EFTA01119402.pdf

VEDDERPRICE VEDDER PRICE LLP PICTON II LTD. as Seller and PLAN D, LLC as Buyer AIRCRAFT SALE AND PURCHASE AGREEMENT One Boeing Business Jet B737-72U Aircraft Manufacturer's Serial Number 292731 YG006 Current Registration VP-BBJ LONDON/#21515.6 EFTA01119402  CONTENTS Section Page I. Definitions and Interpretation 1 2. Agreement to Sell and to Purchase and Conditions Precedent 5 3. Purchase Price and Payment 7 4. Pre-Purchase Inspection 8 5. Delivery 10 6. Condition of Aircraft and Disclaimer 12 7. Taxes and Payments 13 8. Further Provisions 14 Schedule 1 Specification Schedule 2 Delivery Condition Requirements Schedule 3 Insurance Requirements Schedule 4 Certificate of Technical Acceptance Schedule 5 Certificate of Acceptance of Delivery Schedule 6 Warranty Bill of Sale Aircraft Sale and Purchase Agreement BIM MSN 292731YO006 CONTENTS LONDON/#21515.6 EFTA01119403 THIS AGREEMENT (the "Agreement") is made as of April 2015 BETWEEN: PICTON II LTD., a company incorporated and existing under the laws of Bermuda, whose registered office is at Clarendon House, Church Street, Hamilton HM QX, Bermuda (the "Seller"); and (2) PLAN D, LLC, a limited liability company formed and existing under the laws of the United States Virgin Islands, whose address is 6100 Red Hook Quarter, B3, St. Thomas, USV1 00802, United States Virgin Islands (the "Buyer"). WHEREAS: The Seller wishes to sell and the Buyer wishes to purchase the Aircraft upon and subject to the terms of this Agreement. IT IS AGREED as follows: 1. DEFINITIONS AND INTERPRETATION 1.1 Definitions In this Agreement the following terms have the following meanings except where the context otherwise requires or it is otherwise provided: "Aircraft" means (a) one Boeing Business Jet B737-72U aircraft manufacturer's serial number 29273 line number YG006 current registration and nationality mark VP-BBJ and its two CFM International CFM56-7B26/B1 engines serial numbers 874437 (LH) and 874438 (RH), (b) the auxiliary power unit, landing gear, avionics, systems, appliances, accessories, components, parts, furnishings, and safety and other equipment belonging to, installed in or attached or relating thereto, including fly-away kit, and (c) all Records relating thereto, as such Aircraft is further described in the Specification; "Aviation Authority" means all and any of the Governmental Entities which under the laws of the relevant jurisdiction shall from time to time have (a) control or supervision of civil aviation in that jurisdiction and/or (b) jurisdiction over the registration, airworthiness, safety or operation of, or other matters relating to, the Aircraft in that jurisdiction; "BDCA" means the Department of Civil Aviation of Bermuda; "Bill of Sale" means a Warranty Bill of Sale in respect of the Aircraft substantially in the form of Schedule 6; "Business Day" means a day, other than a Saturday or Sunday, on which banks are open for the transaction of business of the nature required by this Agreement in New York, United States of America; "Casualty Occurrence" means, in relation to the Aircraft or any engine, an event which gives rise to the payment by insurers under the hull insurances maintained by the Seller in respect of the Aircraft or that engine on the basis of a total loss of the Aircraft or that engine by whatever name called; "Certificate of Acceptance of Delivery" means a certificate of acceptance of delivery in respect of the Aircraft substantially in the form of Schedule 5; Aircraft Sale and Purchase Agreement BR, MSN 29273/ YG006 Page LONDON/#21515.6 EFTA01119404  "Certificate of Technical Acceptance" means a certificate of technical acceptance in respect of the Aircraft substantially in the form of Schedule 4; "Delivery" means the passing of title to the Aircraft from the Seller to the Buyer pursuant to and in accordance with this Agreement; "Delivery Date" means the date on which Delivery occurs; "Delivery Location" means Indianapolis, Indiana or such other location as may be agreed between the Seller and the Buyer; "Delivery Condition Requirements" means the requirements set forth in Schedule 2; "Deposit" means the total deposit towards the Purchase Price for the Aircraft, consisting of the Initial Deposit and the Second Deposit, which total deposit is non-refundable to the Buyer save as expressly provided in this Agreement; "Deregistration Telex" means a telex or facsimile communication between Aviation Authority of the State of Registry to the Aviation Authority of the Intended State of Registry by which the former advises the latter of the deregistration of the Aircraft from the Aircraft Register maintained by the Aviation Authority of the State of Registry; "Discrepancy" has the meaning given to it in section 4.1(d); "Escrow Agent" means AIC Title Service, LLC of 6350 West Reno, Oklahoma City, OK 73127, United States of America; "Escrow Agent's Account" means the escrow account of the Escrow Agent at the Escrow Agent's bank, created and maintained solely and exclusively for the purpose of the transactions contemplated herein, the account number of which and other information pertinent thereto is as follows: [BUYER TO PROVIDE ACCOUNT DETAILS]; "Escrow Agent's Fee" means an amount equal to [BUYER TO CONFIRM AMOUNT TO BE INSERTED] payable to the Escrow Agent for the performance of its services in accordance with the terms of this Agreement; "FAA" means the Federal Aviation Administration of the United States of America; "Governmental Entity" means (a) any national government (de jure or defacto) of any state or territory or political subdivision of either thereof, (b) any governmental authority, board, commission, department, division, organ, instrument, court, tribunal or agency of any state, territory or political subdivision, however constituted and (c) any association, organisation or institution of which any of the parties to this Agreement is a member or to whose jurisdiction any of them is subject or in whose activities any of them is a participant; "Initial Deposit" means an initial deposit in the amount of two million dollars (USD2,000,000.00) paid by the Buyer to the Escrow Agent's Account on March 27, 2015; "Insolvency Event" means, with respect to any person, (a) that person admits that it is unable or is unable to pay its debts as they fall due or is deemed for the purposes of any law to be or is declared or adjudged to be insolvent, (b) that person makes any arrangement with or compromise with any creditor, (c) that person petitions or applies to any court for the appointment of, or has or suffers to be appointed, any receiver, administrative receiver, administrator, liquidator, trustee or like or similar officer of it, its undertaking or a substantial part of its assets, (d) that person convenes a meeting to consider or makes a resolution for or Aircraft Sale and Purchase Agreement BB3 MSN 29273/ YG006 Page 2 LONDON/#21515.6 EFTA01119405  commences a voluntary case or other proceeding seeking liquidation, reorganisation or other relief under any bankruptcy, compromise, arrangement, readjustment of debt, suspension of payments, insolvency, administration, liquidation or similar law, (e) that Person is subject to a petition for or an involuntary case or other proceeding is commenced against that Person seeking liquidation, reorganization or other relief under any such law and is not discharged within thirty (30) days or (f) a distress or other execution is levied or sued out upon or against any material part of the property or assets of that person and is not discharged within thirty (30) days; "Inspection Facility" means a Boeing approved maintenance facility in Western Europe which, unless otherwise agreed between the Seller and the Buyer, shall be Lufthansa Technic's facility in Hamburg, Germany or another Lufthansa facility in Western Europe; "Insurances" has the meaning given to it in section 6.3; "Insurance Requirements" means the requirements set forth in Schedule 3; "Intended State of Registry" means the United States of America (FAA); "Major Check" means any completed full "C" check or higher check required pursuant to the Manufacturer's recommended inspection and maintenance programmes; "Manufacturer" means (a) in relation to the airframe, The Boeing Company and (b) in relation to the engines, CFM International; "Material Corrosion" means any corrosion to the Aircraft which (a) exceeds the acceptable limits, tolerances and/or ranges of condition stated in the Manufacturer's maintenance and/or technical or operations manual and (b) cannot be repaired, rectified or terminated on a non- recurring basis such that the Aircraft can be returned to service under FAA requirements without a requirement of repetitive or recurring inspections which deviate from the Manufacturer's normal maintenance procedures or require modifications to the normal life limitations, overhaul and/or inspection intervals for the Aircraft; "Material Damage" means any damage to the Aircraft which (a) in accordance with the Manufacturer's maintenance manual required or would require a repair and a release to service for that repair were the Aircraft to have an FAA certificate of airworthiness at the time that the repair is made or (b) exceeds or exceeded the acceptable limits, tolerances and/or ranges of condition stated in the Manufacturers' maintenance and/or technical or operations manual and required or would require under FAA requirements a "remove and replace" repair to the affected area or part of the Aircraft; "Pre-Purchase Inspection" has the meaning given to it in section 4.1(a); "Purchase Price" means an amount equal to twenty million five hundred thousand dollars (USD20,500,000.00); "Records" means all manuals, logbooks, drawings, plans, data, tags and technical records relating to the Aircraft including with respect to service bulletin status and airworthiness directive status and modifications and repairs and including task cards, traceability records and status of life limited parts; "Scheduled Delivery Date" means the date which is five (5) Business Days after receipt by the Seller of the signed Certificate of Technical Acceptance issued by the Buyer in accordance with section 4.1(e) or the date which is five (5) Business Days after release of the Aircraft to service by the Inspection Facility after rectification of any Discrepancies in Aircraft Sale and Purchase Agreement BB' MSN 29273 / YG006 Page 3 LONDON/#21515.6 EFTA01119406  accordance with section 4.1(f), whichever is the later, or such other date as may be agreed between the Seller and the Buyer; "Second Deposit" means a second deposit in the amount of two million dollars (USD2,000,000.00) to be paid by the Buyer to the Escrow Agent's Account within two (2) Business Days after the execution of this Agreement by the parties hereto in accordance with section 3.1(b); "Security Interest" means any encumbrance, right or interest of any person, whether by way of ownership, possession, enjoyment, security, contract, at law or otherwise, whatsoever, however and whenever created or arising, including any mortgage, charge, pledge, hypothecation, assignment, statutory right in rem, title retention, lease, lien, attachment, levy, claim, right of detention or seizure or right of set-off, not created or caused to be created by or through the Buyer; "Seller dem itees" has the meaning given to it in Schedule 3; "Specification" means the specification of the Aircraft set forth in Schedule 1; "State of Registry" means Bermuda; "Termination Notice" has the meaning given to it in section 4.1(e); and "USD- and "dollars" means the lawful currency of the United States of America from time to time. 1.2 Interpretation In this Agreement: (a) section headings are for ease of reference only; (b) words importing the singular number shall include the plural and words importing the plural number shall include the singular; (c) "including" means including without limitation to the generality of any description preceding such term and the rule of ejusdem generis shall not be applicable to limit a general statement followed by or referable to an enumeration of specific matters to matters similar to those specifically mentioned; (d) "person" includes any individual, company, corporation, partnership, firm, joint venture, trust, unincorporated organization, association or Government Entity, in each case, whether having distinct legal personality or not and references to any person shall include any successor in title to such person or any permitted assignee of such person and any company with which such person may merge or amalgamate or into which it shall become consolidated or incorporated, whether by operation of law or legal process, filing, petition, application or otherwise; (e) "tax" includes any and all forms of taxation, levy, impost, duty, contribution, withholding, or charge of whatever nature and by whatever name called, whenever created or imposed, by whoever imposed, and any amount deemed to be or treated as an amount of any of the same and any amounts in lieu thereof or in the alternative thereto, together with any additions to tax, penalties, fines, charges or interest thereon and "taxes" and "taxation" shall be construed accordingly; and Aircraft Sale and Purchase Agreement BB' MSN 29273 / YG006 Page 4 LONDON/#21515.6 EFTA01119407  (f) "terminate this Agreement" and similar phrases means to terminate the obligation of the Seller to sell the Aircraft to the Buyer and the obligation of the Buyer to purchase the Aircraft from the Seller without prejudice to any other rights or obligations of the parties under this Agreement. 2. AGREEMENT TO SELL AND TO PURCHASE AND CONDITIONS PRECEDENT 2.1 Agreement to sell and to purchase Subject to the terms of this Agreement, the Seller agrees to sell to the Buyer and the Buyer agrees to purchase from the Seller all the Seller's legal, equitable and beneficial right, title and interest in and to the Aircraft. 2.2 Seller's conditions precedent The obligation of the Seller to sell the Aircraft to the Buyer shall be subject to fulfillment of the following conditions precedent: (a) on or before the date of this Agreement, the Seller shall have received evidence satisfactory to the Seller that the Buyer has duly authorized the execution and delivery of this Agreement and all matters contemplated by the Agreement; (b) within two (2) Business Days after the date of this Agreement, the Escrow Agent shall have received the Second Deposit in accordance with section 3.1(b) (the Escrow Agent already having received the Initial Deposit from the Buyer prior to the date of this Agreement); (c) the Seller shall have received the signed Certificate of Technical Acceptance (with or without Discrepancies noted thereon) issued by the Buyer in accordance with section 4.1(e) — provided always that the Buyer's delivery to the Seller of a Termination Notice in accordance with the provisions of section 4.1(e) shall not be deemed a failure of this condition precedent and shall not of itself entitle the Seller to retain the Deposit under section 2.6; (d) subject to the limitations set forth in Section 6.3, on or before the Scheduled Delivery Date, the Seller shall have received evidence satisfactory to the Seller of the Insurances; (e) on or before the Scheduled Delivery Date, the Escrow Agent shall have received the balance of the Purchase Price (being the Purchase Price less the Deposit already received) together with an amount equal to fifty percent. (50%) of the Escrow Agent's Fee; and (0 on or before the Scheduled Delivery Date, the Escrow Agent shall have received the signed Certificate of Acceptance of Delivery. 2.3 Waiver by Seller The conditions precedent set forth in section 2.2 have been inserted for the benefit of the Seller and may be waived or deferred by the Seller in writing, in whole or in part and with or without conditions. Aircraft Sale and Purchase Agreement BB' MSN 29273 / YG006 Page 5 LONDON/#21515.6 EFTA01119408 2.4 Buyer's conditions precedent The obligation of the Buyer to purchase the Aircraft from the Seller shall be subject to the fulfillment of the following conditions precedent: (a) on or before the date of this Agreement, the Buyer shall have received evidence satisfactory to the Buyer that the Seller has duly authorized the execution and delivery of this Agreement and all matters contemplated by the Agreement; (b) the Aircraft shall have been made available at the Inspection Facility for the Pre- Purchase Inspection in accordance with section 4.1(b); (c) unless otherwise agreed between the Seller and the Buyer, the Seller shall have rectified any and all Discrepancies in accordance with section 4.1(0; (d) on or before the Scheduled Delivery Date, the Seller shall have positioned the Aircraft at the Delivery Location and tendered the Aircraft for delivery at the Delivery Location in substantially the same condition as at the completion of the Pre- Purchase Inspection (ordinary wear and tear excepted, and taking into account any additional hours, cycles and/or time incurred in connection with the performance of this Agreement), but after rectification of any Discrepancies in accordance with section 4.1(0; (e) on or before the Scheduled Delivery Date, the Buyer shall have received satisfactory search results from the Escrow Agent regarding a title/lien search on the International Registry, the FAA Registry and the Aviation Authority registry in the State of Registration immediately prior to Delivery evidencing that there are no Security Interests registered against the Aircraft — provided that the Buyer's failure to request or obtain such search results in a timely manner shall not be deemed a failure of this condition precedent if there are no Security Interests registered against the Aircraft immediately prior to Delivery and such failure shall not of itself entitle the Buyer to a refund of the Deposit or reimbursement of expenses under section 2.7; and (0 on or before the Scheduled Delivery Date, the Escrow Agent shall have received the executed Bill of Sale. 2.5 Waiver by Buyer The conditions precedent set forth in section 2.4 have been inserted for the benefit of the Buyer and may be waived or deferred by the Buyer in writing, in whole or in part and with or without conditions. 2.6 Non-fulfilment by Buyer If through no fault of Seller: (a) any of the conditions precedent referred to in section 2.2 remain outstanding at midnight on the due date and are not waived or deferred by the Seller in writing; (b) the Buyer is otherwise in default of its obligations hereunder and any applicable grace period allowed to the Buyer to comply with such obligations has expired; or (c) an Insolvency Event shall have occurred in relation to the Buyer, Aircraft Sale and Purchase Agreement BB' MSN 29273 / YO006 Page 6 LONDON/#21515.6 EFTA01119409  then, unless this Agreement has already been terminated in accordance with its terms, the Seller may terminate this Agreement by written notice to the Buyer and the Escrow Agent. Following any such termination by the Seller, the Seller shall be entitled to retain the Deposit for its own account and the Escrow Agent shall pay the Deposit to the Seller and return the balance of the Purchase Price, if already received by the Escrow Agent, to the Buyer, whereupon all further obligations and liabilities of the Seller and the Buyer pursuant to this Agreement shall cease. 2.7 Non-fulfilment by Seller If through no fault of Buyer: (a) any of the conditions precedent referred to in section 2.4 remain outstanding at midnight on the due date and are not waived or deferred by the Buyer in writing; (b) the Seller is otherwise in default of its obligations hereunder and any applicable grace period allowed to the Seller to comply with such obligations has expired; or (c) an Insolvency Event shall have occurred in relation to the Seller, then, unless this Agreement has already been terminated in accordance with its terms, the Buyer may terminate this Agreement by written notice to the Seller and the Escrow Agent. Following any such termination by the Buyer, the Deposit shall become refundable and the Escrow Agent shall return the Deposit and the balance of the Purchase Price, if already received by the Escrow Agent, to the Buyer, whereupon all further obligations and liabilities of the Seller and the Buyer pursuant to this Agreement shall cease; provided, however, that if the Buyer terminates this Agreement pursuant to this section 2.7 for any of the reasons mentioned in sub-paragraphs (a), (b) or (c) of this section 2.7, then in addition to the refund of the Deposit and the balance of the Purchase Price, if already received by the Escrow Agent, the Seller shall promptly reimburse the Buyer for all of the Buyer's reasonably incurred and properly documented costs and expenses in conducting the Pre-Purchase Inspection (including the check flight), and the travel and lodging expenses and the fees of the Buyer's pilots, consultants and other professionals incurred or billed in connection with any of this Agreement and the performance of the terms hereof, but provided further that the Seller shall not be required to reimburse more than seventy five thousand dollars (USD75,000.00) in the aggregate of any such costs, expenses and fees. 3. PURCHASE PRICE AND PAYMENT 3.1 Purchase Price The Purchase Price shall be payable as follows: (a) the Initial Deposit was paid by the Buyer to the Escrow Agent's Account on March 27, 2015; (b) the Second Deposit shall be paid by the Buyer to the Escrow Agent's Account within two (2) Business Days after the date of execution of this Agreement by all parties hereto; and (c) the balance of the Purchase Price (being the Purchase Price less the Deposit already paid) shall be paid by the Buyer to the Escrow Agent's Account on or before the Scheduled Delivery Date. Aircraft Sale and Purchase Agreement BB' MSN 29273 / YG006 Page 7 LONDON/#21515.6 EFTA01119410 3.2 Escrow Agent The Escrow Agent shall hold the Purchase Price in escrow, to be paid to the Seller on Delivery in accordance with section 5 or otherwise as provided in this Agreement. 3.3 Escrow Agent's Fee The Buyer and the Seller shall each bear fifty percent. (50%) of the Escrow Agent's Fee, payable as follows: (a) an amount equal to fifty percent. (50%) of the Escrow Agent's Fee shall be paid by the Buyer to the Escrow Agent's Account on or before the Scheduled Delivery Date and the Escrow Agent shall be entitled to retain such amount upon Delivery; and (b) the Seller's account with the Escrow Agent shall be reduced by an amount equal to fifty percent (50%) of the Escrow Agent's Fee and the Escrow Agent shall be entitled to retain such amount upon Delivery. 4. PRE-PURCHASE INSPECTION 4.1 Pre-Purchase Inspection (a) The Buyer shall be entitled to conduct a pre-purchase inspection of the Aircraft in accordance with this section 4 (the "Pre-Purchase Inspection", which term shall include the check flight under section 4.2) for the purpose of demonstrating that the Aircraft is or will on the Scheduled Delivery Date be in accordance with the Delivery Condition Requirements. (b) The Seller shall, at the Seller's cost, arrange for the necessary availability of the Aircraft for the Pre-Purchase Inspection and deliver the Aircraft to the Inspection Facility and the Buyer shall commence the Pre-Purchase Inspection no later than April 28, 2015 or such later date as may be agreed between the Seller and the Buyer. (c) The Pre-Purchase Inspection shall be undertaken on behalf of the Buyer, at the Buyer's cost, by the Inspection Facility. The duration of the Pre-Purchase Inspection shall be limited to fourteen (14) days from and including the date on which it commences, or such longer period of time as may be required by the Inspection Facility or the DAR. The scope of the Pre-Purchase Inspection shall include, to the extent required by the Buyer, a 2A inspection, engine ground power runs, engine and auxiliary power unit horoscope inspections, soap and oil analysis of engines and auxiliary power unit, break wear limits check, accessible cabin and fuselage doors and structures inspection if no included as part of the 2A inspection, close visual inspection of wheel wells and landing gear assembly, walk-around inspection, Records Review, the check flight referred to in section 4.2, and any other or further inspections or Records reviews as may be reasonably requested prior or during the course of the Pre-Purchase Inspection by the DAR in order to make the determination that the Aircraft is in a condition that meets the relevant Delivery Condition Requirements, and shall be approved by the Buyer's and the Seller's technical representatives acting reasonably and in good faith. The Buyer's representatives shall be entitled to participate in and assist with the Pre-Purchase Inspection, subject to the presence of and overall supervision by the Seller's technical representatives. The Buyer shall, at its cost, arrange for the DAR to attend and participate in the Pre- Purchase Inspection to the extent the DAR so requires in order to determine whether the Aircraft is in a condition that meets the relevant Delivery Condition Requirements. Aircraft Sale and Purchase Agreement BB' MSN 29273 / YG006 Page 8 LONDON/#21515.6 EFTA01119411  (d) Any difference, discrepancy or defect in the Aircraft from the Delivery Condition Requirements is referred to in this Agreement as a "Discrepancy". In the event of a dispute between Seller and Buyer as to whether a Discrepancy is present in the Aircraft, such dispute shall be resolved at the determination of the senior quality controller of the Inspection Facility acting as an expert and not an arbitrator and whose fees shall be borne by the party whose opinion as to the presence of the Discrepancy is not substantially upheld by such expert or as such expert shall otherwise determine; provided, however, that the DAR shall make the final determination regarding any dispute as to the existence and/or necessary correction of a Discrepancy from the Delivery Condition Requirements set forth in paragraph (h) of Schedule 2 to this Agreement. (e) No later than forty eight (48) hours after completion of the Pre-Purchase Inspection, the Buyer shall issue to the Seller a Certificate of Technical Acceptance (with or without Discrepancies noted thereon) or, if any one or more Discrepancies are identified and either (1) the Seller cannot or is not willing to rectify such Discrepancies within the period required in accordance with section 4.1(f) or (2) the cost to the Seller of such rectification in the aggregate is more than five hundred thousand dollars (USD500,000.00) and, in either case, Buyer is not willing to proceed with the purchase of the Aircraft, a termination notice (a "Termination Notice"). For the avoidance of doubt, the Buyer may only issue a Termination Notice if any one or more Discrepancies are identified and either (1) the Seller cannot or is not willing to rectify such Discrepancies within the period required in accordance with section 4.1(f) or (2) the cost to the Seller of such rectification in the aggregate is more than five hundred thousand dollars (USD500,000.00). (f) If the Buyer has issued the Certificate of Technical Acceptance with Discrepancies noted thereon in accordance with section 4.1(e) then, unless otherwise agreed between the Seller and the Buyer, the Seller shall, at Seller's cost, and provided that the Seller is willing to rectify such Discrepancies, arrange for a Boeing approved maintenance facility to remedy such Discrepancies as soon as reasonably practicable but in any event within sixty (60) days after receipt by the Seller of the signed Certificate of Technical Acceptance (for the avoidance of doubt, such remedy must be completed within such sixty (60)-day period) or such later date as may be agreed between the Seller and the Buyer. (g) If the Buyer has issued a Termination Notice in accordance with section 4.1(e) or if Buyer has issued the Certificate of Technical Acceptance in accordance with section 4.1(e) but the Seller is not willing or fails to rectify any Discrepancies within the period required in accordance with section 4.1(f), the Deposit shall become refundable and the Seller shall instruct the Escrow Agent to return the Deposit and the balance of the Purchase Price, if already received, to the Buyer, whereupon all further obligations of the Seller and the Buyer pursuant to this Agreement shall cease; provided, however, that if the Buyer has issued the Certificate of Technical Acceptance in accordance with section 4.1(e) and the cost to Seller to rectify the Discrepancies in the aggregate is not more than one million dollars (USDI,000,000.00) but the Seller is not willing or fails to rectify such Discrepancies within such period, then in addition to the refund of the Deposit and the balance of the Purchase Price, if already received, the Seller shall promptly reimburse the Buyer for all of the Buyer's reasonably incurred and properly documented costs and expenses in conducting the Pre-Purchase Inspection (including the check flight), and the travel and lodging expenses and the fees of the Buyer's pilots, consultants and other professionals incurred or billed in connection with any of this Agreement and the performance of the terms hereof, but provided further that the Seller shall not be Aircraft Sale and Purchase Agreement BB' MSN 29273 / YG006 Page 9 LONDON/#21515.6 EFTA01119412  required to reimburse more than seventy five thousand dollars (USD75,000.00) in the aggregate of any such costs, expenses and fees. 4.2 Pre-Purchase Inspection Check Flight During the Pre-Purchase Inspection, the Buyer shall be entitled to conduct a check flight. The check flight shall be the Boeing Flight Test D541A015. The check flight shall be performed with a Boeing test flight pilot in the captain's seat and the Seller's pilot in the co-pilot's seat. A Boeing systems engineer, a flight technician from the Inspection Facility and up to three (3) representatives of the Buyer shall be on board during the check flight. When the check flight is completed, it must be signed by the pilots. All procedures to be adopted during such check flight shall be agreed between the Seller and the Buyer prior to the undertaking of such check flight, acting reasonably and in good faith. The Seller and the Buyer shall agree to any procedures requested by the Boeing test flight pilot, the Boeing systems engineer, the flight technician from the Inspection Facility or the DAR. Any Discrepancies found during such check flight shall be rectified in accordance with the procedures set out above for rectification of Discrepancies and, if reasonably required to confirm compliance with the Delivery Condition Requirements, such rectification shall be confirmed by an additional check flight. The check flight (including the cost of the Boeing test flight pilot, the Boeing systems engineer and the flight technician from the Inspection Facility) shall be at Buyer's sole cost, provided that any additional check flight reasonably required to confirm rectification of Discrepancies shall be at Seller's sole cost. 5. DELIVERY 5.1 Delivery (a) On or before the Scheduled Delivery Date: (i) the Buyer shall make application for the registration of the Aircraft in the Intended State of Registry with effect from Delivery; (ii) the Buyer shall deposit the signed Certificate of Acceptance of Delivery with the Escrow Agent; (iii) the Seller shall deposit the executed Bill of Sale with the Escrow Agent; (iv) the Buyer shall pay the balance of the Purchase Price (being the Purchase Price less the Deposit) together with an amount equal to fifty percent (50%) of the Escrow Agent's Fee to the Escrow Agent's Account; and (v) provided that the Buyer has issued the Certificate of Technical Acceptance, confirmed rectification of any Discrepancies has been made to its satisfaction and paid the balance of the Purchase Price to the Escrow Agent's Account in accordance with section 5.1(aXiv), the Seller shall, at the Buyer's cost, deliver the Aircraft to the Delivery Location. (b) On the Scheduled Delivery Date, subject always to sections 5.2 and 5.3, the Seller shall tender the Aircraft for delivery at the Delivery Location in substantially the same condition as at the completion of the Pre-Purchase Inspection (ordinary wear and tear excepted, and taking into account any additional hours, cycles and/or time incurred in connection with the performance of this Agreement), but after rectification of any Discrepancies in accordance with section 4.1(f) and: Aircraft Sale and Purchase Agreement BB1MSN 29273/ YG006 Page 10 LONDON/#21515.6 EFTA01119413  (i) the Buyer shall: (A) instruct the Escrow Agent to release the Purchase Price to the Seller and pay such amount to the Seller; and (B) accept delivery of the Aircraft to its possession and control "AS IS, WHERE IS", subject to the warranty of title and other express representations and warranties of Seller under and in accordance with this Agreement and the Bill of Sale by instructing the Escrow Agent to date and release the Certificate of Acceptance of Delivery to the Seller or its order, (ii) whereupon the Seller shall: (A) effect the transfer of title to the Aircraft to the Buyer by instructing the Escrow Agent to date and release the Bill of Sale to the Buyer or its order; (B) procure the filing of an application for the deregistration of the Aircraft at the relevant Aviation Authorities of the State of Registry and request such Authorities to deregister the Aircraft from the Aircraft Register and transmit the Deregistration Telex to the Aviation Authority of the Intended State of Registry; and (C) give up, or procure the giving up of, physical possession and control of the Aircraft to the Buyer or its order; and (iii) the Escrow Agent shall give effect to such instructions received by it from the Buyer and the Seller. (c) Risk of loss in the Aircraft shall pass from the Seller to the Buyer on Delivery. (d) With effect from Delivery, the Seller hereby transfers and assigns to the Buyer absolutely and with full title guarantee all of the Seller's right, title and interest in and to all assignable and warranties of manufacturers and suppliers, in each case, relating to the Aircraft and that remain at Delivery. 5.2 Force Majeure Each of the Seller and the Buyer shall not be liable to the other for any failure of, or delay in, delivery of the Aircraft, or any other failure to meet any requirement hereunder, for the period that such failure of, or delay in, delivery of the Aircraft, or such other failure to meet any requirement hereunder, is due to "acts of God" or the public enemy, civil war, insurrection or riots, fires, explosions or serious accidents, governmental actions or failures to act, governmental allocations or orders affecting material, equipment or facilities, strikes or labour disputes, inability to obtain materials accessories, equipment or parts from the vendors on terms anticipated or any cause beyond that party's control. Any party seeking to invoke the provisions of this section 5.2 shall promptly notify the other party of the occurrence of any such cause and carry out its obligations under this Agreement as promptly as practicable after such cause is terminated. Aircraft Sale and Purchase Agreement BB' MSN 29273 / YO006 Page I LONDON/#21515.6 EFTA01119414 5.3 Material Damage or Casualty Occurrence prior to Delivery If, prior to Delivery: (a) the Aircraft suffers Material Damage, the Buyer or the Seller shall promptly notify the other and the Escrow Agent upon becoming aware of the same and either party may by notice to the other and the Escrow Agent terminate this Agreement. Following any such termination, the Deposit shall become refundable and the Escrow Agent shall return the Deposit and the balance of the Purchase Price, if already received, to the Buyer, whereupon all further obligations and liabilities of the Seller and the Buyer pursuant to this Agreement shall cease; or (b) the Aircraft suffers a Casualty Occurrence, the Buyer or the Seller shall promptly notify the other and the Escrow Agent upon becoming aware of the same and this Agreement shall terminate without the requirement of further act by either party. Following any such termination, the Deposit shall become refundable and the Escrow Agent shall return the Deposit and the balance of the Purchase Price, if already received, to the Buyer, whereupon all further obligations and liabilities of the Seller and the Buyer pursuant to this Agreement shall cease. 6. CONDITION OF AIRCRAFT AND DISCLAIMER 6.1 GENERAL EXCLUSIONS THE BUYER HEREBY UNCONDITIONALLY ACKNOWLEDGES THAT THE SELLER IS NOT A MANUFACTURER OF AIRCRAFT, INCLUDING THE AIRCRAFT, AND THAT THE BUYER SHALL BE SOLELY RESPONSIBLE FOR ANY DECISION AS TO WHETHER OR NOT TO ENTER INTO THIS AGREEMENT OR ANY OTHER TRANSACTION OR ARRANGEMENT IN RELATION TO THE AIRCRAFT. THE SELLER HAS NOT AND SHALL NOT BE DEEMED TO HAVE MADE ANY REPRESENTATION, WARRANTY OR GUARANTEE (OTHER THAN AS TO TITLE AND/OR AS MAY BE SPECIFICALLY PROVIDED IN THIS AGREEMENT) AS TO THE DESCRIPTION, AIRWORTHINESS, DESIGN, MANUFACTURE, FITNESS, CONDITION, OPERATION, QUALITY, DURABILITY, FITNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE OR USE INTENDED BY THE BUYER OR ANY OTHER PERSON, AS TO THE ABSENCE OF LATENT, INHERENT OR OTHER DEFECTS (WHETHER OR NOT DISCOVERABLE) IN THE AIRCRAFT, AS TO THE COMPLETENESS OR CONDITION OF THE AIRCRAFT OR ITS RECORDS, INCLUDING THE RECORDS, OR AS TO THE ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, COPYRIGHT OR DESIGN OR OTHER PROPRIETARY RIGHTS OR IN RESPECT OF ANY CONSEQUENCES TO THE BUYER OR ANY OTHER PERSON, ITS OR THEIR ASSOCIATES OR NOMINEES THAT MIGHT ARISE OUT OF THE SALE AND/OR PURCHASE OR FAILURE TO MAKE ANY SALE OR PURCHASE OF THE AIRCRAFT UNDER THIS AGREEMENT OR OTHERWISE, OR AS TO ANY OTHER MATTER OR THING WHATSOEVER AND (SAVE AS TO TITLE AND AS AFORESAID) ANY WARRANTIES, REPRESENTATIONS, CONDITIONS OR GUARANTEES IMPLIED WHETHER ARISING IN CONTRACT, TORT OR THE OPERATION OF LAW, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE OR ARISING OUT OF CUSTOMARY TRADE USAGE OR PRIOR COURSE OF DEALING OR WITH RESPECT TO THE FOREGOING IN RESPECT OF THE AIRCRAFT OR ANY PART THEREOF OR OTHERWISE ARE, TO THE FULLEST EXTENT PERMITTED BY LAW, EXCLUDED FROM THIS AGREEMENT AND THE SALE AND/OR PURCHASE OF THE AIRCRAFT TO AND BY THE BUYER, ITS ASSOCIATES OR NOMINEES. SUBJECT TO THE EXPRESS PROVISIONS OF THIS AGREEMENT THE AIRCRAFT IS SOLD AND PURCHASED HEREUNDER "AS IS, WHERE IS". Aircraft Sale and Purchase Agreement BBJ MSN 29273 / Y0006 Page 12 LONDON/N21515.6 EFTA01119415  UNDER NO CIRCUMSTANCES SHALL EITHER PARTY HERETO BE LIABLE TO THE OTHER PARTY HERETO OR TO ANY OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR INCIDENTAL LOSS SUFFERED BY IT OR THEM IN RELATION TO MATTERS, CIRCUMSTANCES OR EVENTS ARISING OUT OF, IN CONNECTION WITH OR IN RELATION TO THE SALE AND/OR PURCHASE OR FAILURE TO MAKE ANY SALE OR PURCHASE OF THE AIRCRAFT UNDER THIS AGREEMENT OR OTHERWISE INCLUDING ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL AND/OR PUNITIVE DAMAGES OR DAMAGES FOR LOSS OF PROFITS OR ANY OTHER LOSSES OR DAMAGES FOR OR ARISING OUT OF ANY LACK OR LOSS OF USE OF THE AIRCRAFT OR ANY PART THEREOF FOR ANY REASON. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITED WARRANTIES AND THE LIMITATION OF LIABILITY OF THE PARTIES CONTAINED IN THIS AGREEMENT HAVE BEEN EXPRESSLY AGREED TO IN CONSIDERATION OF THE PURCHASE PRICE AND THE OTHER PROVISIONS OF THIS AGREEMENT. THE WARRANTIES, REPRESENTATIONS, OBLIGATIONS AND LIABILITIES OF THE PARTIES AND THE RIGHTS AND REMEDIES OF THE PARTIES SET OUT IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, OBLIGATIONS, REPRESENTATIONS AND LIABILITIES. THE ABOVE LIMITATIONS DO NOT AFFECT IN ANY WAY THE SELLER'S OBLIGATIONS, IF ANY, AT LAW FOR THIRD PARTY CLAIMS FOR PROPERTY DAMAGE, PERSONAL INJURY OR WRONGFUL DEATH. 6.2 'Intentionally Omitted' 6.3 Insurances Until the earlier of (1) the date which is two (2) years from the Delivery Date and (2) the date of the first Major Check performed on the Aircraft after the Delivery Date, the Buyer shall, at its cost, maintain insurances for legal liabil