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    agreement_tijuana agreement_tijuana Document Transcript

    • CONTRACT NUMBER: BTIJP09-000124TURNKEY DESIGN, SUPPLY, INSTALLATION AND STARTING UP CONTRACT FOR THE SYSTEM FORINSPECTION OF 100% OF DOCUMENTED BAGGAGE, ENTERED INTO FOR ONE PART BY ELAEROPUERTO DE TIJUANA, S.A. DE C.V., REPRESENTED BY MR. MANUEL SANSÓN SUÁREZ IN HISCAPACITY AS ATTORNEY IN FACT, HEREINAFTER TO BE REFERRED TO AS “THE AIRPORT,” AND FORTHE OTHER, “RAPISCAN SYSTEMS, S.A. DE C.V.” REPRESENTED BY MR. CARLOS MÜGGENBURGRODRIGUEZ VIGIL, HEREINAFTER TO BE REFERRED TO AS “RAPISCAN”, WITH THE APPEARANCE OF“RAPISCAN SYSTEMS, INC” HEREINAFTER TO BE REFERRED TO AS “RAPISCAN INC,” REPRESENTEDBY JEREMY CHARLES NORTON, PURSUANT TO THE FOLLOWING RECITALS, REPRESENTATIONS, ANDCLAUSES. RECITALSOn October 29, 2009 the Procurement Committee of Grupo Aeroportuario del Pacífico, S.A.B. de C.V. (hereinafterreferred as “GAP”) authorized contracting for the TURNKEY DESIGN, SUPPLY, INSTALLATION AND STARTINGUP CONTRACT FOR THE SYSTEM FOR INSPECTION OF 100% OF DOCUMENTED BAGGAGE in regard toLot 1 and Lot 2, to be contracted according to the terms prescribed in this instrument. REPRESENTATIONSI. “THE AIRPORT” represents as follows, through its attorney in fact and under oath:I.1 It is a corporation, incorporated in accordance with Mexican law, as is evidenced in Public Instrument No. 44343, dated May 28th, 1998, attested by Mr. Emiliano Zubiría Maqueo, Notary Public No. 25 for the Federal District, which was recorded in the Public Registry of the same city, on Mercantile Page No. 238580, dated October 28th, 2008.I.2 It participates in this act through Mr. Manuel Sansón Suárez, upon whom a general power of attorney for Acts of Administration was conferred as stipulated in Public Instrument No. 113986 conferred on May 2nd, 2007, attested by Mr. Eduardo García Villegas, Notary Public No. 15 for the Federal District and his powers of attorney have not been revoked, amended, or limited.I.3 This Contract was awarded by means of A COMPETITIVE BIDDING PROCESS.I.4 It requires the works described in the first Clause of this contract, to be performed at Carretera Aeropuerto, S/N Nueva Tijuana, Mesa de Otay, Tijuana, Baja California, C.P. 22435 (the "Airport Facility").I.5 It has the legal and financial capacity to enter into this Contract and to cover any economic obligations in favor of “RAPISCAN” derived here from.I.6 It designates, as its domicile for receipt and as authorized to receive any notice or communication, the domicile located at: Av. Mariano Otero 1249 B piso 6 Rinconada del Bosque, C.P. 44530 Guadalajara, Jalisco, México. Attn’: Mr. Manuel Sansón Suarez and/or Mr. Carlos Menéndez López.I.7 “THE AIRPORT” is a subsidiary Grupo Aeroportuario del Pacífico, S.A.B. de C.V. (hereinafter referred as “GAP”) of which since February 2006 has been listed in the Mexican stock exchange, and that as of that date it has fulfilled with any and all applicable provisions of the securities exchange laws, including, among others, the Mexican Stock Exchange Law, the Securities Market Act, the Sarbanes Oxley Act, as well as with its own bylaws and the bylaws of GAP where applicable.I.8 Its Federal Taxpayer’s Registry number is: ATI-980528-8W1 1
    • CONTRACT NUMBER: BTIJP09-000124II. “RAPISCAN” represents as follows, through its attorney in fact and under oath:II.1. It is a corporation, legally incorporated and validly existing in terms of public deed number 42,636 dated December 7th 2009, attested by Mr. Miguel Soberón Mainero, Notary Public Number 181 for the Federal District and whose first Notarial copy has been duly registered in the Public Registry of Commerce of the Federal District in mercantile folio No. 408262-1 on December 10, 2009.II.2 It is duly represented by its attorney in fact, Mr. CARLOS MÜGGENBURG RODRÍGUEZ VIGIL, and his powers of attorney have not been revoked, amended, nor limited, which were authenticated in the public deed mentioned in Declaration II.1 above.II.3. It acknowledges that the name by which it is identified in this contract is “RAPISCAN,” which is due to the fact that it was appointed a common representative for all the intents and purposes of the competitive bidding process. It likewise represents that it has the legal capacity to contract and that, through its shareholders, possesses the necessary experience, organization, and technical, economic, and human resources to bind itself to the works and rendering of services obligations assumed pursuant to this Contract.II.4 None of the persons who work for it holds any employment, position, or commission in “THE AIRPORT” and it is not subject to any legal impediment whatsoever which prevents it from binding itself pursuant to the terms of this Contract.II.5 Its Federal Tax Payers Registry number is RSY-091207-QS5II.6 It designates, as its domicile and as authorized to receive any notice or communication, the domicile located at: Müggenburg, Gorches, Peñalosa y Sepúlveda, S.C. Paseo de los Tamarindos No. 90, Torre 1, 8° Piso Col. Bosques de las Lomas 05120 México, D.F. Attn’: Carlos Müggenburg Rodríguez Vigil and/or Pablo Guillermo Gómez Sáinz Notwithstanding the above, “RAPISCAN” withhold the right to change the domicile and authorized persons to receive notices prior written notice to “THE AIRPORT”.II.7 It is fully familiar with the content of the specifications for the works and services to be performed, as well as the content of the following EXHIBIT “A” which is an integral part of this Contract: EXHIBIT “A” – Wherein the specifications contained in the proposal dated October 16, 2009, submitted by “RAPISCAN,” are set forth, which specifications were known and acceptable to it, and which it ratifies in this act. The following documents are also found in the EXHIBIT “A”: 1.Term Sheet for the Competitive Bidding process, Process GAP-SUM-087-09 of July 24, 2009. 2.Clarifications and confirmation of Bid, dated October 27, 2009. 3.Minutes of the meeting held on November 3, 2009. 4.Term of “THE GUARANTEED SERVICES” . 5.Calendar of the Work Plan to complete Lots 1 and 2. 6.Planned schedule of “THE GUARANTEED SERVICES“. 7.Inventories of ETD Equipments. 8.Forms of Bonds and/or Letters of Credit STAND-BY. 9.Safety Regulation and Hygiene of “THE AIRPORT” in what it results applicable. 10.The Code of Conduct. 2
    • CONTRACT NUMBER: BTIJP09-000124 11.Full Proposal of Insurance Coverage of MAPFRE TEPEYAC which includes general and specific conditions.II.8 It knows that “THE AIRPORT” is a Subsidiary of GAP, which has been listed on the public companies stock exchange since February 2006, and accordingly, the stock market legislation is applicable to it and, in compliance therewith, the Securities Market Act and the Sarbanes Oxley Act, among others, as well as the Bylaws of the Company in question; by virtue thereof, certain procedures and systems have been adopted to comply with the codes of conduct to which this company is subject. Among said procedures, “RAPISCAN” knows a telephone line (018007590045) has been established to receive complaints about actions by employees of both GAP and “THE AIRPORT” which are illegal or unethical, and it declares its agreement to complain through this medium about any action of such a kind which may be related to this Contract. In addition to the foregoing, in the event complaints are made by “RAPSICAN” or any of its representatives, “RAPISCAN” authorizes GAP and “THE AIRPORT” to make use of the information stemming therefrom through the appropriate organs of GAP and to exercise the applicable legal action in accordance with the established procedures in order to comply with the aforementioned legal provisions. For these intents and purposes, “THE AIRPORT” undertakes to notify “RAPISCAN” of any change in the complaint telephone number.III. “RAPISCAN INC” represents as follows, through its attorney in fact and under oath:III.1. It is a corporation, legally incorporated and validly existing in terms of the certification attested by DEBRA BOWEN Secretary of State of California dated September 21, 2009, by which it certifies that it was incorporated on January 19, 1993, which is duly apostilled in terms of the Hague Convention.III.2 It is duly represented by its attorney in fact, Mr. JEREMY CHARLES NORTON, and his powers of attorney have not been revoked, amended, nor limited, same that were formalized in the power of attorney granted by the Managing Director of Rapiscan Systems, INC. and that is dully apostilled in terms of the Hague Convention.III.3. It acknowledges that the name by which it is identified in this contract is “RAPISCAN INC” which is due to the fact that it was appointed as common representative for all the intents and purposes of the competitive bidding process. It likewise represents that it has the legal capacity to contract and that, through its shareholders, possesses the necessary experience, organization, as well as the technical, economic, and human resources to bind itself to the works and rendering of services obligations assumed pursuant to this Contract.III.4 None of the persons who work for it holds any employment, position, or commission in “THE AIRPORT” and it is not subject to any legal impediment whatsoever which prevents it from binding itself pursuant to the terms of this Contract.III.5 It designates, as its domicile and as authorized to receive any notice or communication, the domicile located at: Müggenburg, Gorches, Peñalosa y Sepúlveda, S.C. Paseo de los Tamarindos No. 90, Torre 1, 8° Piso Col. Bosques de las Lomas 05120 México, D.F. Attn’: Carlos Müggenburg Rodríguez Vigil and/or Pablo Guillermo Gómez Sáinz Notwithstanding the above, “RAPISCAN INC” withhold the right to change the domicile and authorized persons to receive notices prior written notice to “THE AIRPORT”. 3
    • CONTRACT NUMBER: BTIJP09-000124III.6 It is fully familiar with the content of the specifications for the works and services to be performed, as well as the content of the following EXHIBIT “A”.IV. Both contracting parties represent as follows through their attorneys in fact and on their own behalf, under oath:IV.1 They expressly recognize the powers of representation with which both contracting parties participate in this instrument.IV.2 They are reciprocally interested in mutually entering into this contract, in view of the content of its representations, none of which contains any error, fraud, or bad faith in regard to its content, and both parties accept the foregoing representations and agree to execute the following: CLAUSESFIRST OBJECT OF THE CONTRACT.- “THE AIRPORT”, entrusts “RAPISCAN” the performance of: "TURNKEY DESIGN, SUPPLY, INSTALLATION AND STARTING UP OF THE SYSTEM FOR INSPECTION OF 100% OF DOCUMENTED BAGGAGE (hereinafter the “TURNKEY OF THE SYSTEM”) at ”THE AIRPORT” Facility, which encompasses the performance of the work offered as LOT 1 AND LOT 2, as well as the rendering of GUARANTEED SERVICES of the SYSTEM (hereinafter the “GUARANTEED SERVICES”) at ”THE AIRPORT”, same works and services that will be carried out in accordance with the specifications, legal provisions, standards, and exhibits listed in EXHIBIT “A” of the “RAPISCAN” representations section, undertaking to perform said work and services up to their total conclusion and in accordance with the regulations of the place where the work is to be performed, which standards are deemed to be reproduced herein, as an integral part of this Contract. The parties understand, agree and accept as the “SYSTEM” all the elements required to conduct the transfer of baggage, inspection of baggage, transfer to the baggage collection points, whether free or subject to question [“bajo duda”], the PLC, the electrical feed and protection systems, the adaptation of the infrastructure through civil construction work, and the environmental compliance systems, wherefore “RAPISCAN” must (i) provide, develop, install, and/or modify all aspects or parts provided for in EXHIBIT “A”, in order to deliver functioning in full, in adequate operational conditions and with the required conveniences provided by the elements which comprise the SYSTEM, as well as (ii) the GUARANTEED SERVICES, which comprise all aspects or parts that are necessary in order to maintain working in full, in adequate form and with the necessary conveniences offered by the elements that compose the SYSTEM, in fulfillment with applicable provisions of EXHIBIT ”A”. In connection with the TURNKEY OF THE SYSTEM, “THE AIRPORT” shall maintain available adequate electric services and any other installations of connections necessary for the above mentioned purposes. The parties hereto understand, agree and accept as TURNKEY OF THE SYSTEM the undertaking by “RAPISCAN” to design, supply, install, build, start up and carry out the GUARANTEED SERVICES in terms of this Contract, EXHIBT “A”, the SYSTEM with no adjustment to price or to the performance term, except in the cases expressly foreseen in this Contract. The inspection equipment to be installed are MVXR5000, and contemplates the required installation of the equipment, including the utilization of the existing ETD machines (referred to in EXHIBIT ”A” of the Inventory of Equipment ETD), as well the control of the SYSTEM. The TURNKEY OF THE SYSTEM comprises also the civil construction work, electric installations necessary for the operation of the SYSTEM, air conditioning, etc. in order to adequate "THE AIRPORT” for the installation of the conveyor belts and inspection equipment, supply and installation of the closed-circuit television and the scanner system, which encompasses the entire system required to scan the suitcases. 4
    • CONTRACT NUMBER: BTIJP09-000124SECOND TOTAL VALUE OF THE CONTRACT. The total value of this contract is $62,163,534.00 (sixty two million one hundred and sixty three thousand five hundred thirty four pesos 00/100 Mexican Currency), plus Value Added tax, which will be paid by “THE AIRPORT” to “RAPISCAN”, and invoiced by”RAPISCAN” in terms of what is provided for in this Contract, and in the terms of the applicable laws. This amount includes all kinds of expenses for transportation, travel, lodging, food, importation duties, warehousing, custom expenses, any kind of taxes imposed to “RAPISCAN” in terms of the tax legislation in force, as well as any kind of expenses related to this Contract incurred in the ordinary rendering of the services. Once any payment is made by “THE AIRPORT” for the “TURNKEY OF THE SYSTEM” in terms of the present Contract, "RAPISCAN" shall not be entitled to initiate any claim against “THE AIRPORT” for payment concept, since the price agreed upon shall be paid in the terms provided for in the Clause “FORM OF PAYMENT” of this Contract.THIRD PERFORMANCE TERM OF THE TURNKEY OF THE SYSTEM.- “RAPISCAN” undertakes to deliver to satisfaction in terms of EXHIBIT “A”, the “TURNKEY OF THE SYSTEM” in the following time: A. It is stipulated that it shall have a term of 60 (sixty) calendar days from the signing of the Certificate of Commencement and Layout of the “TURNKEY OF THE SYSTEM” for delivery of Lot 1, same certificate shall be signed on January 22nd , 2010. “RAPISCAN” shall deliver as part of Lot 1 the particular Critical Route of the “TURNKEY OF THE SYSTEM” (in Project) of “THE AIRPORT” (hereinafter “THE PARTICULAR CRITICAL ROUTE”) and the integral of the Airports network (hereinafter “THE GLOBAL CRITICAL ROUTE”). B. For Lot 2 (not considering the “GUARANTEED SERVICES”), it shall have a term of 120 (one hundred twenty) calendar days as of the date of acceptance in writing of Lot 1 by “THE AIRPORT”. C. “RAPISCAN” binds itself to render the “GUARANTEED SERVICES” referred to in this Contract for a term settled for “THE AIRPORT” in document 6 of the EXHIBIT “A” counted as of the date of the execution of the Certificate of Acceptance of the System, or in the contrary, from the date in which “THE AIRPORT” begins the Operational Use of the “SYSTEM”, whatever happens first. It is understood as “Operational Use” whenever the “TURNKEY OF THE SYSTEM” is used within the 15 (fifteen) calendar days period referred to in item “A” of Clause “ACCEPTANCE OF THE TURNKEY OF THE SYSTEM” for any purpose different to those provided for in the verification tests in item 8 “Delivery of the SYSTEM” provided in the Technical Specification Document (PET).FOURTH AVAILABILITY OF “THE AIRPORT” FACILITIES.- The performance of the “TURNKEY OF THE SYSTEM” subject matter of this Contract must commence on the date indicated, and to that end “THE AIRPORT” binds itself to cooperate, to warrant the full cooperation of its personnel, and to make fully available to “RAPISCAN” the facilities in which the works provided for in this Contract are to be performed, in such a way that RAPISCANs performance is not impeded or delayed. Failure to comply with this obligation in reference to the availability of “THE AIRPORT” facilities, shall delay in equal term the date originally stipulated for conclusion of the works, counted as of the date on which “RAPISCAN” notifies “THE AIRPORT” in writing the breach to what is provided for in this Clause, and until “THE AIRPORT” cures such a breach and notifies “RASPICAN” the availability to reinitiate the works and/or service. 5
    • CONTRACT NUMBER: BTIJP09-000124 Rendering of the “GUARANTEED SERVICES” must be initiated on the indicated date, and to that end “THE AIRPORT” binds itself to cooperate, to ensure full cooperation of its personnel, and to provide to "RAPISCAN” the required equipment and facilities in which the work for the performance of the “GUARANTEED SERVICES”, in such a way that RAPISCANs performance is not impeded or delayed. Upon execution of the “GUARANTEED SERVICES”, “RAPISCAN” shall immediately remove the excess materials and resources used in its execution, leaving the areas it had occupied completely clean and expedited. In the rendering of the “GUARANTEED SERVICES”, “RAPISCAN” shall be subject to the official provisions, both national and international, relating to the purpose of this Contract and which are mandatorily applicable from time to time, and shall use original spare parts and components of the same brands as the installed equipment or proven to be compatible with the installed equipment and that “RAPISCAN” has approved and use in its equipments provided to third parties. “RAPISCAN” undertakes that the rendering of the “GUARANTEED SERVICES” shall not interfere with the performance of the standard activities of “THE AIRPORT”, in addition to those interferences that the nature of the “GUARANTEED SERVICES” necessarily implies.FIFTH FORM OF PAYMENT.- “THE AIRPORT” shall pay an advance equivalent to 40% of the total value of the contract plus Value Added Tax. Said advance shall be paid in a single installment within the following 7 (seven) business days to the acceptance of the invoice and advance payment guaranty by “THE AIRPORT” and it shall be delivered upon submitting of the invoice or receipt in proper form in terms of applicable legislation. In the event “THE AIRPORT” fails to pay the advanced payment pursuant to the terms of hereof, "RAPISCAN” may rescind this agreement and the relevant invoices may be cancelled by "RAPISCAN”, and “THE AIRPORT” shall be liable for the expenses incurred by "RAPISCAN” for the obtaining and termination of the advanced payment guaranty and the rescission of this Contract, in the understanding that such expenses shall be duly supported and documented by "RAPISCAN” and derive directly from the lack of payment of the advanced payment by “THE AIRPORT”.| A. The payments for “TURNKEY OF THE SYSTEM” shall be made by estimates of origin, as the work advances, and must be made against invoices in proper form. The payments shall be made in accordance with the following schedule: INVOCING: Turnkey (Stages of the Project, without amortization of the advance) CONVEYOR BELTS AND ADVANCE PROJECT WORK INSPECTION TOTAL OTHER EQUIPMENT EQUIPMENT January 10 24,865,414 Between Jan- March 2010 2,620,883 2,620,883 Estimations as advances in works in 2010 9,851,185 9,851,185 Estimation of 13,190,151 18,670,114 31,860,266 deliver of 6
    • CONTRACT NUMBER: BTIJP09-000124equipment atairportFinal invoice forthe start up of theequipments atairport 7,741,322 10,089,878 17,831,200 24,865,414 2,620,883 9,851,185 20,931,474 28,759,992 62,163,534 PAYMENTS: CONVEYOR BELTS AND INSPECTION OTHER PROJECT WORK EQUIPMENT EQUIPMENT TOTAL TOTAL INVESTMENT: 2,620,883 9,851,185 20,931,474 28,759,992 62,163,534 PAYMENTS: 40% ADVANCE 1,048,353 3,940,474 8,372,589 11,503,997 24,865,414 60% AT THE DELIVERY OF THE PROJECT 1,572,530 1,572,530 60% OF WORKS TO BE PAID AS ESTIMATIONS OF ADVANCES 5,910,711 5,910,711 AT THE RECEPTION OF THE EQUIPMENT AT THE AIRPORT 4,817,562 7,166,117 11,983,679 AT THE START UP 4,817,562 7,166,117 11,983,679 PARTIAL PAYMENTS SINCETHE DELIVERY UNTIL THE CONCLUSION OF THE GUARANTY 2,923,760 2,923,760 5,847,521 TOTAL PAYMENTS 2,620,883 9,851,185 20,931,474 28,759,992 62,163,534 B. PAYMENTS DURING THE TERM OF THE RENDERING OF GUARANTEED SERVICES. The parties agree that from the date of acceptance of the “SYSTEM” by “THE AIRPORT”, or “THE AIRPORT” initiates the Operational Use of the same and until the conclusion of the 7
    • CONTRACT NUMBER: BTIJP09-000124 “GUARANTEED SERVICES”, “THE AIRPORT” shall pay the amount of “Partial Payments” as established in the above mentioned schedule, divided by the number of months in which the “GUARANTEED SERVICES” are to be performed, on a monthly and consecutive basis. Payments shall be made exclusively on the 12th and 27th of each month; which means that the invoices which are received and accepted by “THE AIRPORT” (not rejected without justified cause) between the 1st and 15th of then current month shall be paid on the 12th of the following month, while those which are received between the 15th and 30th or 31st of then current month shall be paid on the 27th of the following month, on the understanding that the payment shall be made only if the guarantees and insurances are in full force and effect as of the payment date. “THE AIRPORT” shall perform reviews and audits upon reasonable previous notice to “RAPISCAN”, to verify the proper application of the advance, such reviews and audits shall be performed by “THE AIRPORT” in such a way that shall not impede the efficient implementation of the works and rendering of the services subject matter hereof by “RAPISCAN”. To that end, “RAPISCAN” undertakes to give “THE AIRPORT” the necessary chances and to reliably demonstrate the application thereof, submitting the invoices for the payments made to its suppliers of raw materials, construction materials, and equipment for permanent installation. “RAPISCAN” undertakes to proportionally amortize the received advance payment by deduction of the value of the works rendered and approved in each invoice submitted for payment, until the total amortization of the advance payment. In the event “THE AIRPORT”, without justified cause, fails to pay any of the obligations in terms of this Agreement, “RAPISCAN” shall request the payment to “THE AIRPORT”, same that shall have a cure period of 30 (thirty) days following the request for the fulfillment of its obligations. Notwithstanding the above, “RAPISCAN” shall be authorized to suspend its obligations in terms of this Contract, without any responsibility. Said suspension shall automatically remain without effect once “THE AIRPORT” fulfill its payments obligation. The authority to suspend the contract by “RAPISCAN” by means of the failure to pay without justified cause by “THE AIRPORT”, will only be effective and valid when “RAPISCAN” has amortized the entire advance given by “THE AIRPORT” under the terms of this Clause. Only in the event that the advance payment has not been totally amortized by “THE AIRPORT”, “RAPISCAN” has the obligation to reimburse the part of the advance pending of amortization without prejudice of the stated in the Clause SUSPENSION AND ADVANCED TERMINATION OF THE CONTRACT. In the event that technical or numerical discrepancies arise in the invoice, the parties shall reconcile said discrepancies, and if the case arises, shall authorize the corresponding reconciled invoice. If it is not possible to reconcile all the discrepancies, the pending ones must be solved and incorporated into the next invoice. In the event “RAPISCAN” receives excess payments, it must refund the excess amounts received to “THE AIRPORT”. Likely, in the event “THE AIRPORT” does not pay any of the amounts owed to “RAPISCAN” in terms of this Agreement, RAPISCAN shall have the right to recover all the materials, products, equipment, non-fixed installations either delivered to “THE AIRPORT” or in the “THE AIRPORT” Facilities which have not been paid on time. “THE AIRPORT” shall make available to “RAPISCAN” such materials, products, equipment, non-fixed installation, within the 24 hours following receipt of the written notice with the corresponding requirement from “RAPISCAN”. In the event any “RAPISCAN” employee or any of the subcontractors’ employees sue “THE AIRPORT” for matters that in terms of the Federal Labor Law or this Contract are the responsibility of “RAPISCAN” or any of its subcontractors, the parties will be subject to what is provided for in Clause “LABOR RELATIONSHIPS” of this Contract.SIXTH PLACE OF PAYMENT.- The parties agree that the place of payment shall be the general cashier’s office located at its offices in Aeropuerto de Tijuana, S.A. de C.V., which location is known to “RAPISCAN”, or by wire transfer to the account which “RAPISCAN” notifies in writing to “THE 8
    • CONTRACT NUMBER: BTIJP09-000124 AIRPORT”, with at least five days in advance to the date in which relevant payment is due in terms of this Contract.SEVENTH GUARANTEES. Two different types of guaranties are provided hereby 7.1 To secure the proper application of the advance received by “RAPISCAN,” it shall provide a global guaranty according to the form included in document 8 of EXHIBIT “A” that includes “THE AIRPORT” and that covers 100 % (one hundred per cent) of the value of the advance, including VAT, which must be delivered on the date provided herein for payment of the advance. The amount of this guaranty shall be decreased as the amount of the advance is decreased due to offset by compensation in the invoicing; for this purposes, “RAPISCAN” shall have the right to offset on monthly basis against the advance 40% (forty percent) of invoiced amounts to “THE AIRPORT”, and to decrease the guaranteed amount by the corresponding amount.”THE AIRPORT” binds itself to issue the instructions in writing that are required by the issuing company of the guaranty for the adjustment and/or cancelation of this guaranty. Upon the issuance of the Certificate of Acceptance by “THE AIRPORT” or initiate the Operational Use of the SYSTEM, whatever happens first, “RAPISCAN" shall invoice the remaining balance of 100% of “TURNKEY OF THE SYSTEM” and “THE AIRPORT” shall instruct the issuing company of the guaranty to cancel said guaranty. 7.2 To secure the performance of contractual obligations and hidden defects assumed by “RAPISCAN” in terms of the Agreement, “RAPISCAN” shall provide a guaranty for 20% (twenty percent) of the value of the Contract, excluding VAT, within 30 (thirty) calendar days from the date of execution of the Certificate of Commencement and Layout of the “TURNKEY OF THE SYSTEM”. Upon date of issuance of the Certificate of Acceptance by “THE AIRPORT”, or Operational Use of the SYSTEM, whatever happens first, the amount of the guaranty shall be reset by deducting the applicable value of the associated Engineering Project Lot 1 in “THE AIRPORT” as reflected in the payment schedule transcribed in Clause FORM OF PAYMENT . Twelve months from the date of the issuance of the Certificate of Acceptance by “THE AIRPORT”, or Operational Use of the “SYSTEM”, whatever happens first, the amount of the guaranty which is fixed for the referred term of twelve months, shall be adjusted to cover hidden defects shall be reset by deducting the applicable value of the construction, inspection equipment, conveyor belts and rest equipment for the “SYSTEM” as reflected in the payment schedule transcribed in Clause FORM OF PAYMENT. The guaranty of the “GUARANTEED SERVICES” will initiate within the acceptance of the “SYSTEM” or Operational Use of the same by “THE AIRPORT” and will be adjusted proportionally downwards every six months until the end of the guaranty period. “RAPISCAN” withhold its right to adjust the value of the guaranty of the fulfillment of contractual obligations to the end of every period of six months in the corresponding amounts counted as of the issuance of the Certificate of Acceptance by “THE AIRPORT” or as of the date in which make Operational Use of the SYSTEM. “RAPISCAN” also agrees that from the date in which “THE AIRPORT” issued the Certificate of Acceptance or has initiated the Operational Use of the SYSTEM, the amount of the guaranty will increase in USD $629,071.97 (six hundred twenty nine thousand seventy one dollars 97/100) to cover any monetary claim initiated against “THE AIRPORT” by users of the “SYSTEM” attributable to “RAPISCAN”. This additional 9
    • CONTRACT NUMBER: BTIJP09-000124 guaranty shall remain in effect during the rendering of the “GUARANTEED SERVICES”. If a claim is filed during the term of the rendering of “GUARANTEED SERVICES”, this guaranty shall continue in force during the development of all the appeals and legal defenses which may be filed by any of the parties, until such time as the final resolution is pronounced by the proper authority. If a claim has not been filed during the term of the rendering of the “GUARANTEED SERVICES” the guaranty shall automatically released. “THE AIRPORT”, binds itself to issue the letters of instructions to the company issuing the corresponding guaranties upon RAPISCANs written request and to take any other actions needed so “RAPISCAN” may adjust and/or cancel the guaranties in accordance with the terms of this Agreement..EIGHTH INSURANCE: “RAPISCAN” shall submit an insurance policy naming “THE AIRPORT” as additional beneficiary, to be obtained at “RAPISCAN” own expense, covering civil liability insurance for any possible damages and losses it might cause to aircraft and/or its equipment, to “THE AIRPORT” and to third parties in their assets and/or individuals, with sufficient and necessary coverage as to cover the corresponding indemnifications to address such liability as might arise as a consequence of the work and services subject matter of this Contract. The general terms of insurance, form of policy and terms and conditions of coverage are contained in Document No. 11 of EXHIBIT “A” to this Agreement. It is acknowledged by “THE AIRPORT” that these type of insurance policies are available for a maximum term of one year. Nevertheless, “RAPISCAN” binds itself to maintain “THE AIRPORT” protected during the term of existence of this Agreement, with an insurance policy issued by an insurance company legally established in México, substantially in the same terms and conditions of the insurance policy submitted by “RAPISCAN” in this Contract. Within 30 (thirty) calendar days from the execution of this Agreement, “RAPISCAN” must submit Proof of Insurance in the form of an insurance binder or certificate of insurance, providing for the specific and general conditions of the insurance policy as described in the above paragraph. In the event that “RAPISCAN” fails to deliver to “THE AIRPORT” the insurance policy to which this Clause refers to within the provided term, or in the event it is not current, “THE AIRPORT” may engage the policy reflecting exactly the same terms and conditions indicated above as available, in the name and the account of “RAPISCAN” or rescind the Agreement if such terms and conditions insurance policy had not been met, considering this fact as a breach to this Contract. Timely payment of the premium and deductible in the case of a disaster is the responsibility of “RAPISCAN” and it must submit to “THE AIRPORT” a copy of the payment receipt stamped by the insurer or insurance broker and submit the original for review to enter into “THE AIRPORT” facilities; any delay in the performance of this Agreement due these reasons, shall be imputable to “RAPISCAN”, unless “RAPISCAN” evidences that any delay in the payment of the premium and/or in the submitting of the corresponding payment receipt is caused by force majeure or acts of God respectively. It is agreed that obtaining the insurance to which this clause refers does not release “RAPISCAN” from its obligation to pay for damages and losses in amounts exceeding the coverage of the policy, which shall be its responsibility and must be covered by its own funds, as long as such amounts directly derive from the same guaranteed event.NINTH AGREEMENT INTUITU PERSONAE.- Since this is an agreement Intuitu Personae, “RAPISCAN” may not, under any circumstances, assign to other individuals or legal entities any or all of the rights and obligations deriving herefrom to implement the “TURNKEY OF THE SYSTEM”, except for collection rights in its favor from invoices or counter-receipts generated pursuant to this agreement. 10
    • CONTRACT NUMBER: BTIJP09-000124 “RAPISCAN” may not perform the works or provide services, or any part thereof, through any other party, without the prior authorization of “THE AIRPORT”, in the understanding that said authorization shall not be delayed without justified cause. “THE AIRPORT” has authorized “RAPISCAN”s use as subcontractors of the following companies: Vanderlande, Inc, Moro Electronic Systems, S.A. De C.V., Moroempaques, S.A. De C.V., Desarrollo Integral del Ingeniería Constructiva, S.A. de C.V. and Rapiscan Systems. Inc. (the latter as technology provider), as well as any “RAPISCAN” affiliated companies in Mexico or abroad in the understanding that none of the subcontractor are parties to this Contract.TENTH PROTECTION OF THE ENVIRONMENT: "RAPISCAN" states that its personnel states to be familiar with in-force ecology and environmental protection regulations at the federal, state and municipal levels, and therefore, in fulfillment of this Contract it undertakes to comply with them, avoiding making noise that exceeds the permitted limits, or emitting radiation, odors, gas odors, solid and liquid particles into the atmosphere or soil in violation of the aforementioned regulations. "RAPISCAN" undertakes to keep the place where the installation is to be performed and its surroundings free of trash, objects or waste, as well as if the case may be, the streets and adjacent platforms, avoiding generating any type of waste implying a risk to the proper functioning of airport operations. In case “THE AIRPORT” detects any breach to what is provided above in this Clause, it shall require “RAPISCAN” to fulfill such obligation in a term of 7 (seven) calendar days counted form the day in which such notification is received. In the event of persistence in violating ecological regulations after a request from the competent authorities, “THE AIRPORT” may rescind this Contract, applying the applicable penalties referred to below, notwithstanding any other fines as may be determined from the competent authorities, or withhold “RAPISCAN” payments in an amount necessary to cover any damages or fines imposed by any governmental authority, applicable legal indemnifications to third parties, as well as any expenses incurred by “THE AIRPORT” derived from the violation of ecological regulations, in the understanding that said expenses shall be duly documented and supported by “THE AIRPORT”, and shall directly arise from a failure of compliance of “RAPISCAN” in the terms provided for in this Clause. In case of reiterative violation (once) of the provisions of this Clause for the same cause, “THE AIRPORT” at its sole discretion may rescind this Contract, and in such a case “RAPISCAN” shall be obligated to payment of the corresponding losses and damages deriving from such a breach, in favor of “THE AIRPORT”.ELEVENTH TECHNICAL REPRESENTATIVE: Prior to commencing the works of the “TURNKEY FOR THE SYSTEM”, “RAPISCAN” binds itself to appoint in writing, a permanent representative who will be at worksite, stating that such representative shall be its construction superintendent, who shall have sufficient authority as to decide everything related to the fulfillment of “TURNKEY OF THE SYSTEM”; “THE AIRPORT” may accept or reject this representative at any time. Likewise, “RAPISCAN” binds itself to designate in writing, before commencing the rendering of the “GURANTEED SERVICES”, a PERMANENT REPRESENTATIVE who shall be available 24 hours a day. Said representative shall have sufficient authorities to receive and efficiently perform any indications from “THE AIRPORT” regarding the services subject matter of this Contract. “THE AIRPORT” unconditionally assumes full responsibility of those indications it makes to the PERMANENT RESPRESENTATIVE, which are not in line with the quality and service standards of “RAPISCAN”, or that have not been previously consulted with “RAPISCAN”. In the case of change on the appointment of the Technical or Permanent Representative, as the case may be, “RAPISCAN” shall have a 5 (five) calendar day term since the new representative took charge as such, to give notice to “THE AIRPORT” of such appointment, which shall be 11
    • CONTRACT NUMBER: BTIJP09-000124 entitled to either accept or not such substitution, in a 5 (five) day term as of the date in which the new representative initiates its performance as such. “THE AIRPORT” shall appoint in writing prior to commencing the “TURNKEY OF THE SYSTEM”, a Direct General Coordinator who shall be in charge of all aspects relating to, or deriving from, the works and services subject matter of this Agreement. The representative General Coordinator shall organize all aspects relating to the evaluation of reports, inspection schedules, training, processing of service payments, etc. “THE AIRPORT” may inspect all the materials to be used in the performance of all works and services, either at worksite or where they are acquired, but in the understanding that performance by “RAPISCAN” is not interrupted or delayed. Any communication between the Technical Representative or the PERMANENT REPRESENTATIVE, in its case, and the General Coordinator appointed by “THE AIRPORT” that involves information or instructions exchange or decisions by any of the parties regarding this Contract, shall be made in writing by any means that evidences the receipt by the other party.TWELFTH ACCEPTANCE OF WORKS OF THE TURNKEY OF THE SYSTEM. A. ACCEPTANCE OF WORKS OF THE TURNKEY OF THE SYSTEM.- The acceptance of the project, supply, installation and start-up shall be made by the personnel appointed by “THE AIRPORT” for such effects, reserving the right to claim for missing or defective works or for undue payment. For such effects, the acceptance proceeding shall be subject to the following: Once “RAPISCAN” communicates in writing to “THE AIRPORT” the conclusion of the installation works of the “SYSTEM”. “THE AIRPORT” shall have a term of 7 (seven) calendar days to initiate the Operational Use tests, if the result of said tests is satisfactory to “THE AIRPORT”, the later shall deliver to “RAPISCAN” the Certificate of Acceptance of the “SYSTEM” within the following 15 (fifteen) calendar days to the satisfactory conclusion of the Operational Use tests; on the contrary, if “THE AIRPORT” does not deliver said Certificate of Acceptance of the “SYSTEM”, the “SYSTEM” will be deemed accepted by “THE AIRPORT”. Once the installation of the “SYSTEM” is concluded, notwithstanding its formal acceptance, “RAPISCAN” shall be deemed to face the defects resulting from it or the hidden defects during the term for the rendering of the “GUARANTEED SERVICES” and of any other responsibility incurred pursuant to the provisions of this Agreement, the Civil Code for the Federal District and its correlative provisions of the Federal Civil Code. B. ACCEPTANCE OF THE GUARANTEED SERVICES. The acceptance of the “GUARANTEED SERVICES” shall be subject to Annex 4 “Service Level Agreement (SLA)” of the Technical Specifications Document (PET) forming part of “EXHIBIT “A” to this Contract. For this Contract in general and for the interpretation of paragraphs A and B of this Clause, it shall also be considered as acceptance of the “TURNKEY OF THE SYSTEM” by “THE AIRPORT”, the fact that “THE AIRPORT” makes Operational Use of the works of “RAPISCAN” before issuing the Certificate of Acceptance , with the exception that it shall not be considered as operational use, those works for the verification of the technical capacity of the works or Operational Use tests of the “SYSTEM” carried out by “THE AIRPORT” “THE AIRPORT” shall notify in writing to “RAPISCAN” with at least 24 (twenty four) hours in advance to implementing those verification works or Operational Use tests of the “SYSTEM”, so that “RAPISCAN” at its sole discretion, may direct any of its officers to attend the performance of such verification works. 12
    • CONTRACT NUMBER: BTIJP09-000124 “THE AIRPORT” shall retain the right to claim for payment of any sums exceeding the covered amounts once the guaranties are exercised in connection with the works subject matter of this Contract, as long as said amounts derive from the same guaranteed event.THIRTEENTH LABOUR RELATIONS: Both parties agree that any obligation deriving from relations established with the personnel “RAPISCAN” or any of the subcontractors used or provided to fulfill and execute the obligations it acquires under this Contract, is the sole responsibility of “RAPISCAN” and therefore there will be no labor relationship whatsoever with “THE AIRPORT,” nor may the latter be considered under any circumstances as substitute or joint employer; consequently, “RAPISCAN” undertakes to hold “THE AIRPORT” harmless of any “RAPISCAN’s” or its subcontractor’s employee labor related claim or demand that might arise under this Agreement, assuming the labor responsibility vis-à-vis the authorities and tribunals with respect to any labor and social-security claims. The above in the understanding that “THE AIRPORT” shall diligently notify “RAPISCAN” in writing of any labor claim filed by any employee of “RAPISCAN” or of any of its subcontractors. “RAPISCAN” declares that it has sufficient resources to comply with the undertakings assumed in this Contract. Accordingly, “RAPISCAN” undertakes to abide by the applicable Workplace Safety and Hygiene Regulations which are a part of EXHIBIT “A” to which reference is made in Representation II.7 of this Contract. All the equipment and resources for work in general which are required to perform the works shall be furnished solely and exclusively by “RAPISCAN”, either directly or through subcontractors previously approved by “THE AIRPORT” in terms of this Contract. The parties agree that “RAPISCAN” is responsible for the training of its employees and the direction of their activities to carry out the contracted work. “RAPISCAN” is likewise obligated to supervise the work that is performed, all of which notwithstanding the verification which “THE AIRPORT” may conduct to pursue the accomplishment of this Contract’s purpose. Such verification by “THE AIRPORT” shall not interfere with the rendering of the services subject matter hereof by “RAPISCAN”. “RAPISCAN” must submit to “THE AIRPORT” within the 45 (forty-five) calendar days following the execution of this Contract, notice of the enrollment of the company and the work center in the Mexican Social Security Institute (IMSS). Delivery of the notices of enrollment with the IMSS for the employees by “RAPISCAN” to “THE AIRPORT” shall be made no later than at the date of commencement of the work, and “RAPISCAN” must furnish monthly copies of its payments to the IMSS, broken down by employee. “RAPISCAN” must likewise give “THE AIRPORT” a copy of the bimonthly payments it makes to the INFONAVIT regarding relevant employees. “RAPISCAN” likewise undertakes to submit the IMSS SATIC (“Construction Industry Affiliation System”) form, duly received by the appropriate IMSS Delegation, within the 45 (forty-five) business days subsequent to the commencement of this Contract’s term; otherwise, “RAPISCAN” empowers “THE AIRPORT” as of this time to meanwhile make the withholding from any payment pending delivery to “RAPISCAN” until SATIC (“Construction Industry Affiliation System”) form is delivered to “THE AIRPORT”. The parties agree that said withholding shall be made in the absence of any prior requirement by “THE AIRPORT.” “RAPISCAN” likewise undertakes to promptly inform “THE AIRPORT” of the demands it may have received from the IMSS in regards to “RAPISCAN” employees related to this Contract. In the event IMSS determines that “RAPISCAN” is in default and commences the exercise of its powers assessing liability against “THE AIRPORT”, “RAPISCAN” empowers “THE AIRPORT”, after having given “RAPISCAN” 3 (three) days advanced written notice, to off-set the outstanding debts as of the date of notification of such requirement by the IMSS, for payment of the fiscal debt so determined on behalf of “RAPISCAN”. 13
    • CONTRACT NUMBER: BTIJP09-000124 If “RAPISCAN” fails to deliver the aforementioned documentation, “THE AIRPORT” shall be entitled to rescind this Contract in accordance with the procedure provided herein. “RAPISCAN” binds itself not to hire any employee and/or subcontractor of “THE AIRPORT” without the previous consent of “THE AIRPORT”. “THE AIRPORT” binds itself, on its own account, to keep “RAPISCAN” free and harmless from any labor claim initiated by employees of “THE AIRPORT” and/or its subcontractors working at “THE AIRPORT”, and involving “RAPISCAN” in any manner whatsoever, or in terms of which any such employees claims to be an employee of “RAPISCAN”. Likewise “THE AIRPORT” shall indemnify “RAPISCAN” from any expenses in which it may incur in its defense for the concepts provided for in this paragraph, in the understanding that said expenses shall be duly documented and supported by “RAPISCAN” and shall derive directly from the labor claim initiated by the employees of “THE AIRPORT” and/or its subcontractors.FOURTEENTH RESPONSIBILITIES OF ”RAPISCAN”.- “RAPISCAN”, in terms of EXHIBIT “A”, , undertakes to ensure that the materials and equipment used in the works subject matter of this Contract are in compliance with the explicit requirements set forth in the EXHIBT “A” of the “RAPISCAN” Representations section, and that the performance of the works and services subject matter of this Agreement, shall be carried out to the reasonable satisfaction of “THE AIRPORT" in terms of this Contract. As of the date in which “THE AIRPORT” issues a Certificate of Acceptance of the “SYSTEM” or “THE AIRPORT” makes Operational Use of the “SYSTEM”, whichever happens first, “RAPISCAN” shall be responsible at its own expense and risk during the hidden defects guaranty period for any hidden defects and flows referred to in section 7.2 of this Contract of the Clause “GUARANTEES” of this Contract, as well as for any damages and lost profits which may be inflicted on “THE AIRPORT” or third parties by inobservance or negligence on its part or that of its employees; in such a case, the guaranty for hidden defects provided for in section 7.2, shall be enforced in an amount up to the total value thereof.FIFTEENTH PENALTIES FOR DEFAULT IN THE PROGRAM.- In order to determine whether “RAPISCAN” is performing the project, supply, installation and start-up of the “SYSTEM” in accordance with the program and amounts approved by “THE AIRPORT”, “THE AIRPORT” shall verify every 15 (fifteen) calendar days the fulfillment of the obligations, including the fulfillment of the “CRITICAL ROUTE” referred to in the Clause “PERFORMANCE TERM OF THE TURNKEY OF THE SYSTEM” If “RAPISCAN” has failed to timely satisfy any of the obligations agreed to in this Contract due as of the date of such review, “THE AIPORT” shall notify “RAPISCAN” such fact within the following 15 (fifteen) calendar days, having “RAPISCAN” 15 (fifteen) calendar days subsequent to the notice by “THE AIRPORT” to cure such failure, in the case that “RAPISCAN” have not cured such failure within the said term, “THE AIRPORT” shall proceed in accordance with what is provided for in this Contract. “THE AIRPORT”, without prejudice to the assessment of other kinds of penalties, shall apply the following chart of surcharges for such failure, in the understanding that the penalties per day of delay shall commence from the date in which pursuant to the program and amounts approved by “THE AIRPORT” the work should have been performed: 1. Total or partial amount of the contract. Penalty 14
    • CONTRACT NUMBER: BTIJP09-000124 Aggregate value of work improperly performed Penalty per day work after notice and expiration of the cure period outstanding after notice and expiration of cure period- Up to $32,000.00 MN $64.00 MN/day- From $32,000.00 to $63,000.00 MN $126.00 MN/day- From $63,000.00 to $320,000.00 MN $250.00 MN/day- From $320,000.00 to $625,000.00 MN $380.00 MN/day- From $625,000.00 to $1,600,000.00 MN $620.00 MN/day- From $1,600,000.00 to $6,250,000.00 MN $1,250.00 MN/day- From $6,250,000.00 to $15,625,000.00 MN $6,250.00 MN/day- From $15,625,000.00 to $31,250,000.00 MN $62,500.00 MN/day- From $31,250,000.00 to $47,000,000.00 MN $94,000.00 MN/day- From $47,000,000.00 to $62,500,000.00 MN $125,000.00 MN/day- More than $62,500,000.00 MN 1/500 of the amount failed MN/dayPenalties for lateness of the partial terms may not in any case exceed 20% (twenty per cent) of thetotal amount of the Contract; wherefore once that maximum limit is reached, the contract may becancelled. Also, the penalties for failure in the partial terms are not accumulative amongthemselves, neither those that could correspond to failure in the total term. Consequently, in thebreach of a partial term or total term, the so corresponding penalty shall absorb the ones previouslyoccurred, with the attribute of not accumulative, until they are liquidated and also proceeding to therefund of the difference of the amount of those imposed result greater to the corresponding for thelast term failure.When a particular delivery is not made within the provided term according to the program, in theabsence of justified cause , and such failure is not cured within 15 (fifteen) calendar days as of thereceipt by RAPISCAN of the notice sent by “THE AIRPORT”, all expenditures made by “THEAIRPORT” for exceeding supervision and support services for the installation of that particulardelivery shall be borne by “RAPISCAN”, in the understanding that such expenditures shall be dulydocumented and supported by “THE AIRPORT” to “RAPISCAN”, and shall be limited toexceeding supervision and support services to the installation that derive directly from the failure of“RAPISCAN” in the terms provided in this paragraph. The value thereof shall be deducted fromthe payments which “THE AIRPORT” should to make to “RAPISCAN”.Independently from the payment made for the contractual penalties specified in the precedingparagraphs, “THE AIRPORT” may, after notice to “RAPISCAN” of its failure to perform and“RAPISCAN”s failure to cure such nonperformance within 15 (fifteen) days of receipt by“RAPISCAN” of the notice by “THE AIRPORT”, demand performance of the Contract or rescindit. Delays caused by acts of God or causes of force majeure, or by any other cause not attributableto “RAPISCAN”, shall not be taken into account to determine the withholdings and the applicationof the stipulated penalty, in that event, “THE AIRPORT” shall make the applicable amendments tothe program.In the case “THE AIRPORT” elects to rescind the Contract under the preceding terms of thisClause for any cause imputable to “RAPISCAN”, it shall proceed to enforce the guaranties,refraining from paying the sums corresponding to work performed but still outstanding, untilcorresponding settlement is signed, which shall be done within the (30) thirty calendar dayssubsequent to the date of receipt of the notification of rescission.Delays in the performance of the installation which are a consequence of normal weatherconditions in the area may not be deemed to be acts of God or causes of force majeure. 15
    • CONTRACT NUMBER: BTIJP09-000124SIXTEENTH SUSPENSION AND ADVANCED TERMINATION OF THE CONTRACT.- “THE AIRPORT” may temporarily suspend the contracted works and/or services in whole or in part, as the case may be, at any time for justified causes, without implying its definitive termination. To that end, “THE AIRPORT” shall issue a written communication to “RAPISCAN” in which it shall set forth the reasons and justifications for the temporary suspension, as well as the anticipated date for the resumption of the work and/or services. “THE AIRPORT” shall pay “RAPISCAN” all the expenses incurred due to the suspension, in the understanding that such expenses shall be duly documented and supported by “RAPISCAN” and shall derive directly from the suspension of the installation and/or services by “THE AIRPORT”. If such suspension lasts more than ninety (90) calendar days, “RAPISCAN” shall be entitled to terminate this Contract, and “RAPISCAN” can recover all expenses incurred due to such suspension, in the understanding that such expenditures shall be duly documented and supported by “RAPISCAN” and shall derive directly from the suspension of the works and/or services by “THE AIRPORT”. In such case, the guaranties provided in this Contract shall be released. “RAPISCAN” may suspend the installation to which this Contract refers, or the performance of the “GUARANTEED SERVICES” whenever the continuation of them is made impossible due an act of God or a cause of force majeure, which have not been induced by “RAPISCAN” and which prevent the performance of said works or services, as the case may be. In such a case, if “RAPISCAN” elects the Contract’s advance termination, it must submit its written request to “THE AIRPORT,” which shall decide within the 5 (five) calendar days subsequent to receipt thereof. In the case of a negative from “THE AIRPORT”, it shall be necessary that “RAPISCAN” obtains the corresponding declaration from the competent judicial authority. Whenever causes of force majeure or acts of God having as a consequence the advanced termination of this Contract by “THE AIRPORT”, “THE AIRPORT” shall notify “RAPISCAN” accordingly within the 5 (five) calendar days following that in which the cause of force majeure or act of God occurs, and shall pay “RAPISCAN” the works and/or services performed, as well as all non refundable expenses, in the understanding that such expenses should be duly documented and supported by “RAPISCAN” and derive from the works and/or services subject matter hereof.SEVENTEENTH RESCISSION OF THE CONTRACT. “THE AIRPORT” may rescind this contract at any time for “RAPISCAN” default of any its obligations provided in this Contract and in the EXHIBIT “A”, upon Notarial notification at the domicile provided by “RAPISCAN” to receive notices in this Contract, sent by “THE AIRPORT” on relevant default, and “RAPISCAN”s failure to cure such default within 15 (fifteen) calendar days subsequent to receipt of such notice. In case of persistence in the default subject matter of such notification, and once elapsed the 15 (fifteen) calendar days term, “THE AIRPORT” shall have the right to rescind the Contract. Such responsibility shall not carry responsibility for “THE AIRPORT” except for the payment of the work performed to that date by “RAPISCAN” besides application of the contractual penalties in accordance with this Contract and the guaranty granted for the enforcement of the contract becomes effective. For illustrative purposes but not limited thereto, “RAPISCAN” shall be deemed to have defaulted on the Contract if it fails to commence the work or the performance of the services on the stipulated dates, unjustifiably suspends the work or services, fails to comply with the program of performance due to lack of materials or construction equipment, and if it fails to replace any part of the installation or services rejected on the grounds of inconsistency with the specifications or quality standards, as well as for any other cause which results in infringement on the terms of the Contract. In the case of rescission of the Contract for causes attributable to “RAPISCAN”, “THE AIRPORT” shall proceed to enforce the guaranties, and to cover the amounts resulting of works performed and still outstanding, until such time as the corresponding settlement is issued, which must be done within the 30 (thirty) calendar days from the date of receipt of relevant notification of rescission. Said settlement must provide for the excess cost of work not performed and work 16
    • CONTRACT NUMBER: BTIJP09-000124 behind schedule in terms of the currently applicable program, as well as the cost of recovery of the materials and equipment that have delivered, if any; the foregoing without prejudice to any other “RAPISCAN”’s liabilities which may exist. In that event, “THE AIRPORT” shall draw up a duly supported Certificate of Explanation, in which it shall make a record of the status of the work or the services, and the causes which led to the rescission. The following are deemed to be causes of rescission: 1.- Default to this Contract. 2.- If “RAPISCAN” becomes bankrupt prior to terminating the service. 3.- If “THE AIRPORT” becomes bankrupt or decides on its dissolution and liquidation prior to the completion of the contracted works. 4.- Extinction of the Corporation’s legal existence or personality. 5..- Assignment to third parties without authorization by “THE AIRPORT” If there is a balance pending amortization of the advance that was paid, and/or any other balance for which “RAPISCAN” is responsible, it must refund said balance to “THE AIRPORT,” to which end the materials it has in the installation or which are duly demonstrated to be in process of acquisition shall be paid for in accordance with the basic price data, with consideration for the cost adjustments authorized as of the date of rescission, if any, provided they are of the required quality and can be used in the installation, and “RAPISCAN” undertakes in writing to deliver them at the site of performance of the work.EIGHTEENTH ADDITIONAL WORK. In the event “THE AIRPORT” decides, based on the needs of the installation, to expand the scope thereof through additional work, it shall so inform “RAPISCAN” in writing, and the latter shall be obligated to carry out the additional work or services at the same prices as stipulated in its economic bid, provided they are tasks equal or similar to those previously contracted for, and in the case of works for the supply and installation of the “SYSTEM”, its performance do not imply the need to extend the term for the delivery of Lot 2 provided for in the Clause Fourth of this Contract. In the case that the works imply the need to extend the term for the delivery of Lot 2, or as the case may be of new types of works or services, “RAPISCAN” shall submit its technical and economic proposal to “THE AIRPORT” and once they are reconciled they shall govern pursuant to the terms and conditions upon which the parties agree. For purposes of the provisions of this Clause, the parties shall enter into an additional agreement. NINETEENTH MODIFICATION OF THE PLANS, SPECIFICATIONS, AND PROGRAMS. “THE AIRPORT” may modify the project, specifications, and program subject matter of this Contract, by written agreement of both parties. Said modifications shall be deemed to be incorporated into the text of the Contract, and accordingly, shall be mandatory to both parties. Any monetary difference in favor of “RAPISCAN” besides the TURNKEY arising from modifications of the plans, specifications and programs shall be covered by “THE AIRPORT” and the Clauses of “TOTAL VALUE OF THE CONTRACT” and “PERFORMANCE TERM OF THE TURNEY OF THE SYSTEM” of this Contract shall be amended by mutual agreement of the parties. It is hereby agreed that any modification pursuant to this Clause shall be recognized by an executed agreement by both parties. “RAPISCAN” shall for no reason proceed to the performance of work not contemplated in the TURNKEY until such time as the modifications are authorized, the amendment agreement is executed, and the order for performance is recorded in the log (“bitácora”). TWENTIETH EXTENSION OF THE PERFORMANCE TERM. Due to any explicit and supported reasons, the terms provided for in this Contract for its performance, may be modified by the mutual agreement of the parties in writing. 17
    • CONTRACT NUMBER: BTIJP09-000124TWENTYFIRST OTHER SPECIFIC PROVISIONS REGARDING THE TURNKEY OF THE SYSTEM.- RAPISCAN binds itself to submit to “THE AIRPORT” with the 15 (fifteen) calendar days counted as of the date in which “THE AIRPORT” has confirmed the termination of the works, all the necessary documentation to carry out the settlement of the Contract, including the technical documentation that forms the installation, blue prints, generating numbers, calculations, estimates for finished construction, concepts and amounts of construction, among others, all of them duly supported and with the elements necessary for their study and report by “THE AIRPORT”.“ “THE AIRPORT” shall not be obligated to receive requirements or documentation that may be submitted by “RAPISCAN” out of the term provided for in this Clause.TWENTYSECOND DISPUTES.- The parties agree that, if there is any discrepancy between the content of this contract’s provisions and that of any of the exhibits, the former shall prevail.TWENTYTHIRD CONVENTIONAL PENALTY IN CASE OF BREACH TO OBLIGATIONS OF “GUARANTEED SERVICES”. - Both parties agree that if "RAPISCAN" breaches any of the “GUARANTEED SERVICES” obligations agreed in this Contract, "RAPISCAN" will be subject to a conventional penalty in accordance with what is reflected in the Technical Specifications Document (PET) contained in EXHIBIT “A”. The mentioned conventional penalty will apply whenever the breach is attributable to “RAPISCAN”, and “THE AIRPORT” has fulfilled in time and form all the obligations assumed by it in terms of this Contract. In case of repeated breach to what is provided in this Clause, “THE AIRPORT” will have the right to rescind the Contract.TWENTYFOURTH APPLICABLE LEGISLATION, INTERPRETATION, AND JURISDICTION.- The parties undertake to submit strictly, for the pursuit of this Contract’s purpose, to each and all of the Clauses herein and to EXHIBIT “A”. The Federal Civil Code and Commerce Code shall apply for whatever not specifically provided in this Contract. In all matters related to the interpretation, performance, or fulfillment of this Contract, the parties expressly submit themselves to the competence of the judges of the common courts in the city of Guadalajara, Jalisco, and expressly waive any venue that may correspond to them by virtue of their present or future domiciles, the location of the Contract’s purpose, the place of payment, or by any other reason.TWENTYFIFTH ACKNOWLEDGMENT OF OBLIGATIONS.- Conscious of the undertaken obligations arising from this Contract, “RAPISCAN, INC” who appears hereby, assumes the joint commitment in favor of “THE AIRPORT” regarding the undertaken obligations by “RAPISCAN” in this Contract, so that “THE AIRPORT” shall have the right to demand in any form and indistinctively from “RAPISCAN” and/or “RAPISCAN, INC” the defaults arising from this agreement in which “RAPISCAN” may incur, the foregoing in accordance with what is provided for in article 1989 of the Federal Civil Code.TWENTYSIXTH PARTS AND SPARE PARTS. “RASPICAN” shall guarantee the availability of the necessary parts and spare parts for the maintenance of the equipment that form part of the “SYSTEM” up to a period of 10 years counted from the termination of this ContractTWENTYSEVENTH ADDITIONAL PROVISIONS A. DELAYS IMPUTABLE TO “THE AIRPORT”. “RAPISCAN” shall not be liable or subject to any penalty, withholding of amounts due, exercise of any guaranties, or any other responsibility as 18
    • CONTRACT NUMBER: BTIJP09-000124 a result of delay or impossibility of execution or conclusion of the works subject matter of this Contract, that are motivated by force majeure or acts of God or imputable to “THE AIRPORT”. Any delay imputable to “THE AIRPORT”, may delay or not “THE PARTICULAR CRITICAL ROUTE” or “THE GLOBAL CRITICAL ROUTE”. If the delay is imputable to “THE AIRPORT” and such delay impacts in any of the critical routes mentioned in Clause Third of this Contract, “RAPISCAN” shall submit to the “THE AIRPORT” the justification of said impact and the re-schedule to those routes, ,to its criteria, said re-schedule shall be accepted by “THE AIRPORT” and agreed by the parties as an agreement. B. NEGLIGENCE OR WILLFUL MISCONDUCT. “RAPISCAN” shall not be responsible for claims, delays or damages to the extent arising from “THE AIRPORT” or its personnel bad faith or willful misconduct, and “THE AIRPORT” agrees to indemnify “RAPISCAN” and hold it harmless in connection with such matters. C. INTELLECTUAL PROPERTY. Notwithstanding any other provision of this Agreement, “THE AIRPORT” acknowledges and agrees that any “RAPISCAN” owned intellectual property, including patents, know-how, proprietary information, and trade secrets, shall remain owned by “RAPISCAN”. To the extent that any aspect of the work created by “RAPISCAN” for “THE AIRPORT” under this Contract includes “RAPISCAN” intellectual property, “RAPISCAN” grants “THE AIRPORT” a nonexclusive, royalty-free, worldwide license to “RAPISCAN” Intellectual Property incorporated into the work.This contract is signed in the city of Guadalajara, Jalisco on 21st day of the month of December, 2009, in fourcounterparts. SIGNATURES: “THE AIRPORT” “RAPISCAN” __________________________ ______________________________ ENG. MANUEL SANSÓN SUÁREZ. MR. CARLOS MÜGGENBURG R.V. ATTORNEY IN FACT. ATTORNEY IN FACT “RAPISCAN, INC.” __________________________ __________________________ MR. CARLOS MENENDEZ LÓPEZ MR. JEREMY CHARLES NORTON WITNESS ATTORNEY IN FACT _________________________ MR. RAFAEL RAMOS OLIVAS WITNESS _________________________ MR. FLORENCIO SANCHEZ OSUNA WITNESS _________________________ 19
    • CONTRACT NUMBER: BTIJP09-000124MR. MIGUEL ALEJANDRO SOLIS ROSALES WITNESS 20