EXHIBIT 10.40
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AIRCRAFT PURCHASE AGREEMENT
BOMBARDIER
AEROSPACE
This Aircraft Purchase Agreement (the "Agreement") is made by and between
BOMBARDIER INC. ("Seller") and WILLIAMS-SONOMA, INC. ("Buyer") and shall be
effective as of the date of its acceptance and execution by Seller.
ARTICLE 1. AIRCRAFT DESCRIPTION
Subject to the provisions of this Agreement, Seller agrees to manufacture, sell
and deliver to Buyer, and Buyer agrees to take delivery of, and pay for, one
Bombardier Global Express Aircraft Model BD-700-1A10 bearing manufacturers
serial number 9120 (the "Aircraft") as described in the Specification number
BCC-GX-302 dated 20 June 2002 amended 29 April 2003 (the "Completion Work"),
Description and Customer Support Services Manual dated January 2002 which are
attached hereto as Schedule "A-1" and Schedule "A, and the Aircraft Flight
Manual, Aircraft Maintenance Manual and the applicable Certificate of
Airworthiness which are respectively made part of this Agreement by reference
(collectively, the "Specification").
ARTICLE 2. PRICE, PAYMENT SCHEDULE AND DELIVERY
2.1
In consideration of Seller's obligations to manufacture, sell and deliver
the Aircraft to Buyer, Buyer shall pay to Seller the amount of $ [**] USD (the
"Purchase Price") as follows:
(i)
1st payment due upon Buyer's execution of this Agreement (including that
certain Deposit of $ [**]previously paid by Buyer to Seller on 25 March 2003,
the ("Deposit")):
$ [**]USD
(ii)
balance of Purchase Price due at the
Delivery Time (as hereinafter defined):
$ [**]USD
2.2
The Aircraft shall be ready for [**] at Seller's facility in the city of
Dorval, Quebec no later than [**]
ARTICLE 3. COMPLETION WORK
The parties agree that Seller shall complete the Aircraft in accordance with
Schedule "A-1".
ARTICLE 4. GENERAL PROVISIONS
4.1 THE WARRANTY, OBLIGATIONS AND LIABILITIES OF SELLER AND THE RIGHTS AND
REMEDIES OF BUYER SET FORTH IN THE SPECIFICATION ARE EXCLUSIVE AND ARE IN LIEU
OF AND BUYER HEREBY WAIVES AND RELEASES ALL OTHER WARRANTIES, OBLIGATIONS,
REPRESENTATIONS OR LIABILITIES, EXPRESS OR IMPLIED, ARISING BY LAW, IN CONTRACT,
CIVIL LIABILITY OR IN TORT, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO A) ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE, AND
B) ANY OTHER OBLIGATION OR LIABILITY ON THE PART OF SELLER TO ANYONE OF ANY
NATURE WHATSOEVER BY REASON OF THE DESIGN, MANUFACTURE, SALE, REPAIR, LEASE OR
USE OF THE AIRCRAFT OR RELATED PRODUCTS AND SERVICES DELIVERED OR RENDERED
HEREUNDER OR OTHERWISE.
4.2 SELLER SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL,
INCIDENTAL AND/OR PUNITIVE DAMAGES OF ANY KIND OR NATURE UNDER ANY CIRCUMSTANCES
OR, WITHOUT LIMITING THE FOREGOING, FOR ANY LOST PROFITS OR ANY OTHER LOSSES OR
DAMAGES FOR OR ARISING OUT OF ANY LACK OR LOSS OF USE OF ANY AIRCRAFT, ANY
EQUIPMENT, ANY ACCESSORY OR ANY SPARE PART FOR ANY REASON.
4.3 THE PARTIES HERETO HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITED WARRANTIES
AND THE LIMITATION OF LIABILITY PROVISIONS CONTAINED HEREIN AND IN THE
SPECIFICATION HAVE BEEN EXPRESSLY AGREED TO IN CONSIDERATION OF THE PURCHASE
PRICE AND OTHER PROVISIONS OF THIS AGREEMENT FOR THE BENEFIT