Construction Agency Agreement

Exhibit 10.4Execution Copy CONSTRUCTION AGENCY AGREEMENT Dated as of May 14, 2008between Spirit AeroSystems, Inc., as Construction Agentand The North Carolina Global TransPark Authority, as Landlord


TABLE OF CONTENTS Page ARTICLE I DEFINITIONS; RULES OF USAGE 1 1.1. Definitions 1 1.2. Interpretation 1 ARTICLE II APPOINTMENT OF THE CONSTRUCTION AGENT 1 2.1. Appointment 1 2.2. Construction Contracts and Plans and Specifications 2 2.3. Acceptance and Undertaking 3 2.4. Term 4 2.5. Scope of Authority 4 2.6. Delegation of Duties 5 2.7. Covenants of Construction Agent 5 2.8. Appointment of Construction Consultant 6 ARTICLE III INSURANCE 6 3.1. General Contractor' s Insurance 6 3.2. General Liability Insurance 7 3.3. Automobile Liability Insurance 7 3.4. Workers Compensation 7 3.5. Umbrella or Excess Liability Insurance; Errors and Omissions Insurance 7 3.6. Builder' s Risk Insurance 8 3.7. Bonding 9 3.8. Endorsements 9 3.9. Waiver of Subrogation 9 3.10. Conditions 10 3.11. Insurance Premiums and Deductibles 11 3.12. Contractors' Equipment Insurance 11 ARTICLE IV THE CONSTRUCTION 12 4.1. Construction 12 4.2. Amendments; Modifications 12 4.3. Payment of Construction Costs 12 4.4. Completion Date 13 4.5. Final Plans and Specifications 13 ARTICLE V PAYMENT OF FUNDS 14 5.1. Release of Construction Allowance 14 5.2. Applications for Advances 14 5.3. Payment of Vendors 15

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Page 5.4. Procedures for Applications for Payment 15 5.5. Construction Dispute Resolution 15 ARTICLE VI CONSTRUCTION PERIOD EVENTS OF DEFAULT 16 6.1. Construction Period Events of Default 16 6.2. Actions on Termination 17 ARTICLE VII CONSTRUCTION FORCE MAJEURE EVENTS 17 7.1. Construction Force Majeure Events 17 ARTICLE VIII MISCELLANEOUS 18 8.1. Notices 18 8.2. Successors and Assigns 18 8.3. GOVERNING LAW 18 8.4. Remedies of Construction Agent 18 8.5. Amendments and Waivers 18 8.6. Counterparts 18 8.7. Severability 19 8.8. Headings and Table of Contents 19 8.9. Approvals By Landlord 19 8.10. Termination of Agreement 19 8.11. Additional Definitions 19

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CONSTRUCTION AGENCY AGREEMENT THIS CONSTRUCTION AGENCY AGREEMENT (this " Agreement" ), dated as of May 14, 2008 (the " Effective Date" ), between The North Carolina Global TransPark Authority, a body politic and corporate of the State of North Carolina (the " Landlord" ) and Spirit AeroSystems, Inc., a Delaware corporation (the " Construction Agent" ). PRELIMINARY STATEMENT A. Landlord and Construction Agent are parties to that certain Lease Agreement dated as of May 14, 2008 (as amended, modified, extended, supplemented, restated and/or replaced from time to time, the " Lease" ), pursuant to which Construction Agent, as tenant (in such capacity, the " Tenant" ) has agreed to lease that certain Land and Improvements (collectively, the " Leased Premises" ) located at the Global TransPark, in Lenoir County, North Carolina. B. In connection with the Lease and subject to the terms and conditions hereof, (i) Landlord desires to appoint Construction Agent as its sole and exclusive agent in connection with the construction of the Improvements and (ii) Construction Agent desires to accept such appointment in accordance with the terms and conditions hereof. NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows: ARTICLE I
DEFINITIONS; RULES OF USAGE 1.1. Definitions. For purposes of this Agreement, capitalized terms used in this Agreement and not otherwise defined herein shall have the meanings assigned to them in the Lease. Unless otherwise indicated, references in this Agreement to articles, sections, paragraphs, clauses, appendices, schedules and exhibits are to the same contained in this Agreement. 1.2. Interpretation. The rules of usage set forth in Section 35 of the Lease shall apply to this Agreement. ARTICLE II
APPOINTMENT OF THE CONSTRUCTION AGENT 2.1. Appointment. Subject to the terms and conditions hereof, Landlord hereby designates and appoints Construction Agent as its exclusive agent, and Construction Agent accepts such appointment, in


connection with the construction of Landlord' s Alterations more particularly described in the preliminary drawings for Project Alpha, an aerospace manufacturing facility, copies of which are attached hereto as Exhibit " A" (collectively, the " Initial Plans and Specifications" ). For purposes hereof, the " Work" means all construction services, work of all trades, all labor materials, equipment and services provided or to be provided by the GC under the Construction Agreement and as is otherwise necessary to complete the improvements described in the Plans and Specifications. 2.2. Construction Contracts and Plans and Specifications. (a) In connection with the prosecution of the Work, Construction Agent, acting as agent for the benefit of Landlord, agrees to retain The Haskell Company (the " GC" ) to prepare the plans and specifications for the Work and to act as the general contractor for the prosecution of the Work. The Work will be performed pursuant to a design-build, guaranteed maximum price agreement (the " Construction Agreement" ) with the GC in form and substance reasonably acceptable to Landlord and Construction Agent. The Construction Agreement will include a covenant that GC will use commercially reasonable efforts to comply with Section 63A-19 of the North Carolina General Statutes concerning goals for participation by minorities, women and the disabled. (b) Upon execution of this Agreement, Construction Agent shall cause the GC to prepare (i) detailed schematic architectural drawings and specifications for the Work (together with the Initial Plans and Specifications, the " Schematic Plans and Specifications" ), (ii) a detailed budget based on the Schematic Plans and Specifications (the " Schematic Budget" ) and (iii) an estimate for a guaranteed maximum price (the " Estimated GMP" ). Upon completion of a draft Construction Agreement that Construction Agent and the GC are prepared to execute, the Schematic Plans and Specifications, the Schematic Budget and the Estimated GMP (collectively, " Construction Deliverables" ), Construction Agent shall forward such Construction Deliverables to Landlord for its review and approval. Landlord shall have a right to object to only those matters set forth in the Construction Deliverables which would (i) violate any material term of this Agreement or any of the other Operative Documents, (ii) violate applicable federal, state or county law, (iii) violate the terms and conditions of the agreements between Landlord and Lenoir County, North Carolina that are listed on Exhibit " B" to this Agreement (collectively, the " County Agreements" ), or (iv) violate the terms of the GLF Grant Agreement. The Construction Agent acknowledges that Landlord' s approvals of the Construction Deliverables under Section 2.2(b) above are subject to obtaining the approval of GLF. If Landlord or GLF fail to object within fifteen (15) business days of receipt of the Contract Deliverables, Landlord and GLF shall be deemed to have approved the Construction Deliverables. (c) Anything herein to the contrary notwithstanding, upon Landlord' s and GLF' s approval of the Construction Deliverables, Landlord will authorize Construction Agent in writing to execute, acting as the agent for the benefit of Landlord, (i) the Construction Agreement and (ii) such other construction agreements necessary for the prosecution and completion of the Work (collectively, the " Work Agreements" ), solely as agent for Landlord up to the amount of the Construction Allowance and for its own account for any amount in excess thereof. The

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Work Agreements may provide that Landlord shall be solely responsible for performance by Landlord as " owner" thereunder; provided , however , the GC and all other applicable contractors shall agree that any claim for breach and/or damages under each Work Agreement shall be limited to a liquidated amount not to exceed the Construction Allowance. Construction Agent will agree to be obligated for all Additional Costs. Copies of all Work Agreements shall be provided to Landlord promptly following execution thereof. (d) Within 120 days of approval of the Construction Deliverables and Construction Agent' s execution of the Construction Agreement, Construction Agent, acting as agent for the benefit of Landlord, shall (i) cause the GC to complete and finalize the bidding of the Work, (ii) develop the Schematic Plans and Specifications into design, plans and drawings and construction plans and drawings (the approved plans, drawings and specifications for Landlord' s Alterations being referred to herein as the " Plans and Specifications" ), (iii) develop and refine the Schematic Budget until a final guaranteed maximum price (the " GMP" ) and a final budget (the " Budget" ) is agreed between Construction Agent and the GC and (iv) provide evidence that the insurance required hereunder is being maintained by the GC in the form required hereunder. (e) As long as the Plans and Specifications do not constitute a Material Modification of the Schematic Plans and Specifications, and as long as the final GMP is within ten percent (10%) of the Estimated GMP, then the Construction Agent shall not need to obtain further consents or approvals from the Landlord or the GLF in respect of the Plans and Specifications, the GMP and the Budget; provided , that , Construction Agent shall provide copies of final Plans and Specifications and the final Budget to the Landlord when complete. Otherwise, if the final Plans and Specifications constitute a Material Modification from the approved Schematic Plans and Specifications or if the final GMP is greater or less than the Estimated GMP by more than ten percent (10%), then final Plans and Specifications, final Budget and final GMP shall be subject to the approval of the Landlord (and the GLF), which approval shall not be unreasonably withheld, conditioned or delayed. Thereafter, prior to making any material changes or amendments to the Construction Agreement, the Plans and Specifications or the Budget, Construction Agent shall forward the proposed change or amendment to Landlord for its review and approval. Landlord shall have a right to object to only those changes or amendments to the Construction Agreement, the Plans and Specifications or the Budget which would (i) violate any material term of this Agreement or any of the other Operative Documents, (ii) violate applicable federal, state or county law, (iii) violate the terms and conditions of any of the County Agreements, (iv) violate the terms of the GLF Grant Agreement or (v) result in a Material Modification of the Work as described in the Plans and Specifications. The failure of Landlord to object within ten (10) business days of receipt of the proposed change or amendment shall be deemed acceptance thereof. 2.3. Acceptance and Undertaking. Construction Agent hereby unconditionally accepts the agency appointment and undertakes, for the benefit of Landlord, to cause to be completed the Work in accordance with this Agreement, the Lease and the Work Agreements (collectively, the " Operative Documents" ). To the extent of Escrow Funds available, Landlord agrees to cooperate with all of Construction

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Agent' s reasonable requests for information and to sign any applications reasonably required for the prosecution of the Work. 2.4. Term. This Agreement shall commence on the Effective Date and shall expire on the Completion Date (the " Construction Period" ), except with respect to those obligations which by their terms survive termination or expiration hereunder. 2.5. Scope of Authority. (a) Upon authorizing the Construction Agent to execute and deliver the Construction Agreement as provided in Section 2.2(e) above, Landlord hereby expressly authorizes Construction Agent, or any authorized agent of Construction Agent, and Construction Agent unconditionally agrees for the benefit of Landlord, subject to Section 2.5(b) , to take all action necessary or desirable for the performance and satisfaction of any and all of Landlord' s obligations under any Work Agreement and to fulfill all of the obligations of Construction Agent including: (i) all design and supervisory functions relating to the Work; (ii) negotiating, executing, performing and enforcing all contracts and arrangements to develop, install, construct and test the Work; (iii) obtaining all necessary permits, licenses, consents, approvals, entitlements and other authorizations from all Governmental Authorities in connection with the development, acquisition, installation, construction and testing of the Work; and (iv) maintaining all books and records with respect to the Leased Premises, the Work and the construction, operation and management thereof. (b) No such Work Agreement executed by Construction Agent, as agent for Landlord hereunder, will increase the obligations of Landlord beyond the obligations of Landlord as are expressly set forth in Section 4(a) of the Lease. All Work Agreements shall comply with the provisions of this Agreement. (c) Subject to the terms and conditions of the Operative Documents and this Agreement, Construction Agent shall have sole management, responsibility and control over the installation, construction and testing means, methods, sequences and procedures with respect to the Work.

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2.6. Delegation of Duties. Construction Agent may execute any of its duties under this Agreement by or through agents, contractors, employees or attorneys-in-fact; provided, however, that no such delegation shall limit or reduce in any way Construction Agent' s duties and obligations under this Agreement. 2.7. Covenants of Construction Agent. Subject to Landlord' s deposit of the Construction Allowance with the Escrow Agent (as hereinafter defined) and approval of the payment of the Advances (as hereinafter defined) but only to the extent of the Escrow Funds (as hereinafter defined) available, Construction Agent hereby covenants and agrees that it will: (a) following the Effective Date, cause the Work to be diligently prosecuted in a good and workmanlike manner, in accordance with the Operative Documents and otherwise in accordance with Section 4.1 hereof; (b) use commercially reasonable efforts to cause the Completion Date (as hereinafter defined) to occur on or before the Construction Deadline (as hereinafter defined); (c) use commercially reasonable efforts to cause the completion of the Work to occur on or before the Outside Completion Date, free and clear (by removal or bonding) of Liens or claims for materials supplied or labor or services performed in connection with the development, acquisition, installation, construction or testing thereof; (d) notify Landlord in writing not more than ten (10) business days after Construction Agent obtains knowledge of, or its receipt of oral or written notification of, the occurrence of any event which, in the reasonable judgment of Construction Agent is reasonably likely to (i) prevent completion of the Work prior to the Outside Completion Date, (ii) cause the costs for the Work to exceed the Construction Allowance or (iii) any abandonment of the Work by the GC; (e) include in the Budget all deductible amounts, less any deductibles that are paid directly by the GC, if any, regarding insurance policies related to the Work in place from time to time pursuant to the Work Agreements (including, without limitation, all insurance required to be maintained pursuant to Article III of this Agreement); (f) cause all outstanding punch list items with respect to Work to be completed by the earlier of the Outside Completion Date or the date any such items are required to be complete by any applicable Legal Requirements; (g) take all commercially reasonable and lawful measures in its role as Construction Agent necessary to defend against any Taking regarding the Leased Premises prior to the Completion Date;

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(h) subject to receipt of a portion of the Escrow Funds in reimbursement thereof, prior to and as a condition of commencing and continuing the Work, as agent for Landlord, to the fullest extent commercially available, procure insurance for the Leased Premises during the Construction Period (i) in accordance with the provisions of Article III hereof and (ii) as Landlord shall otherwise reasonably request from time to time, for such other insurable risks which Landlord determines are not otherwise sufficiently covered. 2.8. Appointment of Construction Consultant Landlord shall appoint a construction consultant reasonably acceptable to Construction Agent and the GLF (the " Construction Consultant" ) to consult with Landlord with respect to the construction, development and equipping of the Leased Premises, to perform inspections of the Work to determine the percentage of completion of construction in accordance with the Plans and Specifications, to review the Plans and Specifications to determine if there has been any Material Modification of the Work as described in the Plans and Specifications, to review any proposed amendments or modifications to the Plans and Specifications to determine if such amendments or modifications would result in a Material Modification of the Work as described in the Plans and Specifications and to review each Application for Payment. At Landlord' s request, Construction Agent shall promptly deliver to Construction Consultant copies of all documents, instruments, notices, Applications for Payment and other communications to be delivered to Landlord under this Agreement and/or the Work Agreements. All fees and expenses of the Construction Consultant in performing such services shall be provided for in the Budget based on information provided by Landlord. ARTICLE III
INSURANCE 3.1. General Contractor' s Insurance To the fullest extent commercially available, Construction Agent shall cause the GC to maintain and to cause Subcontractors to maintain regarding the Leased Premises in full force and effect at all times during the Construction Period, insurance policies with (i) responsible insurance companies authorized to do business in the State of North Carolina (if so required by law or regulation) and that are in compliance with the insurance laws of the State of North Carolina, with an A.M. Best' s Key Rating Guide rating of A or better and a financial size category of X or higher, unless otherwise approved by Construction Agent and Landlord or (ii) other companies acceptable to Construction Agent and Landlord, in all cases with regard to subsection (i) or (ii) above with limits and coverage provisions sufficient to satisfy the requirements set forth in Section 3.2 through 3.12 below. With the exception of deductible amounts covered and paid by the GC pursuant to the Construction Agreement, all loss payments due under any deductible shall be included by Construction Agent in the Budget and made from the Escrow Funds. Any liability insurance policy shall name the Construction Agent and Landlord as an " Additional Insured" and any property policy shall name the Construction Agent and Landlord as a " Loss Payee" as their interests may appear.

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3.2. General Liability Insurance Throughout the period when work is performed and until final acceptance by Construction Agent and Landlord, GC shall carry and maintain General Liability insurance with available limits of not less than Two Million Dollars ($2,000,000) per occurrence for bodily injury, including death, and property damage combined for Claims against Construction Agent, each contractor and each subcontractor. GC shall ensure that all Subcontractors carry and maintain General Liability insurance with available limits of not less than One Million Dollars ($1,000,000) per occurrence for bodily injury, including death, and property damage combined for Claims against Construction Agent and Landlord, each contractor and each subcontractor. Such insurance shall be in an occurrence form, with insurers reasonably acceptable to the Construction Agent and Landlord, and contain coverage for all premises and operations (which coverage shall remain in effect for a period of at least five (5) years following the Completion Date), broad form property damage, blanket contractual liability and products and completed operations with limits of not less than One Million Dollars ($1,000,000) per occurrence. Such insurance shall also provide coverage for personal injury insurance and independent contractors with a $1,000,000 minimum limit per occurrence for combined bodily injury and property damage provided that policy aggregates, if any, shall apply separately to claims occurring with respect to the Improvements and shall cover any loss sustained due to the accidental interruption or failure of supplies of electricity, gas, sewers, water or telecommunication up to the terminal point of the utility supplier with the Leased Premises. 3.3. Automobile Liability Insurance Automobile liability insurance for any liability arising out of claims for bodily injury and property damage covering all owned (if any), leased (if any) and hired vehicles used in the performance of GC' s obligations under the Construction Agreement with a $1,000,000 minimum limit per accident for combined bodily injury and property damage and containing appropriate no-fault insurance provisions wherever applicable. 3.4. Workers Compensation Providing statutory coverage required by the workers compensation laws of the state in which the Work is located and including " employers liability" with limits of: $1,000,000 " bodily injury each accident" , $1,000,000 " bodily injury by disease" , each employee; $1,000,000 " bodily injury by disease" policy limit. Such policies shall include " stop gap" and " voluntary coverage" . 3.5. Umbrella or Excess Liability Insurance; Errors and Omissions Insurance (a) Umbrella or excess liability insurance on an occurrence basis covering claims in excess of the underlying insurance described above, with a $5,000,000 minimum limit per occurrence. Such insurance shall contain a provision that it will not be more restrictive than the primary insurance, provided that aggregate limits of liability, if any, shall apply separately to claims occurring with respect to the Improvements.

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(b) Construction Agent shall cause the GC to procure, maintain and pay for errors and omissions insurance with limits of no less than Two Million Dollars ($2,000,000) per occurrence. 3.6. Builder' s Risk Insurance During the Construction Period with respect to the Leased Premises, property damage insurance in the amount of not less than 100% of the guaranteed maximum price set forth in the Construction Agreement on an " all risk" basis insuring Construction Agent and Landlord, as their interests may appear, including coverage for the perils of earth movement (including but not limited to earthquake, landslide, subsidence and volcanic eruption), wind, flood, terrorist acts, if commercially available for similar operations in the Southeast region of the United States, at commercially reasonable cost, and boiler and machinery accidents. (a) Generally . The builder' s risk policy shall provide coverage for (i) the buildings, all fixtures, materials, supplies, and machinery of every kind to be used in, or incidental to, the Work if the acquisition of any such item was funded with one or more Advances, (ii) the Improvements, (iii) property of others in the care, custody or control of GC or of a contractor to the extent GC is under obligation to insure for physical loss or damage, (iv) all preliminary works and temporary works, and (v) electronic equipment and media. (b) Additional Coverages . The builder' s risk policy shall insure (i) inland transit with sub-limits sufficient to insure the largest single shipment to or from the Leased Premises from anywhere within the United States, Canada or other anticipated point of shipment, (ii) attorney' s fees, architect' s fees and other consulting costs, and permit fees directly incurred in order to repair or replace damaged insured property in an aggregate amount up to Two Million Dollars ($2,000,000), (iii) expediting expenses, (iv) off-site storage within one hundred (100) feet of the Leased Premises with sub-limits sufficient to insure the full replacement value of any property or equipment not stored on the Leased Premises, (v) the removal of debris, and (vi) demolition and increased costs of const ...