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Lawyers, other representatives, expert(s), tribunal’s secretary

Final Award

[1].
WE, THE UNDERSIGNED ARBITRATORS (collectively the "Panel" or the "Arbitrators"), were appointed to serve in this arbitration by the International Centre for Dispute Resolution ("ICDR") of the American Arbitration Association ("AAA") in accordance with the arbitration provisions of the Sales Agreement entered into by Oceltip Aviation 1 Pty Ltd ("Oceltip") and Gulfstream Aerospace Corporation ("Gulfstream") on October 17, 2011 (and amended on September 28, 2012) (Oceltip and Gulfstream are hereinafter referred to, collectively, as the "Parties").
[2].
This proceeding was administered under the ICDR's International Arbitration Rules, as amended and in effect as of June 1, 2014 (the "Rules"), the ICDR's Guidelines for Arbitrators Concerning Exchange of Information, and the Code of Ethics for Arbitrators in Commercial Disputes.
[3].
The Arbitrators, having been duly appointed and duly sworn, and having considered the Parties' claims and defenses, and their briefs, proofs, and arguments, do hereby render their Final Award.

I INTRODUCTION

[4].
This is a dispute arising under and in connection with the Sales Agreement entered into by the Parties on October 17, 2011, and Amendment No. 1 to that agreement, entered into on September 28, 2012, under which Gulfstream was to manufacture and sell and Oceltip was to purchase a new G550 business jet aircraft. These agreements were the last in a series of six agreements entered into by the Parties over a 21-month period from late 2010 through the third quarter of 2012, all as discussed, infra.
[5].
Oceltip is an Australian limited liability company. It formerly operated under the name Tinkler Gulfstream 550 Pty. Ltd. Oceltip is an affiliate of Tinkler Group Holdings Pty Ltd and Tinkler Group Aviation Pty Ltd, Australian holding limited liability companies (the "Tinkler Group"). Nathan Tinkler is the sole owner and principal of both Oceltip Aviation 1 Pty Ltd and the Tinkler Group entities.1 Oceltip and the Tinkler Group are hereinafter referred to, individually and collectively, as "Oceltip."2
[6].
Gulfstream is a Georgia corporation and is wholly owned by General Dynamics Corporation.3
[7].
Oceltip was represented in this proceeding by Rex E. Reese of Las Vegas, Nevada; Gulfstream was represented by Michael A. Doornweerd, Wade A. Thomson and Kathleen W. Gibbons of Jenner & Block LLP (Chicago). The Panel acknowledges the professionalism, skill and advocacy of counsel for both Parties.

II THE ARBITRATION AGREEMENT

[8].
Under the Sales Agreement, the Parties agreed to submit any dispute arising out of or relating to the agreement, or the breach thereof, to binding arbitration under AAA/ICDR Commercial and International Rules, with the arbitration to be governed by the laws of the State of Georgia, and the place of arbitration to be Savannah, Georgia. Section 4.3 of the Sales Agreement provided as follows:

4.3 Arbitration.

4.3.1 Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association ("AAA") in accordance with the provisions of its Commercial Arbitration Rules, including as appropriate its Procedures for Large, Complex Commercial Disputes or its International Dispute Resolution Procedures, and judgment on the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof.

4.3.2 The arbitration proceedings shall be conducted before a panel of one neutral arbitrator if the claim is for less than USD $2 Million (exclusive of interest) or otherwise before a panel of three neutral arbitrators. All neutrals shall be either attorneys licensed to practice law in the United States actively engaged in the practice of law for at least ten years, or qualified neutrals having at least 10 years of experience with and knowledge of aviation or an aviation related business. The language of the arbitration shall be English.

4.3.3 The award shall be in writing, shall be signed by a majority of the arbitrators if more than one arbitrator is on the panel, and shall include a statement setting forth the reasons for the disposition of any claim. Each party shall bear its own costs and expenses and an equal share of the arbitrators' and administrative fees of arbitration. The place of arbitration shall be Savannah, Georgia. This contract shall be governed by the laws of the State of Georgia, and the U.N. Convention on Contracts for the International Sale of Goods (frequently referred to as the "UNCISG") shall not apply, without reference to rules regarding conflicts of law.

III INITIATION OF ARBITRATION PROCEEDING

[9].
Oceltip submitted its demand for arbitration (accompanied by a Summary of the Dispute, dated August 29, 2014) to the AAA on September 10, 2014. Gulfstream filed its Response to Demand for Arbitration and Counterclaim on October 13, 2014.
[10].
The ICDR's appointment of the three undersigned Arbitrators was advised to the Parties on February 5, 2015 and reconfirmed on March 3, 2015, following notice of the appointments and related disclosures to the Parties.

IV PREHEARING PROCEEDINGS & SUBMISSIONS

A. Prehearing Proceedings.

[11].
After the Panel was constituted, a number of conferences and hearings were held with the Parties, and seven procedural orders were entered, prior to the Final Hearing.
[12].
Following nearly four hours of preliminary hearing conducted on March 10 and 18, 2015, Procedural Order No. 1 was entered on March 19, 2015. The order identified the applicable rules; adopted the Parties' proposed overall schedule for prehearing activities and the hearing (including dates for document requests; the exchange of documents; and the prehearing submission of written witness statements, prehearing briefs, and lists of exhibits and witnesses); established procedures for communications between and amongst the Panel and the Parties, the submission of motions, the resolution of objections to discovery requests, and the presentation of evidence at the hearing; and scheduled two prehearing status conferences and a final prehearing conference.
[13].
The first scheduled status conference was conducted on April 29, 2015.
[14].
Upon motion and the submission of a proposed protective order by each Party, and following a two-hour hearing on May 27, 2015, Procedural Order No. 2 was entered on June 4, 2015. The order entered a protective order establishing procedures for the protection of confidential information disclosed during the course of the proceeding.
[15].
Following a conference with the Parties on June 23, 2015, Procedural Order No. 3, dated June 24, 2015, allowed Oceltip's request to submit a motion for summary disposition and established a briefing schedule for same. Procedural Order No. 4, dated July 6, 2015, allowed Oceltip to submit a substitute motion for summary disposition to correct clerical errors in the original motion. Procedural Order No. 5, dated August 1, 2015, denied Oceltip's motion for summary disposition.
[16].
A two-hour conference was held with the Parties on September 17, 2015, to discuss certain Oceltip document requests and Gulfstream's objections to same.
[17].
Procedural Order No. 6, dated September 3, 2015, allowed Oceltip's application for leave to amend its demand to include a claim of anticipatory repudiation, subject to certain conditions.4 Oceltip filed an amended demand for arbitration on September 8, 2015.
[18].
The second scheduled status conference was conducted on October 2, 2015, followed by Procedural Order No. 7, dated October 6, 2015. The order made certain adjustments to the prehearing schedule, rejected Oceltip's proposal to bifurcate the hearing, established a procedure for attending to certain issues regarding hearing witnesses, and scheduled the starting time of the hearing.
[19].
A final prehearing conference was conducted on October 26, 2015.

B. Prehearing Submissions.

[20].
Oceltip's prehearing submissions consisted of the following:

Claimant's Initial Pre-Hearing Brief, dated September 11, 2015 (28 pages, accompanied by 1 exhibit);

Claimant's Response Brief to Respondent's Initial Pre-Hearing Brief, dated October 23, 2015 (54 pages, accompanied by 4 exhibits); and

Declaration of Nathan Tinkler, dated September 10, 2015 (2 pages, accompanied by 12 exhibits) (marked as Joint Exhibit 89 during the hearing).

[21].
Gulfstream's prehearing submissions consisted of the following:

Gulfstream Aerospace Corporation's Initial Pre-Hearing Brief, dated September 11, 2015 (34 pages, accompanied by 11 exhibits);

Gulfstream Aerospace Corporation's Responsive Pre-Hearing Brief, dated October 23, 2015 (29 pages, accompanied by 10 exhibits);

Witness Statement of Richard Chiariello, dated September 11, 2015 (13 pages, accompanied by 21 exhibits) (marked as Joint Exhibit 94 during the hearing);

Responsive Witness Statement of Richard Chiariello, dated October 16, 2015 (8 pages, accompanied by 4 exhibits) (marked as Joint Exhibit 94A during the hearing);

Witness Statement of Sonja Fields, dated September 11, 2015 (4 pages, accompanied by 4 exhibits) (marked as Joint Exhibit 93 during the hearing);

Witness Statement of Jim Tait, dated September 11, 2015 (15 pages, accompanied by 6 exhibits) (marked as Joint Exhibit 95 during the hearing);

Responsive Witness Statement of Jim Tait, dated October 16, 2015 (8 pages, accompanied by 1 exhibit) (marked as Joint Exhibit 95A during the hearing); and

Responsive Witness Statement of Bill Williams, dated October 16, 2015 (7 pages) (marked as Joint Exhibit 92 during the hearing).

V CLAIMS & CONTENTIONS

A. Oceltip.

[22].
Oceltip's Amended Demand for Arbitration, dated September 8, 2015, seeks an award:5

1. Finding that Gulfstream anticipatorily repudiated the Agreement, as a consequence of which,

a. Oceltip's performance under the Agreement was suspended,

b. Oceltip is entitled to the return of the $7 million it paid to Gulfstream under the Agreement, and

c. Oceltip is entitled to damages;

2. Finding that the liquidated damages provision in Section 3.3.2(i) of the Agreement is unenforceable, as a consequence of which,

a. Gulfstream's exclusive remedy is that provided in Section 3.3.2(ii) of the Agreement, and

b. Oceltip is entitled to the return of all amounts paid to Gulfstream under the Agreement in excess of the amount, if any, that Gulfstream can prove under Section 3.3.2(ii) of the Agreement;

3. Finding that Gulfstream is not entitled to any damages, liquidated or actual, or other relief because it failed to mitigate damages;

4. Denying Gulfstream's counterclaim in its entirety; and

5.Awarding Oceltip such other and further relief as is just, equitable and proper.

[23].
In Claimants Initial Pre-Hearing Brief, dated September 11, 2015, and in Claimant's Responsive Brief to Respondent's Initial Prehearing Brief, dated October 23, 205, Oceltip sets forth the specific grounds upon which its claim that the liquidated damages provision in Section 3.3.2(i) of the Agreement is unenforceable is based:

1. The liquidated damages provision is a penalty and unenforceable, in that Gulfstream is entitled under Section 3.3.2 to elect between liquidated damages or actual damages calculated under the formula specified therefore in Section 3.3.2(ii) and, as a result, Section 3.3.2 does not liquidate the damages;

2. Uncertainty as to the amount of actual damages did not exist;

3. Actual damages are not difficult or impossible to prove;

4. There was no intent to provide for liquidated damages rather than a penalty;

5. The $8 million liquidated damages amount is not a reasonable pre- estimate of probable loss, or reasonable in light of anticipated or actual harm; and

6. The $8 million liquidated damages amount is an unreasonably large amount for liquidated damages.

B. Gulfstream.

[24].
Gulfstream's Response to Demand for Arbitration and Counterclaim, dated October 13, 2014, seeks an award:

1. Denying Oceltip's demand in its entirety;

2. Awarding Gulfstream the liquidated damages specified under Section 3.3.2(i) of the Agreement; and

3. Awarding Gulfstream such other and further relief as is just, equitable, or proper.

[25].
In addition, under Gulfstream Aerospace Corporation's Petition for Attorneys' Fees and Costs, dated December 4, 2015, Gulfstream seeks attorneys' fees and costs in the amount of $96,160.32.

VI THE ARBITRATION HEARING

[26].
The arbitration hearing was conducted over three days from November 2 through 4, 2015, in Savannah, Georgia, at the Westin Savannah Harbor Resort (the "Final Hearing").
[27].
Following opening statements by counsel, four witnesses were called by the Parties for direct and cross-examination. Oaths were administered to each witness.
[28].
On behalf of Oceltip, the sole witness called to testify and submit a witness statement was Nathan Tinkler, principal of Oceltip.6
[29].
On behalf of Gulfstream, three witnesses were called to testify and submit their witness statements: Bill Williams, Gulfstream Vice President of Materials for Initial Phase, Final Phase and Advanced Procurement; Richard Chiariello, Gulfstream Director of Contract Management; and Jim Tait, Gulfstream Vice President, Sales Operations and Analysis.7 Sonia Fields, Gulfstream Treasury Services Manager, submitted a witness statement, but did not testify at the Final Hearing because Claimant decided not to cross examine her.8
[30].
Following the completion of oral testimony the Parties gave their respective closing arguments. The Panel adjourned the Final Hearing on November 4, 2015, leaving it open pending its receipt and review of post-hearing submissions. Hrg. Tr. 562-563, 564-566, 569.
[31].
On November 10, 2015, the Panel issued Procedural Order No. 8. The order recited that all issues concerning the admissibility of evidence and exhibits were resolved during the hearing; declared that all exhibits identified and offered as Joint Exhibits (whether in advance of the hearing or during the hearing) or demonstrative exhibits (PowerPoints of opening and closing arguments) were admitted into evidence; and identified the post-hearing submissions that were to be submitted by the dates specified, i.e.: Oceltip's submission of written presentations of its opening and closing arguments; proposed findings of fact and conclusions of law from each Party; and affidavits and records from Gulfstream in support of any request under Procedural Order No. 6 for attorneys' fees and costs relating to its defense against Oceltip's amended claim for anticipatory repudiation.
[32].
On November 10, 2015, the parties jointly submitted written presentations of their respective opening statements and closing arguments. Oceltip's opening statement was submitted as Claimant's Demonstrative Exhibit 1; its closing argument was submitted as Claimant's Demonstrative Exhibit 2. Gulfstream's opening statement was submitted as Gulfstream's Demonstrative Exhibit 1; its closing argument was submitted as Gulfstream's Demonstrative Exhibit 2.
[33].
On December 4, 2015, the parties submitted their respective proposed findings of fact and conclusions of law. In addition, Gulfstream submitted a petition for attorneys' fees and costs incurred in defending against the anticipatory repudiation claims contained in Claimant's Amended Demand for Arbitration.
[34].
On January 8, 2016, the Panel issued Procedural Order No. 9. The order admitted into the record Oceltip's written closing argument; admitted into evidence as substantive exhibits Gulfstream's affidavits and records in support of its request for attorneys' fees and costs; and closed the hearing.

VII DISCUSSION OF FACTS

[35].
The following is a discussion of the evidence presented, both oral and written (witness statements, examination and cross-examination of witnesses, and exhibits) which the Arbitrators found to be true, relevant and material to the issues presented, and necessary to enable them to understand and resolve the issues in dispute and render this Award.9 To the extent that the recitations below differ from either Party's positions or contentions regarding the facts and the evidence, that difference stems from the Arbitrators' understanding, interpretation, and construction of the evidence; their determinations regarding the relevance, materiality, and credibility of the evidence; their weighing of the evidence; or their consideration of the burden of proof.

A. Overview of Agreements.

[36].
This arbitration stems from a series of six agreements entered into by the parties over a 21-month period from late 2010 through the third quarter of 2012. The agreements called for the sale and delivery of two Gulfstream business jet aircraft: four of the agreements applied to the sale and delivery of a Gulfstream Model G550 aircraft ("G550"); two of the agreements applied to the sale and delivery of a Gulfstream Model G650 aircraft ("G650").10
[37].
The two most recent G550 agreements are at issue in this arbitration: the Sales Agreement executed on October 17, 2011 (JX 1), and Amendment No. 1 to that agreement, executed on September 28, 2012 (JX 2) (respectively, the "Third Sales Agreement," or "Sales Agreement," and the "Amendment;" collectively, the "Agreement"). The two earlier G550 agreements, while not directly at issue in the arbitration, are relevant to the proceeding and informed the Panel's determination: the Sales Agreement executed on December 31, 2010 (JX 7), and the Sales Agreement executed on August 24, 2011 (JX 21) (respectively, the "First Sales Agreement" and the "Second Sales Agreement").
[38].
Throughout the period covered by the four G550 agreements there was only a single agreement in effect at any given time. The Second Sales Agreement superseded the First Sales Agreement, and the Sales Agreement and later Amendment, collectively, superseded the Second Sales Agreement.

B. Relevant Terms of Agreements in Dispute.

[39].
It will be helpful to review at the outset the terms of the two G550 agreements that are in dispute: the Sales Agreement and the Amendment.
[40].
The Sales Agreement and the Amendment contained the relevant terms set out below (in the order in which they appear in the agreements).11

Time of the Essence

[41].
Section 3.1 of the Sales Agreement specified that time is of the essence.

3.1 TIME IS OF THE ESSENCE Time is of the essence in the performance of Buyer's obligations under this Agreement, including without limitation: (i) payment of funds due Gulfstream on the dates specified[…]

Event of Default

[42].
Section 3.3.1 of the Sales Agreement defined events that would constitute an event of default.

3.3.1 Event Of Default. The following events will constitute an "Event of Default :"

3.3.1.1 Buyer will be deemed to be in Default upon: (i) the failure of Buyer to either make any payments when due or accept title to the Aircraft when tendered by Gulfstream, provided that Gulfstream has given 10 business days written notice of that default and Buyer has failed to take steps to correct that default within that period[…]

Gulfstream's Remedy as Seller

[43].
Section 3.3.2 of the Sales Agreement outlined Gulfstream's remedies as the seller.

3.3.2 Gulfstream's Remedy Upon Buyer Default. In the Event of Default by Buyer, Gulfstream shall be entitled to elect, in Gulfstream's sole discretion, one of the following two remedies:

(i) Gulfstream may retain, as liquidated damages and not as a penalty, SIX MILLION FIVE HUNDRED THOUSAND U.S. DOLLARS ($6,500,000.00), and return to Buyer the remaining balance of any deposits paid by Buyer and held by Gulfstream under this Agreement, without interest, and Gulfstream shall have the right to resell the Aircraft, free and clear of any and all other obligations to Buyer; or

(ii) Gulfstream may resell the Aircraft to a third party in an arms-length, commercially reasonable transaction. Upon receipt of the proceeds of such resale, Gulfstream shall refund to Buyer an amount calculated as follows:

(x) the amount of deposits paid by Buyer and held by Gulfstream under this Agreement, without interest, minus

(y) the sum of:

(a) Gulfstream's reasonable expenses and other costs which resulted from Buyer's default, including without limitation the expense of the sale of the Aircraft (such as sales commissions), storage charges, and ordinary maintenance expenses, and

(b) the amount, by which the Buyer's Base Price in this Agreement exceeds the Base Price for such resale. "Base Price" means the Total Purchase Price adjusted to exclude all options and account for variances in payment terms, concessions and other factors directly affecting the consideration received by Gulfstream. Such calculations shall be made applying Gulfstream's standard methodologies, consistently applied, used in valuing new aircraft sales transactions for Gulfstream's internal financial reporting purposes.

[44].
This section was later replaced in its entirety by the Amendment. Section 3.0 of the Amendment substituted Section 3.3.2 set out below. In sum, the substituted Section 3.3.2 increased the amount of liquidated damages from $6.5 million to $8 million and added a provision allowing Gulfstream to collect—as well as retain—sums paid or due as liquidated damages.

3.3.2 Gulfstream's Remedy Upon Buyer Default. In the Event of Default by Buyer, Gulfstream shall be entitled to elect, in Gulfstream's sole discretion, one of the following two remedies:

(i) Gulfstream may retain or collect, as liquidated damages and not as a penalty, EIGHT MILLION U.S. DOLLARS ($8,000,000.00), and return to Buyer the remaining balance of any deposits paid by Buyer and held by Gulfstream under this Agreement, without interest, and Gulfstream shall have the right to resell the Aircraft, free and clear of any and all other obligations to Buyer; or

(ii) Gulfstream may resell the Aircraft to a third party in an arms-length, commercially reasonable transaction. Upon receipt of the proceeds of such resale, Gulfstream shall refund to Buyer an amount calculated as follows:

(x) the amount of deposits paid by Buyer and held by Gulfstream under this Agreement, without interest, minus

(y) the sum of:

(a) Gulfstream's reasonable expenses and other costs which resulted from Buyer's default, including without limitation the expense of the sale of the Aircraft (such as sales commissions), storage charges, and ordinary maintenance expenses, and

(b) the amount, by which the Buyer's Base Price in this Agreement exceeds the Base Price for such resale. "Base Price" means the Total Purchase Price adjusted to exclude all options and account for variances in payment terms, concessions and other factors directly affecting the consideration received by Gulfstream. Such calculations shall be made applying Gulfstream's standard methodologies, consistently applied, used in valuing new aircraft sales transactions for Gulfstream's internal financial reporting purposes.

[45].
In addition to the above, the Amendment contained a recital regarding liquidated damages. No equivalent recital was contained in the Sales Agreement.

WHEREAS, the Parties acknowledge and agree that Gulfstream's damages in the Event of Default by Buyer will be difficult to ascertain, that the amounts agreed to as liquidated damages are a reasonable pre-estimate of the probable loss, and that the Parties intend to provide for reasonable liquidated damages and not a penalty.

Oceltip's Remedy as Buyer

[46].
Section 3.3.3 of the Sales Agreement outlined Oceltip's remedy as the buyer.

3.3.3 Buyer's Remedy Upon Gulfstream Default. In the Event of Default by Gulfstream prior to the Delivery Time, Buyer's sole remedy will be to terminate the Agreement and, upon such termination, Gulfstream will promptly return to Buyer all payments previously made by Buyer to Gulfstream which are applicable to the Total Purchase Price plus interest at the Prime Rate from the time of receipt of funds by Gulfstream to the time of refund to Buyer, and neither party will have any further obligation to the other.

Non-Assignability

[47].
Section 3.4 of the Sales Agreement prohibited any assignment, save as expressly authorized.

3.4 NON-ASSIGNABILITY AND SPECULATION

The parties acknowledge that speculation in Gulfstream sales agreements is not in the best interest of Gulfstream or its customers, as it causes unfair delays in aircraft availability for customers and inhibits proper planning of production schedules. Accordingly, this Agreement may not be assigned by Buyer, and any attempted assignments will be void except as specifically permitted below.... Gulfstream will consent to the assignment of this Agreement by Buyer to a third party that is, and will continue to be following any assignment:... (y) an entity that is providing financing to Buyer in connection with the acquisition of the Aircraft[…]

Entire Agreement & Interpretation

[48].
Section 4.1 of the Sales Agreement contained a saving clause.

4.1 Entire Agreement; Interpretation. This Agreement, its appendices, the Product Specification and the other documents referred to herein collectively constitute the entire agreement between the Parties concerning the sale and purchase of the Aircraft (the "Agreement"), and supersede any prior and contemporaneous understandings, agreements or representations by or among the Parties, written or oral, that relate in any way to the subject matter hereof. No future agreement or understanding varying the provisions of this Agreement will be binding upon either Party hereto unless set forth in a writing that is signed by duly authorized representatives of both Parties. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under law, but if any provision of this Agreement is held to be prohibited by or invalid under law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement. The words "include," "including" and variations thereof are not terms of limitation, but rather will be deemed to be followed by the words "without limitation."

C. Sequence of Agreements and Related Events.

1. First Sales Agreement.

[49].
The parties entered their first agreement on December 31, 2010 ("First Sales Agreement"). JXs 7, 94 (Chiariello Wit. Stmnt. ¶ 5). The Adjusted Total Purchase Price ("ATP Price") of the aircraft was $47 million; delivery was scheduled for the 2nd Quarter of 2012; and the agreement required six payments to be made between execution and delivery. Id. The agreement also allowed Gulfstream, as a remedy for Oceltip's default, to retain as liquidated damages the amount of $6 million. Id.
[50].
In conjunction with the First Sales Agreement the Parties also entered into a separate agreement12 under which Oceltip traded-in a used Hawker 850 XP aircraft in exchange for a guaranteed credit of $7 million, with half the credit to be applied toward payment under the First Sales Agreement and half toward payment under the First G650 Sales Agreement. JXs 9 (§§ 1.2 and 1.4), 11, 12, 19, 27, 93 (Fields Wit. Stmnt. ¶ 4).13
[51].
Oceltip made its initial payment of $500,000 upon execution of the agreement, and was credited with its second scheduled payment of $3 million a month later, on January 31, 2011.14 JXs 7 (GAC 401), 9, 11, 12, 13 (GAC 769, 782, 797), 14, 93 (Fields Wit. Stmnt. ¶ 4). Oceltip failed, however, to make the third payment of $2.5 million, due on April 15, 2011. JX 7 (GAC 401), Hrg. Tr. 72-84.
[52].
On May 27, 2011, Gulfstream's Richard Chiariello delivered to Oceltip's Paul Flynn a notice of default and opportunity to cure within ten business days (cure requiring full payment of the past-due payment, together with late payment interest). JX 17. Oceltip failed to make the payment to cure, and Gulfstream terminated the agreement on July 1, 2011. JXs 18 and 94 (Chiariello Wit. Stmnt. ¶ 11).
[53].
At the time of termination, Oceltip had $3.5 million on account under the agreement. Supra. On July 15, 2011, Gulfstream invoiced Oceltip for the additional $2.5 million necessary to satisfy the liquidated damages amount of $6 million. JXs 12 and 19.
[54].
On August 12, 2011, Oceltip's Nathan Tinkler proposed an amendment to the agreement "to bring all contract arrears up to date by no later than 23rd September, 2011." JX 20; Hrg. Tr. 80. The upshot of that proposal was the Second Sales Agreement.

2. Second Sales Agreement.

[55].
The parties executed the Second Sales Agreement on August 24, 2011. JXs 21, 94 (Chiariello Wit. Stmnt. ¶ 12); Hrg. Tr. 81-82. That agreement incorporated essentially the same terms as the First Sales Agreement, save for (i) increasing the ATP Price to $48.41 million (from $47 million), (ii) extending the scheduled delivery to the 3rd quarter of 2013 (from the 2nd quarter of 2012), and (iii) reducing the total number of payments to four (from six). The amount that Gulfstream was allowed to retain as liquidated damages remained at $6 million. Id.
[56].
The initial payment of $6 million under the Second Sales Agreement was due September 15, 2011. Oceltip failed to make that payment. JXs 22, 94 (Chiariello Wit. Stmnt. ¶13); Hrg. Tr. 83-84. As a result, the Second Sales Agreement never became effective, per the terms of Section 4.7. Gulfstream's Lynette Bratvogel notified Oceltip's Nathan Tinkler of this fact on September 26, 2011, declaring the agreement "null and void and of no force and effect per Section 4.7[…]" JX 22. See, also, JX 94 (Chiariello Wit. Stmnt. ¶13). This led to the Third Sales Agreement.

3. Third Sales Agreement and Amendment.

[57].
The parties entered the Third Sales Agreement on October 17, 2011. JXs 1, 23, 89 (Tinkler Wit. Stmnt. ¶ 2), 94 (Chiariello Wit. Stmnt. ¶ 14). That agreement incorporated essentially the same terms as the Second Sales Agreement, save for (i) increasing the ATP Price to $48.91 million (a $500,000 increase from the $48.41 million under the Second Sales Agreement), (ii) allowing Gulfstream to collect—as well as retain—funds due as liquidated damages, and (iii) increasing the amount of liquidated damages to $6.5 million (a $500,000 increase from the $6 million under the Second Sales Agreement). Id., JX 22. The scheduled delivery date and payment schedule were the same as under the Second Sales Agreement.
[58].
Oceltip made the initial payment of $6.5 million upon execution of the agreement. JXs 1 (GAC 153), 11, 27, 93 (Fields Wit. Stmnt. ¶ 4).15 Oceltip failed, however, to make the second payment of $10.25 million, due on September 15, 2012. JX 94 (Chiariello Wit. Stmnt. ¶ 15); Hrg. Tr. 87. This was the third time Oceltip had failed to make a progress payment when due to Gulfstream. Hrg. Tr. 87.
[59].
On September 19, 2012, Gulfstream's Richard Chiariello delivered to Oceltip's Nathan Tinkler a notice of default and opportunity to cure (with cure to be effected by full payment of the past-due payment, together with late payment interest, no later than September 24, 2012). JXs 25, 94 (Chiariello Wit. Stmnt. ¶ 15).
[60].
As a means of effecting cure of the default, the parties agreed to amend the Third Sales Agreement.
[61].
The Amendment was executed on September 28, 2012. JXs 2, 89 (Tinkler Wit. Stmnt. ¶ 3), 94 (Chiariello Wit. Stmnt. ¶ 15). It (i) increased the ATP Price to $50.81 million (a $1.9 million increase from the 48.91 million under the Third Sales Agreement), (ii) extended the scheduled delivery to the 1st Quarter of 2014, (iii) reduced the number of payments to three (from six), with an initial payment of $6.5 million due on September 15, 2011,16a second payment of $27.15 million due on January 15, 2013, and a final payment of $17.16 million due on delivery, (iv) increased the amount of liquidated damages to $8 million (a $1.5 million increase from the $6.5 million under the Third Sales Agreement), and (v) allowed Gulfstream to collect—as well as retain—funds in the event it exercised its remedy of liquidated damages. JXs 2, 94 (Chiariello Wit. Stmnt. ¶ 16); Hrg. Tr. 192-193.
[62].
In addition, the Amendment added a WHEREAS clause regarding liquidated damages: "the Parties acknowledge and agree that Gulfstream's damages in the Event of Default by Buyer will be difficult to ascertain, that the amounts agreed to as liquidated damages are a reasonable pre-estimate of the probable loss, and that the Parties intend to provide for reasonable liquidated damages and not a penalty." JXs 2 and 94 (Chiariello Witness Statement ¶ 16).
[63].
Oceltip failed to make the $27.15 million payment due on January 15, 2013. JXs 94 (Chiariello Wit. Stmnt. ¶ 18), 94A (Chiariello Resp. Wit. Stmnt. ¶ 5); Hrg. Tr. 93. This was the fourth time Oceltip had failed to make a progress payment when due to Gulfstream. Hrg. Tr. 93.
[64].
Oceltip's Nathan Tinkler testified that Oceltip's failure to make the payment was attributable to financial difficulties stemming from a liquidity shortage which Oceltip was then endeavoring to overcome through a sale of assets and financing. Hrg. Tr. 57-58, 100-111.
[65].
On January 16, 2013, Gulfstream's Richard Chiariello delivered to Oceltip's Nathan Tinkler a notice of default and opportunity to cure (with cure to be effected by full payment of the past-due payment of $27.15 million, together with late payment interest, on or before January 25, 2013). JXs 26, 89 (Tinkler Wit. Stmnt. ¶ 4), 94 (Chiariello Wit. Stmnt. ¶ 19); Hrg. Tr. 94.
[66].
The notice erroneously calculated the final day of the cure period to be Friday, January 25: that date was calculated on calendar days, rather than business days, as required under Section 3.3.1.1 of the Agreement. JXs 26, 94 (Chiariello Wit. Stmnt. ¶ 22). Under a calculation based on business days, the final day of the cure period would have been Wednesday, January 30 (this due to the fact that January 21 was the Martin Luther King Day holiday in the U.S.). JX 91; Hrg. Tr. 94-96, 199-201.17 Oceltip's Nathan Tinkler testified that he does not believe that anyone at Oceltip or on Oceltip's behalf contemporaneously complained that the letter used calendar days instead of business days, Hrg. Tr. 96, and no evidence was submitted to establish that Oceltip made any such complaint at any later time. Gulfstream did not reissue the notice to state that Oceltip had ten business days within which to cure. Hrg. Tr. 200. See, also, JX 94A (Chiariello Resp. Wit. Stmnt. ¶ 16).
[67].
On January 16, 2013, Oceltip's Nathan Tinkler emailed Gulfstream's Susan Reeves to report that he was "actually travelling in the US at the moment and would be available to meet with Richard to discuss [on Friday, January 18, or Monday, January 21] in Savannah." JX 27 (at GAC 446). Chiariello responded the same day, stating that he would "make [himself] available at a time most convenient for you on either of those days." JX 27 (at GAC 444). Chiariello testified that he agreed to meet with Tinkler "[b]ecause Gulfstream is always interested in maintaining its relationships with customers, [and] so from 2010 through 2013, we were trying to work with[Oceltip] to keep [it] on a G550 aircraft." Hrg. Tr. 196-197. See, also, JX 95 (Tait Wit. Stmnt. ¶¶ 12 and 15); Hrg. Tr. 297, 321, 399-400, 419-420, 464.
[68].
On January 17 Tinkler and Chiariello scheduled their meeting for Monday, January 21. JX 27 (at GAC 441-442).
[69].
On January 21, Tinkler emailed Chiariello requesting that they reschedule their meeting for the same time on Tuesday, January 22, due to the fact that Tinkler was "getting mucked about with a charter from Miami" and would have to drive to Savannah. JX 27 (at GAC 441). Chiariello agreed. JX 27 (at GAC 441).
[70].
Early on January 22, Tinkler emailed Chiariello to report that he was "still stuck in Miami making [his] way towards you today" and that he would "call at 10am to have a preliminary discussion with you about solving this[…]" He also reported that he "should be able to [confirm a time] for tomorrow or Thursday to fit into you schedule." JX 27 (at GAC 440).
[71].
Chiariello and Tinkler spoke by telephone later that morning. JX 28. Immediately after their conversation, Chiariello sent an email to interested Gulfstream colleagues to report on the call. Id.; Hrg. Tr. 317-320. Chiariello related that Tinkler "insists he will make the $27,150,000 payment, as he is selling off other assets, and will have the $$ to us by no later than Friday, February 1, 2013," and noted that Tinkler "hopes it will be sooner, but believes it will be on February 1st." Chiariello further reported that, "I have told him that, absent our receipt of the entire amount due on the G550, he will be held in default," and that "[h]e says he totally understands." Id.; Hrg. Tr. 196-199. See, also, JX 94 (Chiariello Wit. Stmnt. ¶¶ 20-21); Hrg. Tr. 296-298, 317-321.
[72].
Tinkler testified that JX 28 is an accurate report of the conversation, and of what Gulfstream would claim in the event of default. Hrg. Tr. 97-100. Tinkler testified, however, that Oceltip was not then "acknowledging a default" because he conveyed to Chiariello that he was working to sell assets and raise money and make the payment. Id. See, also, JX 89 (Tinkler Wit. Stmnt. ¶¶ 5-6); Hrg. Tr. 57-58, 100-101. Chiariello, on the other hand, testified that Tinkler never told him that such efforts amounted to a cure of Oceltip's default, and that Oceltip at no time claimed that the Agreement had not been properly terminated. JX 94A (Chiariello Resp. Wit. Stmnt. ¶¶ 7 and 10-15).
[73].
The later meeting between Tinkler and Chiariello that Tinkler had in mind in his January 22 email (JX 27) never took place.
[74].
On January 30, 2013—the final day of the ten business day cure period—Tinkler scheduled a meeting with Montrose Global, an aircraft financier. JX 29. Others at Oceltip had been in contact with Montrose Global prior to the meeting. Id.; Hrg. Tr. 119-120.
[75].
On January 31, 2013, Tinkler met with Montrose Global to discuss the possibility of Montrose Global financing Oceltip's purchase of the G550. Hrg. Tr. 119. Tinkler understood from that meeting that Montrose required, as a condition precedent to providing financing, that it become an assignee of the Agreement. Hrg. Tr. 119-120.
[76].
Oceltip failed to make the $27.15 million payment that was necessary to cure its default. JX 94A (Chiariello Resp. Wit. Stmnt. ¶ 9); Hrg. Tr. 96. Tinkler testified that the use of calendar days rather than business days in the January 16 notice of default was not the cause of Oceltip's failure to make the payment by that date. Hrg. Tr. 96.

4. Termination.

[77].
On February 4, 2013, Gulfstream's Richard Chiariello sent Oceltip's Nathan Tinkler a letter terminating the Agreement. JXs 30, 89 (Tinkler Wit. Stmnt. ¶ 7), 94 (Chiariello Wit. Stmnt. ¶ 23); Hrg. Tr. 112. The termination letter stated, inter alia, that Gulfstream was terminating the Agreement because, "in light of [Oceltip's] failure to make a payment when due and subsequent failure to cure, a final Event of Default by [Oceltip] has occurred." Id. The letter also stated, erroneously, that the January 16, 2013, notice of default had provided Oceltip the "opportunity to cure that default within ten (10) business days." See, also, Hrg. Tr. 199-201.
[78].
The balance of Oceltip's account on the date of termination was $6.5 million. Hrg. Tr. 321-322.

5. Post Termination.

[79].
Following the termination a series of rapid-fire exchanges ensued between Oceltip and Gulfstream in which Oceltip sought Gulfstream's agreement to reinstate the agreement. Oceltip proposed doing so either by reinstatement coupled with assignment to a third party, or by reinstatement as between the parties.
[80].
On February 6, 2013, Oceltip's Nathan Tinkler sent Gulfstream's Richard Chiariello a letter requesting that Gulfstream agree to a prospective financing arrangement. Tinkler acknowledged that Oceltip had failed to make the $27.15 million payment, but represented that Oceltip was "currently facilitating" financing through Montrose Capital that would enable Oceltip to make that payment, and that he expected the financing to be available within four weeks. With that in mind, Tinkler requested Gulfstream to (i) "[r]evoke the purported termination and reinstate the Sales Agreement" and (ii) grant Oceltip an extension until March 11, 2013 to make the payment. Tinkler stated that if Gulfstream would agree to the arrangement, Oceltip would make a $250,000 payment towards the $27.15 million payment. Tinkler asked for a response by February 15, 2013. JXs 32, 89 (Tinkler Wit. Stmnt. ¶ 8); Hrg. Tr. 113-122.
[81].
On February 7, 2013, Gulfstream's Diana Hathaway responded on Chiariello's behalf. She acknowledged receipt of the "request for the extension to cure default" and stated that Gulfstream would agree to the extension on the condition that Gulfstream receive payment of $1 million on February 11, 2013, and payment of the $26.15 million balance no later than March 11, 2013. Hathaway made no reference to the financing arrangement described in Tinkler's letter of February 6, 2013. JXs 33 and 35.
[82].
Oceltip's Tinkler responded to Gulfstream's Chiariello and Hathaway with a letter that same day. "Following further discussions with Montrose Capital," Tinkler requested that Gulfstream accept a $500,000 payment on February 25, 2013, as payment towards the $27.15 million, and requested that the date for payment of the $26.65 million balance be extended to March 25, 2013. Tinkler also requested—for the first time—that the reinstated agreement "be assigned to Montrose Capital as the entity providing financing to [Oceltip] to acquire the aircraft in accordance with Section 3.4(y) of the Sales Agreement[…]" JXs 34, 89 (Tinkler Wit. Stmnt. ¶ 9), 94 (Chiariello Wit. Stmnt. ¶ 25); Hrg. Tr. 115-117.
[83].
Chiariello testified that all he inferred from that letter was that Oceltip wanted the agreement reinstated and then assigned to a third party called Montrose Capital. But he did not know whether Oceltip would get financing or be able to make a payment beyond the $500,000 that Tinkler committed to pay. Hrg. Tr. 204-206.
[84].
Again that same day, Gulfstream's Hathaway responded. She stated that Gulfstream would agree to the extension to cure default on the condition that Gulfstream receive (i) payment of $500,000 by February 15, 2013, (ii) payment of an additional $500,000 by February 25, 2013, and (iii) payment of the $26.15 million balance by March 15, 2013. She also stated that the extension would not be valid until both $500,000 payments had been received. Hathaway's response made no reference to the financing arrangement described in Tinkler's letter of February 6, 2013, or to the assignment proposed in his letter of February 7, 2013. JX 33.
[85].
Also on February 7, 2013, Oceltip's Chief Pilot, Shane O'Connell, followed-up on Tinkler's letter of that date with an email to Gulfstream's Hathaway requesting that Gulfstream agree to Oceltip's proposal that the reinstated agreement be assigned to Montrose Capital "as the entity providing financing to the Buyer to acquire the aircraft in accordance with section 3.4(y) of the Agreement."
[86].
Hathaway did not receive O'Connell's email. JX 35. Having received no response from Hathaway, O'Connell sent another email to her on February 12, 2013, requesting a response. Id.
[87].
On February 13, 2013, Gulfstream's Hathaway responded to Oceltip's Jodie Van Gilst. Hathaway (i) stated that Gulfstream was researching Montrose Capital, (ii) reiterated Gulfstream's second offer to Oceltip on February 7, 2013, and (iii) stated that, "[t]o be clear, the two (2) February payments are expressly due at the dates noted, notwithstanding the unresolved matter involving Montrose Capital." JXs 35, 89 (Tinkler Wit. Stmnt. ¶ 10).
[88].
Oceltip's O'Connell responded to Gulfstream's Hathaway the same day (February 13 Savannah time; February 14 Australia time). He observed that "[t]here seems to be some confusion regarding the 'assignment' to Montrose" and declared that "[w]e have been very clear with this condition in past correspondence[: the] approval by Gulfstream to assign this contract to Montrose is a categorical condition of our proposal and as such this approval is required before we can proceed any further." JXs 37, 89 (Tinkler Wit. Stmnt. ¶ 11).
[89].
Also that same day, Gulfstream's Chiariello responded to Oceltip's O'Connell. He stated that Gulfstream did not agree to Oceltip's proposal and expressed Gulfstream's understanding that Gulfstream's proposal had been rejected by Oceltip. JXs 36, 38 (pp. 1-2), 39 (GAC 293-294), 89 (Tinkler Wit. Stmnt. ¶ 12); Hrg. Tr. 225-227.
[90].
The following day, February 15, 2013, O'Connell emailed Chiariello with a new proposal for Gulfstream's consideration: an immediate payment of $500,000;18 payment of an additional $500,000 by March 1, "with the reassignment of the contract;" and payment of the $26.15 million balance by March 22. JXs 38 (p. 1), 39 (GAC 293). O'Connell declared that "we intend to cure this default and make the 500k payment today," but explained that, "[g]iven the issues with the assignment commitment and now understanding the process by which Gulfstream would approve an assignment upon a successful due diligence audit of the financier, we are now requesting some additional time to facilitate this due diligence/assignment process and the subsequent approval process by Montrose." Id.
[91].
Chiariello rejected Oceltip's new proposal the same day. He told O'Connell that Gulfstream "cannot agree to a proposal tying [any payment] to any reassignment of the subject Agreement," and stated that the payments with the due dates previously submitted "are to be made notwithstanding any status of any possible assignment, the approval or rejection of which is not determined at this time." Chiariello further emphasized that any payments "are not in any way to be conditioned upon approval of any such assignment" and "are not conditioned upon any assignment." JX 39 (GAC 292).
[92].
Following these exchanges, Oceltip's efforts to obtain financing from and an assignment to Montrose were brought to a close. Nathan Tinkler testified that the reason there was no agreement with Montrose was because Montrose was not "noted on the contract."19 He claimed that if Montrose had been noted and the price held at $48.9 million, Montrose would have funded the payment. Hrg. Tr. 128-130. Gulfstream's Richard Chiariello and Jim Tait, however, testified to the effect that Oceltip and Montrose simply failed to timely provide Gulfstream with information necessary to allow Gulfstream to conduct a proper due diligence investigation into Montrose's suitability as a financing entity and prospective assignee and consider and negotiate terms of a possible assignment. Hrg. Tr. 123, 128. In any event, financing from Montrose never materialized. Hrg. Tr. 122.
[93].
The parties did, however, continue discussing terms for a possible reinstatement of the Agreement as between themselves. Thus:

• Oceltip's Nathan Tinkler wrote to Gulfstream's Richard Chiariello on April 4, 2013, asking Gulfstream to "reinstate the Sales Agreement" for a 4th quarter 2014 delivery, with payment of "[t]he current outstanding" amount of $26.15 million in January 2014 (JX 43);

• Oceltip's Troy Palmer circulated negotiating points internally at Oceltip on April 11, 2013 (JX 44);

• Troy Palmer corresponded with Gulfstream's Richard Chiariello on April 18, 2013, regarding the possibility that Gulfstream would "waive the default/termination of the Sales Agreement to enable us to continue with the purchase of a G550 aircraft" and proposing terms (JX 45);

• Richard Chiariello responded on April 25, 2013, with a Gulfstream counter proposal and a proposed Amendment No. 2, noting that "the Sales Agreement had not been reinstated and will not be reinstated absent a signed amendment … together with a $1,000,000 payment accompanying that signed document," explaining that "we are unable to keep this reinstatement from default proposal open too long," and stating that the offer will expire on May 2, 2013 (JX 46);

• Oceltip's Troy Palmer responded with further counterproposals on May 6, 2013 (JX 48); and

• Gulfstream's Richard Chiariello rejected the Oceltip counterproposals on April 2, 2013, explaining that his April 25 letter "is indeed our final offer to remove the default status and reinstate the noted contract back into good standing" and noting that the offer will remain open through May 15, 2013 (JX 49; Hrg. Tr. 227-231).

[94].
Chiariello testified that following his April 2, 2013, rejection of Oceltip's counterproposals he asked Palmer if Gulfstream still needed to look into Montrose and Palmer told him, "No, it's not, we are not going down that path," "Montrose went away, we are doing this ourselves." Hrg. Tr. 228-229, 297-298.
[95].
These efforts did not lead to any new agreement.
[96].
Nathan Tinkler testified that throughout the period of the parties' continued discussions in the Spring of 2013, he understood Gulfstream's position to be that the Sales Agreement was terminated on February 4 and remained terminated, "but … it wasn't the first time we had resurrected that deal. So … I continued to work on it, and its like putting it back in place." Hrg. Tr. 122-124.20
[97].
At the time of the hearing, the balance of Oceltip's account under the Agreement totaled $7,000,000. JX 93 (Fields Wit. Stmnt. ¶ 4).21

D. Gulfstream's Determination of the Amount of Liquidated Damages.

[98].
Gulfstream's Richard Chiariello and Jim Tait testified about the process by which Gulfstream determines the amount of liquidated damages in its sales agreements.
[99].
The liquidated damages amounts are determined by a team comprising senior executives and managers from the Finance, Treasury, Legal, and Sales organizations, and the CFO of the company. Most report directly to the CFO. The team's decisions are well thought and thoroughly discussed. The team had meetings 2-3 times a week, during which it reviewed all aircraft in the production backlog. Where there were issues on a particular account, it would review that account. Hrg. Tr. 236, 237-239, 307-308, 335-340, 343-345, 347-350.
[100].
In establishing the amount of liquidated damages, the team considers the "totality of circumstances" and a variety of factors and variables surrounding a potential default. These include: delay or reduction in the receipt of progress payments to fund aircraft in production, including an attendant loss of or delay in cash flow to fund the procurement of long-lead items for the aircraft in advance of and during production; disruption to production planning, including the effect of having to build an aircraft in a shorter period of time; the effect of having to continue building an aircraft for which Gulfstream may not have a buyer; the fact that the aircraft subject to the default has to be sold to another buyer (perhaps at a loss, due to having to sell the subject aircraft at a lower price), coupled with the loss of the sale of another aircraft to that buyer; the fact that the aircraft subject to the default may have had a specific, customized interior installed which a new buyer may not want, and which Gulfstream may have to replace; changing and prevailing economic and market conditions that can affect all of the foregoing; and, ultimately, the loss of anticipated profit upon a buyer's default. Hrg. Tr. 134-135, 137, 236-239, 306-310, 332, 335-340, 342-345; JXs 92 (Williams Wit. Stmnt. ¶ 22), 95 (Tait Wit. Stmt. ¶¶ 12-13, 27-29, 31-33, 38, 47).
[101].
The testimony of Gulfstream's Jim Tait and Bill Williams provided a specific context for several of these considerations. Tait stated that a buyer's progress payments are used by Gulfstream to help fund the acquisition of aircraft systems and components for the buyer's aircraft, which Gulfstream must purchase well in advance of production (such as wings, engines and landing gear). JXs 95 (Tait Wit. Stmt. ¶¶ 8-9), 95A (Tait Resp. Wit. Stmnt. ¶ 5). The cost of these items account for approximately 80% of the material costs for a G550. JX 95 (Tait Wit. Stmt. ¶ 9). Williams testified that there are 13,000 parts for a G550 that must be procured from 450-500 suppliers; that long-lead items are procured 18-24 months in advance; and that the cost of a wing alone is [REDACTED] million. Hrg. Tr. 132-135.
[102].
For the G550 aircraft, the team established a standard liquidated damages amount of $6 million. Hrg. Tr. 307-308. There were, however, variances from the standard amount. For G550s delivered between August 2012 and July 2014, [REDACTED] % of the sales agreements had the standard $6 million liquidated damages amount, [REDACTED] % of the agreements had lower amounts, and [REDACTED] % of the agreements had higher amounts. JXs 74, 94A (Chiariello Resp. Wit. Stmnt. ¶ 19).
[103].
The same team decided upon the increase in the liquidated damages amounts from $6 million to $6.5 million in the Third Sales Agreement, and from $6.5 million to $8 million in the Amendment. The team had a series of meetings regarding increasing the amount to $8 million in the Amendment, each lasting about ½ hour and totaling about 2-2.5 hours, perhaps longer. Hrg. Tr. 340-342. With respect to these increases, the team considered the following additional factors: the time period involved in the new agreements; the change in price and payment terms; the $300,000 loss incurred by Gulfstream on its resale of the aircraft traded in by Oceltip at the time of the First Sales Agreement; and the lost profits under the earlier agreements. JX 95 (Tait Wit. Stmnt. ¶ 38); Hrg. Tr. 236, 309-310, 313-314. The team's goal was to get a reasonable estimate of what could be involved in the event Oceltip defaulted. Hrg. Tr. 313-314.

E. Gulfstream's Estimation of Lost Profits Upon Default.

[104].
Gulfstream's Jim Tait testified to the effect that gross profits on a G550 during the period in issue, while not susceptible to calculation with certainty, and while dependent on Gulfstream's production process and a buyer's outfitting options on a particular aircraft, would range—as variously stated at different points in his testimony—from [REDACTED], from [REDACTED] [REDACTED], and from [REDACTED] ; i.e.,[REDACTED]. Hrg. Tr. 362-364, 372, 378-379, 401-402, 444, 452-453. Tait's witness statement provided similar estimates. Tait therein stated that, during the years 2011-2014, Gulfstream's gross profit margins on G550s ranged from a low of approximately [REDACTED] to a high of approximately [REDACTED], and typically fell between approximately [REDACTED] and [REDACTED]. JXs 95 (Tait Wit. Stmt. ¶ 22), 95A (Tait Resp. Wit. Stmnt. ¶ 7).22 In other words, [REDACTED] the $6 million, $6.5 million, and $8 million liquidated damages amounts in Oceltip's G550 agreements. These estimates were largely unchallenged. On the basis of these estimates, Tait declared that at the time of Gulfstream's Agreement with Oceltip, "[REDACTED]." JX 95 (Tait Wit. Stmt. ¶¶ 22-23). See, also, JX 94A (Chiariello Resp. Wit. Stmnt. ¶ 4).
[105].
Tait and Gulfstream's Richard Chiariello testified regarding the rationale for establishing the amount of liquidated damages at these levels: if Gulfstream established liquidated damages at a full, "zero-risk" level that would present minimal risk to Gulfstream— i.e., at the actual level of Gulfstream's anticipated lost profits—Gulfstream would have difficulty selling aircraft, as prospective buyers would be unlikely to put themselves at risk for the full measure of Gulfstream's anticipated lost profits. Hrg. Tr. 383-384. Thus, as Chiariello and Tait testified, the amount of liquidated damages in Gulfstream's sales agreements represent a reasonable mid-point at which Gulfstream believes it can sell aircraft and yet assure itself of a reasonable partial recovery of anticipated lost profits in the event of a buyer's default. Hrg. Tr. 237-239, 307-308, 401-402.

VIII DISCUSSION AND DETERMINATION OF ISSUES PRESENTED

[106].
Section 4.3.3 of the Sales Agreement specifies that the agreement shall be governed by the laws of the State of Georgia. The Panel's conclusion herein is based on its application of that law, as cited by the Parties in their respective prehearing briefs.
[107].
Having considered and weighed the testimony and other evidence presented, and having assessed the credibility of that evidence, and having considered the Parties' respective claims and defenses, prehearing briefs, opening statements and closing arguments of counsel,23 proposed findings of fact and conclusions of law, and other materials submitted, the Panel hereby gives the following reasons for its Award.
[108].
All claims, counterclaims, and defenses asserted, and all issues raised by the Parties are determined and resolved by this Final Award.

A. Anticipatory Breach/Repudiation.

[109].
Oceltip defaulted under the Agreement when it was unable to make the $27.15 million payment due on January 15, 2013. Gulfstream provided Oceltip with the requisite ten business day opportunity to cure. Oceltip lacked the financial resources to make the payment within the cure period, and Gulfstream terminated the Agreement. Oceltip advances several arguments to escape the consequences of these facts.

1. "Take Steps to Correct."

[110].
One argument is based on Section 3.3.1 of the Agreement (Event of Default). Section 3.3.1.1 sets out two conditions to Oceltip's being deemed in default: ten business days written notice of that default, and Oceltip having "failed to take steps to correct that default within that period." Oceltip contends that the latter condition, rather than requiring an actual cure within the ten-day period, requires only that Oceltip have initiated or undertaken steps toward cure.24
[111].
While Oceltip's argument draws upon the words of the Agreement, the argument is without merit. It urges a construction of Section 3.3.1.1 that renders the opportunity for cure meaningless, and the notice of default essentially futile.
[112].
No reasonable construction of the Agreement can support Oceltip's argument. If construed as Oceltip suggests, a buyer could effectively extend the cure period, if not indefinitely, for a wholly unwarranted and unjustified time, in seriatim, one step to cure after another.

2. Calculation of Cure Period.

[113].
A second argument is that Gulfstream anticipatorily breached or repudiated the Agreement when it terminated the Agreement after having issued the January 16, 2013, notice of default with an incorrect calculation of the cure period. The Panel rejects this argument, on both factual and legal grounds.
[114].
It is true that the January 16, 2013, notice of default contained an error. Section 3.3.1.1 required a ten business day opportunity for cure. The notice, however, calculated the cure period on the basis of calendar days. Thus, the final day of the cure period should have been stated as January 30, rather than January 25, as stated in the notice.
[115].
The evidence demonstrates, however, that this error in the notice had no effect whatsoever on the actions or events that surrounded or followed the notice, and that, during the relevant period, the error was and remained a moot point. First and foremost, Oceltip was, in fact, provided more than ten business days within which to cure the default: Gulfstream, did not issue its letter of termination until February 4, 2013—13 business days following the notice of default. Thus, while the notice of default on its face did not allow ten business days to cure, Gulfstream, by its forbearance, did. Moreover, throughout the period between notice and termination, Gulfstream was actively engaged with Oceltip in a continuing effort to accommodate Oceltip in its attempts to cure or otherwise reinstate the Agreement, or enter a new one, as it had on previous occasions, and Oceltip at no time during this period voiced any objection to, or otherwise challenged Gulfstream regarding the erroneous date. Similarly, the evidence established that Oceltip never requested a reissuance of or correction to the notice, or otherwise sought an accommodation because of that error.25 It is clear from the evidence that the error was not an issue during, and had no effect upon, the Parties' actions at the time of the default, the notice, the termination, or the aftermath.26
[116].
Oceltip cites four Georgia cases in support of its argument that Gulfstream breached the Agreement by terminating it following the erroneous notice of default. Those cases, however, do not support Oceltip's contention. Holden v. Smith, 236 Ga.App. 205, 511 S.E.2d 569 (Ga. App. 1999), Mendel v. Pinkard, 108 Ga.App. 128, 132 S.E.2d 217 (Ga. App. 1963), and Georgia R. & Banking Co. v. Haas, 127 Ga. 187, 56 S.E. 313 (Ga. 1906), are inapposite: each involved a failure to provide any notice at all. And, Hubert v. Luden's Inc., 92 Ga.App. 427, 88 S.E.2d. 481 (Ga.App. 1955), is distinguishable. The purpose of the notice at issue in Hubert was not to provide an opportunity to cure a condition of default, but rather to simply terminate the agreement—finally, unconditionally, and without regard for any act or failure to act on the part of the other party.27
[117].
Having considered the evidence in its entirety, the Panel finds and concludes that Oceltip defaulted under the Agreement, failed to cure within the requisite ten business day period, through no fault, error, breach or wrongdoing on the part of Gulfstream, and that Gulfstream properly and with justification terminated the Agreement. The Panel accepts the view of Gulfstream's Jim Tait that, "had Oceltip had the ability to perform, [Gulfstream] would have delivered an airplane to [it]." Hrg. Tr. 419.28

B. Assignment.

[118].
A third argument advanced by Oceltip is that Gulfstream failed to mitigate its damages when it "refused" to assign the Agreement under Section 3.4(y). This argument fails, for several reasons.
[119].
First, there was no agreement to assign at the time Oceltip raised the matter of assignment with Gulfstream. The Agreement had already been terminated. As Gulfstream's Richard Chiariello testified, "we don't assign terminated sales agreements as a matter of course because it's a terminated agreement. There is nothing to assign[…]" Hrg. Tr. 292. See, also, JX 94 (Chiariello Wit. Stmnt. ¶ 26); Hrg. Tr. 230, 291-293, 325-326.
[120].
Second, whatever measures Gulfstream took to mitigate its losses through sale of the G550 previously intended for Oceltip were of no consequence to Oceltip. Gulfstream elected liquidated damages under Section 3.3.2 of the Agreement. The liquidated damages were a fixed —liquidated—amount that established both Gulfstream's recovery for breach and Oceltip's liability for same, regardless of whatever efforts Gulfstream took to mitigate its loss. Indeed, that was the very purpose of the liquidated damages, and the liquidated damages provision contemplated the very harm—and need for mitigation efforts—occasioned by a buyer's default. Upon Oceltip's default, Gulfstream undertook the very efforts to find a replacement buyer, and incurred the very risks associated with having to do so, that were envisioned as possibilities at the time the amount of liquidated damages was established.
[121].
Third, Oceltip never proposed an assignment as a means by which Gulfstream might minimize its loss. Rather, it proposed an assignment as an essential component of its post-termination efforts to obtain financing so that it could once again salvage its agreement and purchase a G550. Montrose was not proposed as a replacement buyer, it was proposed as a financier.
[122].
Fourth, the evidence established that notwithstanding the termination of the Agreement, Gulfstream was willing to consider an assignment. Following termination of the Agreement, the parties continued for months to salvage an agreement. Discussions about an assignment were part of those efforts. Gulfstream never refused to consider a possible assignment, or to conduct a due diligence review of a proposed assignment under Section 3.4(y) and, throughout, it stood ready to do so. Indeed, the evidence established that long after the matter of an assignment had first been raised, Gulfstream's Richard Chiariello took the initiative to ask Oceltip whether Gulfstream needed to do anything further regarding a possible assignment (and was told no).
[123].
Finally, the Panel finds from the evidence that the principal reason an assignment to Montrose never materialized was because Oceltip and Montrose, for whatever reason, never provided Gulfstream with documentation, information, or proposals. Gulfstream never received documents or information of the kind that it would normally expect to receive from, or exchange with a prospective third party lender in financing and assignment transactions, and no documents or information that would indicate that there was, in fact, a real opportunity with a real lender, committed to making a determination whether to lend funds to Oceltip. Hrg. Tr. 113-122, 216-218, 330-331, 396, 450-452, 460-464.

C. Liquidated Damages.

[124].
The Panel's determination regarding the enforceability of the liquidated damages provision in Section 3.3.2 of the Agreement is guided by the standards of the "tripartite inquiry" established by Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230, 227 S.E.2d 340, 343 (Ga. 1976) ("Southeastern"), and AFLAC, Inc. v. Williams, 444 S.E.2d 314, 317, 264 Ga. 351, 354 (Ga. 1994) ("AFLAC"), and the standards reflected in OCGA 11-2-718(1) (collectively, the "Reasonableness Standards").29 To uphold Section 3.3.2 the Panel must find that:

1. The parties intended to provide for liquidated damages, rather than a penalty;

2. The injury caused by the breach is difficult or impossible to estimate accurately; and

3. The stipulated amount is a reasonable estimate of the probable loss in light of

a. the anticipated or actual harm,

b. the difficulties of proof of loss, and

c. the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy.30

[125].
Oceltip challenges the enforceability of Section 3.3.2(i) under each of the Reasonableness Standards. It also challenges Section 3.3.2 on the independent grounds that the liquidated damages provided for in Section 3.3.2(i) are not, in fact, liquidated, because Gulfstream has the option under Section 3.3.2 to elect between liquidated damages under Section 3.3.2(i) and the alternative remedy under Section 3.3.2(ii). The Panel addresses the latter challenge first.

1. The "Unliquidated" Challenge.

[126].
In support of its contention that the liquidated damages under 3.3.2(i) are not liquidated, and thus constitute an unenforceable penalty, Oceltip relies upon 2010-1 SFG Venture LLC v. Lee Bank & Trust Co., 775 S.E.2d 243, 332 Ga.App. 894 (2015), Jefferson Randolph Corp. v. Progressive Data Systems, Inc., 553 S.E.2d 304, 251 Ga. App. 1 (Ga. App., 2001), Southeastern, supra, and Mayor, Etc. of City of Brunswick v. Aetna Indemnity Co., 4 Ga. App. 722, 62 S.E. 475 (1908).
[127].
Unlike the matter before the Panel, however, each of those cases turned on the fact that the remedy provision in issue allowed the non-breaching party to recover both liquidated damages and other damages. Section 3.3.2, on the other hand, limits Gulfstream to one or the other; it does not allow one in addition to the other. It requires Gulfstream to elect liquidated damages under Section 3.3.2(i) or the alternative remedy under Section 3.3.2(ii).

2. The "Reasonableness" Challenge.

[128].
The Panel turns, then, to its analysis of whether the $8 million liquidated damages is reasonable under the Reasonableness Standards.

a. Intention To Provide For Damages Rather Than A Penalty.31

[129].
The Panel finds, on the evidence presented, that the Parties understood the nature, purpose and effect of the liquidated damages provided in Section 3.3.2(i), and that they intended the section to provide for damages and not a penalty. That section was the subject of negotiation during extensive and informed arms-length negotiations between Joern Schimmelfeder, an attorney with an international law firm (Middletons) who negotiated the agreement on behalf of Oceltip, and Gulfstream's Richard Chiariello that resulted in the Parties' First Sales Agreement. Hrg. Tr. 67-72, 165-169, 186, 264-265, 271-272, 303-306, 316; JXs 4 (GAC 10, 18), 5, 94 (Chiariello Wit. Stmnt. ¶¶ 5-10), 94A (Chiariello Resp. Wit. Stmnt. ¶¶ 2-3), 95 (Tait Wit. Stmnt. ¶31), 95A (Tait Resp. Wit. Stmnt. ¶¶ 12 and 15). In the Parties' later agreements, the essential nature and purpose of Section 3.3.2(i) remained unchanged from the First Sales Agreement, although the amount of liquidated damages changed (from $6 million to $6.5 million in the Third Sales Agreement, and from $6.5 million to $8 million in the 32 Amendment) and the Amendment allowed Gulfstream to collect as well as retain that amount.32 JX 94 (Chiariello Wit. Stmnt. ¶¶ 6, 17); Hrg Tr. 82-83, 90-93, 78-79. Moreover, the evidence established that Oceltip at no time during the relevant period voiced an objection to or otherwise challenged the nature, purpose and effect of Section 3.3.2(i). JX 94 (Chiariello Wit. Stmnt. ¶¶ 11, 24); Hrg. Tr. 78-79, 82-83, 85-87, 232-233, 276-277, 314-316, 345-36.

b. Difficulty or Impossibility of Accurately Estimating Injury.

[130].
The Panel finds, on the evidence presented, that the damage to Gulfstream upon a buyer's breach would be difficult of accurate estimation. The testimony of Gulfstream witnesses Richard Chiariello, Jim Tait, and Bill Williams identified a variety of consequences that reasonably could be expected to result from a buyer's default. Supra, at pp. 28-32. The Panel is satisfied that accurately estimating the loss attributable to any one or more of these consequences would be difficult, as each would involve inherent variables and inexactitudes, each would be subject to and affected by different and changing internal and external financial, economic and market conditions, and each would have to be individually identified, accounted for, and quantified to achieve an accurate estimate of the whole.

c. Reasonableness in Light of Anticipated or Actual harm.

[131].
The Panel finds, on the evidence presented, that the liquidated damages amount of $8 million is reasonable in light of the anticipated harm to Gulfstream, previously discussed, supra, at pp. 28-32, that would flow from a default by Oceltip, not least being the loss 33 of anticipated profit.33

d. Reasonableness in Light of Difficulties of Proof of Loss.

[132].
The Panel finds, on the evidence presented, that this standard is met as well. Each of the various risk and loss factors identified in the testimony of Gulfstream's Chiariello, Tait, and Williams, supra, at pp. 28-32, involves and presents numerous inherent challenges and difficulties of proof of loss. These would include having to identify, gather, and present the facts relevant to each, and having to analyze and compare different agreements with different buyers entered into at different times; and having to do so in light of changing financial, economic and market considerations that may have affected each of the foregoing. These efforts would be enormously time consuming, disruptive, and expensive and the results uncertain.

e. Reasonableness in Light of Inconvenience or Nonfeasibility of Otherwise Obtaining Adequate Remedy.

[133].
The Panel finds, on the evidence presented, that the $8 million liquidated damages amount is reasonable in light of the inconvenience of obtaining the alternative remedy under Section 3.3.2(ii), or any other remedy. Each—even under Section 3.3.2(ii), with its measure of damages set out—would involve many if not all of the difficulties discussed above.
[134].
Having considered the relevant standards in light of the evidence as a whole, the Panel concludes that the $8 million liquidated damages amount in Section 3.3.2(i) was reasonable and is enforceable. The amount was properly liquidated, and the amount was reasonable in light of the fact that the gross profit that Gulfstream reasonably expected to earn from the Agreement [REDACTED] —the stipulated amount of $8 million.

D. Gulfstream's Petition for Attorneys' Fees and Costs.

[135].
On August 25, 2015, Oceltip filed an application to amend its demand to add a claim that Gulfstream breached the Agreement by anticipatory repudiation of it. Gulfstream objected on the grounds that Oceltip's claim of anticipatory repudiation was raised almost a year after the demand for arbitration had been filed and within approximately two months of the final hearing date (and on the eve of submitting initial prehearing briefs).
[136].
The Panel considered Oceltip's application and Gulfstream's objection and, in Procedural Order No. 6, granted the application subject to certain conditions, two of which are now relevant. The first ("c") stated that:

Any costs associated with having to complete prehearing efforts attributable to the amended claim on an expedited basis in order to maintain the current schedule shall be subject to apportionment in the final award.

[137].
The second ("e") stated:

If Claimant fails to prevail on the new amended claim for anticipatory repudiation, all costs incurred by Respondent in defending that claim, including without limitation attorneys' fees and expert witness expenses, shall be subject to assessment against Claimant in the final award.

[138].
Also, on October 6, 2015 (following discussion during the October 2, 2015, status conference regarding, inter alia, the Parties' agreement to share certain hearing expenses, as reflected in an exchange of emails between them submitted to the Panel for review), the Panel issued Procedural Order No. 7 in which it concurred with the Parties' agreement to share equally the expenses of the final hearing.
[139].
At the end of testimony on November 4, 2015, the Panel allowed Gulfstream until December 4, 2015, to submit an affidavit and records in support of any request for attorneys' fees and costs related to its defense against Oceltip's amended claim for anticipatory repudiation. This was memorialized in Procedural Order No. 8, dated November 10, 2015.
[140].
On December 4, 2015, Gulfstream presented a petition for attorneys' fees and costs, together with a supporting declaration by Michael A. Doornweerd that detailed daily summaries of time spent by attorneys Michael A. Doornweerd, Wade A. Thomson, and Kathleen W. Gibbons and paralegal Wendy Kachingwe. The total of attorney and paralegal billings related to the defense of the anticipatory repudiation claim was $98,923.00 and, after applying a discount of 10% which is offered on Gulfstream matters, the net amounted to $89,031.00.
[141].
Court reporter charges were $3,362.50, and graphic design work charges were $23,818.75. Mr. Doornweerd averred in his declaration that the anticipatory repudiation claim extended the hearing time by 20%. Thus, 20% of the court reporter charges and graphics charges were allocated to that claim, amounting to $5,436.00. Although the Parties had agreed to share equally in paying hearing expenses, Gulfstream has not requested that Oceltip share the cost of audiovisual equipment or lunches during the hearing.34 Thus, the total of fees and expenses claimed by Gulfstream for its defense of the anticipatory repudiation claim is $94,467.00.
[142].
Gulfstream paid all of the costs of the hearing room and Panel breakout room rental, and the cost of daily coffee services, which totaled $3,386.63. As of December 4, 2015, Oceltip had not paid the 50% share of these expenses to which it had agreed, nor had it confirmed that it would do so.
[143].
The Panel finds the $89,031.00 in fees and $5,436.00 in expenses claimed by Gulfstream for its defense of the anticipatory repudiation claim reasonable. Gulfstream has properly segregated the attorneys' fees and expenses allocable to its defense of that claim; the professional time expended to defend that claim was reasonable in view of the amount of the claim and the expedited effort made necessary by Oceltip's amendment and Procedural Order No. 6 sixty days before the final hearing; and Gulfstream's attorney and paralegal billing rates are reasonable. Further, the Panel finds that Gulfstream is entitled to be paid by Oceltip half of the costs of hearing room rental and coffee service, or $1,693.32. In the event this amount is paid by Oceltip before this Final Award is entered, Oceltip shall receive a credit in that amount towards attorneys' fees, costs, and expenses awarded to Gulfstream.

IX CONCLUSIONS

[144].
Having considered and weighed the testimony and other evidence presented at the Final Hearing, and having assessed the credibility and weight of that evidence, and having considered the Parties' respective claims and defenses, briefs (and legal authorities cited therein), the arguments of counsel (oral and written opening statements and oral and written closing arguments), proposed findings of fact and conclusions of law, and other materials submitted and presented, the Panel hereby concludes as follows:

1. Oceltip has failed to carry its burden of proof and has failed to prevail on each and every claim and defense asserted in (i) its demand for arbitration, dated September 10, 2014, (ii) its Response to Counterclaim, dated November 17, 2014, and (iii) its Amended Demand for Arbitration, dated September 8, 2015; and

2. Gulfstream has carried its burden of proof and has prevailed on each and every defense and claim asserted in its Response to Demand for Arbitration and Counterclaim, dated October 13, 2014, and its Petition for Attorneys' Fees and Costs, dated December 4, 2015.

X AWARD

[145].
In light of the conclusions stated above, the Panel hereby issues its Final Award, as follows:

1. Each and every element of relief requested by Claimant and Counter Respondent Oceltip Aviation 1 Pty Ltd in its aforementioned submissions of claims and defenses shall be and are hereby denied.

2. Respondent and Counter Claimant Gulfstream Aerospace Corporation shall be and is hereby awarded the total sum of $1,096,160.32 USD (One Million Ninety-Six Thousand One Hundred Sixty and 32/00 US Dollars), such total sum comprising:

a. The sum of $1,000,000.00 USD (One Million and 00/00 US Dollars) on its claim for the unpaid portion of the $8 million liquidated damages amount specified in Section 3.3.2(i) of the Sales Agreement executed on October 17, 2011, as amended by Amendment No. 1 to that agreement, executed on September 28, 2012;

b. The sum of $94,467.00 USD (Ninety-Four Thousand Four Hundred Sixty-Seven and 00/00 US Dollars) under Procedural Order No. 6 as attorneys' fees and costs relating to its defense against Claimant and Counter Respondent Oceltip Aviation 1 Pty Ltd's amended claim for anticipatory repudiation; and

c. The sum of $1,693.32 USD (One Thousand Six Hundred Ninety-Three and 32/00 US Dollars), as the amount of hearing expenses due Gulfstream Aerospace Corporation pursuant to the Parties' e-mail agreement of October 2, 2015, and Prehearing Order No. 7.

3. Within thirty (30) days of the transmittal of this Final Award to the Parties, Claimant and Counter Respondent Oceltip Aviation 1 Pty Ltd shall pay to Respondent and Counter Claimant Gulfstream Aerospace Corporation the above-stated total sum of $1,096,160.32 USD (One Million Ninety-Six Thousand One Hundred Sixty and 32/00 US Dollars).

4. The above-stated total sum is exclusive of and without regard to (i) the administrative fees and expenses of the International Centre for Dispute Resolution, totaling $22,900.00, and (ii) the compensation and expenses of the Arbitrators, totaling $148,579.36. Pursuant to the provisions of Section 4.3.3 of the Sales Agreement executed on October 17, 2011, and except as provided in paragraph 2b above pursuant to Procedural Order No. 6, each party shall bear its own costs and expenses and an equal share of (i) the administrative fees and expenses of the International Centre for Dispute Resolution and (ii) the compensation and expenses of the Arbitrators. Therefore, Respondent and Counter Claimant Gulfstream Aerospace Corporation shall pay to Claimant and Counter Respondent Oceltip Aviation 1 Pty Ltd an amount of $2,750.01, representing that portion of said fees and expenses in excess of the apportioned costs previously incurred by Claimant and Counter Respondent Oceltip Aviation 1 Pty Ltd.

5. This Final Award is a full and final determination of all claims, counterclaims, and requests for relief submitted in this arbitration. Except as specifically addressed and awarded above, all claims, counterclaims, and requests for relief asserted by either Party in this arbitration are hereby denied in their entirety and are hereby dismissed with prejudice.

6. Nothing in this Final Award is intended to adjudicate or settle any claim of the Parties not subject to the Arbitrators' jurisdiction, or any claim by or against any person or entity not a party to this arbitration.

7. This Final Award may be executed in any number of counterparts, each of which shall be deemed an original, and all of which shall constitute together one and the same instrument.

[146].
The undersigned Arbitrators hereby certify that, for purposes of Article I of the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards, and consistent with Section 4.3 of the Sales Agreement executed on October 17, 2011, this Final Award shall be deemed made in Savannah, Georgia, United States of America.
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