EFTA00787990.pdf

SLY-SWIM-DRAFT 74344SeIler Draft 8.2-17 SUBJECT TO CHANGE CONFIDENTIAL COMPARISON4- AUL.T-RSVISIONS)-vs-SLYSIUM-VSRSIOW &AIRCRAFT PURCHASE AGREEMENT This Aircraft Purchase Agreement ("Agreement") made and entered into this [___) day of August, 2017, by and between Swiflite Aircraft Corporation, a New Jersey corporation (hereinafter referred to as ',Seller) and Elysium Management LLC, a Delaware limited liability company (hereinafter referred to as °Buyer). Buyer and Seller are collectively referred to herein as the "Parties" and each a 'Party". WHEREAS, Seller is the owner of the legal and beneficial title to the Aircraft (as defined below); and WHEREAS, Seller desires to sell the Aircraft to Buyer, and Buyer desires to purchase the Aircraft from Seller, pursuant to the terms and conditions set forth in this Agreement, Now, therefore, in consideration of the mutual promises and covenants herein contained, the parties agree as follows: 1. Description of Aircraft. Buyer agrees to purchase and Seller agrees to sell, on the terms and conditions set forth in this Agreement, the following aircraft together with all avionics, appliances, parts, instruments, accessions, accessories, furnishings, other equipment to the extent installed and hereafter installed thereon prior to the Closing (as defined below), all records including a' but not limited to airframe, engine, and accessory logbooks, tlight-Feeecdsr maintenance manuals, n, wiring diagrams and schematics, weight and balance manuals, flight operation manuals, equipment instructions, computerized maintenance tracking, maintenance manuals and Instructions for ak continued airworthiness within current revision status, airworthiness and similar certificates, documents, and all other records (other than flight records( related to the Aircraft in Seller's possession (collectively, the "Aircraft Documents") and all loose equipment related to the Aircraft more particularly described at Exhibit "A' attached hereto (the "Loose Eauioment")): YEAR, MAKE & MODEL: 2014 Gulfstream Aerospace Corp. GVI (G650) REGISTRATION NUMBER: N650XY AIRCRAFT SERIAL NUMBER: 6071 MAKE & MODEL OF ENGINES: Two (2) Rolls-Royce Deutschland Ltd. & Co KG, Model: BR700-725A1-12 ENGINE SERIAL NUMBERS: Left: 25257; Right: 25256 All of the above will hereinafter be referred to collectively as the 'Aircraft". 2. Purchase Price and Method of Payment. Buyer agrees to pay Seller the total purchase price for the Aircraft of Forty Seven Million U.S. Dollars (USD$47,000,000.00) (the Purchase Price'). Prior to Closing (as defined below), Buyer shall deposit the Purchase Price into escrow with the Escrow Agent (as defined below), as follows: DM US 83562471-1.088835. 0011 EFTA00787990  (a) Buyer has deposited the amount of One Million U.S. Dollars (USD$1,000,000.00) (the "Deposit") in escrow (the "Escrow Account") with Insured Aircraft Title Service, Inc. in Oklahoma City, Oklahoma, as escrow agent (the "Escrow Agent"); and (b) Forty Six Million U.S. Dollars ($46,000,000.00), representing the balance of the Purchase Price (the "Purchase Price Balance") which Buyer shall deposit in the Escrow Account with the Escrow Agent no later than one (1) business days prior to Closing. The Deposit shall be held by the Escrow Agent pursuant to the terms of the escrow agreement attached hereto and made a part hereof as Fxhibit "F " which the Parties shall execute and deliver to the Escrow Agreement simultaneously with the execution of this Agreement (the "Escrow Agreement") and aftor Buye(s Technical Acceptance (as defined below) of tho Aircraft shall be OK. non-refundable, except as otherwise provided herein. At the Closing, the Deposit will be applied towards the Purchase Price. Seller and Buyer shall share escrow costs equally, except as otherwise set forth herein. 3. Closing. (a) Pre-Closing Obligations: On or prior to-the-date-the-laacties-antieipate-will-be the GCC- Closing Date (as defined below): (i) Seller shall deliver to the Escrow Agent to hold in escrow until the Closing: (I) an undated, but otherwise duly executed Warranty Bill of Sale for the Aircraft in the form of Exhibit "B" attached to this Agreement (the "Warranty Bill of Sale"); (2) art undated but otherwise duly executed FM Bill of Sale in the form of Exhibit "C" attached to this Agreement (the "FAA Bill of Sale); (3) any required documents, evidencing the pending or final release of all liens, if any, affecting title to the Aircraft (including with respect to the airframe and any engine); and (4) the fully executed Warranties Assignment (as defined below). (ii) Seller shall pre-position the Aircraft to the Delivery Location (as defined below) prior to the Closing Date. (iii) Buyer shall deposit the Purchase Price Balance with the Escrow Agent; (iv) Each Party shall be registered with and have received approval by the International Registry as a Transacting User Entity, authorized to make filings and has appointed an "administrator" (as such term is defined and used in the International Registry Procedures and International Registry Regulations); (v) The Escrow Agent shall be authorized to act and designated by the Parties as a professional user entity on behalf of each Party; and (vi) Buyer shall deliver to the Escrow Agent an undated but otherwise duly executed [FM Aeronautical Center Form 8050-1 Aircraft Registration Application] (the "Aircraft Registration Application". DM_US 83562471-1.088835. 0011 2 EFTA00787991  4 Conditions Precedent to Buyer's Obligations. Buyer's obligation to purchase and accept delivery of the Aircraft from Seller on the Closing Date shall be subject to the satisfaction of the following conditions precedent: (i) at the lime of Closing, Seller shall have performed or complied in all material respects with all of its covenants and agreements contained in this Agreement to be performed at or before the Closing; (ii) at the time of Closing, the Aircraft shall be in Delivery Condition (as defined below), with all Discrepancies (as defined below) repaired and corrected and the Aircraft shall have been returned to service by the Inspection Facility; (iii) at the time of Closing, all of Seller's representations and warranties set forth in this Agreement shall be true and accurate in all material respects; and (&) prior to Closing. Escrow Agent shall have registered and received approval in O1A accordance with the Cape Town Convention as a professional user entity Caditiaergszleatallar:5—QhligaabligsztioliglalLsintsayal. the Aircraft to Buyer on the Closing Date shall be subject to the following conditions precedent; (t) at the time of Closing. Buyer shall have Performed or complied in all material respects with all of its covenants and agreements contained in_thisAmegmeat_tg.Pwrigrmedat (:)Cc pr before the Closing' ave_place_d_theilosit _Purchase Price Balance(aexoenses OK, reimbursable under this Agreeme . and its one half share of the Escrow Agent's fees into the FSCPAY-Ann ou"c--La •• (ffi) at the time of to ing all of Buye> presentations in this Agreement shall be true and accurate in all material respects: and OIL (iv) prior to Closing, Escrow Agent shall have registered and received approval in accordance with the Cape Town Convention as a professional user entity. (d) (4-Closing Date and Procedures. The closing of the transactions contemplated hereunder (the "Closing") shall take place (i) on the third (3rd) business day after the completion and the correction of any identified Discrepancies and the Aircraft being returned to service by the Inspection Facility (as defined below), or (i) on such other date as mutually agreed by Buyer and Seller (such date of Closing, the "Closing Date"). At the time of the Closing, the Parties shall commence a closing call with the Escrow Agent during which they shall perform the following closing deliveries, all of which shall collectively constitute the Closing: (i) Seller shall deliver the Aircraft to Buyer at the Delivery Location subject to receipt of the Purchase Price; (ii) Buyer shall accept delivery of the Aircraft from Seller at the Delivery Location and shall simultaneously deliver to Seller a duly executed Delivery and Acceptance Receipt in the form attached hereto as Exhibit "D"; DM US 83562471-1.088836. 0011 3 EFTA00787992  (ii) Buyer shall instruct the Escrow Agent, in writing, to pay the Purchase Price (and any reimbursable costs paid by Buyer into the Escrow Account) by wire transfer of immediately available U.S. funds to an account designated by Seller; (iv) Following confirmation from the Escrow Agent that such Purchase Price has been remitted to the Seller as provided in Section 3(c)(iii), the FAA Bill of Sale and any appropriate lien releases in the FM Civil Aviation Registry and the Warranty Bill of Sale shall be irrevocably deemed to be delivered to the Escrow Agent for the purposes of filing and/or delivering on behalf of Buyer upon Seller's receipt of the federal reference number showing that the wire transfer of the Purchase Price has been completed (the "Payment Receipt'); (v) Immediately after receipt of the Payment Receipt. Seller shall, instruct the Escrow Agent to date and file the FM Bill of Sale and any appropriate lien releases in the FM Civil Aviation Registry and to deliver the Warranty Bill of Sale and the Warranties Assignment to Buyer; and (vi) Buyer shall instruct the Escrow Agent to date and file the Aircraft Registration Application in the FAA Civil Aviation Registry. (e) (4)-Delivery Conditions. The Aircraft shall be delivered in the following condition (the "Delivery Condition"): (I) free and clear of all liens and encumbrances; (ii) in an airworthy condition; (ii) with a valid U.S. Certificate of Airworthiness with no exceptions or limitations; (iv) with no Damage History (as defined below) or corrosion beyond manufacturer's allowable limits; (v) current on all calendar and hourly inspections due through the date of delivery required for FAR Part 91 operations under the manufacturer's recommended maintenance program under which the Aircraft is currently being maintained; (vi) with all systems functioning in accordance with the manufacturers' specifications within allowable tolerances and limitations in accordance with the Manufacturer's requirements; (viii) in compliance with all Airworthiness Directives that have been issued with respect to the Aircraft and require compliance on or before the date of delivery; (ix) in compliance with all manufacturer's mandatory Aircraft Service Changes and mandatory Customer Bulletins that have been issued with respect to the Aircraft and require compliance on or before the date of delivery; (x) with all Aircraft Documents and Loose Equipment pertaining to the Aircraft-originally 0t4 delivered-with-the-Aireraft-er-etheAvise-ebtained-by-Seller; (xi) except as specifically provide& t...OOY7- otherwise herein and except for Normal Wear and Tear (as defined below), in the same condition as of the date of this Agreement, taking into account any additional hours, cycles and/or time incurred\ in connection with the performance of this Agreement; and (xii) eligible for enrollment in the Rolls nA SJ, A ) Royce Corporate Care on the engines and Honeywell MSP on the APU at a cost, in the aggregate, casidc not to exceed $1,225,000 (the "Service Program Buy-In Cao") it being agreed that the Buyer shall pay the cost for enrollment in such programs up to the Service Program Buy-In Cap and that Seller shall pay at or prior to the Closing any such cost exceeding the Service Program Buy-In Cap (collectively the "Delivery Condition;;"). "Damage History shall mean damage to the Aircraft that requires a major alteration within the definition of Appendix A or Appendix B of the FARs Part 43 or the completion of an FM Form 337. For the purpose of this Agreement °Normal Wear and Tear shall mean the process of deterioration caused by the normal use of the Aircraft according to the manufacturer's operating and maintenance manuals and other related documentation. (f) (e)- All transactions being consummated at the Closing shall be deemed to have been made simultaneously and shall become effective at and as of the time of delivery of the Aircraft to Buyer as provided at Section 5 below. From and after Closing, Buyer shall be entitled to all right, title and interest in and to the Aircraft, and Buyer shall assume and be responsible for all risk of loss, Injury, destruction or damage to the Aircraft, Including losses arising from the operation of the Aircraft. DM US 83562471-1.088835. 0011 4 EFTA00787993  4. inspection. (a) Buyer shall arrange for an inspection of the Aircraft at the Gulfstream Aerospace Corporation service center in either-Sfunewiekrraker-Savannah, GA, dopondng on clot availability (each referred to individually and in tho altornativo as ,,(the "inspection Facility), commencing within-ck, fwe-(6)-bweiRees-daye-ef-the-exeestien-ef-thie-Agreernenti-er-it-no-insaeetien-elet-ehall-be-ayailable-4, et-the-Inspeetien-Feeility-within-said-five-(5)-busiRess-daysr-the-ineneetien-ehall-GefFinlieRge-08-the-C tot date-ef4he-next-aamilable-lespestion-slet-at-the-l.neeention-FaSfellewing4he-expicatien-ef-saikIC (6)-business-daysonSgust.21_2111. The inspection shall be for the purpose of verifying whether "s\c2 t • the Aircraft can be made to satisfy the Delivery Condition (as defined below). The Inspection shall consist of the following: (I) a Standard Gulfstream Aircraft/Records Condition Survey ("ARCS") inspection; (ii) an ARCS Test-Flight not to exceed three (3) hours; (iii) a borescope inspection of the engines and APU; (iv) below floor of galley and lavatory inspection; (v) cabin systems evaluation; (vi) cockpit and cabin window thickness check; (vii) brake wear inspection; (viii) internal/external placard inventory; (ix) any inspections due prior to March 31, 2018 and/or 1700 hours total flight time per the manufacturer's maintenance program under which the Aircraft is currently being (4 2. operated; aart(x) at the election of Buyer, an acceptance test flight of up to tiweeone. (31) hours duration following the completion of items (i)-(ix)-fIrREI-(mi) in this Section 4(a); and (xi) any othor _p _ W inspoctionc doomed noceceary by Buyor and agreed to by SaIlor (such agroomont not to bo unroatonably withheld or delayed), all-ef-whiell-(emsept4tiese-ideRtifieeLpiirseaot-te-item-64)-abevel.. (plgyistefly_e_w_Lecatisin_is different_from the location of the Inspection Facility, the_. at tesftightstbe deemed completed assactsf_tbe ClosinqinetrYiliabLias defined. "lc" below) addibe„duration_otettcbilightstiltheib.elime required tositertbe_AirstalLtsdke.neliy.ery_vt. Location) alt of which are more particularly described on Fxhibit "G." attached hereto and made a ac4.41" ." part hereof (items (i)-(54x) above are hereinafter referred to as the 'inspection"). Any test flight\ahk performed at the request or direction of the Inspection Facility shall be performed by Seller's pilot(s), ac jnsoca! (who shall have the final and complete authority to postpone or cancel the Positioning Flight or any test flight for any reason or condition which, in his or her judgment, will comprise the safety of the flight), and with respect to which test flight(s) the custody and control and risk of loss of the Aircraft with In with Seller and up to three (3) of Buyer's technical representatives may be on such flighathat_any_suat_teeLflightsballStesoaducted_under_normaLftightssindflions_notto. exceed.the_appligflatLeightanmeLalimMiods_anditLepecifically_excludeAde.„ v shittipwns. untmel_atatae_e or altitudes. Except as specifically provided otherwise herein, all costs of and related to the Inspection shall be paid by Buyer including (y) the fees charged by the Inspection Facility and (z) any test flight costs, including any fuel and crew costs incurred in—rcru. connection with any test flight; provided, however, that the cost of any test flight, including fuel and crew costs, that is conducted to enable the Inspection Facility to confirm the correction of any Discrepancies shall be paid by Seller. Prior to the commencement of the Inspection, Buyer shall pay the Inspection Facility for the flat rate cost of the Inspection per the wire instructions provided by the Inspection Facility for such purpose and shall open a work order with the Inspection Facility for the remainder of all costs of the Inspection. Seller shall simultaneously open a work order with the Inspection Facility for all costs associated with the rectification of any identified Discrepancies in order for the Aircraft to meet the Delivery Conditions. (b) At the Closing Buyer shall pay to Seller $3,500.00 per flight hour for the movement of the Aircraft (the "Movement Qpsts") from Seller's hangar facility in Houston, Texas to the Inspection Facility (the "Positioning Flight"). The Positioning Flight shall be performed by Seller's pilot(s) with up to three (3) of Buyer's technical representatives on board such flight. During the Positioning Flight, custody and control and risk of loss of the Aircraft shall remain with Seller. The pilot-in-command shall have the final and complete authority to postpone or cancel the Positioning Flight or any test flight for any reason or condition which, in his or her judgment, will comprise the DMJ.)S 83662471-1.088835. 0011 5 EFTA00787994 safety of the flight. Following receipt of confirmation that the Buyer has pre-paid the Inspection Facility for the flat rate of the Inspection, the Seller shall position the Aircraft at the Inspection Facility via the Positioning Flight. (c) The Inspection Facility shall produce a report of the Inspection as soon as reasonably practicable following completion of the Inspection, which report shall be provided to Seller and Buyer. Buyer shall authorize and instruct the Inspection Facility at the commencement of the Inspection to provide all discrepancy lists and Inspection reports to Buyer and Seller simultaneously. If and to the extent the Inspection Facility determines that a test flight is needed to confirm the conditions of the Aircraft at the end of the Inspection, the Inspection Facility may conduct such test flight at the cost of Seller and otherwise on the terms and conditions set forth in subsection 4(a) above. (d) Within three (3) business days after Buyer's receipt of the Inspection Facility's Inspection report, Buyer shall execute and deliver written notice to Seller that indicates either: (i) Buyer's acceptance of the Aircraft "as is", (ii) Buyer's acceptance of the Aircraft subject solely to Seller's corrections of the Discrepancies identified in the Inspection Facility report, if any (a 'Technical Acceotance"): or (iii) Buyer's rejection of the Aircraft, which rejection can only be made if on account of the nature or extent of the Discrepancies Seller will be unable, within a-reasonable- 0 timesixtyS)days after the issuance of the Inspection report, to deliver the Aircraft at Closing compliant with all of the Delivery Conditions (a "Technical Rejectio"). The Technical Acceptance or Technical Rejection shall be in the form attached hereto as Exhibit "F". In the event Buyer does not deliver its written and proper Technical Acceptance or Technical Rejection as set forth above within the three (3) business day period, the Buyer will be deemed to have delivered the Technical Acceptance of the Aircraft as described in item (d)(ii) above. If Buyer delivers or is deemed to have delivered its Technical Acceptance, Seller shall rectify (or cause to be rectified) at Its sole expense prior to the Closing any Discrepancies be that were identified by the Inspection Facility and set forth in the Technical Acceptance as discrepancies that must be rectified. For purposes of this Agreement "Discrepancies" shall mean all airworthiness discrepancies identified during the Inspection that are required by the Inspection Facility to be corrected or repaired-in-fwd.; in order for e(c- the Inspection Facility to approve the Aircraft for return to service and to conform the Aircraft to the Delivery Conditions. No work to correct the Discrepancies will commence without Seller's prior written approval. (ern) With--fespect-4e--aey-64serepasey—thet—dees—I4M—pfeveht—the—Airecaft—frem—being- aicwortkiyrif—Sellef—shall—liave—ebtaisedr on bohaif of Ruyor, an applicable work ordor octimate- satisfactory to Buyer with rocpoct to the ropair of ouch Discrepancy (at the Inspection Facility or another facility acceptable to Buyer) contemplating such repair within thirty (30) days following the Closing Dato, Buyer shall have tho right to oloot to reduco the Purohaco Prico by tho amount of such octimato in lieu of having tho Sollor correct such Discrepancy prior to Closing. 5. Delivery. At the Closing Date the Aircraft will be delivered by Seller to Buyer at f 1 or another mutually agreeable location at which the Aircraft can be delivered without Seller having to collect or otherwise be responsible for sales, use or other state taxes on the sale or delivery of the Aircraft (the 'Delivery Location"). Seller shall be responsible for the costs incurred, if any, to ferry the Aircraft to a delivery location that is not the Inspection Facility (the "Closing Fexry ElighO. Delivery of the Aircraft shall be acknowledged by Buyer in the form of a Delivery and Acceptance Receipt attached hereto as Fxhibit "D". 6. Taxes. DIA_US 83562471.1.088835. 0011 6 EFTA00787995  (a) Buyer shall be responsible for, and agrees to indemnify Seller against, the payment of any and all taxes, (including sales, use or other similar excise taxes) fees, or duties as well as any penalties, interest and attorney's fees relating thereto, imposed by any jurisdiction as a result of: (i) ownership, possession or usage of the Aircraft after the Closing or (ii) this purchase, the delivery or registration (post-closing) of the Aircraft, except to the extent that any such taxes, fees, duties, penalties, interest and attorney's fees relate to any income Seller may realize on the sale of the Aircraft to Buyer. (b) Except as provided in,Section 6(a), Seller shall be responsible for, and agrees to indemnify Buyer against any payment or imposition of taxes, fees or duties as well as any penalties, interest and attorney's fees, imposed by any jurisdiction as a result of the Seller's ownership, possession or usage of the Aircraft prior to the Closing. 7. Waivers: Disclaimers: Absence of Certain Warranties. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, BUYER ACKNOWLEDGES AND AGREES THAT: (I) BUYER IS SATISFIED THAT THE AIRCRAFT AND EACH COMPONENT THEREOF ARE SUITABLE FOR BUYER'S PURPOSES; (II) SELLER IS NOT THE MANUFACTURER, OR AN AGENT OF THE MANUFACTURER, OF THE AIRCRAFT OR ANY PART THEREOF, OR A DEALER, OR AN AGENT OF SUCH A DEALER, IN PROPERTY OF SUCH KIND, AND (iii) NEITHER SELLER NOR ITS BROKERS OR REPRESENTATIVES HAVE MADE OR MAKE, AND HEREBY DISCLAIM, ANY REPRESENTATION, WARRANTY, OR COVENANT, EXPRESS OR IMPLIED, WITH RESPECT TO THE MERCHANTABILITY, CONDITION, QUALITY, AIRWORTHINESS, DURABILITY, DESIGN, OPERATION, FITNESS FOR USE, OR SUITABILITY OF THE AIRCRAFT, ANY COMPONENT THEREOF, OR ANY OTHER ASSET IN ANY RESPECT WHATSOEVER OR IN CONNECTION WITH OR FOR THE PURPOSES AND USES OF BUYER, AS TO THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, OR ANY OTHER REPRESENTATION, WARRANTY, OR COVENANT OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT THERETO, AND AT THE TIME OF CLOSING, THE AIRCRAFT WILL BE SOLD ON AN "AS IS" BASIS WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 17 AND THE WARRANTY OF TITLE SET FORTH IN SECTION 18. EXCEPT F.D.RANY.,AQI.WALDAMAG.E5 AS SPECIFICALLY PROVIDED OTHERWISE HEREIN, CXC NEITHER SELLER NOR ITS BROKERS OR REPRESENTATIVES SHALL BE LIABLE FOR ANY ACTUAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR OTHER DAMAGES OF OR TO ANY PERSON WHATSOEVER, WHETHER ARISING OUT OF CONTRACT, WARRANTY, TORT OR BY STATUTE OR OTHERWISE. 8. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt) or (b) when received or refused by the addressee (as shown on the delivery records of the courier) if sent by Federal Express or another nationally recognized overnight delivery service. Such communications must be sent to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 8): If to Buyer: Elysium Management LLC 445 Park Avenue, Suite 1401 New York, New York 10022 Attention: Bar J. Cohen Email: DM US 83562471.1.088835. 0011 7 EFTA00787996  Phone: With copy to: McDermott Will & Emery LLP 444 W. Lake Street, Suite 4000 Chicago, Illinois 60606 Email: Phone: (312) 984-7659 If to Seller: Swiflite Aircraft Corporation 5 Greenway Plaza, Suite 110 Houston, Texas 77046 Attention: Aviation Manager Facsimile: (713) 640-7522 With copy to: Swiflite Aircraft Corporation 5 Greenway Plaza, Suite 110 Houston, Texas 77046 Attention: Senior Counsel, M/Projects Facsimile: (713) 985-8913 9. Force Majeure. Seller and Buyer shall not be liable for any failure of or delay in the performance of any obligation hereunder for the period that such failure or delay is due to acts of God or the public enemy, civil war, insurrection or riots, fires, explosions or serious accidents, governmental priorities or allocation, strikes or labor disputes, inability to obtain Aircraft materials, accessories, equipment or parts from the vendors on terms anticipated, or any cause beyond Seller or Buyer's control, as the case may be. The Party affected by such cause shall notify the other Party promptly of any such cause. Notwithstanding the foregoing, in the event such failure or delay in the performance of an obligation shall cause the Closing Date to be delayed for a period of sixty (60) days after the date of Buyer's Technical Acceptance or such later date as Buyer and Seller may agree (the "Delivery Deadline") Buyer cif Seller...may upon written notice to Selleatother_f,arty No terminate this Agreement without fault or liability and the Deposit shall be promptly returned to Buyer, all as provided in Section 16(a)(vi) hereof. The provisions of this Section 9 shall not apply to any payment of funds required hereunder unless such failure is the result of a systemic failure that prevents the movement of funds within the banking system of the United States. 10. indemnity. (a) Buyer hereby fully releases, and shall indemnify and defend Seller, its affiliates and assigns, and their respective officers, directors, employees, agents and representatives (collectively, the "Seller Indemnitees") and hold each of them harmless from and against any and all liabilities, claims, demands, costs, losses, damages and causes of action of every kind (including, without limitation, fines, penalties and reasonable attorney's' fees) ("Losses") resulting from, relating to or arising in connection with any injury to or death of any person or damage to or destruction of any property, including the Aircraft, which occurs after Closing, including Losses that arise out of the DM US 83582471-1.088835. 0011 8 EFTA00787997 ownership, management, possession, use, control, maintenance, or operation of the Aircraft occurring after Closing, except to the extent such injury, death, damage or destruction is caused by any or all of the Seller Indemnitees' gross negligence or willful misconduct. (b) Seller hereby fully releases, and shall indemnify and defend Buyer, its affiliates and assigns, and their respective officers, directors, employees, agents and representatives (collectively, the "Buyer Indemnitees") and hold each of them harmless from and against any and all Losses resulting from, relating to or arising in connection with any injury to or death of any person or damage to or destruction of any property (excluding the Aircraft, which is being sold "AS IS, WHERE IS" and "WITH ALL FAULTS" as provided at Section 7 above) which occurs before Closing, including Losses that arise out of ownership, management, possession, use, control, maintenance, or operation of the Aircraft occurring before Closing, except to the extent such injury, t death, damage or destruction is caused by any or all of the Buyer Indemnitees' gros,s„negligence or 14O willful misconduct. (c) A Party that may be entitled to be indemnified under this Agreement (the "Indemnified Party") shall promptly notify the Party liable for such indemnification (the Indemnifying . ir ty-) in writing of any pending or threatened claim or demand that the Indemnified Party has determined has given or would reasonably be expected to give rise to such right of indemnification (including a pending or threatened claim or demand asserted by a third party against the Indemnified Party, such claim being a "Third-Party Claim") describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim or demand; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Section 10 except to the extent the Indemnifying Party is actually prejudiced by such failure. Upon receipt of a notice of a Third Party Claim for indemnity from an Indemnified Party pursuant to this SWion 10, the Indemnifying Party will be entitled, by notice to the Indemnified Party delivered within ten (10) business days of the receipt of notice of such Third Party Claim, to assume the defense and control of such Third Party Claim (at the expense of such Indemnifying Party); provided that the Indemnifying Party shall allow the Indemnified Party a reasonable opportunity to participate in the defense of such Third Party Claim with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense and control of any Third Party Claim pursuant to this Section 10 (c) the Indemnified Party shall be entitled to assume and control such defense, but the Indemnifying Party may nonetheless participate in the defense of such Third Party Claim with its own counsel and at its own expense. Buyer or Seller, as the case may be, shall, and shall cause each of its affiliates and representatives to, reasonably cooperate with the Indemnifying Party in the defense of any Third Party Claim, including by furnishing books and records, personnel and witnesses, as appropriate for any defense of such Third Party Claim. No Indemnifying Party will consent to the entry of any judgment or enter into, any settlement or compromise with respect to a Third Party Claim without the prior written consent of the Indemnified Party, not to be unreasonably withheld; provided, that, if the Indemnifying Party has assumed the defense and control of a Third Party Claim, it shall be authorized to consent to a settlement or compromise of, or the entry of any judgment arising from, any Third Party Claim, in its sole discretion and without the consent of any Indemnified Party; provided that (i) such settlement or judgment does not involve any injunctive relief or finding or admission of any violation of law or admission of any wrongdoing by any Indemnified Party, (II) such settlement or judgment provides for a full and complete release of the Indemnified Party, and (iii) Indemnifying Party agrees to be responsible for any monetary damages payable in connection with such settlement or judgment. No Indemnified Party will consent to the entry of any judgment or enter into any settlement or compromise with respect to a Third Party Claim without the prior written consent of the Indemnifying Party, not to be unreasonably withheld. DM US 63562471.1.088835. 0011 9 EFTA00787998 = iii m iliend Seller agree that. nsSand AO shalt. be the. sole. and .exclusize remediessealier argUttyer. Sections respectively. for any monetary..elamageLtlialenckgartY-MaY-41-PO..0.01e..aufferee Olin el • „ftlitAgreement_or_thessaolons.sontemplateri his Agreement, Wi • he_fgingQingnilits...hereio_telfatiria0c-a_NY—viainalOY—right.Stf. =Wien they may °therms, or to which they_may become en.thkcL 11. Warranties Assignment. Seller agree to assign to Buyer pursuant to the Bill of Sale, effective upon the Closing, any and all of Seller's rights with respect to any manufacturer warranties or repair or maintenance agreements relating exclusively to the Aircraft to the extent such warranties and rights are still in effect and are assignable without the consent of any third party. The assignment of such warranties and rights shall be in the form attached hereto as Fxhihit (the "Warranties Assignment"). In the event any such warranties or rights are assignable only with the consent of a third party (including, without limitation, the obligor of such rights), then Seller agrees, upon Buyer's written request, to cooperate with Buyer as Buyer may reasonably request in obtaining such consent. Buyer shall be solely responsible for any and all fees, costs and expenses incurred by Seller in connection with the assignment of warranties and rights and processing of warranty claims contemplated in this Section 11. 12. Assignment. This Agreement and Seller's rights and obligations hereunder may be assigned to Seller's parent, a wholly-owned subsidiary of Seller, an affiliate controlled by or under common Seller, a successor in interest to Seller, or a financial lessor to Seller. This Agre be assigned by Buyer in whole or part without the express written consent of Sell eon D. Black ("Black") (ii) Buyer's parent, a wholly-owned subsidiary of Buyer, an a lied by Black or Buyer or under common control with Buyer, (iii) a successor in Sr 1e , interest to Buyer, or (iv) a financial lessor or lender to Buyer (collectively, a "Permitted Buyer Assignee') anLotjler assignment by Buyer may only be made with the consent of Seller, which Ala Ooa., consent shall not e unreasonably withheld or delayed. Any assignment pursuant to this Section 12 /ti c-Le shall not relieve the assigning Party of any of its obligations under this Agreement. Any purported 'trt assignment in violation of this Section 12 will provide the non-assigning Party with the right to voidVtemsvase. the assignment. " 4^^^'°°`"°"'E (a) ,Until the Closing. Seller shall bear all risk of loss, destruction or damage to the Aircraft-esswesg-peec-te-the-Glesiwg. From_aect. afterifte_Closing. Buyer shall amme_aigglja responaikejor...bear all risk of loss, destruction or damage to the Aircraft-eesur-rieg-subsequeet-te the-Glesieg. cut.cm.“. n (b) Notwithstanding any contrary provision of this Agreement, if at any time prior to the co •• Closing the Aircraft is destroyed or damaged beyond economic repair, the Deposit shall be refunded to Buyer, and upon receipt of said refund by Buyer, this Agreement shall be terminated and neither Party shall have any rights or obligations to the other with respect to the Aircraft except that Seller shall reimburse Buyer for all Inspection and Movement Costs previously paid by Buyer and, to the extent any Inspection and Movement Costs have not then-been-paicl-by-BuyerrSeller-shall-pay-sesh- Inspestien-ancl-Mevemeetroests, (s) Nawithstae€409-any-eeetFasy-pravisiee-ef-this-Agfeemeetr -if-at-any-time-ecief-te-the- ifnelediately--netify-auyef-ef--ftle--extent--ef-sush--damage-4ed-the-esticeateel-time-te-repair-suell- claffagerUpee-reoeipt-ef-sush--eatiee7-Buyer-mareleet-either--0-4e--teenierate-thie-Agreereent-by- written-netise-te4ellec-ancl-E-ssr-ew-Ageot-er--(ii)4e-purshase-the-Aicsraftr DM US 83562471.1.088835. 0011 10 EFTA00787999 Acyreementr after-it-is-Fepaiced-by-Sellera-Buyer-elests-to torminato thic Agreomont, the Dopocit shall be refunded to Buyer (roducod by any amounts roçuirod to roimburco Soller for any of Buyer's obligations horoundor) and-noithor Party chall-havo any rights or obligationc to tho othor with respect to the Aircraft except that Seller chall roimburso Buyor for all Inopoction and Movement Cocte previously Buyer-andr te-the-extent-anrInspectien-and-Movement-Ceste-have-net- then been paid by Buyer, Seller shall pay such Inspection and Movement Costs.rif-Buyec-eleets-te- pufehase-lhe-Aiforaft-after-it-is-renaireelr at-its-sele-eest-anci-expenser cause-such- darnage-4e-be-repaireel-(at-a-rnutually-aereed-upen-repatr-tasility)-as-seen-an-Feasenably-prantinalr tho Closing shall be dolayod until ouch ropairs ore completed to the repair foollity's and Ruyor'c satisfaction and the Delivery Conditien shall be modiflod accordingly. (f) (4)-Notwithstanding any term or provision of this Agreement to the contrary, in no event will either Party hereto be liable to the other Party for any consequential, indirect, special, exemplary, punitive, or similar damages arising out of or relating to this Agreement, except to the extent any such Party was required to pay such damages to a third party in connection with any Losses subject to indemnification hereunder, in which event such damages shall be recoverable hereunder, 14. czossming Law- Disoute Resolution. This Agreement shall be construed in accordance with and its performance shall be governed by the laws of the State of New York, excluding the principles of conflicts of laws thereof that would cause the laws of another jurisdiction to apply. Any and all disputes arising from or related to this Agreement, include the existence, validity or termination of this Agreement, shall be brought in the federal or state courts in New-Yerk-Gityr New- (me_ YerkWilminaton. DelaWare. and each party hereby submits to the exclusive jurisdiction of those courts for purposes of any such proceeding. 15. Default & Remedy. (a) In the event that Buyer shall fail to perform and fulfill In any material respect any obligation or condition required of Buyer under this Agreement, including but not limited to a failure by Buyer to accept delivery of the Aircraft and pay the Purchase Price to Seller in accordance with the terms and conditions of this Agreement, and such failure of Buyer shall continue for a period of ten (10) business days after Buyer's receipt of written notice from Seller requesting that Buyer remedy such failure ("Seller's Failure Notice") and Seller shall have performed and fulfilled (or shall have been ready, willing and able to perform and fulfill) in all material respects the obligations and conditions required of Seller under this Agreement, then, at any date after the expiration of such ten (10) business day notice period but prior to the date, if any, on which Buyer remedies the failure identified in Seller's Failure Notice, Seller may elect, by written notice to Buyer and the Escrow Agent, either: (i) to terminate this Agreement pursuant to Section 16(a)(i) and direct the Escrow Agent, subject in all respects to the terms of the Escrow Agreement, to promptly (but in no event later than five (5) days from the date of such termination) pay the Deposit to Seller, and in such case Buyer shall execute and deliver any documents reasonably necessary to have the Deposit delivered to Seller in accordance with the foregoing, which the Parties agree represents a genuine pre-estimate of the potential loss that will be suffered by Seller as a result of any such termination (including loss of profits and revenues, business interruption and loss of opportunity and use), does not constitute a penalty, is agreed upon and fixed because of the difficulty of ascertaining the exact amount of loss that Seller would suffer in such circumstances, and shall apply regardless of the actual loss that Seller sustains; or DM_US 83662471-1.088835. 0011 11 EFTA00788000  (ii) to seek to specifically enforce this Agreement as its sole and exclusive remedy, all other remedies being expressly waived by Seller. If Buyer remedies the failure identified in Seller's Failure Notice prior to receipt of Seller's notice to terminate or notice to seek specific performance, then this Agreement shall not terminate but shall continue in full force and effect. (b) In the event that Seller shall fall to timely perform and fulfill in any material respect any obligation or condition required of Seller under this Agreement, including but not limited to a failure by Seller to deliver the Aircraft to Buyer in accordance with the terms and conditions of this Agreement, and such failure shall continue for a period of ten (10) business days after such receipt by Seller of written notice from Buyer requesting that Seller remedy such failure or breach ("Buyer's Failure Notice") and Buyer shall have timely performed and fulfilled (or shall have been ready, willing and able to timely perform and fulfill) in all material respects the obligations and conditions required of Buyer under this Agreement, then, at any date after the expiration of such ten (10) business day notice period but prior to the date, if any, on which Seller remedies the failure identified in Buyer's Failure Notice , Buyer may elect, by written notice to Seller and the Escrow Agent: (4) te-tegninete-this-Agreemefit-perement-te-Sestien46(a)(i)-anc4 (i) (3-k,to terminate this Agreement pursuant to Section 16(a)(i) and direct the Escrow Agent, subject in all respects to the terms of the Escrow Agreement, to promptly (but in no event later than five (5) days from the date of such termination) pay the Deposit over to Buyer, and in such case Seller shall execute and deliver any documents reasonably necessary to have the Deposit delivered to Buyer in accordance with the foregoing; or mid (11)4e-havefteekaftEL-that-Sellec-fanel-Seller•-hefeby-aiirees-that-it-shall.)- iffinlediately-parte-Buyer-by-Wire-tronefec-ef-geed-foncle-the-ameuat-ef-Ape-Millien-Dellar-s- ($470007000,00)-ae-liquietated-elemages-elloye juiclate5Haatnageearwhish-the-Parties-agree- Rilf,Feeelt146-a-gefl4Re-pfe••e“imate-ef-the-petential-less-gaat-witl-lae-suffereel-by-BuyeF-as-a-reemit-of- any-sueh--ter-rnieetien-fineleding--less--ef-pfefits-afid--revenuesr business-intercuptien-and-less-ef- eppectunity-and-usefr-dees-net--eenetitute-a-pepaltyl-is-acireed-upen-ansl-fwed-because-of-the- sliffisulty-ef-aseertaining-the-exast-acnount-ef-less-that-Buyer-wealcksuffec-ifi-sush-sifeuffistaneeer aed-shall-apply-regardess-ef-the-astual-less-that-Buyer-seetainser- (ii) (iii)-to seek to specifically enforce this Agreement as its sole and exclusive remedy, all other remedies being expressly waived by Buyer. If Seller remedies the failure identified in Buyer's Failure Notice prior to receipt of Buyer's notice to terminate or notice to seek specific performance, then this Agreement shall not terminate but shall continue in full force and effect. DM_US 83562471-1 088835. 0011 12 EFTA00788001  16. Termination. (a) This Agreement may, by written notice given prior to the Closing, be terminated: (i) By either Buyer or Seller upon material default of the other Party as provided in Section 15 above; (ii) By mutual written consent of Buyer and Seller; (iii) By Buyer upon its execution and delivery to Seller of a proper Technical Rejection of the Aircraft in accordance with Section 4(d)(iia above; provided that, in the case of such termination by Buyer, Seller shall reimburse Buyer for all Inspection and Movement Costs already paid by Buyer and, to the extent any Inspection and Movement Costs have not then been paid by Buyer, Seller shall pay such Inspection and Movement Costs. (iv) (v) leteratienally-DeletethayafteLif. atitteeacieten. If res.tgyjattbec, ' setSdLASPL0PPI-leshnical Acceptance would exceectaknidilliPri Dollars_ ,000.1maglingsraguntumerasitaggligahleibirst.garty..insitrana (vi) By Buyer if Seller cannot reasonably rectify on or before the Delivery Deadline, to the Inspection Facility's reasonable satisfaction, all Discrepancies set forth in a proper Technical Acceptance delivered in accordance with Section 4(d1 above; provided however that in the case of such termination and notwithstanding anything contained herein to the contrary, Seller shall be responsible for all costs incurred by Seller in its effort to rectify such Discrepancies prior to termination and Seller shall reimburse Buyer for all Inspection and Movement Costs already paid by Buyer and, to the extent any Inspection and Movement Costs have not then been paid by Buyer, Seller shall pay such Inspection and Movement Costs; or (vii) By Buyer orS_elter If the Closing has not occurred (other than through the failure of the Seftefaarty tecroinateibis. Agreement to comply fully with its obligations Kit — under this Agreement) on or before the Delivery Deadline; provided however that in the case of ems.,a. such termination by Buyer.Seller, notwithstanding anything contained herein to the contrary, Sellers shall be responsible for all costs incurred by Seller in its effort to rectify any Discrepancies prior to termination and Seller