Form 8-K
8-K — AIR T INC
Accession: 0000353184-26-000045
Filed: 2026-06-16
Period: 2026-06-16
CIK: 0000353184
SIC: 4513 (AIR COURIER SERVICES)
Item: Entry into a Material Definitive Agreement
Item: Completion of Acquisition or Disposition of Assets
Item: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
Documents
8-K — airt-20260616.htm (Primary)
EX-2.1 (a21sharepurchaseagreemen.htm)
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EX-10.2 (a102membershipinterestpu.htm)
EX-10.3 (a103redemptionagreement_.htm)
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EX-10.6(B) (a106bsubscriptionagreeme.htm)
EX-10.6(C) (a106csubscriptionagreeme.htm)
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XML — IDEA: XBRL DOCUMENT (R1.htm)
8-K
8-K (Primary)
Filename: airt-20260616.htm · Sequence: 1
airt-20260616
0000353184false00003531842026-06-102026-06-160000353184us-gaap:CommonStockMember2026-06-102026-06-160000353184airt:CumulativeCapitalSecuritiesMember2026-06-102026-06-16
______________________________________________________________________________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
______________________________________________________________________________
FORM 8-K
______________________________________________________________________________
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): 6/10/2026
______________________________________________________________________________
AIR T, INC.
(Exact Name of Registrant as Specified in Charter)
______________________________________________________________________________
Delaware
001-35476
52-1206400
(State or Other Jurisdiction
of Incorporation)
(Commission
File Number)
(I.R.S. Employer
Identification No.)
11020 David Taylor Drive, Suite 305,
Charlotte, North Carolina 28262
(Address of Principal Executive Offices, and Zip Code)
________________(980) 595-2840__________________
Registrant’s Telephone Number, Including Area Code
Not applicable___
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
☐ Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communication pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communication pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Trading Symbol(s) Name of each exchange on which registered
Common Stock AIRT
NASDAQ Capital Market
Alpha Income Preferred Securities (also referred to as 8% Cumulative Capital Securities) (“AIP”) AIRTP
NASDAQ Global Market
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
☐
Emerging growth company
☐ If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Item 1.01 Entry into a Material Definitive Agreement
On June 10, 2026 (the “Closing Date”), Air T, Inc. (the “Company”), through its subsidiaries and affiliates, entered into and consummated a series of related agreements and transactions involving the reorganization and capitalization of its aviation asset management platform and the acquisition of Arena Aviation Partners B.V., a Netherlands private limited company (“Arena”). The transactions were completed through Crestone Air Partners, LLC, a Delaware limited liability company (“CAP”), which serves as the platform vehicle for the combined Crestone and Arena aviation asset management business.
Crestone Asset Management Reorganization
Immediately prior to the closing, the Company owned 90% of the common interests in Crestone Asset Management, LLC (“CAM”). At this same time, entities controlled by the Mill Road Investors (MRC Common Member LLC and MR CAM US Splitter 2, L.P. (the “MRC Parties”)) collectively owned the remaining 10% of the common interests in CAM.
In connection with the transactions, the Company and Aviation Growth Initiatives, LLC (“AGI”), a management-affiliated entity formed by executives of Crestone Air Partners, Inc., entered into a Membership Interest Purchase Agreement with the MRC Parties, pursuant to which the Company and AGI acquired the MRC Parties’ 10% common interest position in CAM for aggregate cash consideration of $6.2 million, with each of the Company and AGI contributing $3.1 million of the aggregate cash consideration.
Following that acquisition, the Company and AGI entered into a Redemption Agreement with CAM, pursuant to which the Company and AGI redeemed approximately 99% of their CAM common interests in exchange for CAM’s assignment to the Company and AGI of a portfolio of servicing agreement rights. The Company and AGI retained the remaining approximately 1% of CAM common interests and continue as common members of CAM. To the extent any servicing agreement requires third-party consent to assignment, the agreement will be treated as a non-assignable agreement held by CAM for the economic benefit of the Company and AGI pending receipt of the required consent.
In connection with the reorganization, the parties also amended CAM’s limited liability company agreement to reflect the exit of the MRC parties from the common interest holder group and to preserve certain limited investor-protective consent rights held by specified MRC investor-side entities.
CAP Capitalization
On the Closing Date, the limited liability company agreement of CAP became effective, and CAP was capitalized through contributions by its initial members. The Company and AGI contributed the servicing agreement rights received from CAM to CAP in exchange for Class A Common Units of CAP. The Company and Blue Owl Capital Inc. or an affiliate thereof contributed an aggregate of $21.7 million in cash to CAP in exchange for Class B Preferred Units of CAP. The Company also contributed $50 thousand in cash to CAP in exchange for Class A Common Units of CAP. The cash proceeds from the Class B Preferred Unit and Class A Common contributions were used as one of the primary funding sources for the Arena acquisition described below.
In addition, Crestone Group Management, LLC, a separate management-affiliated incentive vehicle, received PI Units, or “Downstairs Interests,” in CAP. The PI Units are distinct from the Class A Common Units issued to the Company and AGI, are intended to be treated as profits interests, and are subject to a distribution hurdle.
Arena Acquisition
On the Closing Date, CAP, as successor purchaser to Crestone Air Partners, Inc., completed the acquisition of 100% of the outstanding shares of Arena pursuant to that certain Share Purchase Agreement, dated March 8, 2026, as amended by the Addendum thereto, by and among Crestone Air Partners, Inc., as original purchaser, Arena, the shareholders of Arena, and Dirk Jan Smit, as Securityholders’ Agent.
Arena is an aviation asset management platform incorporated in the Netherlands. Its consolidated group includes Arena Aviation Capital B.V., Arena Aviation Capital Ireland Ltd., and Parus Ater Ltd.
CAP acquired all outstanding shares of Arena for cash consideration of $21.75 million, subject to closing adjustments for debt, transaction expenses and leakage. A portion of the consideration payable in respect of certain Class P Shares was deposited into an indemnity escrow with Bank of Utah, as escrow agent, to secure seller indemnification obligations under the Share Purchase Agreement.
Certain depositary receipt holders are also entitled to receive additional cash payments equal to their pro rata share of 57.5% of specified at-risk upside-sharing amounts actually collected after closing under certain servicing agreements and signed letters of intent in effect as of the Closing Date. The total amount of such contingent consideration is currently expected to be approximately $23.0 million, although the actual amount may be materially different, including zero, based on the performance of the underlying transactions.
Amendment No. 6 to Alerus Credit Agreement and Overline Note
On June 15, 2026, Air’Zona Aircraft Services, Inc., CSA Air, Inc., Global Ground Support, LLC, Jet Yard, LLC, Jet Yard Solutions, LLC, Mountain Air Cargo, Inc., Worldwide Aircraft Services, Inc., Royal Aircraft Services, LLC and Worthington Aviation, LLC, each a subsidiary or affiliate of the Company (collectively, the “Alerus Borrowers”), together with the Company, in its capacities as loan party agent and guarantor, entered into Amendment No. 6 to Credit Agreement and Other Loan Documents (“Amendment No. 6”) with Alerus Financial, National Association (“Alerus”), as lender. Amendment No. 6 amends that certain Credit Agreement, dated as of August 29, 2024, as previously amended, by and among the Alerus Borrowers, the Company, as loan party agent, and Alerus (the “Alerus Credit Agreement”).
Amendment No. 6 provides for a temporary overline revolving credit commitment under which, subject to the terms and conditions of the Alerus Credit Agreement, as amended, Alerus may make overline revolving credit loans to the Alerus Borrowers from time to time during the overline commitment period in an aggregate principal amount outstanding at any one time not to exceed the lesser of: (i) $2.8 million; and (ii) the amount by which the borrowing base exceeds total usage before giving effect to the requested loan.
The overline commitment period began on the effective date of Amendment No. 6 and terminates on the earliest of October 15, 2026 and the termination of the overline commitment in accordance with the Alerus Credit Agreement.
In connection with Amendment No. 6, the Alerus Borrowers executed an Overline Note, dated as of June 15, 2026, in favor of Alerus in the original principal amount of $2.8 million (the “Overline Note”). The Alerus Borrowers are jointly and severally obligated under the Overline Note and are required to repay all outstanding overline loans on the overline termination date. Borrowings under the Overline Note bear interest at a fluctuating annual rate equal to the greater of (i) 5.00% and (ii) CME one-month term SOFR plus an applicable margin of 2.50%, subject to adjustment as provided in the Overline Note.
Interest is payable monthly, commencing July 15, 2026, at maturity and, after maturity, on demand. The Overline Note is secured by the existing Security Agreement, dated as of August 29, 2024, executed by the Alerus Borrowers in favor of Alerus, and certain other loan documents. Upon an event of default, Alerus may declare the entire unpaid principal amount, together with accrued and unpaid interest and other amounts owing, immediately due and payable, and the interest rate increases by an additional 5.00 percentage points, subject to applicable law.
In connection with Amendment No. 6, the Company also executed an Acknowledgment and Agreement in favor of Alerus, pursuant to which the Company confirmed, among other things, that its existing guaranty and pledge agreement remain in full force and effect and that the Company’s guaranty and pledged collateral continue to support the obligations under the Alerus Credit Agreement, as amended by Amendment No. 6.
The foregoing descriptions of the Membership Interest Purchase Agreement, Redemption Agreement, amendment to the CAM limited liability company agreement, CAP limited liability company agreement, Share Purchase Agreement and Addendum, Escrow Agreement, Amendment No. 6, Overline Note, Acknowledgment and Agreement and related transaction documents do not purport to be complete and are qualified in their entirety by reference to the full text of such agreements, copies of which are filed as exhibits to this Current Report on Form 8-K and incorporated herein by reference.
Item 2.01 Completion of Acquisition or Disposition of Assets
The information set forth under Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
As described above, on the Closing Date, CAP completed the acquisition of 100% of the outstanding shares of Arena. The assets acquired consist of all of the outstanding equity interests of Arena and, indirectly, Arena’s aviation asset management platform and subsidiaries. The cash consideration for the acquisition was funded primarily with cash contributions made to CAP in connection with the Class B Preferred Unit capitalization described in Item 1.01 of this Current Report on Form 8-K.
The description of the Arena acquisition in this Item 2.01 is qualified in its entirety by reference to the information contained in Item 1.01 of this Current Report on Form 8-K and the agreements filed as exhibits to this Current Report on Form 8-K, which are incorporated herein by reference.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
The information set forth under Item 1.01 of this Current Report on Form 8-K under the heading “Amendment No. 6 to Alerus Credit Agreement and Overline Note” is incorporated herein by reference.
Cautionary Note Regarding Forward-Looking Statements
This Current Report on Form 8-K contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, including statements regarding contingent consideration and amounts that may be collected after closing. Forward-looking statements are based on current expectations and assumptions and involve risks and uncertainties that could cause actual results to differ materially. The Company undertakes no obligation to update any forward-looking statements, except as required by law.
Item 9.01 Financial Statements and Exhibits
Exhibit No. Description
2.1*†‡
Share Purchase Agreement, dated March 8, 2026, by and among Crestone Air Partners, Inc., Arena Aviation Partners B.V., the shareholders party thereto, and Dirk Jan Smit, as Securityholders’ Agent, as amended by the Addendum thereto.
10.1*‡
Limited Liability Company Agreement of Crestone Air Partners, LLC, dated June 10, 2026.
10.2‡
Membership Interest Purchase Agreement, dated June 10, 2026, by and among Crestone Asset Management, LLC, MRC Common Member LLC, MR CAM US Splitter 2, L.P., Aviation Growth Initiatives, LLC and Air T Acquisition 26.1, LLC.
10.3‡
Redemption Agreement, dated June 10, 2026, by and among Crestone Asset Management, LLC, Aviation Growth Initiatives, LLC, Air T Acquisition 26.1, LLC, and Air T, Inc.
10.4
First Amendment to Second Amended and Restated Limited Liability Company Agreement of Crestone Asset Management, LLC, dated June 10, 2026.
10.5‡
Escrow Agreement, dated June 10, 2026, by and among Crestone Air Partners, LLC, Dirk Jan Smit, as Securityholders’ Agent, and Bank of Utah, as escrow agent.
10.6(a)‡
Subscription Agreement for Class B Preferred Units of Crestone Air Partners, LLC, dated June 10, 2026, by and between Crestone Air Partners, LLC and Air T, Inc.
10.6(b)‡
Subscription Agreement for Class A Common Units of Crestone Air Partners, LLC, dated June 10, 2026, by and between Crestone Air Partners, LLC and Air T Acquisition 26.1, LLC.
10.6(c)‡
Subscription Agreement for Class B Preferred Units of Crestone Air Partners, LLC, dated June 10, 2026, by and among Crestone Air Partners, LLC, IF GPT Holdco PVT LLC and BOAC GPT Holdco PVT LLC.
10.7
Amendment No. 6 to Credit Agreement and Other Loan Documents, dated effective as of June 15, 2026, by and among Air’Zona Aircraft Services, Inc., CSA Air, Inc., Global Ground Support, LLC, Jet Yard, LLC, Jet Yard Solutions, LLC, Mountain Air Cargo, Inc., Worldwide Aircraft Services, Inc., Royal Aircraft Services, LLC, Worthington Aviation, LLC, Air T, Inc., as loan party agent and guarantor, and Alerus Financial, National Association, as lender.
10.8
Overline Note, dated as of June 15, 2026, made by Air’Zona Aircraft Services, Inc., CSA Air, Inc., Global Ground Support, LLC, Jet Yard, LLC, Jet Yard Solutions, LLC, Mountain Air Cargo, Inc., Royal Aircraft Services, LLC, Worldwide Aircraft Services, Inc. and Worthington Aviation, LLC in favor of Alerus Financial, National Association.
10.9
Acknowledgment and Agreement, dated June 15, 2026, by Air T, Inc., as guarantor, in favor of Alerus Financial, National Association.
104 Cover Page Interactive Data File (embedded within the Inline XBRL document).
* Schedules and similar attachments have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company agrees to furnish supplementally a copy of any omitted schedule or similar attachment to the Securities and Exchange Commission upon request.
† Certain portions of this exhibit have been omitted pursuant to Item 601(b)(2)(ii) or Item 601(b)(10)(iv) of Regulation S-K because they are both not material and are the type that the registrant treats as private or confidential.
‡ Certain personal information has been omitted pursuant to Item 601(a)(6) of Regulation S-K because disclosure would constitute a clearly unwarranted invasion of personal privacy.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: June 16, 2026
AIR T, INC.
By: /s/ Tracy Kennedy
Tracy Kennedy, Chief Financial Officer
EX-2.1
EX-2.1
Filename: a21sharepurchaseagreemen.htm · Sequence: 2
a21sharepurchaseagreemen
Execution Version 4897-9174-6440.v17 SHARE PURCHASE AGREEMENT by and among: CRESTONE AIR PARTNERS, INC. as Purchaser; ARENA AVIATION PARTNERS B.V. as the Company; THE SHAREHOLDERS OF ARENA AVIATION PARTNERS B.V., as Sellers; and Dirk Jan Smit, as the Securityholders’ Agent. Dated as of March 8, 2026 Certain identified information has been excluded from this exhibit because it is both not material and is the type that the registrant treats as private or confidential, or because disclosure would constitute a clearly unwarranted invasion of personal privacy. Information that was omitted has been noted in this document with a placeholder identified by the mark "[***]".
i 4897-9174-6440.v17 TABLE OF CONTENTS Page 1. Purchase and Sale .......................................................................................................................... 1 1.1 Purchase and Sale of Outstanding Company Shares .......................................................... 1 1.2 Consideration for Class A Shares ....................................................................................... 1 1.3 Consideration for Class P Shares ........................................................................................ 1 1.4 Treatment of Depositary Receipts ...................................................................................... 4 1.5 Consideration Spreadsheet .................................................................................................. 5 1.6 Withholding ........................................................................................................................ 5 1.7 Escrow Contributions ......................................................................................................... 5 1.8 Closing ................................................................................................................................ 6 1.9 Allocation of Consideration ................................................................................................ 7 1.10 Further Action ..................................................................................................................... 7 2. Representations and Warranties Relating to the Company ...................................................... 7 2.1 Organizational Matters ....................................................................................................... 7 2.2 Capital Structure ................................................................................................................. 8 2.3 Authority and Due Execution ........................................................................................... 10 2.4 Non-Contravention and Consents ..................................................................................... 10 2.5 Financial Statements ......................................................................................................... 11 2.6 No Liabilities; Indebtedness ............................................................................................. 12 2.7 Litigation ........................................................................................................................... 13 2.8 Taxes ................................................................................................................................. 13 2.9 Title to Property and Assets .............................................................................................. 16 2.10 Bank Accounts .................................................................................................................. 17 2.11 Intellectual Property and Related Matters ......................................................................... 17 2.12 Compliance; Permits ......................................................................................................... 18 2.13 Brokers’ and Finders’ Fees ............................................................................................... 20 2.14 Employment Matters ......................................................................................................... 20 2.15 Employee Benefit Plans .................................................................................................... 24 2.16 Environmental Matters ..................................................................................................... 26 2.17 Material Contracts ............................................................................................................. 27 2.18 Insurance ........................................................................................................................... 27 2.19 Transactions with Related Parties ..................................................................................... 28 2.20 Books and Records ........................................................................................................... 28 2.21 Absence of Changes .......................................................................................................... 28 2.22 Major Customers and Suppliers ........................................................................................ 28 2.23 Relevant Aircraft and Aircraft Leases. ............................................................................. 29 2.24 Third Party Acquisition Proposals .................................................................................... 30 2.25 Full Disclosure .................................................................................................................. 30 2.26 No Other Representations or Warranties; No Reliance .................................................... 30 3. Representations and Warranties of Each Seller ....................................................................... 30 3.1 Authority and Due Execution ........................................................................................... 30 3.2 Non-Contravention and Consents ..................................................................................... 31 3.3 Litigation ........................................................................................................................... 31
ii 4897-9174-6440.v17 3.4 Title and Ownership .......................................................................................................... 32 3.5 Due Organization .............................................................................................................. 32 3.6 Brokers’ and Finders’ Fees ............................................................................................... 32 3.7 Assets ................................................................................................................................ 32 3.8 Securityholders’ Agent ..................................................................................................... 32 3.9 Taxes ................................................................................................................................. 32 3.10 No Other Representations or Warranties; No Reliance .................................................... 32 4. Representations and Warranties of Purchaser ......................................................................... 33 4.1 Standing ............................................................................................................................ 33 4.2 Authority and Due Execution ........................................................................................... 33 4.3 Non-Contravention ........................................................................................................... 33 4.4 Litigation ........................................................................................................................... 33 4.5 Sufficiency of Funds. ........................................................................................................ 34 4.6 Solvency............................................................................................................................ 34 4.7 Brokerage .......................................................................................................................... 34 4.8 Independent Review and Acknowledgments .................................................................... 34 4.9 No Other Representations or Warranties; No Reliance .................................................... 35 5. Certain Covenants of Sellers and the Company ....................................................................... 35 5.1 Access and Investigation................................................................................................... 35 5.2 Contact with Business Relations. ...................................................................................... 35 5.3 Operation of the Business of the Company ...................................................................... 36 5.4 No Negotiation .................................................................................................................. 39 5.5 Termination/Amendment of Agreements ......................................................................... 39 5.6 Resignation of Officers and Directors .............................................................................. 39 5.7 Payoff Letters; Termination of Security Interests ............................................................. 40 5.8 D&O Tail Insurance .......................................................................................................... 40 5.9 E&O Tail Insurance .......................................................................................................... 40 5.10 Certain Pre-Closing Actions and Deliverables ................................................................. 40 5.11 Ancillary Agreements ....................................................................................................... 41 5.12 Restriction on Transfer ..................................................................................................... 41 5.13 Tax Certificates ................................................................................................................. 41 5.14 Confidentiality .................................................................................................................. 41 5.15 Cooperation with Purchaser Financing Transaction ......................................................... 41 5.16 Supplements to Disclosure Schedule ................................................................................ 42 6. Certain Covenants of the Parties ................................................................................................ 42 6.1 Filings and Consents ......................................................................................................... 42 6.2 Tax Matters ....................................................................................................................... 43 6.3 Tax Liability Mitigation .................................................................................................... 45 6.4 Public Announcements ..................................................................................................... 46 7. Conditions Precedent to Obligations of Purchaser ................................................................... 46 7.1 Accuracy of Representations ............................................................................................ 46 7.2 Performance of Covenants ................................................................................................ 46 7.3 Governmental and Other Consents; No Restraints on Business ....................................... 46
iii 4897-9174-6440.v17 7.4 No Material Adverse Effect .............................................................................................. 47 7.5 No Restraints..................................................................................................................... 47 7.6 No Legal Proceedings ....................................................................................................... 47 7.7 Agreements and Documents ............................................................................................. 47 7.8 Purchaser Financing .......................................................................................................... 47 7.9 Due Diligence ................................................................................................................... 47 7.10 Audited Financial Statements ........................................................................................... 47 7.11 Tax Mitigation .................................................................................................................. 48 7.12 Transfer of Aircraft ........................................................................................................... 48 7.13 No Conflict Escalation ...................................................................................................... 48 8. Conditions Precedent to Obligation of Sellers ........................................................................... 48 8.1 Accuracy of Representations ............................................................................................ 48 8.2 Performance of Covenants ................................................................................................ 48 8.3 No Restraints..................................................................................................................... 48 9. Termination .................................................................................................................................. 49 9.1 Termination Events ........................................................................................................... 49 9.2 Termination Procedures .................................................................................................... 50 9.3 Effect of Termination ........................................................................................................ 50 10. Indemnification ............................................................................................................................ 50 10.1 Survival of Representations .............................................................................................. 50 10.2 Indemnification ................................................................................................................. 52 10.3 Limitations ........................................................................................................................ 54 10.4 No Contribution ................................................................................................................ 55 10.5 Indemnification Claim Procedures ................................................................................... 55 10.6 Indemnity Escrow Fund .................................................................................................... 57 10.7 Payment ............................................................................................................................ 59 10.8 Set-off ............................................................................................................................... 59 10.9 Exercise of Remedies Other Than by Purchaser or Securityholders’ Agent .................... 59 10.10 Exclusive Remedy ............................................................................................................ 60 11. Miscellaneous Provisions ............................................................................................................. 60 11.1 Securityholders’ Agent ..................................................................................................... 60 11.2 Further Assurances ........................................................................................................... 61 11.3 No Waiver Relating to Claims for Fraud .......................................................................... 61 11.4 Fees and Expenses ............................................................................................................ 62 11.5 Attorneys’ Fees ................................................................................................................. 62 11.6 Notices .............................................................................................................................. 62 11.7 Headings ........................................................................................................................... 63 11.8 Counterparts and Exchanges by Electronic Transmission or Facsimile ........................... 63 11.9 Governing Law; Dispute Resolution ................................................................................ 63 11.10 Successors and Assigns .................................................................................................... 64 11.11 Remedies Cumulative; Specific Performance................................................................... 64 11.12 Waiver ............................................................................................................................... 65 11.13 Waiver of Jury Trial .......................................................................................................... 65
iv 4897-9174-6440.v17 11.14 Amendments ..................................................................................................................... 65 11.15 Severability ....................................................................................................................... 65 11.16 Parties in Interest .............................................................................................................. 65 11.17 Entire Agreement .............................................................................................................. 65 11.18 Disclosure Schedule .......................................................................................................... 65 11.19 Transfer Taxes .................................................................................................................. 66 11.20 Construction ...................................................................................................................... 66 11.21 Disclosure Regarding Notary ............................................................................................ 67 11.22 Non-Assertion of Attorney-Client Privilege. .................................................................... 67
i 4897-9174-6440.v17 EXHIBITS AND SCHEDULES EXHIBIT A Certain Definitions EXHIBIT B Form of Release EXHIBIT C Form of Depositary Receipt Surrender Agreement Schedule 1.5 Information to be set forth in the Consideration Spreadsheet Schedule 1.8(b) Agreements and Documents
1 4897-9174-6440.v17 SHARE PURCHASE AGREEMENT THIS SHARE PURCHASE AGREEMENT (this “Agreement”) is made and entered into as of March 8, 2026, by and among: CRESTONE AIR PARTNERS, INC., a Minnesota corporation (“Purchaser”); ARENA AVIATION PARTNERS B.V., a private limited liability company organized under the laws of the Netherlands with registration number 67644694 (the “Company”); the Sellers (as defined herein); and Dirk Jan Smit as the Securityholders’ Agent, as defined herein. Certain capitalized terms used in this Agreement are defined in Exhibit A. RECITALS A. Sellers own all of the Company Shares (except for 490 Class A Shares held by the Company). B. Upon the terms and subject to the conditions set forth in this Agreement, Purchaser desires to acquire from Sellers all of the Outstanding Company Shares, and Sellers desire to sell to Purchaser all of the Outstanding Company Shares (the sale and purchase of the Outstanding Company Shares pursuant to the terms of this Agreement being referred to as the “Share Purchase”). C. As an inducement for Purchaser to consummate the Contemplated Transactions each of the Key Employees will enter into (1) a noncompetition and nonsolicitation agreement in favor of Purchaser (a “Noncompetition Agreement”) and (2) an Employment Agreement, in each case, in accordance with the terms set forth in the Employment Terms Sheet separately delivered to each Key Employee on or prior to the date hereof and which shall become effective at the Closing. AGREEMENT The parties to this Agreement, intending to be legally bound, agree as follows: 1. PURCHASE AND SALE 1.1 Purchase and Sale of Outstanding Company Shares. Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, in exchange for the payments set forth in Sections 1.2 and 1.3, each Seller hereby sells and agrees to transfer to Purchaser, and Purchaser hereby purchases and agrees to acquire and accept from such Seller, all of the Outstanding Company Shares held by such Seller, in each case, free and clear of all Liens and with the benefit of all rights of whatsoever nature attaching or accruing to such Outstanding Company Shares. Purchaser shall not be obligated to complete the transfer of any Outstanding Company Shares unless the transfer of all of the Outstanding Company Shares is completed simultaneously. 1.2 Consideration for Class A Shares. Subject to Sections 1.6, 1.7, 10 and 11.1(b), the consideration payable by Purchaser to each Seller for each Outstanding Class A Share held by such Seller shall be an amount in cash equal to the Class A Nominal Amount (such total amount payable to Class A Shareholders, “Class A Consideration”). 1.3 Consideration for Class P Shares. (a) Subject to Sections 1.6, 1.7, 7 and 11.1(b), the consideration payable by Purchaser to the Foundation for the Outstanding Class P Shares held by the Foundation shall be an amount in cash equal to the Class P Consideration. A portion of the Class P Consideration shall be paid to the Foundation
2 4897-9174-6440.v17 at the Closing and the remainder shall be deposited into the Indemnity Escrow Fund pursuant to Section 1.7. (b) At-Risk Collections Revenue Share. (i) In addition to the consideration payable pursuant to Section 1.3(a), the Depositary Receipt Holders shall, subject to Sections 1.6, 1.7, 10 and 11.1(b), be entitled to receive one or more additional cash payments (each, an “At-Risk Collections Payment”) equal to such Depositary Receipt Holder’s Pro Rata Share of 57.5% of the Company’s Upside Share that is actually collected following the Closing, to the extent attributable solely to Servicing Agreements listed on Part 1.3(b) of the Disclosure Schedule that are in effect as of the Closing Date (including any transactions that are (A) subject to a signed letter of intent or equivalent arrangement set forth in Part 1.3(b) of the Disclosure Schedule; (B) with a party set forth in Part 1.3(b) of the Disclosure Schedule on terms substantially similar to the terms set forth therein; or (C) subject to other letters of intent or equivalent arrangements approved by Purchaser, in each case, whether signed by the Company or that reference the Company or its Affiliate as a servicer (collectively, the “At- Risk LOIs”)). (ii) The At-Risk Collections Payment shall be payable solely to the extent such amounts of the Company’s Upside Share are (A) actually received by an Acquired Company or Purchaser or its Affiliate and (B) not subject to clawback, recoupment or other recovery. Within thirty (30) days after the end of each calendar quarter, commencing on June 30, 2026, Purchaser shall deliver to the Securityholders’ Agent a statement setting forth the calculation of the At-Risk Collections Payment, if any, for the applicable quarter, together with any reasonably supporting documentation (each, an “At-Risk Collections Statement”). (iii) The Securityholders’ Agent shall have thirty (30) days from the date of receipt of the At-Risk Collections Statement (the “At-Risk Collections Review Period”) to review the At-Risk Collections Statement. In connection with such review, Purchaser will make available to the Securityholders’ Agent and its accountants all records and work papers in Purchaser’s possession or reasonably available to Purchaser relating to the Acquired Company and Purchaser’s calculation of the At-Risk Collections Payment that the Securityholders’ Agent and such accountants reasonably request in reviewing the At-Risk Collections Statement, and Purchaser will make available to the Securityholders’ Agent and such advisors, at reasonable times and in a manner that does not unreasonably interfere with Purchaser’s business operations, the personnel and other advisors of Purchaser involved in the preparation of the At-Risk Collections Statement. (iv) At or before 5:00 p.m. Eastern Time on the last day of the At-Risk Collections Review Period (the “At-Risk Collections Objection Deadline”), the Securityholders’ Agent may object to the At-Risk Collections Statement by delivering to Purchaser a written statement (an “At-Risk Collections Objection Notice”) setting forth objections, in reasonable detail, indicating each disputed item or amount and the basis for the Securityholders’ Agent’s disagreement therewith (the “At-Risk Collections Objections”). If the Securityholders’ Agent fails to deliver an At-Risk Collections Objection Notice at or before the At-Risk Collections Objection Deadline, the At-Risk Collections Statement and amounts reflected therein shall be deemed to have been accepted by the Securityholders’ Agent. If the Securityholders’ Agent delivers an At-Risk Collections Objection Notice at or before the At-Risk Collections Objection Deadline,
3 4897-9174-6440.v17 Purchaser and the Securityholders’ Agent shall negotiate in good faith to resolve the At- Risk Collections Objections within thirty (30) calendar days after the delivery of the At- Risk Collections Objection Notice (the “At-Risk Collections Negotiation Period”). To the extent At-Risk Collections Objections are resolved within the At-Risk Collections Negotiation Period, such resolution shall be documented in writing and signed by Purchaser and the Securityholders’ Agent, whereupon such resolution of such At-Risk Collections Objections shall be final and binding on the Parties. (v) If the Securityholders’ Agent and Purchaser fail to reach an agreement with respect to any of the At-Risk Collections Objections before the end of the At-Risk Collections Negotiation Period, then any matters remaining in dispute (“At-Risk Collections Unsettled Matters”) shall be submitted once for resolution to the Auditor and the Securityholders’ Agent and Purchaser shall instruct the Auditor to (i) limit the scope of the Auditor’s engagement to only resolving the Unsettled Matters and determining the At- Risk Collections Payment in accordance with this Agreement; (ii) afford each of Purchaser and the Securityholders’ Agent an opportunity to submit written materials related to the At-Risk Collections Unsettled Matters (a copy of which shall be provided to the other party); (iii) not attribute a value to any single At-Risk Collections Unsettled Matter that is greater than the greatest amount proposed by either party or less than the least amount proposed by either party; and (iv) render a decision no later than sixty (60) calendar days after the Auditor is engaged. The Auditor’s decision shall be final and binding on the Parties and, in the absence of Fraud or manifest error, shall not be subject to appeal, dispute, or further review. (vi) The fees and expenses of the Auditor shall be paid pro rata by Purchaser and the Depositary Receipt Holders, in proportion to the allocation of the dollar amount of the At-Risk Collections Unsettled Matters between Purchaser and the Depositary Receipt Holders such that the party prevailing on the greater dollar value of such At-Risk Collections Unsettled Matters pays the lesser proportion of the fees and expenses. For example, if the Securityholders’ Agent challenges items underlying the calculation of the At-Risk Collections Payment in the net amount of $100,000 and the Auditor determines that the Securityholders’ Agent has a valid claim for $40,000 of the $100,000, then the Depositary Receipt Holders shall bear sixty percent (60%) and Purchaser shall bear forty percent (40%) of the fees and expenses of the Auditor. (vii) Within five (5) Business Days after the At-Risk Collections Statement becomes final and binding in accordance with this Section 1.3(b), the At-Risk Collections Payment determined in such final At-Risk Collections Statement shall be made promptly in the manner described in Section 1.4(b)(ii). For the avoidance of doubt, no At- Risk Collections Payment shall be payable with respect to any aircraft that is not subject to a Service Agreement or an At-Risk LOI. (viii) Notwithstanding anything to the contrary contained in this Agreement, neither Purchaser nor any Acquired Company shall have any obligation to operate the business in a manner intended to maximize collections, pursue any particular collection strategy, continue any Servicing Agreement, enforce any rights thereunder or take or refrain from taking any action with respect to the timing or amount of collection; provided; that Purchaser and its Affiliates and any of their successors or assigns shall refrain from taking any action with the intent of reducing the At-Risk Collections Payments; provided, further, that Purchaser shall not amend or modify any Servicing Agreement in a manner that would be reasonably expected to decrease the amount of any
4 4897-9174-6440.v17 At-Risk Collections Payment without prior consent of the Securityholders’ Agent (not to be unreasonably withheld, conditioned or delayed) and that any cost of cash flow, including debt interest cost and amortization, attributable to a portfolio of Aircraft that includes Aircraft other than the Aircraft set forth in Part 1.3(b)(viii) of the Disclosure Schedule shall be allocated to the relevant Aircraft on a commercially reasonable and equitable pro-rated basis. (ix) All At-Risk Collections Payments shall be subject to Sections 1.6, 10.8 and 11.1(b) and may be withheld, offset or set off by Purchaser to the same extent as any other amounts payable to the Depositary Receipt Holders pursuant to this Agreement. 1.4 Treatment of Depositary Receipts. (a) Treatment of Depositary Receipts. Each Outstanding Depositary Receipt shall be cancelled as of the Closing and, subject to Sections 1.6, 1.7, 10 and 11.1(b), each Depositary Receipt Holder (including any Seller) shall be entitled to receive for each such Outstanding Depositary Receipt, an amount in cash equal to the Residual Per Share Amount and the applicable Per Share At-Risk Collections Payment Amount, if any. A portion of the aggregate Residual Per Share Amount shall, subject to Section 1.4(b)(ii), be paid to such Depositary Receipt Holder at or promptly following the Closing and the remainder shall be deposited into the Indemnity Escrow Fund pursuant to Section 1.7. The Foundation hereby irrevocably instructs Purchaser, acting solely as payment agent on behalf of the Foundation and for administrative convenience only, to deduct from the consideration that is otherwise payable to the Foundation pursuant to Section 1.3(a), and pay or cause to be paid to each Depositary Receipt Holder, the consideration set forth in this Section 1.4(a) in accordance with the terms of this Agreement. Prior to the Closing, the Company and the Foundation shall take all action that may be necessary or required (under any Equity Incentive Plan, any applicable Legal Requirement, any applicable option award agreement or otherwise) to effectuate the provisions of this Section 1.4(a), including providing notice to each Depositary Receipt Holder in accordance with the requirements of any Equity Incentive Plan or related agreement, and to ensure that, from and after the Closing, each Depositary Receipt Holder shall have no rights with respect thereto, except the right to receive the consideration specified in this Section 1.4(a). For the avoidance of doubt, the Residual Per Share Amount shall be made solely out of, and as a deduction from, the consideration payable to the Foundation in exchange for the Outstanding Class P Shares held by the Foundation, and no holder of a Depositary Receipt shall have any direct claim against Purchaser with respect to the consideration payable pursuant to this Section 1.4, it being understood that this Section 1.4 solely governs the administrative payment mechanism established hereunder and shall not be construed to limit any other rights or remedies that any party may have under this Agreement or applicable law. (b) Acknowledgment; Payment (i) Sellers hereby expressly request, acknowledge and agree to the treatment of such Depositary Receipt Holder’s Outstanding Depositary Receipts in accordance with the terms of this Section 1.4. (ii) Following the Closing, the Foundation, acting through Purchaser solely as payment agent on behalf of the Foundation and for administrative convenience only, shall cause to be paid: (A) through the Company’s standard payroll practice, to the Depositary Receipt Holders holding Outstanding Depositary Receipts with respect to which any Acquired Company has any Tax withholding obligations, the consideration specified in Section 1.4(a) (subject to applicable Tax withholding), without interest; and (B) by the Payment Agent to each Depositary Receipt Holder holding Outstanding Depositary Receipts with respect to which no Acquired Company or the Purchaser has any
5 4897-9174-6440.v17 Tax withholding obligations (“Non-Withholding Depositary Receipts”), who delivers a duly executed IRS Form W-8 to Purchaser, the consideration specified in Section 1.4(a), without interest; provided, however, that Purchaser shall have no obligation to pay or cause to be paid any amount to any Depositary Receipt Holder in accordance with this Section 1.4(b)(ii) until such time as such Depositary Receipt Holder shall have duly executed and delivered a Depositary Receipt Surrender Agreement to Purchaser. (c) Depositary Receipt Surrender Agreement. Each Depositary Receipt Holder shall be required to, and prior to the Closing the Company shall cause each Depositary Receipt Holder to, execute and deliver to Purchaser a Depositary Receipt Surrender Agreement, substantially in the form of Exhibit C, effectuating the provisions of Sections 1.4(a), 10 and 11.1(b) (an “Depositary Receipt Surrender Agreement”). The Company shall provide Purchaser with a copy of each Depositary Receipt Surrender Agreement promptly following its execution. 1.5 Consideration Spreadsheet. At least three (3) Business Days prior to the Closing Date, the Securityholders’ Agent shall prepare and deliver to Purchaser the Consideration Spreadsheet, containing all of the information identified on Schedule 1.5, in form and substance reasonably satisfactory to Purchaser, together with documentation reasonably satisfactory to Purchaser in support of the calculation of the amounts set forth therein. Following delivery of the Consideration Spreadsheet, the Company and its representatives involved in the preparation of the Consideration Spreadsheet shall cooperate in good faith to answer any questions and resolve any issues raised by Purchaser and its representatives in connection with their review of the Consideration Spreadsheet. Purchaser shall have the right to review and comment on the Consideration Spreadsheet and the Securityholders’ Agent shall consider any comments made by Purchaser in good faith; provided, however, if the parties are unable to agree in good faith on the Consideration Spreadsheet, either party may elect to terminate this Agreement in accordance with Section 9. 1.6 Withholding. Notwithstanding anything to the contrary contained in this Agreement, Purchaser, each Acquired Company and their respective agents shall be entitled to deduct and withhold from any amounts payable pursuant to this Agreement such amounts as Purchaser or an Acquired Company determines in good faith are required to be deducted or withheld therefrom or in connection therewith under the Code, or any provision of state, local or foreign Tax-related Legal Requirements or under any other Legal Requirement. If Purchaser or an Acquired Company or any of their respective agents determines that it must withhold from any sums payable to any Seller pursuant to this Agreement, (a) the Purchaser or such Acquired Company shall notify such Seller of its intention to withhold prior to such withholding, (b) the Purchaser or such Acquired Company shall provide such Seller with the legal basis for such withholding, (c) the Purchaser or such Acquired Company and the Seller shall each use commercially reasonable efforts to cooperate with each other to eliminate or reduce the basis for such deduction or withholding, and (d) in the event such withholding is made, the Purchaser or such Acquired Company shall provide such Seller with a receipt or other proof of payment evidencing such withholding. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid. 1.7 Escrow Contributions. At or promptly after the Closing, Purchaser shall (a) deduct from the consideration payable to each Seller Indemnitor in accordance with Sections 1.3(a) and 1.4 and (b) cause to be delivered to the Escrow Agent in cash as a contribution to the Indemnity Escrow Fund, an amount equal to such Seller Indemnitor’s Pro Rata Share of the Escrow Amount. The Indemnity Escrow Fund (x) shall be held by the Escrow Agent in accordance with the terms of this Agreement and the terms of the Escrow Agreement, (y) except as otherwise provided by any Legal Requirement, shall be held as a trust fund and shall not be subject to any Lien, attachment, trustee process or other judicial process of any creditor of any Person and (z) shall be held and disbursed solely for the purposes, and in accordance with
6 4897-9174-6440.v17 the terms of this Agreement and the Escrow Agreement. Neither the Indemnity Escrow Fund (or any portion thereof) nor any beneficial or other interest therein may be pledged, subjected to any Lien, sold, assigned or transferred by any Seller Indemnitor. 1.8 Closing. (a) Closing. The consummation of the Share Purchase and the other Contemplated Transactions that are required to be consummated concurrently with the Share Purchase ( “Closing”) shall take place on a date to be designated by Purchaser, which shall be no later than the fifth (5th) Business Day after the satisfaction or waiver of the last to be satisfied or waived of the conditions set forth in Sections 7 and 8 (other than those conditions which are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions), or at such other time and/or date as Purchaser and the Company may jointly designate. The date on which the Closing actually takes place is referred to in this Agreement as the “Closing Date.” The Closing shall be effected by the execution before the Notary of the Deed of Transfer, upon which the transfer of the Outstanding Company Shares shall be completed in accordance with applicable Dutch law. Any other Contemplated Transactions shall be completed by way of a virtual closing through the electronic exchange of signatures at 10:00 a.m. (New York Time) on the Closing Date, it being understood that such Closing shall only occur upon execution of the Deed of Transfer before the Notary. (b) Sellers and Company Closing Deliverables. At the Closing, the Sellers and the Company shall deliver or cause to be delivered to Purchaser each of the agreements, documents and instruments set forth on Schedule 1.8(b), each of which shall be in full force and effect. (c) Purchaser Closing Deliverables. At the Closing, Purchaser shall: (i) transmit to the Payment Agent, for further distribution to each of the following Persons, in each case, by wire transfer of immediately available funds to such Person’s account set forth in the Consideration Spreadsheet: (A) to each Seller (except for the Foundation), the consideration payable in respect of such Seller’s Outstanding Company Shares pursuant to Sections 1.2 and 1.3(a), as set forth in the Consideration Spreadsheet; (B) to each Depositary Receipt Holder holding Non-Withholding Depositary Receipts, the consideration payable in respect of such Non-Withholding Depositary Receipts pursuant to Section 1.4(a), as set forth in the Consideration Spreadsheet; (C) to each creditor of any Acquired Company that delivers a Payoff Letter, the portion of the Debt Amount set forth in such Payoff Letter, as set forth in the Consideration Spreadsheet; (D) to each Person entitled to receive a payment that constitutes an unpaid Company Transaction Expense that is not subject to Tax withholding by any Acquired Company or Purchaser, such payment, as set forth in the Consideration Spreadsheet; (E) to the payroll account of the applicable Acquired Company, (A) the consideration payable pursuant to Section 1.4(a) in respect of each Outstanding Depositary Receipt that is subject to Tax withholding by such Acquired Company or Purchaser, and (B) any payment that constitutes a Company Transaction Expense that is
7 4897-9174-6440.v17 subject to Tax withholding by such Acquired Company or Purchaser, in the case of each of clauses “(A)” through “(B),” as set forth in the Consideration Spreadsheet; (F) to the Escrow Agent, the Escrow Amount; and (G) to the Securityholders’ Agent, the Expense Fund Amount. (ii) deliver to Sellers and the Escrow Agent, the Escrow Agreement, duly executed by Purchaser; (iii) deliver to Sellers, the Purchaser Closing Certificate; and (iv) deliver to the Notary (a) powers of attorney, in a form proposed by the Notary, duly executed by Purchaser, authorising the Notary to execute the Deed of Transfer on its behalf, and, where required, notarized and apostilled and (b) such confirmation statement(s) as may be required for the execution of the Deed of Transfer by the Notary. 1.9 Allocation of Consideration. Each Seller hereby acknowledges and agrees that the payment by or on behalf of Purchaser to such Seller and, in case of the Foundation, to the Depositary Receipt Holders pursuant to Section 1.4, of the amounts contemplated by the Consideration Spreadsheet as owed to such Seller and to the Depositary Receipt Holders (the “Consideration”) shall, subject to Sections 1.3(b), 1.6, 1.7, 10 and 11.1(b), collectively constitute all amounts owed to such Seller by Purchaser pursuant to, and shall fully satisfy and extinguish all obligations and Liabilities owed to such Seller under this Agreement, regardless of whether such obligations and Liabilities have arisen at the Closing or would otherwise arise after the Closing. 1.10 Further Action. If, at any time after the Closing, any further action is reasonably determined by Purchaser to be reasonably necessary to carry out the purposes of this Agreement or the Contemplated Transactions or to vest Purchaser with full right, title and possession of and to all Outstanding Company Shares and securities, rights and property of the Company, the officers and directors of Purchaser shall be fully authorized (in the name of the Company, each Seller and otherwise) to take such action. 2. REPRESENTATIONS AND WARRANTIES RELATING TO THE COMPANY Except as specifically set forth in the corresponding part of the Disclosure Schedule prepared by the Company in accordance with Section 11.18 and delivered to Purchaser prior to the execution and delivery of this Agreement, the Company represents and warrants, to and for the benefit of Purchaser Indemnitees (with the understanding and acknowledgement that Purchaser would not have entered into this Agreement without being provided with the representations and warranties set forth in this Section 2 and that Purchaser is relying on these representations and warranties along with other information provided by the Company and its Representatives), as follows: 2.1 Organizational Matters. (a) Organization, Standing and Power to Conduct Business. Each Acquired Company (i) has been duly organized or incorporated, and is validly existing and in good standing (to the extent such concept exists in the relevant jurisdiction) under the laws of the jurisdiction of its organization or incorporation, (ii) has the requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted and as currently planned by such Acquired Company to be conducted and (iii) is duly qualified, licensed and admitted to do business, and is in good standing (to the
8 4897-9174-6440.v17 extent such concept exists in the relevant jurisdiction), in each jurisdiction in which such qualification, license or admission is necessary, other than failures to be so qualified, licensed or admitted that, individually or in the aggregate, will not, and would not reasonably be expected to, result in a material Liability to any Acquired Company. Part 2.1(a) of the Disclosure Schedule accurately sets forth each jurisdiction where each Acquired Company is qualified, licensed or admitted to do business. (b) Charter Documents. The Company has Made Available to Purchaser accurate and complete copies of the Charter Documents of each Acquired Company, as amended to date and currently in effect. There has been no violation of any of the provisions of the Charter Documents of any of the Acquired Companies, and no Acquired Company has taken any action that is inconsistent in any material respect with any resolution adopted by such Acquired Company’s shareholders or board of directors or board of supervisors (or other similar body) or any committee of the board of directors or board of supervisors (or other similar body) of such Acquired Company. (c) Directors and Officers. Part 2.1(c) of the Disclosure Schedule accurately sets forth: (i) the names of the members of the board of directors or board of supervisors (or similar body) of each Acquired Company; (ii) the names of the members of each committee of the board of directors or board of supervisors (or similar body) of each Acquired Company; and (iii) the names and titles of the members of the board of management (or similar body) or officers of each Acquired Company. (d) Subsidiaries. Part 2.1(d) of the Disclosure Schedule sets forth a complete and accurate list of each Entity in which any Acquired Company owns, holds or has any right to acquire any share capital or other equity, voting, financial, beneficial or ownership interest and the jurisdiction of organization or incorporation of such Entity. Except for the equity interests identified in Part 2.1(d) of the Disclosure Schedule, none of the Acquired Companies has ever owned, beneficially or otherwise, any shares or other securities of, or any direct or indirect equity, voting, financial, beneficial or ownership interest in, any Entity. None of the Acquired Companies has agreed or is obligated to make any future investment in, or capital contribution to, any Entity. None of the Acquired Companies has guaranteed, or is responsible or liable for, any obligation of any other Entity. (e) Powers of Attorney. Except as set forth in Part 2.1(e) of the Disclosure Schedule, there are no outstanding powers of attorney executed by or on behalf of any Acquired Company (except for any power of attorney executed on behalf of a Subsidiary of the Company in favor of the Company) 2.2 Capital Structure. (a) Company Shares. (i) The issued share capital of the Company as of the date of this Agreement consists of: (A) 1,000 Class A Shares, of which, 490 Class A Shares are held by the Company; and (B) 8,500 Class P Shares. (ii) All of the Company Shares have been duly authorized and validly issued, are fully paid and non-assessable, and are not subject to any preemptive rights. No Company Shares are subject to any right of repurchase, option or forfeiture provision or any restriction on transfer (other than restrictions on transfer imposed by virtue of applicable securities laws). (iii) Part 2.2(a)(iii) of the Disclosure Schedule sets forth an accurate and complete list of the holders of all the Company Shares, the class, series and number of Company Shares owned of record by each such holder, the aggregate amount invested by
9 4897-9174-6440.v17 each such holder in each class and series of Company Shares held by such holder, and the aggregate amount of all accrued and unpaid dividends on such Company Shares as of the date of this Agreement determined in accordance with the terms of the Company’s Articles of Association, as amended. (iv) Part 2.2(a)(iv) of the Disclosure Schedule sets forth an accurate and complete list of the Depositary Receipt Holders, the number of Depositary Receipts owned by each Depositary Receipt Holder and the class, series and number of Company Shares underlying each Depositary Receipt owned by such holder. The Company has issued one Class P Share to the Foundation in respect of each Depositary Receipt that is issued and outstanding. (b) No Other Securities. Except as set forth in Section 2.2(a), there is no (i) outstanding Acquired Company Equity Right, (ii) outstanding Acquired Company Convertible Security, (iii) Contract pursuant to which any Acquired Company is or may become obligated to sell, grant, deliver or otherwise issue any share capital or any other security, including any promise or commitment to grant or issue any security of any Acquired Company to an employee of, or other provider of services to, any Acquired Company, (iv) Contract pursuant to which any Acquired Company is or may become obligated to issue, distribute or otherwise deliver to any holder of any share capital any evidence of indebtedness or asset of any Acquired Company, or (v) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person owns, or is entitled to acquire or receive, any share capital or other security of any Acquired Company. Except as set forth in Part 2.2(b) of the Disclosure Schedule, the Company has never issued any restricted shares or restricted share units. (c) No Agreements. Except as set forth on Part 2.2(c) of the Disclosure Schedule, there is no Company Contract relating to any securities of the any Acquired Company that contains any information rights, registration rights, financial statement requirements or other terms that would survive the Closing unless terminated or amended prior to the Closing. (d) Compliance with Laws. All Company Shares and all other securities that have ever been issued or granted by any Acquired Company, and all Depositary Receipts that have ever been issued or granted by the Foundation, have been issued and granted in material compliance with: (i) all applicable securities laws and all other applicable Legal Requirements; and (ii) all requirements set forth in all applicable Contracts (including any Equity Incentive Plan) and in all Charter Documents of the Acquired Companies and the Foundation. No Company Shares or any other security issued by any Acquired Company was issued in violation of any statutory or contractual preemptive right or any other right to subscribe for or purchase any security of any Acquired Company. (e) Repurchased Shares. All share capital ever repurchased, redeemed, converted or canceled by any Acquired Company were repurchased, redeemed, converted or canceled in material compliance with (A) all applicable securities laws, corporate statutes and other applicable Legal Requirements and (B) all requirements set forth in all applicable Contracts and in all Charter Documents of the Acquired Companies. (f) Consideration. No Person will be entitled to receive any payment or consideration as a result of the Share Purchase or any of the other Contemplated Transactions, other than: (i) the holders of Outstanding Company Shares, specifically as set forth in the Consideration Spreadsheet; (ii) the Depositary Receipt Holders, specifically as set forth in the Consideration Spreadsheet; and (iii) the other recipients of payments, specifically as set forth in the Consideration Spreadsheet.
10 4897-9174-6440.v17 (g) Subsidiary Shares. All of the share capital, and other equity, voting, beneficial or ownership interests in, each Acquired Company (other than the Company) are owned by another Acquired Company free and clear of any Liens. All issued shares of each Acquired Company are fully paid or credited as fully paid. No Acquired Company has the right to vote on or approve the Share Purchase or any of the other Contemplated Transactions. None of the Company Shares, and no other equity, voting, beneficial, financial or ownership interest in, any Acquired Company is subject to any voting trust agreement or any other Contract relating to the voting, dividend rights or disposition of any share capital of, or any other equity, voting, beneficial, financial or ownership interest in, such Acquired Company. There are no preemptive rights applicable to any equity interest of any Subsidiary of the Company. 2.3 Authority and Due Execution. (a) Authority. The Company has all requisite corporate power and authority to enter into this Agreement and each other Company Transaction Document and to consummate the Contemplated Transactions. The execution, delivery and performance of this Agreement and the other Company Transaction Documents by the Company, and the consummation of the Contemplated Transactions, have been duly authorized by all necessary corporate action on the part of the Company, including the approval by the holders of Company Shares, and no other corporate proceedings on the part of the Company or any other Acquired Company are necessary to authorize the execution, delivery or performance of this Agreement or any of the other Company Transaction Documents by the Company or to consummate any of the Contemplated Transactions. (b) Due Execution. This Agreement has been, and each other Company Transaction Document has been or will be, duly executed and delivered by the Company and, assuming due execution and delivery by the other parties hereto and thereto, constitutes or will constitute the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject only to the Enforceability Exception. 2.4 Non-Contravention and Consents. (a) Non-Contravention. The execution and delivery of this Agreement and the other Transaction Documents do not, and the consummation of the Contemplated Transactions and the performance of this Agreement and the other Transaction Documents will not: (i) conflict with or violate any of the Charter Documents of any Acquired Company or any resolution adopted by the shareholders (or holders of other equity securities), the board of directors or board of supervisors (or other similar body) or any committee of the board of directors or board of supervisors (or other similar body) of any of the Acquired Companies; (ii) conflict with or violate any applicable Legal Requirement to which any of the Acquired Companies or any of the assets owned or used by any of the Acquired Companies, is subject; (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a material default) under, or impair the rights of any Acquired Company or alter the rights or obligations of any Person under, or give to any Person any right of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any of the assets of any Acquired Company pursuant to, any Company Contract; or
11 4897-9174-6440.v17 (iv) contravene or conflict with in any material respect or result in a material violation of any of the terms or requirements of, or give any Governmental Entity the right to revoke, withdraw, suspend, cancel, terminate or materially modify, any Permit that is held by any of the Acquired Companies or that otherwise relates to any Acquired Company’s business or to any of the assets owned or used by any Acquired Company. (b) Contractual Consents. Except as set forth in Part 2.4(b) of the Disclosure Schedule, no Consent under any Company Contract is required to be obtained, and no Acquired Company is or will be required to give any notice to, any Person in connection with the execution, delivery or performance of this Agreement or any other Transaction Document or the consummation of the Share Purchase or any of the other Contemplated Transactions. For purposes of this Agreement, including this Section 2.4(b) and Sections 2.4(c), 2.12(c) and 6.1, a Consent or Permit will be deemed “required” to be obtained, a notice will be deemed “required” to be given and a filing or declaration will be deemed “required” to be made if the failure to obtain such Consent or Permit, give such notice or make such filing or declaration could result in any Acquired Company (i) becoming subject to any Liability, (ii) being required to make any payment, issue any securities or deliver anything of value or (iii) losing or forgoing any right or benefit. (c) Governmental Consents. No Consent of any Governmental Entity is required to be obtained, and no filing is required to be made with any Governmental Entity, by any Acquired Company or any ultimate parent entity of any Acquired Company in connection with the execution, delivery or performance of this Agreement or any other Transaction Document, or the consummation of the Share Purchase or any of the other Contemplated Transactions. 2.5 Financial Statements. (a) Financial Statements. The Company has Made Available to Purchaser the Financial Statements. The Financial Statements were prepared in accordance with Dutch GAAP consistently applied throughout the periods covered and in accordance with the Company’s historic past practice and fairly present in all material respects the consolidated financial position, results of operations and cash flows of Acquired Companies as of the dates, and for the periods, indicated therein. Each Acquired Company maintains a standard system of accounting established and administered in accordance with Dutch GAAP, including complete books and records in written or electronic form. (b) Internal Controls. Each Acquired Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with Dutch GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. There are no significant deficiencies or material weaknesses in the design or operation of any Acquired Company’s internal control over financial reporting that could reasonably be expected to adversely affect such Acquired Company’s ability to record, process, summarize or report financial information to such Acquired Company’s management and board of directors or board of supervisors (or other similar body). There is not, and there has not been, any fraud, whether or not material, that involves or involved any member of management or any other employee who has or had a significant role in such Acquired Company’s internal control over financial reporting. (c) Accounts Receivable; Accounts Payable. All of the accounts receivable of the Acquired Companies arose in the ordinary course of business, are carried on the records of the Acquired
12 4897-9174-6440.v17 Companies at values determined in accordance with Dutch GAAP and are bona fide. No Person has any Lien on any of such accounts receivable, and no request or agreement for deduction or discount has been made with respect to any of such accounts receivable except as fully and adequately reflected in reserves for doubtful accounts set forth in the unaudited balance sheet included in Locked Box Financial Statements. All accounts payable and notes payable of the Acquired Companies: (i) are the result of bona fide transactions in the ordinary course of business consistent with past practices and (ii) have been paid or are not yet due and payable as of the date hereof. (d) Certain Accounting Practices. Since January 1, 2022, no Acquired Company has changed, in any material respect, its methods of accounting, accounting principles, accounting practices, collection practices or credit policy. 2.6 No Liabilities; Indebtedness. (a) Absence of Liabilities. No Acquired Company has any Liability of any nature, other than (i) liabilities identified as such in the “liabilities” column of the balance sheet included in the Locked Box Financial Statements; (ii) current liabilities incurred subsequent to the Locked Box Date in the ordinary course of business consistent with past practices; (iii) obligations that (A) exist under Company Contracts, (B) are expressly set forth in and identifiable by reference to the text of such Company Contracts and (C) are not required to be identified as liabilities in a balance sheet prepared in accordance with Dutch GAAP; and (iv) commitments that (A) were incurred in the ordinary course of business consistent with past practices since the Locked Box Date, and (B) are described in Part 2.6(a) of the Disclosure Schedule. The liabilities and obligations referred to in clauses “(ii)” and “(iii)” of the preceding sentence are not material, individually or in the aggregate, to the financial position, results of operations or cash flows of the Acquired Companies. (b) Indebtedness. Part 2.6(b) of the Disclosure Schedule sets forth an accurate and complete list of all Company Indebtedness as of the date of this Agreement, identifying the name of the creditor or creditors to which such Indebtedness is owed, the type of instrument under which such Indebtedness is evidenced or the agreement under which such Indebtedness was incurred and the aggregate principal amount of such Indebtedness as of the close of business on the date of this Agreement. Except as set forth on Part 2.6(b) of the Disclosure Schedule, no Company Indebtedness contains any restriction upon: (i) the prepayment of any of such Indebtedness; (ii) the incurrence of any other Indebtedness by any Acquired Company; or (iii) the ability of any Acquired Company to grant any Lien on any of its assets. None of the Acquired Companies is in default with respect to any Company Indebtedness and no payment with respect to any Company Indebtedness is past due. None of the Acquired Companies has received any notice of a default, alleged failure to perform or any offset or counterclaim with respect to any Company Indebtedness. Neither the consummation of any of the Contemplated Transactions nor the execution, delivery or performance of any Transaction Document will, or would reasonably be expected to, cause or result in a default, breach or acceleration, automatic or otherwise, of any condition, covenant or other term of any Company Indebtedness. None of the Acquired Companies has guaranteed or otherwise become liable for any Indebtedness of any other Person (other than another Acquired Company). (c) Director and Officer Indemnification. No event has occurred, and no circumstance or condition exists, that has resulted in, or that will or could reasonably be expected to result in, any claim for indemnification, reimbursement or contribution by, or the advancement of any expense to, any Company Associate (other than a claim for reimbursement from the Company, in the ordinary course of business, of immaterial travel expenses or other immaterial out-of-pocket expenses of a routine nature incurred by such Company Associate in the course of performing such Company Associate’s duties for the Company) or any current or former agent of any Acquired Company pursuant to: (i) any term of any of the Charter Documents
13 4897-9174-6440.v17 of any Acquired Company; (ii) any indemnification agreement or other Contract between any Acquired Company and any such Company Associate or agent; or (iii) any applicable Legal Requirement. (d) Claims by Securityholders. No event has occurred, and no circumstance or condition exists, that has resulted in, or that will or would reasonably be expected to result in, any Acquired Company incurring any Liability to, or any basis for any claim against any Acquired Company by, any current, former or alleged holder of share capital or other securities of any Acquired Company. 2.7 Litigation. There is no Legal Proceeding pending, or, to the Knowledge of the Company, that has been threatened: (a) that involves any of the Acquired Companies or any of the assets owned or used by any of the Acquired Companies; (b) that involves any Liability (of any managing director, supervisory director, director, officer or other employee or service provider or any other Person) that has been retained or assumed, indemnified against or guaranteed (either contractually or by operation of any Legal Requirement) by any Acquired Company; (c) that challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with, the Share Purchase or any of the other Contemplated Transactions; (d) that relates to the ownership or alleged ownership of any share capital or other securities of any of the Acquired Companies, or any option, warrant or other right to acquire share capital or other securities of any of the Acquired Companies; or (e) that relates to any right or alleged right to receive any consideration as a result of or in connection with this Agreement, any other Transaction Document, the Share Purchase or any other Contemplated Transaction. No event has occurred, and no claim, dispute or other condition or circumstance exists, that will or would reasonably be expected to give rise to or serve as a basis for the commencement of any such Legal Proceeding. Part 2.7 of the Disclosure Schedule lists: (i) each Legal Proceeding that any Acquired Company has commenced against any other Person; (ii) any Legal Proceeding that any Acquired Company has threatened against any other Person; and (iii) each Legal Proceeding that has ever been pending against any of the Acquired Companies since January 1, 2021. 2.8 Taxes. (a) (i) Except as disclosed in Part 2.8(a) of the Disclosure Schedule, all income Tax Returns and all other material Tax Returns required to be filed by, on behalf of or with respect to any of the Acquired Companies have been duly, correctly and timely filed with the appropriate Taxing Authority; (ii) all items of income, profit, wages, turnover, gain, loss, deduction and credit or other items (“Tax Items”) required to be included in each such Tax Return have been so included and all such Tax Items and any other information provided in each such Tax Return is accurate and complete; (iii) all income Taxes and all other material Taxes owed by each of the Acquired Companies or for which any of the Acquired Companies is liable that are or have become due, whether or not shown on a Tax Return, have been duly, correctly and timely paid in full; (iv) no penalty, surcharge, fine, interest or other charge is or will become due with respect to the late filing of any such Tax Return or late payment of any such Tax; (v) all Tax withholding and deposit requirements imposed on or with respect to any of the Acquired Companies have been satisfied in full; (vi) each of the Acquired Companies has given all notices and complied with all related Tax information requests from any Taxing Authorities. Each of the Acquired Companies complied with all information reporting and record keeping requirements under applicable Legal Requirements, including by retaining and maintaining all Tax records and related or supporting documentation and all records and data relating to electronic information systems in their proper form for at least the minimum retention period in order to comply with Tax law and such records are duly kept and are available for inspection at the Acquired Companies’ premises; and (vii) there are no Liens on any of the assets of the Acquired Companies that arose in connection with any failure (or alleged failure) to pay any Tax. The Financial Statements properly and adequately accrue or reserve for Tax Liabilities in accordance with Dutch GAAP, as of the respective dates thereof. Each Acquired Company has duly submitted all elections, claims and disclaimers which have been assumed to have been made for purposes of computing any provisions for Tax in the Financial
14 4897-9174-6440.v17 Statements. Each Acquired Company has disclosed on its Tax Returns any Tax reporting position taken which could result in the imposition of penalties under Section 6662 of the Code (or any comparable provisions of any state, local or non-U.S. Tax-related Legal Requirement). There are no unpaid Taxes of any of the Acquired Companies that are attributable to the portion of any Straddle Period ending on the Closing Date (as determined in accordance with the definition of “Straddle Period” in Exhibit A). (b) Part 2.8(b) of the Disclosure Schedule: (i) lists all Tax Returns filed or required to be filed with respect to each of the Acquired Companies for the six taxable years ending prior to the Closing Date; (ii) indicates those Tax Returns that are currently the subject of audit; and (iii) indicates those Tax Returns whose audits have been closed. The Company has Made Available to Purchaser accurate and complete copies of all Tax Returns filed by each such Acquired Company during the past six years and all correspondence to any Acquired Company from, or from any Acquired Company to, a Taxing Authority relating thereto. (c) No assessment, deficiency or adjustment has been asserted, proposed or threatened with respect to any Tax Return or Taxes of or with respect to any of the Acquired Companies, other than (i) those disclosed in Part 2.8(c) of the Disclosure Schedule and (ii) any assessment, deficiency or adjustment that has been settled or paid in full. No Tax audit or administrative or judicial proceeding is being conducted, is pending or has been threatened with respect to any of the Acquired Companies, other than those disclosed in Part 2.8(c) of the Disclosure Schedule. No claim has ever been made by any Taxing Authority in a jurisdiction where any Acquired Company does not file Tax Returns that such Acquired Company is or may be subject to taxation in that jurisdiction. (d) No extension of time with respect to the due date for the filing of any Tax Return of any of the Acquired Companies other than those disclosed in Part 2.8(d) of the Disclosure Schedule, and no waiver or agreement for any extension of time for the assessment or payment of any Tax of any of the Acquired Companies, is in force and will remain in effect after the Closing Date. (e) Each of the Acquired Companies has withheld and paid over to the appropriate Taxing Authority all Taxes that it is required to withhold from amounts paid or owing to any Company Associate, independent contractor, creditor, member or other Person and has complied in all respects with all applicable Legal Requirements relating to the payment, reporting, collection or withholding of Taxes (including sales Taxes or withholding of Taxes from the wages of Company Associates or other amounts paid or owing to any creditor, shareholder or other third party). Each Acquired Company has remitted all payroll Taxes, social security contributions, provincial pension plan contributions, employment insurance premiums, employer health taxes and other Taxes payable by it in respect of Company Associates to the proper Governmental Entity within the time and in the manner required under applicable Legal Requirements. (f) Neither in the current financial year nor in the preceding 6 (six) financial years has any Acquired Company claimed, utilized or requested exemptions from Tax, roll-over relief, deferrals in relation to Tax or other Tax facilities, including exemptions, roll-over relief, deferrals or other Tax facilities relating to reorganizations or mergers or made a depreciation, which on or after the Closing Date is still subject to a claw back or provision or any other comparable provision under any applicable Law. (g) A list of each jurisdiction where any of the Acquired Companies files Tax Returns or charges and remits sales or use Taxes or VAT is set forth in Part 2.8(g) of the Disclosure Schedule. All necessary sales Tax exemption certificates have been obtained by the Acquired Companies and all such certificates have been properly completed and maintained.
15 4897-9174-6440.v17 (h) Each Acquired Company is validly registered for VAT in any jurisdiction where so required. The Company is not a member of a fiscal unity for Dutch VAT purposes and the Subsidiaries are members of a fiscal unity that does not include any other Person. Each Acquired Company has complied in all respects with all Legal Requirements concerning VAT in each relevant jurisdiction, including with respect to invoices, timely filing of accurate returns, making timely payments and maintaining accurate records. No Acquired Company has made any supplies exempt from VAT in the current or preceding VAT year applicable to it, and there are no circumstances under which there might not be a full entitlement to recover all VAT chargeable on supplies and acquisitions received and imports made (or agreed or deemed to be received or made) by any Acquired Company. No Acquired Company is the grantor or grantee of any interest in land in respect of which an election has been made to waive exemption from VAT or has any interest in any capital items in respect of which it is or may be subject to any restrictions or adjustment of the amount of recovery of input VAT available to it for the purposes of VAT. (i) None of the Acquired Companies is a real estate company pursuant to section 4 of the Dutch Real Estate Transfer Taxes Act (Wet op belastingbelastingen van rechtsverkeer). (j) Each Acquired Company has complied and complies with all administrative requirements relating to the Employment Costs Scheme (Werkkostenregeling) of Section 31a of the Dutch Wage Tax Act 1964 (Wet op de loonbelasting 1964). (k) No Acquired Company is a party to or bound by, or has any obligation under, any Tax allocation, sharing, indemnity or similar agreement or arrangement (other than any agreement that (i) will terminate on or before the Closing Date or (ii) was entered into in the ordinary course of business and is not primarily related to the allocation or sharing of Taxes). (l) None of the property of any Acquired Company is held in an arrangement that is properly classified as a partnership for Tax purposes. (m) No Acquired Company will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any change in method of accounting for a Pre-Closing Tax Period or agreement with any Taxing Authority. (n) There are no self-employed persons or temporary workers who are or at any time have been or should be or have been treated as employee of any Acquired Company for Tax purposes and no self-employed person or temporary worker has ever sought to assert the same. (o) No Acquired Company has entered into any Contract or arrangement with any Taxing Authority that requires such Acquired Company to take any action or to refrain from taking any action. No Acquired Company is a party to any Contract with any Taxing Authority that would be terminated or adversely affected as a result of the consummation of any of the Contemplated Transactions. No Acquired Company is a party to any Tax exemption, Tax holiday, grant (including the innovation box and WBSO) or other Tax reduction agreement or Order of a Taxing Authority. (p) No Acquired Company has participated, within the meaning of Treasury Regulations Section 1.6011-4(c) in any “reportable transaction” or “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b). No Acquired Company is or has been a party to any “reportable transaction” under DAC6 or other mandatory disclosure rules. (q) There is no material property or obligation of any Acquired Company, including uncashed checks to vendors, customers or employees or other service providers, non-refunded
16 4897-9174-6440.v17 overpayments or unclaimed subscription balances, that is escheatable to any state or municipality under any applicable escheatment laws, as of the date hereof or that may at any time after the date hereof become escheatable to any state or municipality under any applicable escheatment Legal Requirements. (r) Each Acquired Company has at all times been resident for Tax purposes only in the jurisdiction of its incorporation, and no Acquired Company is or has at any time been treated as resident in any other jurisdiction for any Tax purpose (including any double taxation arrangement). No Acquired Company is subject to Tax in any jurisdiction, other than the country in which it is incorporated, whether by virtue of having a permanent establishment, permanent representative, branch, taxable presence or other place of business in such jurisdiction or for any other reason. The place of effective management of each Acquired Company is located in the jurisdiction in which the respective Acquired Company is incorporated. No claim has ever been made by a Taxing Authority that any Acquired Company is or may be subject to Tax in a jurisdiction in which it does not file Tax Returns. (s) There are no transactions or arrangements involving any Acquired Company that could allow a Taxing Authority to require an adjustment or otherwise invoke any provision relating to transfer pricing. All Contracts, transactions or arrangements entered into by any Acquired Company, or to which any Acquired Company is a party, have been made on arm’s-length terms in compliance with article 8b of the Dutch corporate income tax 1969, and the Acquired Companies have otherwise complied with all applicable transfer pricing Legal Requirements in all material respects (including the maintenance and retention of documents and transfer pricing reports). (t) No power of attorney that is currently in force has been granted with respect to any matter relating to Taxes that will remain in effect after the Closing Date. No Acquired Company has a request for a private letter ruling, a request for technical advice, a request for a change of any method of accounting, or any other similar request that is in progress or pending with any Taxing Authority with respect to Taxes. There are no closing agreements with respect to Taxes, Tax rulings or written requests for Tax rulings currently outstanding or in effect with respect to any Acquired Company. (u) No Acquired Company has entered into any Contracts, arrangements or transactions (or series of arrangements or transactions) for the main purpose, or one of the main purposes, of which was the avoidance of Tax, or which may (or part of which may) for any Tax purposes be disregarded or reconstructed by any Taxing Authority pursuant to any Legal Requirement. (v) No Acquired Company has any Liability for the Taxes of any Person as a transferee or successor, or by contract, assumption or otherwise. No Acquired Company is, and no Acquired Company has ever been, a member of an affiliated group that files a consolidated, combined, unitary or similar group Tax Return (including a fiscal unity for Dutch or Irish corporate income tax purposes). No Acquired Company has or will have any Liability for Taxes of any Person other than itself. No Acquired Company has any contractual obligation to pay the amount of any Tax benefits or Tax refunds realized or received by such Acquired Company to any other Person. For purposes of this Section 2.8, references to the Acquired Companies shall be deemed to include any Person from which, or with respect to which, any Acquired Company has incurred or may incur any Liability for Taxes under any Contract or any Legal Requirement. 2.9 Title to Property and Assets. (a) Personal Property. Each Acquired Company has good, valid and marketable title to, or valid leasehold interests in, all Company Personal Property. The Company Personal Property constitutes all personal property necessary to conduct each of the businesses of the Acquired Companies as
17 4897-9174-6440.v17 they are currently conducted and as they are currently planned by the Acquired Companies to be conducted. None of the Company Personal Property is subject to any Lien, other than Permitted Liens. All Company Personal Property: (i) is in good operating condition and repair (ordinary wear and tear excepted) and is adequate for the conduct of each of the Acquired Companies’ respective businesses as they are currently conducted and as they are currently planned by the Acquired Companies to be conducted. (b) Leased Real Property. No Acquired Company owns, or has ever owned, any real property. Part 2.9(b) of the Disclosure Schedule sets forth a list of all real property currently leased by any Acquired Company or otherwise used or occupied by any Acquired Company for the operation of its business (the “Leased Real Property”). The Leased Real Property is: (i) in operating condition and repair, and free from structural, physical and mechanical defects; (ii) maintained in a manner consistent with standards generally followed with respect to similar properties; and (iii) available for use in and sufficient for the purposes and current demands of the business and operation of the Acquired Companies as currently conducted and as currently planned by the Acquired Companies to be conducted. With respect to each Leased Real Property lease, the tenant thereunder enjoys peaceful, exclusive and undisturbed use and possession in all material respects of the demised premises thereunder. None of the Acquired Companies has subleased or otherwise granted to any Person the right to use or occupy any Leased Real Property. 2.10 Bank Accounts. Part 2.10 of the Disclosure Schedule provides the following information with respect to each account or safe deposit box maintained by or for the benefit of any Acquired Company at any bank or other financial institution: (a) the name of the bank or other financial institution at which such account or safe deposit box is maintained; (b) as to each such bank account: (i) the account number; (ii) the type of account; (iii) the names of all Persons who are authorized to sign checks or other documents with respect to such account and the authorized powers of each such Person; and (iv) the balance held in such account as of the Locked Box Date; and (c) with respect to each such safe deposit box: (i) the number thereof; and (ii) the names of all Persons having access thereto. 2.11 Intellectual Property and Related Matters. (a) Intellectual Property. (i) Each Acquired Company is not, and has never been, the registered or beneficial owner of, and does not hold any legal or equitable interest in, any Registered IP, nor has any Acquired Company applied for, or is entitled to apply for, the registration of any Intellectual Property Rights in any jurisdiction. (ii) The Acquired Companies collectively are the sole and exclusive owner of all Acquired Company IP, in each case free and clear of all Liens, except where the lack of such sole and exclusive ownership, individually or in the aggregate, has not had and would not reasonably be expected to be material, individually or in the aggregate, to the financial position, results of operations or cash flows of the Acquired Companies. (iii) The Acquired Company IP, together with any Intellectual Property Rights licensed to the Acquired Company, constitutes all Intellectual Property Rights that are used in or necessary to conduct the business of each Acquired Company as conducted and as currently planned by such Acquired Company to be conducted. (iv) The business of the Acquired Companies as at the date of this Agreement, and the conduct of the business at any time prior to Closing, (i) does not and has not infringed, misappropriated, or otherwise violated any Intellectual Property Rights or other proprietary rights of any third party, (ii) has not given rise to any claim, action,
18 4897-9174-6440.v17 proceeding, or dispute (whether current, pending, threatened, or reasonably anticipated) alleging any such infringement, misappropriation, or violation, (iii) does not require any Acquired Company to obtain any license, consent, or permission from any third party in order to lawfully carry on the business as presently conducted or as contemplated at Closing and (iv) has not resulted in the Acquired Companies being subject to any obligation to pay royalties, license fees, or other consideration to any third party in respect of Intellectual Property Rights. (v) To the Knowledge of the Company, no third party is infringing, misappropriating, or otherwise making any unauthorized use of any Intellectual Property Rights owned, used, or purported to be owned or used by any Acquired Company, and no Acquired Company has consented to any such infringement or unauthorized use. (vi) There are no pending, threatened, or reasonably foreseeable claims, challenges, oppositions, revocations, or other proceedings affecting any Intellectual Property Rights of the Acquired Companies, nor any facts or circumstances that are reasonably likely to give rise to any such claim or proceeding. (b) Privacy. The Acquired Companies have, since January 1, 2023, complied, and are currently in compliance with all Privacy Obligations (including with respect to the cross-border transfer of Personal Data). Since January 1, 2023 through the date hereof, there has been no claim, investigation, suit, action or other proceeding pending, and none of the Acquired Companies has received any written notice from any Person, alleging any (a) violation of Privacy Obligations or such Person’s privacy, personal or confidentiality rights or (b) Breach. The Acquired Companies have used commercially reasonable efforts designed to ensure that all service providers, data processors and other third parties that process any Personal Data on behalf of any Acquired Company are bound by valid, written and enforceable agreements including any terms required by applicable Privacy Laws and requiring such third parties to comply with applicable Information Privacy and Security Law and to maintain the privacy, security and confidentiality of such Personal Data. None of the Acquired Companies, since January 1, 2023 through the date hereof, has been required under any applicable Privacy Obligation to provide any notice to any Governmental Entity or Person in connection with any Breach. (c) Information Technology. The IT Systems operate and perform in a manner that permits the conduct of the business of the Acquired Companies as currently conducted and are adequate in all material respects for the purposes for which they are being used or held for use. The Acquired Companies have taken actions, consistent with current industry standards, designed to protect the confidentiality, integrity and security of the IT Systems (including information and transactions stored or contained therein or transmitted thereby) against any breach, unauthorized use, access, interruption, modification or corruption or other compromise (each, a “Breach”). Since January 1, 2023 through the date hereof, (A) there have not been any material Breaches and (B) none of the Acquired Companies has been notified in writing of any Breach. 2.12 Compliance; Permits. (a) Compliance. No Acquired Company has ever failed to comply in any material respect with, or has ever violated in any material respect, any applicable Legal Requirement, and the operation of the business of each Acquired Company complies in all material respects with all applicable Legal Requirements. No investigation or review by any Governmental Entity is pending or, to the Knowledge of the Company, has been threatened against or with respect to any Acquired Company. No event has occurred, and no condition or circumstance exists, that will or would reasonably be expected to (with or without notice or lapse of time) constitute or result in a material violation by any of the Acquired
19 4897-9174-6440.v17 Companies of, or constitute a material failure on the part of any of the Acquired Companies to comply with, any applicable Legal Requirement. None of the Acquired Companies has received any notice or other communication from any Person regarding any actual or possible violation of, or failure to comply with, any applicable Legal Requirement. (b) Orders. There is no Order binding upon any Acquired Company or to which any assets owned or used by any Acquired Company is subject. No Company Associate is subject to any Order that prohibits such Company Associate from engaging in or continuing any conduct, activity or practice relating to any Acquired Company’s business. (c) Permits. Each Acquired Company holds, to the extent required by applicable Legal Requirements, all Permits from, and has made all declarations and filings with, all Governmental Entities for the operation of its business as currently conducted and as it is currently planned by the Acquired Companies to be conducted, including the sale, transport, export, import or shipment of any items or materials (whether in tangible form or otherwise) to any jurisdiction. No suspension or cancellation of any such Permit is pending or, to the Knowledge of the Company, has been threatened. Each such Permit is valid and in full force and effect, and each Acquired Company is and always has been in compliance with the terms, conditions and requirements of each such Permit in all material respects. Part 2.12(c) of the Disclosure Schedule provides an accurate and complete list of all Permits held by each Acquired Company, and the Company has Made Available to Purchaser accurate and complete copies of all such Permits. No Acquired Company has ever received any notice or other communication from any Governmental Entity regarding: (i) any actual or possible violation of or failure to comply with any term, condition or requirement of any Permit; or (ii) any actual or possible revocation, withdrawal, suspension, cancellation, termination or modification of any Permit. (d) AFM License. No Acquired Company requires, and has not at any time required, any licence, registration or authorisation from the Netherlands Authority for the Financial Markets (Autoriteit Financiële Markten, the “AFM”) or any other Dutch financial supervisory authority in order to conduct its business as currently carried on. The activities of the Acquired Companies do not constitute regulated investment services, investment activities or fund management activities within the meaning of the Dutch Financial Supervision Act (Wet op het financieel toezicht), including MiFID II or the Alternative Investment Fund Managers Directive (AIFMD), and accordingly no license, approval, registration or exemption from the AFM is required. No notice, investigation, enquiry or proceeding is pending or, to the Knowledge of the Company, threatened by the AFM or any other Dutch financial supervisory authority in relation to any alleged requirement for any Acquired Company to hold such a license, registration or authorisation. (e) Trade Control Laws. Each Acquired Company: (i) is and has always been in compliance with all Trade Control Laws; and (ii) has prepared and timely applied for and obtained all licenses, registrations and other authorizations for export, re-export, transfer or import required in accordance with Trade Control Laws for the conduct of its business. None of the Acquired Companies or any of their respective managing directors, supervisory directors, directors, officers, employees or agents (A) is or has ever been a Person with whom transactions are prohibited or limited under any Trade Control Laws, including those administered by the Office of Foreign Assets Control of the U.S. Department of Treasury, the Bureau of Industry and Security of the U.S. Department of Commerce, the United Nations Security Council, the European Union, Her Majesty’s Treasury or any other sanctions authority or (B) has ever violated or made a disclosure (voluntary or otherwise) regarding such Legal Requirements. No Acquired Company has ever engaged in any transaction or otherwise dealt directly or indirectly with the Crimea region, Cuba, Iran, North Korea, Sudan, Syria, or since February 21, 2022 the so-called Donetsk People’s Republic or the Luhansk People’s Republic regions of Eastern Ukraine, or any other country,
20 4897-9174-6440.v17 region or Person against which the U.S. maintains economic sanctions or an arms embargo (including any entity owned 50% or more, individually or in the aggregate, or controlled by such Persons). (f) Export, Import and Sanctions Proceedings. No sanctions-related, export-related or import-related Legal Proceeding, investigation or inquiry is or has ever been pending or, to the Knowledge of the Company, threatened against any Acquired Company or any managing director, supervisory director, director or officer of any Acquired Company (in his or her capacity as a managing director, supervisory director, director or officer of any Acquired Company) by or before (or, in the case of a threatened matter, that would come before) any Governmental Entity. (g) Anti-Corruption and Anti-Bribery. No Acquired Company is or has ever been the subject of any actual or threatened investigation, inquiry or enforcement proceeding regarding any non- compliance or alleged non-compliance with any provision of the Foreign Corrupt Practices Act of 1977, 15 U.S.C. §§ 78dd-1, et seq., as amended, or any other applicable anti-corruption or anti-bribery law or similar Legal Requirement. No Acquired Company, no Affiliate, managing director, supervisory director, director, officer, employee, independent contractor, agent or Representative of or consultant to any Acquired Company, and no other Person associated with or acting for or on behalf of any Acquired Company has, directly or indirectly, in connection with the conduct of any business of any Acquired Company, violated any provision of the Foreign Corrupt Practices Act of 1977, 15 U.S.C. §§ 78dd-1, et seq., as amended, or any other applicable anti-corruption or anti-bribery law or similar Legal Requirement. 2.13 Brokers’ and Finders’ Fees. No Acquired Company has incurred, or will incur, directly or indirectly, any Liability for any brokerage or finder’s fee or agent’s commission or any similar charge in connection with this Agreement or any other Company Transaction Document or any of the Contemplated Transactions. Part 2.13 of the Disclosure Schedule identifies each Person that is or may become entitled to receive any fee or other amount from any of the Acquired Companies for professional or other services performed or to be performed in connection with the Share Purchase or any of the other Contemplated Transactions. After the Closing, no Acquired Company will have any indemnification or other Liability to any Person that is identified, or is required to be identified, in Part 2.13 of the Disclosure Schedule. 2.14 Employment Matters. (a) Employee List. Part 2.14(a) of the Disclosure Schedule contains a list (redacted to the extent required by applicable law) of all current employees of the Company as of the date of this Agreement, and correctly reflects: (i) their names and dates of hire; (ii) their job titles or positions; (iii) their duties; (iv) their current annual base salaries or hourly wage rates and last compensation increase to date (including the amount thereof); (v) any other compensation or benefits payable to them (including housing allowances, compensation payable pursuant to bonus, incentive compensation opportunity, target variable compensation, deferred compensation, perquisites, allowances or commission arrangements or other compensation);
21 4897-9174-6440.v17 (vi) any Permits that are held by them and that relate to or are useful in connection with the business of any Acquired Company; (vii) any promises made to them with respect to changes or additions to their compensation or benefits; (viii) their location of employment or service (by city, state and country of engagement); (ix) their employer or employing entity; (x) the annual vacation or paid time off entitlement in days and any accrued and unpaid vacation pay or paid time off entitlements as of December 31, 2025; (xi) leave of absence or furlough status and reason and expected date of return to active employment, if any; (xii) their country of citizenship; (xiii) their visa status; (xiv) whether such employee is classified as exempt or non-exempt under applicable Legal Requirements of all jurisdictions in which the Acquired Companies maintain employees; and (xv) their status as full-time, part-time, temporary or seasonal employees. Part 2.14(a) of the Disclosure Schedule designates each current employee of each Acquired Company whose services for the Acquired Companies are performed exclusively or primarily in a country other than the United States (a “Non-U.S. Employee”), and also designates the country in which each Non-U.S. Employee exclusively or primarily performs such services. No current employee of any Acquired Company performs services for such Acquired Company exclusively or primarily in the United States. The employment of each of the Non-U.S. Employees is terminable either at will or upon the provision and/or payment of notice or pay in lieu of notice and statutory severance payment in accordance with applicable Legal Requirements by providing valid reason for termination or contained in a written Contract that has been disclosed in writing to Purchaser in Part 2.14(a) of the Disclosure Schedule. The Company has Made Available to Purchaser accurate and complete copies of all current employee manuals and handbooks, disclosure materials, policy statements, employment Contracts and other materials relating to the employment of the Company Associates. All current employees of each Acquired Company are, and all former employees of each Acquired Company were, lawfully entitled to work for the applicable Acquired Company in the jurisdiction in which they performed services without restriction or any visa, permit, export or consent being required. Except as set forth in Part 2.14(a) of the Disclosure Schedule, there is no current Company Associate who is not fully available to perform work because of long-term sickness, disability or other leave. There are no unwritten policies or customs that, by extension, could entitle any Company Associate with material benefits in addition to those to which they are entitled pursuant to any Company Benefit Plan or applicable Legal Requirements (including unwritten customs concerning the payment of statutory severance pay when it is not legally required by Legal Requirements).
22 4897-9174-6440.v17 (b) No Termination. Except as set forth in Part 2.14(b) of the Disclosure Schedule, no Key Employee has provided notice of, or to the Knowledge of the Company, has otherwise expressed, his or her intention to terminate employment with any Acquired Company. (c) Employee Claims. No Person has claimed or has reason to claim that any Company Associate or other Person affiliated or associated with any Acquired Company: (i) is in violation of any term of any employment Contract, patent disclosure agreement, noncompetition agreement, nonsolicitation agreement or any restrictive covenant with such Person; (ii) has disclosed or utilized any Trade Secret or proprietary information or documentation of such Person; or (iii) has interfered in the employment relationship between such Person and any of its present or former employees. To the Knowledge of the Company, no Company Associate has used or proposed to use any Trade Secret, information or documentation confidential or proprietary to any former employer or other Person for whom such individual performed services or violated any confidential relationship with any Person in connection with the development, manufacture or sale of any product or proposed product, or the development or sale of any service or proposed service, of any Acquired Company. Each Company Associate is legally authorized to work in all locations where he or she performs services for an Acquired Company and has successfully passed all industry standard background checks and all other verification reviews required, expressly or impliedly, by any Company Contract or applicable industry standard, certification or accreditation requirement, or other license, registration or membership requirements. (d) Labor Unions. Except as set forth on Part 2.14(d) of the Disclosure Schedule, none of the employees of any Acquired Company is or has ever been represented by a labor union, works council or other employee representative body, and there are no organizing, election or other activities pending or threatened by or on behalf of any union, works council, employee representative or other labor organization or group of employees with respect to any Company Associate. No Acquired Company is or has ever been subject to, bound by, or a party to, or has a duty to bargain for, any collective bargaining, works council, labor, voluntary recognition or similar agreement with respect to any of its Company Associates, nor is any such agreement being negotiated by any Acquired Company. There is no labor dispute, strike, work stoppage, picketing, boycott, lockout, slowdown, successor and/or related employer application or other labor trouble that is or has been outstanding, pending or, to the Knowledge of the Company, threatened against any Acquired Company. To the Knowledge of the Company, no event has occurred, and no condition or circumstance exists, that might directly or indirectly give rise to or provide a basis for the commencement of any such strike, slowdown, work stoppage, picketing, boycott, lockout, successor and/or related employer application or other labor trouble. No Acquired Company has ever agreed to recognize any labor union, works council or other collective bargaining representative, nor has any labor union, works council or other collective bargaining representative been certified as the exclusive bargaining representative of any Company Associate. No Acquired Company has ever entered into any Contract with any labor union, works council, employee association or other employee representative body or any number or category of its employees that would prevent, restrict or impede the implementation of any lay off, redundancy, severance or similar program within its workforce (or any part of it). No labor union, works council or similar body representing employees must be consulted with about, or grant their consent to, the transaction contemplated by this Agreement. (e) Legal Compliance. No Acquired Company and, to the Knowledge of the Company, no Company Associate or other Representative of any Acquired Company, has committed or engaged in any unfair labor practice. No Legal Proceeding, claim, charge or complaint against any of the Acquired Companies relating to any Employment Legal Requirement involving any Company Associate is or has ever been pending or, to the Knowledge of the Company, threatened or reasonably anticipated. Each Acquired Company is and has at all times been in compliance in all material respects with all applicable Employment Legal Requirements. None of the Acquired Companies has ever failed to make, or is or has ever been otherwise delinquent in, any payment to any Company Associates for any wages, salary, overtime
23 4897-9174-6440.v17 pay, commission, bonus, benefit or other compensation for any services or otherwise arising under any policy, practice, Contract, plan, program or Legal Requirement. No Acquired Company has ever had any material Liability for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Entity with respect to unemployment compensation benefits, worker’s compensation, social security or other benefits or obligations (other than routine payments to be made in the ordinary course of business consistent with past practice). Each employee who requires permission and/or authorization to work in the jurisdiction in which they carry out their employment had at the time of hire current and appropriate permission and/or authorization to work in that jurisdiction. No Acquired Company is or has ever been the subject of any audit or investigation by any Governmental Entity with respect to any of its employment policies or practices and no Acquired Company is party to, or is otherwise bound by, any consent decree with, or any citation or other Order by, any Governmental Entity relating to any employee or employment practice. (f) Notice and Consultation. None of the Acquired Companies, Purchaser or any of its Affiliates has or will become subject to any obligation under applicable Legal Requirements or otherwise to notify or consult with, prior to or after the Closing, any Company Associate, Governmental Entity or other Person with respect to the impact of the Contemplated Transactions on the employment of any of the Company Associates or the compensation or benefits provided to any of the Company Associates. No Acquired Company is a party to any Contract or arrangement or is subject to any requirement that in any manner restricts any Acquired Company from relocating, consolidating, merging or closing any portion of the business of any of the Acquired Companies. (g) Independent Contractors. Part 2.14(g) of the Disclosure Schedule accurately sets forth, with respect to each individual who is a consultant or other independent contractor of any Acquired Company: (i) the name of such independent contractor, the Acquired Company that has engaged such independent contractor, location of service (by city, state and country of engagement) and the date as of which such independent contractor was originally engaged by the Company; (ii) whether such independent contractor is subject to a written Contract or is engaged through an agency or on a contingency basis; (iii) a description of such independent contractor’s performance objectives, services, duties and responsibilities; (iv) rate of all regular compensation and benefits, bonus or any other compensation payable to such independent contractor, and the aggregate dollar amount of the compensation (including all payments or benefits of any type) received by such independent contractor from such Acquired Company with respect to services performed in the fiscal year ended December 31, 2025; (v) the terms of current compensation of such independent contractor; (vi) the notice required for termination, if any; and (vii) any Permit that is held by such independent contractor and that relates to or is useful in connection with the business of any Acquired Company.
24 4897-9174-6440.v17 Accurate and complete copies of all Contracts identified in Part 2.14(g)(ii) of the Disclosure Schedule have been Made Available to Purchaser. The engagement of each current individual independent contractor is subject to termination for any reason upon not more than 30 days’ prior written notice. (h) Misclassification. No current or former individual independent contractor of any Acquired Company is or was ever a misclassified employee under any applicable Legal Requirement, and the Company has not received any written or oral notice from any Person disputing such classification. No independent contractor is eligible to participate in any Company Benefit Plan (other than an Equity Incentive Plan), and no Acquired Company has received any notice from any Governmental Entity disputing the classification of an independent contractor. No Acquired Company has ever had any temporary or leased employees (other than agency workers engaged in Ireland) that were not treated and accounted for in all respects as employees of such Acquired Company. The employees of each Acquired Company are and have at all times been correctly classified as either exempt or non-exempt employees under the applicable Legal Requirements of all jurisdictions in which the Acquired Companies maintain employment relationships. Each Acquired Company has at all times maintained accurate and complete records of all hours worked by each employee eligible for overtime compensation and compensates all employees in accordance with the requirements of the applicable Legal Requirements of all jurisdictions in which the Acquired Companies maintain employees. (i) Misconduct Claims. No allegation, complaint, charge or claim (formal or otherwise) of sexual or racial harassment, sexual assault, sexual or racial misconduct, sex/gender or racial discrimination or similar behavior (a “Misconduct Allegation”) has ever been made against any Person who is or was a managing director, supervisory director, director, officer, manager or supervisory-level employee of any Acquired Company in such person’s capacity as such or, to the Knowledge of the Company, in any other capacity, nor are any Misconduct Allegations pending or, to the knowledge of the Company, threatened, nor is there any reasonable basis for such a Misconduct Allegation. No Acquired Company has ever entered into any settlement agreement, tolling agreement, non-disparagement agreement, confidentiality agreement or non-disclosure agreement, or any Contract or provision similar to any of the foregoing relating directly or indirectly to any Misconduct Allegation against any Acquired Company or any person who is or was a managing director, supervisory director, director, officer, manager, employee or independent contractor of any Acquired Company. (j) Labor Relations. Each Acquired Company has good labor relations, and, to the Knowledge of the Company, there are no facts indicating that the consummation of any of the Contemplated Transactions will have an adverse effect on the labor relations of any Acquired Company. There are no pending or, to the Knowledge of the Company, threatened claims or Legal Proceedings against any Acquired Company under any workers’ compensation policy or long-term disability policy or similar policy subject to foreign Legal Requirements. (k) Settlement and termination agreements. No Acquired Company has entered into any settlement agreement, termination agreement or similar arrangement (including any settlement agreement within the meaning of Section 7:900 of the Dutch Civil Code (vaststellingsovereenkomst)) with any current or former Company Associate that gives rise to any ongoing or future payment or obligation by any Acquired Company. (l) No collective redundancy or severance programs. No Acquired Company has initiated, adopted or announced any collective termination, redundancy, severance or similar program in respect of any of its employees. 2.15 Employee Benefit Plans.
25 4897-9174-6440.v17 (a) Part 2.15(a) of the Disclosure Schedule: lists all material Employee Benefit Plans and other material employee or service provider benefit, compensation or incentive arrangements of the Acquired Companies (the “Company Benefit Plans”), including any pension arrangements (if any), bonus or incentive schemes, insurance arrangements, employee loans or allowance arrangements. The Company has made available to Purchaser true and complete copies of all material agreements and documentation governing the Company Benefit Plans, to the extent applicable. No Company Benefit Plan is unwritten. (b) Except as disclosed in Part 2.15(a) of the Disclosure Schedule, none of the Acquired Companies maintains, sponsors or participates in any pension scheme within the meaning of the Dutch Pensions Act (Pensioenwet), or any other pension arrangement, death benefit scheme or income protection scheme. Without prejudice to the generality of the foregoing, the Company and any Acquired Company does not participate and has never participated in or otherwise has had any obligation in respect of a defined benefit scheme within the meaning of the Irish Pensions Act. (c) Each Company Benefit Plan (and each related trust, insurance contract or fund) has been established, administered, funded and operated in all material respects in accordance with the terms of the applicable controlling documents and with all applicable Legal Requirements. (d) All required reports, descriptions and disclosures have been filed or distributed appropriately and in accordance with applicable Legal Requirements with respect to each Company Benefit Plan. (e) All contributions that are due and owing have been timely paid to each Company Benefit Plan (or related trust or held in the general assets of the Acquired Companies and accrued, as appropriate, in compliance with applicable Legal Requirements), and all contributions for any period ending on or before the Closing Date that are not yet due have been paid to each Company Benefit Plan (or related trust) or accrued in accordance with Dutch GAAP, or other local law accounting requirements. (f) None of the Acquired Companies, or to the Knowledge of the Company, any employee or Representative of any Acquired Company has made any oral or written representation or commitment with respect to any aspect of any Company Benefit Plan that is not in accordance with the written or otherwise preexisting terms and provisions of such Company Benefit Plan. (g) There are no unresolved claims, proceedings, audits, investigations or other Legal Proceedings, or disputes, under the terms of, or otherwise relating to or in connection with, any Company Benefit Plan (other than routine undisputed claims for benefits), and no Legal Proceeding or other action has been commenced, or, to the Knowledge of the Company, threatened or would reasonably be expected to be commenced, with respect to any such claim, proceeding, audit, investigation, Legal Proceeding or dispute. (h) With respect to each Company Benefit Plan: (i) no Acquired Company has made any material oral or written commitment or representation regarding any Company Benefit Plan that is inconsistent with the terms in Part 2.15(a) of the Disclosure Schedule; and (ii) no Acquired Company (by way of indemnification, directly or otherwise) has and, to the Knowledge of the Company, no fiduciary has, any Liability for breach of fiduciary duty or any failure to act or comply in connection with such Company Benefit Plan. (i) No employee of the Company or of any of the Acquired Companies has had their contract of employment transferred to the Company or an Acquired Company from another employer in circumstances where any defined benefit liabilities transferred under the European Communities
26 4897-9174-6440.v17 (Protection of Employees on Transfer of Undertakings) Regulations 2003 and/or Council Directive 2001/23/EC of 12 March 2001. (j) Neither the execution and delivery of this Agreement or any other Company Transaction Document nor the consummation of any of the Contemplated Transactions could (alone or in combination with one or more events or circumstances): (i) result in any payment (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due to any Company Associate; (ii) increase any compensation or benefits otherwise payable by any Acquired Company; (iii) result in the acceleration of the time of payment, funding or vesting of any such compensation or benefits; (iv) require any contributions or payments to fund any obligations under any Company Benefit Plan; or (v) create any limitation or restriction on the right of any Acquired Company to merge, amend or terminate any Company Benefit Plan. No Acquired Company has made any payment, no Acquired Company is obligated to make any payment, and no Acquired Company is a party to any plan or Contract that under any circumstances could obligate it to make any payment that would not be deductible under Section 404 of the Code. Except for the payments to be made under Section 1, no Acquired Company paid or provided, and is not and will not be required to pay or provide, any amount or benefit under any bonus, severance, change of control, retention or other similar plan, Contract or arrangement as a result of the execution, delivery or performance of this Agreement or any other Transaction Document or in connection with the Share Purchase or any of the other Contemplated Transactions. (k) Without limiting the generality of the other provisions of this Section 2.15, each Company Benefit Plan that, under applicable Legal Requirements, is required to be registered or approved by a Governmental Entity, has been so registered or approved and has been maintained in good standing with the applicable Governmental Entity or Governmental Entities. Each Company Benefit Plan that, under applicable Legal Requirements, is required to be funded, is either: (i) funded in accordance therewith and to an extent sufficient to provide for accrued benefit obligations with respect to all Company Associates or (ii) is fully insured, in each case, based upon generally accepted local accounting and actuarial practice and procedure, and none of the Contemplated Transactions will, or would reasonably be expected to, cause such funding or such insurance obligations to be less than such benefit obligations. (l) All death in service benefits and long-term disability benefits which the Company or any Acquired Company is under an obligation to provide to or in respect of its employees, former employees, officers or former officers, are fully insured under a policy effected with an insurance company and all insurance premiums payable have been paid. (m) Except for the Company Associates identified in Part 2.15(m) of the Disclosure Schedule, the employment or engagement of each current Company Associate is subject to termination upon not more than 30 days’ prior written notice (i) under the termination notice provisions included in the applicable Company Associate’s agreement and (ii) under applicable Legal Requirements. 2.16 Environmental Matters. (a) Each Acquired Company is and has at all times been in material compliance with all Environmental Laws, and no Legal Proceeding, complaint, demand or notice has been made, given, filed or commenced (or, to the Knowledge of the Company, has been threatened) by any Person against any Acquired Company alleging any failure to comply with any Environmental Law or seeking contribution towards, or participation in, any remediation of any contamination of any property or thing with Hazardous Materials. Each Acquired Company has obtained, and is and has at all times been in material compliance with all of the terms and conditions of, all Permits that are required under any Environmental Law and has at all times materially complied with all other limitations, restrictions, conditions, standards, prohibitions,
27 4897-9174-6440.v17 requirements, obligations, schedules and timetables that are contained in any applicable Environmental Law. (b) No circumstance or physical condition exists on or under any property that was caused by or impacted by the operations or activities of any Acquired Company and that will or would reasonably be expected to give rise to: (i) any investigative, remedial or other obligation under any Environmental Law; (ii) any Liability on the part of any Acquired Company to any Person; or (iii) any claim of damage to Person or property against any Acquired Company. (c) To the Knowledge of the Company, all properties and equipment used in the business of any Acquired Company are and, to the extent and during the period of such Acquired Company’s use, have been free of Hazardous Materials, except for any Hazardous Materials in small quantities found in products used by the Company for office or janitorial purposes in compliance with Environmental Law. 2.17 Material Contracts. (a) List. Part 2.17(a) of the Disclosure Schedule identifies each Material Contract in existence as of the date of this Agreement (categorized by the applicable section and subsection of the definition of “Material Contract” to which it relates), and sets forth the names of the parties to such Material Contract, the date of such Material Contract and the date of each amendment to such Material Contract. (b) Enforceability; No Breach. All Material Contracts are in full force and effect. All Material Contracts are valid and enforceable by and against each of the parties thereto, in accordance with their terms, subject only to the Enforceability Exception. No Acquired Company, and, to the Knowledge of the Company, no other party, is in default under or in breach of any Company Contract. Except as set forth in Part 2.17(b) of the Disclosure Schedule, no event has occurred, and no circumstance or condition exists, that, with notice, the passage of time or both, could reasonably be expected to: (i) constitute a material default under or result in a material violation or breach of any of the provisions of any Company Contract; (ii) give any Person the right to declare a default or exercise any remedy under any Company Contract; (iii) give any Person the right to accelerate the maturity or performance of any Company Contract; or (iv) give any Person the right to cancel, terminate or modify any Company Contract or cause the breach of any Company Contract by any Person. No party to any Material Contract has exercised or purported or threatened in writing to exercise any termination right with respect to any Material Contract. No Acquired Company has received any notice of a default, an alleged failure to perform or an offset or counterclaim with respect to any Company Contract that has not been fully remedied and withdrawn. (c) Delivery of Contracts. The Company has Made Available to Purchaser accurate and complete copies of all Material Contracts in existence as of the date of this Agreement, including all amendments, terminations and modifications thereof. (d) Proposed Contracts. Part 2.17(c) of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any offer, award, counterpart, written proposal, term sheet or similar document (that would contain or give rise to any binding obligation of any Acquired Company if accepted by the recipient) has been submitted or otherwise transmitted by any Acquired Company on or prior to the date of this Agreement. 2.18 Insurance. Part 2.18 of the Disclosure Schedule identifies each insurance policy maintained by, at the expense of or for the benefit of any Acquired Company as of the date of this Agreement and identifies any material claims made thereunder as of the date of this Agreement. The Company has Made Available to Purchaser accurate and complete copies of the insurance policies
28 4897-9174-6440.v17 identified on Part 2.18 of the Disclosure Schedule. Each of the insurance policies identified in Part 2.18 of the Disclosure Schedule is in full force and effect. None of the Acquired Companies has ever received any notice or other communication regarding any actual or possible: (a) cancellation or invalidation of any insurance policy; (b) refusal of any coverage or rejection of any claim under any insurance policy; or (c) material adjustment in the amount of the premiums payable with respect to any insurance policy. There are no self-insurance arrangements affecting any Acquired Company. 2.19 Transactions with Related Parties. No Related Party: (a) has or has had any interest in any material asset used in or otherwise relating to the business of any of the Acquired Companies; or (b) is indebted to any Acquired Company, and, except as set forth in Part 2.19 of the Disclosure Schedule, no Acquired Company is indebted (or has committed to make any loan or extend or guarantee credit) to any Related Party. No Related Party has any direct or indirect ownership interest in or relationship with (i) any Person with which any Acquired Company is affiliated or with which any Acquired Company has a business relationship or (ii) any Person that competes with any Acquired Company (other than the ownership of less than 5% of the outstanding publicly traded shares of any publicly traded company that may compete with the Acquired Companies). To the Knowledge of the Company, no Related Party is or has been, directly or indirectly, a party to or otherwise interested in any Company Contract (other than contracts providing for employment and benefit arrangements entered into in the ordinary course of business and on an arms’-length basis. From and after the Locked Box Date and through the Closing Date, no Acquired Company shall have any Liability to any Person under or as a result of any Contract or arrangement described in this Section 2.19 except as set forth in Part 2.19 of the Disclosure Schedule. 2.20 Books and Records. The minute books of each Acquired Company contain, in all material respects, records of all meetings and other corporate actions and proceedings of the shareholders and board of directors or board of supervisors or other similar body (including committees thereof) of such Acquired Company, and copies of such have been Made Available to Purchaser. The shareholder ledger of each Acquired Company is accurate and complete, reflects all issuances, transfers, repurchases and cancellations of share capital of such Acquired Company and has been Made Available to Purchaser. 2.21 Absence of Changes. Except as set forth in Part 2.21 of the Disclosure Schedule, since December 31, 2024, there has not been any Material Adverse Effect, and no event has occurred or circumstance has arisen that, in combination with any other events or circumstances, will or would reasonably be expected to have or result in a Material Adverse Effect. Since December 31, 2024, the Acquired Companies have conducted their business only in the ordinary course and consistent with past practices and has not taken any action that, if taken after the date of this Agreement, would require Purchaser’s consent under Section 5.3(b) of this Agreement. 2.22 Major Customers and Suppliers. (a) Part 2.22(a)-1 of the Disclosure Schedule sets forth an accurate and complete list of the top 10 suppliers of goods or services to the Acquired Companies based on amounts collectively paid to such suppliers by the Acquired Companies during the period from January 1, 2024 through the date of this Agreement (collectively, the “Major Suppliers”), together with the amount paid to each Major Supplier during the period from January 1, 2024 through the date of this Agreement. Part 2.22(a)-2 of the Disclosure Schedule also sets forth an accurate and complete list of the top 10 customers of the Acquired Companies based on amounts paid to, and accounts receivable generated by, the Acquired Companies with respect to such customers during the period from January 1, 2024 through the date of this Agreement (the “Major Customers”), together with the amount of such collections and accounts receivable generated by each Major Customer during the period from January 1, 2024 through the date of this Agreement.
29 4897-9174-6440.v17 (b) Since January 31, 2024, no Major Supplier or Major Customer has terminated its relationship with any Acquired Company or materially reduced or changed the pricing or other terms of its business with any Acquired Company. No Acquired Company is engaged in any material dispute with any Major Supplier or Major Customer and, to the Knowledge of the Company, no Major Supplier or Major Customer intends to terminate, limit or reduce its business relations with any Acquired Company, or materially reduce or change the pricing or other terms of its business with any Acquired Company. To the Knowledge of the Company, the consummation of the Contemplated Transactions will not, and could not reasonably be expected to, have an adverse effect on the business relationship of the Company with any Major Supplier or Major Customer. No Major Supplier or Major Customer: (i) has defaulted under any Company Contract or relationship with any Acquired Company in any material respect; or (ii) to the Knowledge of the Company, has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it. 2.23 Relevant Aircraft and Aircraft Leases. (a) Part 2.23(a) of the Disclosure Schedule contains a true and complete list, as of the date hereof, of Company Aircraft identified by their type and manufacturer, model number, manufacturer serial number, and current Aircraft Lessee. (b) Part 2.23(b) of the Disclosure Schedule contains a true and complete list, as of the date hereof, of Managed Aircraft identified by their manufacturer, model number, manufacturer serial number, and current Aircraft Lessee. (c) With respect to each Company Aircraft, as of the date hereof, (i) the relevant Acquired Company or the relevant owner identified as the “Legal Entity Owner” on Part 2.23(c) of the Disclosure Schedule is the sole holder of valid legal title to such Company Aircraft, and (ii) the Company or the relevant Subsidiary (including as beneficial interest holder under an Owner Trust or other similar structure) is the sole holder of valid beneficial interest in the entity holding title to such Company Aircraft, in the case of each of clauses (i) and (ii), free and clear of all Liens, other than Permitted Liens (as such term or a substantially equivalent term is defined in any applicable Aircraft Lease for such Company Aircraft). (d) As of the date hereof, the relevant Acquired Company or the relevant Owner Trust or other similar structure that is the Aircraft Lessor in respect of each Company Aircraft has not assigned or otherwise granted any Lien in respect of its rights as Aircraft Lessor pursuant to the relevant Aircraft Lease Documents other than pursuant to any Permitted Liens (as such term or a substantially equivalent term is defined in any applicable Aircraft Lease for such Company Aircraft). (e) As of the date hereof, to the Knowledge of the Company, no event which has occurred and is continuing which constitutes or which, with the passing of time, giving of notice, making of any determination or any combination of the foregoing, would constitute a Total Loss of any Company Aircraft or Managed Aircraft. As of the date hereof, no Acquired Company has received any written notification or, to the Knowledge of the Company, oral notification under the Aircraft Lease Documents that any Relevant Aircraft has been involved in any incident which has caused Major Damage to such Relevant Aircraft which has not been repaired in all material respects in accordance with the applicable Aircraft Lease Document. (f) Part 2.23(f) of the Disclosure Schedule sets forth each Aircraft Lease for Managed Aircraft. To the Knowledge of the Company, with respect to such Aircraft Leases for Managed Aircraft: (i) in the 12 month period immediately preceding the date of this Agreement, each Aircraft Lessee has
30 4897-9174-6440.v17 maintained the Relevant Aircraft in material compliance with the terms of the applicable Aircraft Lease; (ii) each Aircraft Lease is (A) in full force and effect and (B) valid and enforceable by and against each of the parties thereto, in accordance with their terms, subject only to the Enforceability Exception; (iii) no party is in default under or in breach of any Aircraft Lease; (iv) no event has occurred, and no circumstance or condition exists, that, with notice, the passage of time or both, could reasonably be expected to: (w) constitute a material default under or result in a material violation or breach of any of the provisions of any Aircraft Lease; (x) give any Person the right to declare a default or exercise any remedy under any Aircraft Lease; (y) give any Person the right to accelerate the maturity or performance of any Aircraft Lease; or (z) give any Person the right to cancel, terminate or modify any Aircraft Lease or cause the breach of any Aircraft Lease by any Person; (v) no party to any Aircraft Lease has exercised or purported or threatened to exercise any termination right with respect to any Aircraft Lease; (vi) no Acquired Company has received any notice of a default, an alleged failure to perform or an offset or counterclaim with respect to any Aircraft Lease that has not been fully remedied and withdrawn; and (vii) the consummation of the Contemplated Transactions will not affect the enforceability against any Person of any Aircraft Lease. 2.24 Third Party Acquisition Proposals. Each Acquired Company has ceased any and all activities, discussions or negotiations with any Person (other than Purchaser) with respect to any Acquisition Transaction. The Company has complied in all respects with its obligations under, and has not breached in any respect, the letter agreement dated November 24, 2025 by and between Purchaser and the Company. 2.25 Full Disclosure. To the Knowledge of the Company, this Agreement (including the Disclosure Schedule) and the other Transaction Documents do not (a) contain any representation, warranty or information that is false or misleading with respect to any material fact or (b) omit to state any material fact necessary in order to make the representations, warranties and information contained and to be contained herein and therein (in the light of the circumstances under which such representations, warranties and information were or will be made or provided) not false or misleading. 2.26 No Other Representations or Warranties; No Reliance. The Company acknowledges and agrees that, except for the representations and warranties of Purchaser expressly set forth in Section 4 or set forth in any other Transaction Documents, the Company has not relied upon any representation or warranty, whether express or implied, with respect to Purchaser or its businesses. The Company and its Affiliates (and on behalf of the representatives of any of the foregoing) acknowledge and agree that none of Purchaser or any Affiliate thereof, or any other Person or entity on behalf of Purchaser or any Affiliate thereof, has made or makes any representation or warranty, whether express or implied, with respect to any projections made available to the Company or any of its Affiliates or their respective representatives; provided, however, that nothing in this Agreement (including this Section) shall limit or restrict any claim or remedy of the Company in the case of Fraud. 3. REPRESENTATIONS AND WARRANTIES OF EACH SELLER Each Seller, on its own behalf and not on behalf of any other Seller, hereby represents and warrants to and for the benefit of Purchaser Indemnitees (with the understanding and acknowledgement that Purchaser would not have entered into this Agreement without being provided with the representations and warranties set forth in this Section 3 and that Purchaser is relying on these representations and warranties), as follows: 3.1 Authority and Due Execution. (a) Authority. Such Seller has all requisite power, capacity and authority to enter into this Agreement and each Transaction Document to which such Seller is a party and to consummate the
31 4897-9174-6440.v17 Contemplated Transactions. If such Seller is an Entity, the execution, delivery and performance by such Seller of this Agreement and the other Transaction Documents to which it is a party, and the consummation of the Contemplated Transactions, have been duly authorized by all necessary action on the part of such Seller and its board of directors or board of supervisors (or, if such Seller does not have a board of directors or board of supervisors, by all necessary action on the part of its manager or equivalent body), and no other proceedings on the part of such Seller are necessary to authorize the execution, delivery and performance by such Seller of this Agreement or any such other Transaction Document, or the consummation of the Contemplated Transactions. (b) Due Execution. This Agreement and each other Transaction Document to which such Seller is a party has been or will be duly executed and delivered by such Seller and, assuming due execution and delivery by the other parties hereto and thereto, constitutes or will constitute the legal, valid and binding obligation of such Seller, enforceable against such Seller in accordance with its terms, subject only to the Enforceability Exception. 3.2 Non-Contravention and Consents. (a) Non-Contravention. The execution and delivery of this Agreement and the other Transaction Documents to which such Seller is a party do not, and the consummation of the Contemplated Transactions and the performance of this Agreement and the other Transaction Documents to which such Seller is a party will not: (i) if such Seller is an Entity, conflict with or violate any of its Charter Documents, or any resolution adopted by its shareholders (or holders of other equity securities), board of directors or board of supervisors (or other similar body) or any committee of the board of directors or board of supervisors (or other similar body) of such Seller; (ii) conflict with or violate any Legal Requirement to which such Seller is subject; or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or impair the rights of such Seller or alter the rights or obligations of any Person under, or give to any Person any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any of the assets of such Seller (including any Outstanding Company Shares held by such Seller) pursuant to, any Contract to which such Seller is a party or by which it is bound. (b) Contractual Consents. No Consent under any Contract to which such Seller is a party or by which it is bound is required to be obtained, and such Seller is not and will not be required to give any notice to, any Person in connection with the execution, delivery or performance of this Agreement or any other Transaction Document to which such Seller is a party or the consummation of the Contemplated Transactions. For purposes of this Section 3.2(b) and Section 3.2(c), a Consent shall be deemed “required to be obtained,” and a notice shall be deemed “required to be given,” if the failure to obtain such Consent or give such notice could: (i) result in such Seller becoming subject to any Liability, being required to make any payment or losing or forgoing any right or benefit; (ii) have an adverse effect on Purchaser or any Acquired Company; or (iii) prevent or delay the consummation of any of the Contemplated Transactions or otherwise prevent or delay performance by such Seller of any of its obligations under this Agreement or any other Transaction Document to which such Seller is a party. (c) Governmental Consents. No Consent of any Governmental Entity is required to be obtained, and no filing is required to be made with any Governmental Entity, by such Seller in connection with the execution, delivery or performance of this Agreement or any other Transaction Document to which such Seller is a party, or the consummation of the Contemplated Transactions. 3.3 Litigation. There is no Legal Proceeding pending, or, to the Knowledge of such Seller, that has been threatened against such Seller: (a) that challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with, the entry into, performance of, compliance with or
32 4897-9174-6440.v17 enforcement of any of the obligations of such Seller or any other Person under this Agreement; (b) that relates to the ownership or alleged ownership of any Company Shares or other securities of the Company, or any option, warrant or other right to acquire Company Shares or other securities of the Company, in each case, by such Seller; or (c) that relates to any right or alleged right of such Seller to receive any consideration as a result of or in connection with the execution, delivery or performance of this Agreement or any other Transaction Document to which such Seller is a party, or the consummation of the Contemplated Transactions. No event has occurred, and no claim, dispute or other condition or circumstance exists, that will give rise to or serve as a basis for the commencement of any such Legal Proceeding. 3.4 Title and Ownership. Such Seller: (a) is the legal and beneficial owner of the number, class and series of Company Shares set forth as being owned by such Seller in Part 2.2(a)(iii) of the Disclosure Schedule; (b) has good, valid and marketable title to such Company Shares, free and clear of all Liens; (c) is not a party to or bound by any option, warrant, purchase right or other Contract that could require such Seller to sell, transfer or otherwise dispose of Company Shares or other securities of the Company (other than this Agreement); (d) is not a party to any voting trust, proxy or other agreement or understanding with respect to the voting of any Company Shares; and (e) except for the securities set forth opposite such Seller’s name in Parts 2.2(a)(iii) and 2.2(a)(iv) of the Disclosure Schedule, does not own any securities of the Company or any right to acquire any securities of the Company. Upon payment to such Seller of the consideration that such Seller is entitled to receive pursuant to Section 1 by or on behalf of Purchaser pursuant to the terms of this Agreement, such Seller shall transfer to Purchaser good, valid and marketable title to such Seller’s Company Shares, free and clear of all Liens. 3.5 Due Organization. If such Seller is an Entity, such Seller: (a) has been duly organized and is validly existing and in good standing (or equivalent status) under the laws of its jurisdiction of organization; (b) has the requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted, including the consummation of the Contemplated Transactions; and (c) is duly qualified, licensed and admitted to do business, and is in good standing (or equivalent status), in each jurisdiction in which such qualification, license or admission is necessary. 3.6 Brokers’ and Finders’ Fees. Such Seller has not incurred, or will not incur, directly or indirectly, any Liability for any brokerage or finder’s fee, agent’s commission or any similar charge in connection with this Agreement, any other Transaction Document to which such Seller is a party or any of the Contemplated Transactions. 3.7 Assets. Neither such Seller nor any of its Affiliates holds or owns any right or other asset that is being used in, or is useful or necessary to, the business of any Acquired Company. 3.8 Securityholders’ Agent. The Securityholders’ Agent has the absolute and unrestricted right, power and authority to enter into and to perform its obligations under this Agreement and to act for and bind such Seller with respect to all matters relating to this Agreement and the Contemplated Transactions. 3.9 Taxes. Each Seller has complied with customary salary (gebruikelijk loon) rules of article 12a of the Wage Tax Act 1964 (Wet op de loonbelasting 1964) and the onward-paid wages scheme (doorbetaaldloonregeling) of article 32d of the Wage Tax Act 1964 (Wet op de loonbelasting 1964) or any similar provision in relation to work performed by a person holding a substantial interest in the Sellers within the meaning of article 4.6 of the Personal Income Tax Act 2001 (Wet op de inkomstenbelasting 2001). 3.10 No Other Representations or Warranties; No Reliance. Each Seller acknowledges and agrees that, except for the representations and warranties of Purchaser expressly set forth in Section 4 or
33 4897-9174-6440.v17 set forth in any other Transaction Documents, such Seller has not relied upon any representation or warranty, whether express or implied, with respect to Purchaser or its businesses. Such Seller and its Affiliates (and on behalf of the representatives of any of the foregoing) acknowledge and agree that none of Purchaser or any Affiliate thereof, or any other Person or entity on behalf of Purchaser or any Affiliate thereof, has made or makes any representation or warranty, whether express or implied, with respect to any projections made available to such Seller, the Company or any of its Affiliates or their respective representatives; provided, however, that nothing in this Agreement (including this Section) shall limit or restrict any claim or remedy of such Seller in the case of Fraud. 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER Purchaser hereby represents and warrants to and for the benefit of the Seller Indemnitees (with the understanding and acknowledgement that Seller Indemnitees would not have entered into this Agreement without being provided with the representations and warranties set forth in this Section 4 and that Seller Indemnitees are relying on these representations and warranties), as follows: 4.1 Standing. Purchaser is a limited liability company validly existing and in good standing (to the extent such concept exists in the relevant jurisdiction) under the laws of its jurisdiction of organization. 4.2 Authority and Due Execution. (a) Authority. Purchaser has all requisite corporate power and authority to enter into this Agreement and any other Transaction Document to which it is a party and to consummate the transactions contemplated hereby or thereby. The execution and delivery by Purchaser of this Agreement and the other Transaction Documents to which Purchaser is a party and the consummation by Purchaser of the transactions contemplated hereby or thereby have been duly authorized by all necessary corporate action on the part of Purchaser and no other corporate proceedings on the part of Purchaser are necessary to authorize the execution, delivery and performance of this Agreement and such other Transaction Documents by Purchaser or to consummate the transactions contemplated hereby or thereby. (b) Due Execution. This Agreement has been and, upon execution and delivery, each other Transaction Document to which either Purchaser is a party will be, duly executed and delivered by Purchaser and constitutes, or upon execution and delivery will constitute, the legal, valid and binding obligation of Purchaser enforceable against Purchaser in accordance with its terms, subject only to the Enforceability Exception. 4.3 Non-Contravention. The execution and delivery by Purchaser of this Agreement and each other Transaction Document to which Purchaser is a party do not, and the consummation of the Share Purchase will not, (a) conflict with or violate Purchaser’s Charter Documents or (b) assuming the making of all required filings or notifications under each applicable foreign direct investment or antitrust or competition-related Legal Requirement, and assuming the receipt of all clearances, approvals, authorizations or waiting period expirations or terminations under each applicable foreign direct investment or antitrust or competition-related Legal Requirement, conflict with or violate any laws applicable to Purchaser, except, in each case, as would not have a material adverse effect on Purchaser’s ability to consummate the Contemplated Transactions and perform its obligations under this Agreement. 4.4 Litigation. There are no actions, suits or proceedings pending or threatened in writing against Purchaser, at Law or in equity, or before or by any Governmental Entity against Purchaser that would materially and adversely affect Purchaser’s performance under this Agreement or the consummation of the transactions contemplated hereby. Purchaser is not subject to any outstanding judgment, Order or
34 4897-9174-6440.v17 decree of any court or governmental body that would materially and adversely affect Purchaser’s performance under this Agreement or the consummation of the transactions contemplated hereby. 4.5 Sufficiency of Funds. On the Closing Date and as of the Closing, assuming the closing of the Purchaser Financing Transaction, the Purchaser shall have available to it all funds necessary to consummate the Contemplated Transactions and to pay the Closing Adjusted Transaction Value, all other cash amounts required to be paid at or in connection with the Closing in connection with the Contemplated Transactions. 4.6 Solvency. Immediately after the consummation of the Contemplated Transactions and assuming the accuracy of the representations and warranties of the Company and Sellers, Purchaser will not (a) be insolvent, (b) have incurred debts beyond their ability to pay such debts as they mature in the ordinary course of business or (c) have Debt Amount in excess of the reasonable market value of its assets. 4.7 Brokerage. There are no claims for brokerage commissions, finders’ fees or similar compensation in connection with the Transactions based on any arrangement or agreement made by or on behalf of Purchaser. 4.8 Independent Review and Acknowledgments. Notwithstanding anything to the contrary express or implied in this Agreement, in entering into this Agreement, Purchaser acknowledges and agrees that (a) it has such knowledge and experience in financial and business matters and investments in general that make each of them capable of evaluating the merits and risks of this Agreement and the transactions contemplated hereby, (b) it has conducted its own due diligence review of certain information provided by Sellers and the Acquired Companies in respect of the Acquired Companies and their respective businesses, and has been provided with certain information regarding the Acquired Companies and their respective business and operations in connection with such due diligence information, (c) in connection with such review, it has received from or on behalf of Sellers and the Acquired Companies certain estimates, projections, and other forecasts and plans, including projected statements of operating revenues and income from operations of the Acquired Companies, and it acknowledges that there are uncertainties inherent in attempting to make such estimates, projections, and other forecasts and plans, that it is familiar with such uncertainties and that it is taking full responsibility for making its own evaluation of the adequacy and accuracy of all estimates, projections, and other forecasts and plans so furnished to it (including the reasonableness of the assumptions underlying such estimates, projections, and other forecasts and plans) in making the decision to enter into this Agreement and the documents contemplated hereby it has relied solely upon such due diligence and not on any factual representations or opinions of any of Sellers and the Acquired Companies (in each case, except for the representations and warranties of the Acquired Companies expressly set forth in Section 2, of Sellers expressly set forth in Section 3 and those set forth in any other Transaction Documents), (d) no representative of Sellers, the Acquired Companies or their respective Affiliates has any authority, express or implied, to make any representations, warranties or agreements not specifically set forth in this Agreement or any Transaction Document and subject to the limited remedies herein provided and (e) Sellers and the Acquired Companies shall not be subject to any liability to Purchaser for the distribution to Purchaser of any information, documents or materials, whether written or oral, in any data room, any confidential memoranda, any management presentation (whether formal or informal), functional “break-out” discussions, responses to questions submitted on behalf of Purchaser or in any other form in connection with the transactions contemplated by this Agreement; provided, however, that (i) nothing in this Agreement (including this Section) shall limit or restrict any claim or remedy of Purchaser in the case of Fraud and (ii) nothing in this clause (e) shall limit or restrict any claim by Purchaser based on information that is the subject of an express representation or warranty set forth in Section 2, Section 3 or any other Transaction Document.
35 4897-9174-6440.v17 4.9 No Other Representations or Warranties; No Reliance. Purchaser acknowledges and agrees that except for the representations and warranties of the Acquired Companies expressly set forth in Section 2, of Sellers expressly set forth in Section 3, those set forth in any other Transaction Documents, Purchaser has not relied upon, any representation or warranty, whether express or implied, with respect to Sellers or the Acquired Companies, or their respective businesses, affairs, assets, liabilities, financial condition, results of operations, future operating or financial results, estimates, projections, forecasts, plans or prospects (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans or prospects) or with respect to the accuracy or completeness of any other information, including the contents of the confidential information presentation in the electronic data room maintained by Sellers, provided or made available to Purchaser by or on behalf of Sellers or the Acquired Companies. Purchaser and its Affiliates (and on behalf of the representatives of any of the foregoing) acknowledges and agrees that none of Sellers, the Acquired Companies or any Affiliate thereof, or any other Person or entity on behalf of Sellers, the Acquired Companies or any Affiliate thereof, has made or makes, and Purchaser and its respective other Affiliates have not relied upon, any representation or warranty, whether express or implied, with respect to any projections, forecasts, estimates or budgets made available to Purchaser and its respective other Affiliates or any of their respective representatives of future revenues, future results of operations (or any component thereof), future cash flows or future financial condition (or any component thereof) of any of Sellers or the Acquired Companies (or any of their respective Affiliates) or their respective businesses; provided, however, that nothing in this Agreement (including this Section) shall limit or restrict any claim or remedy of Purchaser in the case of Fraud. 5. CERTAIN COVENANTS OF SELLERS AND THE COMPANY 5.1 Access and Investigation. During the period commencing on the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to Section 9 and the Closing (the “Pre-Closing Period”), Sellers and the Company shall, and shall ensure that their respective Representatives and each of the Acquired Companies and their respective Representatives: (i) promptly upon request, provide Purchaser and Purchaser’s Representatives with reasonable access during normal business hours to the Acquired Companies’ Representatives, personnel and assets and to all books, records, Tax Returns, work papers and other documents and information relating to the Acquired Companies; and (ii) promptly upon request, provide Purchaser and Purchaser’s Representatives with copies of such books, records, Tax Returns, work papers and other documents and information relating to the Acquired Companies, as Purchaser may reasonably request; provided that (i) such access shall not unreasonably interfere with the conduct of the business of the Acquired Companies; and (ii) the Acquired Companies shall not be required to furnish to Purchaser or any of Purchaser’s authorized representatives or provide Purchaser or any of Purchaser’s authorized representatives with access to information if such access (A) would be impermissible under applicable Law; or (B) would result in the waiver or forfeiture of any attorney-client privilege, work product doctrine or similar privilege (provided that the Acquired Companies shall use commercially reasonable efforts to provide such information in a manner that does not result in such violation or waiver, including by entering into customary joint defense or common interest arrangements, providing redacted versions, or furnishing summaries of relevant information). 5.2 Contact with Business Relations. From the date hereof until the earlier of the Closing and the termination of this Agreement, Purchaser shall not, and shall cause its Affiliates not to, contact any client, lessee, employee, lessor, lender or other material business relation of the Acquired Companies with respect to the Contemplated Transactions, without receiving the prior written consent of the Securityholders’ Agent (email to suffice), in his sole discretion. Notwithstanding the above, Purchaser and its Affiliates are not prohibited from contacting any officer, director, employee, client, lessee, lessor, lender or other material business relation of the Acquired Companies in the ordinary course of Purchaser’s or such of its Affiliates’ respective businesses and not related to the Contemplated Transactions or in connection with the Purchaser Financing Transaction.
36 4897-9174-6440.v17 5.3 Operation of the Business of the Company. (a) During the Pre-Closing Period, the Company shall, and Sellers shall cause the Company to, ensure that each of the Acquired Companies: (i) conducts its business and operations in the ordinary course and in substantially the same manner as such business and operations have been conducted prior to the date of this Agreement; (ii) uses its commercially, reasonable customary efforts to preserve intact its current business organization, keep available the services of its current managing directors, officers and employees and maintain its relations and goodwill with all suppliers, customers, landlords, creditors, employees and other Persons having business relationships with the Acquired Companies; (iii) reports regularly to Purchaser concerning operational, financial and regulatory matters and otherwise report regularly to Purchaser concerning the status of the businesses of the Acquired Companies; and (iv) prepares and files or causes to be prepared and filed any Tax Returns that are required to be filed on or prior to the Closing Date and pays all Taxes due (regardless of whether shown as due on any Tax Return) within the time and in the manner required by applicable Legal Requirements. (b) During the Pre-Closing Period, except as specifically disclosed in Part 5.3(b) of the Disclosure Schedule, the Company shall not, and Sellers shall cause the Company not to, and Sellers and the Company shall ensure that the other Acquired Companies do not: (i) cancel or fail to renew any of its insurance policies identified in Part 2.18 of the Disclosure Schedule or reduce the amount of any insurance coverage provided by such insurance policies; (ii) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any share capital or other securities, or repurchase, redeem or otherwise reacquire any share capital or other securities, except repurchases of shares in connection with the termination of the service relationship with any employee or other service provider; (iii) sell, issue, pledge, grant or authorize the sale, issuance, pledge or grant of: (A) any share capital or other security; (B) any option, warrant or right to acquire any share capital (or cash based on the value of share capital) or other security; or (C) any instrument convertible into or exchangeable for any share capital (or cash based on the value of share capital) or other security; (iv) amend or permit the adoption of any amendment to any of its Charter Documents, or effect or become a party to any Acquisition Transaction, recapitalization, reclassification of shares, share split, reverse share split or similar transaction;
37 4897-9174-6440.v17 (v) (A) form any Subsidiary or acquire any equity interest or other interest in any other Entity; or (B) enter into any joint venture, strategic partnership or alliance; (vi) make any individual capital expenditure, capital additions or capital improvements during the Pre-Closing Period, other than (A) budgeted capital expenditures made in the ordinary course of business consistent with past practice; or (B) in connection with the maintenance, repairs, or overhaul of Aircraft or engines that the Company reasonably determines are necessary to preserve the value of such Aircraft or engines; (vii) (A) enter into, or permit any of the assets owned or used by it to become bound by, any Contract (other than any At-Risk LOIs or any servicing agreements entered into pursuant to, and consistent with the terms of the At-Risk LOIs) that is or would constitute a Material Contract; or (B) amend or prematurely terminate, or waive any material right or remedy under, any Contract that is or would constitute a Material Contract; (viii) (A) acquire, lease or license any right or other asset from any other Person; (B) sell or otherwise dispose of, or lease or license, any right or other asset to any other Person; or (C) waive or relinquish any right, in each case, except in the ordinary course of business consistent with past practices; (ix) (A) acquire, lease, license, sell or otherwise dispose of any real property; or (B) enter into, modify or terminate, or waive or relinquish any right under, any lease, lease guaranty, sublease or other Company Contract for the leasing, use or occupancy of any Leased Real Property; (x) (A) make any loan, advance or capital contribution to, or investment in, any other Person (except that the Acquired Companies may make routine advances for travel and other normal business expenses to current managing directors, supervisory directors, directors, officers and employees of the Acquired Companies in the ordinary course of business consistent with past practices); (B) incur any Indebtedness; (C) guarantee any Indebtedness of any Person (other than another Acquired Company); or (D) mortgage, pledge or subject to any Lien any of its assets; (xi) (A) enter into any collective bargaining agreement, works council agreement or other Contract with any employee representative body; (B) establish, adopt, amend or terminate any Company Benefit Plan (or any plan, policy, program, arrangement or agreement which would be a Company Benefit Plan if it were in existence on the date of this Agreement); (C) pay, or make any new commitment to pay, any bonus or make any profit-sharing payment, cash incentive payment or similar payment, other than commissions paid in the ordinary course of business and consistent with past practices; (D) increase, or make any commitment to increase, the amount of the wages, salary, commissions, fringe benefits, employee benefits or other compensation (including equity- based compensation, whether payable in cash or otherwise) or remuneration payable to any Company Associate or forgive any loan to a Company Associate; (E) fund, or make any commitment to fund, any compensation obligation (whether by grantor trust or otherwise); (F) promote or change the title of any of its employees (retroactively or otherwise); (G) hire, engage, or make an offer to hire or engage, any new Company Associate or terminate (other than for cause) any Company Associate; or (H) grant any new right to severance or
38 4897-9174-6440.v17 termination pay, or increase any existing right to severance or termination pay, to any Company Associate; (xii) change any of its methods of accounting or accounting practices in any material respect; (xiii) (A) make, change or rescind any election relating to Taxes (other than the U.S. Tax Election if requested by Purchaser); (B) settle or compromise any claim, controversy or Legal Proceeding relating to Taxes; (C) except as required by applicable Legal Requirements, make any change to (or make a request to any Taxing Authority to change) any of its methods, policies or practices of Tax accounting or methods of reporting income or deductions for Tax purposes; (D) amend, refile or otherwise revise any previously filed Tax Return, or forgo the right to any amount of refund or rebate of a previously paid Tax; (E) enter into or terminate any agreements with a Taxing Authority; (F) prepare any Tax Return in a manner inconsistent with past practices; (G) consent to an extension or waiver of the statutory limitation period applicable to a claim or assessment in respect of Taxes; (H) enter into a Tax allocation agreement, Tax sharing agreement or Tax indemnity agreement; (I) become a member of an affiliated group that files a consolidated, combined, unitary or similar group Tax Return for federal or state or non- U.S. income Tax purposes (including a fiscal unity for Dutch or Irish corporate income tax purposes); or (J) grant any power of attorney relating to Tax matters; (K) request a ruling with respect to Taxes; (xiv) commence or settle any Legal Proceeding; (xv) (A) change its practices or procedures with respect to the collection of accounts receivable or the payment of accounts payable; (B) offer to discount the amount of any account receivable; (C) extend any incentive (whether to an account debtor, an account creditor or any employee or third party responsible for the collection of receivables or the payment of payables) with respect to any account receivable or account payable or the payment or collection thereof; or (D) take or omit to take any other action with the intent or effect of accelerating the collection of receivables or delaying the payment of payables; (xvi) enter into any transaction with any Related Party, other than contracts providing for employment and benefit arrangements entered into in the ordinary course of business consistent with past practices and on an arms’-length basis; (xvii) pay or suffer, or incur any obligation to pay or suffer, any Leakage (other than Permitted Leakage); or (xviii) authorize or approve, or agree, commit or offer to take, any of the actions described in clauses “(i)” through “(xvii)” of this Section 5.3(b). Notwithstanding the foregoing, an Acquired Company may take any action described in clauses “(i)“ through “(xvii)” of this Section 5.3(b) if Purchaser gives its prior written consent to the taking of such action by the Company, and may take any action specified in Part 5.3(b) of the Disclosure Schedule after consultation with Purchaser. Purchaser acknowledges and agrees that nothing contained in this Agreement shall give Purchaser the right to control or direct the operations of any Acquired Company prior to the Closing within the meaning of applicable antitrust laws.
39 4897-9174-6440.v17 5.4 No Negotiation. During the Pre-Closing Period, Sellers and the Company shall not, and shall ensure that none of the other Acquired Companies and no Representative of any Acquired Company and no Seller shall: (a) solicit, encourage or facilitate the initiation or submission of any expression of interest, inquiry, proposal or offer from any Person (other than Purchaser) relating to a possible Acquisition Transaction; (b) participate in any discussions or negotiations or enter into any agreement, understanding or arrangement with, or provide any non-public information to, any Person (other than Purchaser or its Representatives) relating to or in connection with a possible Acquisition Transaction; or (c) entertain or accept any proposal or offer from any Person (other than Purchaser) relating to a possible Acquisition Transaction. Promptly (and in any event within two Business Days) after the date of this Agreement, the Company shall, and Sellers shall cause the Company to, request each Person that has entered into a confidentiality or similar agreement with any Acquired Company during the 12 months preceding the date of this Agreement in connection with such Person’s consideration of a possible Acquisition Transaction or investment in any Acquired Company to return or destroy all confidential information previously furnished to such Person by or on behalf of any of the Acquired Companies. Sellers and the Company shall promptly (and in any event within 24 hours after receipt thereof) give Purchaser notice orally and in writing of any inquiry, indication of interest, proposal, offer or request for non-public information relating to a possible Acquisition Transaction that is received by any Acquired Company, any Seller or any Representative of any Acquired Company or any Seller during the Pre-Closing Period. Such notice shall include reasonable details of such inquiry and a copy of all written materials provided in connection with such inquiry. 5.5 Termination/Amendment of Agreements. (a) The Company shall, and Sellers shall cause the Company to, use its reasonable best efforts to (i) cause the agreements identified in Part 1 of Part 5.5 of the Disclosure Schedule (as Purchaser may supplement or modify prior to the Closing as a result of any supplements, modifications or otherwise made by Sellers to the Disclosure Schedules pursuant to Section 5.16) to be terminated effective as of the Closing and (ii) cause the agreements identified in Part 2 of Part 5.5 of the Disclosure Schedule (as Purchaser may supplement or modify prior to the Closing as a result of any supplements, modifications or otherwise made by Sellers to the Disclosure Schedules pursuant to Section 5.16) to be amended, effective as of the Closing, in a manner satisfactory to Purchaser, as set forth on Part 5.5 of the Disclosure Schedule. Each such termination and amendment shall be in form and substance satisfactory to Purchaser, and shall be subject to advance review and reasonable approval by Purchaser. (b) The Company and each Seller hereby agrees that, effective as of the Closing, automatically and without further action by any Person: (i) all shareholder agreements (including the Shareholder Agreements), investors’ rights agreements, voting agreements, voting trusts, rights of first refusal and co-sale agreements, management rights agreements and all other similar agreements or Contracts to which any of them are a party or by which any of them are bound shall, in each case, be permanently and irrevocably terminated without any Liability to any Acquired Company and be of no further force or effect, and all Consents required to authorize the terminations contemplated by this Section 5.5(b) are hereby provided; (ii) all obligations of the Acquired Companies and all rights of such Seller under any such agreements or Contracts relating to any Acquired Company shall be deemed terminated, discharged and waived; and (iii) no Seller shall have any recourse against any Acquired Company in respect of the matters contained therein. 5.6 Resignation of Officers and Directors. The Company shall, and Sellers shall cause the Company to, obtain and deliver to Purchaser, at or prior to the Closing, the written resignation (in form and substance satisfactory to Purchaser) of each managing director, supervisory director, director, officer or advisory board member, of each Acquired Company, listed on Part 5.6 of the Disclosure Schedule (as Purchaser may supplement or modify prior to the Closing as a result of any supplements, modifications or otherwise made by Sellers to the Disclosure Schedules pursuant to Section 5.16), from his or her corporate
40 4897-9174-6440.v17 offices (but not his or her employment) with such Acquired Company, effective as of the Closing (or, at the option of Purchaser, a later time). Each such resignation shall state and acknowledge that no Acquired Company is in any way indebted or obligated to the resigning party for termination pay, for loans, for advances or otherwise. 5.7 Payoff Letters; Termination of Security Interests. The Company shall, and Sellers shall cause the Company to, no later than three (3) Business Days prior to the Closing Date, obtain and deliver to Purchaser a copy of an executed payoff letter in form and substance reasonably satisfactory to Purchaser, from each creditor with respect to the Indebtedness identified on Part 5.7 of the Disclosure Schedule (as Purchaser may supplement or modify prior to the Closing as a result of any supplements, modifications or otherwise made by Sellers to the Disclosure Schedules pursuant to Section 5.16) (each such payoff letter, a “Payoff Letter”). 5.8 D&O Tail Insurance. Purchaser shall cause the Acquired Companies to ensure that all rights to exculpation, indemnification, and advancement of expenses existing as of the date hereof as provided in their respective organizational documents shall continue in full force and effect in accordance with their respective terms for at least six (6) years after the Closing, and will not be repealed, terminated, limited, amended or in any other way changed, in any way adverse to any Person covered thereby. Prior to the Closing, the Company shall, and Sellers shall cause the Company to, purchase a D&O Tail policy for the D&O Indemnified Persons, in a form acceptable to Purchaser. The rights of each Person under this Section 5.8 shall be in addition to, and not in limitation of, any other rights such Person may have under the organizational documents of the applicable Acquired Company, any other indemnification arrangement, the provisions of applicable Laws, directors’ and officers’, employment practices liability, or fiduciary liability insurance claims under any policy that is or has been in existence with respect to the applicable Acquired Company, or otherwise. The provisions of this Section 5.8 shall survive the consummation of the Closing for the time periods set forth herein and expressly are intended to benefit, and are enforceable by, each of the D&O Indemnified Persons, each of whom is an express and intended third-party beneficiary of this Section 5.8. In the event that Purchaser, an Acquired Company, or any of their respective successors or assigns, directly or indirectly, (x) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity in such consolidation or merger or (y) transfers all or substantially all of an Acquired Company’s properties and assets to any Person, then, in each such case, Purchaser shall use commercially reasonable efforts to cause proper provision to be made so that the applicable successors and assigns shall fully assume the obligations set forth in this Section 5.8. 5.9 E&O Tail Insurance. Prior to the Closing, the Company shall, and Sellers shall cause the Company to, purchase an extended reporting period endorsement under the Company’s existing errors and omissions liability insurance coverage for the Acquired Companies (the “E&O Tail”), in a form acceptable to Purchaser. 5.10 Certain Pre-Closing Actions and Deliverables. Prior to the Closing, the Company shall: (a) deliver to Purchaser an IRS Form W-8 (claiming treaty benefits, if applicable) or W-9, as applicable, duly executed by each Seller, and the Securityholders’ Agent; (b) obtain and deliver to Purchaser two USB drives or other digital media evidencing the documents that were Made Available to Purchaser, which shall indicate, for each document, the date that such document was first uploaded to the Virtual Data Room; (c) deliver to Purchaser a certificate of the managing director of the Company, in form and substance reasonably satisfactory to Purchaser, certifying and attaching (A) the Charter Documents of
41 4897-9174-6440.v17 the Company, and (B) the resolutions adopted by the Company’s management board and supervisory board to approve this Agreement and approve the Contemplated Transactions; and (d) a duly completed and executed IRS Form 8832 and any other forms or documents required pursuant to Section 6.2(g). 5.11 Ancillary Agreements. Prior to the Closing, each Seller shall execute and deliver to Purchaser all agreements and documents set forth in Section 7 or Schedule 1.8(b) to be executed by such Seller. 5.12 Restriction on Transfer. Each Seller agrees that, during the Pre-Closing Period, such Seller shall not directly or indirectly sell or otherwise transfer or dispose of, or pledge or otherwise permit to be subject to any Lien, any security of the Company held beneficially or of record by such Seller, or any direct or indirect beneficial interest therein. 5.13 Tax Certificates. At the Closing, the Company shall, and Sellers shall cause the Company to, deliver to Purchaser (i) a certificate duly executed by the Company that complies with the requirements of Section 1446(f) of the Code and Treasury Regulations Section 1.1446(f)-2(b)(4) and (ii) a statement issued by the Company that complies with the requirements of Treasury Regulations Section 1.1445- 11T(d)(2). 5.14 Confidentiality. (a) From and after the date hereof, each Seller shall keep confidential, and shall ensure that each of such Seller’s Affiliates and Representatives keeps confidential, at all times from and after the date of this Agreement, all Confidential Information, except (i) to the extent that such information is required to be disclosed by applicable Legal Requirements or judicial process, after prior consultation with Purchaser so that Purchaser may seek an appropriate protective order or waive such Seller’s compliance with this Agreement (and, if Purchaser seeks a protective order, such Seller shall cooperate, and shall cause its Affiliates and its and their respective Representatives to cooperate, as Purchaser shall reasonably request at Purchaser’s expense) or (ii) to the extent that the information is or has been made generally available to the public otherwise than through improper disclosure by any Person. (b) On and after the date hereof and through the Closing Date, the parties hereto shall consult with each other before issuing any press release or otherwise making any public statements with respect to this Agreement or the transactions contemplated hereby, and none of the parties hereto shall issue any press release or make any public statement prior to obtaining the other parties’ written approval, which approval shall not be unreasonably withheld, except that no such approval shall be necessary to the extent disclosure may be (i) required by applicable Law or (ii) required or desirable under such parties or its Affiliates’, Representatives’ or direct or indirect equityholders’ applicable stock exchange rules or listing requirements. 5.15 Cooperation with Purchaser Financing Transaction. From and after the date of this Agreement and prior to the earlier of the Closing or the termination of this Agreement, the Acquired Companies and Sellers shall, and shall cause their respective Affiliates and Representatives to, cooperate in good faith with Purchaser in connection with the evaluation, negotiation and consummation of the Purchaser Financing Transaction. All information and materials provided pursuant to this Section 5.15 shall be subject to the confidentiality provisions of this Agreement, and no Seller or Acquired Company shall make any public announcement regarding the Purchaser Financing Transaction without Purchaser’s prior written consent.
42 4897-9174-6440.v17 5.16 Supplements to Disclosure Schedule. For purposes of the Disclosure Schedule delivered at the time of execution of this Agreement, Sellers may satisfy their disclosure obligations by reference to one or more specified documents included in the Virtual Data Room, provided that any such document shall have been Made Available to Purchaser in accordance with the definition thereof. From and after the date hereof and prior to the Closing, Sellers may further supplement, modify or otherwise update the Disclosure Schedule provided, however, that any matter disclosed solely by reference to documents included in the Virtual Data Room shall be expressly reflected in the Disclosure Schedule (including by specific reference to such documents that have been Made Available) as so supplemented, modified or updated prior to the Closing, and no disclosure shall be deemed made solely by virtue of the continued availability of any document in the Virtual Data Room. To the extent that any such supplement, modification or update is deemed material by Purchaser in its reasonable discretion, Purchaser and Sellers shall negotiate in good faith to amend this Agreement to provide Purchaser with a special indemnification in respect of such disclosure and any other rights, remedies or conditions precedent reasonably requested by Purchaser. For purposes of determining satisfaction of the conditions set forth in Section 7 and Section 8, no supplement, modification or update to the Disclosure Schedule pursuant to this Section 5.16 shall be deemed to amend or supplement the Disclosure Schedule or cure any failure of any condition set forth therein. Notwithstanding the foregoing, if the Closing occurs, Purchaser shall be deemed to have accepted the Disclosure Schedule as supplemented and amended pursuant to this Section 5.16 solely for purposes of Section 7, subject to the rights of Purchaser expressly set forth in this Agreement. 6. CERTAIN COVENANTS OF THE PARTIES 6.1 Filings and Consents. (a) Filings; Notification. Each party shall use its reasonable best efforts to file, as soon as practicable after the date of this Agreement, all notices, reports and other documents required or reasonably requested by Purchaser to be filed by such party with any Governmental Entity with respect to the Share Purchase and the other Contemplated Transactions, and to submit promptly any additional information reasonably requested by any such Governmental Entity. Subject to the confidentiality provisions of the Confidentiality Agreement, each of Purchaser and the Company shall, and Sellers shall cause the Company to, promptly supply the other with any information which may be required in order to effectuate any filing (including any application) pursuant to (and to otherwise comply with its obligations set forth in) this Section 6.1(a). The Company and Sellers shall promptly notify Purchaser upon the receipt of: (i) any communication from any official of any Governmental Entity in connection with any filing made in connection with any of the Contemplated Transactions; (ii) Knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Entity with respect to any of the Contemplated Transactions (and shall keep Purchaser informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any Governmental Entity for any amendment or supplement to any filing made in connection with any of the Contemplated Transactions or any information required to comply with any Legal Requirement applicable to any of the Contemplated Transactions. Whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to this Section 6.1(a), the Company and Sellers shall (promptly upon learning of the occurrence of such event) inform Purchaser of the occurrence of such event and cooperate with Purchaser in filing with the applicable Governmental Entity such amendment or supplement. (b) Efforts. Subject to Section 6.1(c), the Company and the Sellers shall use their respective reasonable best efforts to take, or cause to be taken, all actions necessary to consummate the Share Purchase and make effective the other Contemplated Transactions, including to cause the conditions set forth in Section 7 to be satisfied, on a timely basis. Without limiting the generality of the foregoing, but subject to Section 6.1(c), each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Share Purchase and the other
43 4897-9174-6440.v17 Contemplated Transactions; (ii) shall use its best efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Share Purchase or any of the other Contemplated Transactions; provided, however, that, under no circumstances may any Acquired Company pay a fee to any third party in order to obtain any Consent pursuant to this Section 6.1(b) without Purchaser’s prior written consent; and (iii) shall use its reasonable best efforts to lift any restraint, injunction or other legal bar to the Share Purchase. Each such filing, and the form of each such notice or consent, shall be subject to the prior review and reasonable approval of Purchaser. (c) Limitations. Notwithstanding anything to the contrary contained in Section 6.1(b) or elsewhere in this Agreement: (i) Purchaser shall not have any obligation under this Agreement to: (A) propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture, disposition or license (or similar arrangement) of, or limit Purchaser’s freedom of action with respect to, any of the businesses, equity securities, product lines or assets of Purchaser, any of its Subsidiaries or any of the Acquired Companies, or otherwise propose, offer or agree to any other requirement, obligation, condition, limitation or restriction on any of the businesses, equity securities, product lines or assets of Purchaser, any of its Subsidiaries or any of the Acquired Companies; (B) commence or contest, or cause any of its Subsidiaries or Affiliates to commence or contest, any Legal Proceeding relating to the Share Purchase or any of the other Contemplated Transactions; (C) amend or modify any of Purchaser’s rights or obligations under this Agreement; or (D) directly or indirectly restructure or commit to restructure any of the Contemplated Transactions; and (ii) the Company shall not agree to take any of the actions described in clauses “(i)(A),” “(i)(C)” or “(i)(D)” above without the prior written consent of Purchaser. 6.2 Tax Matters. (a) The Securityholders’ Agent shall prepare and timely file, or cause to be prepared and timely filed, all Tax Returns of the Acquired Companies for Pre-Closing Tax Periods, regardless of when such Tax Returns are due, and shall timely pay, or cause to be timely paid, all Taxes shown as due thereon. Any such Tax Return shall be prepared in a manner consistent with past practice (unless otherwise required by applicable Legal Requirements or any U.S. Tax Election), and the Securityholders’ Agent shall submit each such Tax Return to Purchaser (together with schedules, statements and, to the extent requested by Purchaser, supporting documentation) at least 30 days prior to the due date of such Tax Return for Purchaser’s review, comment and approval (such approval not to be unreasonably withheld, conditioned or delayed). (b) Purchaser shall prepare and timely file, or cause to be prepared and timely filed, all Tax Returns of the Acquired Companies for Straddle Periods, and shall timely pay, or cause to be timely paid, all Taxes shown as due thereon, subject to Purchaser’s reimbursement and indemnification rights (including indemnification for all reasonable out-of-pocket costs incurred to prepare and file such Tax Returns for Pre-Closing Tax Periods) pursuant to this Section 6.2 and Section 10.2(a)(iv). Any such Tax Returns shall be prepared on a basis consistent with similar Tax Returns for the immediately preceding taxable period, to the extent in accordance with applicable Legal Requirements and shall not make, amend, revoke or terminate any tax election or change any accounting practice or procedure, to the extent in accordance with applicable Legal Requirements, without the prior consent of the Securityholders’ Agent, which consent shall not unreasonably be withheld, delayed or conditioned. Purchaser shall submit each income Tax Return of the Acquired Companies for Straddle Periods (the “Straddle Period Tax Returns”) to the Securityholders’ Agent (together with schedules, statements, and to the extent requested by the Securityholders’ Agent, supporting documentation) to the Securityholders’ Agent at least 15 days prior to the due date of such Straddle Period Tax Returns. Purchaser shall consider in good faith any comments timely provided by the Securityholders’ Agent to such Straddle Period Tax Returns.
44 4897-9174-6440.v17 (c) No later than 10 days prior to the due date for the payment of Taxes with respect to any Tax Return for which Purchaser has the responsibility to timely file pursuant to Section 6.2(b), Purchaser shall be entitled to be reimbursed from the Indemnity Escrow Fund for the amount of any Taxes allocable to the portion of any Straddle Period ending on the Closing Date as determined in accordance with the definition of “Straddle Period” in Exhibit A that constitute Damages or, if the Indemnity Escrow Fund is insufficient to cover the full amount of such Taxes that constitute Damages, each Seller Indemnitor shall, no later than five days prior to the due date for the payment of Taxes, pay such Seller Indemnitor’s Pro Rata Share of the amount of such shortfall to Purchaser. For the avoidance of doubt, no set-off against the Indemnity Escrow Fund made pursuant to this Section 6.2(c) shall relieve the Seller Indemnitors from their indemnification obligations pursuant to Section 10.2(a) to the extent the amount of Taxes that constitute Damages as ultimately determined, on audit or otherwise, for the periods covered by such Tax Returns exceeds the amount of any set-off made from the Indemnity Escrow Fund pursuant to this Section 6.2(b). (d) Purchaser and the Company, on the one hand, and the Securityholders’ Agent and the Seller Indemnitors, on the other hand, shall cooperate with each other in connection with (i) the preparation of any Tax Return, (ii) any audit examination and (iii) any administrative or judicial proceeding, in the case of each of clauses “(i),” “(ii)” and “(iii),” relating to any Tax imposed on any Acquired Company for any Pre-Closing Tax Period or the portion of any Straddle Period allocable to the Pre-Closing Tax Period, including furnishing or making available (during normal business hours) records, personnel (as reasonably required), books of account, powers of attorney or other materials necessary or useful for the preparation of any such Tax Return, the conduct of any such audit examination or the defense of any claim by any Taxing Authority relating to the imposition of Taxes on any Acquired Company for any Pre-Closing Tax Period or Straddle Period. The Securityholders’ Agent shall promptly notify the Purchaser in writing regarding the receipt by the Securityholders’ Agent or, to the knowledge of the Securityholders’ Agent, by any of the Sellers of notice of any inquiries, claims, assessments, audits, or similar events with respect to Taxes of the Company. The Purchaser shall likewise promptly notify the Securityholders’ Agent in writing regarding the receipt by the Purchaser or any Acquired Company of notice of any inquiries, claims, assessments, audits or similar events with respect to Taxes of any Acquired Company for any Pre-Closing Tax Period or the portion of any Straddle Period allocable to the Pre-Closing Tax Period. (e) The Securityholders’ Agent shall have the right to represent the interests of the Acquired Companies before any relevant Taxing Authority with respect to any assessment, Legal Proceeding or other similar event relating to Taxes of the Acquired Companies for taxable periods ending on or prior to the Locked Box Date which the Seller Indemnitors may be required to be indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to Section 10.2(a) (any such assessment, Legal Proceeding or similar event, a “Tax Matter”) and the Securityholders’ Agent shall have the right to control the defense, compromise or other resolution of any such Tax Matter, including responding to inquiries, filing Tax Returns and contesting, defending against and resolving any assessment for additional Taxes or notice of Tax deficiency or other adjustment of Taxes of, or relating to, such Tax Matter. The Securityholders’ Agent shall further: (i) on an on-going basis keep the Purchaser promptly informed of and consult with Purchaser with respect to all material developments in relation to such Tax Matter; (ii) take all commercially reasonable efforts to keep any Tax Liability or claim in respect of such Tax Matter as low as reasonably possible; (iii) take into account any reasonable, timely received, requests by the Purchaser in pursuing the conduct of any such Tax Matter; and
45 4897-9174-6440.v17 (iv) take into account any reasonable, timely received, comments by the Purchaser, and obtain the Purchaser’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, on (A) any material decisions relating to the conduct of the Tax Matter; (B) any material communication to any third party, including any Taxing Authority or competent court in relation to such Tax Matter, but excluding the Securityholders’ Agent’s advisors; and (C) any admission of liability, or any agreement, settlement or compromise of any kind in relation to such Tax Matter. (f) Prior to the Closing, the Company shall, and Sellers shall cause the Company to, ensure that any and all Tax allocation or Tax sharing agreements between any Acquired Company, on the one hand, and any other Person, on the other, shall be terminated as of the Closing Date and, from and after the Closing Date, none of the Acquired Companies shall be obligated to make any payment pursuant to any such agreement for any past or future period. (g) U.S. Tax Election. Each Acquired Company and each Seller hereby irrevocably nominate, constitute and appoint the Securityholders’ Agent as the true and lawful agent of each Acquired Company and each Seller with full power of substitution, to act in the name, place and stead of the Acquired Company and each such Seller for purposes of executing, on each such Acquired Company’s and each Seller’s behalf, a duly executed IRS Form 8832 (and any other forms or documents reasonably necessary) in such form reasonably acceptable to Purchaser to cause the Acquired Company to validly elect to be classified as a partnership for U.S. federal tax purposes, effective prior to, or on, the Closing Date (each such election a “U.S. Tax Election” and collectively the “U.S. Tax Elections”), and Purchaser shall (in its sole discretion) cause any U.S. Tax Election to be filed prior to, at, or following, the Closing. The Securityholders’ Agent shall provide the U.S. Tax Elections forms to Purchaser no later than within three days of Purchaser’s request thereof. (h) Amending Tax Returns. The Purchaser shall not file amended Tax Returns for any Acquired Company for any Pre-Closing Tax Period without the Securityholders’ Agent’s prior written consent, which consent shall not unreasonably be withheld, conditioned or delayed, provided, however, that such consent shall not be required with respect to any Tax Return that is (A) necessary to correct an error that could reasonably be expected to result in the imposition of penalties on an Acquired Company, the Purchaser or any of their Affiliates unless such filing can be expected to adversely affect any of the Sellers, or (B) required pursuant to a “determination” within the meaning of Section 1313(a) of the Code (or any analogous provision of state, local, or non-U.S. Legal Requirements) and which will not potentially adversely impact any of the Sellers. 6.3 Tax Liability Mitigation. Prior to Closing, Sellers and Purchaser shall cooperate in good faith (and direct their Representatives to cooperate in good faith) in connection with diligence on resolving the matters described in Part 6.3 of the Disclosure Schedule (the “Specific Tax Matters”). If Sellers and Purchaser are unable to resolve the Specific Tax Matters prior to Closing, Purchaser shall, at least seven (7) days prior to the End Date, deliver a written proposal to Sellers, setting forth its proposed resolutions on the Specific Tax Matters (the “Specific Tax Matter Proposal”), and Sellers shall, within four (4) days from the date of the receipt of the Specific Tax Matter Proposal, (a) accept the Specific Tax Matter Proposal, (b) propose that Sellers indemnify Purchaser for such Specific Tax Matters pursuant to Section 10 as if each Specific Tax Matter were an Other Indemnifiable Matter (and such Specific Tax Matters shall survive until the Specified Expiration Date), or (c) provide a written notice to Purchaser that they elect to terminate this Agreement in accordance with Section 9. If Sellers propose clause (b) above, Purchaser shall either (i) accept such proposal or provide a written notice to Sellers that it elects to terminate this Agreement in accordance with Section 9.
46 4897-9174-6440.v17 6.4 Public Announcements. From and after the date of this Agreement: (a) except as expressly contemplated by this Agreement, neither any Seller nor the Company shall (and Sellers and the Company shall ensure that no other Acquired Company and no Representative of any Acquired Company shall) issue or make any press release or public statement regarding (or otherwise disclose to any Person the existence or terms of) this Agreement or the Share Purchase or any of the other Contemplated Transactions, without Purchaser’s prior written consent; and (b) each Seller and the Company shall consult (and Sellers and the Company shall ensure that each Acquired Company consults) with Purchaser prior to issuing or making, and shall consider in good faith the views of Purchaser with respect to, any other press release or public statement. 7. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER The obligations of Purchaser to cause the Share Purchase to be effected and otherwise cause the Contemplated Transactions to be consummated are subject to the satisfaction (or waiver by Purchaser), at or prior to the Closing, of each of the following conditions: 7.1 Accuracy of Representations. (a) Each of the Fundamental Representations shall have been accurate in all respects as of the date of this Agreement and shall be accurate in all respects at and as of the Closing as if made at and as of the Closing (other than any such representations and warranties that by their terms are made as of a specific earlier date, which shall have been accurate in all respects as of such earlier date), in each case, other than de minimis inaccuracies; and (b) each of the representations and warranties made by the Company in Section 2 (other than the Fundamental Representations) shall have been accurate in all material respects as of the date of this Agreement and shall be accurate in all material respects at and as of the Closing as if made at and as of the Closing (other than representations and warranties which by their terms are made as of a specific earlier date, which shall have been accurate in all material respects as of such earlier date); provided, however, that: (i) for purposes of determining the accuracy of the representations and warranties referred to in clause “(b)” above, all materiality and similar qualifications limiting the scope of such representations and warranties shall be disregarded; and (ii) that, for purposes of determining the accuracy of the representations and warranties referred to in clauses “(a)” and “(b)” above, any update of or modification to the Disclosure Schedule made or purported to have been made on or after the date of this Agreement shall be disregarded. 7.2 Performance of Covenants . Each of the covenants and obligations that the Company or any Seller is required to comply with or to perform at or prior to the Closing under this Agreement shall have been complied with and performed in all material respects. 7.3 Governmental and Other Consents; No Restraints on Business. (a) Governmental Consents. All filings with and Consents of any Governmental Entity required to be made or obtained in connection with the Share Purchase or any of the other Contemplated Transactions shall have been made or obtained and shall be in full force and effect, and any waiting period (and any extension thereof) under any Legal Requirement preventing, prohibiting or otherwise restraining the Share Purchase or any of the other Contemplated Transactions shall have expired or been terminated. (b) Other Consents and Notices. All Consents and notices identified in Schedule 7.3(b) shall have been obtained (in the case of Consents) or made (in the case of notices) and shall be in full force and effect.
47 4897-9174-6440.v17 7.4 No Material Adverse Effect. There shall not have occurred any Material Adverse Effect. 7.5 No Restraints. No temporary restraining order, preliminary or permanent injunction or other Order preventing the consummation of the Share Purchase shall have been issued by any court of competent jurisdiction or other Governmental Entity and remain in effect, and there shall not be any applicable Legal Requirement enacted or deemed applicable to the Share Purchase by any Governmental Entity that makes consummation of the Share Purchase illegal. 7.6 No Legal Proceedings. No Governmental Entity or other Person shall have commenced any Legal Proceeding that remains pending, or shall have threatened to commence any Legal Proceeding: (a) challenging the Share Purchase or any of the other Contemplated Transactions; (b) seeking recovery of a material amount of damages in connection with the Share Purchase or any of the other Contemplated Transactions; (c) seeking to prohibit or limit the exercise by Purchaser of any material right pertaining to its ownership of shares of the Company; (d) that may have the effect of preventing, delaying, making illegal or otherwise interfering with the Share Purchase or any of the other Contemplated Transactions; (e) seeking to compel the Company, any other Acquired Company, Purchaser or any Affiliate of Purchaser to dispose of or hold separate any material assets as a result of the Share Purchase or any of the other Contemplated Transactions; or (f) that may result in the imposition of criminal liability on Purchaser, any Affiliate of Purchaser or any Acquired Company or any officer or director of Purchaser, any Affiliate of Purchaser or any Acquired Company in connection with the Share Purchase or any of the other Contemplated Transactions. 7.7 Agreements and Documents. Purchaser shall have received all agreements, documents and other deliverables identified in Schedule 1.8(b). 7.8 Purchaser Financing. Purchaser (or its Affiliate) shall have entered into and completed, on terms satisfactory to Purchaser in its sole discretion, a debt or equity financing or other investment transaction with one or more third-party investors (the “Purchaser Financing Transaction”) on or prior to the End Date. Notwithstanding anything to the contrary contained in this Agreement, (i) Purchaser shall have no obligation to obtain, consummate or cause the consummation of any Purchaser Financing Transaction that is substantively inconsistent with the Indicative Summary Non-Binding Terms dated February 27, 2026, by and between Crestone Air Partners, Inc. and the prospective investors named therein, (ii) the failure to consummate Purchaser Financing Transaction on or prior to the End Date shall not constitute a breach of this Agreement by Purchaser, and (iii) Purchaser shall have no obligation to waive this condition. 7.9 Due Diligence. Purchaser shall have completed its legal, tax and financial due diligence of the Acquired Companies and their respective business, assets, liabilities and results of operations, and the results thereof shall be satisfactory to Purchaser. At least seven (7) days prior to the End Date, Purchaser shall notify the Company in writing whether the results of such due diligence are satisfactory to Purchaser or whether Purchaser has identified any material matters arising from its due diligence that are unsatisfactory to Purchaser or that may prevent the consummation of the Contemplated Transactions. If Purchaser provides notice of any such unsatisfactory matters, the Company and Purchaser shall discuss in good faith the resolution of such matters. In the event that the Company and Purchaser are unable to resolve the matters identified by Purchaser in a manner satisfactory to Purchaser on or prior to the End Date, then either Purchaser or the Company may elect to terminate this Agreement in accordance with Section 9.1, whereupon the rights and obligations of the parties shall cease, except for those provisions that expressly survive termination. 7.10 Audited Financial Statements. Purchaser shall have received audited financial statements of the Acquired Companies (consisting of balance sheets and income statements) for the fiscal years ending
48 4897-9174-6440.v17 December 31, 2025, and December 31, 2024, prepared on a consolidated basis in accordance with Dutch GAAP and audited by Brahn Audit (“the Audited Financial Statements”). Any fees and expenses of Brahn Audit incurred or payable by the Acquired Companies in connection with the preparation of the Audited Financial Statements shall be borne by Purchaser. 7.11 Tax Mitigation. Each of the Specific Tax Matters shall have been resolved to Purchaser’s satisfaction, in its sole discretion, or Sellers shall have agreed to indemnify Purchaser in respect of the Specific Tax Matters in accordance with Section 6.3. 7.12 Transfer of Aircraft. Purchaser shall have received evidence reasonably satisfactory to Purchaser that Parus Ater Ltd. shall have sold and transferred the Aircraft listed on Part 2.23(a) of the Disclosure Schedule to one or more Persons that are not Acquired Companies, free and clear of all Liens (other than Permitted Liens). 7.13 No Conflict Escalation. None of the following shall have occurred on or after the date of this Agreement: (a) any military, political or economic conflict involving the Islamic Republic of Iran, China, Russia, the United States of America, Israel or any of their respective allies or proxies shall have escalated or expanded beyond a regional conflict; (b) any Governmental Entity shall have imposed or announced the imposition of (i) sanctions, embargoes or export controls targeting or materially affecting the aircraft leasing, aviation or aerospace industries, (ii) restrictions on the operation, leasing, servicing, maintenance, sale or transfer of Aircraft in any geographic region in which the Acquired Companies conduct business; (c) any airline customer or aircraft lessee with a current Aircraft Lease shall have terminated, suspended or materially curtailed operations, or provided written notice of intent to do so, as a result of such conflict or related geopolitical developments or (iii) closures of, or prohibitions or restrictions on the use of, airspace in any country or region that is material to the operations of the Acquired Companies or their airline or aircraft operator customers; or (d) any event, development or circumstance arising from or relating to such conflict shall have occurred that has had, or would reasonably be expected to (i) materially decrease the demand for aircraft leasing or servicing services in the commercial aviation industry, (ii) materially decrease the value of Aircraft or the availability of equity or debt financing for Aircraft, or (iii) notwithstanding anything to the contrary in this Agreement, materially impact the business, operations, financial condition or prospects of the Acquired Companies, taken as a whole. 8. CONDITIONS PRECEDENT TO OBLIGATION OF SELLERS The obligation of Sellers to sell the Shares to Purchaser and otherwise consummate the Contemplated Transactions is subject to the satisfaction (or waiver by Sellers), at or prior to the Closing, of the following conditions: 8.1 Accuracy of Representations. The representations and warranties made by Purchaser in this Agreement shall have been accurate in all material respects as of the date of this Agreement and shall be accurate in all material respects as of the Closing as if made at and as of the Closing, except where the failure of the representations and warranties of Purchaser to be accurate in all material respects would not reasonably be expected to have a material adverse effect on the ability of Purchaser to consummate the Share Purchase. 8.2 Performance of Covenants. The covenants and obligations that Purchaser is required to comply with or to perform at or prior to the Closing under this Agreement shall have been complied with and performed in all material respects. 8.3 No Restraints. No temporary restraining order, preliminary or permanent injunction or other Order preventing the consummation of the Share Purchase by the Sellers shall have been issued by
49 4897-9174-6440.v17 any court of competent jurisdiction or other Governmental Entity and remain in effect, and there shall not be any applicable Legal Requirement enacted or deemed applicable to the Share Purchase by any Governmental Entity that makes consummation of the Share Purchase by the Sellers illegal. 9. TERMINATION 9.1 Termination Events. This Agreement may be terminated prior to the Closing: (a) by the mutual written consent of Purchaser and the Company; (b) by Purchaser if the Closing has not taken place on or before 5:00 p.m. (New York Time) on May 15, 2026 (the “End Date”) and any condition set forth in Section 7 has not been satisfied or waived as of the time of termination (in each case, other than as a result of any failure on the part of Purchaser to comply with or perform any covenant or obligation of Purchaser set forth in this Agreement); (c) by the Company if the Closing has not taken place on or before 5:00 p.m. (New York Time) on the End Date and any condition set forth in Section 8 has not been satisfied or waived as of the time of termination (in each case, other than as a result of any failure on the part of the Company or the Sellers to comply with or perform any covenant or obligation set forth in this Agreement); (d) by Purchaser or the Company if: (i) a court of competent jurisdiction or other Governmental Entity shall have issued a final and non-appealable Order or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Share Purchase; or (ii) there shall be any applicable Legal Requirement enacted, promulgated, issued or deemed applicable to the Share Purchase by any Governmental Entity that would make consummation of the Share Purchase illegal; (e) by Purchaser if: (i) any of the Company’s or any Seller’s representations or warranties contained in this Agreement shall be inaccurate as of the date of this Agreement, or shall have become inaccurate as of a date subsequent to the date of this Agreement, such that any of the conditions set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company or any Seller contained in this Agreement shall have been breached such that the condition set forth in Section 7.1 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, could reasonably be expected to have or result in a Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the Company’s or any Seller’s representations or warranties as of a date subsequent to the date of this Agreement or a breach of a covenant by the Company or any Seller is curable by the Company or such Seller, as applicable, through the use of reasonable efforts within 10 days after Purchaser notifies the Company in writing of the existence of such inaccuracy or breach (the “Company Cure Period”), then Purchaser may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Company Cure Period, provided that the Company or such Seller, as applicable, continues to exercise reasonable efforts to cure such inaccuracy or breach during the Company Cure Period (it being understood that Purchaser may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Company Cure Period); (f) by the Company if: (i) any of Purchaser’s representations or warranties contained in this Agreement shall be inaccurate as of the date of this Agreement, or shall have become inaccurate
50 4897-9174-6440.v17 as of a date subsequent to the date of this Agreement, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of Purchaser’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Purchaser’s representations or warranties as of a date subsequent to the date of this Agreement or a breach of a covenant by Purchaser is curable by Purchaser through the use of reasonable efforts within 10 days after the Company notifies Purchaser in writing of the existence of such inaccuracy or breach (the “Purchaser Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(f) as a result of such inaccuracy or breach prior to the expiration of Purchaser Cure Period, provided that Purchaser continues to exercise reasonable efforts to cure such inaccuracy or breach during Purchaser Cure Period (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(f) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of Purchaser Cure Period); (g) by the Company in accordance with Sections 1.5, 6.3, 7.9 or 10.2(a)(viii); or (h) by Purchaser in accordance with Sections 1.5, 6.3 or 7.9. 9.2 Termination Procedures. If Purchaser wishes to terminate this Agreement pursuant to Section 9.1, Purchaser shall deliver to the Company a written notice stating that Purchaser is terminating this Agreement and setting forth a brief description of the basis on which Purchaser is terminating this Agreement. If the Company wishes to terminate this Agreement pursuant to Section 9.1, the Company shall deliver to Purchaser a written notice stating that the Company is terminating this Agreement and setting forth a brief description of the basis on which the Company is terminating this Agreement. 9.3 Effect of Termination. If this Agreement is terminated pursuant to Section 9.1, all further obligations of the parties under this Agreement shall terminate and there shall be no liability on the part of any of the parties to this Agreement; provided, however, that: (a) no party to this Agreement shall be relieved of any obligation or liability arising from any fraud on the part of such party prior to the termination of this Agreement or from any prior material breach by such party of any representation or warranty, or any willful breach by such party of any covenant or obligation, contained in this Agreement; (b) the Sellers and the Company shall, in all events, remain bound by and continue to be subject to the provisions set forth in Section 6.4; (c) the parties shall, in all events, remain bound by and continue to be subject to the provisions set forth in Section 11; and (d) Purchaser and the Company shall, in all events, remain bound by and continue to be subject to the Confidentiality Agreement. 10. INDEMNIFICATION 10.1 Survival of Representations. (a) General Survival. Subject to Sections 10.1(b) and 10.1(e), the representations and warranties made by the Company, any Seller or Purchaser in this Agreement (in each case, other than the Fundamental Representations), and the rights of the Indemnitees to be indemnified, compensated and reimbursed with respect to any breach of or inaccuracy in any of such representations and warranties, shall survive the Closing until 11:59 p.m. (New York Time) on the date that is 15 months after the Closing Date (the “General Expiration Date”); provided, however, that if, at any time on or prior to the General Expiration Date, any Indemnitee delivers to the Securityholders’ Agent or to Purchaser, as applicable, a Notice of Claim alleging an inaccuracy in or breach of any such representation or warranty, then the claim asserted in such Notice of Claim shall survive the General Expiration Date until such time as such claim is fully and finally resolved.
51 4897-9174-6440.v17 (b) Fundamental Representations. Notwithstanding anything to the contrary contained in Section 10.1(a), but subject to Section 10.1(e), (i) each Fundamental Representation (other than the representations and warranties set forth in Section 2.8 (Taxes)), and the rights of Purchaser Indemnitees to be indemnified, compensated and reimbursed with respect to any breach of or inaccuracy in any Fundamental Representation, shall survive the Closing until 11:59 p.m. (New York Time) on the fifth anniversary of the Closing Date and (ii) the representations and warranties set forth in Section 2.8 (Taxes), and the rights of the Purchaser Indemnitees to be indemnified, compensated and reimbursed with respect to any breach of or inaccuracy in such representations, shall survive the Closing until 11:59 p.m. (New York Time) on the 60th day following the expiration of the statute of limitations period applicable to such representation (as such statute of limitations pertains to the subject matter of such representation, the matter giving rise to the claim, or to the ability of Purchaser or any other Purchaser Indemnitee to make a claim relating to a breach of such representation, as the case may be) (such applicable date, the “Fundamental Representations Expiration Date”); provided, however, that if, at any time on or prior to the applicable Fundamental Representations Expiration Date, any Purchaser Indemnitee delivers to the Securityholders’ Agent (or, if the notice sets forth an Individual Claim, to the applicable Seller Indemnitor) a Notice of Claim alleging an inaccuracy in or breach of any Fundamental Representation, then the claim asserted in such Notice of Claim shall survive the applicable Fundamental Representations Expiration Date until such time as such claim is fully and finally resolved. (c) Covenants and Obligations. Subject to Section 10.1(e), all covenants and obligations of the Company, any Seller, the Securityholders’ Agent or Purchaser contained in this Agreement shall survive the Closing until fully performed in accordance with their terms, and the rights of the Indemnitees to be indemnified, compensated and reimbursed with respect to any breach of any covenant or obligation of any Seller, the Securityholders’ Agent or Purchaser contained in this Agreement shall survive the Closing until 11:59 p.m. (New York Time) on the date that is 15 months after the date such covenant was (or was required to be) fully performed in accordance with its terms; provided, however, that if, at any time on or prior to the applicable expiration date referred to in this sentence, any Indemnitee delivers to the Securityholders’ Agent (or, in the case of an Individual Claim, the applicable Seller Indemnitor) or Purchaser, as applicable, a Notice of Claim alleging a breach of any such covenant or obligation, then the claim asserted in such Notice of Claim shall survive such expiration date until such time as such claim is fully and finally resolved. (d) Other Indemnifiable Matters. Subject to Section 10.1(e), the rights of the Purchaser Indemnitees to be indemnified, compensated and reimbursed with respect to any of the Other Indemnifiable Matters shall survive the Closing until 11:59 p.m. (New York Time) on the fifth anniversary of the Closing Date, except for matters described in Section 10.2(a)(iv) and Section 10.2(a)(vi), which shall survive until 60 days after the expiration of the applicable statute of limitations period applicable to such Other Indemnifiable Matter (as such statute of limitations pertains to the subject matter of Section 10.2(a)(iv) and Section 10.2(a)(vi), the matter giving rise to the claim, or to the ability of Purchaser or any third party to make a claim relating to such Other Indemnifiable Matter, as the case may be) (such later date, the “Specified Expiration Date”); provided, however, that if, at any time on or prior to the applicable Specified Expiration Date, any Purchaser Indemnitee delivers to the Securityholders’ Agent (or, in the case of an Individual Claim, the applicable Seller Indemnitor) a Notice of Claim seeking indemnification, compensation or reimbursement with respect to any of the Other Indemnifiable Matters, then the claim asserted in such Notice of Claim shall survive such Specified Expiration Date until such time as such claim is fully and finally resolved. (e) Fraud. Notwithstanding anything to the contrary contained in Section 10.1(a), Section 10.1(b), Section 10.1(c) or Section 10.1(d), the limitations set forth in Section 10.1(a), Section 10.1(b), Section 10.1(c) and Section 10.1(d) shall not apply in the event of any Fraud (in each case, whether on the part of an Indemnitor against whom liability is being asserted, on the part of any other Seller
52 4897-9174-6440.v17 Indemnitor or holder or former holder of securities of any Acquired Company or on the part of any Acquired Company). 10.2 Indemnification. (a) Indemnification for Company Matters. From and after the Closing (but subject to Section 10.1), each Seller Indemnitor shall hold harmless and indemnify each of Purchaser Indemnitees from and against, and shall compensate and reimburse each of Purchaser Indemnitees for, such Seller Indemnitor’s Pro Rata Share of any Damages that are directly or indirectly suffered or incurred at any time by any of Purchaser Indemnitees or to which any of Purchaser Indemnitees may otherwise directly or indirectly become subject at any time and that arise directly or indirectly from or are a direct or indirect result of, or are directly or indirectly connected with: (i) any inaccuracy in or breach of any representation or warranty made by the Company in Section 2 and the Company Closing Certificate (in each case, without giving effect to any materiality or similar qualification limiting the scope of such representation or warranty, except for Sections 2.1(a)(iii) and 2.5); (ii) any inaccuracy in, or omission of, any information required to be included in, the Consideration Spreadsheet, including any inaccuracy with respect to or failure to properly calculate or allocate the Closing Adjusted Transaction Value or any other amount set forth in the Consideration Spreadsheet; (iii) any breach of any covenant or obligation of any Seller, the Securityholders’ Agent, or, prior to Closing, any Acquired Company in this Agreement (other than any breach of any Individual Covenant by any Seller); (iv) (A) any Tax imposed on any Acquired Company on or prior to the Locked Box Date, including, for the avoidance of doubt, any out-of-pocket costs incurred by Purchaser or any of its Affiliates to prepare and file Tax Returns on or prior to the Locked Box Date or with respect to any audit, examination or Legal Proceeding relating to any period prior to Locked Box Date, (B) any Tax imposed on any Acquired Company in, or attributable to, the period from the Locked Box Date up to and including the Closing Date, if and to the extent the Tax imposed arose outside the ordinary course of business, (C) any Tax for which any Acquired Company is liable under pursuant to sections 39 and 43 of the Dutch Tax Collection Act 1990 (Invorderingswet 1990), (D) any Deemed Tax Liability, (E) 50% of any Transfer Taxes, (F) any withholding Taxes imposed on Purchaser or any Acquired Company or for which Purchaser or any Acquired Company is liable as a result of any of the Contemplated Transactions or (G) any costs and expenses, incurred by Purchaser or any of the Acquired Companies in connection with a claim under (A) through (G) above, or any reasonable action taken in avoiding, mitigating, resisting or settling any such liability as referred to above; provided, however, that no Seller Indemnitor shall have any obligation in respect of any item referenced in this Section 10.2(a)(iv) to the extent such item was included in the definition of Indebtedness and that was taken into account in calculating the Class A Consideration or Class P Consideration; (v) any claim asserted or held by current, former or alleged shareholder or other security holder of any Acquired Company (A) relating to this Agreement, any other Transaction Document or any of the Contemplated Transactions or any failure or alleged failure to comply with any provision of the Shareholder Agreements or the Charter Documents of any Acquired Company, (B) alleging or involving any
53 4897-9174-6440.v17 ownership of, interest in or right to acquire any shares or other securities of any Acquired Company or (C) that is in any way inconsistent with, or that involves an allegation of facts inconsistent with, any of the information set forth in Section 2.2, in Part 2.2 of the Disclosure Schedule or in the Consideration Spreadsheet; (vi) any claim or right asserted or held by any Person who is or at any time was a managing director, supervisory director, director, officer, employee or agent of any Acquired Company involving a right or entitlement to indemnification, reimbursement or advancement of expenses or any other relief or remedy with respect to any act or omission on the part of such Person or any event or other circumstance that arose, occurred or existed at or prior to the Closing; (vii) any Fraud with respect to the representations or warranties in Section 2 on the part of any Acquired Company or any Representative of any Acquired Company; or (viii) any (A) Specific Tax Matter determined to be indemnifiable in accordance with Section 6.3 or (B) matter identified by Purchaser in the course of its remaining due diligence pursuant to Section 7.9 and mutually agreed between Purchaser and Seller to be included in this Section 10.2(a)(viii); provided, that, if not mutually agreed between Purchaser and Seller, Purchaser may elect to terminate this Agreement in accordance with Section 9. (b) Indemnification by each Seller Indemnitor. From and after the Closing (but subject to Section 10.1), each Seller Indemnitor shall hold harmless and indemnify each of Purchaser Indemnitees from and against, and shall compensate and reimburse each of Purchaser Indemnitees for, any Damages that are directly or indirectly suffered or incurred at any time by any of Purchaser Indemnitees or to which any of Purchaser Indemnitees may otherwise directly or indirectly become subject at any time (regardless of whether or not such Damages relate to any third party claim) and that arise directly or indirectly from or are a direct or indirect result of, or are directly or indirectly connected with: (i) any inaccuracy in or breach of any representation or warranty made by such Seller Indemnitor in Section 3, any Transaction Document entered into by such Seller Indemnitor or the Seller Closing Certificate (in each case, without giving effect to any materiality or similar qualification limiting the scope of such representation or warranty); (ii) any breach by such Seller Indemnitor of any Individual Covenant or any covenant or obligation of such Seller Indemnitor in any Transaction Document entered into by such Seller Indemnitor; (iii) regardless of any disclosure of any matter set forth in the Disclosure Schedule, any Transfer Tax or other Tax incurred or imposed in connection with the sale, transfer, cancellation, exchange or receipt of consideration in respect of any security of the Company held by such Seller Indemnitor; or (iv) any Fraud with respect to the representations or warranties in Section 3 on the part of such Seller or any Representative of such Seller. (c) Indemnification for Purchaser Matters. From and after the Closing (but subject to Section 10.1), Purchaser shall hold harmless and indemnify each of Sellers, Sellers’ current and future
54 4897-9174-6440.v17 Affiliates (other than the Acquired Companies), each of their respective Representatives, successors and assigns (the “Seller Indemnitees”) from and against, and shall compensate and reimburse each of the Seller Indemnitees for any Damages that are directly or indirectly suffered or incurred at any time by any of the Seller Indemnitees or to which any of the Seller Indemnitees may otherwise directly or indirectly become subject at any and that arise directly or indirectly from or are a direct or indirect result of, or are directly or indirectly connected with: (i) any inaccuracy in or breach of any representation or warranty made by Purchaser in Section 4, any Transaction Document entered into by Purchaser or the Purchaser Closing Certificate (in each case, without giving effect to any materiality or similar qualification limiting the scope of such representation or warranty); (ii) any breach of any covenant or obligation of Purchaser, or, after the Closing, any Acquired Company in this Agreement; or (iii) any Fraud with respect to the representations or warranties in Section 4 on the part of Purchaser or any Representative of Purchaser. 10.3 Limitations. (a) Deductible. Subject to Section 10.3(b), the Seller Indemnitors shall not be required to make any indemnification payment pursuant to Section 10.2(a)(i) for any inaccuracy in or breach of any representation or warranty in this Agreement (other than with respect to the Fundamental Representations) until such time as the total amount of all Damages (including the Damages arising from such inaccuracy or breach and all other Damages arising from any other inaccuracies or breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of Purchaser Indemnitees, or to which any one or more of Purchaser Indemnitees has or have otherwise directly or indirectly become subject, exceeds $251,750 (the “Deductible”) in the aggregate. If the total amount of such Damages exceeds the Deductible, then Purchaser Indemnitees shall be entitled to be indemnified against and compensated and reimbursed for any amount of Damages in excess of the Deductible. (b) Applicability of Deductible. The limitation set forth in Section 10.3(a) shall not apply to (and shall not limit the indemnification or other obligations of any Seller Indemnitor for or with respect to): (i) inaccuracies in or breaches of any of the Fundamental Representations; (ii) any of the matters referred to in Section 10.2(a)(ii) and Section 10.2(a)(iv) through Section 10.2(a)(viii) and Section 10.2(b)(ii); or (iii) any Other Indemnifiable Matter. (c) Seller Indemnitors General Cap. Subject to Section 10.6(b)(ii) and Section 10.6(c) the total dollar amount of the indemnification payments that the Seller Indemnitors can be required to make to Purchaser Indemnitees pursuant to Section 10.2(a)(i) for any inaccuracy in or breach of any representation or warranty in this Agreement (other than with respect to the Fundamental Representations or with respect to any Seller Indemnitor that committed, participated in or had actual knowledge of Fraud) shall be capped at $3,785,000 (the “Cap”). (d) Purchaser General Cap. The total dollar amount of the indemnification payments that Purchaser can be required to make to the Seller Indemnitees pursuant to Section 10.2(c)(i) for any inaccuracy in or breach of any representation or warranty in this Agreement (other than with respect to Fraud committed by Purchaser) shall be capped at the Cap. (e) Total Cap; Fraud. The total amount of indemnification payments that each Seller Indemnitor shall be required to make to Purchaser Indemnitees pursuant to Section 10.2 (other than with
55 4897-9174-6440.v17 respect to Section 10.2(b)(ii)) shall be limited to an amount equal to the aggregate amount of consideration actually paid to such Seller Indemnitor pursuant to Sections 1.2, 1.3 and 1.4(a) (net of any Taxes or other fees and expenses); provided, however, that notwithstanding anything to the contrary contained in this Agreement: there shall be no limitation (whether under this Section 10 or otherwise) on the liability of any Seller Indemnitor that committed, participated in or had actual knowledge of Fraud. (f) Tax Limitations. Seller Indemnitors shall not be liable for any claim under Section 10.2(a)(iv) if and to the extent the Tax Liability and/or Deemed Tax Liability concerned arises or is increased as a result of any change or enactment of Law (whether or not taking effect retroactively), or any change in the interpretation of existing Law, in each case announced and coming into force after the Closing. (g) Reductions. When calculating the liability of the Seller Indemnitors under: (i) Section 10.2(a)(iv)(A) and Section 10.2(a)(iv)(B), the amount of any actual cash Tax Benefit actually derived by the relevant Purchaser Indemnitee as determined in the sole discretion of such Purchaser Indemnitee as the result of sustaining or paying Losses related to the claim or the facts giving rise to such claim shall be deducted but only such cash tax benefits actually derived in the taxable period during which such Losses are sustained or paid (determined by treating the applicable Tax item as the last item to be used by the Purchaser Indemnitee), and taking into account any Tax detriment arising from indemnification hereunder unless such Tax Benefit was taken into account in determining the Leakage Tax Benefit; and (ii) Section 10.2(a)(iv)(A), Taxes, to the extent the Taxes in question are deferred tax liabilities of at least $1,000,000 that have been reflected on the balance sheet of the Locked Box Financial Statements (used for determining the Consideration) of the Acquired Companies, shall be deducted. (h) Effect of Indemnification Payments. To the extent permitted by applicable Legal Requirements, indemnification payments made pursuant to this Section 10 shall be treated by all parties as adjustments to the Consideration. 10.4 No Contribution. Except as otherwise provided in Section 5.8, effective as of the Closing, the Securityholders’ Agent and each Seller Indemnitor: (a) expressly waives, and acknowledges and agrees that he, she or it shall not have and shall not exercise or assert (or attempt to exercise or assert), any right of contribution, right of indemnity, right to reimbursement or advancement of expenses or other right or remedy against the Company or any Acquired Company, whether in such Person’s capacity as a securityholder, managing director, supervisory director, director, officer, Representative or otherwise, or pursuant to any Charter Document of any Acquired Company, any applicable Legal Requirement, any Contract or otherwise, in connection with any indemnification, compensation or reimbursement obligation or any other liability to which such Person may become subject under or in connection with this Agreement or any other Transaction Document (including, for the avoidance of doubt, rights to indemnification, reimbursement or advancement of any costs or expenses incurred by such Person relating to the investigation, evaluation or defense of any claim by any Indemnitee under this Section 10); and (b) expressly waives and releases any right of subrogation, contribution, advancement, reimbursement or indemnification and any other claim that the Securityholders’ Agent or such Seller Indemnitor may have, against Purchaser, any Affiliate of Purchaser or any Acquired Company. 10.5 Indemnification Claim Procedures.
56 4897-9174-6440.v17 (a) Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Purchaser Indemnitees) of any claim or Legal Proceeding (whether against any Acquired Company, Purchaser or any other Person) with respect to which any Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to this Section 10 (a “Third Party Claim”), the Indemnitee will give such Indemnitor reasonably prompt written notice thereof; provided, however, that any failure of the Indemnitee to provide reasonably prompt notice of a Third Party Claim shall not limit its right to indemnification hereunder unless the Indemnitor is materially prejudiced by such failure. Such notice by the Indemnitee will describe the Third Party Claim in reasonable detail and will indicate the estimated amount, if reasonably practicable, of the Damages that have been or may be sustained by the Indemnitee. The Indemnitor will have the right to participate in the defense of such Third Party Claim at the Indemnitor’s expense, or at its option (subject to the limitations set forth in this Section 10) to assume the defense thereof within fifteen (15) days after receipt of such notice only if it (A) expressly acknowledges in writing that such Third Party Claim is indemnifiable pursuant to the terms of this Section 10 without waiving any limitations hereof (B) retains counsel reasonably satisfactory to the Indemnitee; provided, however, that: (i) In the event the Indemnitor assumes the defense of the Third Party Claim, the Indemnitee shall be entitled to observe in the defense of the Third Party Claim and to employ a recognized and reputable counsel of its choice for such purpose; provided, however, that the fees and expenses of such separate counsel shall be borne by the Indemnitee and shall not be subject to indemnification under this Section 10; (ii) The Indemnitor shall conduct the defense diligently and in good faith, shall keep the Indemnitee reasonably informed of all material developments; (iii) If the Indemnitor fails to timely assume the defense or, having assumed the defense, fails to prosecute such defense diligently and in good faith, the Indemnitee shall have the right to assume and control the defense of such Third Party Claim at Indemnitor’s reasonable expense; and (iv) In no event shall the Indemnitor or the Indemnitee settle a Third Party Claim without the prior express written consent of the other party; provided, that no such consent of the Indemnitee shall be required to the settlement by the Indemnitor if such settlement (a) provides for the payment by the Indemnitor of money as sole relief for the claimant, (b) results in the full and unconditional release of Indemnitee from all liabilities arising or relating to, or in connection with, the Third Party Claim), (c) contains no admission of wrongdoing or liability by the Indemnitee and (d) does not impose any injunction, restriction, covenant, or other non-monetary obligation on the Indemnitee or any of its Affiliates; and (v) The Indemnitor shall not be entitled to assume the defense of a Third Party Claim if: (A) such Third Party Claim involves criminal allegations, (B) such Third Party Claim demands injunctive or other equitable or non-monetary relief or (C) there is a conflict of interest between the Indemnitor and the Indemnitee, pursuant to which the Indemnitee shall have the right to control the defense at the Indemnitor’s reasonable expense. (b) Direct Claims. Any claim by an Indemnitee on account of Damages that does not result from a Third Party Claim (a “Direct Claim”) will be asserted by giving the Indemnitor written notice thereof. Such notice by the Indemnitee will describe the Direct Claim in reasonable detail and will indicate the estimated amount, if reasonably practicable, of Damages that has been or may be sustained by the
57 4897-9174-6440.v17 Indemnitee and shall be provided reasonably promptly after the Indemnitee becomes aware of such Direct Claim; provided that any failure of the Indemnitee to provide reasonably prompt notice of a Direct Claim shall not limit its right to indemnification hereunder unless and only to the extent that the Indemnitor is materially prejudiced by such failure. Within thirty (30) days after receipt of such notice, the Indemnitor shall notify the Indemnitee in writing whether it disputes such Direct Claim. If the Indemnitor fails to respond within such thirty (30) day period, the Direct Claim shall be deemed accepted. If the Indemnitor notifies the Indemnitee that it does not dispute the Direct Claim described in such notice, or if such Direct Claim is deemed accepted, the Damages in the amount specified in the Indemnitee’s notice shall be deemed a liability of the Indemnitor, and the Indemnitor shall pay the amount of such Damages to the Indemnitee on demand by the Indemnitee in accordance with the terms herein. If the Indemnitor gives notice to the Indemnitee that it disputes the Direct Claim, the Indemnitee may pursue its indemnification rights hereunder and whatever other legal remedies may be available to enforce its rights under this Section 10. 10.6 Indemnity Escrow Fund. (a) Release of Indemnity Escrow Fund. (i) Promptly after the General Expiration Date, Purchaser shall notify the Securityholders’ Agent in writing of the aggregate dollar amount that Purchaser determines in good faith to be necessary to satisfy: (i) all Unresolved Collective Claims as of 11:59 p.m. (New York Time) on the General Expiration Date (such amount being referred to as the “Unresolved Collective Claim Retained Amount”); and (ii) all Unresolved Individual Claims as of 11:59 p.m. (New York Time) on the General Expiration Date (each such amount applicable to a particular Seller Indemnitor being referred to as such Seller Indemnitor’s “Unresolved Individual Claim Retained Amount”). (ii) Within 10 Business Days after the General Expiration Date, Purchaser and the Securityholders’ Agent shall, subject to Section 10.6(d), jointly instruct the Escrow Agent to release from the Indemnity Escrow Fund and deliver to the Payment Agent for further distribution to each Seller Indemnitor, the amount, if any, by which: (A) such Seller Indemnitor’s Pro Rata Share of an amount, if positive, equal to (1) the amount remaining in the Indemnity Escrow Fund as of 11:59 p.m. (New York Time) on the General Expiration Date, minus (2) the Unresolved Collective Claim Retained Amount; exceeds (B) such Seller Indemnitor’s Unresolved Individual Claim Retained Amount. (b) Resolution of Unresolved Claims. (i) Following the General Expiration Date, if an Unresolved Collective Claim is finally resolved, then Purchaser and the Securityholders’ Agent shall, subject to Section 10.6(d), within 10 Business Days after the final resolution of such Unresolved Collective Claim, jointly instruct the Escrow Agent to release from the Indemnity Escrow Fund and deliver to the Payment Agent for further distribution to each Seller Indemnitor, the amount, if any, by which: (A) such Seller Indemnitor’s Pro Rata Share of an amount, if positive, equal to (1) the amount, if any, by which the Unresolved Collective Claim Retained Amount exceeds the aggregate of all amounts delivered to Purchaser Indemnitees following the General Expiration Date upon the resolution of Unresolved Collective Claims (such excess being referred to as the “Remaining Collective Claim Retained Amount”), minus (2) the aggregate amount of the Claimed Amounts associated with all remaining Unresolved Collective Claims; exceeds (B) the aggregate amount of the Claimed Amounts associated with all remaining Unresolved Individual Claims applicable to such Seller Indemnitor, if any; provided, however, that if the
58 4897-9174-6440.v17 Remaining Collective Claim Retained Amount is less than the amount owed to Purchaser Indemnitee with respect to such Unresolved Collective Claim, then, subject to the limitations provided for in Section 10.3, each Seller Indemnitor shall pay, within 10 Business Days following the resolution of such Unresolved Collective Claim, such Seller Indemnitor’s Pro Rata Share of the amount of such shortfall to such Purchaser Indemnitee. (ii) Following the General Expiration Date, if an Unresolved Individual Claim is finally resolved, then Purchaser and the Securityholders’ Agent shall, subject to Section 10.6(d), within 10 Business Days after the final resolution of such Unresolved Individual Claim, jointly instruct the Escrow Agent to release from the Indemnity Escrow Fund and deliver to the Payment Agent for further distribution to each Seller Indemnitor, the amount, if any, by which: (A) the amount, if positive, equal to (1) such Seller Indemnitor’s Unresolved Individual Claim Retained Amount, minus (2) the aggregate of all amounts delivered to Purchaser Indemnitees following the General Expiration Date upon the resolution of Unresolved Individual Claims applicable to such Seller Indemnitor (such excess being referred to as such Seller Indemnitor’s “Remaining Individual Claim Retained Amount”); exceeds (B) the aggregate amount of the Claimed Amounts associated with all remaining Unresolved Individual Claims applicable to such Seller Indemnitor; provided, however, that if such Seller Indemnitor’s Remaining Individual Claim Retained Amount as of the date of such resolution is less than the amount owed to Purchaser Indemnitee with respect to such Unresolved Individual Claim, then, subject to the limitations provided for in Section 10.3, such Seller Indemnitor shall pay, within 10 Business Days following the resolution of such Unresolved Individual Claim, the amount of such shortfall to such Purchaser Indemnitee. (c) Recourse to Indemnity Escrow Fund. Other than with respect to Individual Claims and claims made pursuant to Section 10.2(a)(vii) or Section 10.2(a)(viii), so long as, and solely to the extent that, the funds remaining in the Indemnity Escrow Fund exceed the aggregate amount of all claims for indemnification, compensation or reimbursement pursuant to this Section 10 that have been asserted but not fully and finally resolved, Purchaser Indemnitees shall seek to recover amounts in respect of such claims from the Indemnity Escrow Fund prior to seeking to recover amounts in respect of such claims directly from any Seller Indemnitor or pursuant to Purchaser’s set-off rights under Section 10.8 (to the extent that any portion of the Company’s Upside Share has actually been collected by Purchaser); provided, however, that, to the extent any amounts are released from the Indemnity Escrow Fund with respect to claims for indemnification, compensation or reimbursement that are not subject to the limitation set forth in Section 10.3(c), such recovered amounts shall not reduce the amount that Purchaser Indemnitees may recover with respect to claims for indemnification, compensation or reimbursement that are subject to the limitation set forth in Section 10.3(c). (d) Other Terms of Release of Indemnity Escrow Fund. Notwithstanding anything to the contrary contained in this Agreement: (i) if an Individual Claim against a Seller Indemnitor has been finally resolved but the amount determined to be owed to the applicable Purchaser Indemnitee has not been paid by such Seller Indemnitor in accordance with this Section 10.6 at the time that any portion of the Indemnity Escrow Fund is to be released to such Seller Indemnitor in accordance with Section 10.6(a) or Section 10.6(b), then Purchaser may, in its sole discretion, deduct from the amount that would otherwise be distributed to such Seller Indemnitor, and pay to the applicable Purchaser Indemnitee, the aggregate amount owed by such Seller Indemnitor to such Purchaser Indemnitee; and
59 4897-9174-6440.v17 (ii) each payment to be made from the Indemnity Escrow Fund to a particular Seller Indemnitor shall be effected: (A) with respect to each Outstanding Company Share and each Class P Share subject to a Depositary Receipt that is a Non-Withholding Depositary Receipt formerly held by such Seller Indemnitor, in accordance with the payment delivery instructions set forth in the Consideration Spreadsheet (unless the Securityholders’ Agent provides updated payment delivery instructions to Purchaser); and (B) with respect to each Class P Share subject to a Depositary Receipt (other than a Non-Withholding Depositary Receipt) formerly held by such Seller Indemnitor, in accordance with Purchaser’s or the Company’s standard payroll practices. 10.7 Payment. Any payment by the Sellers Indemnitors under Section 10.2(a)(iv) shall be made within ten (10) Business Days after demand thereof by Purchaser; provided such ten-day period may be shortened to the extent payment of any relevant Tax is required earlier to avoid penalties or interest arising in respect thereof. 10.8 Set-off. Subject to Section 10.7, this Section 10.8, the Escrow Agreement and any rights of set-off or other similar rights that Purchaser or any of the other Purchaser Indemnitees may have at common law or otherwise, upon mutual written agreement or binding non-appealable court order, Purchaser may withhold and deduct any sum that is or may be owed to any Purchaser Indemnitee by any Seller Indemnitor under this Section 10 from any amount otherwise payable by any Purchaser Indemnitee to such Seller Indemnitor under any Transaction Document or otherwise in connection with any of the Contemplated Transactions, including for avoidance of doubt, from any At-Risk Collections Payment. Without limiting the foregoing, Purchaser shall provide the Securityholders’ Agent with written notice specifying in reasonable detail the basis for the proposed set-off and the amount proposed to be withheld (the “Proposed Set-Off Amount”), and Purchaser and the Securityholders’ Agent shall negotiate in good faith to resolve any disagreements with respect to such amount. If Purchaser and the Securityholders’ Agent are unable to mutually agree on the Proposed Set-Off Amount within ten (10) Business Days after delivery of such notice (or such longer period as the parties may mutually agree), then Purchaser shall deposit the disputed portion of the Proposed Set-Off Amount into the Indemnity Escrow Fund, to be held and released by the Escrow Agent in accordance with the Escrow Agreement and the procedures set forth in Section 10.6(b). Any such deposit deducted from an At-Risk Collections Payment shall satisfy Purchaser’s obligation to pay such disputed amount in accordance with Section 1.3(b) unless and until otherwise determined pursuant to the final resolution of the applicable claim, it being agreed that if the Purchaser believes it is entitled to set-off against an At-Risk Collections Payment and provides the Securityholders’ Agent with the written notice required herein, Purchaser shall not be deemed to be in breach of any obligations under Section 1.3(b) for failure to remit such Proposed Set-Off Amount subject to the mutual written agreement or binding non-appealable court order required by this Section 10.8. Upon the final resolution of the applicable claim in accordance with Section 10.6, the Escrow Agent shall disburse the disputed amount deposited pursuant to this Section 10.8 to the applicable Person(s) entitled thereto in accordance with such resolution and the terms of the Escrow Agreement. For the avoidance of doubt, subject to Section 10.6(b), Purchaser shall be entitled to the set-off rights set forth in this Section 10.8 whether or not any funds remain in any Indemnity Escrow Fund. 10.9 Exercise of Remedies Other Than by Purchaser or Securityholders’ Agent. No Seller Indemnitee shall be permitted to assert any claim for indemnification, compensation or reimbursement or exercise any other remedy under this Agreement unless the Securityholders’ Agent (or any successor thereto or assign thereof) shall have consented to the assertion of such claim for indemnification, compensation or reimbursement or the exercise of such other remedy. No Purchaser Indemnitee (other than Purchaser or any successor thereto or assign thereof) shall be permitted to assert any claim for indemnification, compensation or reimbursement or exercise any other remedy under this Agreement unless their respective Purchaser (or any successor thereto or assign thereof) shall have consented to the assertion of such claim for indemnification, compensation or reimbursement or the exercise of such other remedy.
60 4897-9174-6440.v17 10.10 Exclusive Remedy. Except in the event of Fraud, and except for equitable remedies and the Tax Liability Insurance Policy, from and after the Closing, the rights to indemnification, compensation and reimbursement set forth in this Section 10 shall be the sole and exclusive post-Closing monetary remedy of the Indemnitees for any Damages resulting from or arising out of any breach of this Agreement. 11. MISCELLANEOUS PROVISIONS 11.1 Securityholders’ Agent. (a) Appointment. The Seller Indemnitors hereby, or pursuant to the terms of a Depositary Receipt Surrender Agreement, irrevocably nominate, constitute and appoint Dirk-Jan Smit as the agent and true and lawful attorney in fact of the Seller Indemnitors (the “Securityholders’ Agent”), with full power of substitution, to act in the name, place and stead of the Seller Indemnitors for purposes of executing any documents and taking any actions that the Securityholders’ Agent may, in the Securityholders’ Agent’s sole discretion, determine to be necessary, desirable or appropriate in connection with any claim for indemnification, compensation or reimbursement under Section 10. Dirk-Jan Smit hereby accepts the Securityholders’ Agent’s appointment as Securityholders’ Agent. (b) Expense Fund. (i) The Seller Indemnitors shall indemnify the Securityholders’ Agent and hold the Securityholders’ Agent harmless against any losses or expenses incurred without negligence, willful misconduct or bad faith on the part of the Securityholders’ Agent and arising out of or in connection with the acceptance or administration of the Securityholders’ Agent’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Securityholders’ Agent (“Securityholders’ Agent Expenses”), in each case, as such Securityholders’ Agent Expenses are incurred or suffered. In furtherance of the foregoing, each Seller Indemnitor hereby authorizes the Payment Agent to withhold an aggregate amount of [***] (the “Expense Fund Amount”) from the amounts otherwise payable to the Seller Indemnitors pursuant to Sections 1.2, 1.3(a) and 1.4(a), as applicable, with the Payment Agent to withhold from the consideration otherwise payable to each Seller Indemnitor an amount equal to each Seller Indemnitor’s Pro Rata Share of the Expense Fund Amount and deliver to the Securityholders’ Agent, the balance of the Expense Fund Amount (the “Expense Fund”). For tax purposes, the Expense Fund Amount shall be treated as having been received and voluntarily set aside by the Seller Indemnitors at the Closing. Nothing in this Section 11.1(b) shall relieve the Seller Indemnitors from their obligations to pay promptly such Securityholders’ Agent Expenses as they are suffered or incurred, nor shall it prevent the Securityholders’ Agent from seeking any remedies against the Seller Indemnitors available to it at law or otherwise. (ii) In furtherance of the payment of any losses and expenses incurred by or on behalf of the Securityholders’ Agent under this Agreement, the Seller Indemnitors agree that, to the extent available, the Securityholders’ Agent shall be entitled to draw against the Expense Fund at any time and from time to time as and when (A) the Securityholders’ Agent incurs any losses and expenses to be indemnified by the Seller Indemnitors pursuant to this Section 11.1(b), (B) any losses and expenses are otherwise due under this Section 11.1(b) and (C) necessary or appropriate to pay any losses and expenses reasonably incurred by the Securityholders’ Agent in the performance of its duties in accordance with this Agreement, including the Securityholders’ Agent Expenses.
61 4897-9174-6440.v17 (iii) Upon the earlier to occur of (i) the Securityholders’ Agent no longer having any duties to perform under this Agreement and (ii) when the Securityholders’ Agent (in its discretion) determines, all amounts remaining in the Expense Fund shall be distributed by the Securityholders’ Agent to the Seller Indemnitors based upon each Seller Indemnitor’s respective Pro Rata Share. (c) Authority. The Seller Indemnitors grant to the Securityholders’ Agent full authority to (i) execute, deliver, acknowledge, certify and file on behalf of such Seller Indemnitors (in the name of any or all of the Seller Indemnitors or otherwise) any and all documents that the Securityholders’ Agent may, in the Securityholders’ Agent’s sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as the Securityholders’ Agent may, in the Securityholders’ Agent’s sole discretion, determine to be appropriate, in performing the Securityholders’ Agent’s duties as contemplated by Section 11.1(a) and (ii) do all things and to perform all acts, as contemplated by or deemed advisable by the Securityholders’ Agent in connection with this Agreement, including amending this Agreement in accordance with Section 11.14. Notwithstanding anything to the contrary contained in this Agreement or in any other agreement executed in connection with any of the Contemplated Transactions: (i) each Purchaser Indemnitee shall be entitled to deal exclusively with the Securityholders’ Agent on all matters relating to any claim for indemnification, compensation or reimbursement under Section 10; and (ii) each Purchaser Indemnitee shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Seller Indemnitor, by the Securityholders’ Agent, and on any other action taken or purported to be taken on behalf of any Seller Indemnitor, by the Securityholders’ Agent as, and each such document or action shall be, fully binding upon such Seller Indemnitor. (d) Power of Attorney. The Seller Indemnitors recognize and intend that the power of attorney granted in Section 11.1(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Securityholders’ Agent; and (iii) shall survive the death, incapacity, dissolution, liquidation or winding up of each of the Seller Indemnitors. (e) Replacement. If the Securityholders’ Agent shall die, resign, become disabled or otherwise be unable to fulfill the Securityholders’ Agent’s responsibilities hereunder, the Seller Indemnitors shall (by consent of those Persons entitled to receive at least a majority of the consideration payable to the Seller Indemnitors pursuant to Sections 1.2, 1.3(a) and 1.4(a), within 10 days after such death, resignation, disability or inability, appoint a successor to the Securityholders’ Agent (who shall be reasonably satisfactory to Purchaser) and immediately thereafter notify Purchaser of the identity of such successor. Any such successor shall succeed the Securityholders’ Agent as Securityholders’ Agent hereunder. If for any reason there is no Securityholders’ Agent at any time, all references herein to the Securityholders’ Agent shall be deemed to refer to the Seller Indemnitors. 11.2 Further Assurances. Each party hereto shall execute and cause to be delivered to each other party hereto such instruments and other documents, and shall take such other actions, as such other party may reasonably request (prior to, at or after the Closing) for the purpose of carrying out or evidencing any of the Contemplated Transactions. 11.3 No Waiver Relating to Claims for Fraud. The liability of any Person under Section 10 will be in addition to, and not exclusive of, any other liability that such Person may have at law or in equity based on such Person’s direct or indirect involvement in Fraud. Notwithstanding anything to the contrary contained in this Agreement, none of the provisions set forth in this Agreement, including the provisions set forth in Section 10, shall be deemed a waiver by any party to this Agreement of any right or remedy which such party may have at law or in equity based on any other Person’s direct or indirect involvement in Fraud.
62 4897-9174-6440.v17 11.4 Fees and Expenses. Subject to Section 10, and except as set forth in this Section 11.4, each party to this Agreement shall bear and pay all fees, costs and expenses that have been incurred or that are incurred in the future by such party in connection with the Contemplated Transactions, including all fees, costs and expenses incurred by such party in connection with or by virtue of: (a) the investigation and review conducted by Purchaser and its Representatives with respect to the Acquired Companies’ businesses (and the furnishing of information to Purchaser and its Representatives in connection with such investigation and review); (b) the negotiation, preparation and review of this Agreement (including the Disclosure Schedule) and all agreements, certificates and other instruments and documents delivered or to be delivered in connection with the Contemplated Transactions; (c) the preparation and submission of any filing or notice required to be made or given in connection with any of the Contemplated Transactions and the obtaining of any Consent required to be obtained in connection with any of such transactions; and (d) the consummation of the Contemplated Transactions. 11.5 Attorneys’ Fees. If any action, suit or other legal proceeding arising out of or relating to this Agreement, the Share Purchase or any of the other Contemplated Transactions or the enforcement of any provision of this Agreement (other than with respect to a claim for indemnification, compensation or reimbursement pursuant to Section 10 that is brought and resolved in accordance with Section 10) is brought by one party against any other party hereto, the prevailing party shall be entitled to recover reasonable attorneys’ fees, costs and disbursements (in addition to any other relief to which the prevailing party may be entitled). 11.6 Notices. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in writing and shall be deemed properly delivered, given and received: (a) if delivered by hand, when delivered; (b) if sent on a Business Day by facsimile transmission before 5:00 p.m. (recipient’s time) on the day sent by facsimile transmission and receipt is confirmed, on the date on which receipt is confirmed; (c) if sent by facsimile transmission on a day other than a Business Day and receipt is confirmed, or if sent by facsimile transmission after 5:00 p.m. (recipient’s time) on the day sent by facsimile transmission and receipt is confirmed, on the Business Day following the date on which receipt is confirmed; (d) if sent by registered, certified or first class mail, the third Business Day after being sent; (e) if sent by overnight delivery via a national courier service, two Business Days after being delivered to such courier; and (f) if sent by email, when sent, provided that (i) the subject line of such email states that it is a notice delivered pursuant to this Agreement and (ii) the sender of such email does not receive a written notification of delivery failure. All notices and other communications hereunder shall be delivered to the address, facsimile number or email address set forth beneath the name of such party below (or to such other address, facsimile number or email address as such party shall have specified in a written notice given to the other parties hereto): If to Purchaser: Crestone Air Partners, Inc. 4500 Cherry Creek Drive South, Suite 200 Denver, Colorado 80246 Attention: Kevin Milligan, Jason Greenberg Email:[***] with a copy (which shall not constitute notice) to: Pillsbury Winthrop Shaw Pittman LLP 31 West 52nd Street New York, NY 10019-6131
63 4897-9174-6440.v17 Attention: Melissa Jones-Prus, Lindsey Livingston Email: [***] If to the Company or Sellers (in each case, prior to the Closing): Arena Aviation Partners B.V. Keizersgracht 174-3 1016 DW Amsterdam, The Netherlands Attention: Patrick den Elzen Email: [***] with a copy (which shall not constitute notice) to: Vedder Price P.C. 222 North LaSalle Street, Suite 2400 Chicago, Illinois 60601 Attention: Joseph H. Kye, Esq. [***] and; Stek Leidseplein 29 1017 PS Amsterdam Attention: Jeroen Timmermans E-mail: [***] If to the Securityholders’ Agent: Dirk-Jan Smit Keizersgracht 174-3 1016 DW Amsterdam, The Netherlands [***] If to a Seller (following the Closing), to the address and email address of such Seller set forth in the Consideration Spreadsheet. 11.7 Headings. The bold-faced headings and the underlined headings contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement. 11.8 Counterparts and Exchanges by Electronic Transmission or Facsimile. This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission in .PDF format or by Docusign shall be sufficient to bind the parties to the terms of this Agreement. 11.9 Governing Law; Dispute Resolution.
64 4897-9174-6440.v17 (a) Governing Law. This Agreement, and any action, arbitration, suit or other legal proceeding arising out of or relating to this Agreement (including the enforcement of any provision of this Agreement), any of the Contemplated Transactions or the legal relationship of the parties to this Agreement (whether at law or in equity, whether in contract or in tort or otherwise), shall be governed by and construed and interpreted in accordance with the laws of the state of New York irrespective of the choice of laws principles of the state of New York and without giving effect to any borrowing statute, as to all matters, including matters of validity, construction, effect, enforceability, performance and remedies and in respect of the statute of limitations or any other limitations period applicable to any claim, controversy or dispute. (b) Forum and Venue. Except as otherwise provided in Section 10.5, any action, suit or other legal proceeding arising out of or relating to this Agreement (including the enforcement of any provision of this Agreement), any of the Contemplated Transactions or the legal relationship of the parties to this Agreement (whether at law or in equity, whether in contract or in tort or otherwise), including an action, suit or other legal proceeding based upon fraud, shall be brought or otherwise commenced exclusively in the United States District Court for the Southern District in the State of New York or any New York State court located in the Borough of Manhattan. Each party to this Agreement: (i) expressly and irrevocably consents and submits to the exclusive jurisdiction of each such state and federal court located in the State of New York (and each appellate court located in the State of New York) in connection with any such action, suit or legal proceeding; (ii) agrees that each such state and federal court located in the State of New York shall be deemed to be a convenient forum; (iii) agrees not to assert (by way of motion, as a defense or otherwise), in any such action, suit or legal proceeding commenced in any state or federal court located in the State of New York, any claim that such party is not subject personally to the jurisdiction of such court, that such action, suit or legal proceeding has been brought in an inconvenient forum, that the venue of such action, suit or legal proceeding is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court; and (iv) agrees that it will not bring any such action, suit or other legal proceeding in any court other than a state or federal court located in the State of New York. 11.10 Successors and Assigns. This Agreement shall be binding upon: (a) the Company and its successors and permitted assigns (if any); (b) Purchaser and its successors and assigns (if any); (c) each Seller and each Seller’s successors and permitted assigns (if any); (d) the Securityholders’ Agent and its successors and permitted assigns, if any; and (e) the Seller Indemnitors. This Agreement shall inure to the benefit of: (i) the Company; (ii) Purchaser; (iii) each Seller; (iv) the other Indemnitees; and (v) the respective successors and permitted assigns (if any) of the foregoing. Purchaser may not assign any of its rights or delegate any of its obligations under this Agreement without the Securityholders’ Agent prior written consent; provided that Purchaser may freely assign any or all of its rights or obligations under this Agreement (including its rights under Section 10), in whole or in part, to any of its Affiliates (including for purposes of this Section 11.10 any Persons collectively controlled by an Affiliate and a third-party investor that participates in a Purchaser Financing Transaction) or lenders without obtaining the consent or approval of any other party hereto or of any other Person. None of the Company, any Seller, any Seller Indemnitor or the Securityholders’ Agent shall be permitted to assign any of its rights or delegate any of its obligations under this Agreement without Purchaser’s prior written consent. Any attempted assignment or delegation by the Company, any Seller, any Seller Indemnitor or the Securityholders’ Agent in violation of this Section 11.10 shall be null and void. 11.11 Remedies Cumulative; Specific Performance. The rights and remedies of the parties hereto shall be cumulative (and not alternative). The parties to this Agreement agree that, in the event of any breach or threatened breach by any party to this Agreement of any covenant, obligation or other provision set forth in this Agreement: (a) the other parties shall be entitled, without proof of actual damages, and without being required to prove that money damages are an inadequate remedy (in addition to any other remedy that may be available to them) to (i) a decree or order of specific performance or mandamus to
65 4897-9174-6440.v17 enforce the observance and performance of such covenant, obligation or other provision and (ii) an injunction restraining such breach or threatened breach; and (b) the other parties shall not be required to provide any bond or other security in connection with any such decree, order or injunction or in connection with any related action, suit or other legal proceeding. 11.12 Waiver. No failure on the part of any Person to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any Person in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. No Person shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such Person; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given. 11.13 Waiver of Jury Trial. Each of the parties hereto hereby irrevocably waives any and all right to trial by jury in any action, suit or other legal proceeding arising out of or related to this Agreement or any of the Contemplated Transactions. 11.14 Amendments. This Agreement may not be amended, modified, altered or supplemented other than by means of a written instrument duly executed and delivered (a) prior to the Closing Date, on behalf of the Company, Purchaser and the Securityholders’ Agent (acting exclusively for and on behalf of all Sellers and the other Seller Indemnitors) and (b) after the Closing Date, on behalf of Purchaser and the Securityholders’ Agent (acting exclusively for and on behalf of all Sellers and the other Seller Indemnitors). 11.15 Severability. In the event that any provision of this Agreement, or the application of any such provision to any Person or set of circumstances, shall be determined to be invalid, unlawful, void or unenforceable to any extent, the remainder of this Agreement, and the application of such provision to Persons or circumstances other than those as to which it is determined to be invalid, unlawful, void or unenforceable, shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by applicable Legal Requirements. 11.16 Parties in Interest. Except for the provisions of Section 10, which may be enforced by the Indemnitees as set forth in Section 10, none of the provisions of this Agreement is intended to provide any rights or remedies to any employee, creditor or other Person other than Purchaser, the Company and their respective successors and assigns (if any). 11.17 Entire Agreement. This Agreement and the other agreements referred to herein set forth the entire understanding of the parties hereto relating to the subject matter hereof and thereof and supersede all prior agreements and understandings among or between any of the parties relating to the subject matter hereof and thereof; provided, however, that the Confidentiality Agreement shall not be superseded by this Agreement and shall remain in effect in accordance with its terms until the earlier of: (a) the Closing; and (b) the date on which the Confidentiality Agreement is terminated or expires in accordance with its terms. 11.18 Disclosure Schedule. The Disclosure Schedule shall be arranged in separate parts corresponding to the numbered and lettered sections and subsections contained in this Agreement, and any information set forth in one section of the Disclosure Schedule will be deemed to apply to other sections of the Agreement to the extent its relevance to such other section is reasonably apparent from the face of such disclosure (notwithstanding the omission of a reference or cross-reference thereto on, or the absence of, any Disclosure Schedule relating to such other section of the Agreement).
66 4897-9174-6440.v17 11.19 Transfer Taxes. The Securityholders’ Agent shall timely file, or cause to be timely filed, any necessary Tax Return or other documentation with the relevant Governmental Entity required by applicable Legal Requirements with respect to any Transfer Taxes, and shall timely pay to the relevant Governmental Entity all Transfer Taxes due and payable thereon, and, if required by applicable Legal Requirements, Purchaser, the Company and the Seller Indemnitors, as the case may be, shall join in the execution of any such Tax Returns and other documentation. Purchaser shall be entitled to be reimbursed from the Indemnity Escrow Fund any amount of Transfer Taxes paid by Purchaser or Purchaser’s Subsidiaries (including the Acquired Companies) for which the Seller Indemnitors are responsible pursuant to Section 10.2, or, if the Indemnity Escrow Fund is insufficient to cover such amount in full, each Seller Indemnitor shall, no later than five days prior to the due date for the payment of Taxes, pay such Seller Indemnitor’s Pro Rata Share of the amount of such shortfall to Purchaser. Transfer Taxes will be borne 50% by Purchaser and 50% by the Sellers. 11.20 Construction. (a) Gender; Etc. For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include the masculine and feminine genders. (b) Ambiguities. The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement. (c) Including. As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.” (d) References. Except as otherwise indicated, all references to “Sections,” “Schedules” and “Exhibits” in this Agreement or in any Schedule or Exhibit to this Agreement are intended to refer to Sections of this Agreement and Schedules and Exhibits to this Agreement, respectively. Any Contract, instrument or statute defined or referred to in this Agreement or in Exhibit A means such Contract, instrument or statute, in each case, as from time to time amended, modified or supplemented, including (in the case of Contracts or instruments) by waiver or consent and (in the case of statutes) by succession or comparable successor statutes. Any Contract or instrument defined or referred to in this Agreement or in Exhibit A shall include all exhibits, schedules and other documents or Contracts attached thereto. Any statute defined or referred to in this Agreement or in Exhibit A shall include all rules and regulations promulgated thereunder. (e) Hereof. The terms “hereof,” “herein,” “hereunder,” “hereby” and “herewith” and words of similar import will, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement. (f) Dollars; Exchange Rate. Any references in this Agreement to “dollars” or “$” shall be to U.S. dollars. Except as otherwise set forth in this Agreement (including with respect to the Specified Exchange Rate), for purposes of translating an amount denominated in a currency other than dollars into dollars as of a specified date, such amount shall be determined using the closing rate for exchanges between such currency and dollars quoted by the Wall Street Journal (U.S. Edition) for the trading day immediately preceding such date. Notwithstanding the foregoing, for purposes of determining the amount of Damages suffered or incurred by an Indemnitee in connection with any claim under Section 10, any amount in respect of such claim, to the extent in a currency other than dollars, shall be converted
67 4897-9174-6440.v17 from the applicable currency to dollars using the closing rate for exchanges between such currency and dollars quoted by the Wall Street Journal (U.S. Edition) for the day that is two trading days prior to the date on which the related claim is resolved (through mutual agreement, arbitration or otherwise). 11.21 Disclosure Regarding Notary. The Notary is a civil law notary with Purchaser’s Legal Advisors. The Sellers acknowledge that they are aware of the provisions of the Ordinance Interdisciplinary Cooperation (Verordening Interdisciplinaire Samenwerking) of the Royal Professional Organisation of Civil Law Notaries (Koninklijke Notariële Beroepsorganisatie). Each of the parties to this Agreement (other than the Purchaser) acknowledges and agrees that Purchaser’s Legal Advisors may advise and act on behalf of the Purchaser with respect to this Agreement, and any agreements and/or any disputes related to or resulting from this Agreement. 11.22 Non-Assertion of Attorney-Client Privilege. (a) Purchaser waives and shall not assert, and agrees to cause the Acquired Companies to waive and to not assert, any conflict of interest arising out of or relating to the representation after the Closing (the “Post-Closing Representation”) of the Seller Indemnitees or any Depositary Receipt Holders (any such Person, a “Designated Person”) in any matter involving this Agreement or the transactions contemplated hereby by any legal counsel currently representing the Seller Indemnitees or the Acquired Companies in connection with this Agreement or the transactions contemplated hereby (the “Current Representation”). (b) Purchaser waives and shall not assert, and agrees to cause the Acquired Companies to waive and to not assert, any attorney-client privilege with respect to any communication between any legal counsel and any Designated Person or any personnel of the Acquired Companies occurring during the Current Representation in connection with any Post-Closing Representation, including in connection with a dispute with Purchaser and, following the Closing, with the Acquired Companies, it being the intention of the parties hereto that all rights to such attorney-client privilege and to control such attorney-client privilege shall be retained by the Designated Person; provided that the foregoing waiver and acknowledgment of retention shall not extend to any communication not involving this Agreement or the transactions contemplated hereby or to communications with any Person other than the Designated Persons or any personnel of the Acquired Companies (c) Purchaser acknowledges and agrees that Vedder Price PC (“VP”) has privileged information about the Acquired Companies (the “Company Privileged Information”) in connection with its representation of the Acquired Companies in the transactions contemplated hereby. The Company Privileged Information includes all privileged communications, whether written or electronic, including any privileged communications between VP, on the one hand, and the Acquired Companies, on the other hand, and their Representatives, personnel and Affiliates, and all files, attorney notes, drafts or other documents prepared by VP in connection with the Current Representation which predate the Closing (collectively, the “VP Work Product”). In the event of a dispute in connection with the transactions contemplated by this Agreement, to the extent that any Company Privileged Information is in VP’s possession as of the Closing Date, the Company Privileged Information may be used on behalf of the Designated Person in connection with such dispute at the sole discretion of the Designated Person. Purchaser waives the right to access any privileged VP Work Product (other than factual information), except as reasonably necessary in connection with an action which does not constitute a dispute with a Designated Person in connection with the transactions contemplated by this Agreement. Purchaser hereby consents to the disclosure and use by VP for the benefit of the Designated Person of any information (confidential or otherwise) disclosed to it by any Acquired Company (including by its Representatives, personnel and Affiliates) prior to the Closing Date. For the avoidance of doubt, nothing in this Section
68 4897-9174-6440.v17 11.22 or in this Agreement shall be deemed to be a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any client communications to any third party. (d) Purchaser hereby acknowledges that it has had the opportunity to discuss and obtain adequate information concerning the significance and material risks of, and reasonable available alternatives to, the waivers, permissions and other provisions of this Section 11.22, including the opportunity to consult with counsel. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE TO SHARE PURCHASE AGREEMENT] The parties hereto have caused this Agreement to be duly executed and delivered as of the date first written above. CRESTONE AIR PARTNERS, INC. By: Name: Kevin Milligan Title: Chief Executive Officer Docusign Envelope ID: E9D66904-1D3D-4862-91F5-C7B673BDEDEB
[SIGNATURE PAGE TO SHARE PURCHASE AGREEMENT] VP/#74808806 The parties hereto have caused this Agreement to be duly executed and delivered as of the date first written above. THE COMPANY: ARENA AVIATION PARTNERS B.V. By: Name: P.P.J. den Elzen Title: Jointly Authorized Director By: Name: E.G. Dahmen Title: Jointly Authorized Director THE SELLERS: ARCHEOPTRIX B.V. By: Name: P.P.J. den Elzen Title: Solely Authorized Director MOSA B.V. By: Name: E.G. Dahmen Title: Solely Authorized Director EMMALEX B.V. By: Name: D.J.S. Lindhout Title: Solely Authorized Director QP MANAGEMENT B.V. By: Name: D.J. Smit Title: Solely Authorized Director Docusign Envelope ID: 8CAEC957-C818-4DB6-A74A-8850610B840F
[SIGNATURE PAGE TO SHARE PURCHASE AGREEMENT] VP/#74808806 STICHTING ADMINISTRATIEKANTOOR ARENA AVIATION PARTNERS By: Name: P.P.J. den Elzen Title: Jointly Authorized Director By: Name: E.G. Dahmen Title: Jointly Authorized Director SECURITYHOLDERS’ AGENT: ̀ D.J. Smit Docusign Envelope ID: 8CAEC957-C818-4DB6-A74A-8850610B840F
4897-9174-6440.v17 EXHIBIT A CERTAIN DEFINITIONS For purposes of this Agreement (including this Exhibit A): “Accounts Relief” means any relief which has been treated as an asset in the accounts (used for determining the Consideration) of the Acquired Companies (including in calculating and so reducing or eliminating any provision for Tax or deferred Tax in the accounts) or has otherwise been taken into account in determining the Consideration. “Acquired Company” means (a) the Company; (b) each Subsidiary of the Company; and (c) for purposes of Section 2 of this Agreement, each corporation or other Entity that has been merged into, that has been consolidated with or that otherwise is a predecessor to any of the Entities identified in clauses “(a)” and “(b)” above. “Acquired Company Convertible Security” means any security, instrument or obligation that is or may become convertible into or exchangeable for any share in the capital of any Acquired Company (or cash or other property based on the value of such share) or any other security of any Acquired Company. “Acquired Company Equity Right” means any subscription, option, restricted share, restricted share unit, share appreciation right, call, convertible note, warrant or right (whether or not currently exercisable) with respect to any share in the capital of, or any other security of, any Acquired Company. “Acquired Company IP” means any Intellectual Property Right in which any Acquired Company has (or purports to have) an ownership interest or an exclusive license or similar exclusive right that includes the right to assert or enforce, in any field or territory. “Acquisition Transaction” means any transaction or series of transactions involving: (a) the sale, license, sublicense or disposition of all or a material portion of any Acquired Company’s business or assets; (b) the grant, issuance, disposition or acquisition of (i) any share in the capital, unit, membership interest or other equity security of, or equity interest in, any Acquired Company, (ii) any option, call, warrant or right (whether or not immediately exercisable) to acquire any share in the capital, unit or other equity security of, or equity interest in, any Acquired Company or (iii) any security, instrument or obligation that is or may become convertible into or exchangeable for any share in the capital, unit or other equity security of any Acquired Company; or (c) any merger, amalgamation, plan or scheme of arrangement, consolidation, business combination, reorganization or similar transaction involving any Acquired Company. “Administrative Conditions” means the terms of administration adopted by the Foundation for the administration of any Company Shares transferred to the Foundation to title of administration, established by a notarial deed executed on 23 March 2021 before C.J. Aalbersberg, civil-law notary in Amsterdam, the Netherlands, as amended on 25 July 2025, by notarial deed executed before C.J. Aalbersberg, civil-law notary in Amsterdam, the Netherlands. “Aircraft” means (a) each airframe together with its associated engines and all appliances, parts, accessories, instruments, navigational and communications equipment, furnishings, modules, components
4897-9174-6440.v17 and other items of equipment installed in or furnished therewith and (b) standalone aircraft engines and their parts, accessories and other items of equipment installed in or furnished therewith. “Aircraft Lease” means, in relation to each Relevant Aircraft, the lease agreement entered into between the relevant Aircraft Lessor, on the one hand, and the relevant Aircraft Lessee, or any other parties involved in the leasing of the Relevant Aircraft, on the other hand, in respect of such Relevant Aircraft, as amended, restated, modified, assigned, novated or supplemented from time to time. “Aircraft Lease Document” means the Aircraft Lease and any other document pertaining to the leasing of any Relevant Aircraft entered into between (among others) the relevant Aircraft Lessor, on the one hand, and the relevant Aircraft Lessee, or any other parties involved in the leasing of the Relevant Aircraft, on the other hand. “Aircraft Lessee” means, with respect to any Relevant Aircraft, the lessee counterparty to the applicable Aircraft Lease. “Aircraft Lessor” means, with respect to any Relevant Aircraft, the lessor counterparty to the applicable Aircraft Lease. “Affiliate” means, with respect to any Person, any other Person controlling, controlled by or under common control with such Person. For purposes of this definition and this Agreement, the term “control” (and correlative terms) means the power, whether by contract, equity ownership or otherwise, to direct the policies or management of a Person. The term “Affiliate” shall be deemed to include current and future “Affiliates.” “AFM” has the meaning assigned to such term in Section 2.12(d) of this Agreement. “Agreement” means the Share Purchase Agreement to which this Exhibit A is attached (including the Disclosure Schedule). “Archeoptrix” means Archeoptrix B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, having its corporate seat in Amsterdam, the Netherlands, and its address at Havenlaan 16, 1411 DK Naarden, the Netherlands, registered with the Trade Register under number 34197974. “At-Risk Collections Payment” has the meaning assigned to such term in Section 1.3(b)(i) of this Agreement. “At-Risk Collections Statement” has the meaning assigned to such term in Section 1.3(b)(ii) of this Agreement. “At-Risk LOIs” has the meaning assigned to such term in Section 1.3(b)(i) of this Agreement. “Audited Financial Statements” has the meaning assigned to such term in Section 7.10 of this Agreement. “Auditor” means KPMG LLP or, if KPMG LLP is unable to serve, an independent nationally recognized certified public accounting firm appointed by mutual agreement by Purchaser and the Securityholders’ Agent.
4897-9174-6440.v17 “Automatic Enrolment Act” means the Automatic Enrolment Retirement Savings System Act 2024 (as amended) and any statutory modification or re-enactment thereof for the time being in force and any statutory regulations made thereunder. “Breach” has the meaning assigned to such term in Section 2.11(c) of this Agreement. “Business Day” means any day other than: (a) a Saturday, Sunday or a federal holiday; or (b) a day on which commercial banks in San Jose, California or Amsterdam, Netherlands are authorized or required to be closed. “Charter Documents” means the articles of incorporation, certificate of incorporation, articles of amendment, certificate of amendment, bylaws, articles of association, memorandum of association, certificate of association, limited partnership agreement, operating agreement, trust agreement or equivalent governing document of an Entity. “Class A Consideration” has the meaning assigned to such term in Section 1.2 of this Agreement. “Class A Shareholders” means the holders of the Class A Shares (except for the Company). “Class A Shares” means non-profit sharing shares A in the capital of the Company with voting rights and a nominal value of EUR 0.10 each. “Class A Nominal Amount” means the nominal value of the Class A Share (determined using the Specified Exchange Rate, as applicable). “Class P Consideration” means an amount equal to (i) the Closing Adjusted Transaction Value; minus (ii) the Class A Consideration (determined using the Specified Exchange Rate). “Class P Shares” means non-voting shares P in the capital of the Company with profit rights and a nominal value of EUR 10 each. “Closing” has the meaning assigned to such term in Section 1.8(a) of this Agreement. “Closing Adjusted Transaction Value” means an amount equal to (a) $21,750,000, minus (b) the Closing Debt Amount, minus (c) the Closing Company Transaction Expenses, minus (d) without duplication, the Closing Leakage, plus (e) the Closing Permitted Leakage, minus (f) the Escrow Amount minus (g) the Expense Fund Amount, in each case, as set forth in the Consideration Spreadsheet using the Specified Exchange Rate, as applicable. “Closing Date” has the meaning assigned to such term in Section 1.8(a) of this Agreement. “Closing Leakage” has the meaning assigned to such term in Schedule 1.5 of this Agreement. “Closing Permitted Leakage” has the meaning assigned to such term in Schedule 1.5 of this Agreement. “Code” means the Internal Revenue Code of 1986, as amended. All references to the Code, the Treasury Regulations or other governmental pronouncements shall be deemed to include references to any applicable successor regulations or amending pronouncement. “Collective Claim” means a claim made pursuant to Section 10.2(a).
4897-9174-6440.v17 “Company” has the meaning assigned to such term in the introductory paragraph of this Agreement. “Company Aircraft” means each Aircraft as set forth in Part 2.23(a) of the Disclosure Schedule, to which the Company or a Subsidiary holds title or 100% of the beneficial interest in the relevant title holding entity (including as the beneficiary of an Owner Trust or other similar entity), but excluding any Managed Aircraft. “Company Associate” means (a) any current or former managing director or officer, or other employee of any Acquired Company or (b) any current or former independent contractor, consultant, agent, supervisory director, director or manager of any Acquired Company. “Company Benefit Plans” has the meaning assigned to such term in Section 2.15(a) of this Agreement. “Company Closing Certificate” means a certificate duly executed on behalf of the Company by a duly authorized officer of the Company and containing the representation and warranty of the Company that the conditions set forth in Sections 7.1 , 7.2 and 7.4 have been duly satisfied. “Company Contract” means any Contract: (a) to which any Acquired Company is a party; or (b) by which any Acquired Company or any of its assets is or may become bound or under which any Acquired Company has, or may become subject to, any obligation. “Company Cure Period” has the meaning assigned to such term in Section 9.1(e) of this Agreement. “Company Indebtedness” means any Indebtedness of any Acquired Company. “Company Personal Property” means all of the machinery, equipment, fixtures, hardware, tools, motor vehicles, furniture, furnishings, leasehold improvements, office equipment, inventory, supplies, plant, spare parts and other tangible personal property owned, leased or used, or purported to be owned, leased or used, by any Acquired Company. “Company Privileged Information” has the meaning assigned to such term in Section 11.22(c) of this Agreement. “Company Shares” means the Class A Shares and the Class P Shares. “Company Transaction Documents” means each Transaction Document to which the Company is or will be a party or by which the Company is or will be bound, including this Agreement. “Company Transaction Expense” means, without duplication, any Expense incurred or borne by or on behalf of any Acquired Company, or to or for which any Acquired Company is or becomes subject or liable, in connection with any of the Contemplated Transactions (whether incurred on or prior to the date of this Agreement, during the Pre-Closing Period or at or after the Closing, and whether or not invoiced prior to the Closing) that (A) is unpaid immediately prior to the Closing or (B) was paid after the Locked Box Date including: (a) any Expense of an Acquired Company to legal counsel or to any financial advisor, investment banker, consultant, broker, accountant or other Person that performed services for or provided advice to any Acquired Company or any Representative of any Acquired Company, or who is otherwise entitled to any compensation or payment from any Acquired Company, in connection with any of the Contemplated Transactions (excluding any fees and expenses of Brahn Audit incurred or payable by the Acquired Companies in connection with the preparation of the Audited Financial Statements); (b) any Expense relating to the D&O Tail or the E&O Tail (including any premiums, fees or expenses relating
4897-9174-6440.v17 thereto); (c) any change-in-control payment, stay bonus, retention payment, discretionary bonus, severance Expense or sum that may become payable to any Company Associate pursuant to any “single trigger” or “double trigger” severance arrangement, bonus or other arrangement, including the Employee Expense Accrual Amount as a result of the Contemplated Transactions, but excluding the payments to be made as Permitted Leakage; (d) any Employment Tax; (e) any Taxes and other amounts payable to any Governmental Entity relating to the transfer outside of the Netherlands or Ireland of any Intellectual Property Rights in which any Acquired Company has (or purports to have) an ownership interest or an exclusive license or similar exclusive right in any field or territory; and (f) 50% of any Transfer Taxes. “Company’s Upside Share” means the portion of collections actually received by the Acquired Companies pursuant to a Servicing Agreement that represents the applicable Acquired Company’s contractual upside participation thereunder (often referred to as “Performance Fees” under the applicable Servicing Agreement), excluding any expense reimbursements or similar payments. “Confidential Information” means: (a) all information that is owned, used or possessed by the Acquired Companies as of the Closing in connection with its business, held in any form, and any related goodwill; (b) all information that is owned, used or possessed by Purchaser or any of Purchaser’s Affiliates as of the Closing in connection with its business, held in any form, and any related goodwill; and (c) the terms of this Agreement and the other Transaction Documents, and all information relating to the discussions and negotiations among Sellers, the Acquired Companies, Purchaser and their respective Representatives or otherwise concerning the Contemplated Transactions. “Confidentiality Agreement” means the Confidentiality and Nondisclosure Agreement, dated as of September 16, 2025, by and between Crestone Air Partners, Inc. and the Company. “Consent” means any approval, consent, ratification, permission, waiver, order or authorization (including any Permit). “Consideration” has the meaning assigned to such term in Section 1.9 of this Agreement. “Consideration Spreadsheet” means a spreadsheet containing all of the information set forth on Schedule 1.5. “Contemplated Transactions” means all transactions and actions contemplated by this Agreement (including the Share Purchase) and all transactions and actions contemplated by the agreements, plans and other documents entered into or delivered in connection with, or referred to in, this Agreement. “Contract” means any written, oral or other agreement, contract, license, sublicense, subcontract, settlement agreement, lease, power of attorney, understanding, arrangement, instrument, note, purchase order, warranty, insurance policy, benefit plan or legally binding commitment or undertaking of any nature. “Current Representation” has the meaning assigned to such term in Section 11.22(a) of this Agreement. “D&O Indemnified Persons” means any current or former officers, directors, general partners, mangers or directors of the Acquired Companies. “D&O Tail” means an extended reporting period endorsement under the Company’s existing directors’ and officers’ liability insurance coverage for the Acquired Companies’ directors and officers, which shall (a) provide such directors and officers with coverage for six (6) years following the Closing, (b) have a scope substantially similar to the existing coverage under, and have other terms not materially
4897-9174-6440.v17 less favorable to the insured persons than the terms of, the directors’ and officers’ liability insurance coverage currently maintained by the Acquired Companies’ directors and officers and (c) provide that such directors and officers shall not be required to seek indemnification from any Acquired Company or any Affiliate of any Acquired Company, whether pursuant to any indemnification agreement in favor of such director or officer, pursuant to any Acquired Company’s Charter Documents or otherwise, prior to seeking coverage under such insurance policy. “Damages” includes any loss, damage, injury, decline in value, lost opportunity, Liability, claim, demand, settlement, judgment, award, fine, penalty, Tax, fee, charge, cost or Expense of any nature (including legal, accounting and other fees and expenses of professionals incurred in connection with investigating, defending, settling or otherwise satisfying any claim or Legal Proceeding relating to any of the foregoing, and in seeking indemnification therefor). “Debt Amount” means an amount equal to the sum, without duplication, of the aggregate dollar amount (determined using the Specified Exchange Rate, as applicable) of all Company Indebtedness outstanding immediately prior to the Closing, determined in accordance with Dutch GAAP. “Deductible” has the meaning assigned to such term in Section 10.3(a) of this Agreement. “Deed of Transfer” means the notarial deed of transfer of all Outstanding Company Shares, to be executed before the Notary, in the form agreed between the Company and Purchaser. “Deemed Tax Liability” means (i) the utilization or set off of an Accounts Relief or a Purchaser Relief in circumstances where but for such utilization or set off, an actual liability to Tax would have arisen for which the Seller Indemnitors would otherwise have been liable under this Agreement or (ii) the loss or non-availability of an Accounts Relief (in which case the amount of the Deemed Tax Liability is deemed equal to the value of the Accounts Relief that is not available. “Depositary Receipt” means a depositary receipt (certificaat) issued by the Foundation representing the economic interest in the Class P Shares held by the Foundation. “Depositary Receipt Holders” means the individual holders of the Outstanding Depositary Receipt listed in Part 2.2(a)(iv) of the Disclosure Schedule. “Depositary Receipt Surrender Agreement” has the meaning assigned to such term in Section 1.4(c) of this Agreement. “Disclosure Schedule” means the schedule (dated as of the date of this Agreement) delivered to Purchaser on behalf of the Company and Sellers and prepared in accordance with Section 11.18 of this Agreement. “Domain Name” means any Internet domain name, web address, uniform resource locator, social media handle, user name or account identifier, and all goodwill associated with any of the foregoing. “Dutch GAAP” means generally accepted accounting principles in the Netherlands, as applicable as at the date on which an applicable calculation or action is made or taken or required to be made or taken, applied on a consistent basis. “E&O Tail” has the meaning assigned to such term in Section 5.9 of this Agreement.
4897-9174-6440.v17 “EmmaLex” means EmmaLex B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, having its corporate seat in Amstelveen, the Netherlands, and its address at Margaretha van Borsselenlaan 19, 1181 CX Amstelveen, the Netherlands, registered with the Trade Register under number 59183756. “Employee Benefit Plan” means any plan, scheme, policy, agreement or arrangement (whether written or oral and whether mandatory under applicable law or voluntarily adopted) relating to employee or service provider benefits or compensation, including: (a) any equity incentive, share or option plan; (b) any pension arrangement within the meaning of the Dutch Pensions Act (Pensioenwet), if any; (c) any fringe benefit plan or program; (d) any vacation, paid time off, bonus, incentive, commission, profit sharing, insurance, disability, life insurance, relocation, retention, change of control, transaction, severance or termination arrangement; (e) any employee loan or allowance arrangement (including arrangements described as pension saving plans that do not qualify as pension schemes under Dutch law); (f) any occupational pension scheme or PRSA within the meaning of the Irish Pensions Act; (g) MyFutureFund; and (h) any other plan, program or arrangement similar to those described in paragraphs (a) through (g). “Employee Expense Accrual Amount” means an amount equal to the sum of (a) the aggregate dollar amount (determined using the Specified Exchange Rate, as applicable) of all unpaid compensation and related Expenses of the Acquired Companies as of immediately after the Closing, including earned and unearned sales commissions and amounts payable under any bonus, change of control, severance, retention or other similar plan, agreement or arrangement (which shall be calculated after giving effect to the consummation of the Contemplated Transactions) and (b) the aggregate dollar amount (determined using the Specified Exchange Rate, as applicable) of all vacation and paid time off of all Company Associates as of immediately after the Closing. “Employment Agreement” means an employee offer letter or employment agreement provided to an employee or contractor of any Acquired Company by Purchaser or an Affiliate of Purchaser describing such individual’s employment arrangement with Purchaser or such Affiliate or an Acquired Company, which shall become effective at the Closing. “Employment Legal Requirements” means all Legal Requirements concerning hiring, termination, collective bargaining, labor relations, paid and unpaid sick leave laws, vacation or other paid time off, immigration, fair credit reporting, compensation, pay equity, civil rights, labor relations, payment of wages, hours and overtime, reimbursement of business expenses, harassment, discrimination, retaliation in employment, reasonable accommodation, unfair competition, work breaks (including meal periods, rest breaks, and lactation breaks), affirmative action, immigration, work authorization, terms and conditions of employment, payroll tax withholding and deductions, unemployment compensation, social benefits contributions, severance pay, WARN Act, worker’s compensation, worker classification (including the proper classification of workers as independent contractors and employees as exempt or non-exempt under applicable Legal Requirements), paid or unpaid leaves of absences, privacy, records and files, social security contributions, wages, hours of work, occupational safety and health, pension, retirement benefits, and all other obligations imposed by, and all orders made under relevant statutes and regulations, statutory codes of practice and all other employment customs and practices. “Employment Tax” means the employer portion of any payroll or employment Tax relating directly or indirectly to or resulting directly or indirectly from (a) the payment (in whole or in part) of any consideration payable pursuant to Section 1 or (b) any payment that is contingent upon or payable as a result of the Closing, the Share Purchase or any of the other Contemplated Transactions (whether alone or in combination with any other event or circumstance), including with respect to any payment that constitutes an Expense described in clause “(d)” of the definition of “Company Transaction Expense.”
4897-9174-6440.v17 “Employment Term Sheet” means a term sheet for each Key Employee setting forth key terms for the Noncompetition Agreement and the Employment Agreement. “Enforceability Exception” means the effect, if any, of: (a) applicable bankruptcy, insolvency, moratorium or other similar laws affecting the rights of creditors generally; and (b) rules of law governing specific performance, injunctive relief and other equitable remedies. “Entity” means any corporation (including any non-profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, company (including any limited liability company or joint stock company), firm or other enterprise, association, organization or entity. “Environmental Law” means any Legal Requirement relating or pertaining to the public health or safety (including workplace health and safety) or the environment or otherwise governing the generation, use, handling, collection, treatment, storage, transportation, recovery, recycling, removal, discharge or disposal of Hazardous Materials, including: (a) the Solid Waste Disposal Act, 42 U.S.C. § 6901 et seq., as amended; (b) the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq., as amended; (c) the Clean Water Act, 33 U.S.C. § 1251 et seq., as amended; (d) the Clean Air Act, 42 U.S.C. § 7401 et seq., as amended; (e) the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., as amended; (f) the Emergency Planning and Community Right To Know Act, 42 U.S.C. § 11001 et seq., as amended; (g) the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq., as amended; and (h) any analogous Legal Requirement implemented in the European Union or its member states, or in any other country or other jurisdiction in which any Acquired Company conducts business. “Equity Incentive Plan” means any equity or equity-based incentive plan or arrangement of the Company, including the Terms and Conditions of Profit Participation Units of the Company, as amended, supplemented or modified from time to time in accordance with this Agreement. “Escrow Agent” means a bank or trust company selected by Purchaser to act as escrow agent in connection with the Contemplated Transactions. “Escrow Agreement” means the escrow agreement to be entered into among Purchaser, the Securityholders’ Agent and the Escrow Agent on the Closing Date, in a form to be mutually agreed by Purchaser, the Company and the Escrow Agent. “Escrow Amount” means $750,000. “Expense” means any fee, cost, expense, payment, expenditure or Liability. “Expense Fund” has the meaning assigned to such term in Section 11.1(b)(i) of this Agreement. “Expense Fund Amount” has the meaning assigned to such term in Section 11.1(b)(i) of this Agreement. “Financial Statements” means: (a) the financial statements (consisting of balance sheets and income statements) of the Acquired Companies as of and for the fiscal year December 31, 2024; and (b) the Locked Box Financial Statements. “Foundation” means Stichting Administratiekantoor Arena Aviation Partners, the foundation (stichting) formed to administer the Depositary Receipts pursuant to the Administrative Conditions (administratievoorwaarden), incorporated under the laws of the Netherlands, having its registered address
4897-9174-6440.v17 at Keizersgracht 174, 1016 DW Amsterdam, the Netherlands and registered in the trade register of the Chamber of Commerce under number 82619271. “Fraud” means knowing and intentional common law fraud under the Laws of the State of New York committed in the making of the representations and warranties made expressly and specifically set forth in Sections 2, 3 or 4, and requires that (i) such representation and warranties were made with the intent to induce a party hereto to rely thereon and take action or refrain from taking action, (ii) the acting party hereto acted in justifiable reliance on the representation and warranty and (iii) the acting party hereto was injured by its reliance. “Fraud” does not and shall not include equitable fraud, constructive fraud, promissory fraud, unfair dealings fraud, or any torts (including fraud) based on negligence or recklessness. “Fully Diluted Share Number” means the sum, without duplication, of the aggregate number of Depositary Receipts held by the Depositary Receipt Holders. “Fundamental Representations” means the representations and warranties set forth in Sections 2.1 (Organizational Matters), 2.2 (Capital Structure), 2.3 (Authority and Due Execution), 2.4(a)(i) (Non- Contravention), 2.8 (Taxes), 2.13 (Brokers’ and Finders’ Fees) and 3 (Representations and Warranties of Sellers) of this Agreement. “Fundamental Representations Expiration Date” has the meaning assigned to such term in Section 10.1(b) of this Agreement. “General Expiration Date” has the meaning assigned to such term in Section 10.1(a) of this Agreement. “Governmental Entity” means any: (a) multinational or supranational body exercising legislative, judicial or regulatory powers; (b) nation, state, commonwealth, province, territory, county, municipality, district or other jurisdiction of any nature; (c) federal, state, provincial, local, municipal, foreign or other government; (d) instrumentality, subdivision, department, ministry, board, court, administrative agency or commission, or other governmental entity, authority or instrumentality or political subdivision thereof; or (e) any quasi-governmental, professional association or organization or private body exercising any executive, legislative, judicial, regulatory, taxing, importing or other governmental functions or any stock exchange or self-regulatory organization. “Hazardous Material” means any: (a) hazardous waste, hazardous substance, toxic pollutant, hazardous air pollutant or hazardous chemical (as any of such terms may be defined under, or for the purpose of, any Environmental Law); (b) asbestos; (c) polychlorinated biphenyl; (d) petroleum or petroleum product; (e) underground storage tank, whether empty, filled or partially filled with any substance; (f) substance the presence of which on the property in question is prohibited under any Environmental Law; or (g) other substance that under any Environmental Law requires special handling or notification of or reporting to any Governmental Entity in its generation, use, handling, collection, treatment, storage, recycling, treatment, transportation, recovery, removal, discharge or disposal. “HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. “Indebtedness” of a Person means, without duplication and except for those liabilities set forth on Part 2.6(b) of the Disclosure Schedules: (a) any obligation (including the principal amount thereof and, if applicable, the accreted amount thereof and the amount of accrued and unpaid interest thereon) of such Person, whether long-term or short-term, whether or not represented by a bond, debenture, note or other security or instrument and whether or not convertible into any other security or instrument, for the repayment of money borrowed, whether owing to a bank, to another financial institution, to a Governmental
4897-9174-6440.v17 Entity, on an equipment lease (other than office equipment leases) or otherwise, including intercompany loans (other than intercompany receivables and payables), employee loans, deposits (other than those refundable) and subordinated loans; (b) any deferred obligation of such Person for the payment of (i) rent or (ii) the purchase price of any property or other asset purchased (other than current accounts payable that were incurred in the ordinary course of business); (c) any obligation of such Person to pay rent or other amounts under a lease which is required to be classified as a capital or finance lease on a balance sheet prepared in accordance with Dutch GAAP; (d) any outstanding reimbursement obligation of such Person with respect to any letter of credit, bankers’ acceptance or similar facility issued for the account of such Person; (e) any obligation of such Person under any agreement with respect to any swap, forward, future or derivative transaction or any option or similar agreement involving, or settled by reference to, any rate, currency, commodity, price of any equity or debt security or instrument or any economic, financial or pricing index or measure of economic, financial or pricing risk or value, or any similar transaction or combination of the foregoing transactions; (f) any obligation secured by any Lien existing on any property or other asset owned by such Person, whether or not indebtedness secured thereby has been assumed; (g) any guaranty, endorsement, assumption and other contingent obligation of such Person in respect of, or to purchase or to otherwise acquire, any indebtedness of another Person; (h) any obligation, contingent or otherwise, of such Person to repay any grant, subsidy or similar amount; (i) any premium, penalty, fee, expense, breakage cost or change of control payment required to be paid or offered in respect of any of the foregoing on prepayment, as a result of the consummation of any of the Contemplated Transactions or any transaction in connection with any lender Consent; (j) the aggregate dollar amount (but in no event less than zero) determined using the Specified Exchange Rate, as applicable of all accrued Taxes (including, for the avoidance of doubt, any VAT, payroll Taxes, corporate taxes, BIK liabilities, Dutch withholding Taxes, employer-related Taxes or similar Taxes, except to the extent that such Taxes were accrued in the ordinary course following the Locked Box Date) of the Acquired Companies immediately after the Closing; or (k) all Liabilities arising under or in connection with any lease (including any operating lease) in respect of dilapidations, restoration, repair, reinstatement, make-good or similar obligations, whether arising during the term of such lease or upon its expiration or earlier termination, including any amounts claimed by a landlord pursuant to a schedule of dilapidations or similar notice; (l) all Liabilities or provisions in respect of maintenance reserves, lifecycle reserves, major maintenance, capital expenditure reserves, sinking funds or similar amounts required to be funded, reimbursed or otherwise paid (whether or not then due and payable), including any deferred or accrued maintenance obligations; (m) all accrued, unaccrued, deferred or otherwise uninvoiced obligations in respect of utilities, energy, water, telecommunications, waste services or other operating services, whether or not reflected on the balance sheet and whether or not invoiced as of the Locked Box Date; (n) any Liabilities identified in connection with the audited financial statements to be delivered pursuant to Section 7.10 that were not reflected, reserved against or otherwise disclosed on the Locked Box Financial Statements; and (o) any actual or potential repayment, reimbursement, disgorgement, recapture or “clawback” obligations, including in respect of grants, subsidies, tax credits, rebates, incentive payments, earn-outs, management incentive compensation, or similar arrangements, whether contingent or otherwise, determined in accordance with Dutch GAAP (whether or not any such Taxes were accrued in the Financial Statements) and after giving effect to the consummation of the Contemplated Transactions, but without giving effect to: (a) any deduction or credit that is created or triggered by, or arises as a result of or in connection with, any of the Contemplated Transactions; (b) any Tax refund relating to any period (or portion thereof) ending on or prior to the Closing Date; or (c) any net operating loss carryforward or carryback. “Indemnitee” means, as applicable, Purchaser Indemnitees or the Seller Indemnitees. “Indemnitor” means, as applicable, the Seller Indemnitors or Purchaser. “Indemnitor Representative” means, as applicable, Purchaser (with respect to Purchaser) or the Securityholders’ Agent (with respect to the Sellers).
4897-9174-6440.v17 “Indemnity Escrow Fund” means, at any time, the aggregate funds and other assets held in the escrow account established by depositing the Escrow Amount with the Escrow Agent to secure the indemnification obligations of the Seller Indemnitors to Purchaser Indemnitees in accordance with Section 7 and the Escrow Agreement. “Individual Claim” means a claim made pursuant to Section 10.2(b). “Individual Covenant” means, with respect to any Seller, any covenant, agreement or obligation of such Seller set forth in this Agreement, including Sections 5.11, 5.14, 6.4, 10 and 11.2. “Information Privacy and Security Law” means all Legal Requirements applicable to the Acquired Companies concerning data privacy, data protection of information regarding individuals or households and/or the processing of Personal Data, including the California Consumer Privacy Act of 2018 (as amended by the California Privacy Rights Act of 2020), the EU 2016/679 General Data Protection Regulation and the equivalent thereof under the laws of The Netherlands and Ireland, in each case, as amended. “Innovation Box” means the preferential corporate income tax regime in The Netherlands within the meaning of Section 2.3 of the Dutch Corporate Income Tax Act 1969 (Wet op de vennootschapsbelasting 1969). “Intellectual Property Rights” means all rights of the following types, which may exist or be created under the laws of any jurisdiction in the world, in each case, whether registered or unregistered: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, mask works and integrated circuit topographies, and moral rights; (b) Trademark rights and similar rights; (c) Trade Secret rights and similar rights; (d) Patent and industrial property rights and similar rights; (e) database rights and similar rights; (f) other proprietary rights in intellectual property; and (g) rights in or relating to registrations, renewals, reexaminations, extensions, combinations, divisions, continuations, continuations-in-part and reissues of, and applications for, any of the rights referred to in clauses “(a)” through “(f)” above. “Irish Pensions Act” means the Pensions Act 1990 (as amended). “IT Systems” means any and all computers, computer systems, hardware, software, firmware, middleware, servers, workstations, routers, hubs, switches, networks, databases, data storage devices, telecommunications equipment and other information technology infrastructure, assets and equipment (including laptops and mobile devices), and all documentation related to any of the foregoing, in each case, to the extent used by the an Acquired Company. “Key Employee” means each of Patrick den Elzen, Dirk-Jan Smit, Erik Dahmen, Andreas Göricke, Peter Blakeney, Diederik Lindhout and Vincent van Tooren. An individual shall be deemed to have “Knowledge” of a particular fact or other matter if (a) such individual is actually aware of such fact or other matter or (b) other than with respect to the first sentence of Section 2.25, for which this subsection (b) shall not apply, a prudent individual would reasonably be expected to have discovered or otherwise become aware of such fact or other matter under the circumstances by virtue of conducting a reasonable investigation. The Company shall be deemed to have “Knowledge” of a particular fact or other matter if any managing director, supervisory director, officer or director (or other similar position) of any Acquired Company or any Seller, any Key Employee or such other individual as Purchaser may add prior to the Closing as a result of any supplements, modifications or otherwise made by Sellers to the Disclosure Schedules pursuant to Section 5.16, is deemed to have Knowledge of such fact or other matter. A Seller that is an Entity shall be deemed to have “Knowledge” of a particular fact or other
4897-9174-6440.v17 matter if any managing director, supervisory director, officer or director (or other similar position) of such Seller is deemed to have Knowledge of such fact or other matter. “Leakage” means, without duplication, any of the following occurring between the Locked Box Date and the Closing Date: (a) any dividend or other distributions (whether in cash or property) declared, paid or made by any of the Acquired Companies to the Sellers or any of their Affiliates (other than the Acquired Companies); (b) any payment by any of the Acquired Companies to the Sellers or any of their Affiliates (other than the Acquired Companies) for the purchase, redemption or repayment of any capital stock, membership interests or other securities of any of the Acquired Companies or any other return of capital to the Sellers or any of their Affiliates (other than the Acquired Companies); (c) payment of any other nature made by any of the Acquired Companies to or for the benefit of the Sellers or any of their Affiliates (other than the Acquired Companies) (including Taxes) except for any Tax payment on behalf of the Acquired Companies after the Locked Box Date and on or before the Closing that relate to periods ending on or before the Locked Box Date; (d) any transfer or surrender of assets or other monetary benefits by any of the Acquired Companies to or for the benefit of the Sellers or any of their Affiliates (other than the Acquired Companies); (e) any Acquired Company assuming or incurring any liability for the benefit of the Sellers or any of their Affiliates (other than the Acquired Companies); (f) the provision of any guarantee or indemnity or the creation of any Lien by any Acquired Company in favor, or for the benefit, of the Sellers or any of their Affiliates (other than the Acquired Companies); (g) any waiver, discount, release or discharge by any Acquired Company of any amount, obligation or liability owed to it by the Sellers or any of their Affiliates (other than the Acquired Companies) or (h) any cost or Tax incurred by the Acquired Companies’ as a consequence of doing any of the foregoing; provided, that, any Leakage with respect to items (a) through (h) above shall be reduced by any Leakage Tax Benefit unless such Leakage Tax Benefit has previously been taken into account in determining the Seller Indemnitors’ indemnity obligation pursuant to Section 10.2(b). “Leakage Tax Benefit” means, the aggregate of, in respect of each Leakage item, (i) the amount of VAT which is actually recovered by Purchaser (net of expenses incurred in recovering such amounts) and (ii) the portion thereof which is actually and currently deducted for corporate income tax purposes by Purchaser on its Tax Return multiplied by the applicable corporate income tax rate, in each case as determined by Purchaser in its sole discretion. “Leased Real Property” has the meaning assigned to such term in Section 2.9(b) of this Agreement. “Legal Proceeding” means any action, suit, litigation, arbitration, application, claim, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, inquiry, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Entity or any arbitrator or arbitration panel. “Legal Requirement” means any national, federal, state, local, municipal, foreign, supranational or other law, statute, constitution, treaty, principle of common law, directive, resolution, ordinance, code, edict, Order, rule, guideline, regulation or requirement issued, enacted, adopted, promulgated, entered, implemented or otherwise put into effect by or under the authority of any Governmental Entity. “Liability” means any debt, obligation, duty or liability of any nature (including any unknown, undisclosed, unmatured, unaccrued, unasserted, contingent, indirect, conditional, implied, vicarious, derivative, joint, several or secondary liability), regardless of whether such debt, obligation, duty or liability would be required to be disclosed on a balance sheet prepared in accordance with Dutch GAAP, and regardless of whether such debt, obligation, duty or liability is immediately due and payable.
4897-9174-6440.v17 “Lien” means any lien, pledge, hypothecation, charge, mortgage, deed of trust, easement, encroachment, security interest, encumbrance, license, possessory interest, conditional sale or other title retention arrangement, intangible property right, claim, infringement, option, right of first refusal, preemptive right, community property interest or restriction of any nature (including any restriction on the voting of any security or restriction on the transfer, use or ownership of any security or other asset). A document or other item of information shall be deemed to have been “Made Available to Purchaser” only if: (a) such document or other item of information was included (in the appropriate location) in, and properly categorized and indexed in, the Virtual Data Room at least ten (10) days prior to the Closing Date; and (b) all of Purchaser’s Representatives had full access to such document or other item of information throughout such period. “Locked Box Date” means December 31, 2025. “Locked Box Financial Statements” means the unaudited financial statements (consisting of a balance sheet and an income statement) of the Company as of and for the twelve-month period ended on the Locked Box Date. “Major Customers” has the meaning assigned to such term in Section 2.22(a) of this Agreement. “Major Damages” means, with respect to any Company Aircraft, any damage to such Company Aircraft the cost of rectification of which equaled or exceeded, or is reasonably expected to equal or exceed, any “damage notification threshold” or similar (as defined in the relevant Aircraft Lease with respect to any Company Aircraft) or, if no such definition exists, the amount specified in the relevant Aircraft Lease as the threshold of damage of which the relevant Aircraft Lessee is required to notify the relevant Aircraft Lessor. “Major Suppliers” has the meaning assigned to such term in Section 2.22(a) of this Agreement. “Managed Aircraft” means each Aircraft set forth in Part 2.23(b) of the Disclosure Schedule that is managed or serviced by the Company or any Acquired Company in its capacity as a servicer and whose full beneficial interest is not held by an Acquired Company. “Material Adverse Effect” means any change, event, effect, claim, circumstance or matter (each, an “Effect”) that (considered together with all other Effects) has had or resulted in, or would reasonably be expected to have or result in, a material adverse effect on: (a) the business, condition, assets, liabilities, capitalization, operations, results of operations or financial performance of the Acquired Companies, taken as a whole; (b) Purchaser’s right to own, transfer or exercise voting rights with respect to, or to receive dividends or other distributions with respect to, any of the shares of the Company; or (c) the ability of the Company or any of the Seller Indemnitors to perform any of its material covenants or obligations under this Agreement; provided, however, that, for purposes of the foregoing clause “(a)” only, the following shall not be deemed to constitute a Material Adverse Effect unless they have a disproportionate effect on the Acquired Companies as compared to any of the other companies in the industry in which the Acquired Companies operate: (i) any change in Dutch GAAP occurring after the date of this Agreement; (ii) the commencement of a war or material armed hostilities or the occurrence of acts of terrorism involving in any of the countries, markets or geographical areas in which the Acquired Companies operate, in each case, occurring after the date of this Agreement; (iii) the negotiation, execution or delivery of this Agreement, the performance by any party hereto of its obligations hereunder or the public announcement (including as to the identity of the parties hereto) or pendency of the Contemplated Transactions; or (iv) any action required by the terms of this Agreement, or with the prior written consent or at the direction of Purchaser.
4897-9174-6440.v17 “Material Contract” means each of the following: (i) each Company Contract with a Major Supplier; (ii) each Company Contract with any Person that contemplates or involves: (A) the payment or delivery of cash or other consideration by any Acquired Company in an amount or having a value in excess of $50,000 individually in any fiscal year, or $100,000 in the aggregate in any fiscal year when taken together with all other Company Contracts involving such Person or any of such Person’s Affiliates; or (B) the performance of services by such Person or any of such Person’s Affiliates having a value in excess of $50,000 individually in any fiscal year, or $100,000 in the aggregate in any fiscal year when taken together with all other Company Contracts involving such Person or any of such Person’s Affiliates; (iii) each lease, lease guaranty, sublease or other Company Contract for the leasing, use or occupancy of any Leased Real Property; (iv) any Company Contract with, or for the material benefit of, any shareholder, managing director, supervisory director, director, officer or management level employee of any Acquired Company, or any member of his or her immediate family or any Affiliate of any of such Persons, including any Contract providing for the furnishing of services by, rental of real or personal property from or otherwise requiring payments to or for the benefit of any such Person, but excluding any Contract that terminates or expires in its entirety as of the Closing without liability on the part of any Acquired Company; (v) each Company Contract imposing any restriction on any Acquired Company (A) to engage, participate or compete in any line of business, market or geographic area, (B) to engage in any aspect of an Acquired Company’s business, (C) to acquire any product or other asset or any services from any other Person, sell any product or other asset to or perform any services for any other Person, or transact business or deal in any other manner with any other Person, including any Company Contract that contains any “most favored nation” or “most favored customer” or similar provision or (D) to solicit or hire any prospective employee, consultant, contractor, customer or supplier; (vi) each Company Contract with a Major Customer; (vii) each (A) Aircraft Lease for Company Aircraft and (B) Servicing Agreement; (viii) each Company Contract relating to any joint venture, strategic alliance, partnership or sharing of profits or revenue or similar arrangement; (ix) each Company Contract that evidences any swap or hedging transaction or other derivative agreements; (x) each Company Contract relating to any transaction in which any Acquired Company merged or was consolidated with any other Person, acquired any securities or assets of another Person or otherwise acquired the rights to any material Acquired Company IP;
4897-9174-6440.v17 (xi) each Company Contract relating to the acquisition, transfer, development or shared ownership of any Intellectual Property Right (including any joint development agreement, technical collaboration agreement or similar agreement entered into by any of the Acquired Companies); (xii) each Company Contract between any Acquired Company and any Company Associate pursuant to which (A) benefits would vest or amounts would become payable or the terms of which would otherwise be altered by virtue of the consummation of any of the Contemplated Transactions (whether alone or upon the occurrence or existence of any additional or subsequent event or circumstance), (B) any Acquired Company is or may become obligated to make any severance, termination, retention, gross- up or similar payment to any Company Associate or (C) any Acquired Company is or may become obligated to make any bonus, incentive compensation or similar payment (other than in respect of ordinary course salary or wages, or as will not and would not reasonably be expected to exceed $10,000 in any 12-month period) to any Company Associate; (xiii) each Company Contract with any labor union or association or similar body representing or purporting to represent any employee of any Acquired Company; (xiv) each Company Contract providing for or otherwise contemplating (A) the sale or other disposition of any of the assets of any Acquired Company, other than in the ordinary course of business or (B) the grant to any Person of any right to purchase any of the assets of any Acquired Company; (xv) each outstanding power of attorney executed by or on behalf of any Acquired Company; (xvi) each Company Contract that provides for indemnification of any current, former or future managing director, supervisory director, director, officer, employee or agent of any Acquired Company; (xvii) each Company Contract involving any loan, guaranty, pledge, performance or completion bond or indemnity or surety arrangement or otherwise relating to the incurrence, assumption or guarantee of any Indebtedness by any Acquired Company or imposing a Lien on any of the assets of any Acquired Company; (xviii) each Company Contract with any Governmental Entity; (xix) each Company Contract regarding the acquisition, issuance or transfer of any securities or affecting or dealing with any securities of any Acquired Company, including any restricted share agreement or escrow agreement and any underwriting or other agreement relating to any actual or potential offering of securities; (xx) each other Company Contract that is, or group of related or similar Company Contracts that are or were collectively, entered into outside the ordinary course of business or otherwise material to any Acquired Company; provided, that the dollar thresholds set forth in this definition of Material Contracts shall be subject to further modification by Purchaser to ensure Purchaser receives adequate disclosure, in its reasonable
4897-9174-6440.v17 discretion, based on such supplements, modifications or otherwise made by Sellers to the Disclosure Schedules pursuant to Section 5.16. “Misconduct Allegation” has the meaning assigned to such term in Section 2.14(i) of this Agreement. “Mosa” means Mosa B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, having its corporate seat in Maastricht, the Netherlands, and its address at Potteriestraat 141, 6216 VD Maastricht, the Netherlands, registered with the Trade Register under number 60050527. “MyFutureFund” means the retirement savings system established under the Automatic Enrolment Act (or such retirement savings system as may replace it from time to time). “Non-U.S. Employee” has the meaning assigned to such term in Section 2.14(a) of this Agreement. “Non-Withholding Depositary Receipt” has the meaning assigned to such term in Section 1.4(b)(ii) of this Agreement. “Noncompetition Agreement” has the meaning assigned to such term in the Recitals to this Agreement. “Notary” means Mrs. Marieke Kolsters, civil law notary at Schut Notarissen B.V., or any one of her deputies. “Order” means any order, writ, injunction, judgment, edict, decree, ruling or award of any arbitrator or any court or other Governmental Entity. “Other Indemnifiable Matter” means any matter described in Section 10.2(a)(ii), Section 10.2(a)(iv), Section 10.2(a)(v), Section 10.2(a)(vi), Section 10.2(a)(viii) or Section 10.2(b)(iii) of this Agreement. “Outstanding Class A Shares” means all Class A Shares that are issued and outstanding immediately prior to the Closing. “Outstanding Class P Shares” means all Class P Shares that are issued and outstanding immediately prior to the Closing. “Outstanding Company Shares” means, collectively, the Outstanding Class A Shares and the Outstanding Class P Shares. “Outstanding Depositary Receipt” means a Depositary Receipt that is issued and outstanding immediately prior to the Closing. “Patents” means patents (including utility, utility model, plant and design patents and certificates of invention), patent applications (including additions, provisional, national, regional and international applications, as well as original, continuation, continuation-in-part, divisionals, continued prosecution applications, reissues, reviews and re-examination applications), patent or invention disclosures, registrations, applications for registrations and any term extension or other governmental action which provides rights beyond the original expiration date of any of the foregoing.
4897-9174-6440.v17 “Payment Agent” means a bank or trust company mutually selected by the Securityholders’ Agent and Purchaser to act as payment agent in connection with the Contemplated Transactions. “Payoff Letter” has the meaning assigned to such term in Section 5.7 of this Agreement. “Per Share At-Risk Collections Payment Amount” means an amount in dollars obtained by dividing: an amount equal to the applicable At-Risk Collections Payment; by (b) the Fully Diluted Share Number. “Permit” means any permit, license, approval, certificate, franchise, permission, clearance, Consent, registration, variance, sanction, exemption, order, qualification or authorization issued, granted, given or otherwise made available by or under the authority of any Governmental Entity or pursuant to any applicable Legal Requirement. “Permitted Leakage” means, without duplication, any of the following occurring between the Locked Box Date and the Closing Date: (a) any payments made (or to be made or payable) by an Acquired Company that have been specifically accrued or provided for in the Locked Box Financial Statements, including any bonuses accrued therein; (b) any payments (or amounts payable) in respect of salaries, wages, commissions, benefits, pension contributions, expenses, fees, or other compensation made to, or in respect of services provided by, employees, workers, directors, officers or consultants of any Acquired Company that are made (or payable) by the Sellers; (c) any payments made by an Acquired Company in the ordinary course of business pursuant to the following agreements: a. Management Agreement, entered into as of March 29, 2017, by and between the Company and QP Management; b. Management Agreement, entered into as of September 1, 2017, by and between the Company and EmmaLex B.V.; c. Management Agreement, entered into as of September 1, 2017, by and between the Company and Mosa B.V; d. Management Agreement, entered into as of September 1, 2017, by and between the Company and Archeoptrix B.V.; e. Management Agreement, entered into as of February 12, 2025, by and between the Company and Van Tooren Link B.V.; f. Agreement for Services, entered into as of May 31, 2019, by and between the Company and STR-INVEST LIMITED LLC; or g. Agreement for Services, entered into as of January 9, 2023, by and between the Company and Azure Dragon Aviation Pte. Ltd.
4897-9174-6440.v17 (d) any payment made or agreed to be made or liability incurred in respect of any matter undertaken by or on behalf of an Acquired Company with the written consent of Purchaser. “Permitted Liens” means: (a) statutory liens to secure non-delinquent obligations to landlords, lessors or renters under leases or rental agreements; (b) deposits or pledges made in connection with, or to secure payment of, workers’ compensation, unemployment insurance or similar programs mandated by applicable law; (c) statutory liens in favor of carriers, warehousemen, mechanics and materialmen, to secure claims for labor, materials or supplies and other like liens; and (d) any minor imperfections of title or similar liens, charges or encumbrances, which individually or in the aggregate with other such imperfections, liens, charges and encumbrances, do not materially impair the value of the property subject to such imperfections, liens, charges or encumbrances or the use of such property in the conduct of the business of any of the Acquired Companies. “Person” means any individual, Entity or Governmental Entity. “Personal Data” means information that: (a) identifies, or in combination with other information may identify, be linked to, relate to, or is capable of being associated with a natural person or device used by a natural person; or (b) is governed, regulated or protected by any Information Privacy and Security Law. “Post-Closing Representation” has the meaning assigned to such term in Section 11.22(a) of this Agreement. “Pre-Closing Tax Period” means any Tax period ending on or before the Closing Date. “Privacy Obligations” means all (a) Information Privacy and Security Law and (b) binding internal and external policies and procedures, binding industry standards, and restrictions and requirements contained in any Contract to which any Acquired Company is bound, in each case, under this clause (b), to the extent relating to data privacy, data protection, cybersecurity and/or the processing of Personal Data. “Pro Rata Share” means, with respect to any Seller Indemnitor, the fraction having a numerator equal to the aggregate amount of consideration that such Seller Indemnitor is entitled to receive pursuant to Sections 1.2, 1.3(a) and 1.4(a) of this Agreement, and having a denominator equal to the aggregate amount of consideration that all Seller Indemnitors are entitled to receive pursuant to Sections 1.2, 1.3(a) and 1.4(a) of this Agreement. “Purchaser” has the meaning assigned to such term in the introductory paragraph of this Agreement. “Purchaser Closing Certificate” means a certificate, duly executed by Purchaser and dated as of the Closing Date, containing the representation and warranty of Purchaser that, to the extent pertaining to the representations, warranties, covenants and obligations of such Seller, the conditions set forth in Sections 8.1 and 8.2 have been duly satisfied. “Purchaser Cure Period” has the meaning assigned to such term in Section 9.1(f) of this Agreement. “Purchaser Financing Transaction” has the meaning assigned to such term in Section 7.8 of this Agreement. “Purchaser Indemnitees” means the following Persons: (a) Purchaser; (b) Purchaser’s current and future Affiliates (including, following the Closing, the Acquired Companies); (c) the respective Representatives of the Persons referred to in clauses “(a)” and “(b)” above; and (d) the respective successors
4897-9174-6440.v17 and assigns of the Persons referred to in clauses “(a),” “(b)” and “(c)” above; provided, however, that the Seller Indemnitors shall not be deemed to be “Purchaser Indemnitees.” “Purchaser Relief” means (i) any relief arising to Purchaser and/or any Affiliate of Purchaser (other than any Acquired Company), and (ii) any relief arising to any of the Acquired Companies to the extent that it arises after the Closing Date. “Purchaser’s Legal Advisors” means Pillsbury Winthrop Shaw Pittman LLP. “QP Management” means QP Management B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, having its corporate seat in Den Haag, the Netherlands, and its address at Nassau Odijckstraat 4, 2596 AH Den Haag, the Netherlands, registered with the Trade Register under number 32070469. “Registered IP” means all Intellectual Property Rights that are registered, filed, issued or granted under the authority of, with or by, any Governmental Entity (or other registrar in the case of Domain Names), including all Patents, registered copyrights, registered mask works and integrated circuit topographies, registered Trademarks, registered designs, Domain Names and all applications for any of the foregoing. “Related Party” means: (a) any shareholder of the Company; (b) any Company Associate; (c) any member of the immediate family of any shareholder of the Company or Company Associate; (d) any Affiliate of any Person referred to in clause “(a),” “(b)” or “(c)” of this sentence; or (e) any trust or other Entity (other than any Acquired Company) in which any one of the Persons referred to in clauses “(a),” “(b),” “(c)” or “(d)” above holds (or in which more than one of such Persons collectively hold), beneficially or otherwise, a material voting, proprietary, financial or equity interest. “Relevant Aircraft” means, as the context requires, each Company Aircraft and each Managed Aircraft. “Remaining Collective Claim Retained Amount” has the meaning assigned to such term in Section 10.6(b)(i) of this Agreement. “Remaining Individual Claim Retained Amount” has the meaning assigned to such term in Section 10.6(b)(ii) of this Agreement. “Representatives” means managing directors, supervisory directors, directors, officers, employees, agents, attorneys, accountants, advisors and representatives. The term “Representatives” shall be deemed to include current and future “Representatives.” “Residual Per Share Amount” means an amount in dollars obtained by dividing: (a) Class P Consideration; by (b) the Fully Diluted Share Number. “Restricted Cash” means, without duplication, cash security deposits held by the Company, cash collateralizing any obligation, cash in reserve or escrow accounts, custodial cash and cash subject to a lockbox, dominion, control or similar agreement (other than those that will be terminated at Closing) or otherwise subject to Tax or any legal, contractual or other restriction on the ability to freely transfer, distribute or use such cash for any lawful purpose, including restrictions on dividends or any other form of restriction. For the avoidance of doubt, all amounts held by the Company on behalf of policyholders, brokers, insurance companies or any other third party shall be Restricted Cash.
4897-9174-6440.v17 “Restricted Individual” means any Person who is or was known, or ought reasonably to have been known, to be an employee (including any temporary or leased employee), consultant or independent contractor of any Acquired Company at, or during the 90 days prior to, the Closing. “Revenue” means the Office of the Revenue Commissioners in Ireland. “Securityholders’ Agent” has the meaning assigned to such term in Section 11.1(a) of this Agreement. “Securityholders’ Agent Expenses” has the meaning assigned to such term in Section 11.1(b)(i) of this Agreement. “Seller Closing Certificate” means a certificate, duly executed by each Seller and dated as of the Closing Date, containing the representation and warranty of each Seller that, to the extent pertaining to the representations, warranties, covenants and obligations of such Seller, the conditions set forth in Sections 7.1, 7.2 and 7.4 have been duly satisfied. “Seller Indemnitees” has the meaning assigned to such term in Section 10.2(c) of this Agreement. “Seller Indemnitor” means each of the Sellers (other than the Foundation), and the Depositary Receipt Holders. “Sellers” means Archeoptrix, Mosa, EmmaLex, QP Management and the Foundation jointly, and each of them separately a “Seller”. “Servicing Agreement” means, in respect of any Managed Aircraft managed by an Acquired Company, any servicing agreement, asset management agreement or remarketing agreement (as the case may be) entered into by an Acquired Company and the applicable client, as amended, restated, supplemented or modified from time to time, including any related general terms and conditions applicable thereto. “Share Purchase” has the meaning assigned to such term in the Recitals to this Agreement. “Shareholder Agreements” means, together, the Class A Shareholder Agreement, dated March 30, 2021, by and between the Company and the shareholders of the Company listed thereto and the Class B Shareholder Agreement, dated March 30, 2021 by and between the Company and the shareholders of the Company listed thereto. “Specified Exchange Rate” means, for the purpose of translating an amount denominated in a currency other than dollars into dollars, the average closing rate for exchanges between such currency and dollars quoted by the Wall Street Journal (U.S. Edition) for the period of five consecutive trading days ending on (and including) the second trading day preceding the Closing Date. “Specified Expiration Date” has the meaning assigned to such term in Section 10.1(d) of this Agreement. “Straddle Period” means any Tax period beginning on or before the Closing Date and ending after the Closing Date. Notwithstanding anything to the contrary contained in this Agreement, any franchise Tax shall be allocated to the period during which the income, operations, assets or capital comprising the base of such Tax is measured, regardless of whether the right to do business for another period is obtained by the payment of such franchise Tax. In the case of Taxes that are payable with respect to any Straddle
4897-9174-6440.v17 Period, the portion of any such Taxes that is attributable to the portion of the period ending on the Closing Date shall be: (a) in the case of Taxes that are either (i) based upon or related to income or receipts or (ii) imposed in connection with any sale or other transfer or assignment of property (real or personal, tangible or intangible), deemed equal to the amount that would be payable if the Tax period of the Acquired Companies (and each partnership in which any Acquired Company is a partner) ended with (and included) the Closing Date; provided, that exemptions, allowances or deductions that are calculated on an annual basis (including depreciation and amortization deductions) shall be allocated between the period ending on and including the Closing Date and the period beginning after the Closing Date in proportion to the number of days in each period; and (b) in the case of Taxes that are imposed on a periodic basis with respect to the assets or capital of any Acquired Company, deemed to be the amount of such Taxes for the entire Straddle Period (or, in the case of such Taxes determined on an arrears basis, the amount of such Taxes for the immediately preceding period), multiplied by a fraction the numerator of which is the number of calendar days in the portion of the period ending on and including the Closing Date and the denominator of which is the number of calendar days in the entire period. “Straddle Period Tax Returns” has the meaning assigned to such term in Section 6.2(b) of this Agreement. An Entity shall be deemed to be a “Subsidiary” of another Person if such Person directly or indirectly owns or purports to own, beneficially or of record: (a) an amount of voting securities of or other interests in such Entity that is sufficient to enable such Person to elect at least a majority of the members of such Entity’s board of directors or board of supervisors or other governing body; or (b) at least 50% of the outstanding equity, voting, beneficial or ownership interests in such Entity. “Tax” means: (a) any U.S., Dutch, or Irish federal, state, governmental, supra-governmental, supranational, local, municipal or foreign gross receipts, capital stock, franchise, (corporate) income, profits, withholding, wage and other payroll, social security, unemployment, disability, real property, escheat, unclaimed property, personal property, insurance premium, bank levy, stamp, registration, excise, occupation, sales, use, transfer, value added tax, custom duty, environmental, alternative minimum or estimated or other tax, duty, payment in lieu of tax, imposition, contribution, charge, levy or assessment of any nature whatsoever and whenever imposed, including any obligation to repay unlawful state aid relating to any such taxes, impositions, duties, contributions, charges and levies, including any Tax arising as a result of any entity being a member of the Seller’s multinational enterprise group or large scale dometic group for the purposes of the Pillar II Global Anti-Base Erosion (GloBE) Rules adopted in accordance with the OECD/G20 Inclusive Framework on Base Erosion and Profit Sharing; (b) any liability for the payment of any amounts of the type described in clause “(a)” as a result of being a member of an affiliated, combined, consolidated, unity or similar group (including a fiscal unity for Dutch corporate income tax and/or VAT purposes) for any taxable period; (c) any liability for the payment of amounts of the type described in clauses “(a)” or “(b)” as a result of being a transferee of, or a successor in interest to, any Person; (d) any liability for the payment of amounts of the type described in clauses “(a),” “(b)” or “(c)” as a result of secondary liability; and (e) any and all interest, penalties, charges, costs and additions imposed with respect to amounts described in clauses “(a),” “(b),” “(c)” or “(d),” whether or not disputed. “Tax Benefit” means any Tax refund or reduction of Tax actually received by the Acquired Companies or a member of the Purchasers Group. “Tax Items” has the meaning assigned to such term in Section 2.8(a) of this Agreement.
4897-9174-6440.v17 “Tax Liability” means any liability of any Acquired Companies to make an actual payment of Tax to a Taxing Authority. “Tax Matter” has the meaning assigned to such term in Section 6.2(e) of this Agreement. “Tax Return” means any return (including any information return), report, statement, declaration, self-assessment, estimate, schedule, notice, notification, form, election, certificate or other document or information filed with or submitted to, or required to be filed with or submitted to, any Governmental Entity in connection with the determination, assessment, collection or payment of any Tax or in connection with the administration, implementation or enforcement of or compliance with any applicable Legal Requirement relating to any Tax. “Taxing Authority” means, with respect to any Tax, the Governmental Entity or political subdivision thereof that is competent to impose, administer, levy or assess such Tax, and the agency (if any) charged with the collection of such Tax for such Governmental Entity or subdivision, including any governmental or quasi-Governmental Entity or agency that is competent to impose, administer, levy or assess, or is charged with collecting, social security or similar charges or premiums. “Total Loss” has, in respect of any Company Aircraft, the meaning ascribed to such term (or a substantially equivalent term) in the Aircraft Lease to which such Company Aircraft is subject as at the date of this Agreement (or, to the extent any Company Aircraft is not subject to an Aircraft Lease as of the date of this Agreement, substantially equivalent to the meaning ascribed to such term in the Aircraft Leases generally). “Trade Control Laws” means: (a) all U.S. statutory and regulatory Legal Requirements related to export controls, economic sanctions, trade embargoes, boycotts, imports of goods and payment of custom duties, including the Arms Export Control Act (22 U.S.C. 2778), the International Traffic in Arms Regulations (ITAR) (22 CFR 120 130), the Export Administration Regulations (EAR) (15 CFR 730 774), the Foreign Assets Control Regulations (31 CFR Parts 500 598), and the laws and regulations administered by Customs and Border Protection (19 CFR Parts 1 199); and (b) all Legal Requirements of a non-U.S. Governmental Entity regulating exports, imports, transfers or re-exports of any goods, services, software or technology, or economic sanctions or trade embargoes applicable to any Acquired Company. “Trade Secrets” means trade secrets, confidential information, proprietary information and data, including all source code, documentation, know how, processes, technology, formulae, customer lists, business and marketing plans, inventions (whether or not patentable) and marketing information. “Trademarks” means trademarks, service marks, trade names, trade dress, certification marks, distinguishing guises, logos, corporate names, rights in business and get-up and other source or business identifiers (in each case, whether or not registered) and any registration, application, renewal and extensions of each of the foregoing and all goodwill associated with each of the foregoing. “Transaction Documents” means, collectively, this Agreement, the Noncompetition Agreements, the Consideration Spreadsheet, the releases described in Schedule 1.8(b), the resignations described in Section 5.6 of this Agreement, the certificates described in Schedule 1.8(b) and each other agreement, certificate or document referred to in this Agreement or to be executed in connection with any of the Contemplated Transactions. “Transfer Tax” means all transfer, documentary, sales, use or registration Taxes, stamp duties and other similar charges imposed on Purchaser or any Acquired Company in connection with any of the Contemplated Transactions.
4897-9174-6440.v17 “Treasury Regulations” means the United States Treasury Regulations promulgated under the Code. “Unresolved Collective Claim Retained Amount” has the meaning assigned to such term in Section 10.6(a) of this Agreement. “Unresolved Collective Claims” as of any time means all Collective Claims that have been asserted by Purchaser Indemnitees against the Seller Indemnitors, but which have not been fully and finally resolved as of such time in accordance with Section 10.6 Any such claim shall be deemed for all purposes of this Agreement to remain unresolved until all amounts owing to Purchaser Indemnitees with respect to such claims, as determined pursuant to Section 10.6, are paid in full. “Unresolved Individual Claim Retained Amount” has the meaning assigned to such term in Section 10.6(a) of this Agreement. “Unresolved Individual Claims” as of any time means all Individual Claims that have been asserted by Purchaser Indemnitees against any Seller Indemnitor, but which have not been fully and finally resolved as of such time in accordance with Section 10.6. Any such claim shall be deemed for all purposes of this Agreement to remain unresolved until all amounts owing to Purchaser Indemnitees with respect to such claims, as determined pursuant to Section 10.6, are paid in full. “VAT” means (a) any Tax imposed in compliance with the Council Directive of November 28, 2006 on the common system of value added tax (EC Directive 2006/112); and (b) any other Tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such Tax referred to in clause “(a)” above, or elsewhere (including any consumption Tax, goods and services Tax, sales Tax and turnover Tax). “Virtual Data Room” means the virtual data room hosted by Sharepoint established in connection with the transactions contemplated hereunder. “VP” has the meaning assigned to such term in Section 11.22(a) of this Agreement. “VP Work Product” has the meaning assigned to such term in Section 11.22(a) of this Agreement. “WARN Act” has the meaning assigned to such term in Section 2.14(f) of this Agreement. “WBSO” means the Dutch wage tax facility in relation to research and development (speur- en ontwikkelingswerk) within the meaning of the Dutch Wage Tax and National Insurance Contributions Reduced Remittances Act (Wet vermindering afdracht loonbelasting en premie voor de volksverzekeringen).
4897-9174-6440.v17 EXHIBIT B FORM OF RELEASE
4917-6621-0952.v7 [●], 20261 [Crestone Entity], Arena Aviation Partners B.V. and the other Releasees (as defined below) [●] [●] [●] Ladies and Gentlemen: Reference is made to that certain Share Purchase Agreement, dated as of March [●], 2026 (the “Purchase Agreement”), by and among: (a) [Crestone Entity], a [●] (“Purchaser”); (b) Arena Aviation Partners B.V., a corporation organized under the laws of the Netherlands with registration number 67644694 (the “Company”); (c) the Sellers (as defined in the Purchase Agreement); and (d) Dirk Jan Smit as the Securityholders’ Agent, as defined herein. Capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in the Purchase Agreement. In order to induce Purchaser to consummate the Contemplated Transactions, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned (the “Releasing Party”), intending to be legally bound, hereby covenants and agrees as follows: 1. Release. The Releasing Party (on the Releasing Party’s own behalf and on behalf of the Releasing Party’s Affiliates (as defined below)) hereby irrevocably, unconditionally and completely releases, acquits and forever discharges each of the Releasees (as defined below) from any Claim (as defined below), and hereby irrevocably, unconditionally and completely waives and relinquishes each and every Claim that the Releasing Party or any of the Releasing Party’s Affiliates may have had in the past, may now have or may have in the future against any of the Releasees, directly or indirectly relating to any event, matter, cause, thing, act, omission or conduct occurring or existing at any time up to and including the date of this letter agreement, including any Claim (i) to the effect that the Releasing Party is or may be entitled to any compensation, benefits or perquisites from any Acquired Company or (ii) otherwise arising (directly or indirectly) out of or in any way connected with any employment or other relationship of the Releasing Party with any Acquired Company or any of the other Releasees; provided, however, that: (A) the Releasing Party is not releasing any rights or claims under any law that the Releasing Party cannot, as a matter of law, waive by private agreement; (B) the Releasing Party is not releasing the Releasing Party’s rights under the Purchase Agreement and the other Transaction Documents; (C) if the Releasing Party is a managing director, supervisory director, director or officer of any Acquired Company, the Releasing Party is not releasing the Releasing Party’s rights under Section 5.9 of the Purchase Agreement; and (D) if the Releasing Party is an employee or contractor of any Acquired Company, the Releasing Party is not releasing the Releasing Party’s rights (1) under any contract or plan of an Acquired Company to which the Releasing Party is a party (or a direct beneficiary of), and that is not terminated at Closing pursuant to Section 5.6 of the Purchase Agreement, (2) to receive payment of any earned but unpaid salary, bonus, service fee or commission for the current payroll period or (3) to be reimbursed for reasonable business expenses incurred by such Releasing Party in the ordinary course of performing such Releasing Party’s duties, pursuant to the terms of the Company’s standard reimbursement policy. Furthermore, nothing in this Release prohibits the Releasing Party from reporting possible violations of any law or regulation to any governmental agency or entity. The Releasing Party does not need the prior authorization of the Purchaser to make any such reports or disclosures and the Releasing Party is not required to notify the Purchaser that the Releasing Party has made any such reports or disclosures. 1 To be dated as of the Closing Date.
4917-6621-0952.v7 2. Definitions. For purposes of this letter agreement: (a) The term “Affiliate” means, with respect to any Person, (i) any member of such Person’s immediate family, (ii) any trust of which such Person and/or a member of such Person’s immediate family is a trustee or material beneficiary and/or (iii) any other Person controlling, controlled by or under common control with such Person. For purposes of this definition, the term “control” (and correlative terms) means the power, whether by Contract, equity ownership or otherwise, to direct the policies or management of a Person. The term “Affiliate” and any definitions that use the term “Affiliate” shall be deemed to include current and future “Affiliates.” (b) The term “Claim” means any past, present or future charge, complaint, dispute, claim, demand, Liability, obligation, promise, agreement, controversy, damages, action or cause of action, suit, right, cost, loss, interest, indemnity, fine, penalty, debt or expense (including attorneys’ fees and costs incurred) of any kind or nature, known or unknown, suspected or unsuspected, existing or prospective, that the Releasing Party has ever had, now has or can, shall or may hereafter have for or by reason of or in any way arising out of any cause, matter or thing related to any Acquired Company, including any claim or right that may be asserted or exercised by the Releasing Party or any Affiliate of the Releasing Party in the Releasing Party’s or such Affiliate’s capacity as a securityholder, managing director, supervisory director, director, officer or employee of any Acquired Company or in any other capacity. (c) The term “Releasees” means (i) Purchaser, (ii) each Acquired Company, (iii) each of the direct and indirect wholly owned or partially owned subsidiaries of Purchaser, (iv) each other Person that is an Affiliate of Purchaser or any Acquired Company and (v) the successors and past, present and future assigns, managing directors, supervisory directors, directors, officers, agents, attorneys and representatives of the Persons identified or otherwise referred to in any of clauses “(i)” through “(iv)” of this Section 2(c). 3. Further Assurances. The Releasing Party (a) represents and warrants that the Releasing Party has taken all actions necessary or appropriate to give full effect to the release given by the Releasing Party (on the Releasing Party’s own behalf and on behalf of the Releasing Party’s Affiliates) in this letter agreement and (b) agrees that the Releasing Party shall execute and deliver (and take reasonable efforts to cause the Releasing Party’s Affiliates to execute and deliver) to Purchaser and the other Releasees such instruments and other documents, and shall take (and take reasonable efforts to cause the Releasing Party’s Affiliates to take) such other actions, as Purchaser may reasonably request for the purpose of carrying out or evidencing the release given by the Releasing Party (on the Releasing Party’s own behalf and on behalf of the Releasing Party’s Affiliates) in this letter agreement. Without limiting the generality of the foregoing, the Releasing Party agrees that the Releasing Party will not assert or attempt to assert, and will take reasonable efforts to ensure that none of the Releasing Party’s Affiliates will assert or attempt to assert, any Claim of the type described in Section 1 of this letter agreement against any Releasee at any time after the execution and delivery of this letter agreement. 4. Unknown Claims. The Releasing Party (on the Releasing Party’s own behalf and on behalf of the Releasing Party’s Affiliates) hereby waives the benefits of, and any rights that the Releasing Party or any of the Releasing Party’s Affiliates may have under, any statute, common law or other Legal Requirement regarding the release of unknown claims in any jurisdiction that arise from any agreement, arrangement, event, matter, cause, thing, act, omission or conduct occurring or existing at any time up to and including the date of this letter agreement. 5. Independent Legal Advice. The Releasing Party hereby declares that he, she or it has had the opportunity to obtain independent legal advice with respect to the matters addressed herein and hereby
4917-6621-0952.v7 voluntarily accepts the terms of this letter agreement for the purpose of making full and final compromise, adjustment and settlement of all claims described herein. 6. Miscellaneous. The Releasing Party represents, warrants and acknowledges that he, she or it has received a copy of the Purchase Agreement. This letter agreement shall be governed by and construed in accordance with the laws of the State of New York irrespective of the choice of laws principles of the State of New York, as to all matters, including matters of validity, construction, effect, enforceability, performance and remedies and in respect of the statute of limitations or any other limitations period applicable to any claim, controversy or dispute. This letter agreement sets forth the entire understanding of the Releasing Party, the Releasing Party’s Affiliates and the Releasees relating to the subject matter hereof and supersedes all prior agreements and understandings among or between any of those parties relating to the subject matter hereof. In the event that any provision of this letter agreement, or the application of any such provision to any Person or set of circumstances, shall be determined to be invalid, unlawful, void or unenforceable to any extent, the remainder of this letter agreement, and the application of such provision to Persons or circumstances other than those as to which it is determined to be invalid, unlawful, void or unenforceable, shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by applicable Legal Requirements. The Releasing Party hereby (on the Releasing Party’s own behalf and on behalf of the Releasing Party’s Affiliates) agrees that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this letter agreement. The delivery of this letter agreement by facsimile or .pdf (including Docusign) shall be sufficient to bind the Releasing Party and the Releasing Party’s Affiliates to the terms and provisions of this letter agreement. This letter agreement is for the benefit of, and may be enforced by, each of the Releasees. As used in this letter agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.” The terms “hereof,” “herein,” “hereunder,” “hereby” and “herewith” and words of similar import will, unless otherwise stated, be construed to refer to this letter agreement as a whole and not to any particular provision of this letter agreement. [Remainder of page intentionally left blank.]
[SIGNATURE PAGE TO RELEASE AGREEMENT] 4917-6621-0952.v7 Very truly yours, Signature Name Address ( ) Telephone ( ) Facsimile
4897-9174-6440.v17 EXHIBIT C FORM OF DEPOSITARY RECEIPT SURRENDER AGREEMENT
4914-4986-8680.v4 4914-4986-8680.v6 Depositary Receipt Notice and Surrender Agreement [●], 2026 Dear Depositary Receipt Holder: As you may know, Arena Aviation Partners B.V., a corporation organized under the laws of the Netherlands with registration number 67644694 (the “Company”), has entered into a Share Purchase Agreement (the “Purchase Agreement”) with [Crestone Entity], a [●] (“Purchaser”), the Sellers (as defined in the Purchase Agreement); and Dirk Jan Smit as the Securityholders’ Agent (as defined in the Purchase Agreement). Pursuant to the Purchase Agreement, Purchaser will acquire from Sellers all of the outstanding shares of the Company (the “Share Purchase”). The closing of the Share Purchase is currently expected to occur during the first quarter of 2026 (the actual date of such closing is referred to as the “Closing Date”). This Depositary Receipt Notice and Surrender Agreement (this “Depositary Receipt Surrender Agreement”) is entered into in connection with the transactions contemplated by the Purchase Agreement. In the event of any inconsistency between the terms of this Depositary Receipt Surrender Agreement and the Purchase Agreement, this Depositary Receipt Surrender Agreement shall prevail as between the parties hereto. Capitalized terms that are used but not otherwise defined in this Depositary Receipt Surrender Agreement have the meanings assigned to such terms in the Purchase Agreement. You were issued [●] “Depositary Receipts” (certificaten van aandelen), each of which corresponds to a Class P share in the capital of the Company (a “Class P Share”) that is held by the Stichting Administratiekantoor Arena Aviation Partners, a foundation (stichting) incorporated under the laws of the Netherlands (the “Foundation”). This Depositary Receipt Surrender Agreement describes how your outstanding Depositary Receipts will be treated in connection with the Share Purchase. By signing this Depositary Receipt Surrender Agreement, you and the Foundation both acknowledge and agree to the treatment of the Depositary Receipts as described below. This Depositary Receipt Surrender Agreement will become effective as of the Closing Date. Outstanding Depositary Receipts: Each Depositary Receipt that is outstanding immediately prior to the Closing (an “Outstanding Depositary Receipt”), will be canceled at the Closing. In exchange for and in full satisfaction of the cancellation of each Outstanding Depositary Receipt, subject to Sections 1.4, 1.6, 10 and 11.1(b) of the Purchase Agreement, you will receive for each Outstanding Depositary Receipt a cash amount (expressed in U.S. dollars) equal to the Residual Per Share Amount and the applicable Per Share At-Risk Collections Payment Amount, if any, as determined pursuant to the Purchase Agreement, less any applicable taxes and withholdings. The calculation of the aforementioned amounts shall be determined on the basis of the Consideration Spreadsheet and shall – save for any manifest error - be binding on the Depositary Receipt Holders. Indemnity Provisions and Withholdings: The Purchase Agreement contains certain negotiated representations, warranties, indemnities and covenants (collectively referred to as the “Indemnity Provisions”). The Indemnity Provisions are provided and/or undertaken by the Sellers and the Depositary Receipt Holders (collectively, the “Seller Indemnitors”) to and in favor of the Purchaser and its current and future Affiliates and representatives (collectively, the “Purchaser Indemnitees”).
2 4914-4986-8680.v4 4914-4986-8680.v6 Furthermore, an amount of $750,000 (the “Escrow Amount”) will be deducted and retained from the consideration payable to each Seller Indemnitor in accordance with Section 1.7 of the Purchase Agreement and be delivered to the Escrow Agent as a contribution to the Indemnity Escrow Fund to partially secure the obligations of the Seller Indemnitors to the Purchaser Indemnitees for Damages pursuant to Section 10 of the Purchase Agreement. At the Closing, the Purchaser will deduct and retain an amount equal to your Pro Rata Share of the Escrow Amount (as determined in accordance with the Purchase Agreement) from the Residual Per Share Amount pursuant to Sections 1.2 and 1.4 of the Purchase Agreement in respect of the Class P Shares underlying your Outstanding Depositary Receipts, and such deduction shall correspondingly reduce the cash amount payable to you under this Depositary Receipt Surrender Agreement. Pursuant to Section 11.1(b), the Seller Indemnitors will also create an expense fund (the “Expense Fund”) to be held by the Securityholders’ Agent for potential use by the Securityholders’ Agent in, among other things, investigating, defending and settling indemnification claims in connection with the Purchase Agreement. An amount equal to your Pro Rata Share of the Expense Fund Amount (as determined in accordance with the Purchase Agreement) will be withheld from the portion of the Residual Per Share Amount pursuant to the Purchase Agreement in respect of the Class P Shares underlying your Outstanding Depositary Receipts. For the avoidance of doubt, any amount required to be deducted or withheld by the Purchaser, any Acquired Company and their respective agents under the Code, or any provision of Dutch or foreign Tax-related Legal Requirements or under any other Legal Requirement in respect of any payment to be made to you under this Depositary Receipt Surrender Agreement will be deducted or withheld from any amount that would otherwise have been payable to you under this Depositary Receipt Surrender Agreement. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Depositary Receipt Surrender Agreement as having been paid to you. Any balance left in the Indemnity Escrow Fund and the Expense Fund shall be released to you in accordance with the Purchase Agreement. Release: At the Closing, you will deliver a general release of claims substantially in the form attached hereto as Exhibit A. Acknowledgments: You hereby acknowledge and agree to be bound by, and to observe and comply with, the provisions of Sections 1, 10 and 11.1 of the Purchase Agreement, to the extent such provisions are relevant to you. Pursuant to Section 11.1(a) of the Purchase Agreement, you also hereby irrevocably nominate, constitute and appoint the Securityholders’ Agent as your agent and true and lawful attorney in fact, with full power of substitution, to act in your name, place and stead for purposes of executing any documents and taking any actions that the Securityholders’ Agent may, in the Securityholders’ Agent’s sole discretion, determine to be necessary, desirable or appropriate in connection with any claim for indemnification, compensation or reimbursement under Section 10 of the Purchase Agreement, including the power to execute, deliver, acknowledge, certify and file on your behalf (in your name or otherwise) any and all documents that the Securityholders’ Agent may, in its sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as the Securityholders’ Agent may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 11.1 of the Purchase Agreement. Notwithstanding anything to the contrary contained in this Depositary Receipt Surrender Agreement, the Purchase Agreement or in any other agreement executed in connection with the transactions contemplated hereby or thereby, each Purchaser Indemnitee shall be entitled to (a) deal exclusively with the Securityholders’ Agent on all matters relating to any claim for indemnification, compensation or reimbursement under Section 10 of the Purchase Agreement and (b) rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on your behalf by the Securityholders’ Agent pursuant to the Purchase Agreement, and on any other action taken or purported to be taken on your behalf by the Securityholders’ Agent pursuant to the Purchase Agreement, as, and each such document or action shall be, fully binding upon you.
3 4914-4986-8680.v4 4914-4986-8680.v6 You also agree to hold the terms of the Purchase Agreement and this Depositary Receipt Surrender Agreement in strict confidence. By executing and delivering this Depositary Receipt Surrender Agreement, you approve and confirm your agreement that the Foundation will sell and transfer the Outstanding Class P Shares to the Purchaser and you further acknowledge, agree, represent and warrant to the Company and the Purchaser that (i) you are the owner, beneficially and of record, of the Depositary Receipts, free and clear of all liens, (ii) you have not sold, transferred, conveyed, pledged or hypothecated any interest in the Depositary Receipts as of the Closing, (iii) you have duly authorized the execution, delivery and performance of this Depositary Receipt Surrender Agreement and (iv) this Depositary Receipt Surrender Agreement constitutes the legal, valid and binding obligation of you, enforceable in accordance with its terms (except that such enforceability may be limited by applicable bankruptcy, insolvency, moratorium or other similar laws affecting the rights of creditors generally and rules of law governing specific performance, injunctive relief and other equitable remedies). If you are married and your Depositary Receipts constitute community property or if spousal or other approval is required for this Depositary Receipt Surrender Agreement to be legal, valid and binding, you acknowledge, agree, represent and warrant that this Depositary Receipt Surrender Agreement has been duly authorized, executed and delivered by, and constitutes a valid and binding agreement of, your spouse, enforceable against your spouse in accordance with its terms (except that such enforceability may be limited by applicable bankruptcy, insolvency, moratorium or other similar laws affecting the rights of creditors generally and rules of law governing specific performance, injunctive relief and other equitable remedies). You shall, upon request, execute and deliver any additional documents necessary or desirable to complete the cancellation of the Depositary Receipts pursuant to this Depositary Receipt Surrender Agreement. This Depositary Receipt Surrender Agreement, and any action, arbitration, suit or other legal proceeding arising out of or relating to this Depositary Receipt Surrender Agreement (including the enforcement of any provision of this Depositary Receipt Surrender Agreement), any of the transactions contemplated by this Depositary Receipt Surrender Agreement or the legal relationship of the parties to this Depositary Receipt Surrender Agreement (whether at law or in equity, whether in contract or in tort or otherwise), shall be governed by and construed and interpreted in accordance with the laws of the State of New York irrespective of the choice of laws principles of the State of New York, as to all matters, including matters of validity, construction, effect, enforceability, performance and remedies and in respect of the statute of limitations or any other limitations period applicable to any claim, controversy or dispute. Any action, suit or other legal proceeding between or involving you and any Acquired Company arising out of or relating to this Depositary Receipt Surrender Agreement (including the enforcement of any provision of this Depositary Receipt Surrender Agreement), any of the transactions contemplated by this Depositary Receipt Surrender Agreement, or the legal relationship of the parties to this Depositary Receipt Surrender Agreement (whether at law or in equity, whether in contract or in tort or otherwise), shall be brought or otherwise commenced exclusively in any state or federal court located in the State of New York. This Depositary Receipt Surrender Agreement sets forth the entire understanding of you and any Acquired Company relating to the subject matter hereof and supersedes all prior agreements and understandings among or between you and any Acquired Company relating to the subject matter hereof. In the event of a direct conflict of terms in this Depositary Receipt Surrender Agreement and the Purchase Agreement, the Purchase Agreement shall prevail. In the event that any provision of this Depositary Receipt Surrender Agreement, or the application of any such provision to any person or entity or set of circumstances, shall be determined to be invalid, unlawful, void or unenforceable to any extent, the remainder of this Depositary Receipt Surrender Agreement, and the application of such provision to persons or entities or circumstances other than those as to which it is determined to be invalid, unlawful, void or unenforceable, shall not be impaired or otherwise affected and shall continue to be valid and enforceable to
4 4914-4986-8680.v4 4914-4986-8680.v6 the fullest extent permitted by applicable Legal Requirements. No failure on the part of any person or entity to exercise any power, right, privilege or remedy under this Depositary Receipt Surrender Agreement, and no delay on the part of any person or entity in exercising any power, right, privilege or remedy under this Depositary Receipt Surrender Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. No person or entity shall be deemed to have waived any claim arising out of this Depositary Receipt Surrender Agreement, or any power, right, privilege or remedy under this Depositary Receipt Surrender Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such person or entity; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given. This Depositary Receipt Surrender Agreement may not be amended, modified, altered or supplemented other than by means of a written instrument duly executed and delivered on behalf of the Company, the Purchaser and the undersigned. The delivery of this Depositary Receipt Surrender Agreement by Docusign or electronic mail in portable document format (including .pdf) shall be sufficient to bind the parties hereto to the terms and provisions of this Depositary Receipt Surrender Agreement. This Depositary Receipt Surrender Agreement is for the benefit of, and may be enforced by, each of the Acquired Companies, the Purchaser and their respective subsidiaries, affiliates, managing directors, supervisory directors, directors, officers, employees, agents, attorneys, representatives, shareholders, related companies, successors and assigns. As used in this Depositary Receipt Surrender Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.” The terms “hereof,” “herein,” “hereunder,” “hereby” and “herewith” and words of similar import will, unless otherwise stated, be construed to refer to this Depositary Receipt Surrender Agreement as a whole and not to any particular provision of this Depositary Receipt Surrender Agreement. Except as otherwise provided herein, this Depositary Receipt Surrender Agreement shall be effective immediately upon the execution and delivery of this Depositary Receipt Surrender Agreement by the parties hereto. You may not revoke your acceptance to this Depositary Receipt Surrender Agreement once you have executed it. This Depositary Receipt Surrender Agreement is conditioned upon the Closing of the Share Purchase as contemplated in the Purchase Agreement, and shall automatically become null and void upon termination of the Purchase Agreement for any reason prior to the Closing Date. Please note that any descriptions contained in this Depositary Receipt Surrender Agreement regarding the payments to be received are provided solely for general information purposes and do not constitute tax advice. Please consult your own tax advisor as to the specific tax implications of your Depositary Receipts to you, including, without limitation, the applicability and effect of Dutch and foreign tax laws. WHAT YOU NEED TO DO We ask that you please complete and sign this Depositary Receipt Surrender Agreement and return it to the Company to acknowledge the treatment of your Depositary Receipts in connection with the Share Purchase and agree to the indemnification and other provisions set forth in the Purchase Agreement as soon as possible, but in no event later than [●], 2026. The signed Depositary Receipt Surrender Agreement should be scanned and e-mailed to [●].
5 4914-4986-8680.v4 4914-4986-8680.v6 We would like to thank you for your efforts and support in helping to build a successful company. If you have any questions regarding this Depositary Receipt Surrender Agreement, please contact [●] at [●] or [●] at [●].
[SIGNATURE PAGE TO DEPOSITARY RECEIPT SURRENDER AGREEMENT] 4914-4986-8680.v4 4914-4986-8680.v6 Sincerely, ARENA AVIATION PARTNERS B.V. By: Name: Title:
[SIGNATURE PAGE TO DEPOSITARY RECEIPT SURRENDER AGREEMENT] 4914-4986-8680.v4 4914-4986-8680.v6 AGREED AND ACCEPTED: STICHTING ADMINISTRATIEKANTOOR ARENA AVIATION PARTNERS By: Name: Title: DEPOSITARY RECEIPT HOLDER Signature Address Print Name Date
2 4914-4986-8680.v6 EXHBIT A Release [Form of Release to be attached]
4897-9174-6440.v17 Schedule 1.5 INFORMATION TO BE SET FORTH IN THE CONSIDERATION SPREADSHEET (a) The following information: (i) the Depositary Receipt Holders; (ii) the Debt Amount (“Closing Debt Amount”); (iii) the Company Transaction Expenses (“Closing Company Transaction Expenses”); (iv) the Leakage (“Closing Leakage”); (v) the Permitted Leakage (“Closing Permitted Leakage”); (vi) the Escrow Amount; (vii) the Expense Fund Amount; (viii) the Fully Diluted Share Number; (ix) the Residual Per Share Amount; (x) the Class A Consideration; (xi) each Seller Indemnitor’s Pro Rata Share (expressed as a percentage); (xii) each Seller Indemnitor’s Pro Rata Share of the Escrow Amount; (xiii) each Seller Indemnitor’s Pro Rata Share of the Expense Fund Amount; and (xiv) Closing Adjusted Transaction Value. (b) the Locked Box Financial Statements; (c) with respect to each Person who is a shareholder of the Company immediately prior to the Closing: (i) the name and address of record of such shareholder, including such shareholders’ email address, if available; (ii) the number of shares of each class and series of Outstanding Company Shares held by such shareholder (on a certificate-by-certificate basis and including certificate numbers), the price at which such shareholder acquired such Company Shares (or the shares that were converted into such Company Shares) and the date of such acquisition; (iii) the consideration that such shareholder is entitled to receive pursuant to Sections 1.2 and 1.3(a) of this Agreement (including the amount to be contributed to the Escrow
4897-9174-6440.v17 Amount pursuant to Section 1.7 and the amount to be contributed to the Expense Fund Amount pursuant to Section 11.1(b)), in each case, on a certificate-by-certificate basis and in the aggregate; (iv) the cash amount to be contributed to the Escrow Amount pursuant to Section 1.7 of this Agreement with respect to the Outstanding Company Shares held by such shareholder, in each case on a certificate-by-certificate basis and in the aggregate; (v) the net cash consideration that such shareholder is entitled to receive pursuant to Sections 1.2 and 1.3(a) of this Agreement (after deduction of any amount to be contributed to the Escrow Amount pursuant to Section 1.7, but prior to deduction of any amount to be contributed to the Expense Fund Amount pursuant to Section 11.1(b)) with respect to the Outstanding Company Shares held by such shareholder; (vi) the cash amount to be contributed to the Expense Fund Amount pursuant to Section 11.1(b) of this Agreement with respect to the Outstanding Company Shares held by such shareholder, in each case on a certificate-by-certificate basis and in the aggregate; (vii) the net consideration that such shareholder is entitled to receive pursuant to Sections 1.2 and 1.3(a) of this Agreement (after deduction of any amount to be contributed to the Escrow Amount pursuant to Section 1.7 and any amount to be contributed to the Expense Fund Amount pursuant to Section 11.1(b)) with respect to the Outstanding Company Shares held by such shareholder, in each case on a certificate-by-certificate basis and in the aggregate; and (viii) whether any Taxes are to be withheld in accordance with Section 1.6 of this Agreement from the consideration that such shareholder is entitled to receive pursuant to Sections 1.2 and 1.3(a) of this Agreement or from the amount to be contributed to the Escrow Amount pursuant to Section 1.7 or the amount to be contributed to the Expense Fund Amount pursuant to Section 11.1(b) with respect thereto; (d) with respect to each Depositary Receipt Holder: (i) the name and address of record of such Depositary Receipt Holder, including such Depositary Receipt Holder’s email address, if available; (ii) the number of Depositary Receipts held by such Depositary Receipt Holder, the price at which such Depositary Receipt Holder acquired such Depositary Receipts and the date of such acquisition; (iii) the consideration that such Depositary Receipt Holder is entitled to receive pursuant to Section 1.4(a) of this Agreement (including the amount to be contributed to the Escrow Amount pursuant to Section 1.7 and the amount to be contributed to the Expense Fund Amount pursuant to Section 11.1(b)); (iv) the cash amount to be contributed to the Escrow Amount pursuant to Section 1.7 of this Agreement with respect to the Depositary Receipts held by such Depositary Receipt Holder; (v) the net cash consideration that such Depositary Receipt Holder is entitled to receive pursuant to Section 1.4(a) of this Agreement (after deduction of any amount to be
4897-9174-6440.v17 contributed to the Escrow Amount pursuant to Section 1.7, but prior to deduction of any amount to be contributed to the Expense Fund Amount pursuant to Section 11.1(b)) with respect to the Depositary Receipts held by such Depositary Receipt Holder; (vi) the cash amount to be contributed to the Expense Fund Amount pursuant to Section 11.1(b) of this Agreement with respect to the Depositary Receipts held by such Depositary Receipt Holder; (vii) the net consideration that such Depositary Receipt Holder is entitled to receive pursuant to Section 1.4(a) of this Agreement (after deduction of any amount to be contributed to the Escrow Amount pursuant to Section 1.7 and any amount to be contributed to the Expense Fund Amount pursuant to Section 11.1(b)) with respect to Depositary Receipts held by such Depositary Receipt Holder; and (viii) whether any Taxes are to be withheld in accordance with Section 1.6 of this Agreement from the consideration that such Depositary Receipt Holder is entitled to receive pursuant to Section 1.4(a) of this Agreement or from the amount to be contributed to the Escrow Amount pursuant to Section 1.7 or the amount to be contributed to the Expense Fund Amount pursuant to Section 11.1(b) with respect thereto; (e) a funds flow spreadsheet, in form and substance satisfactory to Purchaser, showing each payment and distribution to be made on the Closing Date pursuant to this Agreement, including: (i) the aggregate amount to be delivered by Purchaser to the Payment Agent following the Closing for the payments contemplated by Sections 1.2, 1.3(a) and 1.4(a) of this Agreement and for any unpaid Company Transaction Expenses or any other amounts to be paid by the Payment Agent on the Company’s behalf; (ii) the amounts to be distributed by the Payment Agent to: (A) the holders of Outstanding Company Shares (in the aggregate); (B) each Person entitled to receive a payment that constitutes an unpaid Company Transaction Expense; (C) the Escrow Agent pursuant to Section 1.7 of this Agreement; and (D) the Securityholders’ Agent pursuant to Section 11.1(b) of this Agreement; (iii) the aggregate amount to be delivered by Purchaser to each creditor of the Company pursuant to a Payoff Letter; (iv) the aggregate amounts (calculated before any applicable Tax withholding) to be delivered by Purchaser to the Company’s payroll provider(s) with respect to any other payment(s) to be made at the Closing in connection with the Contemplated Transactions that are subject to Tax withholding by any of the Acquired Companies; and
4897-9174-6440.v17 (v) wire transfer instructions for each payment to be made by Purchaser or the Payment Agent reflected therein, including wire transfer instructions with respect to the Company’s payroll account.
4897-9174-6440.v17 Schedule 1.8(b) AGREEMENTS AND DOCUMENTS • complete and up-to-date shareholders’ register of the Company (in a form satisfactory to the Notary); • evidence, in form and substance satisfactory to Purchaser that prior to Closing, all Class A Shares held by the Company as treasury shares have been fully paid up and cancelled pursuant to a valid resolution of the general meeting of the Company, with the approval of the management board of the Company as required under the articles of association of the Company and in accordance with Dutch law; • (a) powers of attorney, in a form proposed by the Notary, duly executed by each Seller and the Company, authorising the Notary to execute the Deed of Transfer on their behalf, and, where required, notarized and apostilled and (b) such confirmation statement(s) as may be required for the execution of the Deed of Transfer by the Notary; • Noncompetition Agreements, duly executed by each Key Employee; • release agreements, substantially in the form of Exhibit B to this Agreement, dated as of the Closing Date and duly executed by (a) each Seller, (b) each Key Employee and (c) each individual who is a managing director, supervisory director, director or officer of any Acquired Company, other than any designee of a corporate service company, including Patricia O’Connor; • agreements, in form and substance reasonably satisfactory to Purchaser, terminating or amending the agreements identified on Part 5.5 of the Disclosure Schedule in accordance with Section 5.5; • the Company Closing Certificate; • the Seller Closing Certificate; • the Consideration Spreadsheet and documentation, reasonably satisfactory to Purchaser, in support of the calculation of the amounts set forth in the Consideration Spreadsheet; • the Payoff Letters; • the written resignations described in Section 5.6 of this Agreement of each individual who is a managing director, supervisory director, director, officer or advisory board member, of each Acquired Company, listed on Part 5.6 of the Disclosure Schedule; • shareholders’ resolution of the Company, (a) accepting the resignations of each managing director and supervisory director of the Company pursuant to Section 5.6 and granting full discharge of their duties and (b) appointing each new managing director and supervisory director and (c) acknowledging the transfer of the Shares to be effected by the execution of the Deed of Transfer. • invoices from Acquired Company’s outside legal counsel and any financial advisor, accountant or other Person who performed services for or on behalf of any Acquired Company, or who is otherwise entitled to any compensation from any Acquired Company, in connection with this Agreement or any of the Contemplated Transactions;
4897-9174-6440.v17 • Depositary Receipt Surrender Agreements, duly executed by the Company, the Foundation and each Depositary Receipt Holder; • Escrow Agreement, duly executed by the Securityholders’ Agent; • Audited Financial Statements; and • Copies of all third-party consents and notices set forth on Part 2.4(b) of the Disclosure Schedule. Certain schedules and similar attachments have been omitted pursuant to Item 601(a)(5) of Regulation S- K. The registrant agrees to furnish supplementally a copy of any omitted schedule or attachment to the SEC upon request. Items omitted and description: Disclosure Schedules to the Share Purchase Agreement, which includes: - List identifying specific servicing agreement list with commercial information - Operational jurisdictions - Directors and officers of acquisition target - Subsidiaries and equity interests - Acquired company share ownership list - Depositary receipt holders and amounts held - Commercial contractual consents - Liabilities and indebtedness descriptions - List of tax return documents - List of leased rental properties - Lst of existing bank accounts - Key employees of acquired company - List of independent contractor contracts - Prior employee termination agreements - List of pension plans - List of company associates - List of proposed servicing contracts - Insurance policies - List of related parties - List of major suppliers and major customers - List of aircraft and managed aircraft leases - Tax matters - List of consents required from agreements
EX-10.1
EX-10.1
Filename: a101limitedliabilitycomp.htm · Sequence: 3
a101limitedliabilitycomp
THE SECURITIES (THE “EQUITY”) REPRESENTED BY THIS LIMITED LIABILITY COMPANY OPERATING AGREEMENT (THIS “AGREEMENT”) HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF THE VARIOUS STATES (“STATE LAW”). THE EQUITY HAS BEEN ISSUED AND SOLD UNDER AN EXEMPTION FROM THE SECURITIES ACT AND STATE LAW AND MAY NOT, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED BY THE HOLDERS OF THE EQUITY AT ANY TIME, AND WHICH MAY BE CONDITIONED UPON AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO UNDER THE SECURITIES ACT OR RECEIPT BY THE COMPANY OF EVIDENCE REASONABLY SATISFACTORY TO THE COMPANY, WHICH MAY BE AN OPINION OF COUNSEL THAT SUCH SECURITIES MAY BE TRANSFERRED WITHOUT REGISTRATION OR QUALIFICATION. TRANSFER OF EQUITY IS PROHIBITED EXCEPT UNDER REGISTRATION IN ACCORDANCE WITH THE SECURITIES ACT AND EACH RELEVANT STATE LAW OR UNDER AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND EACH RELEVANT STATE LAW. LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF CRESTONE AIR PARTNERS, LLC dated as of June 10, 2026 53366517.v19 Certain identified information has been excluded from this exhibit because it is both not material and is the type that the registrant treats as private or confidential, or because disclosure would constitute a clearly unwarranted invasion of personal privacy. Information that was omitted has been noted in this document with a placeholder identified by the mark ‘[***]’.
Table of Contents Page i Article I Formation of the Company ................................................................................................2 1.1 Company Name .......................................................................................................2 1.2 Filing of Certificate and Amendments .....................................................................2 1.3 Term of Company ....................................................................................................2 1.4 Registered Agent and Office ....................................................................................2 1.5 Principal Place of Business ......................................................................................2 1.6 Fiscal Year; Taxable Year .......................................................................................2 1.7 Limited Liability Company......................................................................................3 Article II Purpose and Powers of the Company...............................................................................3 2.1 Purpose .....................................................................................................................3 2.2 Powers of the Company ...........................................................................................3 2.3 Recapitalization, etc. ................................................................................................3 Article III Members .........................................................................................................................3 3.1 Powers and Limitations on the Rights of Members .................................................3 3.2 Voting; Meetings of Members .................................................................................4 3.3 Major Decisions .......................................................................................................5 3.4 Limited Liability of Members ..................................................................................7 3.5 Business Transactions with a Member of the Company ..........................................7 3.6 No Cessation of Membership upon Bankruptcy ......................................................7 3.7 Additional Members ................................................................................................7 3.8 Conflicts of Interest..................................................................................................8 3.9 Representations and Warranties of the Members ....................................................8 Article IV Management .................................................................................................................10 4.1 Management by Board ...........................................................................................10 4.2 Committees of the Board .......................................................................................12 4.3 Meetings of the Board and Committees.................................................................12 4.4 Quorum; Acts of the Board and Committees .........................................................13 4.5 Compensation of Managers and Committee Members ..........................................14 4.6 Officers ..................................................................................................................14 4.7 Incentive Compensation Plans ...............................................................................14 4.8 Employee Compensation Arrangements ................................................................15 Article V Capital Structure ............................................................................................................15 5.1 Units Generally ......................................................................................................15 5.2 Certification of Units .............................................................................................16 5.3 PI Units; Downstairs Interests ...............................................................................17 5.4 Optional Conversion ..............................................................................................18 5.5 Mandatory Conversion...........................................................................................30 Article VI Contributions ................................................................................................................30 6.1 Capital Contribution...............................................................................................30 6.2 Additional Contributions; Preemptive Rights ........................................................31 6.3 Return of and Obligation for Capital Contributions ..............................................33
Table of Contents (continued) Page ii Article VII Capital Accounts; Distributions; Allocations ..............................................................33 7.1 Capital Accounts ....................................................................................................33 7.2 Distributions ...........................................................................................................33 7.3 Allocations .............................................................................................................35 7.4 Withheld Amounts .................................................................................................35 7.5 Consent to Allocations ...........................................................................................36 7.6 Federal Tax Matters ...............................................................................................36 7.7 Special Basis Adjustment ......................................................................................38 7.8 Partition ..................................................................................................................38 Article VIII Company Obligations ................................................................................................38 8.1 Books, Records and Financial Statements .............................................................38 8.2 Termination of Information Rights ........................................................................40 8.3 Continuing Existence .............................................................................................40 8.4 Compliance with Laws ..........................................................................................40 8.5 Insurance ................................................................................................................40 8.6 Confidentiality .......................................................................................................41 Article IX Liability, Exculpation and Indemnification ..................................................................41 9.1 Liability ..................................................................................................................41 9.2 Manager’s Standard of Care; Fiduciary Duties .....................................................41 9.3 Indemnification ......................................................................................................41 9.4 Expenses ................................................................................................................42 9.5 Insurance ................................................................................................................42 9.6 Contract Rights ......................................................................................................42 9.7 Severability ............................................................................................................42 Article X Transfers ........................................................................................................................42 10.1 Restrictions on Transfers of Units .........................................................................42 10.2 Right of First Refusal on Transfers ........................................................................43 10.3 Special Blue Owl Unit Transfer Provisions ...........................................................45 10.4 Approved Company Sale; Conversion to Corporation ..........................................45 10.5 Redemption Rights.................................................................................................48 10.6 Transfers Generally ................................................................................................51 10.7 Assignments ...........................................................................................................52 10.8 Substitute Members ...............................................................................................53 10.9 Release of Liability ................................................................................................53 10.10 Securities Laws Restrictions ..................................................................................53 Article XI Dissolution, Liquidation and Termination....................................................................54 11.1 Dissolving Events ..................................................................................................54 11.2 Dissolution and Winding-Up .................................................................................54 11.3 Allocation of Escrow .............................................................................................55 11.4 Distributions in Cash or in Kind ............................................................................56
Table of Contents (continued) Page iii 11.5 Termination ............................................................................................................56 11.6 Claims of the Members ..........................................................................................56 Article XII Miscellaneous ..............................................................................................................56 12.1 Notices ...................................................................................................................56 12.2 Joint Participation ..................................................................................................57 12.3 Entire Agreement ...................................................................................................57 12.4 Counterparts ...........................................................................................................57 12.5 Governing Law; Attorneys’ Fees ...........................................................................57 12.6 Waivers ..................................................................................................................58 12.7 Severability ............................................................................................................58 12.8 Further Actions ......................................................................................................58 12.9 Defaults; No Circumvention of Agreement ...........................................................58 12.10 Amendments ..........................................................................................................58 12.11 Successors and Assigns ..........................................................................................58 12.12 No Third Party Beneficiaries .................................................................................58 12.13 Injunctive Relief .....................................................................................................58 12.14 Jurisdiction; Consent to Service of Process ...........................................................59 12.15 WAIVER OF JURY TRIAL ..................................................................................59 Article XIII Defined Terms ...........................................................................................................60 13.1 Certain Definitions .................................................................................................60 13.2 Rules of Construction ............................................................................................68 Annexes: A ...............Members B ...............Tax Matters C ...............Illustrative Earn-Out Ratchet Calculation
1 LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF CRESTONE AIR PARTNERS, LLC This Limited Liability Company Operating Agreement (this “Agreement”) of Crestone Air Partners, LLC (the “Company”) is dated as of June 10, 2026 (the “Effective Date”), by and among (i) the Company, (ii) IF GPT Holdco PVT LLC, (iii) BOAC GPT Holdco PVT LLC (together with IF GPT Holdco PVT LLC, “Blue Owl”), (iii) Air T, Inc. (“Air T”), (iv) Air T Acquisition 26.1, LLC (“ATA”), (v) Crestone Group Management, LLC (“CAP MIP”), (vi) Aviation Growth Initiatives, LLC (“AGI”) and (vii) such additional Persons that shall hereafter be admitted as members in accordance with the terms of this Agreement (each of Blue Owl, Air T, ATA, AGI, and such Persons, a “Member” and, collectively, the “Members”). Any capitalized term used in this Agreement without definition will have the meaning set forth in Article XIII. RECITALS: A. The Company was formed as a limited liability company under the Delaware Act by the acceptance of the Certificate in the office of the Secretary of State, State of Delaware, on or about January 20, 2026. B. Pursuant to a Redemption Agreement, dated as of the date hereof, the Onshore Series of Crestone Asset Management, LLC (“CAM”) distributed its right, title and interest in and to certain servicing agreements to Air T, ATA, and AGI (collectively, the “Contributing Members”) in redemption of a portion of common membership interests held by the Contributing Members in the Onshore Series of CAM (the “Redemption”). C. Pursuant to that certain Contribution and Exchange Agreement, dated as of the date hereof, immediately following the Redemption the Contributing Members contributed to the Company (i) their right, title and interest in and to the servicing agreements received in the Redemption and (ii) their remaining common membership interests in CAM, in exchange for the issuance of Class A Common Units of the Company (the “Contribution and Exchange”), and upon such issuance, the Contributing Members became Members of the Company subject to the terms of this Agreement and the Company became a member of CAM. D. As of the Effective Date and immediately following the Contribution and Exchange, Crestone Air Partners, Inc., a Minnesota corporation and wholly-owned subsidiary of Air T (“CAP Inc.”), was merged with and into the Company pursuant to that certain Agreement and Plan of Merger, dated as of the date hereof, with the Company surviving and the outstanding shares of common stock of CAP Inc. converting into one (1) Class A Common Unit of the Company (the “Merger”). E. As of the Effective Date and immediately following the Merger, pursuant to those certain Subscription Agreements, each dated as of the date hereof, Blue Owl, Air T and ATA, each subscribed for and purchased Class B Preferred Units or Class A Common Units of the Company on the terms set forth therein and herein, and upon such purchase, each Blue Owl entity above became a Member of the Company subject to the terms of this Agreement.
2 F. On the Effective Date, the Company will issue PI Units to CAP MIP in accordance with Article V of this Agreement, and upon such issuance, CAP MIP will become a Member of the Company subject to the terms of this Agreement. G. In connection with the foregoing transactions, the parties hereto desire to adopt this Agreement, effective as of the Effective Date, as set forth herein. NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: Article I Formation of the Company 1.1 Company Name. The name of the Company is Crestone Air Partners, LLC. The business of the Company may be conducted under such other names as the Board may from time to time designate. 1.2 Filing of Certificate and Amendments. The Board is hereby authorized to appoint an officer or other representative of the Company to execute, deliver, file and record all such other certificates and documents, including amendments to or restatements of the Certificate, and to do such other acts as may be appropriate to comply with all requirements for the formation, continuation and operation of a limited liability company, the ownership of property and the conduct of business under the laws of the State of Delaware and any other jurisdiction in which the Company may own property or conduct business, including any certificates and documents (and any amendment or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in which the Company may wish to conduct business. 1.3 Term of Company. The term of the Company commenced on the date of the filing of the Certificate with the Secretary of State of the State of Delaware. The Company may be terminated in accordance with the terms and provisions hereof, and will continue unless and until dissolved as provided in Article XI. The existence of the Company as a separate legal entity will continue until the cancellation of the Certificate as provided in the Delaware Act. 1.4 Registered Agent and Office. The Company’s registered agent and office in the State of Delaware are as set forth in the Certificate. The Board may designate another registered agent or registered office from time to time in accordance with the then applicable provisions of the Delaware Act and any other applicable Laws. 1.5 Principal Place of Business. The principal place of business of the Company is located at 4500 Cherry Creek Drive South, Suite 200, Denver, Colorado 80246. The location of the Company’s principal place of business may be changed by the Board from time to time in accordance with the then applicable provisions of the Delaware Act and any other applicable Laws. The Company may have such other offices as the Board may from time to time deem necessary or advisable. 1.6 Fiscal Year; Taxable Year. The fiscal year of the Company for financial accounting and income tax purposes will end on March 31.
3 1.7 Limited Liability Company. The parties to this Agreement agree that the Company is a limited liability company and not a partnership, association or joint venture under the laws of the State of Delaware or any other Laws (other than income tax Laws). Article II Purpose and Powers of the Company 2.1 Purpose. The purposes of the Company will be to (a) engage in the Business, directly or through Subsidiaries or Affiliates, (b) to enter into, make and perform all contracts, agreements and other undertakings as may be necessary, advisable or incidental to carrying out the Business, and (c) to engage in any other lawful act or activity that may be carried on by a limited liability company under the Delaware Act as may be authorized or approved from time to time by the Board. The Company may take such actions through assumed names or other entities in which it has an ownership interest as may be necessary or appropriate in connection therewith. The foregoing enumerated purposes will be in addition to and not in limitation of the general powers of limited liability companies under the Delaware Act. 2.2 Powers of the Company. The Company will have the power and authority to take any and all actions that are necessary, appropriate, advisable, convenient or incidental to or for the furtherance of the purposes set forth in Section 2.1. 2.3 Recapitalization, etc. Except as otherwise provided in this Agreement, the provisions of this Agreement will apply to any and all equity interests of any successor or permitted assign of the Company (whether by merger, consolidation, transfer or sale of assets, conversion or otherwise) which may be issued in respect of, in exchange for or in substitution of, any Units by reason of any reorganization, recapitalization, reclassification, merger, consolidation, partial or complete liquidation, sale of assets, spin off, equity distribution, split, distribution to Holders or combination of the Units or any other change in the Company’s capital structure, in order to preserve fairly and equitably as far as practicable, the original rights and obligations of the parties hereto under this Agreement. The Company will not, directly or indirectly, through reorganization, consolidation, merger, dissolution, sale of assets or any other voluntary action of any CAP Company, avoid or seek to avoid the observance or performance of any of the terms of this Agreement, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holders against impairment. Article III Members 3.1 Powers and Limitations on the Rights of Members. The Members will have the power to exercise any and all rights or powers granted to the Members pursuant to the express terms of this Agreement and the Delaware Act. The approval or consent of the Members will not be required in order to authorize the taking of any action by the Company unless and then only to the extent that (a) this Agreement expressly provides therefor or (b) such approval or consent is required by non-waivable provisions of the Delaware Act. Subject to any mandatory requirements of applicable Law and any provisions of this Agreement, the Members, in their capacity as such, do not have the right to take any part whatsoever in the management and control of the ordinary
4 business of the Company, sign for or bind the Company, or compel a sale or appraisal of Company assets. 3.2 Voting; Meetings of Members. (a) Meetings; Notice of Meetings. Meetings of the Members may be called by the Board or any Member holding outstanding Units, from time to time. Notice of any such meeting will be given to all Members not less than five (5) nor more than sixty (60) days prior to the date of such meeting and will state the location, date and time of the meeting. Meetings will be held at the location within or without the State of Delaware (or by telephone conference, video conference or other means by which all participating Members can hear each other) and at the date and time set forth in the notice of the meeting. If all the participants are participating by telephone conference or other communications equipment, the meeting will be deemed to be held at the principal place of business of the Company. (b) Waiver of Notice. No notice of any meeting of Members needs to be given to any Member who submits a signed waiver of notice for such meeting, whether before or after the meeting. Neither the business to be transacted at, nor the purpose of, any meeting of the Members need be specified in a written waiver of notice. The attendance of any Member at a meeting of Members will constitute a waiver of notice of such meeting, except when the Member attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business on the ground that the meeting is not lawfully called or convened. (c) Quorum. Except as otherwise required by applicable Law or by the Certificate, the presence in person (including by telephone conference, video conference or other means by which all participants can hear each other) or by proxy of the Holders of record of a Majority-in-Interest will constitute a quorum for the transaction of business at such meeting. If a quorum will not be present at any meeting of the Members, the Members present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum will be present. Notice of any action taken by the Members at any meeting shall promptly after such meeting be provided to each Member who did not attend such meeting (or who left such meeting prior to such action being taken). (d) Voting. Subject to paragraph (e) below, no Person will be entitled to vote with respect to any Unit unless such Person is a Member. Except as set forth in Sections 3.3 or as otherwise expressly provided herein, Class A Common Units and the Class B Preferred Units shall vote together as a single class and on an as-converted basis, with each Unit having one (1) vote. Notwithstanding the foregoing, Blue Owl and its Affiliates and Permitted Transferees (excluding, solely for purposes of this Section 3.2(d), clause (v) of the definition of Permitted Transferees) shall not be entitled to exercise for any vote, in the aggregate, more than 4.9% of the total voting power of all outstanding Units (calculated on an as-converted basis), and any votes in excess of such threshold shall not be counted. Except as otherwise required by applicable Law, the Certificate or this Agreement, the vote of a Majority-in-Interest present in person or by proxy at any meeting at which a quorum is present will be sufficient for the approval of the transaction of any business at such meeting and the approval of any matters at such meeting. For the purpose of this Section 3.2(d), the PI Units will be non-voting Units.
5 (e) Proxies. Each Member may authorize any Person to act for such Member by proxy on all matters in which a Member is entitled to participate, including waiving notice of any meeting, or voting or participating at a meeting. Every proxy must be signed by the Member or such Member’s attorney-in-fact. Every proxy will be revocable at the pleasure of the Member executing it unless otherwise provided in such proxy; provided that such right to revocation will not invalidate or otherwise affect actions taken under such proxy prior to such revocation. (f) Organization. Each meeting of Members will be conducted by such Person as the Board may designate or, in the absence of such designation, by such Person as may be designated by a Majority-in-Interest present in person or by proxy at such meeting. (g) Action Without a Meeting. Unless otherwise provided in this Agreement, any action which may be taken at any meeting of the Members may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, will be signed by a Majority-in-Interest entitled to vote on such matter. Prompt notice of the taking of the action without a meeting by less than unanimous written consent will be given by the Company to those Members who have not consented in writing. 3.3 Major Decisions. Notwithstanding anything to the contrary herein, the Company will not take or agree or otherwise commit to take, nor cause or permit any of its Subsidiaries to take or agree or otherwise commit to take, any of the following actions without (i) the approval of the majority of the Board and (ii) the prior written consent of Blue Owl, for so long as Blue Owl continues to hold, together with its Affiliates, any Units: (a) (i) voluntarily liquidate, dissolve, wind up or terminate the affairs of the Company, (ii) institute proceedings to adjudicate the Company as bankrupt, or consent to the filing of a bankruptcy proceeding against the Company, or file a petition or answer or consent seeking reorganization of the Company under the United States Bankruptcy Code or any other similar applicable federal, state or foreign Law, or consent to the filing of any such petition against the Company, or consent to the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the Company, or make an assignment for the benefit of creditors of the Company or admit in writing the inability of the Company to pay its debts generally as they become due or (iii) otherwise approve any Liquidation Event; (b) (i) cause the Company to merge, consolidate, reorganize or enter into any other business combination where, upon consummation of the transaction, Holders prior to the consummation of the transaction will hold less than a majority of the aggregate value or voting power of the Equity Securities of the Company or the successor entity, (ii) Transfer, in one transaction or a combination or series of related transactions, a majority of the voting power or value of the equity interests of the Company, or (iii) Transfer (including by exclusive lease or license), in one transaction or a combination or series of related transactions, a majority or more of the assets of the Company and its Subsidiaries, taken as a whole (any of the foregoing, a “Company Sale”); (c) amend, modify, repeal or waive any provision of the Certificate (including in connection with the conversion of the corporate form of the Company pursuant to Section 10.4(b)) or this Agreement in a manner that would (i) authorize or create (by reclassification or otherwise)
6 any other security convertible into or exercisable for any Equity Security having rights, preferences or privileges with respect to distributions, redemption or liquidation senior to or on parity with the Class B Preferred Units, or (ii) adversely affect the interests of Class B Preferred Holders; (d) increase the number of Class B Preferred Units issuable by the Company or sell or issue any such additional Class B Preferred Units; (e) (i) make any distribution with respect to any Units of the Company other than Tax Distributions or distributions on the Class B Preferred Units in accordance with Section 7.2(a), unless and until all accrued and unpaid distributions on the Class B Preferred Units have been paid in full in cash in accordance with Section 7.2(a), or otherwise make any distributions or other restricted payments that are not in accordance with the distribution preferences set forth in this Agreement, or (ii) redeem, repurchase or otherwise acquire any outstanding Units of the Company or any outstanding options, warrants, securities or other rights to obtain Units of the Company (other than pursuant to Section 10.5 or pursuant to the mandatory terms of any grant or award made under an Incentive Compensation Plan); (f) create or hold capital stock in any Subsidiary that is not a direct or indirect wholly owned Subsidiary or dispose of any Subsidiary stock or all or substantially all of any Subsidiary assets; (g) unless the aggregate Indebtedness of the Company and its Subsidiaries for borrowed money following such action would not exceed $1,000,000 (excluding equipment leases, bank lines of credit or trade payables incurred in the ordinary course of business), create or issue any debt security, create any lien or security interest (except for purchase money liens or statutory liens of landlords, mechanics, materialmen, workmen, warehousemen and other similar persons arising or incurred in the ordinary course of business), or incur other Indebtedness for borrowed money, including but not limited to obligations and contingent obligations under guarantees, or permit any Subsidiary to take any such action with respect to any debt security lien, security interest or other Indebtedness for borrowed money; (h) make, or permit any Subsidiary to make, any loan or advance to, or own any stock or other securities of, any Subsidiary or other corporation, partnership, or other entity unless it is directly or indirectly wholly owned by the Company; (i) make, or permit any Subsidiary to make, any loan or advance to any Person, including any employee or Manager of the Company or any Subsidiary, except advances and similar expenditures made in the ordinary course of business or under the terms of an employee equity or option plan approved by the Board; (j) enter into any corporate strategic relationship involving the payment, contribution, or assignment by the Company or any Subsidiary of money or assets having a value (as determined by the Board in a manner consistent with the agreements governing such relationship) greater than $1,000,000; (k) amend or modify the Incentive Compensation Plan in a manner that would reasonably be expected to be materially adverse to the Blue Owl Investors; or
7 (l) agree or commit to do any item described in clauses (a) through (j) above. Notwithstanding anything to the contrary in this Agreement, the consent and approval rights of Blue Owl set forth in this Section 3.3 (including any veto rights) shall be personal to Blue Owl and shall not be transferable to any other Person (other than to an Affiliate of a Blue Owl Investor in connection with a Transfer of Class B Preferred Units to such Affiliate in accordance with this Agreement). 3.4 Limited Liability of Members. Notwithstanding anything to the contrary in this Agreement, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, will be solely the debts, obligations and liabilities of the Company and no Member will be obligated personally for any such debt, obligation or liability solely by reason of being a Member of the Company. Except as expressly provided herein, no Member, in its capacity as such, shall have liability to the Company or any other Member hereunder. No Member in any event will have any liability whatsoever to the Company in excess of (a) the amount of any unconditional obligation of such Member to make additional Capital Contributions to the Company pursuant to a written agreement, and (b) the amount of any wrongful distribution to such Member, if, and only to the extent, such Member has actual knowledge (at the time of the distribution) that such distribution is made in violation of Section 18-607 of the Delaware Act. 3.5 Business Transactions with a Member of the Company. No transactions or agreements, arrangements, commitments or understandings will be made, undertaken or entered into (or terminated or not renewed or amended, modified or waived) by the Company with any Member or Related Party of a Member unless such relationship is fully disclosed to the Board and approved by the Board as may be required by Section 4.4. 3.6 No Cessation of Membership upon Bankruptcy. A Person will not cease to be a Member upon the happening, with respect to such Person, of any of the events specified in Section 18-304 of the Delaware Act. 3.7 Additional Members. Upon the unanimous consent of all Members and in accordance with the provisions of this Agreement, the Company may admit one or more additional Members (each, an “Additional Member”), to be treated as a “Member”, or one of the “Members” for all purposes hereunder. Prior to the admission of an Additional Member, the Board will determine: (a) the Capital Contribution (if any) of such Additional Member; and (b) the number and class or classes of Units to be granted to such Additional Member, and the price to be paid therefor. A Person will be admitted as an Additional Member at the time such Person (subject to any consent of Members required pursuant to Section 3.3 hereof and the terms of this Section 3.7) (i) executes a joinder agreement to this Agreement (or the Members execute an amendment to this Agreement making such Person a party hereto), (ii) makes a Capital Contribution (if any) to the Company in an amount to be determined by the Board, (iii) complies with any reasonable requirements of the Board with respect to such admission, (iv) is issued Units (if any) by the Company, and (v) is named as a Member in Annex A hereto. The Board is authorized to amend Annex A to reflect any issuance of Units and any such admission and any actions pursuant to this Section 3.7. For the avoidance of doubt, Transfers of Units by a Member to any Person who is not a Member at the time of Transfer shall be subject to Article X hereof and not the provisions of this Section 3.7.
8 3.8 Conflicts of Interest. Notwithstanding any other provision of this Agreement to the contrary, and subject to Section 8.6, the Company and each Member expressly acknowledges that each Class A Common Member and Class B Preferred Member and their respective Affiliates (a)(i) has, is permitted to have or in the future may have, investments or other business relationships with entities engaged in a business identical or similar to that conducted by the Company and its Subsidiaries, (ii) has or may develop a strategic relationship with businesses that are or may be competitive or complementary with the business conducted by the Company and its Subsidiaries and (iii) will not be prohibited by virtue of its capacity as a Member from pursuing or engaging in any such activities; (b) neither the Company, any Member nor any of their respective Affiliates will, solely by virtue of its or their relationship with such Class A Common Member, Class B Preferred Member or any of their respective Affiliates, be entitled to acquire any interest or participation in any such other business, opportunity, relationship or investment referred to in clause (a) above; and (c) the involvement by such Class A Common Member, Class B Preferred Member or any of their respective Affiliates in any such business, opportunity, relationship or investment referred to in clause (a) above will not constitute a conflict of interest by such Person with respect to the Company, its Subsidiaries, any other Member or Holder, or any of their respective Affiliates; provided, however, that a Member shall promptly inform the Company in writing of any conflict of interest that would reasonably be expected to cause the Company to materially breach any existing contract to which the Company is a party, or otherwise materially prevent the Company from engaging in the Business. 3.9 Representations and Warranties of the Members. (a) Upon the execution and delivery of this Agreement (either directly or by joinder hereto) by a Member, such Member hereby, severally but not jointly, represents and warrants to each of the other Members and the Company as follows: (i) With respect to any Class A Common Member or Class B Preferred Member, such Member is an “accredited investor” (within the meaning of Rule 501(a) of the Securities Act) and has the requisite power and authority (whether corporate or otherwise) and legal capacity to execute and deliver this Agreement and to perform his, her or its obligations under this Agreement. If such Member is not an individual, then the execution and delivery of this Agreement and the performance by such Member of its obligations under this Agreement have been duly authorized by all necessary action (corporate or otherwise) on the part of such Member. (ii) This Agreement has been duly executed and delivered by such Member, and constitutes the valid and binding obligations of such Member, enforceable against such Member in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar law of general application affecting creditors and general principles of equity. (iii) Such Member is not subject to, or obligated under, any provision of (A) any agreement, contract, arrangement or understanding, (B) any license, franchise or permit, or (C) any law, regulation, order, judgment or decree, that, in the case of any of clauses (A) through (C) above, would be breached or violated in any material respect, or in respect of which a right of termination or acceleration or any encumbrance or other lien on any of such Member’s assets
9 would be created, by such Member’s execution and delivery of this Agreement or the performance by such Member of its obligations hereunder. (iv) No authorization, consent or approval of, waiver or exemption by, or filing or registration with, any public body, court or other governmental authority or any other third party is necessary on such Member’s part for such Member’s execution and delivery of this Agreement or the performance by such Member of its obligations hereunder that has not previously been obtained by such Member. (b) Upon a Member’s acquisition of any Unit, such Member hereby, severally but not jointly, represents and warrants to each of the other Members and the Company as follows: (i) Such Member is acquiring such Unit for such Member’s own account and not with a view to, or for sale in connection with, any distribution or public sale thereof. (ii) Such Member understands that such Unit has not been registered under the Securities Act or any state securities laws by reason of its issuance in transactions exempt from the registration and prospectus delivery requirements of the Securities Act and applicable state securities laws, and that the reliance of the Company and others upon such exemptions is predicated in part on the representations and warranties of such Member contained herein. (iii) Except with respect to Blue Owl Investors and their Affiliates, no Member nor any of his, her or its Affiliates is, nor will any CAP Company as a result of such Member holding such Unit be, an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended. (iv) Without limiting such Member’s right to rely on any representation or warranty made by the Company to such Member in accordance with the terms of the applicable agreement(s) for the acquisition of any such Unit, such Member is acquiring his, her or its interest in the Company based upon his, her or its own investigation, and the exercise by such Member of his, her or its rights and the performance of his, her or its obligations under this Agreement will be based upon his, her or its own investigation, analysis and expertise. Such Member has such knowledge and experience in financial and business matters such that such Member is capable of evaluating the merits and risks of the investment contemplated by this Agreement and such Member is able to bear the economic risk of his, her or its investment in the Company (including a complete loss of his, her or its investment). During negotiation of the transactions contemplated herein, such Member has been afforded full and free access to books, financial statements, records, contracts, documents and other information concerning the Company and its Subsidiaries, and has been afforded the opportunity to ask questions concerning the business, operations, financial condition, assets and liabilities of the CAP Companies and other relevant matters as such Member has deemed necessary or desirable and has been provided with all such information as has been requested. (v) Such Member recognizes that no public market exists for such Unit, and no representation has been made to such Member that any such public market will exist in the future. (vi) Such Member understands that he, she or it must bear the economic risk of such Member’s investment in the Company indefinitely unless such Unit is registered pursuant to
10 the Securities Act or an exemption from such registration is available, and unless the disposition of such Unit is registered or qualified under applicable state securities laws or an exemption from such registration or qualification is available, and that, except as otherwise agreed by the Company and such Member, the Company has no obligation or intention of so registering or qualifying such Unit. (vii) Such Member understands that there is no assurance that any exemption from the Securities Act will be available, or, if available, that such exemption will allow such Member to dispose of or otherwise Transfer all or any portion of such Unit, in the amounts or at the times such Member might desire. (viii) Such Member understands that the exemption from registration under the Securities Act afforded by Rule 144 depends on the satisfaction of various conditions and that, if applicable, Rule 144 affords the basis for sales only in limited amounts and under limited circumstances. (ix) Except as otherwise agreed by the Company and such Member, such Member acknowledges that the Company is not under any obligation to register such Unit under Section 12 of the Exchange Act, or to make publicly available the information specified in Rule 144 and that it may never be required to do so. Article IV Management 4.1 Management by Board. (a) Except as otherwise specifically set forth in this Agreement, (i) the business and affairs of the Company will be managed by and under the direction of a Board of Managers (the “Board”) and (ii) the Board is hereby authorized to take any action of any kind, and to do anything and everything, in furtherance of the purposes of the Company, in accordance with and subject to the provisions of this Agreement and the Delaware Act. Pursuant to Section 18-402 of the Delaware Act, the Board will be the “manager” of the Company as provided in the Delaware Act and shall have such rights, duties and powers as are specified in this Agreement and the Delaware Act. The Board will have the power and authority to delegate its rights and powers to manage and control the business and affairs of the Company, hereunder or otherwise, subject to any limitations set forth in this Agreement and the Delaware Act. No such delegation will relieve the Board of any of its obligations under this Agreement. (b) The authorized number of the members of the Board shall be fixed by the Board from time to time; provided that any change in the authorized number of the members of the Board shall require the approval of the members of the Board constituting not less than a majority of the number of the members of the Board then in office immediately prior to such change, whether such action is taken at a meeting or by written consent. From and after the Effective Date, the Board shall have six (6) members (each, a “Manager”) as follows: (i) the Person serving as the Chief Executive Officer of the Company (the “CEO”) shall automatically be appointed as a Manager and shall serve as the Chairman of the Board (the “Chairman”); provided that if the CEO of the Company is a Manager pursuant to
11 Section 4.1(b)(ii), then the CEO may appoint the President of the Company to serve as the Chairman so long as a President is then in office; (ii) one (1) Manager will be appointed by Aviation Growth Initiatives, LLC (the “Crestone Manager”) and shall initially be Patrick den Elzen; (iii) three (3) Managers will be appointed by the Class B Preferred Majority (the “Class B Preferred Managers”) and shall initially be Nick Swenson, Mark Jundt, and Dan Philp; provided that none of the Class B Preferred Managers shall be Affiliates of any Blue Owl Investor; and (iv) one (1) Manager will be appointed by mutual agreement of the Class B Preferred Majority and the Class A Common Majority (the “Independent Manager”) and shall initially be Douglas Kaprielian; provided that the Independent Manager shall not be an Affiliate of any Member. The size of the Board may be increased or decreased only with the consent of both the Class A Common Majority and the Class B Preferred Majority. A Manager will hold such role until such Manager’s death, resignation or removal in accordance with the provisions of this Section 4.1. (c) Subject to the provisions of Section 4.4(b)(i): (i) if the CEO of the Company is replaced, such replacement CEO shall automatically replace the former CEO as the Chairman; (ii) Aviation Growth Initiatives, LLC may remove the Crestone Manager at any time for any reason and appoint a replacement Crestone Manager at any time by delivering notice thereof to the Company and to each Manager; provided that (i) the initial Crestone Manager shall serve for an initial term of two (2) years and (ii) thereafter, the Crestone Manager shall be an Original AGI Member, so long as such individual is then (A) a direct or indirect member of Aviation Growth Initiatives, LLC and (B) directly or indirectly employed by CAP LLC; and (iii) the Class B Preferred Majority may remove any Class B Preferred Manager at any time for any reason and appoint a replacement Class B Preferred Manager at any time by delivering notice thereof to the Company and to each Manager. (d) Observer Rights. (i) As long as Blue Owl, together with its Affiliates, continues to hold any Class B Preferred Units or Class A Common Units issued upon conversion thereof (subject to appropriate adjustment in the event of a unit split, in-kind distribution of units, combination, reclassification, or similar event affecting the Class B Preferred Units or Class A Common Units issued upon conversion thereof), Blue Owl shall have the right to appoint one (1) non-voting observer of the Board (the “Board Observer”) who shall initially be Daniel Rosato, and the Company shall invite the Board Observer to attend all meetings of the Board in a non-voting observer capacity and, in this respect, shall give such Board Observer copies of all notices, minutes, consents, periodic financial information and other materials that it provides to its Managers at substantially the same time and in the same manner as such notices, minutes, consents,
12 and other materials are provided to its Managers; provided, however, that such Board Observer shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided further, that the Board reserves the right to withhold any information and to exclude such Board Observer from any meeting or portion thereof if access to such information or attendance at such meeting would reasonably be expected to adversely affect the attorney-client privilege between the Company and its counsel or result in a direct conflict of interest. In the event that Daniel Rosato is unable or unwilling to serve as the Board Observer, Blue Owl shall have the right to designate a successor Board Observer, subject to the reasonable approval of the Board. (e) Notwithstanding anything to the contrary in this Agreement, solely for purposes of this Section 4.1, references to the Class B Preferred Majority shall be deemed to mean the Member or Members, as of any given record date or other applicable time, holding a majority of the outstanding Class B Preferred Units as of such date, excluding the Blue Owl Investors and any of their Affiliates. For the avoidance of doubt, the Blue Owl Investors and any of their Affiliates shall not have the right to appoint, remove or replace, or to participate in any vote with respect to the appointment, removal or replacement of, any Managers. 4.2 Committees of the Board. Subject to the terms of this Agreement, including Section 4.7 below, the Board may from time to time designate one or more committees of the Board by resolution of the Board (any such committees of the Board, a “Committee”). Subject to the terms of this Agreement, any such Committee, to the extent provided in such resolution or in this Agreement, shall have and may exercise all of the authority of the Board; provided that the action of any Committee is subject to override by the vote of the Board (or the applicable members of the Board entitled to vote on the matter at issue, as applicable). Any Committee may be comprised of any of the Managers. Except as otherwise required by the Board, all acts of a Committee shall require the approval of a majority of the Managers serving on such Committee. Vacancies in the membership of any Committee shall be filled by the Board in accordance with the requirements of this Section 4.2. The Board may dissolve any Committee at any time unless otherwise provided in this Agreement. 4.3 Meetings of the Board and Committees. The Board shall hold regular meetings at least once per fiscal quarter, with no less than five (5) days’ prior written notice to each Manager. Special meetings of the Board may be called by any Manager with no less than two (2) days’ prior written notice to each Manager. Special meetings of any Committee may be called by any member of such Committee with no less than two (2) days’ prior written notice to each member of such Committee. Notice of a meeting to any Manager under this Section 4.3 may be provided by personal delivery or electronic mail (with acknowledgement of receipt), facsimile (provided that there is confirmation of receipt by the recipient) or overnight courier service (provided that there is confirmation of receipt by the service) to the contact information on file with the Company. Notice requirements relating to meetings of the Board or any Committee will be deemed waived by any Manager who is present (in person or by telephone conference, video conference or other means by which all participants can hear each other) at the commencement of any such meeting who does not attend such meeting for the sole purpose of objecting to inadequate notice. Meetings may be held in person or by telephone conference, video conference or other means by which all participants can hear each other. If all the participants are participating by telephone conference or
13 other communications equipment, the meeting will be deemed to be held at the principal place of business of the Company. 4.4 Quorum; Acts of the Board and Committees. (a) At all meetings of the Board or a Committee thereof, a majority of the members of the Board or members of a Committee entitled to vote will constitute a quorum for the transaction of business and, except as otherwise provided in any other provision of this Agreement, the act of a majority of the members of the Board or a Committee entitled to vote who are present at any meeting in which there is a quorum will be the act of the Board or such Committee. If a quorum will not be present at any meeting of the Board or any Committee, the members of the Board or such Committee present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum will be present. Notice of any action taken by the Board at any meeting shall promptly after such meeting be provided to each Manager who did not attend such meeting (or who left such meeting prior to such action being taken). Notice of any action taken by any Committee shall be promptly provided to each Manager. Any action required or permitted to be taken at any meeting of the Board or any Committee may be taken without a meeting if all of the members of the Board or such Committee consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or such Committee thereof. Notwithstanding anything to the contrary contained herein, in order for any action to be passed at any meeting of the Board or any Committee, (i) such action must receive the affirmative vote of the members of the Board or such Committee as required by the Delaware Act or by other provisions of this Agreement and (ii) neither the Company nor any of its Subsidiaries shall be authorized to take any action described in Section 3.3 without the affirmative vote of a majority of the Board (in addition to the consent of the Class A Common Majority, the Class B Preferred Majority and Blue Owl, as described therein), subject to any additional requirements in Section 4.4(b). (b) In addition to the foregoing and notwithstanding anything to the contrary contained in this Agreement, neither the Company nor any of its Subsidiaries shall do any of the following without the approval of the majority of the Board: (i) enter into or be a party to any transaction with any Manager, director, officer or employee of the Company or any “associate” (as defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder) of any such person, in each case including any amendment to such transaction, other than transactions (A) that do not involve payments by the Company in excess of $60,000 per year, (B) made in the ordinary course of business pursuant to the reasonable requirements of the business of such CAP Company, which are upon fair, reasonable arm’s-length terms that are approved by a majority of the Managers, (C) standard Manager and officer indemnification agreements approved by the Board, if any, and (D) customary employment, compensation and benefits arrangements with employees of the Company or any of its Subsidiaries that are entered into in the ordinary course of business and approved by the CEO in accordance with Section 4.8; (ii) sell, assign, license, pledge, or encumber material technology or intellectual property, other than non-exclusive arrangements in connection with ordinary course product sales or licenses;
14 (iii) guarantee any Indebtedness, except for trade accounts of the Company or any Subsidiary arising in the ordinary course of business; or (iv) agree or commit to do any of the foregoing. 4.5 Compensation of Managers and Committee Members. No compensation shall be paid to non-employee Managers for service on the Board or any Committee without prior approval of the Class A Common Majority and the Class B Preferred Majority; provided that the Independent Manager may be paid a fee of $70,000 per annum, quarterly in advance. The Company will pay the reasonable and documented out-of-pocket expenses incurred by the Managers in connection with attending the meetings of the Board or any Committee or other events on behalf of, or at the request of, the Company. 4.6 Officers. The Board (a) shall appoint individuals to serve as the Company’s CEO, President, Chief Financial Officer/Treasurer, Chief Legal Officer, Secretary and Assistant Secretary, and (b) the Board or the CEO may, from time to time as they deem advisable, appoint additional officers or assistant officers of the Company (collectively with the officers in part (a), the “Officers”) and assign such Officers titles. Unless the Board or the CEO decides otherwise, if the title is one commonly used for officers of a business corporation formed under the Delaware General Corporation Law, the assignment of such title will constitute the delegation to such person of the authorities and duties that are normally associated with that office. Any two (2) or more offices may be held by the same person. Officers need not own Units and need not be employees of the Company or its Subsidiaries. The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers will bind the Company. Any delegation pursuant to this Section 4.6 may be revoked at any time by the Board or the CEO and any Officer may be removed with or without cause by the Board or by the CEO. The Officers as of the Effective Date are as follows: Office: Name: Chief Executive Officer and President ..... Kevin Milligan Chief Financial Officer and Treasurer ...... Richard Schacht Chief Commercial Officer ........................ Steve Williamson Chief Legal Officer and Secretary ............ Jason Greenberg Assistant Secretary .................................... Allison Hausman 4.7 Incentive Compensation Plans. The Board may prepare and adopt on behalf of the Company and its Subsidiaries one or more equity incentive compensation plan(s) (each, an “Incentive Compensation Plan”) to provide equity and equity-based incentives to employees of the Company and its Subsidiaries. The Incentive Compensation Plans may provide equity or equity-based incentives in whatever form determined reasonably prudent by the Board, including restricted non-voting equity, equity options, phantom equity, equity appreciation or profit
15 participation rights; provided, however, that such Incentive Compensation Plans shall under no circumstances include issuances of Class B Preferred Units. Issuances under the Incentive Compensation Plans will be dilutive on a pro rata basis to all Holders. Without the consent of a Class A Common Majority and a Class B Preferred Majority, neither the Company nor its Subsidiaries shall provide any equity or equity-based incentives (including any Equity Securities, equity options, phantom equity or equity appreciation rights) or profits participation to employees of the CAP Companies other than through the Incentive Compensation Plans or this Agreement (or any grant instrument or award agreement thereunder). The Board shall have the sole and exclusive authority to allocate and grant equity and equity-based awards under the Incentive Compensation Plans to employees and other service providers of the CAP Companies, including the determination of recipients, the size, form, vesting terms and other terms and conditions of such awards. The Board may, by resolution, delegate all or any portion of such authority to a compensation committee of the Board (the “Compensation Committee”), provided that a majority of the members of the Compensation Committee shall at all times consist of designees of Air T, Inc. Any such delegation may be revoked or modified by the Board at any time in its sole discretion. 4.8 Employee Compensation Arrangements. Subject to Section 4.7, the CEO shall have the authority to approve, on behalf of the Company and its Subsidiaries, customary employment, compensation and benefits arrangements with employees of the Company or any of its Subsidiaries (including management of CAP LLC other than the CEO) that are entered into in the ordinary course of business. For the avoidance of doubt, any employment, compensation or benefits arrangements with the CEO shall require the approval of the Board. Article V Capital Structure 5.1 Units Generally. The capital structure of the Company will be divided into Units, which will constitute limited liability company interests under the Delaware Act and will be divided into three classes: Class A Common Units, Class B Preferred Units and PI Units. The relative rights, powers, preferences, duties, liabilities and obligations of the Holders of Class A Common Units, Class B Preferred Units and PI Units will be as set forth herein. The number and class of Units issued to each Member and other Holder are listed on Annex A, as the same may be amended from time to time in accordance with the terms of this Agreement. All Members holding Class A Common Units shall have the right to vote and all Class A Common Holders will be entitled to receive distributions from the Company in respect of such Class A Common Units in accordance with the terms of this Agreement. All Members holding Class B Preferred Units shall have the right to vote together with the Holders of Class A Common Units on an as-converted basis, subject to the limitations set forth in this Agreement, and all Class B Preferred Holders will be entitled to receive distributions from the Company in respect of such Class B Preferred Units in accordance with the terms of this Agreement. All Members holding PI Units shall have the right to vote and shall be entitled to receive distributions from the Company in respect of such PI Units in accordance with the terms of this Agreement.
16 5.2 Certification of Units. (a) All Units issued hereunder from time to time may be certified by a “Certificate of Membership Interest” (or similar instrument) issued by the Company (including via Carta or another similar cap table management service) and delivered to the respective Members. Each certificate will bear the following legend: “THE SECURITIES OF CRESTONE AIR PARTNERS, LLC (TOGETHER WITH ITS SUCCESSORS, THE “COMPANY”) THAT ARE REPRESENTED BY THIS CERTIFICATE (AND ANY SECURITIES ISSUED OR ISSUABLE IN RESPECT HEREOF) HAVE BEEN ACQUIRED FOR INVESTMENT ONLY, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS AND ARE SUBJECT TO RESTRICTIONS ON TRANSFER AND CERTAIN OTHER CONDITIONS, AS SPECIFIED IN THE COMPANY’S LIMITED LIABILITY COMPANY OPERATING AGREEMENT AS IN EFFECT FROM TIME TO TIME (THE “LLC AGREEMENT”). A COPY OF THE LLC AGREEMENT MAY BE REQUESTED BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE COMPANY AT THE PRINCIPAL EXECUTIVE OFFICE OF THE COMPANY. NO TRANSFER, SALE, ASSIGNMENT, OR OTHER SIMILAR DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE (OR ANY SECURITIES ISSUED OR ISSUABLE IN RESPECT HEREOF) MAY BE MADE EXCEPT PURSUANT TO THE PROVISIONS OF THE LLC AGREEMENT AND EITHER (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER AND ALL APPLICABLE STATE SECURITIES OR “BLUE SKY” LAWS (SUCH FEDERAL AND STATE LAWS, THE “SECURITIES LAWS”) OR (B) PURSUANT TO AN EFFECTIVE REGISTRATION UNDER THE ACT OR IN A TRANSACTION WHICH, IN THE OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY, QUALIFIES AS AN EXEMPT TRANSACTION UNDER THE ACT AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER.” All Members will be bound by the requirements of such legends to the extent that such legends are applicable. Upon a registration of any Units, the certificate representing such Units will be replaced, at the expense of the Company, with certificates bearing only the legend referring to this Agreement to the extent still applicable. (b) In the event any Member shall have lost its original certificate(s), such Member shall deliver to the Board a lost certificate affidavit affirming (i) that such Member has lost the original certificate(s), (ii) that such certificate(s) are free and clear of any Liens, (iii) that such Member will immediately deliver such original certificate(s) to the Board in the event the certificate(s) are found and (iv) that such Member indemnifies and holds each of the Board and the Company harmless from any claims, causes of action, costs, expenses, etc., incurred by the Board and the Company as a result of the lost certificate(s). (c) The Units will not be securities governed by Article 8 of the Uniform Commercial Code of the State of Delaware (or the Uniform Commercial Code of any other applicable jurisdiction).
17 5.3 PI Units; Downstairs Interests. (a) The Company shall issue the Downstairs Interests (constituting all of the PI Units) to CAP MIP on the Effective Date. Upstairs Interests may be issued from time to time thereafter in accordance with the CAP MIP LLC Agreement; provided, however, that the number of Downstairs Interests outstanding shall not be increased or decreased by reason of any grants, forfeitures, terminations or cancellations of Upstairs Interests. The Downstairs Interests shall remain outstanding and shall not be forfeited or cancelled by the Company by reason of any forfeiture, reallocation, or other disposition of Upstairs Interests at the CAP MIP level. For the avoidance of doubt, the Company shall not issue Class B Preferred Units to CAP MIP at any time. (b) In accordance with Rev. Proc. 2001-43, the Company shall treat CAP MIP as the owner of the Downstairs Interests for federal income tax purposes from the date the Downstairs Interests are, and shall file its IRS Form 1065 and issue appropriate Schedule K-1s to CAP MIP, allocating to CAP MIP its distributive share of all items of income, gain, loss, deduction and credit associated with such Downstairs Interests as if fully vested. The initial Capital Account balance of a PI Unit Holder (including for the avoidance of doubt CAP MIP) with respect to such PI Units shall be zero ($0) at the time of grant and shall not be affected by any revaluation of Capital Accounts that may have occurred prior to the date of grant. The Company and each Member agree not to claim a deduction (as wages, compensation or otherwise) for the fair market value of any PI Unit issued to a PI Unit Holder, either at the time of grant or at the time the PI Unit becomes substantially vested. To the extent provided by applicable Treasury Regulations or IRS guidance, the Members authorize and direct the Company to make the safe harbor election described in the proposed Revenue Procedure set forth in IRS Notice 2005-43, and agree to comply with the requirements of such safe harbor while it remains in effect. If such proposed revenue procedure (or a substantial equivalent) is promulgated in final, effective form, the Board will (without the need for further action by the Members) have all authority necessary under this Agreement to give effect to such safe harbor (including the authority to make any applicable tax election on behalf of the Company and the Members). (c) The Downstairs Interests shall be subject to a distribution hurdle (the “Distribution Hurdle”). The Distribution Hurdle for the Downstairs Interests shall initially equal the aggregate amount that would be distributed with respect to all outstanding Units (other than the Downstairs Interests) if the Company were to liquidate all of its assets at fair market value and distribute the proceeds in accordance with Section 11.2. The Distribution Hurdle shall be subject to appropriate adjustment, as determined by the Board in good faith, in connection with (i) any equity issuances by the Company, (ii) distributions to Members, (iii) any recapitalization, reorganization, or similar transaction, or (iv) any other capital events, in each case as necessary to preserve the intended economic arrangement with respect to the Downstairs Interests. The Board shall have the authority to make all determinations necessary or appropriate to ensure that the Downstairs Interests qualify as PI Units, including determinations as to the fair market value of the Company’s assets and liabilities as of the issuance date. Notwithstanding the foregoing, the Distribution Hurdle shall not be adjusted in any manner that would have a material adverse effect on CAP MIP without the prior written consent of CAP MIP. The initial Distribution Hurdle is set forth on Schedule B attached hereto. For the avoidance of doubt, the Upstairs Interests may be subject to separate distribution hurdles as set forth in the CAP MIP LLC Agreement and any applicable profits interest award agreements, grant agreement, or other written documentation evidencing such issuance to CAP
18 MIP members, which distribution hurdles may differ from the Distribution Hurdle applicable to the Downstairs Interests and may vary among Holders of Upstairs Interests based on the date of grant or other factors. (d) Any distributions made hereunder to CAP MIP with respect to the Downstairs Interests (including Tax Distributions) shall be distributed by CAP MIP to the members of CAP MIP in accordance with the CAP MIP LLC Agreement. The internal allocation of distributions among members of CAP MIP (including any reallocation in connection with the forfeiture or vesting of Upstairs Interests) shall be governed solely by the CAP MIP LLC Agreement and shall not affect the Company’s obligations to make distributions to CAP MIP in respect of the Downstairs Interests. 5.4 Optional Conversion. The Holders of the Class B Preferred Units shall have conversion rights as follows: (a) Right to Convert. Each Class B Preferred Unit shall be convertible, at the option of the Holder thereof, at any time and from time to time beginning on and after the third (3rd) anniversary of the Effective Date, and without the payment of additional consideration by the Holder thereof, into such number of fully paid and nonassessable Class A Common Units as is determined by dividing the Conversion Balance (as defined below) of such Class B Preferred Unit by the applicable Class B Preferred Unit Conversion Price (as defined below) in effect at the time of conversion. For the avoidance of doubt, no Holder of Class B Preferred Units may elect to convert its Class B Preferred Units into Class A Common Units prior to the third (3rd) anniversary of the Effective Date. The “Conversion Balance” of each Class B Preferred Unit shall mean an amount equal to the sum of (x) the Class B Preferred Unit Original Issue Price plus (y) any accrued and unpaid distributions on such Class B Preferred Unit as of the Conversion Time; provided, however, that, upon receiving written notice from a Holder exercising the option to convert Class B Preferred Units, the Company may, at its election and within ten (10) Business Days of such receipt of written notice from the converting Holder, pay to the converting Holder the amount of any such accrued and unpaid distributions in cash in lieu of converting such amount into Class A Common Units, in which case the Conversion Balance for purposes of determining the number of Class A Common Units issuable upon conversion shall be equal to the Class B Preferred Unit Original Issue Price only. The applicable “Class B Preferred Unit Conversion Price” shall initially be equal to the Class B Preferred Unit Original Issue Price. (b) Mechanics of Conversion. (i) Notice of Conversion. In order for a Holder of Class B Preferred Units to voluntarily convert Class B Preferred Units into Class A Common Units, such Holder shall provide written notice to the Company that such Holder elects to convert all or any number of the Units of the Class B Preferred Units and, if applicable, any event on which such conversion is contingent. Such notice shall state such Holder’s name or the names of the Member(s) in which such Holder wishes the Class B Preferred Units to be issued. The close of business on the date of receipt by the Company of such notice shall be the time of conversion (the “Conversion Time”), and the Class B Preferred Units issuable upon conversion of the specified Units shall be deemed to be outstanding of record as of such date.
19 (ii) Reservation of Units. To the extent that the number of authorized Class A Common Units is ever limited, the Company shall at all times when the Class B Preferred Units shall be outstanding, reserve and keep available out of its authorized but unissued Units, for the purpose of effecting the conversion of the Class B Preferred Units, such number of its duly authorized Class A Common Units as shall from time to time be sufficient to effect the conversion of all outstanding Class B Preferred Units; and if at any time the number of authorized but unissued Class A Common Units shall not be sufficient to effect the conversion of all then outstanding Class B Preferred Units, the Company shall take such corporate action as may be necessary to increase its authorized but unissued Class A Common Units to such number of Class A Common Units as shall be sufficient for such purposes, including engaging in best efforts to obtain the requisite Holder approval of any necessary amendment to this Agreement. (iii) Effect of Conversion. All Class B Preferred Units surrendered for conversion as herein provided shall no longer be deemed to be outstanding and all rights with respect to such Class B Preferred Units shall immediately cease and terminate at the Conversion Time. Any Class B Preferred Units so converted shall be retired and cancelled and may not be reissued as Units of such series, and the Company may thereafter take such appropriate action (without the need for Holder action) as may be necessary to reduce the authorized number of Class B Preferred Units accordingly. (iv) Taxes. The Company shall pay any and all transfer taxes that may be payable in respect of any issuance or delivery of Class A Common Units upon conversion of Class B Preferred Units pursuant to this Section 5.4(a). The Company shall not, however, be required to pay any other tax or any transfer tax which may be payable in respect of any transfer involved in the issuance and delivery of Class A Common Units in a name other than that in which the Class B Preferred Units so converted were registered, and no such issuance or delivery shall be made unless and until the person or entity requesting such issuance has paid to the Company the amount of any such tax or has established, to the satisfaction of the Company, that such tax has been paid. (c) Adjustments to Class B Preferred Unit Conversion Price for Diluting Issues. (i) Special Definitions. For purposes of this Section 5.4(a), the following definitions shall apply. (A) “Option” shall mean rights, options or warrants to subscribe for, purchase or otherwise acquire Class A Common Units or Convertible Securities. (B) “Class B Preferred Unit Original Issue Date” shall mean the date on which the first Class B Preferred Unit was issued. (C) “Convertible Securities” shall mean any evidences of Indebtedness, Units or other securities directly or indirectly convertible into or exchangeable for Class A Common Units, but excluding Options. (D) “Additional Class A Common Units” shall mean all Class A Common Units issued (or, pursuant to Section 5.4(e) below, deemed to be issued) by the Company after the Class B Preferred Unit Original Issue Date, other than
20 (1) the following Class A Common Units and (2) Class A Common Units deemed issued pursuant to the following Options and Convertible Securities (clauses (1) and (2), collectively, “Exempted Securities”): (1) Class A Common Units, Options or Convertible Securities issued as a distribution on or conversion of the Class B Preferred Units; (2) Class A Common Units, Options or Convertible Securities issued by reason of a distribution, equity split, split-up or other distribution on Class A Common Units pursuant to Section 5.4(i), 5.4(j), 5.4(k) or 5.4(l); (3) Class A Common Units, Options or Convertible Securities issued to employees or directors of, or consultants or advisors to, the Company or any of its Subsidiaries pursuant to a plan, agreement or arrangement approved by the Board; (4) Class A Common Units or Convertible Securities actually issued upon the exercise of Options or Class A Common Units actually issued upon the conversion or exchange of Convertible Securities outstanding as of or issuable as of the Class B Preferred Unit Original Issue Date, in each case provided such issuance is pursuant to the terms of such Option or Convertible Security; (5) Class A Common Units issuable upon adjustment of the Class B Preferred Unit Conversion Price pursuant to Section 5.4(f) of this Agreement; (6) Class A Common Units, Options or Convertible Securities issued to banks, equipment lessors or other financial institutions, pursuant to a debt financing or commercial transaction approved by the Board; (7) Class A Common Units, Options or Convertible Securities issued to suppliers or third-party service providers in connection with the provision of goods or services pursuant to transactions approved by the Board; (8) Class A Common Units, Options or Convertible Securities issued pursuant to the acquisition of another corporation, limited liability company or other entity by the Company by merger, purchase of substantially all of the assets or other reorganization or to a joint venture agreement, in each case, approved by the Board; or (9) Class A Common Units, Options or Convertible Securities that are otherwise excluded by unanimous consent of the Class B Preferred Majority. (d) No Adjustment of Class B Preferred Unit Conversion Price. No adjustment in the applicable Class B Preferred Unit Conversion Price shall be made as the result of the issuance or deemed issuance of Additional Class A Common Units if the Company receives written notice from the Holders of a majority of the then-outstanding Class B Preferred Units, voting together as a separate class, agreeing that no such adjustment shall be made as the result of the issuance or deemed issuance of such Additional Class A Common Units; provided that any such vote by the Holders of the Class B Preferred Units must include the affirmative consent of Blue Owl.
21 (e) Deemed Issue of Additional Class A Common Units. (i) If the Company at any time or from time to time after the Class B Preferred Unit Original Issue Date shall issue any Options or Convertible Securities (excluding Options or Convertible Securities which are themselves Exempted Securities) or shall fix a record date for the determination of Holders of any class of securities entitled to receive any such Options or Convertible Securities, then the maximum number of Class A Common Units (as set forth in the instrument relating thereto, assuming the satisfaction of any conditions to exercisability, convertibility or exchangeability but without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed to be Additional Class A Common Units issued as of the time of such issue or, in case such a record date shall have been fixed, as of the close of business on such record date. (ii) If the terms of any Option or Convertible Security, the issuance of which resulted in an adjustment to the Class B Preferred Unit Conversion Price pursuant to the terms of Section 5.4(f), are revised as a result of an amendment to such terms or any other adjustment pursuant to the provisions of such Option or Convertible Security (but excluding automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible Security) to provide for either (A) any increase or decrease in the number of Class A Common Units issuable upon the exercise, conversion or exchange of any such Option or Convertible Security or (B) any increase or decrease in the consideration payable to the Company upon such exercise, conversion or exchange, then, effective upon such increase or decrease becoming effective, the Class B Preferred Unit Conversion Price computed upon the original issue of such Option or Convertible Security (or upon the occurrence of a record date with respect thereto) shall be readjusted to such Class B Preferred Unit Conversion Price as would have obtained had such revised terms been in effect upon the original date of issuance of such Option or Convertible Security. Notwithstanding the foregoing, no readjustment pursuant to this clause (ii) shall have the effect of increasing the Class B Preferred Unit Conversion Price to an amount which exceeds the lower of (1) the Class B Preferred Unit Conversion Price in effect immediately prior to the original adjustment made as a result of the issuance of such Option or Convertible Security, or (2) the Class B Preferred Unit Conversion Price that would have resulted from any issuances of Additional Class A Common Units (other than deemed issuances of Additional Class A Common Units as a result of the issuance of such Option or Convertible Security) between the original adjustment date and such readjustment date. (iii) If the terms of any Option or Convertible Security (excluding Options or Convertible Securities which are themselves Exempted Securities), the issuance of which did not result in an adjustment to the Class B Preferred Unit Conversion Price pursuant to the terms of Section 5.4(f) (either because the consideration per Unit (determined pursuant to Section 5.4(g)) of the Additional Class A Common Units subject thereto was equal to or greater than the Class B Preferred Unit Conversion Price then in effect, or because such Option or Convertible Security was issued before the Class B Preferred Unit Original Issue Date), are revised after the Class B Preferred Unit Original Issue Date as a result of an amendment to such terms or any other adjustment pursuant to the provisions of such Option or Convertible Security (but excluding automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such Option
22 or Convertible Security) to provide for either (A) any increase in the number of Class A Common Units issuable upon the exercise, conversion or exchange of any such Option or Convertible Security or (B) any decrease in the consideration payable to the Company upon such exercise, conversion or exchange, then such Option or Convertible Security, as so amended or adjusted, and the Additional Class A Common Units subject thereto (determined in the manner provided in Section 5.4(e)(i)) shall be deemed to have been issued effective upon such increase or decrease becoming effective. (iv) Upon the expiration or termination of any unexercised Option or unconverted or unexchanged Convertible Security (or portion thereof) which resulted (either upon its original issuance or upon a revision of its terms) in an adjustment to the Class B Preferred Unit Conversion Price pursuant to the terms of Section 5.4(f), the Class B Preferred Unit Conversion Price shall be readjusted to such Class B Preferred Unit Conversion Price as would have obtained had such Option or Convertible Security (or portion thereof) never been issued. (v) If the number of Class A Common Units issuable upon the exercise, conversion or exchange of any Option or Convertible Security, or the consideration payable to the Company upon such exercise, conversion or exchange, is calculable at the time such Option or Convertible Security is issued or amended but is subject to adjustment based upon subsequent events, any adjustment to the Class B Preferred Unit Conversion Price provided for in this Section 5.4(e) shall be effected at the time of such issuance or amendment based on such number of Units or amount of consideration without regard to any provisions for subsequent adjustments (and any subsequent adjustments shall be treated as provided in clauses (ii) and (iii) of this Section 5.4(e)). If the number of Class A Common Units issuable upon the exercise, conversion or exchange of any Option or Convertible Security, or the consideration payable to the Company upon such exercise, conversion or exchange, cannot be calculated at all at the time such Option or Convertible Security is issued or amended, any adjustment to the Class B Preferred Unit Conversion Price that would result under the terms of this Section 5.4(e) at the time of such issuance or amendment shall instead be effected at the time such number of Units or amount of consideration is first calculable (even if subject to subsequent adjustments), assuming for purposes of calculating such adjustment to the Class B Preferred Unit Conversion Price that such issuance or amendment took place at the time such calculation can first be made. (f) Adjustment of Conversion Price Upon Issuance of Additional Class A Common Units. In the event the Company shall at any time after the Class B Preferred Unit Original Issue Date issue Additional Class A Common Units (including Additional Class A Common Units deemed to be issued pursuant to Section 5.4(e)), without consideration or for a consideration per Unit less than any Class B Preferred Unit Conversion Price in effect immediately prior to such issue, then such Class B Preferred Unit Conversion Price shall be reduced, concurrently with such issue, to a price (calculated to the nearest one-hundredth of a cent) determined in accordance with the following formula: CP2 = CP1 * (A + B) ÷ (A + C). For purposes of the foregoing formula, the following definitions shall apply:
23 (i) “CP2” shall mean the applicable Class B Preferred Unit Conversion Price in effect immediately after such issue of Additional Class A Common Units; (ii) “CP1” shall mean the applicable Class B Preferred Unit Conversion Price in effect immediately prior to such issue of Additional Class A Common Units; (iii) “A” shall mean the number of Class A Common Units outstanding immediately prior to such issue of Additional Class A Common Units (treating for this purpose as outstanding all Class A Common Units issuable upon exercise of Options outstanding immediately prior to such issue or upon conversion or exchange of Convertible Securities (including the Class B Preferred Units) outstanding (assuming exercise of any outstanding Options therefor) immediately prior to such issue); (iv) “B” shall mean the number of Class A Common Units that would have been issued if such Additional Class A Common Units had been issued at a price per unit equal to CP1 (determined by dividing the aggregate consideration received by the Company in respect of such issue by CP1); and (v) “C” shall mean the number of such Additional Class A Common Units issued in such transaction. (g) Determination of Consideration. For purposes of this Section 5.4(g), the consideration received by the Company for the issue of any Additional Class A Common Units shall be computed as follows: (i) Cash and Property: Such consideration shall: (A) insofar as it consists of cash, be computed at the aggregate amount of cash received by the Company, excluding amounts paid or payable for accrued interest; (B) insofar as it consists of property other than cash, be computed at the fair market value thereof at the time of such issue, as determined in good faith by the Board; and (C) in the event Additional Class A Common Units are issued together with other Units or securities or other assets of the Company for consideration which covers both, be the proportion of such consideration so received, computed as provided in clauses (A) and (B) above, as determined in good faith by the Board. (ii) Options and Convertible Securities. The consideration per Unit received by the Company for Additional Class A Common Units deemed to have been issued pursuant to Section 5.4(e), relating to Options and Convertible Securities, shall be determined by dividing: (A) the total amount, if any, received or receivable by the Company as consideration for the issue of such Options or Convertible Securities, plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any provision contained therein for
24 a subsequent adjustment of such consideration) payable to the Company upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities, by (B) the maximum number of Class A Common Units (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities. (h) Multiple Closing Dates. In the event the Company shall issue on more than one date Additional Class A Common Units that are a part of one transaction or a series of related transactions and that would result in an adjustment to a Class B Preferred Unit Conversion Price pursuant to the terms of Section 5.4(f), then, upon the final such issuance, such Class B Preferred Unit Conversion Price shall be readjusted to give effect to all such issuances as if they occurred on the date of the first such issuance (and without giving effect to any additional adjustments as a result of any such subsequent issuances within such period). (i) Adjustment for Splits and Combinations. If the Company shall at any time or from time to time after the Class B Preferred Unit Original Issue Date effect a subdivision of the outstanding Class A Common Units, each Class B Preferred Unit Conversion Price in effect immediately before that subdivision shall be proportionately decreased so that the number of Class A Common Units issuable on conversion of each Unit of such series shall be increased in proportion to such increase in the aggregate number of Class A Common Units outstanding. If the Company shall at any time or from time to time after the Class B Preferred Unit Original Issue Date combine the outstanding Class A Common Units, each Class B Preferred Unit Conversion Price in effect immediately before the combination shall be proportionately increased so that the number of Class A Common Units issuable on conversion of each Unit of such series shall be decreased in proportion to such decrease in the aggregate number of Class A Common Units outstanding. Any adjustment under this subsection shall become effective at the close of business on the date the subdivision or combination becomes effective. (j) Adjustment for Certain Distributions. In the event the Company at any time or from time to time after the Class B Preferred Unit Original Issue Date shall make or issue, or fix a record date for the determination of Holders of Class A Common Units entitled to receive, a distribution payable on Class A Common Units in additional Class A Common Units, then and in each such event each Class B Preferred Unit Conversion Price in effect immediately before such event shall be decreased as of the time of such issuance or, in the event such a record date shall have been fixed, as of the close of business on such record date, by multiplying each Class B Preferred Unit Conversion Price then in effect by a fraction; (i) the numerator of which shall be the total number of Class A Common Units issued and outstanding immediately prior to the time of such issuance or the close of business on such record date; and
25 (ii) the denominator of which shall be the total number of Class A Common Units issued and outstanding immediately prior to the time of such issuance or the close of business on such record date plus the number of Class A Common Units issuable in payment of such distribution. Notwithstanding the foregoing, (A) if such record date shall have been fixed and such distribution is not fully paid or if such distribution is not fully made on the date fixed therefor, each Class B Preferred Unit Conversion Price shall be recomputed accordingly as of the close of business on such record date and thereafter each Class B Preferred Unit Conversion Price shall be adjusted pursuant to this subsection as of the time of actual payment of such distributions; and (B) that no such adjustment shall be made if the Holders of Class B Preferred Units simultaneously receive a distribution of Class A Common Units in a number equal to the number of Class A Common Units as they would have received if all outstanding Class B Preferred Units had been converted into Class A Common Units on the date of such event. (k) Adjustments for Other Distributions. In the event the Company at any time or from time to time after the Class B Preferred Unit Original Issue Date shall make or issue, or fix a record date for the determination of Holders of Class A Common Units entitled to receive, a distribution payable in securities of the Company (other than a distribution of Class A Common Units in respect of outstanding Class A Common Units) or in other property, then and in each such event the Holders of Class B Preferred Units shall receive, simultaneously with the distribution to the Holders of Class A Common Units, a distribution of such securities or other property in an amount equal to the amount of such securities or other property as they would have received if all outstanding Class B Preferred Units had been converted into Class A Common Units on the date of such event. (l) Adjustment for Merger or Reorganization, etc. If there shall occur any reorganization, recapitalization, reclassification, consolidation or merger involving the Company in which the Class A Common Units (but not the Class B Preferred Units) are converted into or exchanged for securities, cash or other property (other than a transaction covered by Section 5.4(i), 5.4(j) or 5.4(k)), then, following any such reorganization, recapitalization, reclassification, consolidation or merger, each Class B Preferred Unit shall thereafter be convertible in lieu of the Class A Common Units into which it was convertible prior to such event into the kind and amount of securities, cash or other property which a Holder of the number of Class A Common Units of the Company issuable upon conversion of one Class B Preferred Unit immediately prior to such reorganization, recapitalization, reclassification, consolidation or merger would have been entitled to receive pursuant to such transaction; and, in such case, appropriate adjustment (as determined in good faith by the Board) shall be made in the application of the provisions in this Section 5.4 with respect to the rights and interests thereafter of the Holders of the Class B Preferred Units, to the end that the provisions set forth in this Section 5.4 (including provisions with respect to changes in and other adjustments of each Class B Preferred Unit Conversion Price) shall thereafter be applicable, as nearly as reasonably may be, in relation to any securities or other property thereafter deliverable upon the conversion of the Class B Preferred Units.
26 (m) Earn-Out Adjustment to Class B Preferred Unit Conversion Price. (i) For purposes of this Section 5.4(m), the following definitions shall apply: (A) “Cumulative Consolidated EBITDA” shall mean the cumulative consolidated earnings before interest, taxes, depreciation and amortization generated by the Company and its Subsidiaries during the Earn-Out Measurement Period, calculated on a consolidated basis in accordance with the Company’s accounting policies consistently applied and as determined in good faith by the Board. (B) “Earn-Out Measurement Period” shall mean the period commencing on January 1, 2026 and ending on December 31, 2029. (C) “EBITDA Ceiling” shall mean $64,200,000. (D) “EBITDA Floor” shall mean $45,000,000. (E) “Initial Implied Valuation” shall mean $80,000,000. (F) “Maximum Earn-Out Adjusted Implied Valuation” shall mean $120,000,000. (G) “Maximum Earn-Out Ratchet Amount” shall mean $40,000,000. (H) “Realized Earn-Out Ratchet Amount” shall mean the portion (which may be zero) of the Maximum Earn-Out Ratchet Amount that is realized based on the Cumulative Consolidated EBITDA generated during the Earn-Out Measurement Period, as determined in accordance with Section 5.4(m)(iii) below. An illustrative calculation of the Realized Earn-Out Ratchet Amount, including a model Cumulative Consolidated EBITDA calculation, is attached as Annex C hereto. (ii) Subject to the terms and conditions of this Section 5.4(m), the Class B Preferred Unit Conversion Price shall be subject to adjustment to reflect an increase in the as- converted implied valuation of the Company from the Initial Implied Valuation up to the Maximum Earn-Out Adjusted Implied Valuation, based on the Cumulative Consolidated EBITDA generated by the Company and its Subsidiaries during the Earn-Out Measurement Period (any such adjustment, an “Earn-Out Adjustment”). The Earn-Out Adjustment shall be cashless, shall not require any additional Capital Contributions or other payments by any Member and shall be reflected solely in a change to the Class B Preferred Unit Conversion Price and the resulting as- converted ownership percentages of the Members. (iii) Following the expiration of the Earn-Out Measurement Period and the final determination of the Cumulative Consolidated EBITDA pursuant to this Section 5.4(m), the Class B Preferred Unit Conversion Price shall be adjusted (the “Earn-Out Adjusted Conversion Price”) in accordance with the following formula:
27 Earn-Out Adjusted Conversion Price = EO-CP × (Applicable Earn-Out Implied Valuation ÷ Initial Implied Valuation), where “EO-CP” means the Class B Preferred Unit Conversion Price in effect immediately prior to the Earn-Out Adjustment (without giving effect to the Earn-Out Adjustment) and “Applicable Earn-Out Implied Valuation” means the Initial Implied Valuation plus the Realized Earn-Out Ratchet Amount (as determined below). The Realized Earn-Out Ratchet Amount shall be determined as follows: (A) If the Cumulative Consolidated EBITDA is less than or equal to the EBITDA Floor, the Realized Earn-Out Ratchet Amount shall be zero, no Earn-Out Adjustment shall be made, and the Class B Preferred Unit Conversion Price shall remain unchanged pursuant to this Section 5.4(m) (i.e., the Applicable Earn-Out Implied Valuation shall equal the Initial Implied Valuation). (B) If the Cumulative Consolidated EBITDA is equal to or greater than the EBITDA Ceiling, the Realized Earn-Out Ratchet Amount shall equal the Maximum Earn-Out Ratchet Amount and the Applicable Earn-Out Implied Valuation shall equal the Maximum Earn-Out Adjusted Implied Valuation. Accordingly, the Earn-Out Adjusted Conversion Price shall equal EO-CP × ($120,000,000 ÷ $80,000,000), or EO-CP × 1.5. (C) If the Cumulative Consolidated EBITDA is greater than the EBITDA Floor but less than the EBITDA Ceiling, the Realized Earn-Out Ratchet Amount shall be determined on a ratable basis by linear interpolation, equal to the Maximum Earn-Out Ratchet Amount × ((Cumulative Consolidated EBITDA – EBITDA Floor) ÷ (EBITDA Ceiling – EBITDA Floor)). The Applicable Earn-Out Implied Valuation shall equal the Initial Implied Valuation plus the Realized Earn- Out Ratchet Amount, and the Earn-Out Adjusted Conversion Price shall be calculated in accordance with the formula set forth above. By way of example, if the Cumulative Consolidated EBITDA generated by the Company and its Subsidiaries during the Earn-Out Measurement Period is $54,600,000 (representing 50% interpolation between the EBITDA Floor and the EBITDA Ceiling), then the Realized Earn-Out Ratchet Amount would be $20,000,000 (50% of the Maximum Earn-Out Ratchet Amount), the Applicable Earn-Out Implied Valuation would be $100,000,000, and the Earn-Out Adjusted Conversion Price would equal EO-CP × ($100,000,000 ÷ $80,000,000), or EO-CP × 1.25. (iv) As promptly as reasonably practicable following the expiration of the Earn- Out Measurement Period, and in any event not later than sixty (60) days following December 31, 2029, the Board shall determine the Cumulative Consolidated EBITDA for the Earn-Out Measurement Period and shall deliver to each Holder of Class B Preferred Units a certificate setting forth in reasonable detail the calculation of the Cumulative Consolidated EBITDA and the resulting Earn-Out Adjustment (if any) to the Class B Preferred Unit Conversion Price, together with reasonable supporting documentation for such calculation. Each Holder of Class B Preferred Units shall have sixty (60) days following receipt of such certificate and reasonable supporting documentation to review and raise any objection in writing to the Board. If no objection is raised
28 within such period, the determination set forth in the certificate shall be final and binding on all Members. If a Holder of Class B Preferred Units raises a timely objection, the Board and such Holder shall negotiate in good faith to resolve the dispute within sixty (60) days following receipt of such objection, and, if the parties are unable to resolve such dispute within such period, the dispute shall be submitted to an independent accounting firm of national reputation mutually acceptable to the Board and the objecting Holder(s), whose determination shall be final and binding on all Members, with the costs of such independent accounting firm to be borne by the party whose calculation of Cumulative Consolidated EBITDA for the Earn-Out Measurement Period has the greatest absolute deviation from the independent accounting firm’s determination; provided that if both parties’ proposals deviate equally, then such costs shall be divided evenly; provided further that if (A) only one Holder of Class B Preferred Units raises a timely objection pursuant to this Section 5.4(m)(iv), (B) such objection results in a lower Class B Preferred Unit Conversion Price than set forth in the original certificate delivered by the Board pursuant to this Section 5.4(m)(iv), and (C) such Holder is nonetheless required to bear the costs of the independent accounting firm pursuant to this Section 5.4(m)(iv), then all Holders of Class B Preferred Units shall bear the costs of the independent accounting firm on a pro rata basis. (v) The Earn-Out Adjustment is a one-time adjustment that shall only be determined and applied following the expiration of the Earn-Out Measurement Period (or, if earlier, upon an Earn-Out Acceleration Event pursuant to Section 5.4(m)(vi)). Upon the effectiveness of the Earn-Out Adjustment, the Earn-Out Adjusted Conversion Price shall become the then-effective Class B Preferred Unit Conversion Price for all purposes of this Agreement and shall serve as the baseline for any subsequent adjustments under this Section 5.4. (vi) If, prior to the final determination of the Earn-Out Adjustment pursuant to Section 5.4(m)(iv), any of the following events occurs (each, an “Earn-Out Acceleration Event”): (1) a Mandatory Conversion Time is established pursuant to Section 5.5 or (2) a Liquidation Event or Company Sale is consummated or approved pursuant to Article XI or Section 10.4, then the Earn-Out Adjustment shall be accelerated and determined in accordance with this Section 5.4(m)(vi) immediately prior to the consummation of such Earn-Out Acceleration Event. (A) Upon the occurrence of an Earn-Out Acceleration Event, the Board shall determine the Cumulative Consolidated EBITDA actually generated by the Company and its Subsidiaries during the period from January 1, 2026 through the last day of the most recently completed month ending on or prior to the date of such Earn-Out Acceleration Event (such period, the “Truncated Measurement Period” and such amount, the “Truncated EBITDA”). The “Annualized Cumulative EBITDA” shall then be calculated as follows: Annualized Cumulative EBITDA = Truncated EBITDA × (4 ÷ number of full years elapsed in the Truncated Measurement Period, calculated to two decimal places based on the actual number of days elapsed divided by 365). The Annualized Cumulative EBITDA shall be used in lieu of the Cumulative Consolidated EBITDA for all purposes of Section 5.4(m)(iii), and the Earn-Out Adjusted Conversion Price shall be calculated accordingly. (B) The Board shall calculate the Annualized Cumulative EBITDA and the resulting Earn-Out Adjustment as promptly as reasonably practicable following
29 the occurrence of the Earn-Out Acceleration Event, and in any event prior to the consummation of such Earn-Out Acceleration Event. The Board shall deliver to each Holder of Class B Preferred Units a certificate setting forth in reasonable detail the calculation of the Truncated EBITDA, the Annualized Cumulative EBITDA and the resulting Earn-Out Adjustment, together with reasonable supporting documentation for such calculation. Each Holder of Class B Preferred Units shall have twenty (20) days following receipt of such certificate to raise any objection in writing to the Board. If a timely objection is raised, the dispute shall be resolved in accordance with the procedures set forth in Section 5.4(m)(iv) (including referral to an independent accounting firm), except that the parties shall use commercially reasonable efforts to resolve any such dispute prior to the consummation of the Earn-Out Acceleration Event. In the event the dispute cannot be resolved prior to consummation, the Earn-Out Adjustment shall be applied on a provisional basis using the Board’s determination, and a true-up payment shall be made promptly following the final resolution of the dispute. (C) For the avoidance of doubt, the Earn-Out Adjustment as determined pursuant to this Section 5.4(m)(vi) shall be applied to the Class B Preferred Unit Conversion Price immediately prior to the consummation of the Earn-Out Acceleration Event, and the resulting Earn-Out Adjusted Conversion Price shall be used for all purposes of calculating (1) the number of Class A Common Units issuable upon any conversion of Class B Preferred Units in connection with such event, (2) the as-converted value component of the Class B Preferred Redemption Price under Section 10.5(a)(ii), (3) the as-converted value component of the Call Option Price under Section 10.6(b), and (4) the as-converted value component of the Class B Preferred Liquidation Election under Section 11.2(b). Once determined and applied, the Earn-Out Adjustment under this Section 5.4(m)(vi) shall be the final Earn-Out Adjustment, and no further Earn-Out Adjustment shall be made under Section 5.4(m)(iii) or (iv). (n) Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment of a Class B Preferred Unit Conversion Price pursuant to this Section 5.4 (other than Section 5.4(m), which shall be governed exclusively by Section 5.4(m)(iv) and, if applicable, Section 5.4(m)(vi), and not by this Section 5.4(n)), the Company at its expense shall, as promptly as reasonably practicable but in any event not later than ten (10) days thereafter, compute such adjustment or readjustment in accordance with the terms hereof and furnish to each Holder of applicable Class B Preferred Units a certificate setting forth such adjustment or readjustment (including the kind and amount of securities, cash or other property into which such Class B Preferred Units are convertible) and showing in detail the facts upon which such adjustment or readjustment is based, together with reasonable supporting documentation for such calculation. The Company shall, as promptly as reasonably practicable after the written request at any time of any Holder of Class B Preferred Units (but in any event not later than ten (10) days thereafter), furnish or cause to be furnished to such Holder a certificate setting forth (i) each Class B Preferred Unit Conversion Price then in effect, and (ii) the number of Common Units and the amount, if any, of other securities, cash or property which then would be received upon the conversion of Class B Preferred Units.
30 5.5 Mandatory Conversion. (a) Trigger Events. Upon the date and time, or the occurrence of an event, specified by unanimous vote or written consent of the Holders of Class B Preferred Units (the time of such closing or the date and time specified or the time of the event specified in such vote or written consent is referred to herein as the “Mandatory Conversion Time”), then (i) all outstanding Class B Preferred Units shall automatically be converted into Class A Common Units, at the then effective conversion rate (after giving effect to any Earn-Out Adjustment, including any accelerated Earn-Out Adjustment pursuant to Section 5.4(m)(vi), if applicable) and (ii) such Units may not be reissued by the Company. (b) Procedural Requirements. All Holders of record of Class B Preferred Units shall be sent written notice of the Mandatory Conversion Time and the place designated for mandatory conversion of all such Class B Preferred Units pursuant to this Section 5.5. Such notice need not be sent in advance of the occurrence of the Mandatory Conversion Time. Upon receipt of such notice, each Holder of Class B Preferred Units in certificated form shall surrender his, her or its certificate or certificates for all such shares (or, if such Holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Company to indemnify the Company against any claim that may be made against the Company on account of the alleged loss, theft or destruction of such certificate) to the Company at the place designated in such notice. If so required by the Company, any certificates surrendered for conversion shall be endorsed or accompanied by written instrument or instruments of transfer, in form satisfactory to the Company, duly executed by the registered Holder or by his, her or its attorney duly authorized in writing. All rights with respect to the Class B Preferred Units converted pursuant to Section 5.5, including the rights, if any, to receive notices and vote (other than as a Holder of Class A Common Units), will terminate at the Mandatory Conversion Time (notwithstanding the failure of the Holder or Holders thereof to surrender any certificates at or prior to such time), except only the rights of the Holders thereof, upon surrender of any certificate or certificates of such Holders (or lost certificate affidavit and agreement) therefor, to receive the items provided for in the next sentence of this Section 5.5. As soon as practicable after the Mandatory Conversion Time and, if applicable, the surrender of any certificate or certificates (or lost certificate affidavit and agreement) for Class B Preferred Units, the Company shall (i) issue and deliver to such Holder, or to his, her or its nominees, a certificate or certificates for the number of full Class A Common Units issuable on such conversion in accordance with the provisions hereof and (ii) pay cash in lieu of any fraction of a Class A Common Unit otherwise issuable upon such conversion and the payment of any declared but unpaid distributions on the shares of Class B Preferred Units converted. Such converted Class B Preferred Units shall be retired and cancelled and may not be reissued as units of such series, and the Company may thereafter take such appropriate action (without the need for unitholder action) as may be necessary to reduce the authorized number of shares of Class B Preferred Units accordingly. Article VI Contributions 6.1 Capital Contribution. The value of any Capital Contribution by a new Member and the terms upon which such Capital Contribution will be made will be as agreed upon by the Board and as provided in such Member’s subscription or other Unit purchase agreement, if any, and, in
31 the case of an existing Member’s Capital Contribution, as set forth on Annex A. No interest will accrue on any Capital Contribution. 6.2 Additional Contributions; Preemptive Rights. (a) Additional Contributions. No Member will be obligated to make any Capital Contribution to the Company in addition to its initial Capital Contribution. Subject to the approval of the CEO and Section 6.2(b), the Members may be permitted from time to time to make additional Capital Contributions if the Chief Financial Officer determines that such additional Capital Contributions are necessary or appropriate for the conduct of the Company’s business and affairs, including expansion or diversification. (b) Preemptive Rights. (i) Subject to the provisions of this Agreement, including Section 3.3 hereof, at any time following the Effective Date, if the Company or any of its Subsidiaries (excluding any project-level investment vehicle) proposes to issue (A) additional Units, (B) other Equity Securities, (C) other securities convertible or exchangeable for Units or other Equity Securities of the Company, or (D) debt securities (with the exception of any issuance (1) in connection with any public offering or any offering of debt securities (that are not convertible into Units or other Equity Securities) to third-party lenders that are not Affiliated with any of Air T or Blue Owl, (2) in connection with any Unit or other Equity Security split, subdivision, conversion, exercise, dividend or distribution, (3) pursuant to an Incentive Compensation Plan validly entered into and established in accordance with this Agreement, (4) to the Company or a wholly owned Subsidiary of the Company, (5) of any Exempted Securities or (6) by any project-level investment vehicle of the Company or any of its Subsidiaries in connection with the equity capitalization of any Asset Production Transaction (it being understood that the rights and procedures set forth in the Side Letter shall govern the issuances contemplated by this clause (6) in lieu of this Section 6.2(b))) (a “New Issuance”), then the Company shall, or shall cause its Subsidiary to, as applicable, provide written notice to each Member holding Class A Common Units or Class B Preferred Units (each, an “Eligible Member”) of such anticipated issuance no later than ten (10) Business Days prior to the anticipated issuance date (such notice, the “Preemptive Rights Notice”). Existing classes of Units being offered pursuant to this Section 6.2(b) shall maintain the same terms and conditions (including distribution priority and other rights reflected herein) except as otherwise agreed by the requisite Members in accordance with this Agreement. The Preemptive Rights Notice shall set forth the material terms and conditions of the New Issuance, including the number of Units or other Equity Securities or the aggregate face amount of the debt securities anticipated to be issued, the terms of the security to be issued in the New Issuance and, in the case of a New Issuance of Equity Securities of any Subsidiary of the Company, the securities of the Company that each Eligible Member is eligible to purchase in lieu of the Equity Securities of the Subsidiary of the Company, the proposed purchase price for such securities and the anticipated issuance date. Subject to the terms and conditions of this Section 6.2(b), each Eligible Member shall have the right to purchase up to a number of such new Units or other securities equal to (x) the number of Units or other securities that the Company or its Subsidiary, as applicable, proposes to issue on the relevant issuance date, multiplied by (y) a fraction, the numerator of which is the number of Units held by the relevant Eligible Member immediately prior to such issuance date, and the denominator of which is the aggregate number of Units held by all Eligible Members immediately prior to such
32 issuance date (such number, the Eligible Member’s “Pro Rata Portion”) (which, in the case of a New Issuance by a Subsidiary of the Company, will be determined by the Board on a “look- through” basis) at the same price and on the same terms and conditions as specified in the Preemptive Rights Notice by delivering an irrevocable written notice (a “Preemptive Rights Election Notice”) to the Company no later than seven (7) Business Days following such Eligible Member’s receipt of the Preemptive Rights Notice (the “Preemptive Rights Response Period”), setting forth the number or amount of such new Units or other securities for which such right is exercised. Each Eligible Member delivering a Preemptive Rights Election Notice shall also specify in such notice the maximum number or amount of new Units or other securities such Eligible Member would be willing to purchase in the event any other Eligible Member elects to purchase less than its Pro Rata Portion of such new securities. (A) If any Eligible Member elects not to purchase its full Pro Rata Portion of such new Units or other securities, the Company or its Subsidiary, as the case may be, shall allocate any remaining amount among those Eligible Members (pro rata in accordance with the Units then held by each such Eligible Member) who have indicated in their notice to the Company or its Subsidiary, as the case may be, a desire to purchase new Units or other securities in excess of their respective Pro Rata Portions (it being understood that if Eligible Members elect to purchase more new Units or other securities than remain available for sale, such allocation shall be made pro rata in accordance with the Units then held by each such Eligible Member); provided that no Eligible Member shall be required to purchase more new Units or other securities than the maximum number set forth in such Eligible Member’s irrevocable written notice. In the event an Eligible Member fails to deliver a valid Preemptive Rights Election Notice to the Company prior to the expiration of the Preemptive Rights Response Period, such Eligible Member shall cease to have any rights under this Section 6.2(b) solely with respect to such New Issuance. (B) The Company shall, and the Board and any Officer (as defined below) of the Company is hereby authorized to, amend any Schedule to this Agreement as necessary to reflect the purchase by any Eligible Member of new Units or other securities in accordance with the terms of this Section 6.2(b). (ii) In the event that any Eligible Members have preemptive rights with respect to a New Issuance and such Eligible Members do not purchase all such Units or other securities offered in such New Issuance in accordance with the procedures set forth in Section 6.2(b)(i), the Company, or such Subsidiary, shall have ninety (90) days (provided that, if the Company, or such Subsidiary, signs a definitive agreement to sell such Units or other securities within such time period, such period shall be extended by the period of time reasonably necessary to obtain any necessary regulatory approval of such sale) after the anticipated issuance date specified in the Preemptive Rights Notice to sell to other Persons (including any Member) the remaining new membership interests or other securities at the same price and on the same terms and conditions specified in the Preemptive Rights Notice. If the Company, or such Subsidiary, as the case may be, fails to sell such new Units or other securities within ninety (90) days (provided that, if the Company signs a definitive agreement to sell such new securities within such time period, such period shall be extended by the period of time necessary to obtain regulatory approval of such sale)
33 of the anticipated issuance date provided in the Preemptive Rights Notice, the Company or such Subsidiary shall not thereafter issue or sell such new Units or other securities without first offering such new securities to the Eligible Members in the manner provided in, and to the extent required by, Section 6.2(b)(i). The Company shall, and the Board and any Officer of the Company is authorized to, amend any Schedule to this Agreement as necessary to reflect the purchase by any Person of new Units or other securities in accordance with the terms of this Section 6.2(b)(ii). (iii) Any election not to, or inability of an Eligible Member to, exercise its preemptive rights under this Section 6.2(b) in any one instance shall not affect its right (other than in respect of any reduction in its percentage holdings) as to any future issuances under this Section 6.2(b). 6.3 Return of and Obligation for Capital Contributions. Except as otherwise provided in this Agreement or as required by a non-waivable provision of the Delaware Act, no Member will have the right to withdraw, or receive any return of such Member’s Capital Contributions, for so long as the Company continues in existence. If any Member withdraws from the Company pursuant to the terms hereof, such Member will remain obligated for any unpaid Capital Contributions. Neither the Company nor the Board guarantees the return of all or any portion of any Member’s Capital Contribution or profit for the Members from the operations of the Company. Article VII Capital Accounts; Distributions; Allocations 7.1 Capital Accounts. A separate Capital Account will be maintained for each Holder on the books of the Company in accordance with the provisions of Annex B (each, a “Capital Account”). 7.2 Distributions. (a) From and after the date of the issuance of any Class B Preferred Units, distributions shall accrue on such Class B Preferred Units at an annual rate equal to 10.0% of the Class B Preferred Unit Original Issue Price per Class B Preferred Unit (the “Accruing Distributions”). The Accruing Distributions shall accrue from day to day, whether or not declared, and shall be cumulative. Such Accruing Distributions shall be payable quarterly in arrears on the last Business Day of each calendar quarter (each, a “Preferred Distribution Payment Date”). The Accruing Distributions shall be comprised of two fifty percent (50%) increments (the first fifty percent (50%) increment, the “Cash Election Distribution,” and the second fifty percent (50%) increment, the “PIK Distribution”), which, for the avoidance of doubt, shall be paid together on each Preferred Distribution Payment Date. (i) The Company may elect, upon determination by the Board in its sole discretion, to pay the Cash Election Distribution in cash or by increasing the Conversion Balance of each Class B Preferred Unit by the amount of such unpaid distribution (“PIK Interests”), provided that before any cash distributions (other than Tax Distributions, which may be paid to Holders of Class A Common Units, Class B Preferred Units and PI Units in advance of any other distributions to Holders of Class B Preferred Units) may be declared, paid or set apart for payment on, or applied to the repurchase or redemption of, any Class A Common Units, PI Units or any
34 other class of units that may be issued by the Company, all accrued and unpaid Cash Election Distributions must be paid in full in cash. The Chief Financial Officer shall provide written notice to the Holders of Class B Preferred Units of its election to pay the Cash Election Distribution in cash or PIK Interests no later than five (5) Business Days prior to the applicable Preferred Distribution Payment Date. In the absence of such notice, such distribution shall be deemed to be paid in PIK Interests. (ii) The Company shall pay the PIK Distribution in PIK Interests; provided that the PIK Distribution shall be deemed not payable to the extent that the Applicable Liquidation Preference Satisfaction occurs as of the relevant point of measurement with respect to such Preferred Distribution Payment Date; provided further, that, to the extent that the sum of (x) the PIK Distribution, (y) the Cash Election Distribution, and (z) any distributions paid pursuant to Section 7.2(b) would cause the aggregate amount of distributions accrued on any Class B Preferred Unit in an applicable calendar year to exceed 10.0% of the Class B Preferred Unit Original Issue Price for such Class B Preferred Unit (such excess amount, the “Distribution Excess”), then the portion of the PIK Distribution for such Class B Preferred Unit for such calendar year that is equivalent to the Distribution Excess shall be deemed not payable for such Class B Preferred Unit for such calendar year. (b) In addition to the Accruing Distributions, the Holders of Class B Preferred Units shall be entitled to participate in any distributions (other than Tax Distributions, which each Holder of Class B Preferred Units will be entitled to receive pursuant to Section 7.2(e)) paid to Holders of Class A Common Units that, on a per-Unit basis, exceed the per-Unit rate of the Accruing Distributions (calculated on an annualized basis), on an as-converted basis (as if each Class B Preferred Unit had been converted into Class A Common Units at the then-applicable Class B Preferred Unit Conversion Price immediately prior to the record date for such distribution). (c) Other than Tax Distributions and subject to Section 7.2(a), distributions will be made to the Holders at the times and in the aggregate amounts determined by the Chief Financial Officer; provided that such distributions are either (i) consistent with a Board-approved annual budget or (ii) would not reasonably be expected to impede the Company’s ability to meet a Board- approved annual budget. (d) Any distributions under this Agreement will be made to the Holders in accordance with their respective Percentage Interests, except as otherwise provided in this Section 7.2 or Section 11.2. Notwithstanding anything to the contrary herein, with respect to PI Units, the amounts otherwise distributable in respect of such Units pursuant to this Section 7.2 (other than Tax Distributions) and Section 11.2 shall be subject to the Distribution Hurdle applicable to such Unit. (e) Notwithstanding anything to the contrary in this Agreement, the Company shall make distributions to each Holder, within ten (10) days after the end of each of the third, fifth, eighth and eleventh months of each applicable taxable year of the Company, equal to the product of (x) the net taxable income of the Company allocated to such Holder pursuant to Article 4 of Annex B of this Agreement for the applicable tax year (less any net taxable losses allocated to such Holder by the Company for any prior tax year to the extent that such loss, deduction or credit has not previously reduced distributions to such Holder pursuant to this Section 7.2(e))7.2(e) and
35 (y) the applicable tax rate, which shall be equal to the sum of (1) the highest effective marginal U.S. federal income tax rate applicable to such Holder with respect to the relevant character of income allocated to such Holder for such taxable year (taking into account, for the avoidance of doubt, any rate imposed under Section 1411 of the Code with respect to net investment income) and (2) if such Holder is a resident of the United States, the highest effective marginal state and local income tax rate applicable to the relevant character of income allocated to such Holder in New York, New York (any such distribution, a “Tax Distribution”). The Company shall not be required to borrow funds, and no Member shall be required to make any Capital Contribution, in order to enable the Company to make any Tax Distribution. If, on the date the Chief Financial Officer proposes to make a Tax Distribution, the Company’s available cash is insufficient to pay the full amount of such Tax Distribution, the Company shall distribute its available cash to the Holders pro rata in proportion to the amount of the Tax Distribution to which each Holder is otherwise entitled, and any shortfall shall be carried forward and taken into account in computing Tax Distributions for the next succeeding taxable year. Notwithstanding anything to the contrary in this Agreement, Tax Distributions shall be treated as advances against all other distributions. (f) Amounts that are distributed pursuant to this Section 7.2 within seventy-five (75) days after the end of any fiscal year and that are determined by the Chief Financial Officer to be attributable to amounts received by the Company during such fiscal year will be treated as having been distributed during such fiscal year. Notwithstanding anything to the contrary contained in this Agreement, no distribution under this Agreement will contravene § 18-607 of the Delaware Act. (g) The final distributions following dissolution of the Company will be made in accordance with the provisions of Article XI. 7.3 Allocations. Net Income and Net Losses and items thereof shall be allocated among the Holders in accordance with Annex B hereof. 7.4 Withheld Amounts. If any federal, foreign, state or local jurisdiction requires the Company to withhold taxes or other amounts with respect to any Holder’s allocable share of taxable income or any items thereof, or with respect to distributions to any Holder, or, if the Company is required by law to make any payment to a taxing authority that is specifically attributable to a Holder or a Holder’s status as such (including state personal property replacement taxes, state unincorporated business taxes, and any taxes arising under the Partnership Tax Audit Rules), as determined in good faith by the Chief Financial Officer, in any such case, a “Tax Advance,” the Company is authorized to pay such amount to the applicable taxing authority as so required. Any Tax Advance made on behalf of or with respect to a Holder that is withheld from a distribution shall be treated as distributed to such Holder. Any other Tax Advance shall be deemed to be a recourse loan by the Company to such Holder. Any such loan shall bear interest from the date of the Tax Advance until repaid to the Company at a rate reasonably determined by the Chief Financial Officer and shall be repaid upon the sooner of (a) demand by the Company, (b), a reduction in the amount of any distributions that would otherwise have been made to such Holder, and any amount so deducted shall be treated as distributed to the Holder, or (c) offset by the Company against any future distributions otherwise payable to such Holder pursuant to this Agreement, which offset the Chief Financial Officer may effect in its discretion without further notice to such Holder. If the proceeds to the Company from an investment are reduced on account
36 of taxes withheld by any other person (such as an entity in which the Company owns an interest, directly or indirectly), and such taxes are imposed on or otherwise are attributable to one or more of the Holders, as determined in good faith by the Chief Financial Officer, the amount of the reduction shall be treated as if it were paid by the Company as a Tax Advance with respect to the relevant Holder. For the avoidance of doubt, any taxes, penalties and interest payable under the Partnership Tax Audit Rules by the Company or any fiscally transparent entity in which the Company owns an interest and that are allocated to the Holder as determined by the Company in good faith shall be treated as specifically attributable to the Holder. The Company shall use commercially reasonable efforts to allocate the burden of (or any diminution in distributable proceeds resulting from) any such taxes, penalties or interest to those Holders to whom such amounts are specifically attributable (whether as a result of their status (including whether a Holder was a Holder during the reviewed taxable period to which such amounts relate), actions, inactions or otherwise). Neither the Company nor any member of the Board shall be liable for any excess taxes withheld in respect of any Holder’s interest in the Company, and in the event of over- withholding, a Holder’s sole recourse shall be to apply for a refund from the appropriate governmental authority; provided that the Company shall distribute to such Holder any refund of over-withheld taxes actually received by the Company in respect of such Holder. 7.5 Consent to Allocations. Each Member, as a condition of becoming a Member, expressly consents to the foregoing allocations as set forth in this Agreement. Each Member represents and warrants that it is aware of the income tax consequences of such allocations and hereby agrees to be bound by Annex B in reporting its share of the Company’s income and loss for income tax purposes. Each Member further agrees that it shall not, on any federal, state or local income tax return or claim for refund, report any item of income, gain, loss, deduction or credit in a manner that is inconsistent with the treatment of such item on the Company’s tax return as filed, unless such Member has first notified the Company in writing of such inconsistent treatment and, to the extent required by applicable law (including Section 6222 of the Code), has filed any required notice of inconsistent treatment (including IRS Form 8082 or any successor form) with the applicable taxing authority. Each Member acknowledges that any failure to comply with the foregoing may result in adjustments to such Member’s tax liability and potential penalties under applicable Law. 7.6 Federal Tax Matters. (a) The Board shall designate the “partnership representative” of the Company for purposes of the Partnership Tax Audit Rules (the “Tax Matters Representative”); provided, however, that so long as Richard Schacht is the Chief Financial Officer or Treasurer of the Company, Richard Schacht will be the “partnership representative”. The Tax Matters Representative shall have the power to manage and control, on behalf of the Company, any administrative proceeding at the Company level with the Internal Revenue Service or other tax authority. Each Holder hereby agrees to the designation of the Tax Matters Representative (and, if applicable, the Designated Individual) and will take all actions as are necessary or convenient to effect the appointment of the Tax Matters Representative (or Designated Individual). The Tax Matters Representative shall act at the direction of the CEO in performing its duties and exercising its powers as the Tax Matters Representative, and any settlement or resolution of any administrative proceeding at the Company level shall be subject in all cases to the consent of the Board. The Tax Matters Representative shall keep the Holders reasonably informed of all
37 administrative and judicial proceedings and shall furnish to each Holder that requests a copy of each written notice or other written communication received by the Tax Matters Representative from the Internal Revenue Service. For the avoidance of doubt, the Tax Matters Representative’s actions and omissions in such capacity shall be deemed to constitute actions and omissions in such Person’s capacity as an officer of the Company for purposes of Article IX. (b) If the Company receives a notice of proposed partnership adjustment (“NOPPA”) under Section 6231 of the Code that contains a proposed imputed underpayment, then (i) at the direction of the Board the Tax Matters Representative may make a timely request to the Internal Revenue Service for a modification of the proposed imputed underpayment pursuant to Section 6225(c) of the Code and Proposed Regulations Section 301.6225-2 (or any successor regulations or other provisions) if such modification would reduce the amount of the proposed adjustment set forth in the NOPPA and (ii) the Holders shall take such reasonable actions requested by the Tax Matters Representative with respect to the request for modification. The Tax Matters Representative may further, in its reasonable discretion, cause the Company to make the election under Section 6226(a) of the Code to treat any imputed underpayment as an adjustment to be taken into account by each reviewed-year Holder, and shall take any other action (including filings, disclosures and notifications) necessary to effectuate such election. If the Tax Matters Representative makes such push-out election under Section 6226(a), each Holder shall take such adjustment into account as required under Section 6226(b) of the Code, and shall be liable for any related interest, penalty, addition to tax, or additional amounts with respect thereto, whether or not such Holder then holds any interest in the Company. If the Board determines that the Company will not make an election under Section 6226 of the Code, then any “imputed underpayment” (as determined in accordance with Section 6225 of the Code) or any partnership adjustment that does not give rise to an imputed underpayment will be apportioned among the Holders of the Company for the fiscal year in which the adjustment is finalized in such manner as may be necessary (as determined by the Tax Matters Representative and approved by the Board in good faith) so that, to the maximum extent possible, the tax and economic consequences of the partnership adjustment and any associated interest and penalties are borne by the Holders based upon their respective interests in the Company for the reviewed year. Any tax payments (including interest, penalties, and additions to tax) made by the Company on behalf of a Holder will be treated, in the Holder’s discretion, either as a distribution to such Holder, or as an expense incurred by the Company on behalf of such Holder for which such Holder shall promptly reimburse the Company upon receipt of notice thereof from the Company. The obligations of each Holder (and each former Holder) under this Section 7.6 shall survive the Transfer of such Holder’s Units and the dissolution, liquidation and termination of the Company, and shall remain binding for the period necessary to resolve all income tax matters relating to the Company with the Internal Revenue Service or other applicable taxing authority, including any obligation to satisfy imputed underpayments attributable to such Holder’s interest during any reviewed year. (c) Each Holder shall furnish to the Company on a timely basis with such information and forms as the Company may reasonably require and are necessary to prepare and file the Company’s income tax returns, to comply with any laws or rules governing the obligations of withholding tax, to allow the Company or the Holders to be subject to a reduced rate of tax, and to allow the Company to provide information pursuant to Chapter 63 of the Code (including to make any election or computation under the Partnership Tax Audit Rules), including information about the direct or indirect owners of a Holder, to the extent the Holder is reasonably able to obtain such
38 information. Each Holder shall update such forms and certifications promptly upon any change in circumstances that renders the previously provided forms or certifications incorrect or unreliable. Each Holder represents and warrants that any forms or certifications provided pursuant to this Section 7.6(c) are and shall be true, accurate and complete; provided, that a Holder will not be in breach of this representation if the Company determines, in its reasonable judgement, that a form or certification provided by such Holder pursuant to this Section 7.6(c) is incomplete, and, upon prompt notice from the Company, the Holder completes such form or certification as soon as commercially practicable. Each Holder shall indemnify the Company from and against any taxes, penalties, interest, and related costs arising from the Company’s reliance on any inaccurate or incomplete certification provided by such Holder pursuant to this Section 7.6(c). The Company shall use commercially reasonable efforts to assist any Holder to apply for or obtain a reduction of or exemption from withholding tax or a refund of withheld taxes or any other applicable taxes. The obligations of the parties pursuant to this Section 7.6(c) shall continue even if the Holder is no longer a Holder of the Company. (d) If the Tax Matters Representative is required by law or regulation to incur fees and expenses in connection with tax matters not affecting each of the Holders, then the Holder may cause the Company, in its reasonable discretion, to seek reimbursement from or charge such fees and expenses to the Capital Accounts of those Holders on whose behalf such fees and expenses were incurred. (e) With respect to any period in which any non-individual is the Tax Matters Representative, the non-individual Tax Matters Representative shall appoint on behalf of the Company an individual (the “Designated Individual”) through whom the Tax Matters Representative will act for all purposes of implementing the provisions of this Section 7.6. All references to the Tax Matters Representative herein will include any actions by the Designated Individual on behalf of the Tax Matters Representative or the Company in that person’s capacity as Designated Individual. 7.7 Special Basis Adjustment. The Tax Matters Representative shall make and maintain in effect an election for federal income tax purposes to adjust the basis of Company Property, in connection with Transfers of Units and distributions, pursuant to Sections 754, 734(b) and 743(b) of the Code, or comparable provisions of state, local or foreign Law, without any further consent of the Members being required (except as specifically required herein). 7.8 Partition. Except as may otherwise be provided by applicable Law in connection with the winding-up, liquidation and dissolution of the Company, each Member hereby irrevocably waives any and all rights that it may have to maintain an action for partition of any of the Company’s property. Article VIII Company Obligations 8.1 Books, Records and Financial Statements. (a) At all times during the continuance of the Company, the Company will maintain, and will cause each Subsidiary to maintain, at its principal place of business, separate books of
39 account in which complete entries will be made that will show a true and accurate record of all costs and expenses incurred, all charges made, all credits made and received and all income derived in connection with the operation of the business of the Company and each of its Subsidiaries, and reflecting all financial transactions of the Company and each Subsidiary, and, in which, for each fiscal year, all proper reserves for depreciation, depletion, obsolescence, amortization, taxes, bad debts and other purposes in connection with its business will be made in accordance with GAAP consistently applied. Such books of account, together with a copy of this Agreement and the Certificate, will at all times be maintained at the principal place of business of the Company and, to the extent required by applicable Law, will be open to inspection and examination by the Members or their duly authorized Representatives at reasonable times and upon reasonable notice by any such Member for any purpose reasonably related to such Member’s Units. (b) The Company will furnish to each Class B Preferred Member the following: (i) Annual Financial Statements. As soon as reasonably practicable, but in any event within eleven (11) Business Days after the end of each fiscal year, an unaudited consolidated balance sheet of the Company and its Subsidiaries as of the end of such fiscal year and the related unaudited consolidated statements of income, members’ equity and cash flows for the fiscal year then ended, prepared in accordance with GAAP (except for year-end adjustments and the absence of footnotes); provided that (A) such balance sheet and the related consolidated statements of income, members’ equity and cash flows shall be audited and certified by an independent certified public accounting firm selected by the Board, and the Company shall deliver such audited consolidated balance sheet and related audited consolidated statements of income, members’ equity and cash flows, together with all related certifications and auditor’s letters, as soon as reasonably practicable, but in any event within one hundred eighty (180) days after the end of such fiscal year, and the Blue Owl Investors shall be permitted to review all such audited financial statements, certifications, and auditor’s letters and (B) the Company shall permit the Blue Owl Investors, at their sole expense, to visit and inspect the Company’s properties, examine its books of account and records, and discuss the Company’s affairs, finances and accounts with its officers during normal business hours of the Company as may be reasonably requested by the Blue Owl Investors. Notwithstanding the other provisions of this Section 8.1, the Company reserves the right to withhold any information and exclude the Blue Owl Investors from access to the Company granted to it pursuant to Section 8.1(b)(i) if access to such information or attendance at such meeting would reasonably be expected to adversely affect the attorney-client privilege between the Company and its counsel. (ii) Quarterly Financial Statements. As soon as reasonably practicable, but in any event within eight (8) Business Days after the end of each quarter in each fiscal year, a consolidated balance sheet of the Company and its Subsidiaries, if any, and the related consolidated statements of income, members’ equity and cash flows, unaudited but prepared in accordance with GAAP (except for year-end adjustments and the absence of footnotes), such consolidated balance sheet to be as of the end of such quarter and such consolidated statements of income, members’ equity and cash flows to be for such quarter and for the period from the beginning of the fiscal year to the end of such quarter. (iii) Monthly Financial Statements. As soon as reasonably practicable, but in any event within eight (8) Business Days after the end of each month in each fiscal year, a consolidated
40 balance sheet of the Company and its Subsidiaries, if any, and the related consolidated statements of income, members’ equity and cash flows, unaudited but prepared in accordance with GAAP (except for year-end adjustments and the absence of footnotes). (iv) Other Information. Such other information relating to the financial condition, business, prospects, or corporate affairs of the Company as any Class B Preferred Member may from time to time reasonably request; provided, however, that the Company shall not be obligated under this subsection to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form reasonably acceptable to the Company); or (ii) the disclosure of which would reasonably be expected to adversely affect the attorney-client privilege between the Company and its counsel. (c) The Company shall cause to be prepared and filed all necessary federal, state and local income tax returns for the Company and shall use commercially reasonable efforts to furnish to each Member (i) a draft Schedule K-1 within seventy-five (75) days following the close of the Company’s taxable year and (ii) a final Schedule K-1 within one hundred twenty (120) days following the close of the Company’s taxable year. Any draft Schedule K-1 shall include an estimate of state source income, as applicable. Each Member acknowledges that any draft Schedule K-1 is provided for informational purposes only, is not binding on the Company, and may differ from the final Schedule K-1. The Company shall make any elections the Board may deem appropriate and in the best interests of the Members. Each Member shall furnish to the Company all pertinent information in the Member’s possession relating to Company operations that is reasonably necessary to enable the Company’s income tax returns to be prepared and filed. 8.2 Termination of Information Rights. The covenants set forth in Section 8.1 shall terminate and be of no further force or effect (i) upon a Liquidation Event, or (ii) when the Company first becomes subject to the periodic reporting requirements of Section 12(g) or 15(d) of the Exchange Act, whichever event occurs first. 8.3 Continuing Existence. Except in accordance with Section 3.3 hereof, the Company will maintain its legal existence. 8.4 Compliance with Laws. The Company shall, and shall cause its Subsidiaries to, comply with all applicable Laws in all material respects, and the Company shall promptly notify each Manager if the Company or any of its Subsidiaries (a) receives notification of any material violation of Law by a CAP Company, or that a CAP Company is under investigation with respect thereto, or (b) reasonably believes that a CAP Company may have violated applicable Law in any material respect. 8.5 Insurance. The Company will obtain and maintain and cause each of its Subsidiaries, if any, to maintain as to their respective properties and business, with financially sound and reputable insurers, insurance against such casualties, contingencies and other risks and hazards and of such types and in such amounts as the CEO, Chief Financial Officer and Chief Legal Officer reasonably determine.
41 8.6 Confidentiality. Any Holder and Board Observer receiving Confidential Information related to the Company or the Subsidiaries will keep such Confidential Information confidential and will not disclose such Confidential Information to any third party or use such Confidential Information for any purpose (other than to monitor or make decisions with respect to its investment in the Company) without the prior written consent of the Company; provided, however, that nothing in this Agreement will prevent such Holder from disclosing the Confidential Information (a) as required by Law, regulation or other legal process, (b) to its partners, members, equity holders, financing sources and Affiliates as is customary in Holder’s industry, (c) on a need- to-know basis, its Representatives, in each case, that are not engaged in an enterprise competitive to the Company, (d) to any Permitted Transferee of such Holder or (e) for disclosures by a Blue Owl Investor or Affiliate thereof to current or prospective investors in any Blue Owl Affiliated Fund in connection with ordinary course informational, transactional or reporting activities with respect to such Blue Owl Affiliated Fund; provided further, that any such partner, member, equity holder, financing source, Representative, Affiliate, Permitted Transferee or current or prospective investor is apprised of the confidential nature of such Confidential Information and agrees to keep such information confidential. Article IX Liability, Exculpation and Indemnification 9.1 Liability. Except as otherwise provided by the Delaware Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, will be solely the debts, obligations and liabilities of the Company, and no Manager will be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Manager. 9.2 Manager’s Standard of Care; Fiduciary Duties. The Board, the Managers and the decisions of the Board shall have the benefit of the business judgment rule to the same extent as the directors of a Delaware corporation and the decisions thereof. Except as expressly provided in this Agreement, the Managers and Officers shall have the same fiduciary duties to all Holders of Units and, subject to Section 3.8, as such Persons would have if such Persons were directors or officers, as applicable, of a Delaware corporation, but in no event shall any member of the Board be liable for any action or inaction for which exculpation is provided under this Section 9.2. 9.3 Indemnification. To the fullest extent permitted by applicable Law, each Manager and officer will be entitled to indemnification from the Company for any loss, damage or claim incurred by such Manager or officer by reason of any act or omission performed or omitted by such Manager or officer if (a) either (i) such Manager or officer, at the time of such action or omission, determined in good faith that such Manager’s or officer’s course of conduct was in, or not opposed to, the best interests of the Company or (ii) in the case of omission by such Manager or officer, such Manager or officer did not intend such inaction to be harmful or opposed to the best interests of the Company and (b) the conduct of such Manager or officer did not constitute fraud, willful misconduct or knowing violation of applicable Law by such Manager or officer. In performing his, her or its duties, each Manager or officer shall be entitled to reasonably rely in good faith on the provisions of this Agreement and on information, opinions, reports or statements (including financial statements and information, opinions, reports or statements as to the value or amount of the assets, liabilities, profits or losses of the Company or any facts pertinent to the existence and amount of assets from which distributions to Members might properly be paid) of
42 the following other persons or groups: one or more Managers, officers or employees of the Company; any attorney, independent accountant, appraiser or other expert or professional employed or engaged by or on behalf of the Company or such Member, Manager or officer; or any other person who has been selected with reasonable care by or on behalf of the Company or such Member, Manager or officer; in each case as to matters which such relying person reasonably believes to be within such other person’s competence. 9.4 Expenses. To the fullest extent permitted by applicable Law, reasonable and documented out-of-pocket expenses (including reasonable attorneys’ fees, disbursements, fines and amounts paid in settlement) incurred by a Manager or officer in defending any claim, demand, action, suit or proceeding relating to or arising out of such Manager’s or officer’s performance of such Manager’s or officer’s duties on behalf of the Company or its Subsidiaries will, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of such Manager or officer to repay such amount if it is ultimately determined by a court of competent jurisdiction that such Manager or officer is not entitled to be indemnified as authorized in this Section 9.4. 9.5 Insurance. The Company may purchase and maintain Directors & Officers and General Liability insurance on its own behalf and on behalf of each Manager (and, if applicable, on behalf of each Subsidiary and the members of its governing body) and officer, whether or not the Company would have the power to indemnify such Manager or officer against such liability under this Article IX. 9.6 Contract Rights. The provisions of this Article IX are contract rights between the Company and each Manager and officer who serves as a Manager (or member of a governing body of a Subsidiary) or as an officer at any time while this Article IX and the relevant provisions of the Delaware Act or other applicable Law are in effect, and any repeal, amendment or modification of this Article IX or any such Law shall not affect any rights or obligations then existing with respect to any state of facts or proceeding then existing. The rights of a Manager or officer under this Article IX are in addition to, and not in limitation of, any other rights to exculpation or indemnification from the Company or any of its Subsidiaries under any other contract between a CAP Company and such Manager or such officer. 9.7 Severability. To the fullest extent permitted by applicable Law, if any portion of this Article IX is invalidated on any ground by any court of competent jurisdiction, then the Company will nevertheless indemnify each Manager and each officer as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative, including an action by or in the right of the Company or any of its Subsidiaries, to the fullest extent permitted by any applicable portion of this Article IX that has not been invalidated. Article X Transfers 10.1 Restrictions on Transfers of Units. No Holder may Transfer all or any portion of such Holder’s Units (or any interest therein) without the prior unanimous written consent of the
43 Members, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that, notwithstanding the foregoing, a Holder may Transfer all or any portion of such Holder’s Units (or any interest therein) without all Members’ consent in the following circumstances: (a) to a Permitted Transferee; (b) as part of a Company Sale in accordance with the requirements of this Agreement (including Section 10.4); (c) to the Company in accordance with the terms of this Agreement (including Section 10.5); (d) in the case of Class B Preferred Units held by a Blue Owl Investor or its Affiliates, to (i) an Affiliate of Blue Owl at any time without any restrictions and (ii) an Approved Buyer beginning on the fifth (5th) anniversary of the Effective Date pursuant to Section 10.3; (e) in the case of Units held by Air T or its Affiliates, to (i) an Affiliate of Air T at any time without any restrictions and (ii) an Approved Buyer beginning on the fifth (5th) anniversary of the Effective Date pursuant to Section 10.3; or (f) as otherwise specifically permitted in this Article X. In all cases where all Members’ consent is required and obtained pursuant to this Section 10.1, any such Transfer shall additionally be subject to the right of first refusal process set forth in Section 10.2. Any attempted Transfer or withdrawal in contravention of this Article X or any of the other provisions of this Agreement will be void ab initio and will not bind or be recognized by the Company, the Board or the Members. 10.2 Right of First Refusal on Transfers. Subject to Section 10.1, and following the receipt of all Members’ consent to a proposed Transfer pursuant to Section 10.1 (where such consent is required), in the event that a Member (each, a “Selling Holder”) receives a bona fide written offer from any Person (the “Offeror”) to purchase any Units held by such Selling Holder (a “Transaction Offer”), such Selling Holder may transfer such Units only pursuant to and in accordance with the following provisions of this Section 10.2: (a) The Selling Holder will promptly notify the Company and each other Member of the Selling Holder’s desire to accept the Transaction Offer (such notice, the “Offer Notice”). The Offer Notice will constitute an irrevocable offer by the Selling Holder to sell all but not less than all of the Units which are the subject of the Transaction Offer (the “Offered Units”) to the Company and, to the extent that the Company does not fully exercise its right to purchase, the other Members on the basis described in this Section 10.2, at a purchase price equal to the price contained in, and on the same terms and conditions of, the Transaction Offer. The Offer Notice will include a true and correct copy of the Transaction Offer (which will identify the Offeror and all relevant information in connection therewith). The price set forth in the Transaction Offer must be stated in consideration of cash or cash equivalents (otherwise no Transfer of the Selling Holder’s Units will be permitted under this Agreement (other than pursuant to one of the exceptions in Section 10.1)). (b) At any time within twenty (20) days after receipt by the Company and the other Members of the Offer Notice (the “Company Option Period”), the Company shall have the right to purchase all or any portion of the Offered Units and will give written notice of the exercise of such right (a “Company Acceptance Notice”) to the Selling Holder and the other Members during the Company Option Period. If the Company does not deliver a Company Acceptance Notice for all of the Offered Units within the Company Option Period, then at any time within ten (10) days after the end of the Company Option Period (the “Member Option Period”), each other Member will have the right to purchase any Offered Units that the Company has not elected to purchase and will give written notice of the exercise of such right (a “Member Acceptance Notice” and either of a Company Acceptance Notice or a Member Acceptance Notice, an “Acceptance Notice”)
44 to the Selling Holder within the Member Option Period, which Member Acceptance Notice will indicate the maximum number of Offered Units that such Member is willing to purchase, including the number of Offered Units it would purchase if one or more other Members do not elect to purchase their Pro Rata Share of such Offered Units. An Acceptance Notice will constitute a valid, legally binding and enforceable agreement for the sale and purchase of the Offered Units covered by such Acceptance Notice. (c) Upon the expiration of the Member Option Period, the number of Offered Units to be purchased by each electing Member (“Purchasing Member”) will be determined as follows: (i) first, there will be allocated to each Purchasing Member a number of Offered Units equal to such Purchasing Member’s Pro Rata Share and (ii) second, the balance, if any, not allocated under clause (i) above, will be allocated to those Purchasing Members who within the Member Option Period delivered an Acceptance Notice that set forth a number of Offered Units that exceeded their respective Pro Rata Shares, in each case on a pro rata basis in proportion to the number of Units owned by each such Purchasing Member up to the amount of such excess. “Pro Rata Share” means, with respect to any Purchasing Member as of any date of determination, a fraction, the numerator of which is the total number of Units owned by such Purchasing Member as of such date and the denominator of which is the total number of Units owned by all other Members as of such date. If any Purchasing Member fails to purchase its Pro Rata Share of Offered Units, such Purchasing Member will irrevocably forfeit its rights to purchase such Offered Units and the other Purchasing Members may elect to purchase such Offered Units on a pro rata basis. (d) The closing for the purchase of the Offered Units under this Section 10.2 will take place within sixty (60) days following the expiration of the Company Option Period. The failure of the Company or any other Member to deliver an Acceptance Notice within the relevant option period will constitute a waiver of, as applicable, the Company or such other Member’s rights under this Section 10.2; provided that the Company and each other Member may otherwise waive its rights under this Section 10.2 prior to the expiration of the relevant option period by giving written notice to the Selling Holder, with a copy to the Company in the case of a waiver by a Member. A Selling Holder will effect its sale of Offered Units to the Company or the Purchasing Members under this Section 10.2 by delivering to the Company or such Purchasing Members one or more instruments or certificates evidencing its ownership of the Offered Units. At the time of consummation of such sale, the Company or each Purchasing Member will remit directly to the Selling Holder its portion of the aggregate purchase price for the Offered Units, and the Company will reflect such Transfer on Annex A. (e) In the event that the Company and the other Members do not elect to exercise their rights to purchase all of the Offered Units under this Section 10.2, the Selling Holder may sell the remaining unpurchased balance of such Offered Units to the Offeror on the terms and conditions set forth in the Offer Notice, subject to the provisions of this Section 10.2. Promptly after such Transfer, the Selling Holder will notify the Company thereof and will furnish such evidence of the timely completion of the Transfer and of the terms thereof as may be reasonably requested by the Company. If the Selling Holder’s sale to the Offeror is not consummated in accordance with the terms of the Transaction Offer on or before one hundred and twenty (120) days after the delivery of the Offer Notice, the Transaction Offer will be deemed to lapse, and any Transfers of Units pursuant to such Transaction Offer will be in violation of the provisions of this Agreement unless
45 the Selling Holder sends a new Offer Notice and once again complies with the provisions of this Section 10.2 with respect to such Transaction Offer. 10.3 Special Blue Owl Unit Transfer Provisions. (a) Notwithstanding Section 10.1 and Section 10.2, beginning on the fifth (5th) anniversary of the Effective Date, (i) any Class B Preferred Member that is a Blue Owl Investor or an Affiliate thereof and (ii) Air T and any Affiliate of Air T (each, a “Selling Class B Member”) may Transfer its Units to an Approved Buyer, subject to the Company’s right of first refusal set forth in this Section 10.3. For the avoidance of doubt, Transfers to Affiliates of Blue Owl or Affiliates of Air T, as applicable, shall not be restricted at any time and shall not be subject to the provisions of this Article X. (b) Prior to any Transfer to an Approved Buyer, the Selling Class B Member shall deliver written notice (a “Class B Transfer Notice”) to the Company setting forth the identity of the proposed Approved Buyer, the number of Units proposed to be Transferred, the proposed purchase price, and the other material terms and conditions of such proposed Transfer. The Company shall have the right to purchase all (but not less than all) of the Units that are the subject of such Class B Transfer Notice, on the terms and conditions set forth in the Class B Transfer Notice, by delivering written notice of the exercise of such right (a “Class B ROFR Notice”) to the Selling Class B Member within ten (10) Business Days following the Company’s receipt of the Class B Transfer Notice (such period, the “Class B ROFR Period”). The Company’s exercise of such right shall be based on a preliminary review and subject to customary due diligence. If the Company does not deliver a Class B ROFR Notice within the Class B ROFR Period, the Selling Class B Member may consummate the Transfer to the proposed Approved Buyer on the terms set forth in the Class B Transfer Notice within one hundred twenty (120) days following the expiration of the Class B ROFR Period, after which time such Transfer right shall lapse and the Selling Class B Member must deliver a new Class B Transfer Notice to effect such Transfer. (c) Any proposed Transfer of Units by a Selling Class B Member to any Person that is not an Approved Buyer (and is not an Affiliate of Blue Owl or an Affiliate of Air T, as applicable) or Permitted Transferee shall require the prior written approval of the Majority-in-Interest (other than the Selling Class B Member and its Affiliates). 10.4 Approved Company Sale; Conversion to Corporation. (a) Approved Company Sale. (i) Subject to the unanimous consent of all Members approving a Company Sale (the “Approving Persons”), the Company shall provide notice thereof to each Holder, and such Company Sale shall then be conducted in accordance with the terms and conditions set forth in this Section 10.4. On the condition that each Holder will receive, pursuant to such Company Sale, the portion of the aggregate Company Sale consideration equal to the amount which such Member would receive with respect to such Member’s Units in a hypothetical distribution of such aggregate consideration upon dissolution pursuant to Section 11.2, each Holder shall: (A) take all necessary and desirable actions in connection with the consummation of such Company Sale, as determined and requested by written notice by the Approving Persons; (B) consent to such
46 Company Sale and raise no objections to the Company Sale or to the process pursuant to which it was arranged; (C) waive and refrain from exercising any applicable dissenters’ rights, appraisal rights or other similar rights; (D) subject to Section 10.4(a)(ii) execute and deliver all instruments and documents reasonably requested or directed by the Approving Persons to (1) provide the representations, warranties, indemnities, covenants, conditions, escrow agreements and other provisions and agreements associated with such Company Sale, and (2) effectuate the allocation and distribution of the aggregate consideration upon completion of such Company Sale; and (E) if such transaction is structured as a sale of Units, within five (5) Business Days following the receipt of such notice (or such longer or shorter period of time as the Approving Persons shall designate in such notice), cause all of the Units of such Holder to be sold to the designated purchaser on the terms and conditions set forth in such notice or amendment thereto. (ii) Notwithstanding anything to the contrary set forth herein, a Holder will not be required to comply with Section 10.4(a)(i) above in connection with any proposed Sale of the Company (the “Proposed Sale”), unless: (A) any representations and warranties to be made by such Holder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Units, including, but not limited to, representations and warranties that (i) the Holder holds all right, title and interest in and to the Units such Holder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Holder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Holder have been duly executed by the Holder and delivered to the acquirer and are enforceable (subject to customary limitations) against the Holder in accordance with their respective terms, and (iv) neither the execution and delivery of documents to be entered into by the Holder in connection with the transaction, nor the performance of the Holder’s obligations thereunder, will cause a breach or violation of the terms of any agreement to which the Holder is a party, or any law or judgment, order or decree of any court or governmental agency that applies to the Holder; (B) such Holder is not required to agree to any restrictive covenant in connection with the Proposed Sale (including any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Holder’s capacity as a Member of the Company; (C) such Holder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Holder may be required to agree to terminate the investment-related documents between or among such Holder, the Company or other Members of the Company; (D) the Holder is not liable for the breach of any representation, warranty or covenant made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an
47 escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any Member of any of identical representations, warranties and covenants provided by all Members); (E) liability shall be limited to such Holder’s applicable share (determined based on the respective proceeds payable to each Holder in connection with such Proposed Sale in accordance with the provisions of this Agreement) of a negotiated aggregate indemnification amount that applies equally to all Holders but that in no event exceeds the amount of consideration otherwise payable to such Holder in connection with such Proposed Sale, except with respect to claims related to fraud by such Holder, the liability for which need not be limited as to such Holder; (F) upon the consummation of the Proposed Sale (i) each Holder of each class of Units of the Company will receive the same form of consideration for their Units of such class as is received by other Holders in respect of their Units of such same class of Units, (ii) each Holder of Class B Preferred Units will receive the same amount of consideration per Class B Preferred Unit as is received by other Holders in respect of their Class B Preferred Units, (iii) each Holder of Class A Common Units will receive the same amount of consideration per Class A Common Unit as is received by other Holders in respect of their Class A Common Units, and (iv) unless waived pursuant to the terms of the this Agreement and as may be required by law, the aggregate consideration receivable by all Holders of Units shall be allocated among the Holders on the basis of the relative liquidation preferences to which the Holders are entitled in a Liquidation Event (assuming for this purpose that the Proposed Sale is a Liquidation Event) in accordance with Section 11.2 of this Agreement; provided, however, that, notwithstanding the foregoing provisions of this Section 10.4(a)(ii)(F), if the consideration to be paid in exchange for the Units held by a Holder pursuant to this Section 10.4(a)(ii)(F) includes any securities and due receipt thereof by any Holder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities, or (y) the provision to any Holder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Holder in lieu thereof, against surrender of the Units held by the Holder which would have otherwise been sold by such Holder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Holder would otherwise receive as of the date of the issuance of such securities in exchange for the Units held by the Holder; (G) subject to Section 10.4(a)(ii)(F) above, requiring the same form of consideration to be available to the Holders of any single class of Units, if any Holders are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all Holders will be given the same option; provided, however, that nothing in this Section 10.4(a)(ii)(G) shall entitle any Holder to receive any form of consideration that such Holder would be ineligible
48 to receive as a result of such Holder’s failure to satisfy any condition, requirement or limitation that is generally applicable to the Company’s Members. (b) Conversion to Corporation. Subject to any required consent or approval pursuant to Section 3.3 hereof, the Board may reasonably determine that it is in the best interest of all Members to convert the Company from a limited liability company to a corporation (whether by conversion, merger or otherwise). At such time, the Capital Accounts of the Members shall be adjusted as if the Company were liquidated. As a condition to any such conversion, the resulting corporation, to the fullest extent permitted by law, shall (i) issue equity securities in classes or series with substantially the same rights and privileges of the respective class of Units set forth herein and (ii) enter into an agreement with the parties hereto granting them rights (and imposing obligations) that are the same, other than de minimis differences, as those set forth in this Agreement. If the Board reasonably determines that it would be in the best interest of all Members that such a conversion should be structured to qualify under Section 351 of the Code, then each of the Members shall use commercially reasonable efforts to cause the conversion to so qualify. 10.5 Redemption Rights. (a) Mandatory Redemption. (i) Unless all outstanding Class B Preferred Units have been previously converted into Class A Common Units, each Holder of Class B Preferred Units shall have the right (but not the obligation), exercisable independently and without the consent or approval of any other Holder of Class B Preferred Units or of the Holders of Class B Preferred Units as a class, to require the Company to redeem all or any portion of the Class B Preferred Units held by such Holder on or at any time following the fifth (5th) anniversary of the Effective Date (the “Mandatory Redemption Date”) at the Class B Preferred Redemption Price. Each Holder of Class B Preferred Units that elects to have all or any portion of its Class B Preferred Units redeemed shall deliver written notice of such election (each, a “Class B Preferred Redemption Election Notice”) to the Company on or at any time following the Mandatory Redemption Date, specifying the number of Class B Preferred Units to be redeemed. Within twenty (20) days of receipt of a Class B Preferred Redemption Election Notice, the Company shall deliver to such electing Holder a statement setting forth the estimated Class B Preferred Redemption Price. Such electing Holder shall have the right, exercisable by written notice to the Company within ten (10) days following receipt of the Company’s statement, to withdraw its Class B Preferred Redemption Election Notice, in which case such Holder’s election shall be void and the Company shall have no obligation to redeem such Holder’s Class B Preferred Units pursuant to such withdrawn notice. If no withdrawal notice is timely delivered, the Company shall be obligated to redeem each Class B Preferred Unit for which a valid Class B Preferred Redemption Election Notice has been delivered within thirty (30) days following delivery of the Company’s statement (or, if applicable, as deferred pursuant to Section 10.5(a)(iv)) in accordance with Section 10.5(a)(ii). (ii) The redemption price for each Class B Preferred Unit (the “Class B Preferred Redemption Price”) will be equal to the Applicable Liquidation Preference applicable to such Class B Preferred Unit as of the date of redemption, plus any accrued and unpaid Accruing Distributions on such Class B Preferred Unit as of the date of redemption. The Class B Preferred Redemption Price will be paid within thirty (30) days following Company’s statement pursuant to
49 Section 10.5(a)(i) (subject to the Holder’s right to withdraw such election as set forth therein). Any portion of the Class B Preferred Redemption Price not paid when due shall remain outstanding and shall accrue interest at a rate equal to 10% per annum, compounding annually, until the Class B Preferred Redemption Price (together with all accrued and unpaid interest thereon) is paid in full. (iii) Notwithstanding anything to the contrary contained in this Section 10.5(a), the Company shall have no obligation to redeem the Units of the Class B Preferred Members pursuant to this Section 10.5(a) so long as such redemption would cause the Company to (A) breach a loan document that has been approved by the Board and the Class B Preferred Majority in accordance with this Agreement after the Effective Date, (B) violate any consent or veto right granted by this Agreement to the Class B Preferred Members in their individual or joint capacities, or (C) violate applicable Law. (iv) Notwithstanding anything to the contrary in this Section 10.5(a), the Company may, upon determination by the Board, by providing written notice to the electing Class B Preferred Member, elect to defer the mandatory redemption of such Class B Preferred Units for up to two (2) years beyond the date on which such redemption would otherwise be required (such election, a “Redemption Deferral Election”); provided that the Applicable Liquidation Multiple shall increase at a rate of 0.1x for each year (or portion thereof) that redemption is so deferred. For the avoidance of doubt, a Redemption Deferral Election shall not trigger the accrual of interest pursuant to the last sentence of Section 10.5(a)(ii). (b) Company Call Option. (i) From and after the fourth (4th) anniversary of the Effective Date, if the trailing three (3)-year cumulative equity investment by the Blue Owl Investors and the Blue Owl Affiliated Funds in the Company’s Asset Production Transactions is less than $1,200,000,000, as determined by the Board in good faith based on the books and records of the Company, then the Company shall have the option (the “Call Option”) to purchase all of the Class B Preferred Units then held by the Blue Owl Investors and their Affiliates at the Call Option Price (as defined below), by delivering written notice (a “Call Option Notice”) to each Blue Owl Investor holding Class B Preferred Units. (ii) The purchase price for each Class B Preferred Unit purchased pursuant to this Section 10.5(b) (the “Call Option Price”) shall be equal to the greater of (x) the Applicable Liquidation Preference applicable to such Class B Preferred Unit as of the date of the Call Option Notice and (y) the fair market value of such Class B Preferred Unit on an as-converted basis, determined based on the average of two (2) independent valuations conducted by nationally recognized valuation firms selected in accordance with the following procedures: (A) Within ten (10) Business Days following delivery of a Call Option Notice, the Chief Financial Officer shall, acting reasonably and in good faith, propose in writing a list of three (3) nationally recognized independent valuation firms experienced in valuing private equity interests and comparable businesses in the Company’s industry. Within ten (10) Business Days following receipt of such list, the Blue Owl Investors shall select one (1) firm from such list and shall, acting
50 reasonably and in good faith, propose an additional list of three (3) nationally recognized independent valuation firms meeting the same criteria. The Chief Financial Officer shall then select one (1) firm from the Blue Owl Investors’ list within ten (10) Business Days of receipt thereof. The two (2) firms so selected shall serve as the independent valuation firms for purposes of determining the Call Option Price. If either party fails to propose its list or make its selection within the applicable time period, the other party may select both valuation firms from its own proposed list. (B) The Company and the Blue Owl Investors shall cause each valuation firm to determine the fair market value of the Class B Preferred Units on an as- converted basis as of the date of the Call Option Notice, assuming a sale of 100% of the equity of the Company to a willing buyer in an arm’s-length transaction, and take into account the then-applicable Class B Preferred Unit Conversion Price (after giving effect to any Earn-Out Adjustment, including any accelerated Earn-Out Adjustment pursuant to Section 5.4(m)(vi), if applicable). The Company and the Blue Owl Investors shall cause each valuation firm to deliver its written valuation report to the Chief Financial Officer and the Blue Owl Investors within forty-five (45) days following its engagement. (C) The Call Option Price shall be based on the arithmetic average of the two (2) independent valuations; provided, however, that if the higher valuation exceeds the lower valuation by more than twenty percent (20%) of the lower valuation, the two valuation firms shall jointly select a third nationally recognized independent valuation firm meeting the criteria set forth above, and such third firm shall conduct an independent valuation within thirty (30) days of its selection. In such event, the Call Option Price shall be based on the arithmetic average of the two (2) valuations that are closest in value. (D) The Company and the Blue Owl Investors shall provide each valuation firm with access to such books, records, financial statements, projections, and other information of the Company and its Subsidiaries as such firm reasonably requests to perform its valuation, and the Company shall, and shall cause its officers, employees, and advisors to, cooperate fully with each valuation firm and provide such information on a timely basis. The Company and the Blue Owl Investors shall cause each valuation firm to execute a customary confidentiality agreement prior to receiving any confidential information. (E) The fees and expenses of the valuation firms shall be borne equally by the Company, on the one hand, and the Blue Owl Investors, on the other hand. (iii) The closing of any purchase pursuant to this Section shall occur within sixty (60) days following the later of (x) the delivery of the Call Option Notice and (y) the completion of the independent valuations contemplated by clause (ii) above.
51 10.6 Transfers Generally. (a) Every Transfer by a Holder will be subject to all of the terms, conditions, restrictions and obligations set forth in this Agreement, including the requirement to obtain prior written consent of all Members pursuant to Section 10.1, as applicable. In addition, each Transfer will be evidenced by a written agreement that is executed by the Holder making the Transfer and the Transferee(s). To the extent that the consent of any of the Members is required pursuant to Section 10.1 to effectuate a Transfer, each Holder will give the other Members and the Board at least five (5) Business Days’ advance written notice of any proposed Transfer of Units, together with a written request for such Members’ consent. (b) With respect to any Holder that is an entity, any Transfer of the equity interests in such Holder shall be deemed a Transfer of Units for purposes of this Article X, and shall be subject to the provisions of this Article X as if such Holder had Transferred its Units. For purposes hereof, the number of Units deemed Transferred in any such indirect Transfer will be equal to the product of (i) the number of Units held by such Holder and (ii) the percentage of equity interests in such Holder that are Transferred to the Transferee. The applicable price per Unit of any such Transfer will be reasonably determined promptly in good faith by the Chief Financial Officer. Notwithstanding anything to the contrary in this Section 10.6(b), (i) any transaction in the shares of Blue Owl Capital Inc. shall be deemed not to be a Transfer of Units and (ii) any Transfer of equity interests in (including by means of an issuance of additional equity interests of) any Blue Owl Affiliated Fund or any Person that holds a direct or indirect interest in a Blue Owl Affiliated Fund shall not constitute a Transfer for purposes of this Agreement so long as such Blue Owl Affiliated Fund remains at all times (both prior to any such Transfer and subsequent to any such Transfer) sponsored, managed or controlled by Blue Owl Capital Inc. or its affiliated investment managers, as applicable, and for so long as any such Transfer is not undertaken with the purpose of avoiding the restrictions in this Agreement. (c) No Transfer of any Units shall be effective, and any purported Transfer shall be void ab initio, if such Transfer would (i) cause the Company to be treated as a “publicly traded partnership” taxable as a corporation under Section 7704 of the Code and the Treasury Regulations promulgated thereunder, (ii) cause the Company to be treated as an association taxable as a corporation for U.S. federal income tax purposes, or (iii) result in the Company at any time during its taxable year having more than one hundred (100) partners within the meaning of Treasury Regulation Section 1.7704-1(h)(1)(ii) (taking into account Treasury Regulation Section 1.7704- 1(h)(3)). The Members may condition their consent to any proposed Transfer upon receipt of a representation from the Transferee, or at each Member’s election an opinion of counsel reasonably satisfactory to such Member (the cost of which shall be borne by the Transferring Holder), to the effect that such Transfer will not result in any of the foregoing. Any Member may waive the requirement for the issuance of any such opinion to itself in its sole discretion. (d) No Transfer of any Units shall be effective, and the Company shall have no obligation to recognize or record any such Transfer, unless and until the following withholding tax conditions have been satisfied with respect to such Transfer: (i) the Transferring Holder shall have delivered to the Company and the Transferee a duly executed certificate, in form and substance reasonably acceptable to the Board, certifying either (A) that the Transferring Holder is not a foreign person for purposes of Sections 1445 and 1446(f) of the Code (a “Non-Foreign
52 Certificate”), (B) that the Transfer will not result in any realized gain (including ordinary income arising from the application of Section 751 of the Code) to the Transferring Holder, or (C) such other certification as may be available under Treasury Regulation Section 1.1446(f)-2(b) or any successor provision to establish that withholding under Section 1446(f) of the Code is not required; (ii) the Transferee shall have delivered to the Company, no later than ten (10) days following the Transfer, a certification to the Company in accordance with Treasury Regulation Section 1.1446(f)-2(d)(2) (or any successor provision) confirming the extent to which it has satisfied (or is exempt from) its withholding obligations under Section 1446(f) of the Code with respect to such Transfer; and (iii) to the extent withholding is required under Section 1446(f) of the Code and the Transferee has withheld and remitted the applicable amount to the IRS, the Transferee shall have provided evidence of such remittance reasonably satisfactory to the Chief Financial Officer. The Chief Financial Officer may, in its reasonable discretion, waive any of the foregoing conditions if it determines that withholding is not required under applicable law. The Transferring Holder shall indemnify and hold harmless the Company, the Chief Financial Officer, the Board, and each other Holder from and against any taxes (including penalties, interest and additions to tax) imposed on or payable by the Company or any such Person as a result of such Transferring Holder’s failure to satisfy its obligations under this Section 10.6(d) or as a result of any inaccuracy in any certificate delivered pursuant hereto. (e) Certain of the Members or their direct or indirect owners may, from time to time, include Blocker Corporations. In connection with any Transfer of Units pursuant to Section 10.6 of this Agreement, the equityholders of the Blocker Corporations shall be permitted to transfer all of their equity in the Blocker Corporations in lieu of the Blocker Corporations transferring their Units in the Company; provided, however, that (i) any such Blocker Corporation shall have been in good standing at all times, (ii) no such Blocker Corporation shall have ever engaged in any business activities, conducted any operations, or owned any assets except for its Units in the Company, cash, and its organizational records and rights to exist, (iii) no such Blocker Corporation shall have ever had any employees or other service providers, (iv) no such Blocker Corporation shall have incurred or have any liabilities or obligations (other than tax liabilities incurred in connection with its ownership interest in the Company and corporate and administrative expenses incurred in the ordinary course of business, all of which have been paid or contested in good faith), (v) the equity of each such Blocker Corporation shall be free and clear of any liens or encumbrances, and (vi) the equityholders of each such Blocker Corporation shall make customary representations, warranties, and indemnifications regarding such Blocker Corporation (including with respect to clauses (i) through (v) hereof) and shall be solely responsible for any breach or inaccuracy in such representations and warranties. Notwithstanding the manner in which a transferee would allocate consideration among the equity of any Blocker Corporations transferred in such Transfer and direct interests in the Company transferred in such Transfer, if the transferee does not agree to pay the same consideration for the equity of a Blocker Corporation as for direct Units in the Company, then the equityholders of such Blocker Corporation shall bear the economic burden of any reduction in purchase price arising from such transfer and the consideration to be received by the remaining Members shall be the same as if such Blocker Corporation had transferred its Units directly. 10.7 Assignments. The provisions of this Agreement will be binding upon and inure to the benefit of the Members hereto and their respective permitted successors and permitted assigns; provided, however, that no Member may assign any of its rights or obligations hereunder without
53 the consent of the non-assigning Members, as the case may be, unless such assignment is in connection with a Transfer explicitly permitted by this Agreement, and prior to such assignment, such assignee complies with the requirements of Section 10.8. 10.8 Substitute Members. (a) In the event any Member Transfers all or any portion of its Units in compliance with the other provisions of this Article X , the Transferee thereof will have the right to become a substitute Member, but only upon satisfaction of the following: (i) execution of such instruments as the Board reasonably deems necessary to effect such substitution; and (ii) acceptance and agreement in writing by the Transferee of the Member’s Units to be bound by all of the terms and provisions of this Agreement and assumption of all obligations under this Agreement (including breaches hereof) applicable to the Member making the Transfer, whether by an amendment to this Agreement or pursuant to a customary joinder agreement, which will include the mailing and e-mail addresses of the Transferee for purposes of notice under this Agreement. Upon the execution of the instrument of assumption by such Transferee, such Transferee will enjoy all of the rights and will be subject to all of the restrictions and obligations of the Member making the Transfer. (b) The Transferee of any Units Transferred pursuant to this Article X that is admitted to the Company as a substitute Member will succeed to the rights and liabilities of the Member making the Transfer and, after the effective date of such admission, the Capital Account of the Member making the Transfer will become the Capital Account of the Transferee. (c) Upon the admission of a substitute Member, Annex A will be amended to reflect the removal of the original Member and the addition of the substitute Member. 10.9 Release of Liability. In the event any Holder Transfers all of such Holder’s Units in compliance with the provisions of this Agreement, without retaining any interest therein, directly or indirectly, then the Holder making such Transfer will, to the fullest extent permitted by applicable Law, be relieved of any further liability arising hereunder for events occurring from and after the date of such Transfer (other than as may be agreed by such Holder in writing); provided, however, that no such Transfer will relieve any Holder of its confidentiality obligations pursuant to Section 8.6 hereof and such obligations will survive any termination of such Holder’s membership or interests in the Company. 10.10 Securities Laws Restrictions. Each Member understands that in addition to the restrictions on Transfer contained in this Agreement, such Member must bear the economic risks of such Member’s investment for an indefinite period because the Units have not been registered under the Securities Act and, therefore, may not be sold or otherwise transferred unless they are registered under the Securities Act or an exemption from such registration is available. Each Member agrees with all other Members that such Member will not Transfer its Units unless such Units have been so registered or in the opinion of counsel for the Company, or of other counsel reasonably satisfactory to the Company, such an exemption is available.
54 Article XI Dissolution, Liquidation and Termination 11.1 Dissolving Events. The Company will be dissolved and its affairs wound up in the manner hereinafter provided upon the happening of any of the following events (each, a “Liquidation Event”): (a) A Class A Common Majority, a Class B Preferred Majority and the Board vote or agree in writing to voluntarily liquidate, dissolve or windup the Company pursuant to the required votes set forth in Sections 3.3 and 4.4; (b) an involuntary liquidation, dissolution or winding up of the Company; (c) a Transfer of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, in one transaction or a series of related transactions, after obtaining any required consents or approvals pursuant to Sections 3.3 and 4.4 hereof; or (d) the occurrence of any event which, under applicable Law, causes the dissolution of the Company. Notwithstanding the foregoing, the death, retirement, resignation, expulsion, bankruptcy or dissolution of any Member or the occurrence of any other event that terminates the continued membership of any Member under the Delaware Act will not, in and of itself, cause the dissolution of the Company. In such event, the remaining Member(s) will continue the business of the Company without dissolution. 11.2 Dissolution and Winding-Up. Upon the dissolution of the Company, the assets of the Company will be liquidated or distributed under the direction of, and to the extent determined by, the Board, and the business of the Company will be wound up. Upon the consummation of a Liquidation Event or a Company Sale, the Company’s assets will be distributed in the following manner and order: (a) First, to creditors in satisfaction of Indebtedness, whether by payment or the making of reasonable provision for payment, and the expenses of liquidation, whether by payment or the making of reasonable provision for payment, including the establishment of reasonable reserves (which may be funded by a liquidating trust) determined by the Board or the liquidating trustee, as the case may be, to be reasonably necessary for the payment of the Company’s expenses, liabilities and other obligations (whether fixed, conditional, unmatured or contingent); (b) Second, to each Holder of Class B Preferred Units, for each Class B Preferred Unit outstanding, an amount per Class B Preferred Unit equal to the greater of (x) the Applicable Liquidation Preference (as defined below) per Class B Preferred Unit and (y) the amount such Holder would have received with respect to such Class B Preferred Unit had all Class B Preferred Units been converted into Class A Common Units immediately prior to such Liquidation Event or Company Sale (after giving effect to any Earn-Out Adjustment, including any accelerated Earn- Out Adjustment pursuant to Section 5.4(m)(iv), and any adjustments to the Conversion Balance pursuant to Sections 5.4 and 7.2, in each case if applicable) and the aggregate proceeds been distributed in accordance with Section 11.2(a) (for the avoidance of doubt, treating the Class B
55 Preferred Units on an as-if converted to Class A Common Unit basis for purposes of such calculation) (the “Class B Preferred Liquidation Election”); provided that in the event the Company’s assets being distributed are insufficient to make payment in full to all Holders of Class B Preferred Units, then such assets shall be distributed among the Holders of Class B Preferred Units ratably in proportion to the full amounts to which they would otherwise be respectively entitled; and (c) Third, to the Holders of Class A Common Units and the Holders of PI Units, on a pro rata basis; provided that no payment or distribution in any of the foregoing categories will be made until all payments in each prior category shall have been made in full, and provided further that, if the payments due to be made in any of the foregoing categories exceed the remaining assets available for such purpose, such payments will be made to the Persons entitled to receive the same pro rata in accordance with the respective amounts due to them. “Applicable Liquidation Preference” shall mean, with respect to each Class B Preferred Unit, an amount equal to (A) the product of (x) the Applicable Liquidation Multiple and (y) the Class B Preferred Unit Original Issue Price, minus (B) the aggregate amount of all distributions, paid or accrued on such Class B Preferred Unit (such amount, the “Distribution Credit”) as of the point of measurement. Notwithstanding the foregoing, the Distribution Credit shall never cause the Applicable Liquidation Preference to be less than the Class B Original Issue Price and, to the extent that the Distribution Credit equals or exceeds the product of (x) the Applicable Liquidation Multiple and (y) the Class B Preferred Unit Original Issue Price, each as of the point of measurement, the Applicable Liquidation Preference shall be deemed satisfied (such occurrence, the “Applicable Liquidation Preference Satisfaction”). The “Applicable Liquidation Multiple” shall initially be 1.5x; provided, however, that if the Company elects to defer the mandatory redemption of the Class B Preferred Units pursuant to Section 10.5(a)(iv) the Applicable Liquidation Multiple shall increase by 0.1x for each year (or portion thereof) that such mandatory redemption is deferred in accordance with Section 10.5(a)(iv). Notwithstanding the foregoing, no Holder of a PI Unit will receive any distributions pursuant to this Section 11.2 with respect to such PI Unit until such time as the total distributions pursuant to Section 11.2 with respect to other applicable Units shall equal the Distribution Hurdle established for such PI Unit. 11.3 Allocation of Escrow. In the event of a Liquidation Event or Company Sale, if any portion of the consideration payable to the Members is payable only upon satisfaction of contingencies (the “Additional Consideration”), the definitive agreement shall provide that (a) the portion of such consideration that is not Additional Consideration (such portion, the “Initial Consideration”) shall be allocated among the Members in accordance with Section 11.2 as if the Initial Consideration were the only consideration payable in connection with such Liquidation Event or Company Sale; and (b) any Additional Consideration which becomes payable to the Members upon satisfaction of such contingencies shall be allocated among the Members in accordance with Section 11.2 after taking into account the previous payment of the Initial Consideration as part of the same transaction. For the purposes of this Section 11.3, consideration placed into escrow or retained as a holdback to be available for satisfaction of indemnification or similar obligations in connection with such Liquidation Event or Company Sale shall be deemed to be Additional Consideration.
56 11.4 Distributions in Cash or in Kind. Upon the dissolution of the Company, the Board will use commercially reasonable efforts to liquidate all of the Company’s assets in an orderly manner and apply the proceeds of such liquidation as set forth in Section 11.2; provided that the Board will in good faith attempt to liquidate sufficient Company assets to satisfy in cash (or make reasonable provision for) the debts and liabilities referred to in Section 11.2. The value of any property, rights, securities or other non-cash assets distributed upon dissolution of the Company shall be determined in good faith by the Board. 11.5 Termination. The Company will terminate when the winding up of the Company’s affairs has been completed, all of the assets of the Company have been distributed and the Certificate has been canceled, all in accordance with the Delaware Act. 11.6 Claims of the Members. The Members and former Members will look solely to the Company’s assets for the return of their Capital Contributions, and if the assets of the Company remaining after payment of or due provision for all debts, liabilities and obligations of the Company are insufficient to return such Capital Contributions, the Members and former Members will have no recourse against the Company or any other Member. Article XII Miscellaneous 12.1 Notices. Any notice or other communication required or permitted to be given hereunder will be in writing, and will be delivered (i) personally, (ii) by electronic delivery via e- mail, (iii) by telecopy (with a hard copy and a transmission confirmation sent by a recognized overnight national carrier service (such as FedEx) for next Business Day delivery), (iv) by a recognized overnight national courier service (such as FedEx) for next Business Day delivery, or (v) by certified or registered mail, return receipt requested, first-class postage prepaid to the parties at the addresses set forth below (or to such other addresses as the parties may specify by due notice to the other): If to the Company, to: Crestone Air Partners, LLC 4500 Cherry Creek Drive South, Suite 200 Denver, Colorado 80246 Attention: Kevin Milligan, Chief Executive Officer and Jason Greenberg, Chief Legal Officer and General Counsel E-mail: [***] If to any Class A Common Member or Class A Common Holder, to the address of such Class A Common Member or Class A Common Holder set forth on the signature pages hereto (or in the joinder agreement for such Class A Common Member or Class A Common Holder).
57 If to any Class B Preferred Member or Class B Preferred Holder, to the address of such Class B Preferred Member or Class B Preferred Holder as set forth on the signature page hereto (or in the joinder agreement for such Class B Preferred Member or Class B Preferred Holder). Any notice delivered to a party’s designated address using any of the methods described above will be deemed to have been received by such party at the time the notice is delivered to such party’s designated address if between 9:00 a.m. and 5:00 p.m. local time during a Business Day or, if outside the aforementioned hours, the next subsequent Business Day. Confirmation by a courier delivering any notice given pursuant to this Section 12.1 will be conclusive evidence of receipt of such notice. Each party hereto hereby agrees that it will not refuse or reject delivery of any notice given hereunder, that it will acknowledge, in writing, receipt of the same upon request by any other party and that any notice rejected or refused by it will be deemed for all purposes of this Agreement to have been received by the rejecting party on the date so refused or rejected, as conclusively established by the records of the courier service (if applicable). 12.2 Joint Participation. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. 12.3 Entire Agreement. This Agreement constitutes the entire agreement among the Members with respect to the subject matter hereof, and supersedes any prior agreement or understanding among them with respect to the matters referred to herein. There are no representations, warranties, promises, inducements, covenants or undertakings relating to the Units, other than those expressly set forth in any subscription agreement or other Unit purchase agreement entered into by the Company and any Member. 12.4 Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument. Delivery of a copy of this Agreement bearing an original signature by facsimile transmission or by electronic mail in “portable document format” form will have the same effect as physical delivery of the paper document bearing the original signature. 12.5 Governing Law; Attorneys’ Fees. This Agreement and the rights and obligations of the Members hereunder and the Persons subject hereto will be governed by, and construed and interpreted in accordance with, the laws of the State of Delaware, without giving effect to the choice of law principles thereof. In the event that any dispute among the parties to this Agreement should result in litigation, the prevailing party in such dispute will be entitled to recover from the losing party all fees, costs and expenses of enforcing any right of such prevailing party under or with respect to this Agreement and the transactions contemplated hereby, including such reasonable fees and expenses of attorneys and accountants, which will include all fees, costs and expenses of appeals.
58 12.6 Waivers. Waiver by any Member hereto of any breach or default by any other Member of any of the terms of this Agreement will not operate as a waiver of any other breach or default, whether similar to or different from the breach or default waived. No waiver of any provision of this Agreement will be implied from any course of dealing between the Members hereto or from any failure by any Member to assert its or his or her rights hereunder on any occasion or series of occasions. 12.7 Severability. The invalidity or unenforceability of any provision of this Agreement in any jurisdiction will not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of this Agreement, including that provision, in any other jurisdiction. Any provision of this Agreement held illegal, invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable. To the extent legally permissible, any illegal, invalid or unenforceable portion of any provision of this Agreement will be replaced by a valid provision that will implement the purpose of the illegal, invalid or unenforceable provision. 12.8 Further Actions. Each Member will execute and deliver such other certificates, agreements and documents, and take such other actions, as may reasonably be requested by the Company in connection with the continuation of the Company and the achievement of its purposes, including (a) any documents that the Company deems necessary or appropriate to continue the Company as a limited liability company in all jurisdictions in which the Company conducts or plans to conduct business and (b) all such agreements, certificates, tax statements and other documents as may be required to be filed in respect of the Company. 12.9 Defaults; No Circumvention of Agreement. A default by any party to this Agreement in such party’s compliance with any of the material conditions or covenants hereof or performance of any of the obligations of such party hereunder will not constitute a default by any other party. No Member or any of its Permitted Transferees may do indirectly, through the sale of capital stock of or other equity interest in its or their Subsidiaries or otherwise, that which is not permitted by this Agreement. 12.10 Amendments. Subject to Sections 3.3 and 4.4, this Agreement may not be amended (including by way of merger), modified or supplemented except by a written instrument signed by a Majority-in-Interest. The Company will notify all Members after any such amendment, modification or supplement, as permitted herein, has taken effect. 12.11 Successors and Assigns. Except as herein otherwise provided to the contrary, this Agreement will be binding upon and inure to the benefit of the parties hereto, and, subject to the provisions of Article X hereof and all applicable Laws, their successors and permitted assigns. 12.12 No Third Party Beneficiaries. Except as otherwise expressly provided herein, this Agreement is not intended to confer upon any Person, except for the parties hereto, any rights or remedies hereunder. 12.13 Injunctive Relief. The Units cannot readily be purchased or sold in the open market, and for that reason, among others, the Company and the Members will be irreparably damaged in the event this Agreement is not specifically enforced. Each of the Members therefore agrees that,
59 in the event of a breach of any provision of this Agreement, the aggrieved party may elect to institute and prosecute proceedings in a Specified Court to enforce specific performance or to enjoin the continuing breach of this Agreement. Such remedies will, however, be cumulative and not exclusive, and will be in addition to any other remedy which the Company or any Member may have. 12.14 Jurisdiction; Consent to Service of Process. (a) Each party hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the courts of the State of Delaware, and federal courts located in the State of Delaware, if a basis for federal jurisdiction exists (as applicable, a “Specified Court”), and any appellate court from any such court, in any suit, action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment resulting from any such suit, action or proceeding, and each party hereby irrevocably and unconditionally agrees that all claims in respect of any such suit, action or proceeding may be heard and determined in the Specified Court. (b) It will be a condition precedent to each party’s right to bring any such suit, action or proceeding that such suit, action or proceeding, in the first instance, be brought in the Specified Court (unless such suit, action or proceeding is brought solely to obtain discovery or to enforce a judgment), and if each such court refuses to accept jurisdiction with respect thereto, such suit, action or proceeding may be brought in any other court with jurisdiction; provided that the foregoing will not apply to any suit, action or proceeding by a party seeking indemnification or contribution pursuant to this Agreement or otherwise in respect of a suit, action or proceeding against such party by a third party if such suit, action or proceeding by such party seeking indemnification or contribution is brought in the same court as the suit, action or proceeding against such party. (c) No party may move to (i) transfer any such suit, action or proceeding from the Specified Court to another jurisdiction, (ii) consolidate any such suit, action or proceeding brought in the Specified Court with a suit, action or proceeding in another jurisdiction, or (iii) dismiss any such suit, action or proceeding brought in the Specified Court for the purpose of bringing the same in another jurisdiction. (d) Each party hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, (i) any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in the Specified Court, (ii) the defense of an inconvenient forum to the maintenance of such suit, action or proceeding in any such court, and (iii) the right to object, with respect to such suit, action or proceeding, that such court does not have jurisdiction over such party. Each party irrevocably consents to service of process made in accordance with Section 12.1 above. 12.15 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM, WHETHER IN CONTRACT OR TORT, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
60 Article XIII Defined Terms 13.1 Certain Definitions. For purposes of this Agreement, the following terms will have the meaning specified in this Section 13.1: (a) “Affiliate” means, with respect to any Person, any other Person, which directly or indirectly controls, is controlled by or is under common control with such Person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, contract or otherwise. (b) “Aircraft” means, collectively or individually, as the context may require, any aircraft, including the Airframe, the Engines and all appliances, parts, accessories, instruments, navigational and communications equipment, furnishings, modules, components and other items of equipment installed therein, furnished therewith or appurtenant thereto and all documentation and technical records, reports and other written materials related to any of the foregoing. (c) “Aircraft Assets” means each Aircraft, each Airframe, each Engine and any related lease interests and any part or component of any such Aircraft, Airframe or Engine. (d) “Airframe” means, at any time, an airframe constituting part of an Aircraft. (e) “Approved Buyer” means a creditworthy third party, as determined by the Board in good faith, that (i) is not a direct or indirect competitor (or an Affiliate of a direct or indirect competitor) of the Company, Air T or any of their respective Affiliates, and (ii) is otherwise acceptable to all Members (other than the Selling Class B Member and its Affiliates). (f) “Asset Production Transaction” means any transaction or series of related transactions in which the Company or any of its Subsidiaries or Affiliates, directly or indirectly, identified, offers, originates or otherwise facilitates the acquisition of, or financing or investment in, one or more Aircraft Assets identified in a Pipeline Report, including portfolio purchases, sale- leaseback transactions, forward order commitments, and any other acquisition or investment in Aircraft Assets in the ordinary course of the Business. (g) “Blocker Corporation” means an entity that is taxable as a corporation and through which a Member owns, directly or indirectly, all or a portion of its Units in the Company. (h) “Blue Owl Affiliated Fund” shall have the meaning ascribed to it in the Side Letter. (i) “Blue Owl Investors” means Blue Owl and its Affiliates. (j) “Business” means the business of providing asset management services, financing and investment opportunities with respect to the ownership, management, marketing, operation, leasing and disposition of Aircraft Assets and other related services and natural extensions thereof. (k) “Business Day” means any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of Delaware, or is a day on which banking institutions
61 located in the State of Delaware are authorized or required by Law or other governmental action to close. (l) “CAP Company” means each of the Company and its current and future Subsidiaries. (m) “CAP MIP LLC Agreement” means the Limited Liability Company Agreement of CAP MIP, dated of even date herewith and as amended from time to time. (n) “Capital Contribution” means any contribution of cash, property or services to the Company or the obligation to contribute cash, property or services to the Company made by or on behalf of a Member, initially in the amounts set forth on Annex A, increased by any subsequent contributions as approved by the Board. (o) “Certificate” means the Certificate of Formation of the Company and any and all amendments thereto and restatements thereof filed on behalf of the Company with the office of the Secretary of State of the State of Delaware pursuant to the Delaware Act. (p) “Class A Common Holder” means any Person holding Class A Common Units, in their capacity as a Holder of such Class A Common Units. (q) “Class A Common Majority” means the Member or Members, as of any given record date or other applicable time, holding a majority of the outstanding Class A Common Units as of such date. For the purpose of determining the Class A Common Majority, the PI Units will be voting Units, such that each PI Unit will constitute one Class A Common Unit for voting purposes. (r) “Class A Common Member” means a Member holding Class A Common Units as provided on Annex A to this Agreement. (s) “Class A Common Unit” means a Class A Common Unit of the Company, having the rights and privileges set forth herein. (t) “Class B Preferred Holder” means any Person holding Class B Preferred Units, in their capacity as a Holder of such Class B Preferred Units. (u) “Class B Preferred Majority” means the Member or Members, as of any given record date or other applicable time, holding a majority of the outstanding Class B Preferred Units as of such date. (v) “Class B Preferred Member” means Blue Owl, Air T or another Member holding Class B Preferred Units, as provided on Annex A to this Agreement. (w) “Class B Preferred Unit” means a Class B Preferred Unit of the Company, having the rights, preferences and privileges set forth herein. (x) “Class B Preferred Unit Original Issue Price” means $97.60.
62 (y) “Code” means the Internal Revenue Code of 1986, as amended from time to time and the rules and regulations promulgated thereunder. (z) “Company Property” means such tangible and intangible assets and property and investments of every kind and nature that from time to time the Company acquires or purchases. (aa) “Confidential Information” means all intellectual property, documents, financial statements, records, business plans, reports and other information of whatever kind or nature that has value to the Company or any of its Subsidiaries or that is treated by the Company or any of its Subsidiaries as confidential, regardless of whether such information is marked “confidential,” except (i) such information that is or becomes generally available to the public other than as a result of a breach by the party (including its equityholders, Representatives and Affiliates) to which such information was furnished, (ii) is or becomes available to the party to which it was furnished on a non-confidential basis from a source, other than from the Company, its Affiliates or Representatives, which the receiving party believes, after reasonable inquiry, was not prohibited from so disclosing such information by a contractual, legal or fiduciary obligation, (iii) is independently developed by the party without the use or benefit of the disclosed Confidential Information. (bb) “Delaware Act” means the Delaware Limited Liability Company Act, 6 Del. C. §18-101, et seq., as amended from time to time. (cc) “Downstairs Interests” means all of the PI Units issued by the Company to CAP MIP on the Effective Date in accordance with this Agreement, which PI Units shall remain outstanding regardless of whether or when Upstairs Interests have been granted to members of CAP MIP or whether or when Upstairs Interests have been forfeited, terminated or cancelled. (dd) “Engines” means, at any time, with respect to any Aircraft, the engines installed on such Aircraft or to be leased with such Aircraft, any other standalone engine, and all appliances, parts, accessories, instruments, furnishings, modules, components and other items of equipment installed therein, furnished therewith or appurtenant thereto and all documentation and technical records, reports and other written materials related to any of the foregoing. (ee) “Equity Securities” means any and all Units of the Company and any securities of the Company or any Subsidiary convertible into, exchangeable for, or exercisable for, Units, including any warrants, options or other rights to acquire Units. (ff) “Exchange Act” means the Securities and Exchange Act of 1934, as amended from time to time. (gg) “Family Member” means with respect to any natural person, such Person’s spouse, the siblings of such Person and their spouses, and the direct descendants and ascendants of such Person and their spouses and siblings. For the avoidance of doubt, the term “Family Member” includes such Person’s adopted children and step-children. (hh) “GAAP” means United States generally accepted accounting principles.
63 (ii) “Holder” means any Person who holds one or more Units, regardless of whether such Person is a Member and regardless of whether such Units were initially acquired by such Person from the Company or by assignment from another Holder. (jj) “Indebtedness” of any specified Person means: (i) any liability of any such Person (A) for borrowed money (including the current portion thereof), (B) under any reimbursement obligation relating to a letter of credit, bankers’ acceptance or note purchase facility, (C) evidenced by a bond, note, debenture or similar instrument (including a purchase money obligation), (D) for the payment of money relating to leases that are required to be classified as capitalized lease obligations in accordance with GAAP, (E) for all or any part of the deferred purchase price of property or services (other than trade payables), including any “earnout” or similar payments or any non-compete payments, or (F) under interest rate swap, hedging or similar agreements, and (ii) any liability of others described in the preceding clause (i) that such Person has guaranteed, that is recourse to such Person or any of its assets or that is otherwise its legal liability or that is secured in whole or in part by the assets of such Person. (kk) “Law” means any law, statute, ordinance, rule, regulation, judgment, decree, ruling, injunction or order of any legislature, administrative body, agency, instrumentality, court, tribunal or other authority of any international, national, federal, state, local, foreign or other government or political subdivision thereof. (ll) “Lien” means any lien, mortgage, pledge, charge, security interest, encumbrance, claim, demand, restriction on transfer, option, charge, easement, encroachment, or any other similar interest. (mm) “Majority-in-Interest” means, as of any given record date or other applicable time, Members holding a majority of the total voting power of all outstanding Units as of such date. (nn) “Original AGI Member” means each of Kevin Milligan, Richard Schacht, Steve Williamson, Vern Titcomb, Jason Greenberg, Diederik Lindhout, Vincent van Tooren and Peter Blakeney. (oo) “Partnership Tax Audit Rules” means Sections 6221 through 6241 of the Code, as amended by the Bipartisan Budget Act of 2015, together with any guidance issued thereunder or successor provisions and any similar provision of state or local tax laws. (pp) “Percentage Interest” with respect to each Holder, means (i) the number of outstanding Units held by such Holder, divided by (ii) the number of then outstanding Units. (qq) “Permitted Transferee” means, with respect to any Holder, (i) any Affiliate of such Holder except any competitor of the Company whose business includes providing asset management services or financing with respect to Aircraft Assets, (ii) any equity holder of such Holder, (iii) the Family Members of such Holder, (iv) a trust for the benefit of any Family Member of such Holder, and (v) any other Member of the Company; provided that the Transferee will have entered into an enforceable joinder agreement or amendment to this Agreement in a form provided by the Company providing that all Units so Transferred will continue to be subject to all provisions of this Agreement as if such Units were still held by such Holder.
64 (rr) “Person” means any individual, corporation, association, partnership (general or limited), joint venture, trust, estate, limited liability company, or other legal entity or organization. (ss) “PI Unit” means a PI Unit of the Company, having the rights, preferences and privileges set forth herein. PI Units are intended to qualify as “profits interests” for U.S. federal income tax purposes within the meaning of Internal Revenue Service Revenue Procedures 93-27 and 2001-43, and the provisions of this Agreement applicable to PI Units shall be interpreted and applied consistently with such intent. For the avoidance of doubt, Class B Preferred Units shall not be issued as PI Units at any time. (tt) “Related Party” means, with respect to any Person, such Person’s Affiliates and any equity holder, director (or similar member of the governing body), officer, employee or Family Member of such Person or any of such Person’s Affiliates. (uu) “Representative” means with respect to any Person, each of such Person’s directors (or members of equivalent governing body), officers, employees, attorneys, accountants, advisors, agents, and other representatives. (vv) “Rule 144” means Rule 144 promulgated under the Securities Act by the Securities and Exchange Commission. (ww) “Securities Act” means the Securities Act of 1933, as amended from time to time. (xx) “Side Letter” means that letter agreement entered into by and among BOAC GPT Holdco PVT LLC, IF GPT Holdco PVT LLC, Air T, Inc. and the Company on June 10, 2026. (yy) “Subsidiary” means, with respect to a Person, any corporation, partnership, association or other business entity of which (a) if a corporation, a majority of the total voting power of shares of stock entitled (irrespective of whether, at the time, stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (b) if a partnership, association or other business entity, a majority of either (i) the partnership or other similar ownership interest thereof or (ii) the stock or equity interest of such partnership, association or other business entity’s general partner, Board or other similar controlling Person, is at the time owned or controlled, directly or indirectly, by such Person or one or more Subsidiaries of that Person or a combination thereof. Unless otherwise specified, any reference in this Agreement to a Subsidiary will mean to a Subsidiary of the Company. (zz) “Transfer” means any direct or indirect transfer, sale, donation, assignment, lease, license, or other similar disposal or attempted disposal (and the terms “Transferred” and “Transferring” have the meanings correlative to the foregoing). (aaa) “Transferee” means any Person to whom any Person makes or attempt to make a Transfer.
65 (bbb) “Units” means an interest in the Company held by a Member or a Holder, and will include Class A Common Units, Class B Preferred Units and PI Units. A Member’s interest in a particular class of Units will be determined by dividing the number of Units of such class held by such Member by all of the Units of such class. As of the Effective Date, the Units issued to the Members or Holders are set forth on Annex A (as it may be amended from time to time in accordance with the terms of this Agreement). (ccc) “Upstairs Interests” means the interests in CAP MIP issued from time to time to members of CAP MIP pursuant to the CAP MIP LLC Agreement, which may correspond to a portion of the Downstairs Interests. (ddd) Terms Defined Elsewhere in this Agreement. For purposes of this Agreement, the following terms have the meaning set forth in the Sections indicated: Term Section A ............................................................................. 5.4(f)(iii) Acceptance Notice .................................................. 10.2(b) Accruing Distributions ........................................... 7.2(a) Additional Class A Common Units ........................ 5.4(c)(i)(D) Additional Consideration ........................................ 11.3 Additional Member ................................................. 3.7 Agreement .............................................................. Preamble Air T ....................................................................... Preamble Annualized Cumulative EBITDA .......................... 5.4(m)(vi)(A) Applicable Earn-Out Implied Valuation ................. 5.4(m)(iii) Applicable Liquidation Multiple ............................ 11.2(c) Applicable Liquidation Preference ......................... 11.2(c) Applicable Liquidation Preference Satisfaction ..... 11.2(c) Approving Persons ................................................. 10.4(a)(i) B .............................................................................. 5.4(f)(iv) Blue Owl ................................................................. Preamble Board ...................................................................... 4.1(a) Board Observer ....................................................... 4.1(d) C .............................................................................. 5.4(f)(v) Call Option ............................................................. 10.5(b)(i) Call Option Notice .................................................. 10.5(b)(i) Call Option Price .................................................... 10.5(b)(ii) CAP MIP ................................................................ Preamble Capital Account ...................................................... 7.1 Cash Election Distribution ...................................... 7.2(a) CEO ........................................................................ 4.1(b)(i)
66 Term Section Chairman ................................................................ 4.1(b)(i) Class B Preferred Liquidation Election .................. 11.2(b) Class B Preferred Managers ................................... 4.1(b)(iii) Class B Preferred Redemption Election Notice ..... 10.5(a)(i) Class B Preferred Redemption Price ...................... 10.5(a)(ii) Class B Preferred Unit Conversion Price ............... 5.4(a) Class B Preferred Unit Original Issue Date ............ 5.4(c)(i)(B) Class B ROFR Notice ............................................. 10.3(b) Class B ROFR Period ............................................. 10.3(b) Class B Transfer Notice .......................................... 10.3(b) Committee .............................................................. 4.2 Company ................................................................. Preamble Company Acceptance Notice ................................. 10.2(b) Company Option Period ......................................... 10.2(b) Company Sale ......................................................... 3.3(b) Compensation Committee ...................................... 4.7 Conversion Balance ................................................ 5.4(a) Conversion Time .................................................... 5.4(b)(i) Convertible Securities ............................................. 5.4(c)(i)(C) CP1 .......................................................................... 5.4(f)(ii) CP2 .......................................................................... 5.4(f)(i) Crestone Manager ................................................... 4.1(b)(ii) Cumulative Consolidated EBITDA ........................ 5.4(m)(i)(A) Designated Individual ............................................. 7.6(e) Distribution Credit .................................................. 11.2(c) Distribution Excess ................................................. 7.2(a)(ii) Distribution Hurdle ................................................. 5.3(c) Earn-Out Acceleration Event .................................. 5.4(m)(vi) Earn-Out Adjusted Conversion Price ..................... 5.4(m)(iii) Earn-Out Adjustment .............................................. 5.4(m)(ii) Earn-Out Measurement Period ............................... 5.4(m)(i)(B) EBITDA Ceiling ..................................................... 5.4(m)(i)(C) EBITDA Floor ........................................................ 5.4(m)(i)(D) Effective Date ......................................................... Preamble Eligible Member ..................................................... 6.2(b) EO-CP ..................................................................... 5.4(m)(iii) Exempted Securities ............................................... 5.4(c)(i)(D) Incentive Compensation Plan ................................. 4.7 Independent Manager ............................................. 4.1(b)(iv)
67 Term Section Initial Consideration ............................................... 11.3 Initial Implied Valuation ........................................ 5.4(m)(i)(E) Liquidation Event ................................................... 11.1 Manager .................................................................. 4.1(b) Mandatory Conversion Time .................................. 5.5(a) Mandatory Redemption Date .................................. 10.5(a)(i) Maximum Earn-Out Adjusted Implied Valuation .. 5.4(m)(i)(F) Maximum Earn-Out Ratchet Amount .................... 5.4(m)(i)(G) Member ................................................................... Preamble Member Acceptance Notice ................................... 10.2(b) Member Option Period ........................................... 10.2(b) New Issuance .......................................................... 6.2(b)(i) Non-Foreign Certificate .......................................... 10.6(d) NOPPA ................................................................... 7.6(b) Offer Notice ............................................................ 10.2(a) Offered Units .......................................................... 10.2(a) Offeror .................................................................... 10.2 Officers ................................................................... 4.6 Option ..................................................................... 5.4(c)(i)(A) PIK Distribution ..................................................... 7.2(a) PIK Interests ........................................................... 7.2(a) Preemptive Rights Election Notice ......................... 6.2(b)(i) Preemptive Rights Notice ....................................... 6.2(b)(i) Preemptive Rights Response Period ....................... 6.2(b)(i) Preferred Distribution Payment Date ..................... 7.2(a) Pro Rata Portion ...................................................... 6.2(b)(i) Pro Rata Share ........................................................ 10.2(c) Proposed Sale ......................................................... 10.4(a)(ii) Purchasing Member ................................................ 10.2(c) Realized Earn-Out Ratchet Amount ....................... 5.4(m)(i)(H) Redemption Deferral Election ................................ 10.5(a)(iv) Selling Class B Member ......................................... 10.3(a) Selling Holder ......................................................... 10.2 Specified Court ....................................................... 12.14(a) Tax Advance ........................................................... 7.4 Tax Distribution ...................................................... 7.2(e) Tax Matters Representative .................................... 7.6(a) Transaction Offer .................................................... 10.2 Truncated EBITDA ................................................ 5.4(m)(vi)(A)
68 Term Section Truncated Measurement Period .............................. 5.4(m)(vi)(A) 13.2 Rules of Construction. (a) All references herein to Articles, Sections, Annexes and Exhibits will be deemed to be references to Articles and Sections of, and Annexes and Exhibits to, this Agreement unless the context requires otherwise. All Annexes and Exhibits attached hereto will be deemed incorporated herein as if set forth in their entirety herein and, unless otherwise defined therein, all terms used in any Annex or Exhibit will have the meaning ascribed to such term in this Agreement. (b) The headings to Articles and Sections in this Agreement are for purposes of convenience only and will not affect the meaning or interpretation of this Agreement. (c) Words in the singular include the plural and in the plural include the singular. The words “including,” “includes,” “included” and “include,” when used, are deemed to be followed by the words “without limitation.” The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement will refer to this Agreement as a whole and not to any particular provision of this Agreement. Whenever the context may require, any pronoun will include the corresponding masculine, feminine and neuter forms. The term “or”, “any” and “either” are disjunctive, but not necessarily exclusive. The word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends and such phrase shall not mean simply “if”. The word “will” shall be construed to have the same meaning as the word “shall”. (d) Unless otherwise expressly provided herein, any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes, and all attachments thereto and instruments incorporated therein. *** REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGES TO FOLLOW ***
Signature Page to LLC Operating Agreement of Crestone Air Partners, LLC IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written. The Company: CRESTONE AIR PARTNERS, LLC By: Name: Kevin Milligan Title: Chief Executive Officer ***SIGNATURE PAGES CONTINUE*** Docusign Envelope ID: 2ECE2EDD-50E3-87C4-839B-D046A86F5D90
Signature Page to Operating Agreement of Crestone Air Partners, LLC Class A Common Members: AVIATION GROWTH INITIATIVES, LLC By: Name: Jason Greenberg Title: Secretary Address for Notice: ***SIGNATURE PAGES CONTINUE*** ______________________________ ______________________________ Docusign Envelope ID: C55351DD-E77B-8D33-825E-337613B61B71 Denver, CO 80246 4500 Cherry Creek Drive South, Ste 200
Signature Page to LLC Operating Agreement of Crestone Air Partners, LLC AIR T ACQUISITION 26.1, LLC By: Name: Mark Jundt Title: Corporate Secretary Address for Notice: 5000 W 36th Street, Suite 200 Minneapolis, MN 55416 [***] ***SIGNATURE PAGES CONTINUE***
Signature Page to LLC Operating Agreement of Crestone Air Partners, LLC Class B Preferred Members: IF GPT Holdco PVT LLC By: Blue Owl Alternative Credit Advisors II LLC, its investment manager By: Name: David Aidi Title: Authorized Signatory Address for Notice: Blue Owl Capital 399 Park Avenue, 37th Floor New York, NY 10022 ***SIGNATURE PAGES CONTINUE*** [***]
Signature Page to LLC Operating Agreement of Crestone Air Partners, LLC BOAC GPT Holdco PVT LLC By: Blue Owl Alternative Credit Advisors LLC, its investment manager By: Name: David Aidi Title: Authorized Signatory Address for Notice: Blue Owl Capital 399 Park Avenue, 37th Floor New York, NY 10022 ***SIGNATURE PAGES CONTINUE*** [***]
Signature Page to LLC Operating Agreement of Crestone Air Partners, LLC AIR T, INC. By: Name: Nick Swenson Title: Chief Executive Officer Address for Notice: 5000 W 36th Street, Suite 200 Minneapolis, MN 55416 Telephone No.: [***] ***SIGNATURE PAGES CONTINUE*** Docusign Envelope ID: 7155BC01-5438-8BEC-80A2-E0736B360D02
Signature Page to LLC Operating Agreement of Crestone Air Partners, LLC CRESTONE GROUP MANAGEMENT, LLC By: Crestone Air Partners, LLC, a Delaware limited liability company, its Manager By: ______________________________ Name: Kevin Milligan Title: Chief Executive Officer Address for Notice: _________________________________ _________________________________ Telephone No. : ___________________ ***SIGNATURE PAGES CONTINUE*** Docusign Envelope ID: 67399E59-FDA7-83C2-80E2-20A39BCFD314 [***] Denver, Colorado 80246 4500 Cherry Creek Drive South, Suite 200
Annex A Members Member Name Capital Contribution Class A Common Units Class B Preferred Units PI Units Total Units Percentage Interest IF GPT Holdco PVT LLC $4,500,000.00 0 46,107 0 46,107 4.61% BOAC GPT Holdco PVT LLC $5,500,000.00 0 56,352 0 56,352 5.64% Air T, Inc. $64,125,000 537,142 119,877 0 657,019 65.70% Aviation Growth Initiatives, LLC $2,912,500 29,841 0 0 29,841 2.98% Air T Acquisition 26.1, LLC $2,962,500 30,353 0 0 30,353 3.04% Crestone Group Management, LLC $0 0 0 180,328 180,328 18.03% Total $80,000,000 597,336 222,336 180,328 1,000,000 100.00% Certain schedules and similar attachments have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The registrant agrees to furnish supplementally a copy of any omitted schedule or attachment to the SEC upon request. List of omitted annexes and description of contents: Annex B: Tax Matters Annex C: Illustrative earn-out ratchet calculation, already described in main text of agreement Annex A – Page 1
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a102membershipinterestpu
Execution Version MEMBERSHIP INTEREST PURCHASE AGREEMENT This Membership Interest Purchase Agreement (this “Agreement”), dated June 10, 2026, is entered into by and among Crestone Asset Management, LLC (f/k/a Contrail Asset Management, LLC), a Delaware series limited liability company (the “Company”) (solely for purposes of Section 1(b), Section 4 and Section 8(p)), MRC Common Member LLC, a Delaware limited liability company (“MRC Common Member”), MR CAM US Splitter 2, L.P., a Delaware limited partnership (“MR CAM US” and, together with MRC Common Member, the “Sellers” and each a “Seller”), Aviation Growth Initiatives, LLC, a Delaware limited liability company (“AGI”), Air T Acquisition 26.1, LLC, a Minnesota limited liability company (“ATA” and, together with AGI, the “Purchasers” and each a “Purchaser”). Reference is made to that certain Second Amended and Restated Limited Liability Company Agreement of the Company, dated as of September 1, 2022 (the “LLCA”). Capitalized terms used but not defined herein shall have the meanings given to such terms in the LLCA. WHEREAS, as of the date hereof, the Sellers hold, in the aggregate, ten percent (10%) of the Common Interests and Air T, Inc., a Delaware corporation and the sole member of ATA, holds ninety percent (90%) of the Common Interests of the Company; WHEREAS, as of the date hereof, the Company has two Series, the Onshore Series and the Offshore Series, each of which is classified as a separate partnership for U.S. federal (and applicable state and local) income tax purposes; WHEREAS, pursuant to Section 4.2 of the LLCA, the Onshore Series has two classes of interests, “Investor Interests” and “Common Interests,” and the Offshore Series has one class of interests, “Investor Interests;” for U.S. federal (and applicable state and local) income tax purposes, all references herein to “Common Interests” refer to “Common Interests” in the Onshore Series (and not interests in the Offshore Series), and all references herein to the “Company” refer only to the Onshore Series; and WHEREAS, the Sellers wish to sell to each Purchaser, and each Purchaser wishes to purchase from the Sellers, the Common Interests set forth opposite such Seller’s name on Schedule 1 hereto (the “Purchased Membership Interests”) for the purchase price set forth opposite such Seller’s name on Schedule 1 (with respect to each such Seller, such Seller’s “Seller Purchase Price” and, collectively, the “Aggregate Purchase Price”). NOW, THEREFORE, in consideration of the foregoing, the mutual promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows: 1. Sale and Purchase of the Purchased Membership Interests. (a) Purchased Membership Interests; Purchase Price. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties set forth in this Agreement, at the Closing (as defined below), each Seller hereby agrees to sell, assign and transfer to each Purchaser, and each Purchaser hereby agrees to purchase and acquire from each Seller, all of such Seller’s right, title, interest, duties and obligations in and to the Purchased Membership Interests set forth opposite such Seller’s name on Schedule 1, free and clear of all Encumbrances (as defined below) (other than Permitted Encumbrances (as defined below)), for the Seller Purchase Price set forth opposite such Seller’s name on Schedule 1. Subject to the terms and conditions of this Agreement, at the Closing, each Purchaser shall (i) become the legal and beneficial owner of the Purchased Membership Interests set forth with respect to such Purchaser on Schedule 1 and of all right, title and interest therein or related thereto and (ii) have assumed all duties and obligations related to such Purchased Membership Interests. (b) Company Consent. The Company, acting through the Board of the Company and the Board of each applicable Series, hereby (x) consents to the sale and purchase of the Purchased Membership Interests pursuant to Section 9.2 of the LLCA, (y) confirms that the execution and delivery of this 53298951.v9 Certain identified information has been omitted from this exhibit pursuant to Item 601(a)(6) of Regulation S-K because disclosure would constitute a clearly unwarranted invasion of personal privacy. Information that was omitted has been noted in this document with a placeholder identified by the mark‘[***]’.
2 Agreement by the Company and the consummation of the transactions contemplated hereby constitute and satisfy all approvals, consents and conditions required under Section 9.2 of the LLCA (including any consent of the Board of the Company and the Board of each applicable Series) in connection with the sale and purchase of the Purchased Membership Interests, and (z) waives any applicable transfer restrictions in favor of the Company or any Series and all applicable notice requirements with respect to the sale and purchase of the Purchased Membership Interests. (c) Closing. The closing of the sale and purchase of the Purchased Membership Interests (the “Closing”) shall take place on the date first written above (the “Closing Date”). The Closing shall take place remotely via the exchange of documents and signatures. (d) Closing Obligations. On or prior to the Closing, each Seller shall deliver to the Purchasers a duly executed IRS Form W-9. On the Closing Date, each Purchaser shall deliver (or cause to be delivered) to each Seller such Seller’s Seller Purchase Price by wire transfer of immediately available funds in United States dollars to the account designated by such Seller on Schedule 1, which shall constitute payment in full for such Purchaser’s purchase of such Seller’s Purchased Membership Interests. Subject to Section 1(a), without any further approval or action of any Seller, each Seller hereby agrees that at the Closing, the Company is hereby authorized to, and with such authorization, the Company shall register in its books and records the transfer of the Purchased Membership Interests sold, assigned and transferred by such Seller to the Purchaser. (e) Taxes. (i) Each Seller severally, and not jointly, represents and warrants that (i) it is not a “foreign person” within the meaning of Section 1445 of the Code or Section 1446(f) of the Code and is not a “disregarded entity” as defined in Treasury Regulations Section 1.1445-2(b)(2)(iii), and (ii) no U.S. federal income tax or withholding (including under Sections 1441, 1442, 1445, 1446 or 1446(f) of the Internal Revenue Code of 1986, as amended (the “Code”)) (collectively, “Taxes”) is required to be deducted, withheld or paid to any governmental authority by the Company or the Purchasers from the Seller Purchase Price payable to such Seller. Based on the foregoing representations and warranties of each Seller (including the delivery of a duly executed IRS Form W-9 by each Seller pursuant to Section 1(d)), neither the Company nor the Purchasers shall deduct, withhold or pay any Tax from the consideration payable to any Seller under this Agreement. Each Seller shall be solely responsible for payment of any income, capital gains and other Taxes assessable or payable in connection with such Seller’s sale of the Purchased Membership Interests. If the Company or any Purchaser is required to withhold any amounts from consideration payable to any Seller pursuant to this Agreement, such amounts shall be deducted from the Seller Purchase Price otherwise payable to such Seller and shall be treated for all purposes as having been paid to such Seller. (ii) Notwithstanding any provision to the contrary in this Agreement, each Seller hereby acknowledges and agrees that if the Company or any Purchaser is obligated to pay any Taxes (including penalties, interest and any addition to tax) to any governmental authority that are attributable to any transfer of Purchased Membership Interests by such Seller hereunder (excluding, for the avoidance of doubt, any Taxes arising from, or attributable to, any election, structure, transaction or action that is taken by or at the direction of the Company or any Purchaser on or after the Closing, including any tax accounting method change or election, except to the extent required by applicable law or expressly contemplated by this Agreement), then such Seller shall indemnify the Company and each Purchaser in full for the entire amount paid or payable; provided, any transfer, sales, use, documentary, stamp, registration or similar Taxes or fees imposed on the transactions contemplated hereby shall be borne 50% by the Purchasers and 50% by the Sellers, and the parties shall reasonably cooperate to minimize such Taxes and fees to the extent permitted by law; provided, further, each Seller hereby severally, and not jointly, acknowledges and agrees that it remains solely liable and responsible only for that portion of any “imputed underpayment” (within
3 the meaning of Section 6225(b) of the Code) assessed against the Company that is attributable to such Seller in respect of the Purchased Membership Interests held by such Seller during a Pre-Sale Tax Period (as defined below), subject in all cases to Section 1(e)(v). (iii) The parties hereto intend that for U.S. federal (and applicable state and local) income tax purposes, the sale of the Purchased Membership Interests by each Seller to the Purchasers shall be treated as a sale of a “partnership interest” in the Onshore Series governed by Section 741 of the Code, subject to Section 751 of the Code to the extent applicable. Each party agrees to file all tax returns consistent with such intended treatment and shall not take any position inconsistent therewith on any tax return, in any audit, examination or other proceeding before any governmental authority, or otherwise, unless otherwise required by a final “determination” within the meaning of Section 1313(a) of the Code. If requested by any Purchaser, the Company shall make a valid election under Section 754 of the Code effective for the taxable year that includes the Closing Date, to the extent such an election is not already in effect. Nothing in this Section 1(e)(iii) shall require the Company or any Seller to take any action that would reasonably be expected to increase Pre-Sale Taxes for which any Seller is responsible. (iv) The parties hereto agree to reasonably cooperate, as and to the extent reasonably requested, in connection with the preparation and filing of any tax returns relating to the transactions contemplated hereby and in connection with any audit, examination, litigation or other proceeding with respect to Taxes. Each Seller, upon the reasonable, written request of any Purchaser, shall reasonably cooperate with such Purchaser in connection with any Tax matter relating to the Purchased Membership Interests, including providing any information reasonably necessary to enable the Company to comply with its tax reporting obligations under Treasury Regulations Section 1.743-1(k) or Section 1.6050K-1 and Section 6050K of the Code. (v) For any “reviewed year” (or portion of a Straddle Period ending on and including the Closing Date) within the scope of the Bipartisan Budget Act of 2015 centralized partnership audit regime, the Company shall (A) use commercially reasonable efforts during the 270-day modification period to obtain available modifications to reduce any “imputed underpayment,” (B) cause the partnership representative to timely make a valid election under Section 6226 of the Code within 45 days after any Notice of Final Partnership Adjustment to “push out” any adjustments to the reviewed-year partners, and (C) consult in good faith with the applicable Seller and, to the extent any of the following actions are reasonably expected to materially increase Pre-Sale Taxes for which such Seller is responsible, shall obtain the prior written consent of such Seller (not to be unreasonably withheld, conditioned or delayed) before (x) entering into any settlement agreement with the relevant taxing authority of a partnership-level adjustment relating to a Pre-Sale Tax Period, (y) extending any applicable statute of limitations for a Pre- Sale Tax Period, or (z) electing not to make a timely election under Section 6226 of the Code or not to pursue material permitted modifications under Section 6225(c) of the Code. Such consent shall be deemed given if the applicable Seller does not respond within five (5) business days after receipt of a written notice that reasonably describes the proposed action and the basis on which it is expected to increase such Pre- Sale Taxes; provided, that the Company’s partnership representative may take any action without such prior consent if, in its reasonable judgment, failure to act would cause a statutory right to lapse or would materially prejudice the Company’s position or its Members taken as a whole, so long as it uses commercially reasonable efforts to confer with the applicable Seller in advance and promptly notifies such Seller thereafter. If, notwithstanding the foregoing, the Company pays any imputed underpayment at the entity level for a Pre-Sale Tax Period, the Sellers shall indemnify only for the portion of such imputed underpayment (including related interest and penalties) that is attributable to each such Seller’s reviewed year share. The Purchasers and the Company covenant that, from and after the Closing, they shall not take any action on the Closing Date outside the ordinary course of business that would reasonably be expected to increase the amount of Taxes allocated to the portion of any Straddle Period ending on and including the
4 Closing Date (it being understood that Taxes based on or measured by income, receipts, sales, payroll or similar items shall be determined on a “closing of the books” basis as of the end of the Closing Date, and all other Taxes shall be allocated on a per diem basis). 2. Representations and Warranties of the Sellers. Each Seller hereby severally, but not jointly, represents and warrants to the Company and each Purchaser as of the Closing Date that: (a) Authorization; Enforceability. Such Seller is duly formed and validly existing under the laws of its jurisdiction of formation and has full power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by such Seller and, assuming due authorization, execution and delivery by the other parties hereto, constitutes the legal, valid and binding obligation of such Seller, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency and similar laws affecting creditors’ rights generally and by general principles of equity. (b) Title to Purchased Membership Interests. Such Seller is the sole record and beneficial owner of, and has good and marketable title to, the Purchased Membership Interests set forth opposite such Seller’s name on Schedule 1, free and clear of all Encumbrances other than (i) transfer restrictions imposed by Article 9 of the LLCA and (ii) United States federal and state securities laws (clauses (i) and (ii), collectively, “Permitted Encumbrances”). “Encumbrance” means any lien, pledge, security interest, claim, charge, option, right of first refusal, voting restriction or other encumbrance or restriction of any nature. Other than the LLCA, there are no agreements or Encumbrances granting rights or imposing obligations or restrictions with respect to such Seller’s Purchased Membership Interests. At1 the Closing, such Seller’s entire right, title and interest in the Purchased Membership Interests shall be conveyed to the Purchasers free and clear of all Encumbrances other than Permitted Encumbrances. (c) Consents. No consent, approval or authorization of, or filing with, any person or governmental authority is required on the part of such Seller in connection with the execution, delivery or performance of this Agreement, except for the consents required under Section 9.2 of the LLCA, which have been or will be obtained or waived on or prior to the Closing Date. (d) No Violation or Default. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will not violate, conflict with or result in a default or breach under any contract, judgment, order or agreement to which such Seller is a party or by which such Seller or its Purchased Membership Interests are bound, including the LLCA. (e) Litigation. There is no action, suit, proceeding or investigation pending or, to such Seller’s knowledge, threatened against such Seller relating to such Seller’s Purchased Membership Interests or such Seller’s ownership thereof. (f) Sophistication; Information. Such Seller is a sophisticated entity with knowledge and experience in financial and business matters such that it is capable of evaluating the merits and risks of selling the Purchased Membership Interests. Such Seller has had access to, and has received, all information regarding the Company and the Purchased Membership Interests that it considers necessary or appropriate to make an informed decision to enter into this Agreement, and has independently, and without reliance on the Company, the Purchasers or any of their respective affiliates or agents (other than the express representations and warranties of the Purchasers and the Company in this Agreement), made its own analysis and decision to sell the Purchased Membership Interests. Such Seller acknowledges that any future sale of the Purchased Membership Interests could be at a price higher or lower than the price set forth herein, and that none of the Purchasers or any of their respective affiliates or agents is acting as a fiduciary or financial or investment adviser to such Seller. (g) Brokers. The Purchasers are not and will not become obligated to pay any compensation to any broker, finder or financial advisor as a result of the consummation of the transactions
5 contemplated by this Agreement based upon any arrangement made by or on behalf of such Seller or any of its affiliates or agents. (h) Advice. Such Seller has been advised to consult with its own attorney and other investment and tax advisors regarding legal, investment and tax matters concerning such Seller’s Purchased Membership Interests and to consult with an independent tax advisor regarding the tax consequences of selling such Seller’s Purchased Membership Interests. Such Seller is relying solely on its separate legal, investment and tax advisors and not on any representations, warranties or statements of the Company or the Purchasers or any of their respective directors, officers, partners, members, managers, equityholders, affiliates or agents for any legal, investment or tax advice with respect to the transactions contemplated by this Agreement. 3. Representations and Warranties of Purchaser. Each Purchaser hereby severally, but not jointly, represents and warrants to the Company and each Seller, as of the Closing Date, that: (a) Authorization; Enforceability. Such Purchaser is duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation or incorporation. Such Purchaser has full legal right, power and authority to enter into and perform its obligations under this Agreement and to consummate the transactions contemplated under this Agreement. The execution, delivery and performance of this Agreement by such Purchaser and the consummation of the transactions contemplated hereby, assuming the due authorization, execution and delivery by the Company and each Seller, constitutes the legal, valid and binding obligation of such Purchaser, enforceable in accordance with its terms, except as limited by applicable bankruptcy, insolvency, moratorium or other similar federal or state laws affecting the rights of creditors, and as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies. (b) Consents. No consent, approval or authorization of, or filing with, any person or governmental authority is required on the part of such Purchaser in connection with the execution, delivery or performance of this Agreement or the consummation of the transactions contemplated hereby, except for consents, approvals or authorizations that have been obtained prior to the date hereof. (c) No Violation or Default. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will not violate, conflict with or result in a default or breach under any contract, judgment, order or agreement to which such Purchaser is a party or by which such Purchaser or its assets are bound, including the organizational documents of such Purchaser. (d) Litigation. There is no action, suit, proceeding or investigation pending or, to such Purchaser’s knowledge, threatened against such Purchaser that would reasonably be expected to impair or delay such Purchaser’s ability to consummate the transactions contemplated by this Agreement. (e) Sophistication; Independent Investigation. Such Purchaser is a sophisticated entity with knowledge and experience in financial and business matters such that it is capable of evaluating the merits and risks of acquiring the Purchased Membership Interests, and can bear the economic risk of its investment, including the risk of total loss. Such Purchaser has had access to, and has received, all information regarding the Company and the Purchased Membership Interests that it considers necessary or appropriate to make an informed decision to enter into this Agreement, and has independently, and without reliance on any Seller or any of its affiliates or agents (other than the express representations and warranties of the Sellers in this Agreement), made its own analysis and decision to acquire the Purchased Membership Interests. Such Purchaser acknowledges that the value of the Purchased Membership Interests could in the future be higher or lower than the price paid hereunder, and that no Seller or any of its affiliates or agents is acting as a fiduciary or financial or investment adviser to such Purchaser. (f) Restricted Securities. Such Purchaser understands that (i) the Purchased Membership Interests have not been registered under the Securities Act, and (ii) the Purchased Membership Interests
6 may not be sold, pledged or otherwise transferred unless a registration statement for such transaction is effective under the Securities Act or unless an exemption from such registration is available. Such Purchaser is familiar with the provisions of Rule 144 promulgated under the Securities Act, as presently in effect, and understands the resale limitations imposed thereby under the Securities Act. (g) Brokers. No Seller is, nor will any Seller become, obligated to pay any compensation to any broker, finder or financial advisor as a result of the consummation of the transactions contemplated by this Agreement based upon any arrangement made by such Purchaser or any of its affiliates or agents. (h) Advice. Such Purchaser has been advised to consult with its own attorney and other investment and tax advisors regarding legal, investment and tax matters concerning the Purchased Membership Interests and to consult with an independent tax advisor regarding the tax consequences of acquiring the Purchased Membership Interests. Such Purchaser is relying solely on its separate legal, investment and tax advisors and not on any representations, warranties or statements of any Seller or any of its respective directors, officers, partners, members, managers, equityholders, affiliates or agents for any legal, investment or tax advice with respect to the transactions contemplated by this Agreement. 4. Representations and Warranties of the Company. The Company hereby represents and warrants to each Seller and each Purchaser, as of the Closing Date, that: (a) Authorization; Enforceability. The Company is a series limited liability company duly formed and validly existing under the laws of the State of Delaware. The Company has full legal right, power and authority to enter into and perform its obligations under this Agreement and to consummate the transactions contemplated under this Agreement. The execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby, assuming the due authorization, execution and delivery by each Seller and each Purchaser, constitutes the legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except as limited by applicable bankruptcy, insolvency, moratorium or other similar federal or state laws affecting the rights of creditors, and as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies. (b) Clawback Matters. As of the date hereof: (i) neither the Company nor any Series has established any reserves for Clawback Position Amounts or otherwise set aside or withheld any amounts pursuant to Section 7.6 of the LLCA in respect of any Clawback Position; (ii) to the Company’s knowledge, no event, circumstance, claim or condition exists that would reasonably be expected to give rise to any clawback obligation of the Company, any Series or any Common Member, including any obligation to return Fee Income or Holdco Vehicle Promote pursuant to Section 4.11 of the LLCA or any obligation to return distributions pursuant to Section 11.3 of the LLCA or the governing documents of any Holdco Vehicle; and (iii) neither the Company nor any Series is currently in a Clawback Position (as defined in the LLCA), and no Holdco Vehicle has asserted or, to the Company’s knowledge, threatened to assert any claim for the return of any distributions against the Company, any Series or any Common Member. 5. Release of Claims by Seller. Subject to each Purchaser’s payment of the Aggregate Purchase Price in accordance with Section 1, each Seller, severally and not jointly, on behalf of itself and its controlled Affiliates, hereby releases, effective as of the Closing, without the need for any further action, any and all claims, liabilities, obligations, promises, agreements, controversies, damages, actions, causes of action, suits, rights, demands, costs, losses, debts and expenses (including attorneys’ fees and costs incurred) of whatsoever kind or nature, whether at law or in equity, matured or unmatured, known or unknown, to the extent arising out of or relating to such Seller’s ownership and sale of the Purchased Membership Interests and relating to periods on or prior to the Closing Date, that it can, shall, or may have against the Company or the Purchasers or each of their respective directors, officers, partners, members, managers, equityholders, affiliates, agents or assigns (collectively, the “Released Parties”) (the “Released
7 Claims”). Notwithstanding the foregoing, the term “Released Claims” shall not include (w) any claims for fraud, gross negligence, willful misconduct or intentional misrepresentation, (x) any claims for breach of any representations, warranties, covenants or other obligations under this Agreement, (y) any rights that may not be released as a matter of applicable law, or (z) any rights to indemnification, exculpation or advancement of expenses of any present or former Director or other Covered Person (as defined in the LLCA) under the LLCA or other organizational documents or agreements, which rights shall survive in accordance with their terms. The Released Parties shall be express third-party beneficiaries of this Section 5. 6. Release of Claims by Purchasers. Subject to the consummation of the Closing, each Purchaser, severally and not jointly, on behalf of itself and its controlled Affiliates, hereby releases, effective as of the Closing, without the need for any further action, any and all claims, liabilities, obligations, promises, agreements, controversies, damages, actions, causes of action, suits, rights, demands, costs, losses, debts and expenses (including attorneys’ fees and costs incurred) of whatsoever kind or nature, whether at law or in equity, matured or unmatured, known or unknown, to the extent arising out of or relating to such Purchaser’s acquisition of the Purchased Membership Interests and relating to periods on or prior to the Closing Date, that it can, shall, or may have against any Seller or any of its respective directors, officers, partners, members, managers, equityholders, affiliates, agents or assigns (collectively, the “Seller Released Parties”) (the “Purchaser Released Claims”). Notwithstanding the foregoing, the term “Purchaser Released Claims” shall not include (w) any claims for fraud, gross negligence, willful misconduct or intentional misrepresentation, (x) any claims for breach of any representations, warranties, covenants, indemnification obligations or other obligations under this Agreement, or (y) any rights that may not be released as a matter of applicable law. The Seller Released Parties shall be express third-party beneficiaries of this Section 6. 7. Tax Indemnity. (a) Indemnification. From and after the Closing, each Seller shall, severally and not jointly (and solely with respect to itself and its Purchased Membership Interests), indemnify, defend and hold harmless each Purchaser, the Company and each of their respective affiliates, and each of their respective directors, officers, employees, members, managers, partners, equityholders, agents, representatives, successors and permitted assigns (collectively, the “Purchaser Indemnified Parties”) from and against any and all losses, liabilities, claims, damages, actions, fines, penalties, expenses, or costs (including court costs and reasonable attorneys’ fees) incurred, suffered, sustained or paid by any Purchaser Indemnified Party arising out of, relating to, or resulting from any Pre-Sale Taxes attributable to such Seller. For the avoidance of doubt, indemnification for any Tax matter shall be applied in accordance with Section 1(e). (b) Pre-Sale Taxes. For purposes of this Agreement, “Pre-Sale Taxes” means, without duplication, any and all Taxes (i) imposed on or with respect to the Company, the Purchased Membership Interests, or the business, assets or operations of the Company, in each case, that are allocable to any taxable period ending on or before the Closing Date and, with respect to any taxable period beginning on or before and ending after the Closing Date (a “Straddle Period”), the portion of such Straddle Period ending on and including the Closing Date (collectively, the “Pre-Sale Tax Period”), in each case only to the extent attributable to such Seller (including, for the avoidance of doubt, such Seller’s allocable share of any such Taxes of the Company), (ii) imposed on such Seller, including any Taxes arising from the sale of such Seller’s Purchased Membership Interests pursuant to this Agreement, (iii) for which such Seller is responsible pursuant to Section 1(e), and (iv) of any other person for which such Seller (or, by virtue of such Seller’s ownership of the Purchased Membership Interests at or prior to the Closing, the Company or any Purchaser) is liable as a transferee or successor, by contract, by operation of law, pursuant to Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. law), or otherwise, in each case to the extent arising in or attributable to a Pre-Sale Tax Period; provided, that “Pre-Sale Taxes”
8 shall not include any Taxes to the extent arising from, or attributable to, any election, structure, transaction or action taken by or at the direction of the Company or any Purchaser on or after the Closing (except to the extent required by applicable law or expressly contemplated by this Agreement). For purposes of allocating Taxes between the portion of any Straddle Period ending on the Closing Date and the portion beginning after the Closing Date, (A) Taxes based on or measured by income, receipts, sales, payroll or similar items shall be determined on a “closing of the books” basis as of the end of the Closing Date, and (B) all other Taxes (including real and personal property and similar ad valorem Taxes) shall be allocated on a per diem basis. (c) The indemnification obligations of the Sellers set forth in this Section 7 with respect to Tax matters shall survive until 60 days after the expiration of the applicable statute of limitations (including extensions) for the relevant Tax; provided, that claims timely asserted before such date shall survive until finally resolved. The aggregate liability of each Seller for indemnification under this Section 7 shall not exceed the Seller Purchase Price received by such Seller; provided, that the foregoing cap shall not apply in the case of (i) any indemnification for imputed underpayments under Section 1(e)(i), (ii) any indemnification for Taxes arising from a failure to comply with Section 1(e)(i) (withholding representations), or (iii) such Seller’s fraud or intentional misconduct. No party shall recover more than once in respect of the same Tax item across this Agreement and any other Transaction Document, and any amounts properly withheld under Section 1(e)(i) shall be treated as paid to the applicable Seller. (d) Except as expressly provided in this Section 7, no Seller shall have any indemnification, contribution or other liability to any Purchaser, the Company or any Series in respect of any pre-Closing liabilities, obligations or claims of the Company, any Series or any Holdco Vehicle, in each case with respect to the Purchased Membership Interests, including any clawback or giveback obligations under Sections 4.11 or 11.3 of the LLCA or the governing documents of any Holdco Vehicle, all of which shall, to the extent applicable, follow the Purchased Membership Interests. 8. General Provisions. (a) Confidentiality. Each Seller agrees to maintain the confidentiality of all Company Confidential Information (as defined in Section 12.3 of the LLCA) and this Agreement, including the Seller Purchase Price and Aggregate Purchase Price, and not to disclose any such information to any other Person, except as follows: (i) any Seller may disclose Company Confidential Information to its, and its management company’s and general partner’s, officers, directors, managers, employees, legal and other advisers, consultants and other service providers who need to know the information in connection with their regular duties or in connection with the transactions contemplated by this Agreement, who have been advised of the confidentiality of this Agreement and the provisions of this Section 8(a) and who have either agreed in writing to maintain such confidentiality or who are otherwise bound by equivalent obligations of confidentiality; (ii) the Sellers may disclose Company Confidential Information to their investors and prospective investors in any investment funds managed, or prospective funds to be managed, by Mill Road Capital Management LLC, who have agreed to maintain the confidentiality of such information; (iii) any Seller may make disclosures required by applicable law, regulation, legal process, subpoena or governmental order; (iv) any obligations of confidentiality contained herein shall not apply to the federal tax treatment or federal tax structure of the transactions contemplated by this Agreement, and each party hereto may disclose to any and all persons, without limitation of any kind, the federal tax treatment and federal tax structure of such transactions and all materials of any kind (including opinions or other tax analysis) relating to such tax treatment and tax structure; (v) nothing herein (A) is intended to or does interfere with or restrain the immunity provided under 18 U.S.C. section 1833(b) for confidential disclosures of trade secrets to government officials or lawyers solely for the purpose of reporting or investigating a suspected violation of law, or (B) prohibits any Seller from reporting possible violations of
9 any law or regulation to any governmental agency or entity or from making other disclosures that are protected under the whistleblower provisions of any law or regulation; and (vi) each Seller may make disclosures permitted under Section 12.4 of the LLCA regarding investment amounts, timing, returns and structure, subject to the limitations stated therein. This Section 8(a) shall survive the termination of this Agreement. (b) Notices. All notices given pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or: (i) personal delivery to the party to be notified, (ii) when sent, if sent by electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, or (iii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid. All communications shall be sent to the respective parties at their address as set forth on the signature pages hereto, or to such other address as subsequently modified by written notice given in accordance with this Section 8(b). (c) Further Assurances. Each party hereto agrees, at any time after the Closing and at the reasonable request of any other party, to (i) promptly execute and deliver such further documents, instruments and agreements as may be reasonably necessary to carry out the purposes of this Agreement, (ii) cooperate with any governmental filings required in connection herewith, (iii) provide reasonable assistance with tax returns and tax authority inquiries relating to the transactions contemplated hereby and (iv) refrain from taking any action that would frustrate or impede the consummation of the transactions contemplated by this Agreement. The parties’ cooperation obligations for tax returns, tax proceedings and tax audits are further described in Section 1(e). (d) Entire Agreement. This Agreement and the documents referred to herein constitute the entire agreement and understanding of the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous understandings and agreements, whether oral or written, among the parties hereto with respect to the subject matter hereof. (e) Amendment and Waivers. This Agreement may not be modified without the prior written approval of the Company, each Purchaser and each Seller. No amendment of or waiver of, or modification of any obligation under this Agreement will be enforceable unless set forth in a writing signed by the party against which enforcement is sought. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. No waiver granted under this Agreement as to any one provision herein shall constitute a subsequent waiver of such provision or of any other provision herein, nor shall it constitute the waiver of any performance other than the actual performance specifically waived. (f) Assignment; Successors and Assigns; Third Party Beneficiaries. No party hereto may assign its rights or obligations under this Agreement without the prior written consent of the other parties hereto. This Agreement, and the rights and obligations of the parties hereunder, will be binding upon and inure to the benefit of any successors, permitted assigns, heirs, executors, administrators and legal representatives. Except as expressly provided herein, nothing in this Agreement is intended to confer upon any party other than the parties hereto or their respective successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement. (g) Expenses. Each party hereto shall bear his, her or its own expenses incurred in connection with the preparation, negotiation, execution and performance of this Agreement. (h) Severability. If any provision of this Agreement is declared or found to be illegal, invalid or unenforceable, then such provision will be stricken or modified to the extent necessary to make
10 it legal, valid, and enforceable while preserving the original intent of the parties hereto to the maximum extent possible. The remaining provisions of this Agreement will remain in full force and effect. (i) Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to that body of laws pertaining to conflict of laws. The parties hereto (i) hereby irrevocably and unconditionally submit to the jurisdiction of the state courts of the State of Delaware and to the jurisdiction of the United States District Court for the District of Delaware for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (ii) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the state courts of the State of Delaware or the United States District Court for the District of Delaware, and (iii) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court. (j) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE PURCHASED MEMBERSHIP INTERESTS OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL- ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. (k) Attorneys’ Fees. If any party hereto institutes an action or proceeding against any other party hereto relating to the provisions of this Agreement, the party to such action or proceeding which does not prevail will reimburse the prevailing party therein for the reasonable expenses of attorneys’ fees and disbursements incurred by the prevailing party. (l) Headings. The paragraph headings contained in this Agreement are for reference purposes only and are not intended to affect in any way the meaning or interpretation of this Agreement. (m) Counterparts. This Agreement may be executed in counterparts, including by electronic mail (including PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method, each of which will be deemed an original document but all of which will constitute a single document. (n) Voluntary and Complete Agreement. Each party hereto acknowledges that it voluntarily, free of any duress or coercion, negotiated the purchase and sale of the Purchased Membership Interests, including the Seller Purchase Prices payable to each Seller by the Purchasers. The parties hereto have carefully read and understand this Agreement. The parties hereto acknowledge that none of the other parties hereto, nor any of their respective directors, officers, partners, members, managers, equityholders, affiliates and agents has made any promise, representation or warranty whatsoever, either express or implied, written or oral, that is not contained in this Agreement for the purpose of inducing such party to
11 execute, deliver and perform this Agreement, including with respect to the negotiation of the Seller Purchase Prices, and the parties hereto acknowledge that the other parties have executed and delivered this Agreement in reliance only upon such promises, representations and warranties as are contained in this Agreement. The parties hereto waive with respect to this Agreement the application of any law, regulation or rule providing that ambiguities in an agreement shall be construed against the party drafting such agreement. (o) No Other Representations; Non-Reliance. Each party hereto acknowledges and agrees that, in making its decision to enter into this Agreement and to consummate the transactions contemplated hereby, it has relied solely on the express representations and warranties set forth in this Agreement and has not relied on any other statement, representation, warranty, promise or information of any kind, whether written or oral, made or provided by any other party hereto or any of their respective directors, officers, partners, members, managers, equityholders, affiliates, agents or representatives, except as expressly set forth in this Agreement. (p) Preservation of LLCA Indemnification and Exculpation Rights. Notwithstanding anything to the contrary in this Agreement (including Sections 5 and 6), nothing herein shall limit, impair or otherwise adversely affect any rights to indemnification, exculpation or advancement of expenses to which any present or former Director or other Covered Person (as defined in the LLCA) is or may be entitled under Sections 3.11 and 3.12 of the LLCA or any other applicable organizational document or agreement, all of which rights shall survive in accordance with their terms. [Remainder of page intentionally left blank]
[Signature Page to Membership Interests Purchase Agreement] IN WITNESS WHEREOF, the parties hereto have executed and delivered this Membership Interests Purchase Agreement effective as of the date first above written. COMPANY, solely for purposes of Section 1(b), Section 4 and Section 8(p): CRESTONE ASSET MANAGEMENT, LLC By: Name: Callan Jorgensen Title: Authorized Signatory Address: _________________________________ _________________________________ Email: ___________________________ Docusign Envelope ID: C7AD4EE2-0A47-8B2B-8270-F6BC0C699243 [***] 4500 Cherry Creek Drive South, Suite 200 Denver, CO 80246
[Signature Page to Membership Interests Purchase Agreement] IN WITNESS WHEREOF, the parties hereto have executed and delivered this Membership Interests Purchase Agreement effective as of the date first above written. AVIATION GROWTH INITIATIVES, LLC By: Name: Kevin Milligan Title: President Address: _________________________________ _________________________________ Email: [***] Docusign Envelope ID: 2ECE2EDD-50E3-87C4-839B-D046A86F5D90 [***] [***]
[Signature Page to Membership Interests Purchase Agreement] IN WITNESS WHEREOF, the parties hereto have executed and delivered this Membership Interests Purchase Agreement effective as of the date first above written. AIR T ACQUISITION 26.1, LLC By: Name: Mark Jundt Title: Corporate Secretary Address: _________________________________ _________________________________ Email: Docusign Envelope ID: BE4D3801-B97D-8915-83DF-122889146B16 Minneapolis, MN 55416 5000 W. 36th St, Suite 200 [***]
[Signature Page to Membership Interests Purchase Agreement] IN WITNESS WHEREOF, the parties hereto have executed and delivered this Membership Interests Purchase Agreement effective as of the date first above written. MRC COMMON MEMBERS: MRC COMMON MEMBER LLC By: MR CAM Common Splitter 1, L.P., its managing member By: Mill Road Capital III GP LLC By: Name: Eric Yanagi Title: Management Committee Director Address: Email: c/o Mill Road Capital Management LLC, 328 Pemberwick Road, Greenwich, CT 06831 [***] MR CAM US SPLITTER 2, L.P. By: Mill Road Capital III GP LLC By: Name: Eric Yanagi Title: Management Committee Director Address: Email: c/o Mill Road Capital Management LLC, 328 Pemberwick Road, Greenwich, CT 06831 [***] Docusign Envelope ID: 91EE1C72-CD41-829F-81B7-D6F09EAB510C
4918-5402-2307.v6 Schedule 1 Purchased Membership Interests AGI’s Purchased Membership Interests: Seller Name Purchased Common Interests Seller Purchase Price Wire Transfer Instructions MRC Common Member LLC 4.2138% $2,612,565.50 Bank Name: [***] Bank ABA #: [***] Account Name: [***] Account #: [***] MR CAM US Splitter 2, L.P. 0.7862% $487,434.50 Bank Name: [***] Bank ABA #: [***] Account Name: [***] Account #: [***] Total: 5% $3,100,000 - ATA’s Purchased Membership Interests: Seller Name Purchased Common Interests Seller Purchase Price Wire Transfer Instructions MRC Common Member LLC 4.2138% $2,612,565.50 Bank Name: [***] Bank ABA #: [***] Account Name: [***]
4918-5402-2307.v6 Account #: [***] MR CAM US Splitter 2, L.P. 0.7862% $487,434.50 Bank Name: [***] Bank ABA #: [***] Account Name: [***] Account #: [***] Total: 5% $3,100,000 -
EX-10.3
EX-10.3
Filename: a103redemptionagreement_.htm · Sequence: 5
a103redemptionagreement_
Execution Version REDEMPTION AGREEMENT This Redemption Agreement (this “Agreement”), dated June 10, 2026, is entered into by and among Crestone Asset Management, LLC, a Delaware series limited liability company (the “Company”), Aviation Growth Initiatives, LLC, a Delaware limited liability company (“AGI”), Air T Acquisition 26.1, LLC, a Minnesota limited liability company, (“ATA”) and Air T, Inc., a Delaware corporation (“Air T” and, together with AGI and ATA, the “Redeemed Members”). Reference is made to that certain Second Amended and Restated Limited Liability Company Agreement of the Company, dated as of September 1, 2022 (the “LLCA”). Capitalized terms used but not defined herein shall have the meanings given to such terms in the LLCA. WHEREAS, immediately prior to giving effect to the transactions contemplated by this Agreement, AGI and ATA entered into a Membership Interest Purchase Agreement, dated as of the date hereof, with the Company and the MRC Common Members (the “Purchase Agreement”) pursuant to which AGI and ATA each purchased certain Common Interests from the MRC Common Members (the “Initial Purchase Transaction”); WHEREAS, after giving effect to the Initial Purchase Transaction, the Redeemed Members collectively hold all of the Common Interests, and each Redeemed Member desires to have the Company redeem 99% of the Common Interests held by such Redeemed Member (collectively, the “Redeemed Interests”); WHEREAS, (i) the Redeemed Members, by entering into this Agreement, acknowledge and consent to the transactions contemplated by this Agreement, including pursuant to Section 3.6(b)(ii) of the LLCA, and (ii) the MRC Members are hereby acknowledging and consenting to the transactions contemplated by this Agreement, including pursuant to Section 3.6(a)(ii) of the LLCA; WHEREAS, pursuant to Section 9.2 of the LLCA, the Board of the Company and the Onshore Series must approve any Transfer of a Member’s Interest; WHEREAS, the Board of the Company and the Onshore Series has approved the transactions contemplated by this Agreement; and WHEREAS, the Company desires to purchase and redeem the Redeemed Interests, upon the terms and conditions set forth in this Agreement. NOW THEREFORE, for and in consideration of the premises and mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Redemption of the Redeemed Interests. The Redeemed Members hereby sell, assign, transfer, convey and deliver to the Company, and the Onshore Series of the Company hereby redeems and purchases all right, title and interest in and to the Redeemed Interests held by the Redeemed Members, free and clear of any Encumbrance (as defined below) other than Permitted Encumbrances (as defined below). For the avoidance of doubt, the Redeemed Members shall retain all Common Interests not constituting Redeemed Interests and shall continue as Common Members with respect to such retained interests. 2. Consideration. In consideration for the transfer by the Redeemed Members of the Redeemed Interests and the other covenants contained herein, the Onshore Series of the Company shall distribute to the Redeemed Members all of the Onshore Series’ right, title and interest in and to each of the agreements set forth on Schedule 1 hereto (collectively, the “Servicing Agreements”) (the “Consideration”), representing full and final payment for the Redeemed Interests. The Redeemed Members’ right and interest in the Consideration shall be ratable based on their respective ownership interests in the Company immediately prior to the redemption. 3. Closing. At the closing of the transactions contemplated by this Agreement (the “Closing”), the Company and the Redeemed Members shall execute and deliver an assignment and 53155939.v10 Certain identified information has been omitted from this exhibit pursuant to Item 601(a)(6) of Regulation S-K because disclosure would constitute a clearly unwarranted invasion of personal privacy. Information that was omitted has been noted in this document with a placeholder identified by the mark ‘[***].’
2 assumption agreements to effect the assignment of the Servicing Agreements. 4. Non-Assignable Servicing Agreements. (a) Notwithstanding anything to the contrary in this Agreement, to the extent that the assignment of any Servicing Agreement (or any right, benefit, claim or interest thereunder) to the Redeemed Members (i) requires the consent of any third party that is not or cannot be obtained prior to Closing, (ii) would constitute a breach or other violation of such Servicing Agreement, or (iii) is otherwise prohibited by applicable law (each such Servicing Agreement, a “Non-Assignable Agreement”), the Closing shall proceed without the assignment of such Non-Assignable Agreement, and such Non-Assignable Agreement shall not be assigned or transferred to the Redeemed Members until such consent is obtained or such breach, violation or prohibition is resolved. (b) Following the Closing and until the applicable consent, approval or waiver is obtained with respect to any Non-Assignable Agreement, the Company shall (i) use commercially reasonable efforts to obtain such consent, approval or waiver as promptly as practicable, (ii) hold and maintain such Non- Assignable Agreement for the benefit of the Redeemed Members, (iii) cooperate with the Redeemed Members in any reasonable arrangement designed to provide the Redeemed Members with all of the benefits of such Non-Assignable Agreement, including by (A) enforcing (at the direction and expense of the Redeemed Members) any rights of the Company arising under such Non-Assignable Agreement (including the right to elect to terminate such Non-Assignable Agreement in accordance with the terms thereof upon the written direction of the Redeemed Members), and (B) promptly remitting to the Redeemed Members all fees, payments and other amounts received by the Company under such Non-Assignable Agreement, and (iv) at the direction of the Redeemed Members, perform or cause to be performed the obligations of the Company under such Non-Assignable Agreement, to the extent that such performance would not result in any breach, default, termination, fee or penalty. For the avoidance of doubt, from and after the Closing, the Redeemed Members shall be entitled to receive all economic benefits arising under each Non-Assignable Agreement, including all fees, revenues and other amounts payable thereunder, and the Company shall have no right to retain any such amounts for its own account. (c) The Redeemed Members shall (i) pay, perform and discharge, or cause to be paid, performed and discharged, fully and promptly when due, all obligations and liabilities arising under each Non-Assignable Agreement to the extent such obligations and liabilities would have been assumed by the Redeemed Members had such Non-Assignable Agreement been assigned at the Closing, and (ii) indemnify and hold harmless the Company from and against any losses arising out of or relating to any Non- Assignable Agreement, to the extent such losses relate to the period from and after the Closing. (d) Once the requisite consent, approval or waiver is obtained with respect to any Non- Assignable Agreement, the Company shall promptly assign, transfer, convey and deliver such Non- Assignable Agreement (or the applicable right, benefit, claim or interest thereunder) to the Redeemed Members, and the Redeemed Members shall assume all obligations and liabilities arising thereunder. 5. Representations and Warranties of the Redeemed Members. In connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement, each Redeemed Member, severally and not jointly, represents and warrants to the Company on behalf of itself as follows: (a) Authorization; Enforceability. Such Redeemed Member is duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation or incorporation. Such Redeemed Member has full legal capacity, right, power and authority to enter into and perform its obligations under this Agreement and to consummate the transactions contemplated under this Agreement.
3 The execution, delivery and performance of this Agreement by such Redeemed Member and the consummation of the transactions contemplated hereby (i) have been duly authorized by all requisite action on the part of such Redeemed Member and (ii) assuming the due authorization, execution and delivery by the Company of this Agreement, constitutes the legal, valid and binding obligation of such Redeemed Member, enforceable in accordance with its terms, except as limited by applicable bankruptcy, insolvency, moratorium or other similar federal or state laws affecting the rights of creditors, and as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies. (b) Title to Redeemed Interests. Such Redeemed Member is the record holder and beneficial owner of, has good and marketable title to, and has the authority to sell, its respective Redeemed Interests. Other than (i) transfer restrictions imposed by Article 9 of the LLCA and (ii) United States federal and state securities laws (clauses (i) and (ii), collectively, the “Permitted Encumbrances”), such Redeemed Member’s Redeemed Interests are free and clear of, and such Redeemed Member has not taken any action or omitted to take any action required to be taken by such Redeemed Member that has or will directly or indirectly impose, any lien, pledge, claim, hypothecation, charge, mortgage, security interest, assessment, contractual obligation, right of others, title defect, voting trust or similar arrangement, limitations on voting rights, restriction on transfer, proxy, title retention, encumbrance or restriction of any nature, whether arising by agreement, operation of law or otherwise (collectively, the “Encumbrances”). Subject to Section 1 and Section 2, at the Closing, such Redeemed Member’s entire right, title and interest in and such Redeemed Member’s Redeemed Interests shall be conveyed to the Company as set forth herein. (c) LLCA. Other than the LLCA, there are no agreements, understandings, judgments, orders or Encumbrances granting rights or imposing obligations or restrictions with respect to such Redeemed Member’s Redeemed Interests. (d) Consents. No consent, approval or authorization of or designation, declaration or filing with any person, entity or governmental authority on the part of such Redeemed Member is required in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, except for the consent of the Board and the applicable Series required under Section 9.2 of the LLCA, which consents shall have been obtained or waived by the requisite parties on or prior to the Closing. (e) No Violation or Default. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will not result in any violation, default or breach of any provision of any instrument, judgment, order, writ, decree, contract or agreement to which such Redeemed Member is a party or by which such Redeemed Member is bound, including, without limitation, the LLCA. Such Redeemed Member is not in default or breach (and, to the knowledge of such Redeemed Member, no set of facts exist that with the passage of time or otherwise would constitute a default or breach by such Redeemed Member) under any instrument, judgment, order, writ, decree, contract or agreement relating to such Redeemed Member’s Redeemed Interests to which such Redeemed Member is a party or by which such Redeemed Member is bound, including, without limitation, the LLCA. (f) Litigation. There is no action, suit, proceeding or investigation pending or, to the knowledge of such Redeemed Member, threatened against such Redeemed Member in connection with such Redeemed Member’s ownership of its Redeemed Interests or any action or inaction by such Redeemed Member as a security holder or creditor of the Company, nor is such Redeemed Member aware of any facts that might result in any such action, suit, proceeding or investigation. There is no action, suit, proceeding or investigation by such Redeemed Member currently pending or that such Redeemed Member intends to initiate that relates to such Redeemed Member’s Redeemed Interests or otherwise relates to the Company or its members.
4 6. Representations and Warranties of the Company. In connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement, the Company represents and warrants to the Redeemed Members as follows: (a) Authorization; Enforceability. The Company is a series limited liability company duly formed and validly existing under the laws of the State of Delaware. The Company has full legal right, power and authority to enter into and perform its obligations under this Agreement and to consummate the transactions contemplated under this Agreement. The execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby, assuming the due authorization, execution and delivery by each Redeemed Member, constitutes the legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except as limited by applicable bankruptcy, insolvency, moratorium or other similar federal or state laws affecting the rights of creditors, and as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies. (b) Sufficiency of Consideration. The Consideration as of the Closing is sufficient consideration for the Redeemed Interests. 7. Waiver of Restrictive Covenants. Effective as of the Closing, the Company and each Member hereby irrevocably waive, release and terminate, with respect to each other Member (and, to the extent applicable, their respective Affiliates), the restrictive covenants set forth in the last sentence of Section 3.9 and Section 3.10 of the LLCA. 8. General Provisions. (a) Survival; No Double Recovery. The representations, warranties, covenants and agreements made by the parties hereto and the rights of the parties hereto to be indemnified, compensated and reimbursed with respect to any breach of or inaccuracy in any of such representations, warranties, covenants and agreements shall survive the Closing. (b) U.S. Federal Income Tax Treatment. The parties intend that the redemption of the Redeemed Interests shall be treated for U.S. federal income tax purposes as a distribution of property by the Onshore Series of the Company to the Redeemed Members in partial redemption pursuant to IRC Section 731. Pursuant to IRC Section 731(a), the distribution of property (other than money) to the Redeemed Members in partial redemption shall be tax-free to the Redeemed Members. The parties agree to report the transactions contemplated by this Agreement on their respective federal, state and local income tax returns in a manner consistent with this Section 81(b), unless otherwise required by a final determination within the meaning of IRC Section 1313(a). (c) Notices. All notices given pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or: (i) personal delivery to the party to be notified, (ii) when sent, if sent by electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, or (iii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid. All communications shall be sent to the respective parties at their address as set forth on the signature pages hereto, or to such other address as subsequently modified by written notice given in accordance with this Section 8(c). (d) Further Assurances. Each party hereto agrees, at any time after the Closing and at the reasonable request of any other party, to (i) promptly execute and deliver such further documents, instruments and agreements as may be reasonably necessary to carry out the purposes of this Agreement,
5 (ii) cooperate with any governmental filings required in connection herewith, (iii) provide reasonable assistance with tax returns and tax authority inquiries relating to the transactions contemplated hereby and (iv) refrain from taking any action that would frustrate or impede the consummation of the transactions contemplated by this Agreement. (e) Entire Agreement. This Agreement and the documents referred to herein constitute the entire agreement and understanding of the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous understandings and agreements, whether oral or written, among the parties hereto with respect to the subject matter hereof. (f) Amendment and Waivers. This Agreement may not be modified without the prior written approval of the Company and each Redeemed Member. No amendment of or waiver of, or modification of any obligation under this Agreement will be enforceable unless set forth in a writing signed by the party against which enforcement is sought. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. No waiver granted under this Agreement as to any one provision herein shall constitute a subsequent waiver of such provision or of any other provision herein, nor shall it constitute the waiver of any performance other than the actual performance specifically waived. (g) Assignment; Successors and Assigns; Third Party Beneficiaries. No party hereto may assign its rights or obligations under this Agreement without the prior written consent of the other parties hereto. This Agreement, and the rights and obligations of the parties hereunder, will be binding upon and inure to the benefit of any successors, permitted assigns, heirs, executors, administrators and legal representatives. Except as expressly provided herein, nothing in this Agreement is intended to confer upon any party other than the parties hereto or their respective successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement. (h) Expenses. Each party hereto shall bear his, her or its own expenses incurred in connection with the preparation, negotiation, execution and performance of this Agreement. (i) Severability. If any provision of this Agreement is declared or found to be illegal, invalid or unenforceable, then such provision will be stricken or modified to the extent necessary to make it legal, valid, and enforceable while preserving the original intent of the parties hereto to the maximum extent possible. The remaining provisions of this Agreement will remain in full force and effect. (j) Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to that body of laws pertaining to conflict of laws. The parties hereto (i) hereby irrevocably and unconditionally submit to the jurisdiction of the state courts of the State of Delaware and to the jurisdiction of the United States District Court for the District of Delaware for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (ii) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the state courts of the State of Delaware or the United States District Court for the District of Delaware, and (iii) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court. (k) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
6 OUT OF THIS AGREEMENT, THE REDEEMED INTERESTS OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. (l) Attorneys’ Fees. If any party hereto institutes an action or proceeding against any other party hereto relating to the provisions of this Agreement, the party to such action or proceeding which does not prevail will reimburse the prevailing party therein for the reasonable expenses of attorneys’ fees and disbursements incurred by the prevailing party. (m) Headings. The paragraph headings contained in this Agreement are for reference purposes only and are not intended to affect in any way the meaning or interpretation of this Agreement. (n) Counterparts. This Agreement may be executed in counterparts, including by electronic mail (including PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method, each of which will be deemed an original document but all of which will constitute a single document. (o) Voluntary and Complete Agreement. Each party hereto acknowledges that it voluntarily, free of any duress or coercion, negotiated the redemption of the Redeemed Interests. The parties hereto have carefully read and understand this Agreement. The parties hereto acknowledge that none of the other parties hereto, nor any of their respective directors, officers, partners, members, managers, equityholders, affiliates and agents has made any promise, representation or warranty whatsoever, either express or implied, written or oral, that is not contained in this Agreement for the purpose of inducing such party to execute, deliver and perform this Agreement and the parties hereto acknowledge that the other parties have executed and delivered this Agreement in reliance only upon such promises, representations and warranties as are contained in this Agreement. The parties hereto waive with respect to this Agreement the application of any law, regulation or rule providing that ambiguities in an agreement shall be construed against the party drafting such agreement. [signature page follows]
[Signature Page Redemption Agreement] IN WITNESS WHEREOF, the parties hereto have executed and delivered this Redemption Agreement effective as of the date first above written. COMPANY: CRESTONE ASSET MANAGEMENT, LLC By: Name: Callan Jorgensen Title: Authorized Signatory Address: _________________________________ ___________________ Email: Docusign Envelope ID: C7AD4EE2-0A47-8B2B-8270-F6BC0C699243 4500 Cherry Creek Drive South, Suite 200 Denver, CO 80246 ______________ [***]_____________________________
[Signature Page Redemption Agreement] IN WITNESS WHEREOF, the parties hereto have executed and delivered this Redemption Agreement effective as of the date first above written. AVIATION GROWTH INITIATIVES, LLC By: Name: Kevin Milligan Title: President Address: Email: Docusign Envelope ID: 2ECE2EDD-50E3-87C4-839B-D046A86F5D90 [***] ._______________________________ [***] [***]
[Signature Page Redemption Agreement] IN WITNESS WHEREOF, the parties hereto have executed and delivered this Redemption Agreement effective as of the date first above written. AIR T, INC. By: Name: Nick Swenson Title: Chief Executive Officer Address: Email: 5000 W 36th Street, Suite 200 Minneapolis, MN 55416 _________________________________ Docusign Envelope ID: 7155BC01-5438-8BEC-80A2-E0736B360D02 [***]
[Signature Page Redemption Agreement] IN WITNESS WHEREOF, the parties hereto have executed and delivered this Redemption Agreement effective as of the date first above written. AIR T ACQUISITION 26.1, LLC By: Name: Mark Jundt Title: Corporate Secretary Address: _________________________________ _________________________________ Email: ____________[***] Docusign Envelope ID: BE4D3801-B97D-8915-83DF-122889146B16 Minneapolis, MN 55416 5000 W. 36th St, Suite 200
[Signature Page Redemption Agreement] IN WITNESS WHEREOF, the parties hereto have executed and delivered this Redemption Agreement effective as of the date first above written. Acknowledged and Consented to by: MRC MEMBERS: MRC COMMON MEMBER LLC By: MR CAM Common Splitter 1, L.P., its managing member By: Mill Road Capital III GP LLC By: Name: Eric Yanagi Title: Management Committee Director MR CAM COMMON SPLITTER 1, L.P. By: Mill Road Capital III GP LLC By: Name: Eric Yanagi Title: Management Committee Director MR CAM US SPLITTER 2, L.P. By: Mill Road Capital III GP LLC By: Name: Eric Yanagi Title: Management Committee Director MR CAM NON-US SPLITTER 3, L.P. By: Mill Road Capital III GP LLC By: Name: Eric Yanagi Title: Management Committee Director Docusign Envelope ID: 91EE1C72-CD41-829F-81B7-D6F09EAB510C
Schedule 1 Servicing Agreements 1. Servicing Agreement, among Blue Crest Prospector Pico Duarte Designated Activity Company and Crestone Asset Management LLC, as amended and supplemented from time to time, dated February 18, 2026 2. Servicing Agreement, among Contrail Asset Management, LLC, Contrail JV II, LLC and Crestone Air Partners, Inc., as amended and supplemented from time to time, dated May 5, 2021 3. Management Agreement, among Contrail Asset Management, LLC and Contrail JV II, LLC, dated May 5, 2021 4. Servicing Agreement, among Blue Crest Aviation Partners 2025-1 LLC, the Serviced Group Members (as defined in the Servicing Agreement) and Crestone Asset Management LLC, as amended and supplemented from time to time, dated August 1, 2025 5. Servicing Agreement, among Crestone Asset Management, LLC, Contrail JV II, LLC, Sunrise Non-US PO 17 Limited, the Serviced Group Members (as defined in the Servicing Agreement) and Crestone Air Partners, Inc., dated June 3, 2025 6. Servicing Agreement, among Crestone Asset Management, LLC, Contrail JV II, LLC, Sunrise Aircraft US Holdco 2, LLC, Sunrise Aircraft Cayman Portfolio Holdco, Sunrise Non-US PO 15 Limited, the Serviced Group Members (as defined in the Servicing Agreement) and Crestone Air Partners, Inc., as amended and supplemented from time to time, dated March 28, 2025 7. Aircraft Asset Marketing Agreement, among Cross Ocean Aviation (Cargo), Cross Ocean Partners Management LP and Crestone Asset Management, LLC, dated August 14, 2025
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Filename: a104amendmenttosecondarl.htm · Sequence: 6
a104amendmenttosecondarl
Execution Version AMENDMENT TO SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF CRESTONE ASSET MANAGEMENT, LLC This Amendment to the Second Amended and Restated Limited Liability Company Agreement (this “Amendment”) of Crestone Asset Management, LLC, a Delaware limited liability company (the “Company”), is entered into as of June 10, 2026 (the “Effective Date”), by and among the Company and the Members listed on the signature pages hereto. RECITALS WHEREAS, the Company and the Members are parties to that certain Second Amended and Restated Limited Liability Company Agreement of Contrail Asset Management, LLC (now known as Crestone Asset Management, LLC), dated as of September 1, 2022 (as supplemented, amended and modified and as in effect immediately prior to this Amendment, the “Agreement”); WHEREAS, in connection with certain transactions involving the transfer and redemption of Common Interests pursuant to the Membership Interest Purchase Agreement dated June 10, 2026 among the Company, MRC Common Member LLC, MR CAM US Splitter 2, L.P., Aviation Growth Initiatives, LLC (“AGI”) and Air T, Inc. (“Air T”) and the Redemption Agreement dated June 10, 2026 among the Company, AGI and Air T, the parties desire to amend the Agreement; and WHEREAS, Section 14.3(a) of the Agreement provides that the Agreement may be amended with the written consent of the Board and all of the Members. NOW, THEREFORE, in consideration of the mutual agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: ARTICLE I AMENDMENTS 1. Section 3.1(d)(i) — MRC Director. Section 3.1(d)(i) of the Agreement is hereby amended by replacing “Eric Yanagi” with “Kevin Milligan.” 2. Section 3.3(d) — Investments in Target Strategies. The first sentence of Section 3.3(d) of the Agreement is hereby amended by replacing “the MRC Director declines to approve” with “the MRC Investor Members decline to approve.” 3. Section 3.6(a) — MRC Investor Member Rights. Section 3.6(a) of the Agreement is hereby amended and restated in its entirety as follows:
“(a) MRC Investor Member Rights. Notwithstanding anything to the contrary herein, neither the Company nor any Series shall take any of the following actions, or permit any Participating Holdco to do any of the following, without the prior written consent of the MRC Investor Members holding a majority of the Investor Interests held by all MRC Investor Members: (i) Any amendment to this Agreement, the Certificate of Formation, the governing documents of any Participating Holdco or any new agreement or other document that would adversely affect the rights or obligations of the MRC Investor Members; (ii) The creation of any new Series or class of equity or the redemption or repurchase of any equity interests of the Company, any Series or any Holdco Vehicle, or the issuance of any equity of the Company, if such action would adversely affect the MRC Investor Members or their interests in Distributable Proceeds or other cash flow of the Company or any Series, including without limitation (A) any cross guarantees or similar arrangements pursuant to which the Company, any Series or any Participating Holdco would guarantee or otherwise become liable for the obligations of another Series, any other Holdco Vehicle or any third party, or (B) any mortgage, security interest or other lien on any assets of a Series or any Participating Holdco granted to secure the obligations of another Person; (iii) Any change in the allocation of distributions to the Investor Members under Article 7, any change to the Preferred Return or the terms on which Investor Members participate in distributions, or any other action that would adversely affect the MRC Investor Members’ interests in Distributable Proceeds or other cash flow of the Company or any Series, including without limitation (A) any cross guarantees or similar arrangements pursuant to which the Company, any Series or any Participating Holdco would guarantee or otherwise become liable for the obligations of another Series, any other Holdco Vehicle or any third party, or (B) any mortgage, security interest or other lien on any assets of a Series or any Participating Holdco granted to secure the obligations of another Person; (iii) Any increase in the Commitment of the MRC Investor Members or acceleration of Capital Contribution obligations beyond what is otherwise required under this Agreement; (iv) The merger, consolidation, reorganization, recapitalization, sale of all or substantially all of the assets, liquidation, dissolution or termination of the Company, any Series to which MRC Investor Members hold an interest or any Participating Holdco or any other extraordinary transaction outside of the ordinary course of business involving any of the foregoing Persons or any of their respective subsidiaries; (v) Approval of any amendment to a Management Agreement or any other documentation setting forth fees charged to any Series, any Participating Holdco or
any of their respective subsidiaries by the Air T Member or any of its Affiliates or subsidiaries; (vi) Any changes to any fees (including the Management Incentive Fee and the Administration Fee) payable to or from, or fee arrangements among, any of the Company, any Series, any Participating Holdco and any MRC Investor Member; or (vii) The commencement or settlement of any material litigation involving any Series, any Participating Holdco or any of their respective subsidiaries.” 4. Section 3.9 — Other Activities. The last sentence of Section 3.9 of the Agreement (beginning “Notwithstanding the foregoing, until the earlier of…”) is hereby deleted in its entirety. 5. Section 3.15 — Other Agreements. Section 3.15 of the Agreement is hereby amended and restated in its entirety as follows: “Section 3.15 Other Agreements. Subject to Section 3.1(q), in the event the MRC Investor Members reasonably believe that Air T, the Air T Member or any of their respective Affiliates, as applicable, has breached, in any material respects, any of its obligations under any Management Agreement or any Air T Agreement, and if such breach is not capable of being cured or is not cured within thirty (30) days of the Board receiving written notice from the MRC Investor Members of such breach, which notice shall reasonably identify the nature of the breach, the Independent Director, acting alone, shall have the exclusive right to enforce such Management Agreement or Air T Agreement, as applicable, on behalf of the Company in respect of such breach, including seeking any rights or remedies the Company may have against Air T, the Air T Member or any of their respective Affiliates, as applicable, as a result of such breach. For the avoidance of doubt, the procedures set forth in this Section 3.15 shall apply with respect to each breach alleged by the MRC Investor Members.” 6. Section 3.16(a) — Air T Cause Event. Section 3.16(a) of the Agreement is hereby amended by replacing “the MRC Members, with MRC Consent, shall have the right” with “the MRC Members, with the consent of the MRC Investor Members, shall have the right.” 7. Section 3.16(b). Section 3.16(b) of the Agreement is hereby amended by replacing “as may be reasonably requested by the MRC Common Members” with “as may be reasonably requested by the MRC Investor Members.” 8. Section 4.10(a) — Default. Section 4.10(a) of the Agreement is hereby amended by deleting the clause “, and the MRC Director being excluded from any determination with respect to a default by an MRC Investor Member.” 9. Section 4.7(a) — Initial Contribution and Common Interests. Section 4.7(a) of the Agreement is hereby amended by adding the following sentence at the end thereof: “For the avoidance of doubt, the references to the MRC Common Members in this Section 4.7(a) are historical provisions relating to the initial MRC Common Members (as defined in the Agreement in effect as of September 1, 2022) and shall not be read to refer to any subsequent holders of Common Interests.”
10. Section 7.1 — Timing of Distributions. Section 7.1 of the Agreement is hereby amended by deleting both references to “including Section 7.6” therein. 11. Section 7.2 — Fee Income and Holdco Vehicle Promote. The second sentence of Section 7.2 of the Agreement is hereby deleted in its entirety and replaced with “After reduction for the payment of Company and Series expenses and other Company and Series liabilities or obligations in accordance with the terms hereof, such Fee Income and Holdco Vehicle Promote shall be as promptly as practicable distributed by the Onshore Series to the Common Members in proportion to their respective Common Interests.” 12. Section 7.6 — Reserves and Reinvestment. Section 7.6 of the Agreement is hereby deleted in its entirety and replaced with “[Intentionally Left Blank.]” 13. Section 9.6 — Put Option; Call Option. Section 9.6 of the Agreement (including all subsections (a) through (d) thereof) is hereby deleted in its entirety and replaced with “[Intentionally Left Blank.]” 14. Section 13.2 — Valuation of Common Interests. Section 13.2 of the Agreement is hereby amended by replacing “shall be made” with “may be made.” 15. Section 14.3(c) — Waivers. Section 14.3(c) of the Agreement is hereby amended by (i) deleting the phrase “, including the MRC Director” therefrom and (ii) adding the following sentence at the end thereof: “Notwithstanding the foregoing, if any waiver of any right or remedy would be reasonably likely to adversely affect the MRC Investor Members, then such waiver shall require the prior written consent of the MRC Investor Members.” 16. Schedule A — Definition of “Distributable Proceeds.” The definition of “Distributable Proceeds” in Schedule A of the Agreement is hereby amended by deleting the clause “, less all amounts disbursed by the Series in such period for Series expenses or other liabilities or obligations and the amount of all reserves established pursuant to Section 7.6” therefrom. 17. Schedule A — Definition of “MRC Common Members.” The definition of “MRC Common Members” in Schedule A of the Agreement is hereby deleted in its entirety. Subject to the amendment to Section 4.7(a) reflected in Section 9 hereof, all references to “MRC Common Members” throughout the Agreement shall be replaced with “Common Members.” 18. Schedule A — Definition of “MRC Consent.” The definition of “MRC Consent” in Schedule A of the Agreement is hereby deleted in its entirety. 19. Schedule A — Definition of “MRC Members.” The definition of “MRC Members” in Schedule A of the Agreement is hereby amended and restated in its entirety as follows: “MRC Members” means the MRC Investor Members, and any Affiliate of the foregoing that becomes a Member hereunder.”
ARTICLE II GENERAL PROVISIONS 1. Defined Terms. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Agreement. 2. Effect of Amendment. Except as expressly amended hereby, the Agreement shall remain in full force and effect and is hereby ratified and confirmed in all respects. In the event of any conflict between the terms of this Amendment and the terms of the Agreement, the terms of this Amendment shall control. 3. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware without regard to the conflicts of law principles thereof. 4. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart by electronic transmission shall be effective as delivery of an original executed counterpart. 5. Effective Date. This Amendment shall be effective as of the Effective Date. 6. Amendment of this Amendment. This Amendment shall not be amended, modified or waived in any respect without the prior written consent of the MRC Investor Members. [Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above. COMPANY: CRESTONE ASSET MANAGEMENT, LLC By: ___________________________________ Name: Callan Jorgensen Title: Authorized Signatory COMMON MEMBERS: AIR T, INC. By: ___________________________________ Name: Nick Swenson Title: Chief Executive Officer AVIATION GROWTH INITIATIVES, LLC By: ___________________________________ Name: Kevin Milligan Title: President Docusign Envelope ID: C7AD4EE2-0A47-8B2B-8270-F6BC0C699243
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above. COMPANY: CRESTONE ASSET MANAGEMENT, LLC By: ___________________________________ Name: Callan Jorgensen Title: Authorized Signatory COMMON MEMBERS: AIR T, INC. By: ___________________________________ Name: Nick Swenson Title: Chief Executive Officer AVIATION GROWTH INITIATIVES, LLC By: ___________________________________ Name: Kevin Milligan Title: President Docusign Envelope ID: 7155BC01-5438-8BEC-80A2-E0736B360D02
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above. COMPANY: CRESTONE ASSET MANAGEMENT, LLC By: ___________________________________ Name: Callan Jorgensen Title: Authorized Signatory COMMON MEMBERS: AIR T, INC. By: ___________________________________ Name: Nick Swenson Title: Chief Executive Officer AVIATION GROWTH INITIATIVES, LLC By: ___________________________________ Name: Kevin Milligan Title: President Docusign Envelope ID: 2ECE2EDD-50E3-87C4-839B-D046A86F5D90
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above. MRC INVESTOR MEMBERS: MR CAM COMMON SPLITTER 1, L.P. By: Mill Road Capital III GP LLC By: Name: Eric Yanagi Title: Management Committee Director MR CAM US SPLITTER 2, L.P. By: Mill Road Capital III GP LLC By: Name: Eric Yanagi Title: Management Committee Director MR CAM NON-US SPLITTER 3, L.P. By: Mill Road Capital III GP LLC By: Name: Eric Yanagi Title: Management Committee Director Docusign Envelope ID: 91EE1C72-CD41-829F-81B7-D6F09EAB510C
EX-10.5
EX-10.5
Filename: a105escrowagreement_reda.htm · Sequence: 7
a105escrowagreement_reda
Private and ConfidentialESCROW AGREEMENT This Escrow Agreement (“Agreement”) is entered into as of June 10, 2026, among Crestone Air Partners, LLC, a Delaware limited liability company (the “Purchaser”), Dirk-Jan Smit, an individual and a resident of the Netherlands as agent and true and lawful attorney in fact of the Seller Indemnitors (the “Securityholders’ Agent”) and Bank of Utah, a Utah corporation, as escrow agent (the “Escrow Agent”). The Purchaser and the Securityholders’ Agent may be individually referred to as a “Party” and collectively as the “Parties”. This Agreement is being entered into in connection with the execution of a Share Purchase Agreement dated as of March 8, 2026 among the Purchaser, Arena Aviation Partners B.V., the Sellers and the Securityholders’ Agent, including that certain Addendum dated as of the date hereof (as amended or supplemented from time to time, the “Sale and Purchase Agreement”). Words used herein with capital letters and not otherwise defined will have the meanings set forth in the Sale and Purchase Agreement. In consideration of the payments herein provided for and the mutual agreements of the parties herein contained, the parties hereto agree as follows: SECTION 1 THE ESCROW ACCOUNTS 1.01 Escrow Accounts. The Escrow Agent has established two trust accounts at Bank of Utah (each, an “Escrow Account” and collectively, the “Escrow Accounts”): (a) an account designated as the “Indemnity Escrow Account,” and (b) an account designated as the “Tax Matters Escrow Account.” 1.02 Indemnity Escrow Account. All deposits by the Purchaser or the Sellers in the Indemnity Escrow Account shall be made by wire transfer of immediately available funds to: [***] 1.03 Tax Matters Escrow Account. All deposits by the Purchaser in the Tax Matters Escrow Account shall be made by wire transfer of immediately available funds to: [***] SECTION 2 THE ESCROW DEPOSITS 2.01 Indemnity Escrow Deposit. At or promptly after the Closing, the Purchaser shall promptly deposit into the Indemnity Escrow Account the amount of $750,000 (the “Indemnity Escrow Deposit”) in cash as set forth in the Sale and Purchase Agreement. All products and proceeds earned with respect to the Indemnity Escrow Deposit, including all interest, dividends, gains and other income earned with respect thereto (or interest payments, or property exchanged therefore) (collectively, the “Indemnity Escrow Funds”) shall be retained by the Escrow Agent and promptly reinvested in the Indemnity Escrow Funds and shall become part of the Indemnity Escrow Funds; and shall be disbursed as part of the Indemnity Escrow Funds in accordance with the terms and conditions of this Agreement. 2.02 Tax Matters Escrow Deposits. Following the Closing, the Purchaser may from time to time deposit funds into the Tax Matters Escrow Account in such amounts as determined by the Purchaser in accordance with the Sale and Purchase Agreement (each such deposit, a “Tax Matters Escrow Deposit” and collectively, the “Tax Matters Escrow Deposits”). No deposit shall be required to be made into the Tax Matters Escrow Account at the Closing. All products and proceeds earned with respect to the Tax Matters Escrow Deposits, including all interest, dividends, Certain identified information has been excluded from this exhibit because it is both not material and is the type that the registrant treats as private or confidential, or because disclosure would constitute a clearly unwarranted invasion of personal privacy. Information that was omitted has been noted in this document with a placeholder identified by the mark ‘[***].’
2 gains and other income earned with respect thereto (or interest payments, or property exchanged therefore) (collectively, the “Tax Matters Escrow Funds”) shall be retained by the Escrow Agent and promptly reinvested in the Tax Matters Escrow Funds and shall become part of the Tax Matters Escrow Funds; and shall be disbursed as part of the Tax Matters Escrow Funds in accordance with the terms and conditions of this Agreement. 2.03 Escrow Funds Uses. The Indemnity Escrow Funds and the Tax Matters Escrow Funds (collectively, the “Escrow Funds”) (i) shall not be subject to any lien, trustee process, judicial process, or attachment by any creditor of any Party and shall not be available to any creditor of the Escrow Agent, (ii) shall not be used by, the Escrow Agent or any of its affiliates to set off any amount owed by any Party to the Escrow Agent in any other capacity, and (iii) shall be held and disbursed solely for the purpose and in accordance with the terms of this Agreement. SECTION 3 INVESTMENT 3.01 Account Type. The Escrow Agent shall hold the Indemnity Escrow Deposit in the Indemnity Escrow Account and the Tax Matters Escrow Deposits in the Tax Matters Escrow Account, each insured by the Federal Deposit Insurance Corporation to the applicable limits, and will continue to do so until this Agreement terminates or until released as provided in Section 4 herein. Each Escrow Account is an interest bearing Bank of Utah, or affiliate, money market or treasury account. 3.02 Indemnity Escrow Account Interest. All interest, or other income earned under this Agreement with respect to the Indemnity Escrow Account, shall be allocated to the Purchaser and reported by the Escrow Agent to the Internal Revenue Service (“IRS”), or other taxing authority, on IRS Form 1099 or 1042S (or other appropriate form) as income earned from the Indemnity Escrow Deposit by the Purchaser, whether or not said income has been distributed during such year. 3.03 Tax Matters Escrow Account Interest. All interest, or other income earned under this Agreement with respect to the Tax Matters Escrow Account, shall be allocated to the Purchaser and reported by the Escrow Agent to the IRS, or other taxing authority, on IRS Form 1099 or 1042S (or other appropriate form) as income earned from the Tax Matters Escrow Deposits by the Purchaser, whether or not said income has been distributed during such year. 3.04 Withholding. Escrow Agent shall withhold any taxes it deems appropriate in the absence of proper tax documentation or as required by law, and shall remit such taxes to the appropriate authorities. SECTION 4 DISBURSEMENT 4.01 Disbursements. Upon either (a) disbursement instructions signed by both the Securityholders’ Agent and the Purchaser or (b) a final non-appealable order, decision or judgment of any court of competent jurisdiction directing the release of all or a portion of the Escrow Funds which may be issued, together with (i) a certificate executed by an Authorized Representative of the prevailing party, to the effect that such order is final and non-appealable and from a court of competent jurisdiction having proper authority and (ii) the written payment instructions executed by an Authorized Representative of the prevailing party, to effectuate such order in the form attached hereto as Appendix A (the “Disbursement Instructions”), the Escrow Agent is authorized and directed to send a wire transfer of immediately available funds from the applicable Escrow Account to the Securityholders’ Agent or the Purchaser, as applicable, pursuant to such
3 Disbursement Instructions, promptly, but in any event within two (2) business days after the Disbursement Instruction is received by the Escrow Agent 4.04 Authorized Representatives. The authorized persons to provide Disbursement Instructions to the Escrow Agent are (the “Authorized Representatives”): (1) for Purchaser: Name: Title: Address: Email: Telephone: Callan Jorgensen AVP Fund Administration 4500 Cherry Creek Drive South, Suite 200, Denver, Colorado 80246 [***] [***] And (2) for Securityholders’ Agent: Name: Address: Email: Telephone: Dirk-Jan Smit [***] [***] [***] 4.03 Notice. Any instructions, directions or notices required to be delivered hereunder to the Escrow Agent and any notice required to be delivered to the other parties hereto (a) shall be in writing, (b) may be delivered by hand delivery, reputable overnight courier, email, or via pdf copy, and (c) may be executed in one or more counterparts, each of which shall constitute an original and all of which, taken together, shall constitute one and the same instrument. All notices to the Escrow Agent shall be addressed as follows: If to the Escrow Agent If to the Purchaser: Bank of Utah 50 South 200 East Suite 110 Salt Lake City, UT 84111 Attention: Corporate Trust Services Email: corptrust@bankofutah.com Telephone: (801) 924-3690 Crestone Air Partners, LLC Kevin Milligan Chief Executive Officer 4500 Cherry Creek Drive South, Suite 200 Denver, Colorado 80246 [***] [***] If to the Securityholders’ Agent Dirk-Jan Smit [***]
4 [***] Telephone: [***] SECTION 5 INDEMNIFICATION 5.01 Indemnification. The Parties hereby agree to severally (and not jointly) indemnify, defend and hold the Escrow Agent harmless from and against any and all loss, damage, tax, liability and expense that may be incurred by the Escrow Agent arising out of or in connection with its duties, obligations or performance as Escrow Agent hereunder, except as caused by the Escrow Agent’s bad faith, fraud, gross negligence or willful misconduct or, in the case of the handling of funds, negligence, including the legal costs and expenses incurred by the Escrow Agent in bringing an interpleader action and defending itself against any claim or liability in connection with its performance hereunder. The terms of this Section 5 shall survive the termination of this Agreement and, with respect to claims arising in connection with Escrow Agent’s duties while acting as such, the resignation or removal of the Escrow Agent. SECTION 6 THE ESCROW AGENT 6.01 The Escrow Agent shall not be responsible for the genuineness, validity, sufficiency or collectability of funds or documents deposited hereunder or any description of property or other thing therein, and shall not be required to determine the existence of any fact or decide any questions of law. It shall not be liable in any respect on the account of identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any such document, paper or funds, its duties hereunder being limited to the safekeeping of such funds, instruments or other documents received by it as Escrow Agent, and for the delivery of the same in accordance with this Agreement. 6.02 In accepting any funds, securities or documents delivered hereunder it is agreed and understood between the Parties that the Escrow Agent will not be called upon to construe any contract or instrument deposited herewith, and shall be required to act in respect to the deposit herein made only upon the joint consent in writing, of the Parties and in the failure of such agreement or consent, it reserves the right to hold any money in its possession, and all papers in connection with or concerning this escrow, until a mutual agreement in writing has been reached between all of said parties and delivered to it or until delivery is legally authorized and ordered by final judgment or decree of a court of competent jurisdiction; and in case the Escrow Agent obeys or complies with any judgment, order or decree of a court of competent jurisdiction, it shall not be liable to any of the Parties nor to any other person, firm or corporation by reason of such compliance, notwithstanding any such judgment, order or decree be subsequently reversed, modified, annulled, set aside or vacated. 6.03 The Escrow Agent, as part of the consideration for the acceptance of this escrow, will not be liable for (i) any acts or omissions done in good faith, nor for any claims, demands or losses, nor for any damages made or suffered by any party to this escrow, except such as may arise through or be caused by its gross negligence or willful misconduct; or (ii) special or consequential damages, even if the Escrow Agent has been advised of the possibility of such damages. 6.04 The Escrow Agent's fee in the amount of [***] and expenses shall paid by the Purchaser at the closing. In addition, the Escrow Agent shall be entitled to reasonable compensation, to be paid by the Purchaser including attorney’s fees and expenses for unusual circumstances or in the event it is necessary to seek an order by a court, it may employ attorneys for the reasonable
5 protection of the escrow property and of itself and shall have the right to reimburse itself (for the Purchaser’s share of any such expenses or fees) out of any funds in its possession to which the Purchaser has title for costs, expenses, attorney’s fees and its compensation and shall have a lien on all money, documents or property held in escrow to which the Purchaser has title to cover the same. Upon request by any Party, the Escrow Agent shall provide such Party with written confirmation of (a) the amounts held by the Escrow Agent in each Escrow Account, and (b) any unpaid fees and expenses then due and owing (if any) to the Escrow Agent. 6.05 This Agreement shall terminate on the first to occur of (a) the distribution of all of the amounts in both Escrow Accounts in accordance with this Agreement or (b) delivery to the Escrow Agent of a written notice of termination executed jointly by the Purchaser and the Securityholders’ Agent. 6.06 It is further understood and agreed between the Parties that this Agreement is the only contract between the Escrow Agent and the Parties with respect to the subject matter herein and that same supersedes any other contract with reference to this Agreement, in so far as the Escrow Agent is concerned, and that the Escrow Agent may rely absolutely hereon to the exclusion of any and all other agreements between the Parties with respect to the subject matter herein. 6.07 This Agreement may be executed in multiple counterparts, each of which shall constitute an original, all of which, taken together, shall constitute one and the same instrument. 6.08 This Agreement shall be governed by and construed in accordance with the law of the State of New York. 6.09 The Escrow Agent undertakes to perform only such duties expressly set forth herein, which shall be deemed purely ministerial in nature, and shall under no circumstances be deemed a fiduciary for any of the parties to this Agreement, and on implied duties of obligation shall be read into this Agreement against the Escrow Agent. In acting herein, the Escrow Agent shall not be liable for any act done or omitted to be done, by it in the absence of bad faith, fraud, gross negligence or willful misconduct. 6.10 The Escrow Agent may act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine, and may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument and may assume that any person purporting to give any writing, notice, advice or instruction in connection with the provisions hereof has been duly authorized to do so. 6.11 The Escrow Agent shall be entitled to consult with legal counsel in the event that a question or dispute arises with regard to the construction of any of the provisions hereof, and shall incur no liability and shall be fully protected in acting in accordance with the advice or opinion of such counsel. 6.12 The Escrow Agent shall have no responsibility or liability for any diminution in value of any assets held hereunder which may result from any investments or reinvestment made in accordance with any provision which may be contained herein, except as caused by the Escrow Agent’s bad faith, fraud, gross negligence or willful misconduct. 6.13 In the event that any portion of the Escrow Deposit shall be attached, garnished or levied upon by any court order, or the delivery thereof shall be stayed or enjoined by an order of a court, or any order, judgment or decree shall be made or entered by any court order affecting the property deposited under this Agreement, the Escrow Agent is hereby expressly authorized, in its sole
6 discretion, to obey and comply with all writs, orders or decrees so entered or issued, which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction, and in the event that the Escrow Agent obeys or complies with any such writ order or decree it shall not be liable to any of the Parties or to any other person, firm or corporation, by reason of such compliance notwithstanding such writ, order or decree be subsequently reversed, modified, annulled, set aside or vacated. 6.14 The Escrow Agent shall report to the IRS, as of each calendar year-end, all income earned from the investment of any sum held in each Escrow Account against the party to whom such income is allocated pursuant to Section 3 hereof, whether or not said income has been distributed during such year, as and to the extent required by law. Any tax returns required to be prepared and filed will be prepared and filed by the party responsible therefore, with the IRS in all years income is earned, whether or not income is received or distributed in any particular tax year, and Escrow Agent shall have no responsibility for the preparation and/or filing of any tax return with respect to any income earned by the Escrow Accounts. [remainder of page intentionally left blank]
[Signature Page to Escrow Agreement – Project Geppetto] This Escrow Agreement has been executed by the parties hereto as of the date set forth above. PURCHASER Crestone Air Partners, LLC By: _____________________________ Name: Kevin Milligan Title: Chief Executive Officer SECURITYHOLDERS’ AGENT ________________________________ Dirk-Jan Smit ESCROW AGENT BANK OF UTAH By: _____________________________ Name: Title: Docusign Envelope ID: 2ECE2EDD-50E3-87C4-839B-D046A86F5D90
[Signature Page to Escrow Agreement – Project Geppetto] This Escrow Agreement has been executed by the parties hereto as of the date set forth above. PURCHASER Crestone Air Partners, LLC By: _____________________________ Name: Title: SECURITYHOLDERS’ AGENT ________________________________ Dirk-Jan Smit ESCROW AGENT BANK OF UTAH By: _____________________________ Name: Title: Docusign Envelope ID: 32C38DAD-8FFB-8F31-80CC-A63F591C29AE
This Escrow Agreement has been executed by the parties hereto as of the date set forth above. PURCHASER Crestone Air Partners, LLC By: ------------- am e: Kevin Milligan Title: Chief Executive Officer SECURITYHOLDERS' AGENT Dirk-Jan Smit ESCROW AGENT BANK.OF UTAH By: ------------- Name: Title: Michael Arsenault Senior Vice President [Signature Page to Escrow Agreement - Project Geppetto] [***]
APPENDIX A DIRECTIONS TO ESCROW AGENT TO DISBURSE Reference is made to the [Indemnity] [Tax Matters] Escrow Deposit in the amount of $____________________, being held in the [Indemnity] [Tax Matters] Escrow Account pursuant to the Escrow Agreement dated [___], 2026, among Crestone Air Partners, LLC, as Purchaser, Dirk-Jan Smit, as Securityholders’ Agent and Bank of Utah, as Escrow Agent (the “Escrow Agent”). The undersigned parties hereby direct and authorize the Escrow Agent to disburse the amount of $_______________ held in the [Indemnity] [Tax Matters] Escrow Account by wire transfer as follows: Name and Address of Bank: ABA #: Account Name: Account Number: Dated __________________, 2026. PURCHASER Crestone Air Partners, LLC By: _____________________________ Name: Title: SECURITYHOLDERS’ AGENT ________________________________ Dirk-Jan Smit
EX-10.6(A)
EX-10.6(A)
Filename: a106asubscriptionagreeme.htm · Sequence: 8
a106asubscriptionagreeme
110046681.v1 Execution Version THE CLASS B PREFERRED UNITS OF CRESTONE AIR PARTNERS, LLC HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), THE SECURITIES LAWS OF ANY STATE OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS. SUCH UNITS MAY BE ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE OFFERED FOR SALE, SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF AT ANY TIME EXCEPT PURSUANT TO EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR EXEMPTION THEREFROM, AND COMPLIANCE WITH THE OTHER SUBSTANTIAL RESTRICTIONS ON TRANSFERABILITY SET FORTH HEREIN AND IN THE OTHER INVESTMENT DOCUMENTS (AS DEFINED HEREIN). CRESTONE AIR PARTNERS, LLC SUBSCRIPTION AGREEMENT This Subscription Agreement (this “Agreement”) is made on, entered into and effective as of June 10, 2026, by and between Crestone Air Partners, LLC, a Delaware limited liability company (the “Company”), and Air T, Inc., a Delaware corporation (the “Subscriber” and, together with the Company, the “Parties”). RECITALS WHEREAS, Subscriber desires to subscribe for the number of the Company’s Class B Preferred Units (the “Units”) set forth opposite the Subscriber’s name on Exhibit A for an aggregate cash subscription price of $11,700,000 (the “Subscription Amount”); WHEREAS, the Company is governed by that certain Limited Liability Company Operating Agreement of Crestone Air Partners, LLC, dated on or about the date hereof, as supplemented and amended by that certain letter agreement, dated June 10, 2026, by and among the Company and the Members set forth on Annex A thereto (as such may be further amended, restated or supplemented from time to time, the “LLC Agreement”); and WHEREAS, the Subscriber is an “accredited investor” as defined in Rule 501(a) of Regulation D promulgated under the Securities Act. NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Subscriber hereby agree as follows: AGREEMENTS ARTICLE 1 SUBSCRIPTION 1.1 Defined Terms. Capitalized terms used in this Agreement that are not defined in the text hereof will have the meanings given to them in the LLC Agreement. 1.2 Subscription. The Subscriber hereby subscribes for and purchases from the Company, and the Company hereby issues to the Subscriber, the Units, free and clear of all liens, security interests, claims or charges or any other encumbrances, other than those arising under applicable securities laws or by reason of the LLC Agreement, in exchange for the payment by the Subscriber to the Company of an amount in cash equal to the Subscription Amount. Payment will be made on the date hereof by wire transfer in immediately available funds to an account designated in writing by the Company to the Subscriber. The Certain identified information has been omitted from this exhibit pursuant to Item 601(a)(6) of Regulation S-K because disclosure would constitute a clearly unwarranted invasion of personal privacy. Information that was omitted has been noted in this document with a placeholder identified by the mark ‘[***]'.
2 Subscriber shall execute and deliver a counterpart signature page to the LLC Agreement to evidence its agreement to the foregoing. 1.3 Limited Liability Company Agreement. The Subscriber hereby adopts, accepts and agrees to be bound by the terms and conditions of the LLC Agreement and agrees that the Units issued to the Subscriber will be bound by and subject to the terms of the LLC Agreement (including as set forth on Annex A thereto). ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF THE SUBSCRIBER 2.1 Representations and Warranties. Subscriber hereby represents and warrants to the Company as follows as of the date hereof: (a) LLC Agreement Representations. Subscriber hereby makes the representations and warranties set forth in Sections 3.9(a) and 3.9(b) of the LLC Agreement (as applicable to Class B Preferred Members) as of the date hereof, and such representations and warranties are incorporated herein by reference as though fully set forth herein. (b) Awareness of Risks; Taxes. Subscriber acknowledges that the Company has provided Subscriber with certain informational materials in connection with the sale of the Units. Subscriber understands that investment in the Company entails a high degree of risk and understands the risks associated with the operation of the Company, its levered capital structure, and Subscriber’s investment in the Company. Subscriber is aware that ownership of the Units involves a substantial degree of risk of loss of Subscriber’s entire investment and that there is no assurance of any return on such investment. Subscriber further represents that Subscriber is relying solely on its own conclusions or the advice of its own counsel or investment representative with respect to tax aspects of any investment in the Company. (c) No Solicitation. Subscriber has not seen, received, been presented with, or been solicited by any leaflet, public promotional meeting, article, or any other form of advertising or general solicitation as to the Company’s sale to Subscriber of the Units. (d) No Litigation. There is no litigation or other proceeding pending or, to Subscriber’s knowledge, threatened against Subscriber or any of Subscriber’s Affiliates which, if adversely determined, would adversely affect Subscriber’s ability to perform its obligations under this Agreement. (e) Principal Place of Business. The address set forth on Exhibit A is the Subscriber’s current principal places of business, and Subscriber will update the Company in the event of a change in such principal address. (f) No Investment Advice. Subscriber acknowledges that neither the Company nor any of its Affiliates, officers, directors, members, managers, employees, agents, or representatives has rendered or will render any investment, tax, legal, or accounting advice to Subscriber in connection with Subscriber’s decision to subscribe for or acquire Units hereunder. Subscriber has had the opportunity to consult with its own advisors regarding such matters and is not relying on the Company or any of its representatives for any such advice. (g) Disclosure; No Reliance. Subscriber understands and agrees that, other than the representations and warranties of the Company set forth in Article 3 herein or in the LLC Agreement, neither the Company nor any other Person makes any representation or warranty, express or implied, as to
3 the accuracy or completeness of the information provided or to be provided to Subscriber by or on behalf of the Company or related to the transactions contemplated hereby. 2.2 Survival. Subscriber acknowledges that the Company has relied and will rely upon the representations and warranties of, and information furnished by, Subscriber set forth in this Agreement and that all such representations and warranties, and furnished information will survive the closing of the issuance of Units pursuant to this Agreement. ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY 3.1 Representations and Warranties. The Company hereby represents and warrants to, and agrees with, Subscriber as of the date hereof as follows: (a) Organization. The Company is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware. The Company has the full limited liability company power and authority to own its property, carry on its business as now being conducted, and to carry out the transactions contemplated by the LLC Agreement. The Company has provided or made available to Subscriber true and correct copies of the LLC Agreement, including all amendments thereto. (b) Power and Authority. The Company has all requisite power, authority and legal capacity to enter into the LLC Agreement and this Agreement, to perform its respective obligations under each such document, and to consummate the transactions that are the respective subjects of each such document. All actions required hereunder to be taken by the Company as a condition to the issuance and sale of the Units purchased by the Subscriber have been taken. This Agreement has been duly authorized, executed and delivered by the Company and, upon due authorization, execution and delivery by Subscriber, will constitute the valid and legally binding agreement of the Company, enforceable in accordance with its terms against the Company, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other laws of general application relating to or affecting the enforcement of creditors’ rights and remedies, as from time to time may be in effect and (ii) application of equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). (c) No Conflict. The execution and delivery of this Agreement and this Agreement by the Company does not, and the consummation of the transactions contemplated hereby and thereby will not (with or without the giving of notice or the lapse of time or both), (i) violate or conflict with or result in any default under any provision of the organizational documents of the Company or any of its Subsidiaries, including the LLC Agreement, (ii) violate any provision of any law, or any order, judgment or decree of any court or other Governmental Authority applicable to the Company or any of its Subsidiaries or any of their respective assets or properties, or (iii) violate or result in the cancellation, modification, revocation or suspension of any material license, franchise or permit held by the Company or any of its Subsidiaries. (d) No Litigation. There is no litigation or other proceeding pending or, to the Company’s knowledge, threatened against the Company or any of its Subsidiaries which, if adversely determined, would adversely affect the Company’s ability to perform its obligations under this Agreement. (e) Broker’s Fee. There is no investment banker, broker, or finder which has been retained by, will be retained by, or is authorized to act on behalf of the Company who will be entitled to any fee or commission from the Company from the issuance and sale of the Units to Subscriber.
4 (f) Validity of Units. Following the transfers contemplated hereby, (a) Subscriber will be the record and beneficial owner of the Units and have good and valid title thereto (subject to the liens described in the next subclause), and (b) Subscriber will own the Units free and clear of all liens, security interests, claims or changes or any other encumbrances, other than those arising by reason of the LLC Agreement or this Agreement. (g) Disclosure; No Reliance. The Company understands and agrees that, other than the representations and warranties of Subscriber set forth in Article 2 herein or in the LLC Agreement, neither the Company nor any other Person makes any representation or warranty, express or implied, as to the accuracy or completeness of the information provided or to be provided to the Company by or on behalf of Subscriber or related to the transactions contemplated hereby. 3.2 Survival. The Company acknowledges that Subscriber has relied and will rely upon the representations and agreements of the Company set forth in this Agreement, and that all such representations and agreements will survive the closing of the issuance of the Units pursuant to this Agreement. ARTICLE 4 MISCELLANEOUS 4.1 Amendment. This Agreement may not be amended (including by way of merger), modified or supplemented except by a written instrument signed by each of the parties hereto. 4.2 Confidentiality. This Agreement and the terms set forth herein shall be deemed to be Confidential Information. No party hereto may disclose the terms of this Agreement to any Member or third party; provided, however, that nothing in this Agreement will prevent such party from disclosing the terms of this Agreement (a) as required by Law, regulation or other legal process, (b) to its partners, members, equity holders, financing sources and Affiliates as is customary in such party’s industry, (c) on a need-to- know basis, to its Representatives, in each case, that are not engaged in an enterprise competitive to the Company, or (d) to any Permitted Transferee of such party; provided further, that any such partner, member, equity holder, financing source, Representative, Affiliate, Permitted Transferee or current or prospective investor is apprised of the confidential nature of such Confidential Information and agrees to keep such information confidential. 4.3 Headings. The headings and captions set forth herein are for convenience of reference only and will not affect the construction or interpretation hereof. 4.4 Notices. Any notice or other communication required or permitted to be given hereunder will be in writing, and will be delivered (i) personally, (ii) by electronic delivery via e-mail, (iii) by telecopy (with a hard copy and a transmission confirmation sent by a recognized overnight national carrier service (such as FedEx) for next Business Day delivery), (iv) by a recognized overnight national courier service (such as FedEx) for next Business Day delivery, or (v) by certified or registered mail, return receipt requested, first-class postage prepaid to the parties at the addresses set forth below (or to such other addresses as the parties may specify by due notice to the other): If to the Company:
5 Crestone Air Partners, LLC 4500 Cherry Creek Drive South, Suite 200 Denver, Colorado 80246 Attention: Kevin Milligan Email: [***] If to a Subscriber: In accordance with the notice information set forth on Exhibit A. 4.5 Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the parties hereto, and, subject to all applicable Laws, their successors and permitted assigns. No party may assign this Agreement or any of its rights, interests or obligations hereunder unless such assignment is in connection with a Transfer explicitly permitted by the LLC Agreement; provided that, Subscriber, upon prior written notice to the Company, may assign, in its sole discretion, any of or all of its rights, interests and obligations under this Agreement to any successors thereof, but no such assignment shall relieve Subscriber of any of their obligations hereunder; provided, further, that any such successor of Subscriber shall be primarily liable with respect to the obligations hereunder and the liability of Subscriber shall be secondary. 4.6 Entire Agreement. (a) This Agreement (together with the LLC Agreement) sets forth the entire agreement and understanding of the Parties directly relating to Subscriber’s purchase of the Units, and such agreements contain all of the representations, warranties, promises, inducements, covenants and undertakings between Subscriber, on the one hand, and the Company, on the other hand, directly relating to Subscriber’s purchase of the Units and specifically supersedes any and all prior or contemporaneous agreements (written or oral) directly relating to Subscriber’s purchase of the Units. Notwithstanding the foregoing, this Agreement does not supersede or otherwise affect or have any impact upon the LLC Agreement (unless explicitly stated otherwise therein) or any other definitive agreement entered into by and between Subscriber and the Company after the date hereof, or any of the Other Agreements (as defined below), or the rights and obligations thereunder. (b) For clarification, the Parties acknowledge and agree Subscriber on the one hand, and the Company, on the other hand, may have certain rights and obligations under other agreements and documents that do not expressly govern Subscriber’s purchase of the Units (the “Other Agreements”), all of which other agreements and documents, if any, remain in full force and effect in accordance with their terms. 4.7 Miscellaneous. The terms of Sections 12.1 (Joint Participation), 12.4 (Counterparts), 12.5 (Governing Law; Attorneys’ Fees), 12.6 (Waivers), 12.7 (Severability), 12.9 (Defaults; No Circumvention of Agreement); 12.12 (No Third Party Beneficiaries); the final two sentences of 12.13 (Injunctive Relief); 12.14 (Jurisdiction; Consent to Service of Process), and 12.15 (Waiver of Jury Trial) of the LLC Agreement are hereby incorporated by reference herein, mutatis mutandis. [Remainder of page intentionally left blank]
[Signature Page to Subscription Agreement] IN WITNESS WHEREOF, the Company has executed this Agreement and accepted the subscription described herein as of the date first written above. CRESTONE AIR PARTNERS, LLC By: Name: Kevin Milligan Title: Chief Executive Officer Docusign Envelope ID: 2ECE2EDD-50E3-87C4-839B-D046A86F5D90
[Signature Page to Subscription Agreement] IN WITNESS WHEREOF, the undersigned Subscriber has executed this Agreement and accepted the subscription described herein as of the date first written above. SUBSCRIBER: AIR T, INC. By: Name: Nick Swenson Title: Chief Executive Officer Docusign Envelope ID: 7155BC01-5438-8BEC-80A2-E0736B360D02
EXHIBIT A Subscriber Subscriber Name Address Number of Class B Preferred Units Air T, Inc. 5000 W 36th Street, Suite 200 Minneapolis, MN 55416 Telephone No.: [***] 119,877
EX-10.6(B)
EX-10.6(B)
Filename: a106bsubscriptionagreeme.htm · Sequence: 9
a106bsubscriptionagreeme
Execution Version THE CLASS A COMMON UNITS OF CRESTONE AIR PARTNERS, LLC HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), THE SECURITIES LAWS OF ANY STATE OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS. SUCH UNITS MAY BE ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE OFFERED FOR SALE, SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF AT ANY TIME EXCEPT PURSUANT TO EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR EXEMPTION THEREFROM, AND COMPLIANCE WITH THE OTHER SUBSTANTIAL RESTRICTIONS ON TRANSFERABILITY SET FORTH HEREIN AND IN THE OTHER INVESTMENT DOCUMENTS (AS DEFINED HEREIN). CRESTONE AIR PARTNERS, LLC SUBSCRIPTION AGREEMENT This Subscription Agreement (this “Agreement”) is made on, entered into and effective as of June 10, 2026, by and between Crestone Air Partners, LLC, a Delaware limited liability company (the “Company”), and Air T Acquisition 26.1, LLC, a Minnesota limited liability company (the “Subscriber” and, together with the Company, the “Parties”). RECITALS WHEREAS, Subscriber desires to subscribe for the number of the Company’s Class A Common Units (the “Units”) set forth opposite the Subscriber’s name on Exhibit A for an aggregate cash subscription price of $50,000 (the “Subscription Amount”); WHEREAS, the Company is governed by that certain Limited Liability Company Operating Agreement of Crestone Air Partners, LLC, dated on or about the date hereof (as it may be further amended or restated from time to time, the “LLC Agreement”); and WHEREAS, the Subscriber is an “accredited investor” as defined in Rule 501(a) of Regulation D promulgated under the Securities Act. NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Subscriber hereby agree as follows: AGREEMENTS ARTICLE 1 SUBSCRIPTION 1.1 Defined Terms. Capitalized terms used in this Agreement that are not defined in the text hereof will have the meanings given to them in the LLC Agreement. 1.2 Subscription. The Subscriber hereby subscribes for and purchases from the Company, and the Company hereby issues to the Subscriber, the Units, free and clear of all liens, security interests, claims or charges or any other encumbrances, other than those arising under applicable securities laws or by reason of the LLC Agreement, in exchange for the payment by the Subscriber to the Company of an amount in cash equal to the Subscription Amount. Payment will be made on the date hereof by wire transfer in immediately available funds to an account designated in writing by the Company to the Subscriber. The Subscriber shall execute and deliver a counterpart signature page to the LLC Agreement to evidence its agreement to the foregoing. Certain identified information has been omitted from this exhibit pursuant to Item 601(a)(6) of Regulation S-K because disclosure would constitute a clearly unwarranted invasion of personal privacy. Information that was omitted has been noted in this document with a placeholder identified by the mark ‘[***].
2 1.3 Limited Liability Company Agreement. The Subscriber hereby adopts, accepts and agrees to be bound by the terms and conditions of the LLC Agreement and agrees that the Units issued to the Subscriber will be bound by and subject to the terms of the LLC Agreement (including as set forth on Annex A thereto). ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF THE SUBSCRIBER 2.1 Representations and Warranties. Subscriber hereby represents and warrants to the Company as follows as of the date hereof: (a) LLC Agreement Representations. Subscriber hereby makes the representations and warranties set forth in Sections 3.9(a) and 3.9(b) of the LLC Agreement (as applicable to Class A Common Members) as of the date hereof, and such representations and warranties are incorporated herein by reference as though fully set forth herein. (b) Awareness of Risks; Taxes. Subscriber acknowledges that the Company has provided Subscriber with certain informational materials in connection with the sale of the Units. Subscriber understands that investment in the Company entails a high degree of risk and understands the risks associated with the operation of the Company, its levered capital structure, and Subscriber’s investment in the Company. Subscriber is aware that ownership of the Units involves a substantial degree of risk of loss of Subscriber’s entire investment and that there is no assurance of any return on such investment. Subscriber further represents that Subscriber is relying solely on its own conclusions or the advice of its own counsel or investment representative with respect to tax aspects of any investment in the Company. (c) No Solicitation. Subscriber has not seen, received, been presented with, or been solicited by any leaflet, public promotional meeting, article, or any other form of advertising or general solicitation as to the Company’s sale to Subscriber of the Units. (d) No Litigation. There is no litigation or other proceeding pending or, to Subscriber’s knowledge, threatened against Subscriber or any of Subscriber’s Affiliates which, if adversely determined, would adversely affect Subscriber’s ability to perform its obligations under this Agreement. (e) Principal Place of Business. The address set forth on Exhibit A is the Subscriber’s current principal place of business, and Subscriber will update the Company in the event of a change in such principal address. (f) No Investment Advice. Subscriber acknowledges that neither the Company nor any of its Affiliates, officers, directors, members, managers, employees, agents, or representatives has rendered or will render any investment, tax, legal, or accounting advice to Subscriber in connection with Subscriber’s decision to subscribe for or acquire Units hereunder. Subscriber has had the opportunity to consult with its own advisors regarding such matters and is not relying on the Company or any of its representatives for any such advice. (g) Disclosure; No Reliance. Subscriber understands and agrees that, other than the representations and warranties of the Company set forth in Article 3 herein or in the LLC Agreement, neither the Company nor any other Person makes any representation or warranty, express or implied, as to the accuracy or completeness of the information provided or to be provided to Subscriber by or on behalf of the Company or related to the transactions contemplated hereby.
3 2.2 Survival. Subscriber acknowledges that the Company has relied and will rely upon the representations and warranties of, and information furnished by, Subscriber set forth in this Agreement and that all such representations and warranties, and furnished information will survive the closing of the issuance of Units pursuant to this Agreement. ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY 3.1 Representations and Warranties. The Company hereby represents and warrants to, and agrees with, Subscriber as of the date hereof as follows: (a) Organization. The Company is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware. The Company has the full limited liability company power and authority to own its property, carry on its business as now being conducted, and to carry out the transactions contemplated by the LLC Agreement. The Company has provided or made available to Subscriber true and correct copies of the LLC Agreement, including all amendments thereto. (b) Power and Authority. The Company has all requisite power, authority and legal capacity to enter into the LLC Agreement and this Agreement, to perform its respective obligations under each such document, and to consummate the transactions that are the respective subjects of each such document. All actions required hereunder to be taken by the Company as a condition to the issuance and sale of the Units purchased by the Subscriber have been taken. This Agreement has been duly authorized, executed and delivered by the Company and, upon due authorization, execution and delivery by Subscriber, will constitute the valid and legally binding agreement of the Company, enforceable in accordance with its terms against the Company, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other laws of general application relating to or affecting the enforcement of creditors’ rights and remedies, as from time to time may be in effect and (ii) application of equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). (c) No Conflict. The execution and delivery of this Agreement by the Company does not, and the consummation of the transactions contemplated hereby and thereby will not (with or without the giving of notice or the lapse of time or both), (i) violate or conflict with or result in any default under any provision of the organizational documents of the Company or any of its Subsidiaries, including the LLC Agreement, (ii) violate any provision of any law, or any order, judgment or decree of any court or other Governmental Authority applicable to the Company or any of its Subsidiaries or any of their respective assets or properties, or (iii) violate or result in the cancellation, modification, revocation or suspension of any material license, franchise or permit held by the Company or any of its Subsidiaries. (d) No Litigation. There is no litigation or other proceeding pending or, to the Company’s knowledge, threatened against the Company or any of its Subsidiaries which, if adversely determined, would adversely affect the Company’s ability to perform its obligations under this Agreement. (e) Broker’s Fee. There is no investment banker, broker, or finder which has been retained by, will be retained by, or is authorized to act on behalf of the Company who will be entitled to any fee or commission from the Company from the issuance and sale of the Units to Subscriber. (f) Validity of Units. Following the transfers contemplated hereby, (a) Subscriber will be the record and beneficial owner of the Units and have good and valid title thereto (subject to the liens described in the next subclause), and (b) Subscriber will own the Units free and clear of all liens, security
4 interests, claims or changes or any other encumbrances, other than those arising by reason of the LLC Agreement or this Agreement. (g) Disclosure; No Reliance. The Company understands and agrees that, other than the representations and warranties of Subscriber set forth in Article 2 herein or in the LLC Agreement, neither the Company nor any other Person makes any representation or warranty, express or implied, as to the accuracy or completeness of the information provided or to be provided to the Company by or on behalf of Subscriber or related to the transactions contemplated hereby. 3.2 Survival. The Company acknowledges that Subscriber has relied and will rely upon the representations and agreements of the Company set forth in this Agreement, and that all such representations and agreements will survive the closing of the issuance of the Units pursuant to this Agreement. ARTICLE 4 MISCELLANEOUS 4.1 Amendment. This Agreement may not be amended (including by way of merger), modified or supplemented except by a written instrument signed by each of the parties hereto. 4.2 Confidentiality. This Agreement and the terms set forth herein shall be deemed to be Confidential Information. No party hereto may disclose the terms of this Agreement to any Member or third party; provided, however, that nothing in this Agreement will prevent such party from disclosing the terms of this Agreement (a) as required by Law, regulation or other legal process, (b) to its partners, members, equity holders, financing sources and Affiliates as is customary in such party’s industry, (c) on a need-to- know basis, to its Representatives, in each case, that are not engaged in an enterprise competitive to the Company, or (d) to any Permitted Transferee of such party; provided further, that any such partner, member, equity holder, financing source, Representative, Affiliate, Permitted Transferee or current or prospective investor is apprised of the confidential nature of such Confidential Information and agrees to keep such information confidential. 4.3 Headings. The headings and captions set forth herein are for convenience of reference only and will not affect the construction or interpretation hereof. 4.4 Notices. Any notice or other communication required or permitted to be given hereunder will be in writing, and will be delivered (i) personally, (ii) by electronic delivery via e-mail, (iii) by telecopy (with a hard copy and a transmission confirmation sent by a recognized overnight national carrier service (such as FedEx) for next Business Day delivery), (iv) by a recognized overnight national courier service (such as FedEx) for next Business Day delivery, or (v) by certified or registered mail, return receipt requested, first-class postage prepaid to the parties at the addresses set forth below (or to such other addresses as the parties may specify by due notice to the other): If to the Company: Crestone Air Partners, LLC 4500 Cherry Creek Drive South, Suite 200 Denver, Colorado 80246 Attention: Kevin Milligan Email: [***]
5 If to a Subscriber: In accordance with the notice information set forth on Exhibit A. 4.5 Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the parties hereto, and, subject to all applicable Laws, their successors and permitted assigns. No party may assign this Agreement or any of its rights, interests or obligations hereunder unless such assignment is in connection with a Transfer explicitly permitted by the LLC Agreement; provided that, Subscriber, upon prior written notice to the Company, may assign, in its sole discretion, any of or all of its rights, interests and obligations under this Agreement to any successors thereof, but no such assignment shall relieve Subscriber of any of their obligations hereunder; provided, further, that any such successor of Subscriber shall be primarily liable with respect to the obligations hereunder and the liability of Subscriber shall be secondary. 4.6 Entire Agreement. (a) This Agreement (together with the LLC Agreement) sets forth the entire agreement and understanding of the Parties directly relating to Subscriber’s purchase of the Units, and such agreements contain all of the representations, warranties, promises, inducements, covenants and undertakings between Subscriber, on the one hand, and the Company, on the other hand, directly relating to Subscriber’s purchase of the Units and specifically supersedes any and all prior or contemporaneous agreements (written or oral) directly relating to Subscriber’s purchase of the Units. Notwithstanding the foregoing, this Agreement does not supersede or otherwise affect or have any impact upon the LLC Agreement (unless explicitly stated otherwise therein) or any other definitive agreement entered into by and between Subscriber and the Company after the date hereof, or any of the Other Agreements (as defined below), or the rights and obligations thereunder. (b) For clarification, the Parties acknowledge and agree Subscriber on the one hand, and the Company, on the other hand, may have certain rights and obligations under other agreements and documents that do not expressly govern Subscriber’s purchase of the Units (the “Other Agreements”), all of which other agreements and documents, if any, remain in full force and effect in accordance with their terms. 4.7 Miscellaneous. The terms of Sections 12.1 (Joint Participation), 12.4 (Counterparts), 12.5 (Governing Law; Attorneys’ Fees), 12.6 (Waivers), 12.7 (Severability), 12.9 (Defaults; No Circumvention of Agreement); 12.12 (No Third Party Beneficiaries); the final two sentences of 12.13 (Injunctive Relief); 12.14 (Jurisdiction; Consent to Service of Process), and 12.15 (Waiver of Jury Trial) of the LLC Agreement are hereby incorporated by reference herein, mutatis mutandis. [Remainder of page intentionally left blank]
[Signature Page to Subscription Agreement] IN WITNESS WHEREOF, the Company has executed this Agreement and accepted the subscription described herein as of the date first written above. CRESTONE AIR PARTNERS, LLC By: Name: Kevin Milligan Title: Chief Executive Officer Docusign Envelope ID: 2ECE2EDD-50E3-87C4-839B-D046A86F5D90
[Signature Page to Subscription Agreement] IN WITNESS WHEREOF, the undersigned Subscriber has executed this Agreement and accepted the subscription described herein as of the date first written above. SUBSCRIBER: AIR T ACQUISITION 26.1, LLC By: _________________________ Name: Mark Jundt Title: Corporate Secretary Docusign Envelope ID: BE4D3801-B97D-8915-83DF-122889146B16
EXHIBIT A Subscriber Subscriber Name Address Number of Class A Common Units Air T Acquisition 26.1, LLC 5000 W 36th Street, Suite 200 Minneapolis, MN 55416 Telephone No.: [***] 512
EX-10.6(C)
EX-10.6(C)
Filename: a106csubscriptionagreeme.htm · Sequence: 10
a106csubscriptionagreeme
Execution Version THE CLASS B PREFERRED UNITS OF CRESTONE AIR PARTNERS, LLC HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), THE SECURITIES LAWS OF ANY STATE OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS. SUCH UNITS MAY BE ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE OFFERED FOR SALE, SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF AT ANY TIME EXCEPT PURSUANT TO EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR EXEMPTION THEREFROM, AND COMPLIANCE WITH THE OTHER SUBSTANTIAL RESTRICTIONS ON TRANSFERABILITY SET FORTH HEREIN AND IN THE OTHER INVESTMENT DOCUMENTS (AS DEFINED HEREIN). CRESTONE AIR PARTNERS, LLC SUBSCRIPTION AGREEMENT This Subscription Agreement (this “Agreement”) is made on, entered into and effective as of June 10, 2026, by and between Crestone Air Partners, LLC, a Delaware limited liability company (the “Company”), IF GPT Holdco PVT LLC, a Delaware limited liability company, and BOAC GPT Holdco PVT LLC, a Delaware limited liability company (each, a “Subscriber” and, together with the Company, the “Parties”). RECITALS WHEREAS, each Subscriber desires to subscribe for the number of the Company’s Class B Preferred Units (the “Units”) set forth opposite such Subscriber’s name on Exhibit A for an aggregate cash subscription price of $10,000,000 (the “Subscription Amount”); WHEREAS, the Company is governed by that certain Limited Liability Company Operating Agreement of Crestone Air Partners, LLC, dated on or about the date hereof, as supplemented and amended by that certain letter agreement, dated June 10, 2026, by and among the Company and the Members set forth on Annex A thereto (as such may be further amended, restated or supplemented from time to time, the “LLC Agreement”); and WHEREAS, each Subscriber is an “accredited investor” as defined in Rule 501(a) of Regulation D promulgated under the Securities Act. NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and each Subscriber hereby agree as follows: AGREEMENTS ARTICLE 1 SUBSCRIPTION 1.1 Defined Terms. Capitalized terms used in this Agreement that are not defined in the text hereof will have the meanings given to them in the LLC Agreement. 1.2 Subscription. The Subscribers hereby subscribe for and purchase from the Company, and the Company hereby issues to the Subscribers, the Units, free and clear of all liens, security interests, claims or charges or any other encumbrances, other than those arising under applicable securities laws or by reason of the LLC Agreement, in exchange for the payment by the Subscribers to the Company of an amount in cash equal to the Subscription Amount. Payment will be made on the date hereof by wire transfer in immediately available funds to an account designated in writing by the Company to the Subscribers. Each Certain identified information has been omitted from this exhibit pursuant to Item 601(a)(6) of Regulation S-K because disclosure would constitute a clearly unwarranted invasion of personal privacy. Information that was omitted has been noted in this document with a placeholder identified by the mark ‘[***].
2 Subscriber shall execute and deliver a counterpart signature page to the LLC Agreement to evidence its agreement to the foregoing. 1.3 Limited Liability Company Agreement. Each Subscriber hereby adopts, accepts and agrees to be bound by the terms and conditions of the LLC Agreement and agrees that the Units issued to each Subscriber will be bound by and subject to the terms of the LLC Agreement (including as set forth on Annex A thereto). ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF THE SUBSCRIBERS 2.1 Representations and Warranties. Each Subscriber hereby represents and warrants to the Company as follows as of the date hereof: (a) LLC Agreement Representations. Each Subscriber hereby makes the representations and warranties set forth in Sections 3.9(a) and 3.9(b) of the LLC Agreement (as applicable to Class B Preferred Members) as of the date hereof, and such representations and warranties are incorporated herein by reference as though fully set forth herein. (b) Awareness of Risks; Taxes. Each Subscriber acknowledges that the Company has provided such Subscriber with certain informational materials in connection with the sale of the Units. Each Subscriber understands that investment in the Company entails a high degree of risk and understands the risks associated with the operation of the Company, its levered capital structure, and such Subscriber’s investment in the Company. Each Subscriber is aware that ownership of the Units involves a substantial degree of risk of loss of such Subscriber’s entire investment and that there is no assurance of any return on such investment. Each Subscriber further represents that such Subscriber is relying solely on its own conclusions or the advice of its own counsel or investment representative with respect to tax aspects of any investment in the Company. (c) No Solicitation. Each Subscriber has not seen, received, been presented with, or been solicited by any leaflet, public promotional meeting, article, or any other form of advertising or general solicitation as to the Company’s sale to such Subscriber of the Units. (d) No Litigation. There is no litigation or other proceeding pending or, to each Subscriber’s knowledge, threatened against such Subscriber or any of such Subscriber’s Affiliates which, if adversely determined, would adversely affect such Subscriber’s ability to perform its obligations under this Agreement. (e) Principal Place of Business. The addresses set forth on Exhibit A are the Subscribers’ current principal places of business, and each Subscriber will update the Company in the event of a change in such principal address. (f) No Investment Advice. Each Subscriber acknowledges that neither the Company nor any of its Affiliates, officers, directors, members, managers, employees, agents, or representatives has rendered or will render any investment, tax, legal, or accounting advice to such Subscriber in connection with such Subscriber’s decision to subscribe for or acquire Units hereunder. Each Subscriber has had the opportunity to consult with its own advisors regarding such matters and is not relying on the Company or any of its representatives for any such advice. (g) Disclosure; No Reliance. Each Subscriber understands and agrees that, other than the representations and warranties of the Company set forth in Article 3 herein or in the LLC Agreement,
3 neither the Company nor any other Person makes any representation or warranty, express or implied, as to the accuracy or completeness of the information provided or to be provided to such Subscriber by or on behalf of the Company or related to the transactions contemplated hereby. 2.2 Survival. Each Subscriber acknowledges that the Company has relied and will rely upon the representations and warranties of, and information furnished by, such Subscriber set forth in this Agreement and that all such representations and warranties, and furnished information will survive the closing of the issuance of Units pursuant to this Agreement. ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY 3.1 Representations and Warranties. The Company hereby represents and warrants to, and agrees with, each Subscriber as of the date hereof as follows: (a) Organization. The Company is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware. The Company has the full limited liability company power and authority to own its property, carry on its business as now being conducted, and to carry out the transactions contemplated by the LLC Agreement. The Company has provided or made available to each Subscriber true and correct copies of the LLC Agreement, including all amendments thereto. (b) Power and Authority. The Company has all requisite power, authority and legal capacity to enter into the LLC Agreement and this Agreement, to perform its respective obligations under each such document, and to consummate the transactions that are the respective subjects of each such document. All actions required hereunder to be taken by the Company as a condition to the issuance and sale of the Units purchased by the Subscribers have been taken. This Agreement has been duly authorized, executed and delivered by the Company and, upon due authorization, execution and delivery by each Subscriber, will constitute the valid and legally binding agreement of the Company, enforceable in accordance with its terms against the Company, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other laws of general application relating to or affecting the enforcement of creditors’ rights and remedies, as from time to time may be in effect and (ii) application of equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). (c) No Conflict. The execution and delivery of this Agreement and this Agreement by the Company does not, and the consummation of the transactions contemplated hereby and thereby will not (with or without the giving of notice or the lapse of time or both), (i) violate or conflict with or result in any default under any provision of the organizational documents of the Company or any of its Subsidiaries, including the LLC Agreement, (ii) violate any provision of any law, or any order, judgment or decree of any court or other Governmental Authority applicable to the Company or any of its Subsidiaries or any of their respective assets or properties, or (iii) violate or result in the cancellation, modification, revocation or suspension of any material license, franchise or permit held by the Company or any of its Subsidiaries. (d) No Litigation. There is no litigation or other proceeding pending or, to the Company’s knowledge, threatened against the Company or any of its Subsidiaries which, if adversely determined, would adversely affect the Company’s ability to perform its obligations under this Agreement. (e) Broker’s Fee. There is no investment banker, broker, or finder which has been retained by, will be retained by, or is authorized to act on behalf of the Company who will be entitled to any fee or commission from the Company from the issuance and sale of the Units to each Subscriber.
4 (f) Validity of Units. Following the transfers contemplated hereby, (a) each Subscriber will be the record and beneficial owner of the Units and have good and valid title thereto (subject to the liens described in the next subclause), and (b) each Subscriber will own the Units free and clear of all liens, security interests, claims or changes or any other encumbrances, other than those arising by reason of the LLC Agreement or this Agreement. (g) Disclosure; No Reliance. The Company understands and agrees that, other than the representations and warranties of each Subscriber set forth in Article 2 herein or in the LLC Agreement, neither the Company nor any other Person makes any representation or warranty, express or implied, as to the accuracy or completeness of the information provided or to be provided to the Company by or on behalf of such Subscriber or related to the transactions contemplated hereby. 3.2 Survival. The Company acknowledges that each Subscriber has relied and will rely upon the representations and agreements of the Company set forth in this Agreement, and that all such representations and agreements will survive the closing of the issuance of the Units pursuant to this Agreement. ARTICLE 4 MISCELLANEOUS 4.1 Amendment. This Agreement may not be amended (including by way of merger), modified or supplemented except by a written instrument signed by each of the parties hereto. 4.2 Confidentiality. This Agreement and the terms set forth herein shall be deemed to be Confidential Information. No party hereto may disclose the terms of this Agreement to any Member or third party; provided, however, that nothing in this Agreement will prevent such party from disclosing the terms of this Agreement (a) as required by Law, regulation or other legal process, (b) to its partners, members, equity holders, financing sources and Affiliates as is customary in such party’s industry, (c) on a need-to- know basis, to its Representatives, in each case, that are not engaged in an enterprise competitive to the Company, (d) to any Permitted Transferee of such party or (e) for disclosures by a Blue Owl Investor or Affiliate thereof to current or prospective investors in any Blue Owl Affiliated Fund in connection with ordinary course informational, transactional or reporting activities with respect to such Blue Owl Affiliated Fund; provided further, that any such partner, member, equity holder, financing source, Representative, Affiliate, Permitted Transferee or current or prospective investor is apprised of the confidential nature of such Confidential Information and agrees to keep such information confidential. 4.3 Headings. The headings and captions set forth herein are for convenience of reference only and will not affect the construction or interpretation hereof. 4.4 Notices. Any notice or other communication required or permitted to be given hereunder will be in writing, and will be delivered (i) personally, (ii) by electronic delivery via e-mail, (iii) by telecopy (with a hard copy and a transmission confirmation sent by a recognized overnight national carrier service (such as FedEx) for next Business Day delivery), (iv) by a recognized overnight national courier service (such as FedEx) for next Business Day delivery, or (v) by certified or registered mail, return receipt requested, first-class postage prepaid to the parties at the addresses set forth below (or to such other addresses as the parties may specify by due notice to the other): If to the Company:
5 Crestone Air Partners, LLC 4500 Cherry Creek Drive South, Suite 200 Denver, Colorado 80246 Attention: Kevin Milligan Email: [***] If to a Subscriber: In accordance with the notice information set forth on Exhibit A. 4.5 Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the parties hereto, and, subject to all applicable Laws, their successors and permitted assigns. No party may assign this Agreement or any of its rights, interests or obligations hereunder unless such assignment is in connection with a Transfer explicitly permitted by the LLC Agreement; provided that, the Blue Owl Members, upon prior written notice to the Company, may assign, in its sole discretion, any of or all of its rights, interests and obligations under this Agreement to any successors thereof, but no such assignment shall relieve the Blue Owl Members of any of their obligations hereunder; provided, further, that any such successor of such Blue Owl Member shall be primarily liable with respect to the obligations hereunder and the liability of the Blue Owl Member shall be secondary. 4.6 Entire Agreement. (a) This Agreement (together with the LLC Agreement) sets forth the entire agreement and understanding of the Parties directly relating to each Subscriber’s purchase of the Units, and such agreements contain all of the representations, warranties, promises, inducements, covenants and undertakings between each Subscriber, on the one hand, and the Company, on the other hand, directly relating to such Subscriber’s purchase of the Units and specifically supersedes any and all prior or contemporaneous agreements (written or oral) directly relating to such Subscriber’s purchase of the Units. Notwithstanding the foregoing, this Agreement does not supersede or otherwise affect or have any impact upon the LLC Agreement (unless explicitly stated otherwise therein) or any other definitive agreement entered into by and between such Subscriber and the Company after the date hereof, or any of the Other Agreements (as defined below), or the rights and obligations thereunder. (b) For clarification, the Parties acknowledge and agree each Subscriber on the one hand, and the Company, on the other hand, may have certain rights and obligations under other agreements and documents that do not expressly govern such Subscriber’s purchase of the Units (the “Other Agreements”), all of which other agreements and documents, if any, remain in full force and effect in accordance with their terms. 4.7 Miscellaneous. The terms of Sections 12.1 (Joint Participation), 12.4 (Counterparts), 12.5 (Governing Law; Attorneys’ Fees), 12.6 (Waivers), 12.7 (Severability), 12.9 (Defaults; No Circumvention of Agreement); 12.12 (No Third Party Beneficiaries); the final two sentences of 12.13 (Injunctive Relief); 12.14 (Jurisdiction; Consent to Service of Process), and 12.15 (Waiver of Jury Trial) of the LLC Agreement are hereby incorporated by reference herein, mutatis mutandis. [Remainder of page intentionally left blank]
[Signature Page to Subscription Agreement] IN WITNESS WHEREOF, the Company has executed this Agreement and accepted the subscription described herein as of the date first written above. CRESTONE AIR PARTNERS, LLC By: Name: Kevin Milligan Title: Chief Executive Officer Docusign Envelope ID: 2ECE2EDD-50E3-87C4-839B-D046A86F5D90
IN WITNESS WHEREOF, the undersigned Subscriber has executed this Agreement and accepted the subscription described herein as of the date first written above. SUBSCRIBER: IF GPT Holdco PVT LLC By: Blue Owl Alternative Credit Advisors II LLC, its investment manager By: Name: David Aidi Title: Authorized Signatory [Signature Page to Subscription Agreement] [***]
IN WITNESS WHEREOF, the undersigned Subscriber has executed this Agreement and accepted the subscription described herein as of the date first written above. SUBSCRIBER: BOAC GPT Holdco PVT LLC By: Blue Owl Alternative Credit Advisors LLC, its investment manager By: Name: David Aidi Title: Authorized Signatory [Signature Page to Subscription Agreement] [***]
EXHIBIT A Subscribers Subscriber Name Address Number of Class B Preferred Units IF GPT Holdco PVT LLC c/o Blue Owl Capital 399 Park Avenue, 37th Floor New York, NY 10022 46,107 BOAC GPT Holdco PVT LLC c/o Blue Owl Capital 399 Park Avenue, 37th Floor New York, NY 10022 56,352
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EX-10.7
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7226056.v2 AMENDMENT NO. 6 TO CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS This Amendment No. 6 to Credit Agreement dated to be effective as of June 15, 2026 (the “Amendment”), is entered into by and among Air’Zona Aircraft Services, Inc., an Arizona corporation, CSA Air, Inc., a North Carolina corporation, Global Ground Support, LLC, a North Carolina limited liability company, Jet Yard, LLC, an Arizona limited liability company, Jet Yard Solutions, LLC, an Arizona limited liability company, Mountain Air Cargo, Inc., a North Carolina corporation, Worldwide Aircraft Services, Inc., a Kansas corporation, Royal Aircraft Services, LLC, a Maryland limited liability company, and Worthington Aviation, LLC, a North Carolina limited liability company (such entities being sometimes collectively referred to herein as the “Borrowers” and individually as a “Borrower”), Air T, Inc., a Delaware corporation (“Air T”), in its separate capacities as “Loan Party Agent” and “Guarantor” (as defined in the Original Agreement, hereinafter defined), and Alerus Financial, National Association (the “Lender”). RECITALS: A. The Borrowers, the Loan Party Agent and the Lender are parties to that certain Credit Agreement dated as of August 29, 2024, as amended by that certain Amendment No. 1 to Credit Agreement and Other Loan Documents dated as of January 21, 2025, by that certain Amendment No. 2 to Credit Agreement and Consent dated as of February 21, 2025, by that certain Amendment No. 3 to Credit Agreement dated as of March 31, 2025, by that certain Amendment No. 4 to Credit Agreement and Consent dated as of May 15, 2025, and by that certain Amendment No. 5 to Credit Agreement dated as of September 3, 2025 (as so amended, the “Original Agreement”), pursuant to which Lender has agreed to extend credit to the Borrowers under the terms and conditions set forth therein. B. The Borrowers have requested that the Lender amend certain provisions of the Original Agreement. C. Subject to the terms and conditions of this Amendment, the Lender will agree to the foregoing requests of the Borrowers. NOW, THEREFORE, the parties agree as follows: 1. Defined Terms. All capitalized terms used in this Amendment shall, except where the context otherwise requires, have the meanings set forth in the Original Agreement as amended hereby. 2. Amendments. (a) The Original Agreement and the other Loan Documents are generally amended to update the Lender’s address for notices to read as follows: “Alerus Financial, National Association 1016 Civic Center DR NW, Suite 300 Rochester, MN 55901 Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D TEMP DocuSign Documents
2 Attention: Briel Grube, Senior Vice President” (b) The definition of the terms “Loans”, “Loan Documents” “Maturity Date” and “Total Usage” appearing in Section 1.01 of the Original Agreement are hereby amended in their respective entireties to read as follows: “ ‘Loan(s)” means the Overline Loans, the Revolving Credit Loans, the Term Loans, and each other loan made by the Lender to any or all of the Borrowers. “Loan Documents” means, collectively, this Agreement, the Security Agreement, the Guaranty, the L/C Applications, the Overline Note, the Revolving Credit Note, the Term Notes, the Pledge Agreement and all other agreements, documents, certificates and instruments executed and delivered to the Lender by any Loan Party in connection therewith. ‘Maturity Date’ means, the earlier of: (a) the date on which the Loans become due and payable under Section 8.02 upon the occurrence of an Event of Default; or (b) (i) the Revolving Credit Termination Date for the Revolving Credit Loans; (ii) the Overline Termination Date for Overline Loans, (iii) August 15, 2029 for Term Loan A; or (iv) May 15, 2030 for Term Loan C. ‘Total Usage” means, at any date of determination, the sum of: (a) the aggregate outstanding principal balance of the Revolving Credit Loans; plus (b) the aggregate outstanding principal balance of the Overline Loans; plus (c) the Letter of Credit Obligations. (c) Section 1.01 of the Original Agreement is hereby further amended by inserting the definitions of the following terms “Overline Commitment”, “Overline Commitment Period”, “Overline Loans”, “Overline Note” and “Overline Termination Date” in the appropriate alphabetical order: “ ‘Overline Commitment’ means the obligation of the Lender to make Overline Loans to the Borrowers for the account of the Borrowers, in an aggregate principal amount not to exceed $2,800,000.00, as the same may be changed from time to time pursuant to the terms hereof. ‘Overline Commitment Period’ means the period from and including the Sixth Amendment Effective Date to the Overline Termination Date. ‘Overline Loans’ means any revolving credit loan made by the Lender under Section 2.02A. ‘Overline Note’ means a promissory note of the Borrowers payable to the Lender, in the form provided by the Lender, evidencing the aggregate indebtedness of the Borrowers to the Lender resulting from Overline Loans, as the same may be Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
3 amended, amended and restated, supplemented, or otherwise modified from time to time to the extent permitted under the Loan Documents. ‘Overline Termination Date’ means the earliest to occur of (a) October 15, 2026, and (b) the termination of the Overline Commitment pursuant to Section 8.02 or Section 2.04A. ‘Sixth Amendment’ means that certain Amendment No. 6 to Credit and Other Loan Documents dated to be effective as of June 15, 2026, by and between the Loan Parties and the Lender, amending this Agreement. ‘Sixth Amendment Effective Date’ means the ‘Effective Date’ of the Sixth Amendment, as such term is defined therein. (d) Section 2.02A of the Original Agreement is hereby amended in its entirety to read as follows: “ Section 2.02A Overline Commitment. (a) Subject to the terms and conditions of this Agreement, the Lender agrees to make Overline Loans to the Borrowers from time to time during the Overline Commitment Period in an aggregate principal amount at any one time outstanding not exceeding the lesser of (i) the Overline Commitment, and (ii) the amount by which the Borrowing Base exceeds Total Usage prior to giving effect to such Loan. During the Overline Commitment Period the Borrowers may use the Overline Commitment by borrowing, prepaying Overline Loans in whole or in part, and re-borrowing, all in accordance with the terms and conditions hereof. (b) The Borrowers shall jointly and severally repay all outstanding Overline Loans on the Overline Termination Date.” (e) Section 2.03A of the Original Agreement is hereby amended in its entirety to read as follows:: “Section 2.03A Procedure for Overline Borrowing. The Loan Party Agent shall submit a Borrowing Notice for each Overline Loan. Each such Borrowing Notice shall be effective upon receipt by the Lender, shall be irrevocable, and shall specify the Borrowing Date and amount of borrowing requested. At the request of the Lender, a telephonic request must be confirmed in writing by the Loan Party Agent within three (3) Business Days after such request. Notwithstanding the foregoing, the Borrower may authorize the Lender, pursuant the Sweep Agreement to make Overline Loans hereunder whenever (a) the balance of the Borrower’s deposit account specified in the Sweep Agreement falls below the target balance set forth therein and (b) the aggregate outstanding principal balance of Revolving Credit Loans is equal to the Available Revolving Credit Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
4 Commitment. So long as all conditions precedent set forth in ARTICLE IV with respect to such borrowing have been satisfied, the Lender shall provide immediately available funds to the Borrowers on the requested Borrowing Date by depositing such funds into a depository account maintained by one or more Borrowers with the Lender in an amount equal to the least of (x) the requested borrowing amount, (y) the Overline Commitment and (z) the amount by which the Borrowing Base exceeds the Total Usage prior to giving effect to such Loan. Each borrowing shall be on a Business Day.” (f) Section 2.05(c) of the Original Agreement is hereby amended in its entirety to read as follows: “ (c) The Overline Loans made by the Lender shall be evidenced by the Overline Note. The Overline Loans and the Overline Note shall mature and be payable at the Maturity Date of the Overline Loans. The Lender shall enter in its records the amount of each of its Overline Loans, the rate of interest borne on such Overline Loans, and the payments of the Overline Loans received by the Lender, and such records shall be conclusive evidence of the subject matter thereof, absent manifest error. (g) Section 2.07(a) of the Original Agreement is hereby amended in its entirety to read as follows: “ (a) If: (i) at any time during the Overline Commitment Period, the Total Usage would exceed the lesser of (A) the Borrowing Base or (B) the sum of the Overline Commitment and the Revolving Credit Commitment, then the Borrowers shall immediately prepay the amount of such excess together with interest on the amount prepaid; any prepayment shall be applied first to prepay the Overline Lines, then to the Revolving Credit Loans and then to cash collateralize the Letter of Credit Obligations on terms acceptable to the Lender; (ii) at all other times, the Total Usage would exceed the lesser of (A) the Revolving Credit Commitment or (B) the Borrowing Base, then the Borrowers shall immediately prepay the amount of such excess together with interest on the amount prepaid; any prepayment shall be applied first to prepay the Revolving Credit Loans and then to cash collateralize the Letter of Credit Obligations on terms acceptable to the Lender.” (h) The form of Borrowing Base Certificate attached as Exhibit B to the Original Agreement is hereby amended in its entirety to conform with the form of Borrowing Base Certificate (Amended 6/2026) attached as Exhibit B to this Amendment. Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
5 3. Conditions to Effectiveness. This Amendment shall become effective as of the date first set forth above (the “Effective Date”) when, and only when, the Lender shall have received: (a) this Amendment, duly executed by a Responsible Officer of each Loan Party; (b) an Amended and Restated Revolving Credit Note (the “A&R Revolving Credit Note”), in the form provided by the Lender, duly executed by a Responsible Officer of each Borrower; (c) an Overline Note (the “Overline Note”) , in the form provided by the Lender, duly executed by a Responsible Officer of each Borrower; (d) a certificate of the secretary of each Borrower in the form provided by the Lender, appropriately completed and duly executed by such Borrower’s secretary; (e) an Acknowledgment and Agreement, in the form provided by the Lender, duly executed by a Responsible Officer of Air T in its capacity as Guarantor; (f) an origination fee in the amount of $21,000, payable in immediately available funds; (g) certificates of good standing for each Loan Party issued by the state of its formation; (h) results of lien searches acceptable to Lender; and (i) such other documents, instruments and certificates as the Lender may reasonably request. 4. Representations and Warranties. To induce the Lender to enter into this Amendment, the Loan Parties jointly and severally represent and warrant to the Lender as follows: (a) The execution, delivery and performance by the Borrowers, the Borrowers’ Agent and the Guarantor of this Amendment and each other Loan Document have been duly authorized by all necessary corporate, or as the case may be, limited liability company, action, do not require any approval or consent of, or any registration, qualification or filing with, any government agency or authority or any approval or consent of any other person (including, without limitation, any shareholder), do not and will not conflict with, result in any violation of or constitute any default under, any provision of any such Person’s formation or governance documents, any agreement binding on or applicable to any such Person or any such Person’s property, or any law or governmental regulation or court decree or order, binding upon or applicable to any such Person or of any such Person’s property and will not result in the creation or imposition of any security interest or other lien or encumbrance in or on any of its property pursuant to the provisions of any agreement applicable to any such Person or any such Person’s property; Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
6 (b) The representations and warranties contained in the Original Agreement are true and correct as of the date hereof as though made on that date except: (i) to the extent that such representations and warranties relate solely to an earlier date; and (ii) that the representations and warranties set forth in Section 5.04 of the Original Agreement to the audited annual financial statements and internally-prepared interim financial statements of Loan Parties shall be deemed to be a reference to the audited financial statements and interim financial statements, as the case may be, most recently delivered to the Lender pursuant to Section 6.01(a), 6.01(b) or 6.01(c) of the Original Agreement; (c) No events have taken place and no circumstances exist at the date hereof which would give any Loan Party the right to assert a defense, offset or counterclaim to any claim by the Lender for payment of the Obligations; (d) The Original Agreement, as amended by this Amendment, and each other Loan Document to which any Loan Party is a party are the legal, valid and binding obligations of such Loan Party and are enforceable in accordance with their respective terms, subject only to bankruptcy, insolvency, reorganization, moratorium or similar laws, rulings or decisions at the time in effect affecting the enforceability of rights of creditors generally and to general equitable principles which may limit the right to obtain equitable remedies; and (e) Before and after giving effect to this Amendment, there does not exist any Default or Event of Default. 5. Release. The Borrowers, the Borrowers’ Agent and the Guarantor jointly and severally release and forever discharge the Lender and its successors, assigns, directors, officers, agents, employees and participants from any and all actions, causes of action, suits, proceedings, debts, sums of money, covenants, contracts, controversies, claims and demands, at law or in equity, which any of the Borrowers, the Borrowers’ Agent or the Guarantor ever had or now has against the Lender or its successors, assigns, directors, officers, agents, employees or participants by virtue of the Lender’s relationship to the Loan Parties in connection with the Loan Documents and the transactions related thereto 6. Reference to and Effect on the Loan Documents. (a) From and after the date of this Amendment, each reference in:the Original Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the Original Agreement, and each reference to the “Credit Agreement”, the “Credit Agreement”, “thereunder”, “thereof”, “therein” or words of like import referring to the Original Agreement in any other Loan Document shall mean and be a reference to the Original Agreement as amended hereby; (b) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Lender under the Original Agreement or any other Loan Document, nor constitute a waiver of any provision of the Agreement or any such other Loan Document. Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
7 7. Costs, Expenses and Taxes. The Borrowers jointly and severally agree to pay on demand all costs and expenses of the Lender in connection with the preparation, reproduction, execution and delivery of this Amendment and the other documents to be delivered hereunder or thereunder, including their reasonable attorneys’ fees and legal expenses. In addition, the Borrowers shall pay any and all stamp and other taxes and fees payable or determined to be payable in connection with the execution and delivery, filing or recording of this Amendment and the other instruments and documents to be delivered hereunder and agrees to save the Lender harmless from and against any and all liabilities with respect to, or resulting from, any delay in the Borrowers’ paying or omission to pay, such taxes or fees. 8. Governing Law. THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS AMENDMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS OF THE UNITED STATES APPLICABLE TO NATIONAL BANKS. 9. Headings. Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose. 10. Counterparts. This Amendment may be executed in counterparts and by separate parties in separate counterparts, each of which shall be an original and all of which taken together shall constitute one and the same document. Receipt by telecopy, pdf file or other electronic means of any executed signature page to this Amendment shall constitute effective delivery of such signature page; provided, that each of the undersigned agree to promptly deliver to Lender original signed counterparts of this Amendment upon request by Lender. 11. Recitals. The Recitals hereto are incorporated herein by reference and constitute a part of this Amendment. [SIGNATURE PAGES FOLLOW] Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
[Signature page to Amendment No. 6 to Credit Agreement and Other Loan Documents] IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first set forth above. Borrowers: Air’Zona Aircraft Services, Inc., an Arizona corporation By: Name: Mark Jundt Title: Secretary CSA Air, Inc., a North Carolina corporation By: Name: Mark Jundt Title: Secretary Global Ground Support, LLC, a North Carolina limited liability company By: Name: Mark Jundt Title: Secretary Jet Yard, LLC, an Arizona limited liability company By: Name: Mark Jundt Title: Secretary Jet Yard Solutions, LLC, an Arizona limited liability company By: _____ Name: Mark Jundt Title: Secretary Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
[Signature page to Amendment No. 6 to Credit Agreement and Other Loan Documents] Mountain Air Cargo, Inc., a North Carolina corporation By: Name: Mark Jundt Title: Secretary Royal Aircraft Services, LLC, a Maryland limited liability company By: Name: Mark Jundt Title: Secretary Worldwide Aircraft Services, Inc., a Kansas corporation By: Name: Mark Jundt Title: Secretary Worthington Aviation, LLC, a North Carolina limited liability company By: Name: Mark Jundt Title: Secretary Air T, Inc., a Delaware corporation, as Loan Party Agent and Guarantor By: Name: Mark Jundt Title: Secretary Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
[Signature page to Amendment No. 6 to Credit Agreement and Other Loan Documents] Lender: ALERUS FINANCIAL, NATIONAL ASSOCIATION, a national banking association By Name: Briel Grube Title: Senior Vice President Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
EXHIBIT B FORM OF BORROWING BASE CERTIFICATE (Amended 6/2026) Alerus Financial National Association 1016 Civic Center DR NW, Suite 300 Rochester, MN 55901 Attention: Briel Grube, Senior Vice President Date: Report No. The undersigned is the Loan Party Agent under that certain Credit Agreement, dated as of August 29, 2024 (as amended to date and as the same may be further amended, modified or supplemented from time to time, herein called the “Agreement;” capitalized terms not otherwise defined herein being used as therein defined) by and among Air’Zona Aircraft Services, Inc., an Arizona corporation, CSA Air, Inc., a North Carolina corporation, Global Ground Support, LLC, a North Carolina limited liability company, Jet Yard, LLC, an Arizona limited liability company, Jet Yard Solutions, LLC, an Arizona limited liability company, Mountain Air Cargo, Inc., a North Carolina corporation, Worldwide Aircraft Services, Inc., a Kansas corporation, Royal Aircraft Services, LLC, a Maryland limited liability company, and Worthington Aviation, LLC, a North Carolina limited liability company (such entities being sometimes collectively referred to herein as the “Borrowers” and individually as a “Borrower”), the undersigned, in its capacity as Loan Party Agent, and Alerus Financial, National Association (the “Lender”). The Loan Party Agent hereby reaffirms, on behalf of the Borrowers, all representations and warranties to the Credit Agreement and certifies and warrants that the Borrowers hold, subject to the security interest of the Lender under the Agreement, and the other Loan Documents, the following Collateral computed as of ______ __, 202_. A. ACCOUNTS RECEIVABLE 1. Accounts Receivable Balance as of period ending above $__________ 2. Less: Ineligible Accounts a. Receivables over 90 days past invoice date $___________ b. 10% redline rule $ c. Insolvent $ d. Foreign $ e. Affiliated $ f. Contras $ Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
g. U.S. Government $ h. Bonded $ i. State, county, municipality $ j. Customer deposits $_____________ k. Excess of concentration limit for account debtor $_____________ l. Other miscellaneous $____________ 3. TOTAL Ineligibles ($__________) 4. Total Eligible Accounts (Line A.1 – Line A.3) $___________ 5. Eligible Accounts Loan Value at 80% of Line A.4. $___________ B. INVENTORY Report dated (see attached) 1. Raw Materials and Finished Goods Inventory $ 2. Less: a. Discontinued $_____________ __ b. Stored at a location w/out landlord/bailee/warehousem an’s waiver $_____________ __ c. Consigned to a Loan Party d. Inventory consigned by a Loan Party that does not comply with all Consigned Inventory Requirements $_____________ __ 3. Total Ineligibles $____________ _ 4. Total Eligible Raw Materials and Finished Goods Inventory (Line B.1-Line B.3) $____________ __ 5. Eligible Raw Materials and Finished Goods Inventory Loan Value @ 50% of Line B.4 $____________ __ 6. GGS Titled Vehicles Inventory $___________ _ 7. Less: a. Discontinued $_____________ __ b. Stored at a location w/out appropriate landlord/bailee/warehousem $_____________ __ Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
an’s waiver c. Consigned to a Loan Party d. Inventory consigned by a Loan Party that does not comply with all Consigned Inventory Requirements $_____________ __ 8. Total Ineligible GGS Titled Vehicles Inventory $____________ _ 9. Total Eligible GGS Titled Vehicles Inventory (Line B.6- Line B.8) $____________ __ 10. Eligible GGS Titled Vehicles Inventory Loan Value @ 40% of Line B.4 $____________ __ 11. Eligible Inventory Loan Value (Line B5 + B.10) 1 C. Borrowing Base: 1. (Line A.5 + Line B.11) $____________ __ 1 Limited to not more than 75% of Total Borrowing Base Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
C. Revolving Credit and Overline Availability/Amount to be Repaid: 1. Total Usage (Outstanding principal balance of Revolving Loans + Letter of Credit Obligations + Overline Loans) $_______________ 2. Revolving Credit Commitment + Overline Commitment [$22,800,0002/ or $20,000,0003] 3. Borrowing Base (Line C.1.) 4A. Revolving Credit Availability (Amount by which the lesser of [Line C.2 and Line C.3] exceeds Line C.1) $_______________ OR 4B. Amount to be repaid and Letters of Credit to be cash collateralized (Amount by which Line C.1 exceeds the lesser of [Line C.2 and Line C.3]) The undersigned further certifies and warrants that (a) no Event of Default is existing as of the date hereof and, to the best knowledge and belief of the officer of the Loan Party Agent executing this Borrowing Base Certificate, there has not been (except as may otherwise indicated below) any change to the information set forth above since the computation date specified above which would materially reduce the amounts shown if such amounts were computed as of the date of this Borrowing Base Certificate and all of the information provided on: (a) the Inventory report attached as Schedule A to this Borrowing Base Certificate (b) the Accounts Receivable aging attached as Schedule B to this Borrowing Base Certificate, and (c) the Accounts Payable aging attached as Schedule C to this Borrowing Base Certificate is true and correct as of the date hereof. [signature page follows] 2 Use this amount during the Overline Commitment Period 3 Use this amount at all other times Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
The Loan Party Agent further certifies and warrants, on behalf of itself and the Borrowers, that no Event of Default is existing as of the date hereof and, to the best knowledge and belief of the officer of the Loan Party Agent executing this Borrowing Base Certificate, there has not been (except as may otherwise indicated below) any change to the information set forth above since the date specified above which would materially reduce the amounts shown if such amounts were computed as of the date of this Borrowing Base Certificate. AIR T, INC., as Loan Party Agent By Title: Date: Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
SCHEDULE A TO BORROWING BASE CERTIFICATE INVENTORY REPORT [see attached] Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
SCHEDULE B TO BORROWING BASE CERTIFICATE ACCOUNTS RECEIVABLE AGING [SEE ATTACHED] Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
SCHEDULE C TO BORROWING BASE CERTIFICATE ACCOUNTS PAYABLE AGING [SEE ATTACHED] Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
EX-10.8
EX-10.8
Filename: a108overline_note-722857.htm · Sequence: 12
a108overline_note-722857
7228572.v1 OVERLINE NOTE U.S. $2,800,000.00 Dated as of June 15, 2026 FOR VALUE RECEIVED, on the Overline Termination Date (as defined in the Credit Agreement hereinafter defined) the undersigned, AIR’ZONA AIRCRAFT SERVICES, INC., an Arizona corporation, CSA AIR, INC., a North Carolina corporation, GLOBAL GROUND SUPPORT, LLC, a North Carolina limited liability company, JET YARD, LLC, an Arizona limited liability company, JET YARD SOLUTIONS, LLC, an Arizona limited liability company, MOUNTAIN AIR CARGO, INC., a North Carolina corporation, ROYAL AIRCRAFT SERVICES, LLC, a Maryland limited liability company, WORLDWIDE AIRCRAFT SERVICES, INC., a Kansas corporation, and WORTHINGTON AVIATION, LLC, a North Carolina limited liability company, such entities being sometimes collectively referred to herein as the “Borrowers” and individually as a “Borrower”), jointly and severally promise to pay to the order of ALERUS FINANCIAL, NATIONAL ASSOCIATION, a national banking association (the “Lender”), the principal sum of TWO MILLION EIGHT HUNDRED THOUSAND AND NO/100THS DOLLARS (U.S. $2,800,000.00) or, if less, the aggregate unpaid principal amount of all Overline Loans (as defined in the Credit Agreement hereinafter defined) made by the Lender to the Borrowers pursuant to the Credit Agreement. 1. Interest. The Borrowers jointly and severally promise to pay interest (computed on the basis of the number of days elapsed in a year of 360 days) on the unpaid principal amount hereof from the date hereof until such principal amount is paid in full at a fluctuating annual rate of interest equal to the greater of (a) 5.00%, and (b) the sum of (i) 2.50% (the “Applicable Margin”), plus (ii) the Index (hereinafter defined), as in effect on the date hereof and as the same may adjust from time to time. Interest accrued during each calendar month shall be due and payable on the fifteenth day of the following calendar month, with the first such interest payment due on July 15, 2026. Interest shall also be payable at maturity and interest accrued after maturity shall be payable on demand. 2. Payments. Both principal and interest are payable in lawful money of the United States of America to the Lender at 1016 Civic Center DR NW, Suite 300, Rochester, MN 55901 (or other location specified by the Lender) in immediately available funds. By its execution of this Note, each Borrower authorizes the Lender to charge from time to time against any of such Borrower’s depository accounts maintained with the Lender any such payments when due and the Lender will use its reasonable efforts to notify the Borrowing Agent of such charges. 3. Variable Interest Rate. The interest rate on this Note is subject to change from time to time based on changes in an independent index which is the CME one-month term SOFR published by CME Group Benchmarks Administration Limited (or a successive administrator designated by the relevant authority) for the date that is one U.S. Government Securities Business Day prior to the Reset Date (the “Index”). The Index is not necessarily the lowest rate charged by Lender on its loans. Lender will tell Borrowing Agent the current index rate upon Borrowing Agent’s request. The interest rate change will not occur more often than each month. For purposes Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D TEMP DocuSign Documents
OVERLINE CREDIT NOTE Page 2 U.S. $2,800,000.00 Dated as of June 15, 2026 of this Note, “U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities. 4. Rate Change Effective Date. Each change in interest rate shall be effective as of each payment date (the “Reset Date”). 5. Regulatory Change; etc. Each Borrower understands that Lender may make loans based on other rates as well. Interest on the unpaid principal balance of this Note will be calculated as described in the “INTEREST CALCULATION METHOD” paragraph. Notwithstanding anything herein to the contrary, if the Lender determines in good faith (which determination shall be conclusive, absent manifest error) that: (A) adequate and fair means do not exist for ascertaining CME one-month term SOFR, (B) CME one-month term SOFR does not accurately reflect the cost to the Lender of the Loan, or (C) a Regulatory Change (as hereinafter defined) shall, in the reasonable determination of the Lender, make it unlawful or commercially unreasonable for the Lender to use CME one-month term SOFR as the index for purposes of determining the Interest Rate, then: (i) CME one-month term SOFR shall be replaced with an alternative or successor rate or index chosen by the Lender in its reasonable discretion; and (ii) the Applicable Margin may also be adjusted by Lender in its reasonable discretion, giving due consideration to market convention for determining rates of interest on comparable loans. “Regulatory Change” shall mean a change in any applicable law, treaty, rule, regulation or guideline, or the interpretation or administration thereof, by the administrator of the relevant benchmark or its regulatory supervisor, any governmental authority, central bank or other fiscal, monetary, or other authority having jurisdiction over Lender or its lending office. Such an amendment to the terms of this Note will become effective and bind Borrowers 10 Business Days after Lender gives written notice to Borrowing Agent without any action or consent of the Borrowers. NOTICE: Under no circumstances will the interest rate on this Note be more than the maximum rate allowed by applicable law. If any payment hereunder becomes due and payable on a day other than a Business Day, such payment shall be effective the next succeeding Business Day. 6. Interest Calculation Method. Interest on this Note is computed on a 365/360 basis; that is, by applying the ratio of the interest rate over a year of 360 days, multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. All interest payable under this Note is computed using this method. 7. Prepayment; Minimum Interest Charge. In any event, even upon full prepayment of this Note, Borrowers understand that Lender is entitled to a minimum interest charge of $10.00. Other than Borrowers’ obligation to pay any minimum interest charge, Borrowers may pay without penalty all or a portion of the amount earlier than it is due. Early payments will not, unless agreed to by Lender in writing, relieve Borrowers of Borrowers’ Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
OVERLINE CREDIT NOTE Page 3 U.S. $2,800,000.00 Dated as of June 15, 2026 obligation to continue to make payments of accrued unpaid interest. Rather, early payment will reduce the principal balance due. Borrowers agree not to send Lender payments marked “paid in full”, “without recourse”, or similar language. If Borrowers send such a payment, Lender may accept it without losing any of Lender’s rights under this Note, and Borrowers will remain obligated to pay any further amount owed to Lender. All written communications concerning disputed amounts, including any check or other payment instrument that indicates that the payment constitutes “payment in full” of the amount owed or that is tendered with other conditions or limitations or as full satisfaction of a disputed amount must be mailed or delivered to: Alerus Financial, National Association, 1016 Civic Center DR NW, Suite 300, Rochester, MN 55901. 8. Late Charge. If a payment is 10 days or more late, Borrowers will be charged five percent (5.00%) of the unpaid portion of the regularly scheduled payment. 9. Interest During Default. Upon the occurrence of an Event of Default, including failure to pay upon final maturity, the interest rate on this Note shall be increased by adding an additional five (5.00) percentage point margin to the interest rate otherwise in effect hereunder (such increased rate of interest being, the “Default Rate”). However, in no event will the interest rate exceed the maximum interest rate limitations under applicable law. 10. Credit Agreement. This Note is the Overline Note referred to in, and is entitled to the benefits of, that certain Credit Agreement dated as of August 29, 2024, as amended by that certain Amendment No. 1 to Credit Agreement and Other Loan Documents dated as of January 21, 2025, by that certain Amendment No. 2 to Credit Agreement and Consent dated as of February 21, 2025, by that certain Amendment No. 3 to Credit Agreement dated as of March 31, 2025, by that certain Amendment No. 4 to Credit Agreement and Consent dated as of May 15, 2025, and by that certain Amendment No. 5 to Credit Agreement dated as of September 3, 2025, and by that certain Amendment No. 6 to Credit Agreement and Other Loan Documents dated as of June 15, 2026 (the Credit Agreement as so amended and as it may be further modified, supplemented or restated from time to time being the “Credit Agreement”; capitalized terms not otherwise defined herein being used herein as therein defined) between the Borrowers and the Lender. The Credit Agreement, among other things, (i) provides for the making of Overline Loans (as defined in the Credit Agreement) by the Lender to the Borrowers from time to time in an aggregate amount not to exceed at any time outstanding the dollar amount first above mentioned, the indebtedness of the Borrowers resulting from each such Overline Loan being evidenced by this Note; (ii) contains provisions for acceleration of the maturity hereof upon the happening of certain stated events prior to the maturity hereof upon the terms and conditions therein specified; and (iii) contains provisions for the mandatory prepayment hereof upon certain conditions. 11. Security Agreement. This Note is secured by, among other things, that certain Security Agreement, dated as of August 29, 2024, executed by the Borrowers in favor of the Lender and certain other Loan Documents. Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
OVERLINE CREDIT NOTE Page 4 U.S. $2,800,000.00 Dated as of June 15, 2026 12. Waiver of Presentment and Demand for Payment; Etc. Each Borrower and any endorsers or guarantors hereof severally waive presentment and demand for payment, notice of intent to accelerate maturity, protest or notice of protest and non-payment, bringing of suit and diligence in taking any action to collect any sums owing hereunder or in proceeding against any of the rights and properties securing payment hereunder, and expressly agree that this Note, or any payment hereunder, may be extended from time to time, and consent to the acceptance of further security or the release of any security for this Note, all without in any way affecting the liability of any Borrower and any endorsers or guarantors hereof. No extension of time for the payment of this Note, or any installment thereof, made by agreement by Lender with any person now or hereafter liable for the payment of this Note, shall affect the original liability under this Note of the undersigned, even if the undersigned is not a party to such agreement. 13. Event of Default. Any Event of Default (as defined in the Credit Agreement) shall constitute an Event of Default under this Note. Upon the occurrence of an Event of Default, in addition to any other rights or remedies Lender may have at law or in equity or under the Credit Agreement or under any other Loan Document, Lender may, at its option, without notice to Borrower, declare immediately due and payable the entire unpaid principal sum hereof, together with all accrued and unpaid interest thereon plus any other sums owing at the time of such Event of Default pursuant to this Note, the Security Agreement or any other Loan Document. The failure to exercise the foregoing or any other options shall not constitute a waiver of the right to exercise the same or any other option at any subsequent time in respect of the same event or any other event. The acceptance by the holder of any payment hereunder which is less than payment in full of all amounts due and payable at the time of such payment shall not constitute a waiver of the right to exercise any of the foregoing options at that time or at any subsequent time. 14. Successors and Assigns. This Note shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns except that no Borrower may assign or transfer its rights hereunder without the prior written consent of Lender, which consent may be withheld in Lender’s sole discretion. 15. Governing Law. THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS NOTE SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS OF THE UNITED STATES APPLICABLE TO NATIONAL BANKS. 16. Waiver of Right to Jury Trial; Venue. EACH BORROWER WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION RELATING TO OR ARISING FROM THIS NOTE. AT THE OPTION OF LENDER, THIS NOTE MAY BE ENFORCED IN ANY UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA OR THE STATE COURT SITTING IN HENNEPIN OR RAMSEY COUNTY, Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
OVERLINE CREDIT NOTE Page 5 U.S. $2,800,000.00 Dated as of June 15, 2026 MINNESOTA. EACH BORROWER CONSENTS TO THE JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT PROPER OR CONVENIENT. IN THE EVENT AN ACTION IS COMMENCED IN ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS NOTE, LENDER, AT ITS OPTION, SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE JURISDICTIONS AND VENUES ABOVE DESCRIBED, OR IF SUCH TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT PREJUDICE. 17. WAIVER OF DEFENSES. OTHER THAN CLAIMS BASED UPON THE FAILURE OF THE LENDER TO ACT IN A COMMERCIALLY REASONABLE MANNER, EACH BORROWER WAIVES EVERY PRESENT AND FUTURE DEFENSE (OTHER THAN THE DEFENSE OF PAYMENT IN FULL), CAUSE OF ACTION, COUNTERCLAIM OR SETOFF WHICH SUCH BORROWER MAY NOW HAVE OR HEREAFTER MAY HAVE TO ANY ACTION BY THE LENDER IN ENFORCING THIS NOTE OR ANY OF THE LOAN DOCUMENTS. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER GRANTING ANY FINANCIAL ACCOMMODATION TO THE BORROWERS. 18. Severability. The invalidity or unenforceability in particular circumstances of any provision of this Note shall not extend beyond such provision or such circumstances and no other provision of this instrument shall be affected thereby. In connection with the actual or prospective sale by the Lender of any interest or participation in the loan obligation evidenced by this Note, Borrowers hereby authorize the Lender to furnish any information concerning Borrowers or any of their affiliates, however acquired, to any person or entity. 19. Expense Reimbursement. Borrowers jointly and severally agree to pay expenses relating to this Note as set forth in the Credit Agreement. 20. Business Purpose Loan. The Loan is a business loan. Borrowers hereby represent that this loan is for commercial use and not for personal, family or household purposes. The Borrowers agree that the Loan evidenced by this Note is an exempted transaction under the Truth In Lending Act, 15 U.S.C., §1601, et seq. 21. Usury. Borrowers and Lender agree that no payment of interest or other consideration made or agreed to be made by Borrowers to Lender pursuant to this Note shall, at any time, be in excess of the maximum rate of interest permissible by law. In the event such payments of interest or other consideration provided for in this Note shall result in an effective rate of interest which, for any period of time, is in excess of the limit of the usury or any other law applicable to the Loan evidenced hereby, all sums in excess of those lawfully collectible as interest for the period in question shall, without further agreement or notice between or by any party hereto, Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
OVERLINE CREDIT NOTE Page 6 U.S. $2,800,000.00 Dated as of June 15, 2026 be applied to the unpaid principal balance and not to the payment of interest; if a surplus remains after full payment of principal and lawful interest, the surplus shall be remitted by Lender to Borrowers, and Borrowers hereby agree to accept such remittance. This provision shall control every other obligation of the Borrowers and Lender relating to this Note. [signature page follows] Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
OVERLINE NOTE IN WITNESS WHEREOF, the Borrowers have jointly and severally caused this Overline Note to be signed by their duly authorized officers in favor of ALERUS FINANCIAL, NATIONAL ASSOCIATION and to be dated as of the date set forth above. Air’Zona Aircraft Services, Inc., an Arizona corporation By: Name: Mark Jundt Title: Secretary CSA Air, Inc., a North Carolina corporation By: Name: Mark Jundt Title: Secretary Global Ground Support, LLC a North Carolina limited liability company By: Name: Mark Jundt Title: Secretary Jet Yard, LLC, an Arizona limited liability company By: Name: Mark Jundt Title: Secretary Jet Yard Solutions, LLC, an Arizona limited liability company By: Name: Mark Jundt Title: Secretary Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
OVERLINE CREDIT NOTE Mountain Air Cargo, Inc., a North Carolina corporation By: Name: Mark Jundt Title: Secretary Royal Aircraft Services, LLC, a Maryland limited liability company By: Name: Mark Jundt Title: Secretary Worldwide Aircraft Services, Inc., a Kansas corporation By: Name: Mark Jundt Title: Secretary Worthington Aviation, LLC, a North Carolina limited liability company By: Name: Mark Jundt Title: Secretary Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
EX-10.9
EX-10.9
Filename: a109acknowledgment_andxa.htm · Sequence: 13
a109acknowledgment_andxa
087847\013\7228574.v1 ACKNOWLEDGMENT AND AGREEMENT Dated: June 15, 2026. The undersigned, Air T, Inc., a Delaware corporation (together with its successors and assigns, the “Guarantor”), has (a) guaranteed the payment and performance of all obligations of its affiliates identified on Schedule A attached hereto (together with their respective successors and assigns, the “Existing Borrowers”), to ALERUS FINANCIAL, NATIONAL ASSOCIATION, a national banking association (together with its successors and assigns, the “Lender”), pursuant to the terms of a Guaranty dated as of August 29, 2024 (the “Guaranty”) executed by the Guarantor in favor of the Lender, which obligations include, without limitation, all “Obligations” of the Borrowers to the Lender pursuant to that certain Credit Agreement dated as of August 29, 2024, as previously amended by that certain Amendment No. 1 Credit Agreement and Other Loan Documents dated as of January 21, 2025, by that certain Amendment No. 2 to Credit Agreement and Consent dated as of February 21, 2025, by that certain Amendment No. 3 to Credit Agreement dated as of March 31, 2025, by that certain Amendment No. 4 to Credit Agreement and Consent dated as of May 15, 2025, and by that certain Amendment No. 5 to Credit Agreement dated as of September 3, 2025 (as so amended, the “Original Agreement”); and (b) pursuant to that certain Amended and Restated Pledge Agreement dated as of November 24, 2025 (Pledge Agreement”), executed by the Guarantor in favor of the Lender, pledged to the Lender as collateral for the payment and performance of the Obligations, in all of the Guarantor’s right, title and interest in and to the “Account” maintained by Guarantor with the “Securities Intermediary” as such terms are defined in the Pledge Agreement. The Guarantor acknowledges that it has received a copy of the proposed Amendment No. 6 to Credit Agreement and Other Loan Documents dated to be effective on or about the date hereof (the “Amendment”) amending certain terms of the Original Agreement and providing for the making of Overline Loans during the Overline Commitment Period. The Guarantor (a) confirms that the Guaranty and the Pledge Agreement remain in full force and effect, (b) agrees and acknowledges that the Amendment shall not in any way impair or limit the rights of the Lender under the Guaranty or under the Pledge Agreement, and (c) hereby acknowledges and agrees that (i) pursuant to the Guaranty, the Guarantor guarantees the payment and performance of all Obligations under the Original Agreement, as amended by the Amendment, and (ii) pursuant to the Pledge Agreement the Guarantor continues to grant a security interest to the Lender in the “Account” and the “Pledged Securities” held in the Account to secure all Obligations under the Original Agreement, as amended by the Amendment. The Guarantor agrees that each reference to the “Credit Agreement”, the “Loan Agreement”, “therein”, “thereof”, “thereby” or words of similar effect referring to the Credit Agreement in any Loan Document to which the Guarantor is a party shall mean and be a reference to the Original Agreement, as amended by the Amendment. The Guarantor: (a) represents and warrants to the Lender that no events have taken place and no circumstances exist at the date hereof which would give the Guarantor any right to assert a defense, offset or counterclaim to any claim by the Lender for payment of the Obligations guaranteed by the Guarantor or for the enforcement of the Guaranty; and (b) hereby releases and forever discharges the Lender and its successors, assigns, directors, officers, agents, employees Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D TEMP DocuSign Documents
and participants from any and all actions, causes of action, suits, proceedings, debts, sums of money, covenants, contracts, controversies, claims and demands, at law or in equity, which the Guarantor ever had or now has against the Lender or its successors, assigns, directors, officers, agents, employees or participants by virtue of their relationship to any Borrower(s) or the Guarantor in connection with the Loan Documents and the transactions related thereto. Nothing in this Acknowledgment and Agreement requires the Lender to obtain the consent of the Guarantor to any future amendment, modification or waiver to the Original Agreement, as amended by the Amendment, or any other Loan Document to which the Guarantor is a party except as expressly required by the terms of the Loan Documents to which the Guarantor is a party. The delivery of a facsimile, pdf or other digital copy of an executed counterpart of this Acknowledgment and Agreement shall be deemed to be valid execution and delivery of this Acknowledgment and Agreement; provided, that the Guarantor agrees to promptly provide Lender with an original signed counterpart of this Acknowledgment and Agreement upon request by Lender. [SIGNATURE PAGE FOLLOWS] Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
[Guarantor Acknowledgment and Agreement Signature Page] The Guarantor has executed this Acknowledgment and Agreement to be effective as of the first date set forth above. Air T, Inc., a Delaware corporation By: Name: Mark Jundt Its: Secretary Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
[Guarantor Acknowledgment and Agreement Signature Page] SCHEDULE A Air’Zona Aircraft Services, Inc., an Arizona corporation CSA Air, Inc., a North Carolina corporation Global Ground Support, LLC, a North Carolina limited liability company Jet Yard, LLC, an Arizona limited liability company Jet Yard Solutions, LLC, an Arizona limited liability company Mountain Air Cargo, Inc., a North Carolina corporation Royal Aircraft Services, LLC, a Maryland limited liability company Worldwide Aircraft Services, Inc., a Kansas corporation Worthington Aviation, LLC, a North Carolina limited liability company Docusign Envelope ID: B8A77A19-B9A6-8611-831E-F1772D9EB13D
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v3.26.1
Cover
Jun. 16, 2026
Entity Information
Document Type
8-K
Document Period End Date
Jun. 16, 2026
Entity Registrant Name
AIR T, INC.
Entity Incorporation, State
DE
Entity File Number
001-35476
Entity Tax Identification Number
52-1206400
Entity Address, Street
11020 David Taylor Drive, Suite 305,
Entity Address, City
Charlotte
Entity Address, State
NC
Entity Address, Postal Zip Code
28262
City Area Code
980
Local Phone Number
595-2840
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Entity Emerging Growth Company
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Soliciting Material
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Common Stock
Entity Information
Title of 12(b) Security
Common Stock
Trading Symbol
AIRT
Security Exchange Name
NASDAQ
Cumulative Capital Securities
Entity Information
Title of 12(b) Security
Alpha Income Preferred Securities (also referred to as 8% Cumulative Capital Securities) (“AIP”)
Trading Symbol
AIRTP
Security Exchange Name
NASDAQ
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