations to other customers in effect on the date of this Agreement. 15.2 The Move-Up Option Notice shall set forth the delivery period during which the Earlier Aircraft will be presented for inspection, the specification date for the Earlier Aircraft to the extent the specification date is not finalized, and all relevant details regarding the specification completion status of the Earlier Aircraft, whether finalized or in-process. To exercise a Move-Up Option, Buyer must, within three (3) business days of receipt of the applicable Move-Up Option Notice (the “Option Period”), notify Seller in writing of its exercise of such option, subject to the parties’ agreement on the conditions set forth in Article 15.4 below and payment of the Move-Up Fee set forth in Article 15.3 below. If Buyer does not provide such written notice of exercise to Seller within the Option Period, or if Buyer declines to exercise the Move-Up Option, then the Move-Up Option solely with respect to that particular Earlier Aircraft shall become null and void and this Agreement shall remain in full force and effect. 15.3 If Buyer exercises a Move-Up Option, then Buyer shall, within three (3) business days after agreement on the conditions set forth in Article 15.4 below, pay to Seller an amount (the “Move-Up Fee”) equal to US $6,000 per day for each day between (a) the last day set forth in the delivery period for the Earlier Aircraft; and (b) the first day of the Delivery Period set forth in Article 2.2; provided, that in no event shall the Move-Up Fee exceed US $1,800,000. If Buyer exercises a Move-Up Option, then all sums paid by Buyer to Seller prior to such exercise shall be credited by Seller toward Buyer’s purchase of the Earlier Aircraft. Upon the parties’ execution of the amendment to this Agreement described in Article 15.4 and Buyer’s payment of the Move-Up Fee, Buyer’s obligation to purchase and take delivery of the Aircraft shall automatically extinguish. Prior to these conditions being met, this Agreement shall remain in full force and effect between the parties. 15.4 Following exercise of the Move-Up Option, the parties shall execute an amendment to this Agreement modifying the Specification Date, the payment schedule specified in Article 2.1, the Delivery Period specified in Article 2.2 and any term requiring amendment as a result of the exercise of the Move-Up Option. When the completion specification for the Earlier Aircraft has been finalized prior to the exercise of the Move-Up Option and such specification is different from the Completion Work for the Aircraft, Buyer and Seller shall further amend this Agreement to incorporate the Earlier Aircraft specification together with any adjustments in the Purchase Price as a result thereof, taking into account, if applicable, any cost related to the Completion Work for the Aircraft that Seller may be unable to recover or allocate to the Earlier Aircraft. Unless otherwise mutually agreed in writing by the parties, the other terms of this Agreement shall continue in full force and effect. If the parties do not execute an amendment to this Agreement within five (5) days of the exercise of the Move-Up Option, then the Move-Up Option for that particular Earlier Aircraft shall become null and void and this Agreement, unamended, shall remain in full force and effect. Côte-Vertu Road West Address ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III TITLE: Vice President of Contracts TITLE: VP & CFO DATE: January 31, 2007 DATE: January 31, 2007 SCHEDULE “A” BASELINE AIRCRAFT SPECIFICATION & CUSTOMER SUPPORT SERVICES MANUAL IS HEREBY AMENDED AS FOLLOWS: 1. In Article 1, of Schedule “A”, delete the third and fourth paragraph and replace with the following: “The Aircraft may be subject to changes during the course of the design, manufacture and certification process as the result of any legislation, act, order, directive or regulation, or any interpretation thereof, of or by any government or governmental body. If such changes take place and apply to all aircraft in general or to all aircraft of the same category as the Aircraft and are effective after the date of the Agreement but before Delivery Time, Buyer and Seller shall share Seller’s costs (including recurring and non-recurring provided that, for greater certainty, the non-recurring costs to be shared in accordance with this Section will be Buyer’s prorated portion of the total non-recurring costs incurred by Seller) for such changes on a 50%/50% basis up to a maximum amount of USD $2,000,000 (USD $1,000,000 for each party). If Seller’s total costs for such changes exceed USD $2,000,000 and none of the parties want to assume the costs in excess of USD $2,000,000, then either party may have the right to terminate this Agreement by providing the other party with written notification of such termination and Seller’s sole obligation and liability shall be to return to Buyer, within ten (10) business days of such termination, all amounts received pursuant to Article 2.1 plus interest accrued from the date of receipt by Seller of each payment to the date of refund to Buyer at the rate equivalent to the one year LIBOR rate, as of the reimbursement date, as published in “Money Rates” section of The Wall Street Journal. Such reimbursements shall constitute Buyer’s sole right, remedy and recourse and Seller’s sole obligation and liability to Buyer. If the incorporation of such changes causes a delay to the delivery of the Aircraft, then that delay shall be deemed an Excusable Delay under the Agreement.”
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ACCELERATED DELIVERIES. 15.1 In the event Seller, for any reason, is able to offer to Buyer a Bombardier Global Express XRS aircraft with a scheduled presentation date for inspection before the Delivery Period set forth in Article 2.2 consistent with Seller’s contractual obligations to other customers in effect on the date of this Agreement and Seller does not require such aircraft, acting in good faith, for management of its production schedule and completion skyline with existing customers (it being understood that no customer having executed a purchase agreement with Seller after the Buyer has executed this Agreement will be allowed to move ahead of the Buyer once the Buyer has signed the specification for the Completion Work), or for use in the corporate fleet of Bombardier Inc. or its subsidiaries or affiliates (an “Earlier Aircraft”), Seller shall offer in writing to Buyer (the “Move-Up Option Notice”) the option to purchase such Earlier Aircraft in lieu of the Aircraft (the “Move-Up Option”). Seller’s obligation set forth in the preceding sentence extends not only to Global Express XRS aircraft currently in production as of the date of this Agreement, but also to places in Seller’s production line that become available after the date of this Agreement and that are used by Seller to manufacture a Global Express XRS aircraft consistent with Seller’s obligations to other customers in effect on the date of this Agreement.
15.2 The Move-Up Option Notice shall set forth the delivery period during which the Earlier Aircraft will be presented for inspection, the specification date for the Earlier Aircraft to the extent the specification date is not finalized, and all relevant details regarding the specification completion status of the Earlier Aircraft, whether finalized or in-process. To exercise a Move-Up Option, Buyer must, within three (3) business days of receipt of the applicable Move-Up Option Notice (the “Option Period”), notify Seller in writing of its exercise of such option, subject to the parties’ agreement on the conditions set forth in Article 15.4 below and payment of the AIRCRAFT PURCHASE AGREEMENT Move-Up Fee set forth in Article 15.3 below. If Buyer does not provide such written notice of exercise to Seller within the Option Period, or if Buyer declines to exercise the Move-Up Option, then the Move-Up Option solely with respect to that particular Earlier Aircraft shall become null and void and this Agreement shall remain in full force and effect.
15.3 If Buyer exercises a Move-Up Option, then Buyer shall, within three (3) business days after agreement on the conditions set forth in Article 15.4 below, pay to Seller an amount (the “Move-Up Fee”) equal to US $6,000 per day for each day between (a) the last day set forth in the delivery period for the Earlier Aircraft; and (b) the first day of the Delivery Period set forth in Article 2.2; provided, that in no event shall the Move-Up Fee exceed US $1,800,000. If Buyer exercises a Move-Up Option, then all sums paid by Buyer to Seller prior to such exercise shall be credited by Seller toward Buyer’s purchase of the Earlier Aircraft. Upon the parties’ execution of the amendment to this Agreement described in Article 15.4 and Buyer’s payment of the Move-Up Fee, Buyer’s obligation to purchase and take delivery of the Aircraft shall automatically extinguish. Prior to these conditions being met, this Agreement shall remain in full force and effect between the parties.
15.4 Following exercise of the Move-Up Option, the parties shall execute an amendment to this Agreement modifying the Specification Date, the payment schedule specified in Article 2.1, the Delivery Period specified in Article 2.2 and any term requiring amendment as a result of the exercise of the Move-Up Option. When the completion specification for the Earlier Aircraft has been finalized prior to the exercise of the Move-Up Option and such specification is different from the Completion Work for the Aircraft, Buyer and Seller shall further amend this Agreement to incorporate the Earlier Aircraft specification together with any adjustments in the Purchase Price as a result thereof, taking into account, if applicable, any cost related to the Completion Work for the Aircraft that Seller may be unable to recover or allocate to the Earlier Aircraft. Unless otherwise mutually agreed in writing by the parties, the other terms of this Agreement shall continue in full force and effect. If the parties do not execute an amendment to this Agreement within five (5) days of the exercise of the Move-Up Option, then the Move-Up Option for that particular Earlier Aircraft shall become null and void and this Agreement, unamended, shall remain in full force and effect. BOMBARDIER INC. MICROSTRATEGY INCORPORATED Côte-Vertu Road West Address ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III TITLE: Vice President of Contracts TITLE: VP & CFO DATE: January 31, 2007 DATE: January 31, 2007 ADDENDUM TO AIRCRAFT PURCHASE AGREEMENT by and between BOMBARDIER INC. and MICROSTRATEGY INCORPORATED Dated JANUARY 31, 2007 SCHEDULE “A” BASELINE AIRCRAFT SPECIFICATION & CUSTOMER SUPPORT SERVICES MANUAL IS HEREBY AMENDED AS FOLLOWS:
1. In Article 1, of Schedule “A”, delete the third and fourth paragraph and replace with the following: “The Aircraft may be subject to changes during the course of the design, manufacture and certification process as the result of any legislation, act, order, directive or regulation, or any interpretation thereof, of or by any government or governmental body. If such changes take place and apply to all aircraft in general or to all aircraft of the same category as the Aircraft and are effective after the date of the Agreement but before Delivery Time, Buyer and Seller shall share Seller’s costs (including recurring and non-recurring provided that, for greater certainty, the non-recurring costs to be shared in accordance with this Section will be Buyer’s prorated portion of the total non-recurring costs incurred by Seller) for such changes on a 50%/50% basis up to a maximum amount of USD $2,000,000 (USD $1,000,000 for each party). If Seller’s total costs for such changes exceed USD $2,000,000 and none of the parties want to assume the costs in excess of USD $2,000,000, then either party may have the right to terminate this Agreement by providing the other party with written notification of such termination and Seller’s sole obligation and liability shall be to return to Buyer, within ten (10) business days of such termination, all amounts received pursuant to Article 2.1 plus interest accrued from the date of receipt by Seller of each payment to the date of refund to Buyer at the rate equivalent to the one year LIBOR rate, as of the reimbursement date, as published in “Money Rates” section of The Wall Street Journal. Such reimbursements shall constitute Buyer’s sole right, remedy and recourse and Seller’s sole obligation and liability to Buyer. If the incorporation of such changes causes a delay to the delivery of the Aircraft, then that delay shall be deemed an Excusable Delay under the Agreement.”
2. In Article 4, of Schedule “A”, at the end of the last paragraph delete “91” and replace with the following” “135 for operations as described in the “Certification” section of Schedule “A-1”.
3. In Article 14, of Schedule “A”: Flight Operations Support
(a) In sub-section ii): delete “14” and replace with “20”.
(b) In the last paragraph: delete “14” and replace with “20”. Training
(a) At the end of the first sentence delete “courses” and replace with “course”
(b) Delete “A Type-Rating Course for four (4) qualified pilots;”
(c) Delete “Operational training for four (4) qualified pilots on the use of the Head-up Flight Display System and the Bombardier Enhanced Vision System;”
(d) Delete “A Ground Maintenance training program for two (2) mechanics; and” MedAire Program Delete “one year” and replace with “two years”
4. In Article 15, of Schedule “A”,
(a) In Article 15.8, second line, replace “which” by “that”.
(b) In Article 15.11 delete the paragraph and replace with the following: “Buyer shall maintain reasonably complete records of operations and maintenance of the Aircraft consistent with the applicable laws of the country of registration and shall make such records available to Seller as Seller may reasonably require for the purpose of this Warranty. If Buyer fails to maintain those records in all material respects, Seller shall be relived of its Warranty obligation.
5. In Article 16, of Schedule “A”,
(a) In the first paragraph, line three, add “sale or offer for sale” after “use”.
(b) In subsection iii), add “at Seller’s sole cost and expense” after “Seller”.
(c) In subsection iv), after “does not” add “take any action a reasonable entity would otherwise refrain from taking, or omit to take any action a reasonable entity would otherwise take, that would”.
(d) In the second paragraph, second (2nd) line delete the word “liability”.
(e) In the third paragraph, second (2nd) line delete the words “solely and directly”.
(f) In the fourth paragraph, second (2nd) and third (3rd) line delete the words “its reasonable”.
(g) In the fourth paragraph sub-section ii), add “; provided, that such modification or replacement shall not diminish the value or restrict the operation of the Aircraft” after “non-infringing”. SCHEDULE “A” BASELINE AIRCRAFT SPECIFICATION & CUSTOMER SUPPORT SERVICES Date: February 2006, Revision 5 Effectivity: s/n A10-216-9282 and subs SCHEDULE “A”
1. INTRODUCTION This document describes the Aircraft, including its power plant, systems and equipment. Also included are descriptions of Seller’s Customer Support services that are provided to the Buyer as part of the sale of the Aircraft, including warranty, technical publications, crew training and the maintenance management system. The Aircraft may be subject to change during the course of the design, manufacture and certification process or as the result of any legislation, act, order, directive or regulation, or any interpretation thereof, of or by any government or governmental body. If such change takes place and applies to all aircraft in general or to all aircraft of the same category as the Aircraft and are effective after the date of the Agreement but before Delivery Time, Buyer shall pay Seller’s reasonable cost for such change. If the incorporation of such changes delays the delivery of the Aircraft, that delay shall be an Excusable Delay under the Agreement. This document is published for the purpose of providing general information on the standard baseline Aircraft configuration. No option, foreign certification requirement or Aircraft customization is included or accounted for.
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Sources: Aircraft Purchase Agreement