EFTA01137769.pdf

PLAN D LLCIC-TON41-hT-D. c/u Duren IC In tyke Moen I: IndyIce PI I rS7S Ininnoo Avenue 4" Fl New York. New York 1002N To: Picton II Ltd. Wye( Clarendon House Church Street Hamilton HM QX. Bermuda Attention: Alireza ITTIHADIEHI Email: 4 Facsimile: +-}-} Dated: January 29, 2015 H Dear Sir: Boeing Business Jet aircraft msn 29273 registration VP-BBJ Letter of Offer — Sale We refer to our discussions in relation to the above Aircraft. PLAN D, LLC, on behalf of itself and its affiliates and/or nominee (the "Buyer'), hereby offers to purchase the above aircraft, as more particularly defined in the Terms below, (the "Aircraft') from PICTON II LTD. (the "Seller") for the Purchase Price, as defined in the Terms below, of US$236,000,000 and otherwise on the terms of this letter of offer as set out below ("Offer"). This Offer remains open for acceptance by you on behalf of the Seller until 1800 hours London time on February 2, 2015 (the "Expiry Time") when, without its extension by us, it will expire, and is subject to: (A) a Visual Inspection of the Aircraft by the Buyer, as further provided below, and the Aircraft being found on such inspection to be satisfactory to the Buyer, in the Buyer's absolute discretion; and (B) the entering into of a definitive Aircraft Sale and Purchase Agreement in respect of the sale of the Aircraft by the Seller and its purchase by the Buyer in form and substance satisfactory to the Seller and the Buyer (the "Sale Agreement") by February 23, 2015 (the "Documentation Deadline"). The purchase of the Aircraft by the Buyer from the Seller and the sale of the Aircraft by the Seller to the Buyer are referred to in this Offer as the "Transaction". ACCEPTANCE AND INITIAL DEPOSIT If you find this Offer satisfactory, please evidence your acceptance of it on behalf of the Seller by signing and returning to the undersigned a duplicate of this letter in original, facsimile or pdf signed form by the Expiry Time. Within two (2) business days ahem( the Seller's acceptance of this Offer, the Buyer agrees to deposit with Tammi Bear at AIC Title Service. Lit 6350 West Reno. Oklahoma City. OK 731274annired the United States of America (the "Escrow Agent'), the sum of US$1,000,000 (the "Initial Deposit') as a good faith indication of its intent to proceed with its purchase of the Aircraft, such Initial Deposit to be held by the Escrow Agent to the order of the Buyer. The Initial Deposit shall be paid to the Escrow 1 EFTA01137769 Agent's Escrow Account details of which are set out in attachment 2 to this Offer (the "Escrow Account"). If this Offer is accepted and the Initial Deposit is received by the Escrow Agent within the time specified above: 1 the Seller shall withdraw the Aircraft from the market as being for sale and shall deal exclusively with the Buyer and its representatives in relation to the sale of the Aircraft; the Seller and the Buyer shall proceed to the Visual Inspection of the Aircraft and to negotiate in good faith with a view to concluding a Sale Agreement on or before the Documentation Deadline, it being agreed that the Sale Agreement will include the terms and conditions indicated in this Offer. If, following the Seller's acceptance of this Offer, the Initial Deposit is not made by the Buyer as required above, such acceptance shall be deemed not to have been made and this Offer shall accordingly be deemed to have expired without having been accepted by the Seller and neither party shall have any further obligation to or right against the other in respect of or arising out of this Offer. VISUAL INSPECTION AND FURTHER DEPOSIT As a condition precedent to the Offer, the Seller has agreed that the Buyer may conduct a visual ground inspection of the Aircraft ("Visual Inspection') to determine whether the Aircraft is found by the Buyer to be satisfactory to the Buyer, in the Buyer's absolute discretion. Accordingly, the Seller shall position the Aircraft at Geneva Airport, Geneva, Switzerland (the "Visual Inspection Location") where the Aircraft may be inspected by the Buyer during week of February 9, 2015 (or as otherwise agreed between the Seller and the Buyer) at a time to be arranged between the Seller and the Buyer. The Visual Inspection shall be completed by the Buyer within I= (attire dayl after it commences and the Buyer shall indicate formally to the Seller in writing (by fax or email) within 48 hours of its completion of the Visual Inspection whether it wishes to proceed (an "Affirmation") or does not wish to proceed (a "Rejection") with its purchase of the Aircraft pursuant to this Offer. If the Buyer issues, or is deemed below to have issued, a Rejection, the Initial Deposit will be promptly refunded in full to the Buyer, without interest, and neither party shall have any further obligation to or right against the other in respect of or arising out of this Offer. Within two (2) business days after the Buyer's issuance .U.pait-the—reme—b et—of an Affirmation, (I) the Buyer shall place a further deposit in the amount of US$14500,000 with the Escrow Agent into st-the Escrow Account (the "Further Deposit" and, together with the Initial Deposit, the "Transaction Deposit') and (2) As and when provided for ..a.. tn.., in this Offer and subject to the exceptions provided for herein and in the Sale Agreement the Transaction Deposit will become non-refundable to the Buyer and will be held to the credit of the Purchase Price should the sale of the Aircraft to the Buyer proceed to Delivery pursuant to the Sale Agreement. If the Seller does not receive a Rejection or an Affirmation from the Buyer within this 48 hour period, or if the Further Deposit is not made by the Buyer as required above, the Buyer shall be deemed to have indicated that it does not wish to proceed with its purchase of the Aircraft and to have issued a Rejection. SALE AGREEMENT If for any reason the Sale Agreement is not entered into by the Seller and the Buyer by the Documentation Deadline, as the same hereafter may be extended from time to time by mutual agreement of the Buyer and the Seller, the Transaction Deposit, to the extent already placed by the Buyer with the Escrow Agent, will be repaid in full by the Escrow Agent to the Buyer absolutely and neither the Seller nor 2 EFTA01137770 the Buyer shall have any further obligation to or right against the other in respect of or arising out of this Offer. Upon the entering into by the Seller and the Buyer of the Sale Agreement, the Transaction Deposit will be held upon the terms of the Sale Agreement and will be non-refundable as provided thereunder save in the case of (1) Buyer reierting the Aim-rift after the Pre-purchase Inspection (as hereinafter defined) of the same or the Aircraft proving not to be in the Delivery Condition at the time delivery is respired plotter the Sxle Agreement (2) the Aircraft sufferings material .t-total-loss or damage prior to its delivery to the Buyer or (3) the Seller failings to deliver the Aircraft to the Buyer in accordance with the terms of the Sale Agreement or otherwise defaulting,in its ohlivations under the Sale Agreement. In any of such cases, the Transaction Deposit shall be refunded to the Buyer without interest. TERMS The further terms of this Offer are: The Aircraft One pre-owned Boeing Business Jet aircraft manufacturer's serial number 29273 line no. YG 006 and current registration and nationality lark VP-BBJ, with the specification detailed in attachment I to this Offer (the "Specification"), together with its systems, appliances, accessories, components, parts, furnishings and equipment (including all loose, ground and safety equipment other than personalised items) belonging to, installed in or attached or relating to such aircraft and all records manuals, logs, log books wiring diagrams, schematics, x-rays. burn certifications, drawings. ead-technical data and other documentation relating to any of the use, maintenance, flight operation and repair of such Aircraft or any of its systems. avionics, controls equipment, instruments, accessories, parts and spares, whether in written or electronic formthe—senie ("Records"). The "Aircraft" shall include and be delivered with all Records. Tide The Seller shall transfer to the Buyer n_ the tettiefer, by way of the issuance e-to the Buyer of a full warranty bill of sale, the-full legal, equitable and beneficial title and good and marketable; tide, to the Aircraft te-the-Berer-at delivery free of all liens claims and encumbrances. Purchase Price US$2364$00,000. Payment terms The Buyer shall place a deposit, in the amount of the Transaction Deposit of US1/2.000,000 with the Escrow Agent by transfer to the Escrow Account at the following times and in the following amounts: within two (?)_business days aefter the Seller's acceptance of the Offer, US$1,000,000 (the "Initial Deposit"); and 2. within two (2) business clays after He—the Buyer's issuancee of an Affirmation, a further US$11400,000 (the "Further Deposit"); together, the "Transaction Deposit". Prom entry into of the Sale Agreement, the Transaction Deposit shall be non- refundable save in the case of (A) the Ruyer reiecting the Aircraft after the Pre- purchase Inspection of the same or the Aircraft proving not to be in accordance with the Delivery Condition when required to he delivered to the seeetre6nee-with-the-prertinenterbelow, (B) the Aircraft suffering a 'material totel loss or damage prior to Delivery or (C) the Seller failing to deliver the Aircraft to the Buyer in accordance with the terms of the Sale Agreement or otherwise dekultinprin its ohlipptions under the Sale Agreement In any of such cases, the 3 EFTA01137771  Transaction Deposit will be promptly refunded in full to the Buyer. The Purchase Price will be payable to the Seller at Delivery in freely available, same day funds and the Transaction Deposit will be applied towards the Purchase Price at Delivery. No withholdings or deductions shall be made by the Buyer from the Purchase Price. All sales transfer. stamp. excise or similar taxes or charges arising in relation to the sale of the Aircraft, other than on the income or gains of the Seller, shall be for the account of the Buyer ("Sales Taxes"). The Seller shall cooperate with the Buyer and locate the Aircraft for its delivery to the Buyer in such place as shall be required by the Buyer so as to avoid any Ssales Taxes texc being applicable to the sale of the Aircraft to the Buyer pursuant to the Sale Agreement. The Aircraft and its The Aircraft shall be delivered by the Seller to the Buyer in the following Delivery Condition condition (the "Delivery Condition'): the Aircraft shall have completed a CI check in October 2014 and shall be current on the manufacturers' recommended maintenance program with no deferments or extensions and with all items on the Maintenance Due List complied with and completed, and all systems avionics, controls equipment. and instruments, including without limitation those pertaining to airworthiness, flight operations, or otherwise, shall be in good condition and operating fully within the manufacturers' published specifications; 2 all applicable mandatory Airworthiness Directives (ADs) issued by the United States Federal Aviation Administration (- FAA")AfIr or the Department of Civil Aviation of Bermuda ("BDCA") shall have been complied with and all mandatory Boeing Service Bulletins (SB's) requiring termination or completion at Delivery shall have been terminated or completed. all at the cost of the Seller, prior to Delivery; 3 the Aircraft shall have no material damage; 4 the Aircraft shall be free of material materiel-corrosion; 45 the Aircraft shall have no history of any accidents' 5G the Records shall be up-to-date, continuous and complete, in full compliance with the requirements of the BDCA from the date of manufacture up to and including the date of Delivery; 67 the Aircraft shall have a current Certificates of Airworthiness and Release to Service, or equivalent issued by the BDCA; anti 8 the Aircraft shall otherwise conform in all material respects with the Specification; and 7-9 the Aircraft shall be in a condition that the DAR determines will enable the Aircraft to be registered with the FAA and to be issued a U.S. Certificate of Airworthiness immediately following Delivery, and the Records shall be in substance and a format, and shall contain all information and data, that the DAR determines fully complies with the requirements of the FAA, including, without limitation, full compliance that is required in order for the Aircraft to be registered with the FAA and to be issued a U.S. Certificate of Airworthiness immediately following Delivery. 4 EFTA01137772 Manufacturer's Ac no additional cost to Buyer. aAll Boeing and engine manufacturer warranties Warranties shall be transferred or made available to the Buyer fmm Delivery. Pre-purchase Separate and in addition to the Visual Insperrionj-The Buyer's obligation to Inspection purchase the Aircraft shall be contingent upon a visual and technical pre- purchase inspections of the Aircraft being undertaken on the Buyer's behalf at a Boeing approved maintenance facility in Europe mire...agreed between the Seller and the Buyer (the "Inspection Facility') in accordance with the standard Boeing approved pre-purchase inspection procedures for pre-owned aircraft (the 'Pre-purchase Inspection') to determine whether the Aircraft is in the Delivery Condition. The Pre-purchase Inspection shall include, if required by the Buyer, engine ground power runs, engine and APU horoscope inspections and a test flight of the Aircraft. The test flight shall be conducted in accordance with Boeing's or the Inspection Facility's written standards for pre-owned aircraft and the Aircraft shall be under the command and control of an Inspection Facility pilot at all times during the test flight evaluation. The Buyer may have up to three (3) representatives onboard the Aircraft during the test flight. The Buyer, at its cost, shall arrange for the DAR to attend and participate in the Pre-purchase Inspection to the extent that the DAR requires such participation, including, without limitation, for the purpose of determinin g whether the Aircraft is in a condition that meets the relevant Delivery Condition requirements. All costs of the technical pre-purchase inspection and test flight, including the cost of the DAR, shall be for the account of the Buyer subject to reimbursement in the events and at the times hereinafter provided - The Seller shall be responsible for positioning the Aircraft to the Inspection Location at the Seller's cost. The Seller shall make the Aircraft available for and the Buyer shall commence the Pre-Purchase Inspection within fourteen free-(1.4) days of entry into of the definitive Sale Agreement, unless otherwise agreed between the Seller and the Buyer. Following the completion of the Pre-purchase Inspection at its option the Buyer may either technically accept the Aircraft, subject to the rectification b s Seller at Seller's cost and expense of any differences or divergences from the Delivery Condition ("Discrepancies") &H.—, or reject the Aircraft if Discrepancies are found in the Aircraft as a result of such inspection and rim Duvet reasonably determines that (1) th._ niter/Aril-les will not be able to be trim.— L rectified by the Seller within sixty (60) days afterttf the completion of the Pre-purchase Inspection or (2) the cost to the Seller of such rectification would be is-more than US$500,000. The Buyer shall not be entitled to reject the Aircraft for any other reason. The Buyer shall technically accept or reject the Aircraft within 48 hours of completion of the Pre-purchase Inspection. If the Buyer so rejects the Aircraft, lac tirtin. frentritre, the Transaction Deposit shall be returned promptly to the Buyer by the Escrow Agent in full and neither the Seller nor the Buyer shall have any further obligation to or right against the other in relation to the Aircraft and/or its sale and/or purchase pursuant to or arising out of the Sale Agreement. If the Buyer accepts the Aircraft subject to the rectification of any Discrepancies found during the Pre-purchase Inspection, such Discrepancies shall be rectified by the Seller at its sole cost promptly and in any event within a reek-period of sixty (60) days following Buyer's acceptance of the Aircraft subject to such rectification unless such period is extended by a writing signed nh,r0,:3, age—d by the Buyed.,-...«.. failing which the Transaction Deposit shall be returned promptly to the Buyer by the Escrow Agent in full and neither the Seller nor the Buyer shall have any further 5 EFTA01137773  obligation to or right against the other in relation to the Aircraft and/or its sale and/or purchase pursuant to or arising out of the Sale Agreements provided, however, that if the cost to Seller to rectify the Discrepancies is not more than one million dollars (51.000.000). and Seller nevertheless fails to rectify such discrepancies within such period. then in addition to the refund of the Transaction Deposit. Seller promptly shall reimburse Buyer for all of Buyer's reasonably incurred and properly documented inspection and flight test costs and expenses, and the travel and lodging expenses and the fees of Buyer's pilots, consultants and other professionals incurred or billed in connection with any of this Offer, the Sale Agreement and the performance of the terms hereof and thereof- provided, further, however, that that the Seller shall not be required to reimburse any such costs, expenses or fees in excess of US$75,000 in the aggregateffhe Buyer shall advise the Seller in writing within 48 hours following the completion of the Pre-purchase Inspection whether Buyer accepts or rejects the Aircraft in accordance with the terms of this paragraph. Delivery time and The Aircraft shall be delivered by the Seller to the Buyer promptly following the location completion of the Pre-purchase Inspection and the rectification of all Discrepancies by the Seller and, in any even; within five (5) business days after the Seller's rectification of all Discrepancies found as a result of the Pre- purchase Inspection but in no event later than sixty (6(1) days after Buyer advises Seller in writing of Buyer's acceptance of the Aircraft subject to the rectification of such Discrepancies, unless otherwise agreed to in writine yis.rit-thr ant the Buyer. The Aircraft shall be delivered to the Buyer at a location within Europe to be named by the Buyer, acting reasonably, so as to avoid or mitigate the imposition of Ssales T—taxes in relation to the Transaction for which the Buyer is responsible hereunder (the "Delivery Location"). The Seller shall be responsible for positioning the Aircraft to the Delivery Location at the Seller's cost. At Delivery, the Seller shall procure the deregistration of the Aircraft at the BDCA and request the BDCA to transmit the deregistration telex to the FAA. 44te-Beyer-sltall-reintherie-the-Seller-fer th._ of-pinitionieg-theafteraft-st Post-Delivery Provided that it may be accomplished at no additional cost to the Buyer ehe lagurs_cen et:terming Buyer shall intletattifr-the-Sellet-itt-te6tion-teralt-epetatieg-eriarratal-4ratiliti-i etrits itteurtetHiy-erin-yektient-terthe-Airerrcratiatrtintraftereeliverrantl-shall-add the Seller sittl-ituelr-ratit-tnriternittl-Fitrftteieriref-the-lkirerrftair-.42-411-ftearaneel by-the-Seiler-tertite-Betret—as w_Additional Insureds under the Buyer's Third Party Legal Liability insurances in respect of the Aircraft for a period of two (2) years following Delivery or until the first major check on the Aircraft after Delivery if that occurs earlier. Assignment This Offer is not, and the Sale Agreement between the Seller and the Buyer shall not be, assignable by either party without the consent of the other. Expenses The Seller and the Buyer shall be responsible for their own costs and expenses in relation to the Transaction unless such costs or expenses are expressly stated to be paid for by one of the parties to this IL. Offer. The Seller and the Buyer shall confirm that to the extent that they have used or retained the services of a broker or agent in connection with the Transaction, it shall be severally responsible for the fees of the brokers or agents so used or retained by it and shall indemnify and keep indemnified the other against the same and any claims that might be brought by any person for the same claiming 6 EFTA01137774  through it. Standard terms The Sale Agreement shall contain such other normal terms as are customary in transactions of this nature as required by either party, including as to the right of a party to terminate the Transaction upon Delivery not having occurred as provided above due to the failure of the other to perform its obligations under the Sale Agreement. If the Sale Agreement is so terminated due to Seller failing to deliver the Aircraft to the Buyer in accordance with the terms of the Sale Agreement, or otherwise defaulting in its obligations under the Sale Agreement the Transaction Deposit shall be returned promptly to the Buyer by the Escrow Agent in full and neither the Seller nor the Buyer shall have any further obligation to or right against the other in relation to the Aircraft and/or its sale and/or purchase pursuant to or arising out of the Sale Agreement; provided, however, that in addition to the refund of the Transaction Deposit. in the event of a termination due to Seller failing to deliver the Aircraft to the Buyer in accordance with the terms of the Sale Agreement, or otherwise defaulting in its obligations under the Sale Agreement Seller promptly shall reimburse Buyer for all of Buyer's reasonably incurred and properly documented inspection and flight test costs and expenses. and the travel and lodging expenses and the fees of its pilots, consultants and other professionals incurred or billed in connection with any of this Offer, the Sale Agreement and the performance of the terms hereof and thereof provided, further, however, that that the Seller shall not be required to reimburse any such costs, expenses or fees in excess of US$75,000 in the aggregate. If the Sale Agreement is so terminated due to Buyer's failure to perform or otherwise defaulting in its obligations under the Sale Agreement (other than as a result of the Seller's failure to deliver the Aircraft to the Buyer in accordance with the terms of the Sale Agreement, or otherwise defaulting in its obligations under the Sale Aiireemenfla_the Transaction Deposit shall be forfeited and paid to the Seller by the Escrow Agent. The definitive Sale Agreement shall be prepared by counsel to the Seller and shall supersede this Offer. Governing law This Offer and the definitive Sale Agreement shall be subject to New York law. Confidentiality Both the Seller and the Buyer shall keep the terms of this Offer and the definitive Sale Agreement confidential and shall not disclose their existence or terms other than to their professional advisors or as may be required by law. Counterparts This Offer may be signed in counterparts by the Seller and the Buyer, such counterparts together constituting but one and the same instrument. Such counterparts may be exchanged via facsimile or other electronic transmission. We look forward to receiving your confirmation of your acceptance of this Offer by way of the return to us of the copy of this Offer by the above Expiry Time duly signed on behalf of the Seller. Yours truly For and on behalf ofPLAN D, LLC By Darren K. Indyke, Authorized Representative EFTA01137775 [ON COPY' To: PLAN D, LLC c/o Darren IC Indyke, Darren K. Indyke, PLLC, 575 Lexington Avenue, 4th FL, New York, New York 10022, USA Attention: Darren K. Indyke Email: Facsimile: Dear Sirs, Boeing Business Jet aircraft msn 29273 registration VP-BBJ Letter of Offer — Sale PICTON II Ltd.filleyerf, the "Seller", hereby confirms the Seller's acceptance, in accordance with its terms, of the Offer by PLAN D, LLC, the "Buyer" for the purchase of the Aircraft by the Buyer from the Seller, of which Offer, the above is a true copy. Signed, for and on behalf of PICTON H Ltd. {Buyer} Signature: Name: Alireza ITI1HADIEH Title: Exclusive Representative Date: EFTA01137776  Attachment 1 to the Letter of Offer between PLAN D, LLC and PICTON II Ltd regarding one pre-owned Boeing Business Jet aircraft msn 29273 The Specification Boeing Business Jet aircraft Aircraft nationality and registration mark: VP-BBJ Non: Times and Cycles below are as at 12/1/2015 Airframe Serial Number: 29273 Manufacturer: The Boeing Company Model: B737-72U Boeing Business Jet Type Aircraft: Fixed Wing Multi-Engine MFR Year: 1998 Total Time: 3769:03 Hours Total Cycles: 931 Weight Data Maximum Taxi Weight: 77,791 kg Maximum Takeoff Weight: 77364 kg Maximum Landing Weight: 60,781 kg Maximum Zero Fuel Weight: 57,152 kg Basic Operating Weight: 45,588 kg Maximum Fuel Capacity: 32,558 kg Engines Serial Numbers: 874437 (#1) and 874438 (#2) Manufacturer. CFM International Model: CF1456-7B26/B1 Posn. Serial No. Total Hours Cycles Left 874437 3769:03 895 Right 874438 3769:03 895 Auxiliary Power Unit Serial Number: Manufacturer. Honeywell Type: 13I-9B TTSN 3516 Hours/3010 Cycles Avionics; Comm: Collins VHF-900B -- P/N 822-1047-003 Nav: Collins VOR-900 -- Receiver PN 822-0297-001 FMS: FMC PN 171497-05-01 HF: Collins HFS-900 — P/N 822-0330-001 ADF: Collins ADF-900 — R/T PN 822-0329-001 DME: Collins DivIE-900 -- Interrogator PN 066-50013-0101 ATC Transponder: Collins TPR-901 P/N 822-1338-003 RADAR: Colllins WXR-700 R/T PN TCAS: Colllins TTR-920 — Computer change 7 PN 622-8971-022 EGPWS: Collins GLU-920 Receiver PN 822-1152-002 9 EFTA01137777  CVR: P/N 2100-1020-00 FDR: P/N 2100-4043-00 Airshow Network- Fax / Satcom Auxiliary Fuel Tanks Pat's 9 Tanks, 5 aft, 4 fwd Interior Maximum 18 Passenger Interior. Forward crew rest section at entrance. Forward lounge featuring 4 individual club seats and 2 inward facing material divans. Aft lounge featuring 2 (4 seat) dining tables and inward facing material divan and credenza containing entertainment system. Aft section is a master bedroom with double bed and en-suite bathroom / lavatory with shower. Aft Galley area. Forward cloak room and forward airstairs 10 EFTA01137778  Attachment 2 to the Letter of Offer between PLAN D, LLC and P1CTON 11 Ltd. regarding one pre-owned Boeing Business Jet aircraft msn 29273 The Escrow Account details EScrow Account Details —jTHESE NEED TO BE CHANGED TO DETAILS FOR A DIFFERENT ESCROW AGENT' Bank: International Bank of Commerce Branch: ABA: Swift Code: Credit: Account Number: Phone advice: Dninranre• AA 1/10172A/D-112112 I EFTA01137779