Exhibit 10-u-1
MEMORANDUM OF AGREEMENT
THIS MEMORANDUM OF AGREEMENT (the “MOA”), entered into this 20th day of April, 2011 by and between Rockwell Collins, Inc., a Delaware corporation, located at 400 Collins Road, Cedar Rapids, Iowa, 52498 (“RCI”), and Bombardier Inc. (“Bombardier”), a CBCA-incorporated corporation with its registered office at 800 René-Levesque Blvd. West, Montréal, Québec, Canada, H3B 1Y8.
WHEREAS, RCI and Bombardier (the “Parties”) continue to have discussions regarding Certificate of Airworthiness (“CoA”) completion associated with the Bombardier Global Vision aircraft program (the “Program”); and
WHEREAS, as a result of the CoA delays, Bombardier will not receive previously scheduled customer advance payments (currently scheduled customer advance payments are set forth in Exhibit A); and
WHEREAS, due to its long-standing relationship with Bombardier and its desire to support this important customer, RCI is willing to provide to Bombardier, on a limited short term basis, funds commensurate with certain advance payments that Bombardier does not receive from customers associated with the Program under certain terms and conditions.
NOW, THEREFORE, in consideration of the covenants and conditions hereinafter set forth, and intending to be legally bound the one to the other, the Parties form this MOA as follows:
1. | Scope of Agreement. On April 20, 2011, RCI shall provide USD $237,000,000 to Bombardier to offset a shortfall in CoA advance payments (identified on Exhibit A and referred to herein as Advance Payments) through the end of April 2011 which Bombardier is not expected to receive from Program customers based on CoA delays. Such funds to offset this Advance Payment shortfall shall be provided by RCI to Bombardier on a non-secured, short-term, non-interest bearing or fee basis and are provided based on Bombardier’s agreement to repay any and all funds provided by RCI under this MOA in accordance with Section 2 of this MOA. |
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3. | Term & Termination. The term of this MOA shall commence upon signature by both Parties, shall bind both Parties’ successors in interest, and shall terminate only upon the repayment in full by Bombardier to RCI of the amounts provided under Section 1 as well as any outstanding obligations under Sections 2, 7 and 8. |
4. | Relationship of Parties. Each Party is an independent contractor and each Party agrees to be responsible for its respective federal, state, provincial and local taxes, withholding, insurance, and any other benefits. Except as provided in Sections 7 and 9 herein, each Party shall bear their own costs and expenses in connection with their respective responsibilities under this MOA. Nothing in this MOA shall grant to either Party the right to make commitments of any kind for, or on behalf of, the other Party without the prior written consent of the other Party. Nothing herein shall grant any ownership right or license to use any data disclosed hereunder, except for the purpose as stated herein. |
5. | Notices. All notices and other communications required or authorized hereunder shall be given in writing either by personal delivery, by means of a bonded delivery service (such as FedEx or DHL), or by registered or certified express mail addressed to the other Party as follows: |
Bombardier | RCI | ||
Janice L. Davis | David C. Haerther | ||
Vice President, Supply Chain & CPO | Primary Contract Manager | ||
Attn: | Supply Chain | Attn: | Contracts Department |
Fax: | (514) 855-8436 | Fax: | (319) 295-5299 |
And |
François Ouellette | ||
Vice President, Legal Services | ||
Attn: | Legal Services | |
Fax: | (514) 855-7834 |
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Confidentiality. Each Party agrees that all confidential and proprietary information exchanged in connection with the discussions and negotiation of this MOA are particular to each Party and are to be considered as confidential information, and shall not be disclosed, except to the extent necessary under applicable law, stock listing requirements and/or financial institution needs (provided any such financial institution is bound by an obligation of confidentiality), to any other person (other than an employee of the Party’s company who has a need to know and is bound by obligation of confidentiality), firm or corporation, or be used by the receiving party for its own or any other person’s or entity’s benefit except as provided herein, and shall be held and used with the same degree of care to avoid disclosure as the receiving Party would employ with respect to its own confidential or proprietary information. Each Party further agrees that it shall not use any confidential or proprietary information received by it for any purpose that may be adverse to any Party; provided that each Party acknowledges that this MOA may be used by either Party to enforce any of its rights against the other Party in order to enforce this MOA. Should either Party determine that this MOA or any information regarding the agreement need to be externally disclosed in public SEC 8-K or SEDAR filings relating to the MOA, such Party shall notify the other Party at least two (2) business days prior to the projected disclosure in order to share the intended nature and details of such disclosure. |
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8. | Governing Law. This MOA shall be construed and all disputes hereunder shall be settled in accordance with the laws of the State of Iowa, USA, without resort to or regard of Iowa’s conflict of laws provisions or standards. Resolution of any dispute arising hereunder shall be reserved exclusively to the United States District Court of the Northern District of Iowa, Cedar Rapids Division, USA, or, should that court not have subject matter jurisdiction, any Iowa state court (and the Parties hereby consent and submit to the jurisdiction of such courts). Bombardier shall be liable for RCI’s reasonable attorney fees and court costs in litigating indebtedness, jurisdiction or venue in any other court of law or forum. Pending any decision, appeal or judgment in such proceeding or other settlement of any dispute arising under this Agreement, there shall be no stay on performance by Bombardier on this MOA or any other Agreement between Bombardier and RCI. |
9. | Authority to Execute. Each Party represents and warrants that its representative(s) identified below have obtained all Bombardier corporate and/or Board of Director approvals and have due delegation of authority to execute and deliver this MOA, that the performance of this MOA has been duly authorized by such Party and that this MOA constitutes a legal, valid, and binding obligation of such Party. Each Party further represents and warrants that the execution, delivery and performance of this MOA do not violate, conflict with or result in a default under the organizational document of such Party, any law, rule, regulation, order, writ, injunction or decree of any court or governmental instrumentality or arbitration panel to which such Party or any of its affiliates is subject or any indenture, agreement or other instrument to which such Party or any of its affiliates is a party or by which any of their assets or properties is bound or affected. |
10. | Waivers. Bombardier waives any and all right to assert any legal or equitable defense (except for its full performance hereunder), set-off, withholding, counterclaim or crossclaim of any nature whatsoever as a basis to not repay some or all of the $237 million plus interest, if applicable under the terms of this MOA, in any action or proceeding brought by RCI to collect on the obligations of Bombardier hereunder, or any portion thereof, or in any action or proceeding brought by Bombardier to determine its obligations hereunder. Bombardier waives presentment, demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this MOA. |
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Assignment. Neither Party shall be permitted to assign this MOA or any of its rights or obligations hereunder without the other Parties’ prior written consent, except that RCI shall be permitted to assign any of its rights under this MOA to any of its affiliates without obtaining such consent. |
12. | Jointly Drafted. This MOA was jointly drafted by the Parties. No rule of strict construction shall be applied against either Party. |
13. | Entire Agreement. This MOA contains the entire understanding of the Parties as to its subject matter and shall not be modified, except by an instrument in writing duly executed by the Parties hereto. |
IN WITNESS WHEREOF, the Parties hereto have caused this MOA to be properly executed in duplicate by their duly authorized officers, principals, partners or designees on the date set forth below their names.
Bombardier Inc. | Rockwell Collins, Inc. | |||
By: | /s/ Francois Thibault | By: | /s/ Patrick E. Allen | |
Name: | François Thibault | Name: | Patrick E. Allen | |
Title: | Vice President, Finance | Title: | Chief Financial Officer | |
Date: | 20 April 2011 | Date: | 20 April 2011 |
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