EFTA01206590.pdf

PICTON II LTD. Clarendon House, Church Street, Hamilton HM QX, Bermuda To: Plan D, LLC c/o DARREN IC INDYKE, PLLC 575 Lexington Avenue, 4th Floor New York, New York 10022 Attention: Darren K. Indyke, Esq. Email: Facsimile: Dated: November 2014 Dear Sirs Boeing Business Jet aircraft msn 29273 registration VP-BBJ Letter of Offer — Sale We refer to our discussions in relation to the above Aircraft. PICTON II Ltd, on behalf of itself and its affiliates and/or nominee (the "Seller"), hereby offers to sell the above aircraft, as more particularly defined in the Terms below, (the "Aircraft') to Plan D, LLC (the "Buyer") for the Purchase Price, as defined in the Terms below, of US$25,250,000 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 Buyer until 1800 hours London time on 27 November 2014 (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 11 December 2014 (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 Buyer 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 after the Buyer's acceptance of this Offer, the Buyer agrees to deposit with with Tamnti Bear at AIC Title Service, LLC, 6350 West Reno, Oklahoma City, OK 73127 , 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 Agent's Escrow Account details of which are set out in attachment 2 to this Offer (the "Escrow Account"). EFTA01206590  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; and 2 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 Buyer'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 Buyer 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') and that 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 I December 2014 (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 two (2) days 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 of an Affirmation, (1) the Buyer shall place a further deposit in the amount of US$1,000,000 with the Escrow Agent into the Escrow Account (the "Further Deposit" and, together with the Initial Deposit, the 'Transaction Deposit') and (2) as and when provided for 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 the Sale Agreement is not entered into by the Seller and the Buyer by the Documentation Deadline for any reason, 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 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 thereunder save in the case of (1) Buyer rejecting the Aircraft after the Pre-purchase Inspection (as hereinafter defined) if the Buyer entitled to reject the same in accordance with the terms of the Sale Agreement, or the Seller failing to rectify Discrepancies within the time prescribed under the Sale Agreement, (2) the Aircraft suffering EFTA01206591 material loss or damage prior to its delivery to the Buyer or (3) the 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. 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 mark 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, 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 form ("Records"). The "Aircraft" shall include and be delivered with all Records. Title The Seller shall transfer to the Buyer, by way of the issuance to the Buyer of a full warranty bill of sale, full legal, equitable and beneficial title, and good and marketable title, to the Aircraft at delivery free of all liens, claims and encumbrances. Purchase Price US$25,250,000. Payment terms The Buyer shall place a deposit, in the amount of the Transaction Deposit of US$2,000,000 with the Escrow Agent by transfer to the Escrow Account at the following times and in the following amounts: within two (2) business days after the Buyer's acceptance of the Offer, US$1,000,000 (the "Initial Deposit"); and 2. within two (2) business days after the Buyer's issuance of an Affirmation, a further US$1,000,000 (the "Further Deposit'); together, the "Transaction Deposit". From entry into of the Sale Agreement, the Transaction Deposit shall be non- refundable save in the case of (A) the Buyer rejecting the Aircraft after the Pre- purchase Inspection if the Buyer is entitled to reject the same in accordance with the terms of the Sale Agreement, or the Seller failing to rectify Discrepancies within the time prescribed under the Sale Agreement, (B) the Aircraft suffering a material 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 defaulting in its obligations under the Sale Agreement. In any of such cases, the 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 EFTA01206592  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 Sales Taxes 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 pertaining to flight operations or airworthiness, 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') 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 corrosion; 5 the Aircraft shall have no history of any accidents; 6 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; 7 the Aircraft shall have a current Certificates of Airworthiness and Release to Service, or equivalent issued by the BDCA; 8 the Aircraft shall otherwise conform in all material respects with the Specification; and 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. Manufacturer's At no additional cost to Buyer, all subsisting Boeing and engine manufacturer Warranties warranties shall be transferred or made available to the Buyer from Delivery. Pre-purchase Separate and in addition to the Visual Inspection, the Buyer's obligation to Inspection purchase the Aircraft shall be contingent upon a visual and technical pre- 4 EFTA01206593 purchase inspections of the Aircraft being undertaken on the Buyer's behalf at a Boeing approved maintenance facility within Europe to be 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 bomscope 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 shall, at its cost, arrange for the DAR to attend and participate in the Pre-purchase Inspection to the extent the DAR requires in order to determine 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 Facility at the Seller's cost. The Seller shall make the Aircraft available for and the Buyer shall commence the Pre-Purchase Inspection within fourteen (14) 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 by the Seller, at Seller's cost and expense, of any differences or divergences from the Delivery Condition ("Discrepancies"), or reject the Aircraft if Discrepancies are found in the Aircraft as a result of such inspection and the Buyer reasonably determines that (1) such Discrepancies will not be able to be rectified by the Seller within sixty (60) days after the completion of the Pre- purchase Inspection or (2) the cost to the Seller of such rectification would be 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, 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 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 by the Buyer, 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 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 if the cost to Seller to rectify the Discrepancies is not more than one million dollars (US$1,000,000), and Seller nevertheless fails to rectify such Discrepancies within such period, then in addition to the refund of the Transaction Deposit, Seller shall promptly reimburse Buyer for all of Buyer's reasonably incurred and properly documented costs and expenses in conducting the Pre-purchase Inspection EFTA01206594  (including test flight), 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 that the Seller shall not be required to reimburse any such costs, expenses or fees in excess of US$75,000 in aggregate. The Buyer shall advise the Seller in writing within 48 hours following the completion of the Pre-purchase Inspection if 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 event, 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 (60) 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 writing by 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 Sales 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. Post-Delivery Provided that it may be accomplished at no additional cost to the Buyer, the Insurance Buyer shall add the Seller as an Additional Insured 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 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 he brought by any person for the same claiming 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 clue to the failure of the other to perform its obligations under the Sale Agreement. If the Sale Agreement is so terminated due to the 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; 6 EFTA01206595  provided, however, that if the Sale Agreement is so terminated due to the 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, then in addition to the refund of the Transaction Deposit, Seller shall promptly reimburse Buyer for all of Buyer's reasonably incurred and properly documented costs and expenses in conducting the Pre-purchase Inspection (including test flight), 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 that the Seller shall not be required to reimburse any such costs, expenses or fees in excess of US$75,000 in 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 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 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 advisers 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 Buyer. Yours truly For and on behalf of PICTON II Ltd By Alireza ITTIHADIEH, Exclusive Representative 7 EFTA01206596 [ON COPY' To: Picton II Ltd. Clarendon House, Church Street, Hamilton HM QX, Bermuda Attention: Alireza ITTIHADIEH Email: Facsimile: Dear Sirs, Boeing Business Jet aircraft msn 29273 registration VP-BBJ Letter of Offer — Sale Plan 1), LLC, the "Buyer", hereby confirms the Buyer's acceptance, in accordance with its terms, of the Offer by Picton II Ltd., the "Seller" for the sale of the Aircraft by the Seller to the Buyer, of which Offer, the above is a true copy. Signed, for and on behalf of Plan D, LLC Signature: Name: Title: Date: 8 EFTA01206597  Attachment 1 to the Letter of Offer between PICTON II Ltd and PLAN D, LLC regarding one pre-owned Boeing Business Jet aircraft msn 29273 The Specification Boeing Business Jet aircraft Aircraft nationality and registration mark: VP-BBJ NOTE: Times and Cycles below are as at 13 November 2014 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: 3756:07 Hours Total Cydes: 924 Weight Data Maximum Taxi Weight: 77,791 kg Maximum Takeoff Weight: 77.564 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: CFM56-7B26/BI Posn. Serial No. Total Hours Cycles Left 874437 3756:07 888 Right 874438 3756:07 888 Auxiliary Power Unit Serial Number: Manufacturer: Honeywell Type: 13I-9B TTSN 3468 Hours/2955 Cycles Avionics; Comm: Collins VHF-900B -- P/N 822-1047-003 Nat': Collins VOR-900 — Receiver P/N 822-0297-001 FMS: FMC P/N 171497-05-01 HF: Collins HFS-900 -- P/N 822-0330-001 ADF: Collins ADF-900 R/T PN 822-0329-001 DME: Collins DME-900 -- Interrogator P/N 066-50013-0101 ATC Transponder. Collins TPR-90I P/N 822-1338-003 RADAR: Collins WXR-700 R/T P/N TCAS: Collins TTR-920 — Computer change 7 P/N 622-8971-022 EGPWS: Collins GLU-920 Receiver P/N 822-1152-002 9 EFTA01206598  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 EFTA01206599  Attachment 2 to the Letter of Offer between PICTON II Ltd. and PLAN D, LLC regarding one pre-owned Boeing Business Jet aircraft msn 29273 The Escrow Account details Escrow Account Details [TO BE INSERTED] Bank: Branch: ABA: Swift Code: Credit: Account Number: Phone advice: Reference: BBJ 29273 VP-BBJ EFTA01206600