Private & Confidential
DATED: NOVEMBER 18, 1998
FIN 3 LIMITED
-and-
HAWAIIAN AIRLINES INC
AIRCRAFT SALE AND PURCHASE AGREEMENT
for one ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Aircraft
Manufacturer's Serial No. 46713
NORTONROSE
London
CONTENTS
CLAUSE HEADING PAGE
------ ------- ----
1 Definitions and Interpretation. . . . . . . . . . . . . . . . . . . . . 1
2 Agreement to sell . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3 Condition of Aircraft . . . . . . . . . . . . . . . . . . . . . . . . . 5
4 Inspection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5 Delivery and acceptance . . . . . . . . . . . . . . . . . . . . . . . . 7
6 Manufacturer's warranties . . . . . . . . . . . . . . . . . . . . . . . 8
7 Deposit and Payments. . . . . . . . . . . . . . . . . . . . . . . . . . 8
8 Conditions precedent. . . . . . . . . . . . . . . . . . . . . . . . . . 9
9 Extent of liability . . . . . . . . . . . . . . . . . . . . . . . . . . 11
10 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
11 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
12 Excusable delay . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
13 Mandatory modifications . . . . . . . . . . . . . . . . . . . . . . . . 15
14 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
15 Costs and expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . 18
16 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
17 Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
18 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
19 Law and Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . 22
AN AGREEMENT dated 19 BETWEEN:
(1) FIN 3 LIMITED, an Irish limited liability company whose registered office
is at ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ (the
"SELLER"); and
(2) HAWAIIAN AIRLINES INC. whose office is at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇-▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ (the "BUYER").
BY WHICH IT IS AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless the context otherwise requires:
"ACCEPTANCE CERTIFICATE" means a certificate of acceptance of the
technical condition of the Aircraft in the form set out in schedule 2 to
be executed by the Buyer and delivered to the Seller in accordance with
clause 5.2;
"AIRCRAFT" means the aircraft described in Schedule 1 Part A including
the airframe, the Engines and all appliances, parts, accessories,
instruments, navigational and communications equipment, furnishings,
modules, components and other items of equipment (including a full
shipset of galley carts) installed on such aircraft at Delivery. Where
the context permits, references to the "Aircraft" shall (a) include the
Manuals and Technical Records and (b) mean such aircraft as a whole and
any part thereof;
"AVIATION AUTHORITY" means the United States Federal Aviation
Administration and each person who is vested with the control and
supervision of, or has jurisdiction over, the registration, airworthiness
or operation of aircraft or other matters relating to civil aviation in
the United States of America;
"BANKRUPTCY EVENT" shall mean, with respect to any party, the occurance
of any of the following with respect to such party; (a) a court or
governmental agency having jurisdiction in the premises shall enter a
decree or order for relief in respect of such party in an involuntary
case under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or appointing a
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receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of such party or for any substantial part of its
property or ordering the winding up or liquidation of its affairs; or
(b) there shall be commenced against such party an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or any case, proceeding or other action for the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such party or for any substantial
part of its property or for the winding up or liquidation of its
affairs, and such involuntary case or other case, proceeding or other
action shall remain undismissed, undischarged or unbonded for a period
of sixty (60) consecutive days; or (c) such party shall commence a
voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consent to the entry of an
order for relief in an involuntary case under any such law, or consent
to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of such
party or for any substantial part of its property or make any general
assignment for the benefit of creditors; or (d) such party shall be
unable to, or shall admit in writing its inability to, pay its debts
generally as they become due.
"▇▇▇▇ OF SALE" means a ▇▇▇▇ of sale substantially in the form set out in
schedule 4;
"BUYER" includes the successors and permitted assignees of the Buyer;
"DELIVERY" means the time at which the Buyer shall obtain title to the
Aircraft in accordance with clause 5.3;
"DEPOSIT" means the sum of __________________________;
"DOLLARS" and "$" mean the lawful currency of the United States of
America and, in respect of all payments to be made under this Agreement
in Dollars, mean funds which are for same day settlement in the New York
Clearing House Interbank Payments System (or such other U.S. dollar funds
as may at the relevant time be customary for the settlement of
international banking transactions denominated in United States dollars);
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"ENCUMBRANCE" means any mortgage, charge (whether fixed or floating),
pledge, lien, hypothecation, assignment, trust arrangement or security
interest of any kind securing any obligation of any person or any other
type of preferential arrangement (including, without limitation, title
transfer and retention arrangements having a similar effect);
"ENGINES" means the three General Electric Model CF6-50C2 engines
described in Schedule 1 Part A together with all equipment and
accessories belonging to, installed in or appurtenant to such engines;
"ESCROW AGENT" means ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ acting in its capacity as Escrow
Agent pursuant to the Escrow Agreement;
"ESCROW AGREEMENT" means the Escrow Agreement of even date herewith and
made between the Escrow Agent, AGES Aircraft Sales & Leasing L.P., the
Seller and the Buyer;
"GOVERNMENT ENTITY" means and includes (whether having a distinct legal
personality or not) (i) any national government, political sub-division
thereof, or local jurisdiction therein; (ii) any board, commission,
department, division, organ, instrumentality, court or agency of any
entity referred to in (i) above, however constituted; and (iii) any
association, organisation or institution (international or otherwise) of
which any entity mentioned in (i) or (ii) above is a member or to whose
jurisdiction any thereof is subject or in whose activities any thereof is
a participant;
"MANUALS AND TECHNICAL RECORDS" means all records, logs, manuals,
technical data and other materials and documents (whether kept or to be
kept in compliance with any regulation of the Aviation Authority or
otherwise) relating to the Aircraft details of which are listed in
schedule 3 and satisfy the intent of FAR 121-380;
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"PROPOSED DELIVERY DATE" means February 16, 1999 or such other date as
determined by this Agreement, or as may be agreed in writing between the
Seller and the Buyer as being the date on which Delivery shall occur;
"PURCHASE PRICE" means the sum of ________________________________;
"SELLER" includes the successors and permitted assignees of the Seller;
1.2 Clause headings and the table of contents are inserted for convenience of
reference only, have no legal effect and shall be ignored in the
interpretation of this Agreement.
1.3 In this Agreement, unless the context otherwise requires:
(a) references to clauses and schedules are to be construed as
references to the clauses of, and schedules to, this Agreement and
references to this Agreement include its recitals (if any) and
schedules;
(b) references to (or to any specified provision of) this Agreement or
any other document shall be construed as references to this
Agreement, that provision or that document as in force for the time
being and as from time to time amended in accordance with the terms
thereof or, as the case may be, with the agreement of the relevant
parties;
(c) references to a "regulation" include any present or future
regulation, rule, directive, requirement, request or guideline
(whether or not having the force of law) of any agency, authority,
central bank or governmental department or any self-regulatory or
other national or supra-national authority;
(d) words importing the plural shall include the singular and vice
versa and words importing a gender shall include any gender;
(e) references to a person shall be construed as including references
to an individual, firm, company, corporation, unincorporated
association or body of persons and any Government Entity; and
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(f) references to any enactment shall be deemed to include references
to such enactment as re-enacted, amended or extended.
2 AGREEMENT TO SELL
2.1 The Seller agrees to sell and the Buyer agrees to buy and accept delivery
of the Aircraft upon and subject to the terms and conditions of this
Agreement, free from all Encumbrances, in consideration of the payment by
the Buyer to the Seller of the Purchase Price.
3 CONDITION OF AIRCRAFT
3.1 When the Aircraft is tendered for delivery by the Seller (which shall not
occur prior to the Proposed Delivery Date) the Aircraft
(a) shall comply in all material respects with the specification
description and delivery condition set out in schedule 1 (save only
for such minor matters as shall not materially and adversely affect
the value or airworthiness of such Aircraft); and
(b) subject to clause 13.1, the Aircraft shall have incorporated all
modifications, airworthiness directives and service bulletins
issued prior to Delivery the fitment, satisfaction or termination
of which on or prior to the date falling six (6) months after
Delivery shall be mandatory under the requirements of the Aviation
Authority;
3.2 The Aircraft may be delivered with tanks empty, but if on Delivery the
tanks are not empty the Buyer shall forthwith pay to the Seller the cost
to the Seller of such fuel as shall then be present in the tanks.
4 INSPECTION
4.1 The Buyer or its authorised representative (nominated by notice from the
Buyer to the Seller) may inspect the Aircraft on the ground at Goodyear
Airport, Phoenix, Arizona and may inspect the Manuals and Technical
Records during the five days immediately preceding the Proposed Delivery
Date, but such
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inspection shall be carried out so as not to delay, obstruct or hinder the
use of the Aircraft or the performance by the Seller of any obligation
under this Agreement.
4.2 The Seller shall arrange for a test flight to be carried out on the
Aircraft from Goodyear Airport, Phoenix, Arizona not more than five days
prior to the Proposed Delivery Date. The test flight shall be carried out
by crew appointed by the Seller and under the command of a pilot
appointed by the Seller. The duration of the test flight shall not
exceed two hours and the Buyer may designate up to three persons to
participate in the test flight as observers. The test flight shall be
carried out at the expense of the Buyer and during the test flight the
flight crew shall accomplish such flight procedures as are set out in the
test flight manual.
4.3 The Buyer shall within two days after the completion of the inspection(s)
referred to in clause 4.1 and the test flight referred to in clause 4.2,
but no later than the Proposed Delivery Date, notify the Seller of any
failure of the Aircraft to comply with the terms of this Agreement. In
the event of any dispute between the Seller and the Buyer arising under
this clause 4.3 as to the existence of any defect or fault, the same
shall be referred to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ of Cavtech (the "EXPERT") for
resolution. The determination of the Expert shall be final and binding
on the parties and all costs and expenses relating thereto shall be borne
by the party against whom the Expert has found.
4.4 Subject as provided below, if the Buyer notifies the Seller, in
accordance with clause 4.3, that the Aircraft has failed to complete
satisfactorily the test flight described in clause 4.2 or otherwise has
failed to comply with the requirements of this Agreement, the Seller
shall if so requested by the Buyer, as soon as practicable, use all
reasonable efforts to carry out any necessary repairs or modifications
to, or work on, the Aircraft to the Seller's approved maintenance
standards and operation specifications and the Seller shall, if requested
by the Buyer, present the Aircraft for a further inspection and/or test
flight, when the
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procedures described in clause 4.2 will again apply, provided always
that where the repairs or modifications to, or work on, the Aircraft are:
(a) in the Seller's reasonable opinion likely to cost, in aggregate, in
excess of ______________ or that the costs involved together with
(1) the costs previously incurred under this clause 4.4 and clause
13.1 and/or (2) costs expected to be incurred under clause 13.1
(from known mandatory airworthiness directives or service bulletins
on or after the date of this Agreement) are likely to exceed
_____________ the Seller may, by notice to the Buyer, terminate its
obligation to sell the Aircraft to the Buyer; or
(b) in the Seller's reasonable opinion likely to take longer than one
month to complete from and including February 16, 1999;
then the Buyer may terminate its obligation to buy and accept delivery of
the Aircraft upon giving the Seller notice to that effect. Upon a
termination in accordance with this clause 4.4, the full Deposit for the
Aircraft shall be returned to the Buyer in accordance with the terms of
the Escrow Agreement but the Seller shall have no other obligation to the
Buyer.
5 DELIVERY AND ACCEPTANCE
5.1 Subject to the satisfaction or waiver of the conditions referred to in
clause 8, delivery of the Aircraft shall take place at Goodyear Airport,
Phoenix, Arizona, or at such other place as the Seller and the Buyer may
agree in writing.
5.2 When the inspection and test flight have been completed without any
defects being agreed in accordance with clause 4.3, or after the Seller
has remedied any such defect in accordance with clause 4.4 then, subject
to the terms and conditions of this Agreement, the Seller shall tender
the Aircraft for delivery (which, for the avoidance of doubt, shall not
occur prior to the Proposed Delivery Date) and the Buyer shall execute
and deliver to the Seller the Acceptance Certificate and pay to the
Seller the Purchase Price less the amount of the Deposit.
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5.3 Upon receipt by the Seller of the Acceptance Certificate and payment of
the Purchase Price (less the amount of the Deposit) the Seller shall
execute and deliver to the Buyer a ▇▇▇▇ of Sale whereupon all the
Seller's rights, title and interest in and to, and all risk whatsoever
and howsoever arising in, the Aircraft shall pass from the Seller to the
Buyer and the Seller shall forthwith deliver the Aircraft (including the
Manuals and Technical Records) to the Buyer.
6 MANUFACTURER'S WARRANTIES
6.1 The Seller hereby assigns to the Buyer with effect from Delivery all
subsisting assignable manufacturers' and suppliers' warranties (if any)
relating to the Aircraft and each part thereof. The Seller undertakes
upon written request by the Buyer from time to time to use reasonable
endeavours to obtain any consents for such assignments that may be
necessary from the manufacturers or the suppliers. If any of such
warranties shall not be assignable, or if consent to assignment shall be
refused, then subject to receipt by the Seller of an indemnity from the
Buyer in such form as may be reasonably satisfactory to the Seller as to
costs and expenses to be incurred, the Seller will take such action as
the Buyer may reasonably request to enforce any such manufacturers' or
suppliers' warranties.
7 DEPOSIT AND PAYMENTS
7.1 The Buyer shall, subject to the terms and conditions of this Agreement,
pay to the Seller on the date of this Agreement the amount of the Deposit
which shall be held by the Escrow Agent in accordance with the terms of
the Escrow Agreement. Such amount shall be applied by the Seller on
Delivery in part satisfaction of the Purchase Price. In the event of the
non-delivery of the Aircraft, the Deposit shall be released to the Seller
in accordance with the terms of the Escrow Agreement, otherwise than in
the circumstances referred to in clauses 4.4, 13.1, 14.1, 14.2, 14.3,
14.4 or 14.5 (in the case of a termination by the Buyer) in which case
the amount of the Deposit for the Aircraft shall be returned to the Buyer
in accordance with the terms of the Escrow Agreement.
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7.2 All payments to be made under this Agreement by the Buyer to the Seller
shall be made in Dollars in full, without any set-off or deduction on
account of taxes or otherwise, in immediately available funds, so that
the Seller receives credit for the full amount of such payment on the due
date, to the account of the Seller at Allied Irish Bank, ▇▇ ▇▇▇ ▇▇▇,
▇▇▇▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇, Ref. ▇▇▇▇▇▇▇▇ Account Number ________________ or
to such other account as the Seller may notify to the Buyer in writing.
8 CONDITIONS PRECEDENT
8.1 In respect of the Aircraft the obligation of the Seller to sell and
deliver the Aircraft to the Buyer is subject to the following conditions
being fulfilled to the satisfaction of the Seller:
(a) the Aircraft having been redelivered to the Seller by Transaero
Airlines;
(b) title to the Aircraft having been transferred to the Seller by AGES
Aircraft Sales & Leasing LP or Wilmington Trust Company;
(c) a copy certified by an officer of the Buyer to be a true, complete
and up-to-date copy, of the By-Laws of the Buyer being delivered to
the Seller;
(d) a copy, certified by an officer of the Buyer to be a true copy, and
as being in full force and effect and not amended or rescinded, of
the resolutions of the Board of Directors of the Buyer evidencing
approval of this Agreement and authorising its appropriate officers
to execute and deliver this Agreement and to give all notices and
take all other action on behalf of the Buyer under or for the
purposes of this Agreement being delivered to the Seller;
(e) specimen signatures authenticated by an officer of the Buyer of the
persons authorised in the resolutions of the Board of Directors of
the Buyer referred to in clause 8.1(d) being delivered to the
Seller;
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(f) an insurance certificate evidencing the insurance required by
clause 11 being delivered to the Seller;
(g) the Buyer having executed and delivered to the Seller the
Acceptance Certificate in accordance with clause 5.2; and
(h) the Buyer having paid the Purchase Price to the Seller in
accordance with clause 7.
8.2 The obligations of the Buyer to purchase and take delivery of the
Aircraft from the Seller are subject to:
(a) the Aircraft being tendered for delivery by the Seller in the
condition required by this Agreement;
(b) a certified copy of each of the current Certificate of
Airworthiness (Transport Category (Passenger)) and the Certificate
of Registration for the Aircraft issued by Aviation Authority being
delivered to the Buyer;
(c) a copy certified by an officer of the Seller to be a true, complete
and up-to-date copy, of the Memorandum and Articles of Association
of the Seller being delivered to the Buyer;
(d) a copy, certified by an officer of the Seller to be a true copy,
and as being in full force and effect and not amended or rescinded,
of the resolutions of the Board of Directors of the Seller
evidencing approval of this Agreement and authorising its
appropriate officers to execute and deliver this Agreement and to
give all notices and take all other action on behalf of the Seller
under or for the purposes of this Agreement being delivered to the
Buyer; and
(e) specimen signatures authenticated by an officer of the Seller of
the persons authorised in the resolutions of the Board of Directors
of the Seller referred to in clause 8.2(d) being delivered to the
Buyer.
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9 EXTENT OF LIABILITY
9.1 The Seller warrants to the Buyer that:
(a) immediately prior to Delivery the Seller will have legal and
beneficial title to the Aircraft free from all Encumbrances and
will have full power and lawful authority to transfer that title to
the Buyer free from all Encumbrances, and
(b) on Delivery the Aircraft will be free from all Encumbrances.
9.2 The Buyer acknowledges that it will have adequate opportunity to inspect
and test the Aircraft before Delivery, and to evaluate the state and
condition of such Aircraft, and that the Buyer's delivery of the signed
Acceptance Certificate to the Seller shall be conclusive evidence for all
purposes that the Aircraft is satisfactory and in accordance with the
requirements of this Agreement.
9.3 The Buyer expressly agrees and acknowledges that save only as provided in
clause 9.1, NO CONDITION, WARRANTY OR REPRESENTATION OF ANY KIND IS OR
HAS BEEN GIVEN BY OR ON BEHALF OF THE SELLER IN RESPECT OF THE AIRCRAFT
OR ANY PART THEREOF, AND ACCORDINGLY THE BUYER CONFIRMS THAT IT HAS NOT,
IN ENTERING INTO THIS AGREEMENT, RELIED ON ANY CONDITION, WARRANTY OR
REPRESENTATION BY THE SELLER OR ANY PERSON ON THE SELLER'S BEHALF,
EXPRESS OR IMPLIED, WHETHER ARISING BY LAW OR OTHERWISE IN RELATION TO
THE AIRCRAFT OR ANY PART THEREOF, INCLUDING, WITHOUT LIMITATION,
WARRANTIES OR REPRESENTATIONS AS TO THE DESCRIPTION, AIRWORTHINESS,
SUITABILITY, QUALITY, MERCHANTABILITY, FITNESS FOR ANY PURPOSE, VALUE,
STATE, CONDITION, APPEARANCE, SAFETY, DURABILITY, DESIGN OR OPERATION OF
ANY KIND OR NATURE OF THE AIRCRAFT OR ANY PART THEREOF, AND THE BENEFIT
OF ANY SUCH CONDITION, WARRANTY OR REPRESENTATION BY THE SELLER IS HEREBY
IRREVOCABLY AND
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UNCONDITIONALLY WAIVED BY THE BUYER. TO THE EXTENT PERMISSIBLE UNDER
APPLICABLE LAW, THE BUYER HEREBY ALSO WAIVES ANY RIGHTS WHICH IT MAY
HAVE IN TORT IN RESPECT OF ANY OF THE MATTERS REFERRED TO ABOVE AND
IRREVOCABLY AGREES THAT THE SELLER SHALL HAVE NO GREATER LIABILITY IN
TORT IN RESPECT OF ANY SUCH MATTER THAN IT WOULD HAVE IN CONTRACT AFTER
TAKING ACCOUNT OF ALL OF THE FOREGOING EXCLUSIONS. NO THIRD PARTY
MAKING ANY REPRESENTATION OR WARRANTY RELATING TO THE AIRCRAFT OR ANY
PART THEREOF IS THE AGENT OF THE SELLER NOR HAS ANY SUCH THIRD PARTY
AUTHORITY TO BIND THE SELLER THEREBY. NOTWITHSTANDING ANYTHING
CONTAINED ABOVE, NOTHING CONTAINED HEREIN IS INTENDED TO OBVIATE, REMOVE
OR WAIVE ANY RIGHTS OF WARRANTY OR OTHER CLAIMS RELATING THERETO WHICH
THE BUYER OR THE SELLER MAY HAVE AGAINST THE MANUFACTURER OR SUPPLIER OF
THE AIRCRAFT OR ANY THIRD PARTY.
9.4 Except for Seller's obligations to Simat, Helliesen & ▇▇▇▇▇▇▇, Inc.
("SH&E"), neither party has any obligation in respect of any finder's
broker's, investment banking or other similar fee in connection with any
of the transactions contemplated by this Agreement. Seller shall be
solely responsible (and Buyer shall have no obligation), for any amounts
due to SH&E with respect to the transactions contemplated hereby.
9.5 In no event whether as a result of breach of contract, warranty, tort
(including negligence), strict liability or otherwise shall either party
be liable to the other hereunder for any consequential or indirect loss
or damages, including loss of revenues, profits or goodwill, or any
special or incidental damages. Excluding any liability of the Buyer
under Clause 10.1 the total aggregate liability of the Buyer with respect
to any and all claims of the Seller arising out of the performance or non
performance of the Buyer's obligations, whether based on contract,
warranty, tort (including negligence), strict liability or otherwise
shall
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not exceed the amount of the Deposit and the Seller agrees that it
shall look solely to the Deposits for payment of any such claims.
10 INDEMNITY
10.1 The Buyer agrees to indemnify and hold harmless the Seller and its
shareholders, affiliates, directors, officers, servants, agents and
employees from and against all costs, expenses, payments, charges,
losses, demands, liabilities, claims, actions, proceedings, penalties,
fines, damages, judgments, orders or other sanctions (in this clause 10
together referred to as "LOSSES"):
(a) relating to, or arising directly or indirectly in any manner or for
any cause or reason whatsoever out of, the condition, testing,
delivery, design, manufacture, purchase, import, export,
registration, ownership, possession, control, use, leasing,
sub-leasing, operation, insurance, maintenance, repair,
refurbishment, service, storage, modification, overhaul,
replacement, removal or disposal of the Aircraft, or loss of or
damage to the Aircraft, or otherwise in connection with the
Aircraft or relating to loss or destruction of or damage to any
property, or death or injury of, or other loss of whatsoever nature
suffered by, any person caused by, relating to, or arising from or
out of (in each case whether directly or indirectly) any of the
foregoing matters sustained, brought or incurred at any time after
title to the Aircraft has passed to the Buyer in accordance with
this Agreement; and
(b) which may, after title to the Aircraft has passed to the Buyer in
accordance with this Agreement, be made or brought on the ground
that any design, article or material in the Aircraft or the
operation or use thereof constitutes an infringement of patent or
other intellectual property right or any other right whatsoever;
provided always that such indemnity shall be without prejudice to any of
the Seller's other rights under this Agreement.
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10.2 Buyer shall indemnify and hold harmless the Seller and its shareholders,
affiliates, directors, officers, agents, servants, and employees from and
against any and all Losses arising by reason of death or injury to any
employee of Buyer, arising out of, or in any way connected with the
inspection and test flight of the Aircraft referred to in clause 4.
11 INSURANCE
11.1 The Buyer undertakes and agrees with the Seller that as from Delivery and
throughout the period of three years thereafter the insurance policies
effected in relation to the Aircraft shall include provisions whereby:
(a) the Seller, AGES Aircraft Sales & Leasing LP, Wilmington Trust
Company and American Airlines Inc shall be named as additional
assured to each and every one of the aircraft third party,
passenger, baggage, cargo, mail and airline general third party
liability insurance policies effected in relation to the Aircraft
to the extent of the Buyer's indemnity set forth in clause 10.1,
and
(b) the insurers under any hull insurance policy for the Aircraft shall
waive all rights of subrogation against the Seller, AGES Aircraft
Sales & Leasing LP, Wilmington Trust Company and American Airlines
Inc.
11.2 The Buyer further undertakes and agrees with the Seller that the Buyer
shall when requested by the Seller from time to time (which shall be no
more frequently than once per calendar year unless the Seller reasonably
believes that the Buyer is no longer complying with its obligations set
out in Clause 11.1) produce to the Seller such certificate or other
evidence as the Seller may reasonably require to show that the Buyer has
complied with the obligations set forth in clause 11.1, and the Buyer
acknowledges and agrees that such obligations shall continue whether or
not the Aircraft remains in the possession, or the property, of the
Buyer.
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12 EXCUSABLE DELAY
12.1 Without prejudice to clause 4.6, the Seller shall not be liable for any
delay or failure to deliver the Aircraft or the performance of any other
obligation under this Agreement where such failure or delay is the result
of any cause or matter beyond the Seller's reasonable control, and for
the purposes of this clause 12.1, mechanical failure of the Aircraft or
the conditions precedent referred to in clauses 8.1(a) or (b) shall,
inter alia, be deemed to be a cause or matter beyond the Seller's
reasonable control.
12.2 If between the date of this Agreement and Delivery the Aircraft or any
part thereof suffers damage which in the Seller's opinion is repairable,
then the Seller shall notify the Buyer in writing of such damage and,
subject to clauses 4.4, 13.1, 14.1, 14.2 and 14.3 shall use all
reasonable efforts to repair such damage as soon as practicable. Upon
completion of such repairs, the Buyer shall purchase the Aircraft and
take delivery of the Aircraft in accordance with clause 5.2. The time
taken to effect any such repairs shall be deemed to be an excusable delay
for the purposes of this Agreement and the Proposed Delivery Date shall
be extended accordingly.
13 MANDATORY MODIFICATIONS
13.1 If the incorporation before the date referred to in clause 3.1(b) of any
airworthiness directive or service bulletin relating to the Aircraft is
made mandatory by the Aviation Authority after the date of this Agreement
but before Delivery then the Seller shall notify the Buyer in writing and
if in the Seller's reasonable opinion the aggregate cost of all such
modifications is likely to exceed ____________ or that the costs involved
together with (1) the costs previously incurred under this clause 13.1
and clause 4.4 and/or (2) costs expected to be incurred under clause 4.4
are likely to exceed ____________ then unless the Buyer elects to take
the Aircraft without the modification, or unless the Seller and the Buyer
otherwise agree in writing, the Seller shall be entitled to terminate its
obligation to sell the Aircraft to the Buyer by giving notice to the
Buyer to that effect. Upon a termination in accordance with this
15
clause 13.1, the full amount of the Deposit for the Aircraft shall be
released to the Buyer in accordance with the terms of the Escrow Agreement
but the Seller shall have no other obligation to the Buyer.
13.2 Any delay in tendering delivery of the Aircraft attributable to the
carrying out of any mandatory modification referred to in clause 13.1
shall be deemed to be due to a reason beyond the Seller's reasonable
control, the provisions of clause 12.1 shall apply and the time taken to
effect any such repairs shall be deemed to be an excusable delay for the
purposes of this Agreement and the Proposed Delivery Date shall be
extended accordingly. The Seller shall not be liable for any effect upon
the value, performance or airworthiness of the Aircraft which may be
attributable directly or indirectly to any such mandatory modification,
and notwithstanding anything to the contrary which may be contained in or
implied by this Agreement, the Buyer shall be bound to accept delivery of
the Aircraft as so modified.
14 TERMINATION
14.1 If as a result of any cause:
(a) delivery of the Aircraft is delayed for a period of more than one
month calculated from and including February 16, 1999; or
(b) if prior to Delivery Aircraft suffers repairable damage which in
the reasonable opinion of the Seller, is likely to take more than
one month to repair from and including February 16, 1999; then
the Buyer may terminate its obligation to buy and accept delivery of the
Aircraft upon giving the Seller notice to that effect.
14.2 If (a) as a result of any cause or matter beyond the Seller's reasonable
control as referred to in clause 12.1, delivery of the Aircraft is
delayed for a period of more than three months from and including
16
February 16, 1999 the Seller may notify the Buyer of its election (subject
to no Extension Period being required by the Buyer) to terminate its
obligation to sell the Aircraft to the Buyer on a specified date no less
then ten days (a "TERMINATION DATE") following the date of such notice to
the Buyer. Unless the Buyer shall agree in writing within seven days of
receipt of such notice from the Seller to waive its rights to terminate
its obligation to buy and accept delivery of the Aircraft under clauses
4.4(b) and 14.1 for a period (an "EXTENSION PERIOD") ending (subject as
provided below) no earlier than thirty days after (1) the date of such
notice in the case of subclause (a) above or (2) the date on which the
Seller reasonably expects the Aircraft to be repaired in the case of
subclause (b) above, the Seller's obligation to sell the Aircraft to the
Buyer will terminate on the Termination Date. The Buyer may extend the
Extension Period from time to time by a notice in writing to the Seller,
such notice to be given no less than five days before the expiry of the
Extension Period. Where the Buyer has required an Extension Period, the
Seller's obligation to sell the Aircraft to the Buyer shall terminate on
the day succeeding the last day of the Extension Period. Notwithstanding
the above, no Extension Period (or extended Extension Period) shall
continue or be capable of continuing beyond September 1, 1999. Upon
termination in accordance with clause 14.1, or this clause 14.2 the full
Deposit for the Aircraft shall be released to the Buyer in accordance
with the terms of the Escrow Agreement but the Seller shall have no other
obligation to the Buyer.
14.3 If before Delivery the Aircraft is lost or destroyed, or suffers
substantial damage which in the Seller's opinion it would be uneconomical
to repair, or is requisitioned by any Government Entity, the Seller shall
promptly notify the Buyer of such occurrence, whereupon this Agreement
shall be deemed to have been terminated and upon such termination the
full Deposit for the Aircraft shall be released to the Buyer pursuant to
the terms of the Escrow Agreement but the Seller shall have no other
obligation to the Buyer.
14.4 Without prejudice to any other remedies then available to it each party
shall have the right to terminate this Agreement forthwith by notice to
the other party if:
17
(a) a Bankruptcy Event occurs with respect to the other party; or
(b) there occurs, in relation to the other party in any country or
territory in which it carries on business, or to the jurisdiction
of whose courts any part of its assets is subject, any event which
appears in that country or territory to correspond with, or have an
effect equivalent or similar to, any of the events mentioned in (a)
above or such party otherwise becomes subject in any such country
or territory to the operation of any law relating to insolvency,
bankruptcy or liquidation;
and on such termination, the full Deposit for the Aircraft shall be
released to the terminating party pursuant to the terms of the Escrow
Agreement but the non-terminating party shall have no other obligation to
the terminating party.
14.5 If the Buyer shall fail to satisfy the conditions set out in clause 8.1
on or prior to the Proposed Delivery Date, or shall fail to take delivery
of the Aircraft when it is tendered for delivery in accordance with this
Agreement, or shall fail to pay the Deposit and the balance of the
Purchase Price or any other payment under this Agreement when due or any
part thereof, the Seller may by notice to the Buyer terminate its
obligation to sell the Aircraft to the Buyer and on such termination the
full Deposit for the Aircraft shall be released to the Seller pursuant to
the terms of the Escrow Agreement but the Buyer shall have no other
obligation to the Seller.
15 COSTS AND EXPENSES
15.1 All payments to be paid under this Agreement are expressed exclusive of
value added tax, sales tax and any similar tax on added value or on
turnover and if any value added tax, sales tax or any such similar tax is
chargeable on any amount payable by the Buyer to the Seller under this
Agreement, the payment due from the Buyer shall be increased to an amount
which, after deduction therefrom of the value added tax, sales tax or
similar tax payable, will leave the Seller in receipt of an amount equal
to the amount which would have been payable had no such value added tax,
sales tax or similar tax been imposed, save that the
18
requirement for the Buyer to increase payments pursuant to this
clause 15.1 shall not apply with respect to any sales taxes imposed by
the Republic of Ireland in connection with the sale of the Aircraft to
the Buyer.
15.2 The Buyer shall pay all stamp, documentary, registration or other like
duties or taxes (including any payable by the Seller) imposed on or in
connection with this Agreement, the ▇▇▇▇ of Sale, the Acceptance
Certificate or the sale of the Aircraft pursuant thereto.
15.3 Each party shall be responsible for its own costs and expenses
(including legal, printing and out-of-pocket expenses) together with any
value added tax or similar tax properly payable in respect thereof,
incurred by it in connection with the negotiation, preparation and
execution of this Agreement.
15.4 Notwithstanding anything to the contrary contained in this Agreement, the
obligations of the parties contained in this clause 15 shall continue in
full force and effect notwithstanding the termination of this Agreement,
or the termination of any other of either party's obligations under this
Agreement, for any reason.
16 NOTICES
16.1 Save as otherwise expressly provided in this Agreement, every notice,
request, demand or other communication under this Agreement shall:
(a) be in writing delivered personally or by first class prepaid letter
(airmail if available), or by telex or facsimile;
(b) be deemed to have been received, subject as otherwise provided in
this Agreement, in the case of a facsimile upon confirmation of
safe receipt thereof, in the case of a telex, at the time of
despatch with confirmed answerback of the addressee appearing at
the beginning and end of the communication (provided that, if the
time of despatch is not within normal business hours on a business
day in the country of the addressee it shall be deemed to have been
received at the opening of business on
19
the next such business day), and in the case of a letter, when
delivered personally or 3 days after it has been put into the post;
(c) be sent:
(i) to the Seller at:
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇
Fax: ____________
(Attention Company Secretary
copy to:
The AGES Group LP
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
Attention: Chief General Counsel
Fax: _______________
Tel: _______________
(ii) to the Buyer at:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇-▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
Fax: _______________
(Attention Vice President - Finance)
Copy: General Counsel
20
or to such other address, telex or facsimile number as is notified by one
party to the other under this Agreement.
17 ASSIGNMENT
17.1 Neither party may assign any of its rights or duties under this Agreement
except with the other party's prior consent in writing, which consent
shall not be unreasonably withheld:
(a) in the case of any assignment by the Seller of its right to receive
the Purchase Price, or
(b) in the case of any assignment by the Buyer of its right to obtain
title to the Aircraft, where such assignment is required in
connection with the Buyer's financing of its purchase of the
Aircraft under this Agreement and is on terms whereby the Buyer
will remain fully liable to the Seller notwithstanding any default
by the assignee.
18 MISCELLANEOUS
18.1 This Agreement and the Escrow Agreement contains the entire agreement and
understanding between the Seller and the Buyer relating to the sale and
purchase of the Aircraft, and the terms and conditions of this Agreement
shall not be varied otherwise than by an instrument in writing of even
date herewith or subsequent hereto executed by or on behalf of each of
the Seller and the Buyer.
18.2 No failure or delay on the part of either party hereto in exercising any
right, power or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or remedy
preclude any other or further exercise of any such right, power or
remedy. The rights and remedies provided in this Agreement are
cumulative and are additional to, and not exclusive of, any rights or
remedies provided by law or otherwise.
18.3 All certificates, instruments and other documents to be delivered under
or supplied in connection with this Agreement shall be in the English
language or
21
shall be accompanied by a certified English translation upon which the
recipient shall be entitled to rely.
18.4 This Agreement may be entered into in the form of any number of
counterparts, each executed by at least one of the parties and, provided
that all the parties shall so enter into this Agreement, each of the
executed counterparts, when duly exchanged or delivered, shall be deemed
to be an original but, taken together, they shall constitute one
instrument.
18.5 Each provision of this Agreement is severable and distinct from the
others and, if any provision is or at any time becomes to any extent or
in any circumstances invalid, illegal or unenforceable for any reason, it
shall to that extent or in those circumstances, be deemed not to form
part of this Agreement but (except to that extent or in those
circumstances in the case of that provision) the validity, legality and
enforceability of that and all other provisions of this Agreement shall
not be affected or impaired, it being the parties' intention that every
provision of this Agreement shall be and remain valid and enforceable to
the fullest extent permitted by law.
18.6 No provision of this Agreement is intended to confer upon any person
other than the parties hereto any rights or remedies hereunder.
19 LAW AND JURISDICTION
19.1 This Agreement is governed by and shall be construed in accordance with
the laws of the State of New York, without regard to the conflict of laws
rule of such state.
19.2 (a) Each of the Seller and the Buyer irrevocably agrees that any legal
action or proceedings in connection with this Agreement or the
Escrow Agreement against the other or any of its assets may be
brought in the courts of the State of New York in New York County,
or of the United States for the Southern District of New York, and,
by execution and delivery of this Agreement, each of the parties
hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally,
22
the non-exclusive jurisdiction of such courts. Each of the parties
further irrevocably consents to the service of process out of any
of the aforementioned courts in any such action or proceeding by
the mailing of copies thereof by registered or certified mail,
postage prepaid, to it at the address set forth for notices
pursuant to clause 16.1, such service to become effective three
(3) days after such mailing. Nothing herein shall affect the
right of either party to serve process in any other manner
permitted by law or to commence legal proceedings or to otherwise
proceed against any party in any other jurisdiction.
(b) Each of the parties hereto irrevocably waives any objection which
it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection
with this Agreement or the Escrow Agreement brought in the courts
referred to in sub-clause (a) above and hereby irrevocably waives
and agrees not to plead or claim in any such court that any such
action or proceeding brought in any such court has been brought in
an inconvenient forum.
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE BUYER AND THE SELLER,
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE ESCROW AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
19.3 Each party agrees that in any legal action or proceedings against it or
its assets in connection with this Agreement no immunity from such legal
action or proceedings (which shall include, without limitation, suit,
attachment prior to judgment, other attachment, the obtaining of
judgment, execution or other enforcement) shall be claimed by or on
behalf of such party or with respect to its assets, irrevocably waives
any such right of immunity which it or its assets now have or may
hereafter acquire or which may be attributed to it or its assets and
consents generally in respect of any such legal action or proceedings to
the giving of any relief or the issue of any process in connection with
such action or proceedings including, without limitation, the making,
enforcement or execution
23
against any property whatsoever, (irrespective of its use or intended
use) of any order or judgment which may be made or given in such action
or proceedings.
IN WITNESS whereof the parties hereto have caused this Agreement to be duly
executed the day and year first above written.
24
SCHEDULE 1
SPECIFICATION OF AIRCRAFT
PART A
One ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ DC10-30 aircraft bearing manufacturer's serial No. 46713.
Three General Electric Model CF6-50C2 engines bearing Manufacturer's Serial
Numbers 455437, 455121 and 455261.
PART B
DELIVERY CONDITION
On delivery the Aircraft will conform to the following outline conditions:
Configuration: Business Class 34C Tourist/Coach Class 256Y.
Airframe: Ex a "B" check in accordance with previous operator's
maintenance program. CPC Program up to date.
Engines: Engines will be delivered in a condition as specified
in the disc sheets supplied by the Seller to the Buyer.
Landing Gear: Landing gear will be delivered in a condition as
specified in the specification sheets supplied by the
Seller to the Buyer.
Components: Each life limited component or time controlled part
will have the greater of (i) fifty per cent. (50%) of
the full allotment of hours and cycles or (ii) two
thousand (2000) hours and one thousand (1000) cycles
(whichever is applicable)
Calendar limited items will have a minimum of one year
expected life remaining.
Emergency equipment will have one hundred per cent.
(100%) of its total approved calendar life remaining.
25
APU: APU will be delivered in a condition as specified in
the specification supplied by the Seller to the Buyer
Livery Painting: White or plain metal finish
Shipsets: Galley carts shall be in good operating condition
26
SCHEDULE 2
TECHNICAL ACCEPTANCE CERTIFICATE
Hawaiian Airlines Inc. of ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇-▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇ (the "BUYER") acknowledges that at [TIME] on [DATE] the technical
condition of the ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇-▇▇ aircraft with manufacturer's serial
number 46713 (the "AIRCRAFT") is satisfactory to, and accepted by, the Buyer
(the Aircraft having been inspected by the Buyer) and that at such time the
Aircraft was of suitable quality and in all respects in accordance with the
Aircraft Sale and Purchase Agreement dated [-] and made between Fin 3 Limited
(the "SELLER") and the Buyer.
SIGNED for and on behalf of
HAWAIIAN AIRLINES INC.
.................................................
(Authorised signatory)
Dated [-]
27
SCHEDULE 3
MANUALS AND TECHNICAL RECORDS
MANUALS
1 FAA APPROVED AIRCRAFT FLIGHT MANUAL
2 AIRCRAFT MAINTENANCE MANUAL
3 AIRCRAFT OVERHAUL MANUAL
4 AIRCRAFT WIRING MANUAL
5 AIRCRAFT STRUCTURAL REPAIR MANUAL
6 AIRCRAFT WEIGHT & BALANCE MANUAL, LOADING MANUAL, BASIS AND SUPPLEMENT
7 ▇▇▇ & CDL
8 CF6 MAINTENANCE MANUAL
9 ▇▇▇ ▇▇▇▇▇▇▇▇ MANUAL
10 CF6 IPC
11 CF6 SB LIST
12 MAINTENANCE CHECK MANUAL
13 ENGINEERING SPECIFICATION MANUAL
DOCUMENTS
1 CERTIFICATE OF AIRWORTHINESS
2 CERTIFICATE OF REGISTRATION
3 SANITARY CERTIFICATE
RECORDS
1 ALL PREVIOUSLY SUPPLIED AA RECORDS
2 IAI PERFORMED TRANSIT CHECKS
3 IAI PERFORMED A CHECKS
4 IAI PERFORMED B CHECKS
5 VENDOR PERFORMED C CHECKS
6 IAI APPROVED COMPLIANCE AIRWORTHINESS DIRECTIVES RECORDS FOR ENGINES,
AIRFRAME AND APPLIANCES
7 IAI APPROVED COMPLIANCE SERVICE BULLETIN RECORDS FOR ENGINES, AIRFRAME
AND APPLIANCES
8 IAI PREDICTIVE REPORT (REPORT NBR 10) FOR ALL TIME CONTROLLED
TASKS/COMPONENTS
28
SCHEDULE 4
FORM OF ▇▇▇▇ OF SALE
BY THIS ▇▇▇▇ OF SALE Fin 3 Limited (the "SELLER") does hereby sell, grant and
transfer in accordance with the terms of an Aircraft Sale and Purchase Agreement
dated [-] (the "PURCHASE AGREEMENT") and made between the Seller and Hawaiian
Airlines Inc. (the "BUYER"), all its rights, title and interest in and to the
Aircraft, with full title guarantee, specified below to the Buyer for and in
consideration of the Purchase Price (as defined in the Purchase Agreement)
receipt of which is hereby acknowledged by Seller:
one ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇-▇▇ aircraft, manufacturer's serial number
46713 with three General Electric CF6-50C2 engines bearing manufacturer's
serial numbers or 455437, 455121 and 455261
and that the Aircraft is sold free from all mortgages, charges, liens, debts and
other encumbrances.
IN WITNESS whereof Fin 3 Limited has caused this ▇▇▇▇ of Sale to be duly
executed on [DATE] and delivered to the Buyer.
PRESENT when the COMMON SEAL )
of FIN 3 LIMITED )
was affixed hereto )
SIGNED ) /S/
for and on behalf of )
FIN 3 LIMITED )
in the presence of: )
SIGNED ) /S/
for and on behalf of )
HAWAIIAN AIRLINES INC. )
in the presence of: )
SIGNED ) /S/
for and on behalf of )
HAWAIIAN AIRLINES INC. )
in the presence of: )