Exhibit 10.25


 


 


PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED
AND FILED SEPARATELY WITH


THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR


CONFIDENTIAL TREATMENT.  SUCH PORTIONS ARE DESIGNATED [REDACTED].


 


 


Jet fuel sale and purchase contract


 


 


ITOCHU Petroleum Co. (Hong Kong), Ltd.

(Seller)


 


Hawaiian Airlines, Inc.

(Buyer)


 

















 


Jet fuel sale and purchase contract


 


Table
of Contents


 


	
  1.

  	
  Seller

  	
  2

  
	
  2.

  	
  Buyer

  	
  2

  
	
  3.

  	
  Product

  	
  2

  
	
  4.

  	
  Product
  Specifications

  	
  2

  
	
  5.

  	
  Quantity & quality

  	
  3

  
	
  6.

  	
  Delivery
  Schedule

  	
  4

  
	
  7.

  	
  Delivery, title and
  risk

  	
  6

  
	
  8.

  	
  Laytime
  and Demurrage

  	
  10

  
	
  9.

  	
  Price

  	
  12

  
	
  10.

  	
  Payment

  	
  12

  
	
  11.

  	
  Liability

  	
  16

  
	
  12.

  	
  Termination

  	
  16

  
	
  13.

  	
  Force Majeure

  	
  18

  
	
  14.

  	
  Confidentiality

  	
  18

  
	
  15.

  	
  Governing Law and
  Dispute Resolution

  	
  18

  
	
  16.

  	
  Notices

  	
  19

  
	
  17.

  	
  Miscellaneous

  	
  20

  
	
  Schedule 1

  	
   

  



 


 


1

















 


Jet fuel sale and purchase contract


 


Contract Number                                                 TOKFTMI-042501


 


Date                                                                                                                       March
20, 2003


 


Parties


 


1.                                       ITOCHU
Petroleum Co. (Hong Kong), Ltd. of 28th Floor, United Center, 95
Queensway, Hong Kong (also conducting business by agency of TOKFT, ITOCHU Corporation Building, 5-1,
Kita-Aoyama 2-chome, Minato-ku, Tokyo 107-8077, Japan)


 


2.                                       Hawaiian
Airlines, Inc. of 3375 Koapaka Street, Suite G-350, Honolulu, Hawaii  96819, United States.


 


It is agreed that the
Seller will make available and supply to the Buyer, and the Buyer will take and
pay or pay for Jet Fuel on the terms and conditions of this Contract as follows.


 


1.                                      Seller


 


Itochu
Petroleum Co. (Hong Kong), Ltd. (the Seller).


 


2.                                     Buyer


 


Hawaiian
Airlines, Inc. (the Buyer).


 


3.                                     Product


 


Turbine Fuel,
Aviation Kerosene Type, Jet A-1 (Jet Fuel).


 


4.                                     Product Specifications


 


(a)                                  The
specifications for the Jet Fuel supplied by the Seller to the Buyer under this
Contract are those set out in Issue 4 of Defence Standard 91-91 (DEF STAN
91-91/4) issued by the United Kingdom Ministry of Defence on 14 June 2000  (the
Specifications).


 


(b)                                 Subject
to Clause 4(a), the Buyer acknowledges that the Seller makes no representation
or warranty (whether express, implied or arising by statute or howsoever) as to
the state or condition of the Jet Fuel or that the Jet Fuel is or will be
merchantable or fit for any particular purpose.


 


2

















 


5.                                     Quantity & quality


 


(a)                                  [REDACTED] (a Cargo).


 


(b)                                 The
Buyer must take and pay or pay for a minimum of [REDACTED] Cargoes on the same terms in accordance with the
schedule set out in Clause 6(a), and the Seller will make available and supply those
Cargoes to the Buyer.


 


(c)                                  The
Buyer and the Seller may agree on the terms of the delivery of one or more
additional cargoes in excess of the Cargoes and optional Cargoes contemplated
by Clauses 5(b) and 6(a) (each such excess cargo an Additional Cargo), in
which event:


 


(i)                                    (subject
to paragraph ii) the terms of this Contract will apply  such that such Additional Cargo is treated
as a Cargo under this Contract except to the extent otherwise specifically
agreed between the parties; and


 


(ii)                                 such
agreement must be evidenced in a written document signed by duly authorised
representatives of both parties and:


 


(A)                             the
Initial Purchase Price and Purchase Price of; and


 


(B)                               the
four day delivery window applying to,


 


that Additional Cargo will not be determined under the
terms of this Contract but must have been specifically negotiated and agreed between
the parties and recorded in that written document.


 


(d)                                 The
determination of quantity and quality of Jet Fuel delivered under this Contract
will be made by measurement, sampling and testing in the manner customary at
the discharge port by recognised independent petroleum inspectors nominated by
the parties as soon as reasonably practicable after the execution of this
Contract and:


 


(i)                                    the
quantity of Jet Fuel discharged will be measured according to the shore tanks
immediately before and after unloading at the discharge port;


 


(ii)                                 the
quality of Jet Fuel discharged will be tested by reference to representative
samples of the Jet Fuel taken from the Vessel’s bunkers immediately before its
unloading from such bunkers of the Vessel;


 


(iii)                              correction
for variation and temperature will be made in accordance with the latest
version of table 6B of ASTM D-1250 and quantity determination will be by volume
at 60o Fahrenheit;


 


(iv)                             the
independent petroleum inspectors must prepare and sign certificates as to the
quantity and quality of Jet Fuel to be delivered under this Contract;


 


(v)                                the
determination set forth in such certificates under paragraph (iv) will be
conclusive for the purposes of this


 


3

















 


Contract as to the quantity and quality (in particular
in relation to evidencing the Specifications) of Jet Fuel unloaded except in
the case of manifest error or fraud; and


 


(vi)                             inspection
charges at the discharge port will be shared equally by the Parties.


 


6.                                     Delivery Schedule


 


(a)                                  Each
party will exercise its respective rights and fulfil its respective obligations
on the basis of delivery of each respective Cargo during the following respective
delivery date ranges:


 


[REDACTED]


 


(b)                                 On
or before [REDACTED] the Buyer
must subject to and in accordance with Clause 6(a)(iii) notify the Seller of
the estimated calendar month in which the [REDACTED]
Cargo is to be delivered upon which the procedure set out in Clause 6(e) will
apply.


 


(c)                                  With
respect to all Cargoes that the Buyer wishes to elect to be delivered on or
prior to [REDACTED] the Buyer must
give the Seller notice in writing of such election on or before [REDACTED] and subject to and in accordance
with Clause 6(a)(iii) include in that notice its election of the estimated
calendar month in which the delivery of that Cargo will occur, upon which all
rights and obligations in relation to that Cargo will, subject to Clause 6(e),
become binding.


 


(d)                                 With
respect to any Cargo to be delivered in [REDACTED]
the Buyer must give the Seller notice in writing of such election on or before [REDACTED] and subject to and in accordance
with Clause 6(a)(iv) include in that notice its election of the estimated
calendar month in which the delivery of that Cargo will occur, upon which all
rights and obligations in relation to that Cargo will, subject to Clause 6(e)
become binding.


 


(e)                                  In
relation to the [REDACTED] Cargoes
(inclusive) and subject to and in accordance to Clauses 6(a)(iii) to 6(a)(iv)
(inclusive, but as applicable):


 


(i)                                    the
Buyer must by notice in writing request the dates of the four day delivery
window for that Cargo at least 45 calendar days before the first day of the
calendar month in which that Cargo is due to be delivered;


 


(ii)                                 following
the notice given under paragraph (i) the parties will consult to allow the
Seller to fix a designated four day delivery window for that Cargo, which unless
otherwise agreed will:


 


(A)                             subject
to paragraph (ii)(B), be the same four day delivery window requested by the
Buyer under paragraph (i); or


 


4

















 


(B)                               if
the Seller, acting reasonably (but without prejudice to its own commercial
interests), decides that it may not be able to meet the Buyer’s requested
delivery window under paragraph (i), at the Seller’s option be:


 


(1)                                 the
closest four day delivery window that is agreeable to both parties and
available before; or


 


(2)                                 the
closest four day delivery window that is agreeable to both parties and
available after,


 


the four day delivery window requested by the Buyer
under paragraph (i) (but the parties will endeavour, subject to their
respective logistic and commercial considerations (which they must explain to
and discuss with each-other in good faith), that such four day delivery window
under sub-paragraph (1) or (2) will to the maximum extent practicable and
acceptable to both parties (each acting reasonably and with due consideration
of the interests of the other) be no more than seven days before or after the
four day delivery window requested by the Buyer under paragraph (i)); and


 


(iii)                              the:


 


(A)                             Buyer
must issue notices under, consult as required and comply; and


 


(B)                               Seller
must consult as required, fix the delivery windows and comply,


 


with this Clause 6(e) in a timely manner to ensure
that deliveries can be made within the respective delivery time periods for
those Cargoes set out in Clause 6(a).


 


(f)                                    To
the extent that:


 


(i)                                    due
to a breach of any term of this Contract by the Buyer; or


 


(ii)                                 an
event of Force Majeure has occurred under Clause 13,


 


the Seller’s anticipated shipping activities are
disrupted such that it will no longer be reasonably practicable for the Seller
to deliver a Cargo within its designated four day delivery window or otherwise
in accordance with this Clause 6, the Seller may in consultation and with the
consent of the Buyer (which consent may not be unreasonably withheld)
reasonably re-designate the respective four day delivery window of that Cargo
to another four day period.


 


(g)                                 Each
Cargo must be available for delivery by the Seller and taken by the Buyer
during its designated four day delivery window as determined under this Clause
6 and in accordance with the terms of this Contract unless:


 


5

















 


(i)                                    the
parties consent otherwise in relation to the delivery of a specific Cargo (or
part of it); or


 


(ii)                                 a
party is exercising rights expressly granted under this Contract to withhold or
amend the terms of such delivery or taking.


 


7.                                     Delivery,
title and risk


 


(a)                                  The
terms set out in the Delivered Ex Ship provisions of INCOTERMS 2000 (DES) will apply to
the transactions contemplated by this Contract except that to the extent that
any such DES term is inconsistent with the terms of this Contract the terms set
out in this Contract will prevail over that DES term .


 


(b)                                 Subject
to Clauses 7(f), 7(g), 7(h) and 7(j), the Seller will deliver (or procure the
delivery of) each Cargo of Jet Fuel to the Buyer at the junction point where
the flange coupling of the relevant Vessel’s unloading lines connect with the
flange coupling of the receiving lines leading into the onshore storage tanks
owned or procured for use by the Buyer at Honolulu Hawaii at (without prejudice
to the Seller’s obligations under Clause 6) the time the Jet Fuel so passes through
that point, it being expressly acknowledged and agreed by the Buyer that if the
Seller is exercising any of its rights under Clause 7(g) delivery will not take
place at that point or time but only, if applicable, in accordance with Clause
7(h).


 


(c)                                  In relation to each Cargo the Seller must procure
a vessel for carriage of the Jet Fuel to the delivery port at Honolulu, Hawaii (the
Vessel) and:


 


(i)                                    will warrant that any Vessel nominated or
substituted is owned or demised or bareboat chartered by a member of the
International Tanker Owners Pollution Federation Limited;


 


(ii)                                 will ensure that the Vessel:


 


(A)                             carries on board a ‘Certificate of Insurance’ as
described in the Civil Liability Convention for Oil Pollution Damage;


 


(B)                               has in place insurance coverage for oil pollution
under the rules of P and I Clubs entered into the International Group of P and
I Clubs, and


 


(C)                               is represented by its owner or operator to be in
compliance with the International Safety Management  Code that came into effect on 1 July 1998.


 


(iii)                              such
Vessel will be subject to acceptance by the relevant terminal or port
authorities in Honolulu, Hawaii, but the Seller will have no liability to the
Buyer with respect to the non-delivery of a Cargo under this Contract in the
event that such authorities unreasonably withheld such acceptance.


 


6

















 


(d)                                 The
Buyer must provide or cause to be provided a safe berth at a safe port at
Honolulu, Hawaii.


 


(e)                                  The
Buyer may only request the shifting of the Vessel from one safe berth to
another upon payment by the Buyer of all towing and piloting charges, any
charges in respect of running lines on arrival at and leaving that berth,
wharfage and dockage charges at that berth, any demurrage caused thereby (in
accordance with the terms set out in Clause 8), additional agency charges and
expenses, customs, overtime and fees and any other extra port charges or port
expenses which may be caused by shifting berths.


 


(f)                                    In
relation to each Cargo of Jet Fuel, subject to the Seller:


 


(i)                                    having
received the Initial Purchase Price for the respective Cargo in full pursuant
to Clause 10;


 


(ii)                                 having
received a properly posted Letter of Credit that at the time of the unloading
of that Jet Fuel from the Vessel to a relevant onshore tank in Honolulu Hawaii
is a continuing, valid and effective Letter of Credit that complies with all
the requirements of Clause 10(l); and


 


(iii)                              not
having exercised any of its rights under Clause 7(g),


 


title to and property in the Jet Fuel in that Cargo
will pass to the Buyer upon its delivery at the point and time of delivery
specified in Clause 7(b) or 7(j) (as the case may be), but if the preceding
paragraph (i) or (ii) is not satisfied or if the preceding paragraph (iii) is
applicable it is acknowledged and agreed by the Buyer that despite any other
term of this Contract the Seller will retain title to and property in the Jet
Fuel:


 


(A)                             (if
paragraph (i) was not satisfied) until the Initial Purchase Price for that
Cargo has been received in full in accordance with Clause 10;


 


(B)                               (if
paragraph (ii) was not satisfied) until the Letter of Credit has been posted or
becomes valid, fully effective and complies with all the requirements of Clause
10(l); or


 


(C)                               (if
paragraph (iii) is applicable) unless and until title to and property in that
Jet Fuel passes in accordance with Clause 7(h).


 


(g)                                 If
the Initial Purchase Price in relation to a Cargo has not been received by the
Seller in full in accordance with Clause 10 or if the Letter of Credit (as
defined in and otherwise complying with all the requirements of Clause 10(l))
has not been posted, terminates or otherwise is not or ceases to be valid and
fully effective the Seller may at its absolute discretion elect (with or
without notice to the Buyer) to take any one or more of the following actions:


 


(i)                                    withhold
the supply and delivery of that Cargo to the Buyer;


 


7

















 


(ii)                                 direct
the berthing of the Vessel at any berth of its choice in Hawaii; or


 


(iii)                              direct
the transfer of that Cargo into any storage tanks that the Seller may own or
procure the use of that are located in Hawaii, in which event the owner or
operator of those storage tanks will take and hold the Jet Fuel to the account
of the Seller in that owner’s or operator’s books of account,


 


and in any or all such circumstances stated above in
this paragraph (g):


 


(A)                             the
Buyer, without relieving the Buyer of any its obligations or liabilities (and
without prejudice to any rights of the Seller) under, or consequent upon any
breach of, this Contract must:


 


(1)                                 rectify
its breach by immediately paying the Initial Purchase Price for that Cargo to the
Seller in accordance with Clause 10  together with all interest accrued and due
under Clause 10(e);


 


(2)                                 pay
all resulting reasonable costs, losses, charges and expenses relating to the
chartering of the Vessel, berthing of the Vessel, the unloading of the Jet
Fuel, its storage and (if not eventually taken) its disposal, including without
limitation all additional charterparty and labour costs, towing and piloting
charges, any charges in respect of running lines on arrival at and leaving a
berth, wharfage and dockage charges at that berth, demurrage (in accordance
with the terms set out in Clause 8), pipeline fees, payments due to onshore
tank owners or operators, additional agency charges and expenses, any costs
related to joining HFFC and any insurance premiums and any interest accruing
against the Seller as a result of such breach, any costs and losses associated
with selling the Cargo to a third person rather than the Buyer if not
eventually taken by the Buyer, customs, overtime and fees, any other extra port
charges or port expenses which may be incurred (and to the extent the Seller
provides its own services and facilities in relation to any of the foregoing
the Seller may charge for the services and facilities it provides at reasonable
commercial rates) and the Buyer indemnifies the Seller against all such costs,
charges and expenses actually incurred and will pay them (or if the Seller has
paid them


 


8

















 


reimburse the Seller for them) on the Seller’s first
written demand in reasonable detail; and


 


(B)                               despite
any other term of this Contract the Seller may elect at any time to terminate
this Contract in accordance with Clause 12 in which event any obligations of
the Seller to make available and supply any Jet Fuel under this Contract will
immediately terminate but all obligations and liabilities of the Buyer due on
or before the day of such termination.


 


(h)                                 If,
before the Seller exercises its right to terminate this Contract pursuant to
Clause 7(g)(B), in the circumstances covered by Clause 7(g):


 


(i)                                    the
Buyer pays all amounts due under Clauses 9 and 10; and


 


(ii)                                 provided
that a Letter of Credit (as defined in and otherwise complying with all the
requirements of Clause 10(l)) has been posted, has not terminated and has not
ceased to be valid and fully effective and comply with all the requirements of
Clause 10(l),


 


then upon written acknowledgement from the Seller to
the Buyer that all such amounts have been received to the Seller’s reasonable
satisfaction (which the Seller must acknowledge upon receipt) and provided that
such Letter of Credit is so in place title to and ownership in the Cargo to
which Clause 7(f) and (g) applied will then pass to the Buyer by the Seller:


 


(A)                             making
the relevant Jet Fuel available for unloading and delivery under Clause 7(b) to
the extent that the relevant Jet Fuel is still on board the Vessel; and


 


(B)                               by
the Seller making or procuring any book transfers that may be necessary to the
extent that the Jet Fuel has been transferred to any onshore storage tanks.


 


(i)                                     Risk
of loss of the Jet Fuel and any risks in relation to the deterioration of the
quality of the Jet Fuel below its Specifications will pass to the Buyer at the
earlier of:


 


(i)                                    when
it is delivered to the Buyer in accordance with the terms of this Contract; and


 


(ii)                                 the
time when the Vessel carrying the Jet Fuel has reached Honolulu, Hawaii and:


 


(A)                             has
issued its NOR; and


 


(B)                               Laytime
has run in accordance with Clause 8; and


 


(C)                               there
has been:


 


(1)                                 a
breach of this Contract by the Buyer; or


 


9

















 


(2)                                 a
material act, omission or delay by the Buyer (or any of its representatives)
contrary to this Contract,


 


that prevents the delivery of the Jet Fuel or that
allows the Seller to withhold the delivery of the Jet Fuel in accordance with
terms of this Contract.


 


(j)                                     Unless
delivery of any Jet Fuel is made under Clause 7(h)(B) (in which event such
delivery is made within the terms of that Clause without any requirement of consent
from the Buyer) in the event that the Seller wishes to satisfy its obligations
to deliver and transfer title of any quantity of Jet Fuel it must make
available and supply on a scheduled date (and otherwise in accordance with the
terms and conditions of this Contract) by making or procuring a book transfer
to the Buyer of that quantity of Jet Fuel that is held in onshore storage tanks
in Honolulu, Hawaii, the Seller must, reasonably in advance of such scheduled
date of delivery of such quantity of Jet Fuel, request the consent of the Buyer
to the delivery of such quantity of Jet Fuel pursuant to this Clause 7(j), and
the buyer shall be entitled to grant or withhold its consent to such book
transfer at its reasonable discretion.


 


(k)                                  If
any quantity of Jet Fuel is delivered under this Contract by way of book
transfer, then with respect to such quantity of Jet Fuel only:


 


(i)                                    for
the purposes of Clauses 7(b) and 7(f) the delivery point and time of delivery
will be those tanks at the time of that book transfer in place of the point and
time designated in Clause 7(b);


 


(ii)                                 unless
delivery is being made under Clause 7(h)(B)) (in which event this paragraph
(ii) will not apply) to the extent that the Buyer reasonably incurs any
operational or other costs or expenses due to this method of delivery that are
in excess of those that would have accrued if delivery had been made in
accordance with Clause 7(b) and not by way of book transfer the Seller will
reimburse to the Buyer that excess amount upon receipt of an itemisation in reasonable
detail of how such excess was incurred; and


 


(iii)                              such
mode of delivery and transfer of title is without prejudice to all other respective
rights and obligations of the Buyer and the Seller under this Contract.


 


8.                                     Laytime and Demurrage


 


(a)                                  Subject
to the terms of this Contract the Seller will procure that the Vessel will arrive
at the outer anchorage of the delivery port at Honolulu, Hawaii before or
during the designated (or properly re-designated) four day delivery window for
that Cargo.


 


10

















 


(b)                                 Upon
arrival at the outer anchorage of the delivery port at Honolulu, Hawaii, the
master of the Vessel or his agent will give to the Buyer (or its nominated
agent) a notice of readiness (NOR) that the Vessel is ready to discharge irrespective
of whether or not a berth is available.


 


(c)                                  The
period of time allowed for the discharge of Jet Fuel from the Vessel without
penalty to the Buyer (Allowed Laytime) will:


 


(i)                                    commence
upon the expiry of six hours (6) after receipt of the NOR (except that if the
Vessel tenders NOR before the first day of the designated (or properly
re-designated) four day delivery window for that Cargo, Laytime will not
commence until 0600 hours local time of that first day); and


 


(ii)                                 be
a maximum Laytime (SHINC) of 36 hours for unloading the Jet Fuel.


 


(d)                                 For
the purposes of calculations under this Clause the actual Laytime of the Vessel
will be deemed to cease upon the disconnection of the flange coupling of the relevant
Vessel’s unloading lines from the flange coupling of the receiving lines leading
into the onshore storage tanks once:


 


(i)                                    delivery
of the relevant Cargo has been completed under Clause 7(b); or


 


(ii)                                 unloading
of the relevant Cargo has occurred under Clause 7(g)(iii).


 


(e)                                  The
Buyer must pay demurrage for each running hour and pro-rata for any part
thereof for the period by which the unloading exceeds the Allowed Laytime, in
which event:


 


(i)                                    the
rate of demurrage will be according to the relevant terms of the approved
charterparty in respect of the Vessel; or


 


(ii)                                 if
the Vessel used for supply is on a time charter the demurrage rate will be
based on the then current market rate of a similar size vessel on a similar
voyage and in accordance with the provisions of ASBATANKVOY except to the
extent that this is expressly modified by the Parties.


 


(f)                                    The
Buyer’s obligation to pay demurrage under Clause 8(e) will be reduced by 50%:


 


(i)                                    to
the extent that the reason the corresponding Laytime was exceeded was not
attributable to any act, neglect or default of the Buyer;


 


(ii)                                 provided
that the Buyer was not in default of any of its material obligations under this
Contract at any time during the corresponding Laytime and


 


(iii)                              if
the Vessel does not tender NOR by 1800 hours in Honolulu, Hawaii, of the second
day of the agreed four day delivery window relating to the respective Cargo.


 


11

















 


(g)                                 This
Clause 8 will apply and all time periods in it will be calculated and run
within its terms even if the Seller exercises its rights under Clause 7(g) and
withholds the supply and delivery of that Cargo or redirects the berthing of
the Vessel in accordance with Clauses 7(g)(i) or 7(g)(ii) (as applicable).


 


9.                                     Price


 


(a)                                  The
price to be paid for each barrel of Jet Fuel delivered under this Contract on a
DES basis will be calculated as follows in order to calculate in relation to
the quantity of the respective Cargo delivered its total price (the Purchase Price):


 


[REDACTED]


 


10.                              Payment


 


(a)                                  On
the Friday (or if that Friday is a day on which banks are not open for the
transaction of normal banking business in Honolulu, New York and Tokyo, then
the first immediately preceding day that such banks are so open) of the week before
the delivery of a Cargo is scheduled to occur in accordance with the terms of
this Contract the Seller must send the Buyer an invoice setting out the initial
price payable for that Cargo calculated by multiplying:


 


[REDACTED]


 


(the Initial Purchase Price).


 


(b)                                 In
relation to each Cargo, payment of the Initial Purchase Price for that Cargo
must be made:


 


(i)                                    on
or before the Monday of the week (running from midnight of the preceding Sunday
in Honolulu, Hawaii, to midnight the following Sunday) during which the first
day of the designated four day delivery window in relation to that Cargo is due
to begin, except that if that Monday or the Tuesday or Wednesday following it
is a day on which banks are not open for the transaction of normal banking
business in Honolulu, New York and Tokyo then payment must be made on or before
the last day (other than a Saturday or Sunday) on which banks are open for the
transaction of normal banking business in Honolulu, New York and Tokyo (a Banking Day) prior to
that Monday (the date so ascertained under this Clause 10(b)(i) being the Payment Date); and


 


(ii)                                 in
any event (and subject to all the terms and conditions of Clause 7) prior to
its delivery to the Buyer or the Buyer’s nominee; and


 


(iii)                              to
the Seller in an amount equal to the Initial Purchase Price set out in the
Seller’s invoice.


 


12

















 


(c)                                  All
payments under this Contract must be made by telegraphic transfer in same day
funds to the account of the Seller or, as the case may be, to the account of
the Buyer (the details of which will have been notified to the other in
writing) and without set-off, deduction or withholding of any kind unless such
set-off, deduction or withholding is required by law in which case the amount
of that payment must be increased so that the recipient will receive the amount
it would have received but for that set-off, deduction or withholding, provided
that the amount of such payment will not be increased by reason of set-off,
deduction or withholding of any amounts the Buyer is not obligated to pay or
reimburse to the Seller pursuant to Clause 10(f).


 


(d)                                 If
any payment under this Contract becomes due on a day that is not a Banking Day,
the due date for such payment will be the last Banking Day prior to that
Banking Day.


 


(e)                                  If
either party fails to make any payment under this Contract when due it must pay
interest on the overdue amount from and including the payment due date until
but excluding the date on which payment is made by such party at the rate of 2%
above the rate of interest equal to the rate which the Bank of Tokyo
Mitsubishi, New York branch, or such other first class International bank as
the parties may otherwise agree (such agreement not to be unreasonably
withheld) is charging to its prime commercial customers for 90 day US dollar
loans calculated on the basis of a 360 day year, as quoted on the date when
payment was due.


 


(f)                                    Except
as the Seller may otherwise be obliged to pay pursuant to the delivery terms
referred to in Clause 7(a):


 


(i)                                    all
import duties into the port of Honolulu, customs and consular fees, taxes,
imposts, levies and other charges of Federal, state or local governmental
authorities in the United States on or pertaining to the sale, importation or
delivery of the Jet Fuel must be borne by the Buyer;


 


(ii)                                 the
Buyer must, on demand, pay to or reimburse the Seller the amount of all excise,
gross receipts and fuel taxes howsoever designated imposed by Federal, state or
local governmental authorities in the United States, other than:


 


(A)                             net
income taxes, franchise taxes (imposed in lieu of net income taxes) and backup withholding
taxes, in each case imposed on the Seller as a result of a present or former
connection between the Seller and the jurisdiction of the governmental
authority imposing such tax or any political subdivision or taxing authority
thereof or therein;


 


(B)                               any
branch profits taxes imposed by the United States or any similar tax imposed by
any other jurisdiction described in paragraph (A); or


 


13

















 


(C)                               any
other taxes on income, profits or capital which are paid or incurred by the
Seller directly or indirectly with respect to the Jet Fuel or the value thereof;
and


 


(iii)                              if
the Buyer is exempt from any of the aforementioned charges, it must, on demand,
provide the Seller with all the applicable exemption certificates reasonably
available.


 


(g)                                 After
the end of the month in which a Cargo has been delivered by the Seller to the
Buyer (or would have been so delivered but for the breach of this Contract in
relation to that Cargo by the Buyer) the Seller will, in accordance with Clause
9, calculate the Purchase Price of that Cargo based on the actual quantity of
Jet Fuel delivered to the Buyer as established pursuant to Clause 5 (or would
have been so delivered but for the breach of this Contract in relation to that
Cargo by the Buyer) to determine if an adjustment amount must be paid by the
Seller or the Buyer (which amount will be the difference between the Initial
Purchase Price and the Purchase Price) and:


 


(i)                                    the
Buyer must issue a statement to the Seller setting out the adjustment amount
and the method and details of its calculation in reasonable detail, which
adjustment amount will be final and binding on the Buyer and the Seller except
in the event of manifest error in its calculation or a reasonable objection by
the Buyer based on the terms of this Contract (in which event such amount must
be correctly recalculated);


 


(ii)                                 if
the Purchase Price as so adjusted is less than the Initial Purchase Price and
provided that the Initial Purchase Price has been received in full by the
Seller, the Seller must pay to the Buyer an amount equal to that adjustment
amount;


 


(iii)                              if the
Purchase Price as so adjusted is greater than the Initial Purchase Price the
Buyer must pay to the Seller an amount equal to that adjustment amount, and


 


(iv)                             any
payment due under this Clause must:


 


(A)                             if
the party from which payment falls due so requires be invoiced by the party requiring
such payment to be made; and


 


(B)                               in
any event be made within 5 Banking Days of the adjustment calculation being
made and communicated to the payor.


 


(h)                                 Any
release, settlement, satisfaction or discharge between the Parties will be
conditional on no payment made or given to the other or any right of set-off
exercised being avoided, reduced, set aside, rendered unenforceable or required
to be paid away by virtue of any provision, requirement or enactment, whether
relating to bankruptcy, insolvency or liquidation or otherwise at any time in
force, or by virtue of any obligation to give effect to any preference or
priority and if any payment or set-off right is avoided or reduced, the
affected party will be entitled to recover the value or amount of that payment
or set-off


 


14

















 


from the other as if that release, settlement,
satisfaction or discharge had not occurred.


 


(i)                                     If
the Seller defaults in its delivery obligations in relation to a Cargo under this
Agreement and the delivery of that Cargo is consequently not made by the Seller
then on the Buyer’s written demand, and without limiting any other rights or
remedies available to the Buyer under Clause 12, the Seller must immediately
return the Initial Purchase Price relating to that Cargo to the Buyer (it being
acknowledged that when there is only a shortfall in the Cargo Clause 10(g) will
apply).


 


(j)                                     Time
is of the essence in relation to all payments due under this Contract.


 


(k)                                  All
monetary amounts stated in this Contract and all payments falling due under
this Contract are, and must be denominated and paid, in United States dollars.


 


(l)                                     The
Buyer must procure and maintain at all times until all Cargoes have been
delivered and paid for in full in accordance with the terms of this Contract an
irrevocable standby letter of credit substantially in the form set out in
Schedule 1 provided by a first class international bank having a debt rating of
at least AA by Standard & Poor’s or Aa by Moody’s (the Letter of Credit) and
such Letter of Credit:


 


(i)                                    must
be posted by that bank for the benefit of the Seller on or prior to [REDACTED] (and thereafter immediately
replaced by the posting of an equivalent Letter of Credit by that or another
such bank if at any time that or another Letter of Credit subsequently posted
to replace or complement it ceases to be in full force and effect or to
otherwise comply with this Clause 10(l));


 


(ii)                                 be
for an amount equal to [REDACTED] throughout
its duration, and if drawn upon at any time replenished in the amount drawn (or
a supplementary Letter of Credit posted by the Buyer in an amount equivalent to
that drawing) and so notified to the Seller by the relevant bank within the
earlier of:


 


(A)                             10
Banking Days of such drawing; and


 


(B)                               the
day that is at least two Banking Days before the next four day delivery window
of a Cargo that is to be delivered under this Agreement is due to begin; and


 


(iii)                              may,
without prejudice to:


 


(A)                             any
other right of the Seller; or


 


(B)                               obligation
of the Buyer,


 


under this Contract or at law or equity, be drawn down
by the Seller within its terms only to pay an amount due pursuant to Clause
7(e), 7(g) or this Clause 10 when such amount is overdue under this Contract
(the LC Covered Sum).
When


 


15

















 


all Cargoes to be made available and supplied on the
terms and conditions of this Contract and all other amounts properly falling
due under this Contract have been paid in full, the Seller must upon notice from
the Buyer immediately return any Letter of Credit then outstanding to the issuing
bank for cancellation.


 


11.                              Liability


 


(a)                                  Each
party will be liable to the other for the loss or damage directly and
foreseeably resulting from any breach by that party of its obligations
hereunder.


 


(b)                                 Except
as otherwise provided in this Contract, neither party will have any liability
to the other for any loss or damage or other liability whether arising in
contract, tort or otherwise, in connection with this Contract and in no event
will either party be liable to the other for any indirect or consequential
losses or damages.  “Indirect or
consequential losses or damages” means loss or damage other than the loss or
damage referred to in Clause 11(a).


 


12.                              Termination


 


(a)                                  The
following circumstances or event (Event of Default) will constitute a default by a party
(the Defaulting Party):


 


(i)                                    any
representation or warranty furnished by the Defaulting Party to the other party
(the non Defaulting Party)
in this Contract is false or misleading in any material respect when made;


 


(ii)                                 any
failure by the Defaulting Party to pay, when due, the payments determined under
Clauses 7 or 10 and such failure continues for two Banking Days with respect to
the Initial Purchase Price and five Banking Days with respect to all other
payments;


 


(iii)                              any
failure by the Defaulting Party to perform or comply with any of its material
obligations under this Contract that is not cured or waived within 14 days
following notice from the non Defaulting Party, provided that such period will
be two Banking Days for any failure by the Buyer to post or maintain a letter
of credit to comply with the terms of Clause 10(l); and


 


(iv)                             the
occurrence of any of the following events in respect of the Defaulting Party or
a person or entity that controls it (where such ‘control’ means the ownership
directly or indirectly of 50% or more of the shares in the Defaulting Party or
the ability to directly or indirectly exercise 50% or more of the voting rights
in the Defaulting Party):


 


(A)                             it is
adjudicated to be insolvent or fails to pay its debts under any relevant law
applicable to it;


 


16

















 


(B)                               it
suspends payment of its debts generally or declares that it will suspend making
payments with respect to any class of its debts;


 


(C)                               it
enters into any composition or similar arrangement for the benefit of its
creditors generally;


 


(D)                              it
suspends or declares that it will suspend carrying on all or substantially all
of its business;


 


(E)                                it
takes corporate action to authorise the winding up or dissolution of the
Defaulting Party or the filing of a voluntary petition to commence an insolvency
proceeding; or


 


(F)                                any
other event occurs which under laws applicable in Hawaii would have an effect
analogous to any of the events referred to above.


 


(b)                                 If
an Event of Default occurs and is continuing, the non Defaulting Party may at
once or at any time thereafter (and without an election of remedies to the
exclusion of other remedies the non Defaulting Party may have):


 


(i)                                    by
notice to the Defaulting Party, declare all outstanding obligations of the
Defaulting Party to be due immediately or upon such later date specified in
such notice (the Acceleration Date) whereupon:


 


(A)                             the
Defaulting Party must perform all of its outstanding obligations then due on
the Acceleration Date and the non Defaulting Party will perform any
corresponding obligations in accordance with the terms of this Contract to the
extent such corresponding obligations relate to the performance by the
Defaulting Party of its outstanding obligations; and


 


(B)                               the
non Defaulting Party will not be obliged to perform any of its outstanding
obligations other than to the extent provided for in paragraph (i)(A) and will
not accrue any new or additional obligations under this Contract; and/or


 


(ii)                                 by
notice to the Defaulting Party, terminate this Contract and any obligation it
may have hereunder (including, without limitation, in respect of the Seller,
any obligation it may have to sell and deliver the Jet Fuel to the Buyer) on
the date specified in such notice and proceed to recover any damages and
enforce any other remedies to which it may be entitled under this Contract, the
Letter of Credit, at law or in equity or set-off against any amounts owing to
the Defaulting Party any and all amounts due and payable to the non Defaulting
Party as damages or otherwise.


 


17

















 


13.                              Force Majeure


 


(a)                                  Neither
the Seller nor the Buyer will be liable in damages or otherwise for any failure
or delay in performance of any obligations hereunder, other than the obligation
to make payment, where such failure or delay is caused by any event, occurrence
or circumstance reasonably beyond the control of a Party (Force Majeure) including failure or delay
caused by or resulting from:


 


(i)                                    acts
of God, fires and floods;


 


(ii)                                 strikes
and labour disputes;


 


(iii)                              wars
(whether declared or undeclared), acts of terrorism, piracy, riots, embargos;


 


(iv)                             delays
of carriers due to breakdown or adverse weather, perils of the seas, accidents;
and


 


(v)                                restrictions
imposed by any government authority (including allocations, priorities,
requisitions, quotas and price controls),


 


provided that the unavailability of funds or any event
listed in Clause 12(iv) will not constitute Force Majeure.


 


(b)                                 The
party claiming Force Majeure must give written notice thereof to the other
party within forty-eight hours of the occurrence of the Force Majeure event,
stating in reasonable detail the cause of Force Majeure and the expected
duration thereof. The affected party must use reasonable diligence to remove
the Force Majeure event.  However, no
party will be required to settle against its will any strike or labour dispute.


 


(c)                                  The
time of the Seller to make available or Buyer to receive relevant Cargoes of
Jet Fuel under this Contract will be extended during any period in which
delivery is delayed or prevented by reason of any of the foregoing causes up to
a total of thirty days.


 


(d)                                 If
any delivery of a Cargo under this Contract is, by reason of Force Majeure affecting
a party, delayed or prevented for more than thirty days, the other party may
terminate this Contract with respect to such delivery upon written notice to
the affected party.


 


14.                              Confidentiality


 


Each party must treat as confidential, and will not
disclose to any person, the terms of this Contract or any information or
materials supplied or made available in connection herewith without the prior
written consent of the other unless such disclosure is required by law.  This Clause 14 will survive termination
of this Contract.


 


15.                              Governing Law and Dispute Resolution


 


(a)                                  This
Contract is governed by and construed in accordance with the Laws of the State
of New York without reference to its law on


 


18

















 


conflicts.  The
United Nations Convention on Contracts for the International Sale of Goods will
not in any way govern or apply to this Contract.


 


(b)                                 If
any dispute arise under this Contract, the Parties will attempt to settle such
dispute within 30 days from the time one party has given notice of the dispute
to the other party, by discussions between the Parties.  If the dispute cannot be settled within such
30 day period, then the matter may be referred by either party to arbitration
in accordance with Clause 15(c), unless the Parties otherwise agree in writing.


 


(c)                                  Any
claim, dispute or difference of any kind whatsoever arising out of or in
connection with this Contract (including, without limitation, any question
regarding its existence, validity or termination) between the parties must be
referred to and finally resolved by arbitration in New York City.  Such arbitration will be decided by three
arbitrators appointed in accordance with and otherwise pursuant to the American
Arbitration Association Rules from time to time in force.  Those rules are deemed to be incorporated by
reference into this Clause insofar as they do not conflict with its express
provisions.  The decision and the award
will be final and binding on the Parties and will be to the exclusion of any
court review as to any substantive matter. 
Judgment upon the award may be entered in any court having jurisdiction.


 


16.                              Notices


 


(a)                                  All
notices required hereunder must be in writing and may be sent by facsimile or
mutually acceptable electronic means, a nationally recognised overnight courier
service, first class mail (certified or registered mail, return receipt
requested) or hand delivered.  Such
notice will be deemed to have been given on the date of receipt thereof by the
party receiving such notice.  Any party
may change its address upon three Banking Days’ notice to the other party.


 


(b)                                 Addresses
and facsimile numbers for notices, communications, and statements will be as
follows:


 


Seller’s details:                                 ITOCHU Petroleum Co. (Hong Kong), Ltd.

% TOKFT

ITOCHU Corporation Building

5-1, Kita-Aoyama 2-chome

Minato-ku

Tokyo 107-8077

Japan


Attention: Michael Yoshioka



Fax: +81 3497 6514


 


19

















 


Buyer’s details:                                 Hawaiian
Airlines, Inc.

3375 Koapaka Street

Suite G-350

Honolulu

Hawaii 96819

United States of America




	
  Attention:

  	
  Christine R.
  Deister,

  
	
   

  	
  Executive
  Vice President, 

  Chief Financial Officer

  and Treasurer

  



 


Fax: (808) 835-3699


 


17.                              Miscellaneous


 


(a)                                  This
Contract will be binding upon and will inure to the benefit of the Parties
hereto. Despite the foregoing neither party may transfer, assign this Contract
or its rights and obligations in full or part hereunder without the prior
written consent of the other party, such consent may not be unreasonably
withheld.


 


(b)                                 This
Contract constitutes the entire agreement between the Parties relating to its
subject matter.  Each party acknowledges
and agrees that in entering into the Agreement, it is not relying on and will
have no right of action against any other party to this Contract in respect of
any Pre-Contractual Representation which is not expressly set out in this
Contract.  For the purposes of this
Clause 17(b), “Pre-Contractual Representation” means any agreement,
arrangement, assurance, draft document, promise, undertaking, representation or
warranty of any person whether or not in writing made or given by any person
prior to execution of this Contract.


 


(c)                                  No
amendments may be made to this Contract unless they are in writing and signed
by the authorised representative of both Parties. All consents under this
Contract must be in writing.


 


(d)                                 This
Contract may be executed in any number of counterparts, each of which when executed
will be an original, but all the counterparts together will constitute one
document.


 


(e)                                  Nothing
in this Contract will be construed as creating a partnership or joint venture
of any kind between the Parties or as constituting either party as the agent of
the other party for any purpose whatsoever. 
No party will have the authority to bind the other party or to contract
in the name of or create a liability against the other party in any way or for
any purpose.


 


(f)                                    No
delay or omission of any party in exercising any right, power or remedy
provided by law or under this Contract will impair such right, power or remedy
or operate as a waiver thereof.  The
single or partial exercise of any right, power or remedy provided by law or
under this Contract will not preclude any other or further exercise thereof or
the exercise of any other right, power or remedy.


 


20

















 


(g)                                 Except
as expressly provided under this Contract, the rights and remedies contained in
this Contract are cumulative and are not exclusive of any other rights or
remedies provided by law or otherwise.


 


Executed as an
agreement.


 


	
  Signed
  on behalf of

  	
  )

  	 

	
  ITOCHU Petroleum
  Co. (Hong Kong), Ltd.

  	
  )

  	 

	
  by its duly authorised representative:

  	
  )

  	
  /s/ Masaru Takahashi

  	
   

  	 

	
   

  	
  Signature

  	 

	
   

  	 

	
  /s/ Naohiro Jokei

  	
   

  	
  Masaru Takahashi

  	
   

  
	
  Witness

  	
   

  	
  Print name

  	 

	
   

  	 

	
  Naohiro Jokei

  	
   

  	 

	
  Print name

  	
   

  	 

	
   

  	 

	
  Signed
  on behalf of

  	
  )

  	 

	
  Hawaiian Airlines,
  Inc.

  	
  )

  	 

	
  by its first duly authorised representative:

  	
  )

  	
  /s/ John W. Adams

  	
   

  	 

	
   

  	
   

  	
  Signature

  	
   

  	 

	
   

  	 

	
  /s/ Audrey M. Yuh

  	
   

  	
  John W. Adams

  	
   

  
	
  Witness

  	
   

  	
  Print name

  	 

	
   

  	 

	
  Audrey M. Yuh

  	
   

  	 

	
  Print name

  	
   

  	 

	
   

  	 

	
  Signed
  on behalf of

  	
  )

  	 

	
  Hawaiian Airlines,
  Inc.

  	
  )

  	 

	
  by its second duly authorised representative:

  	
  )

  	
  /s/ Christine R. Deister

  	
   

  	 

	
   

  	
   

  	
  Signature

  	
   

  	 

	
   

  	 

	
  /s/ Audrey M. Yuh

  	
   

  	
  Christine R. Deister

  	
   

  
	
  Witness

  	
   

  	
  Print name

  	 

	
   

  	 

	
  Audrey M. Yuh

  	
   

  	 

	
  Print name

  	
   

  	 

							



 


21

















 


Jet fuel sale and purchase contract


 


Schedule 1


 


1.                                     Agreed
form of Letter of Credit


 


[Name and address
of issuing bank]


 


To:                             ITOCHU Petroleum Co. (Hong Kong), Ltd.

% TOKFT

ITOCHU Corporation Building

5-1, Kita-Aoyama 2-chome

Minato-ku

Tokyo 107-8077

Japan



Attention: [REDACTED]


 


[Bank to
insert date of posting]


 


Gentlemen


 


We hereby establish in your
favour at the request of Hawaiian
Airlines, Inc. (the Applicant) this
irrevocable standby letter of credit, number [Bank to insert number], for an
aggregate amount not in excess of [REDACTED]
which is available to you on receipt of:


 


1.                                      your sight draft
drawn on us specifying the amount claimed under this letter of credit and
bearing thereon an endorsement of the above credit number; and


 


2.                                      your written
statement certifying that:


 


(a)                                  the sum specified in
the said sight draft is not in excess of the amount due and payable by the
Applicant pursuant to the jet fuel sale and purchase contract dated [Date of execution
of Contract] between Applicant and Beneficiary with
reference number TOKFTMI-042501 and that the entirety of such sum is an LC
Covered Sum;


 


(b)                                 you have demanded
payment of the said sum by notice in writing, accompanied by an itemisation in
reasonable detail of that LC Covered Sum, to the Applicant; and


 


(c)                                  the Applicant has
failed to comply with such demand.


 


Upon demand for payment made by
you under this letter of credit at least three business days prior to the date
on which you expect payment, and provided that such demand for payment and
documents presented in connection therewith conform to the terms and conditions
of this letter of credit, we shall pay you the amount demanded in immediately
available funds, not later than 11.00a.m. (New York time) on the day for which
payment is demanded.  The term business day shall mean a day on which banks
generally are open for business in the New York City


 


22

















 


The amount which may be drawn
by you under this letter of credit shall be automatically reduced by the amount
of any drawing hereunder.  Partial
drawings are permitted.


 


This letter of credit shall
expire at our counters at the address given above at 5.00pm (New York time) on
[REDACTED] or at such earlier time
as we effect payment to you of the amount of this letter of credit or the
balance thereof available hereunder by paying the same to your order in
immediately available funds or this letter of credit is returned to us.


 


We hereby engage with you as
the drawer that a draft drawn in conformity with this letter of credit will be
duly honoured on presentation if presented on or before the expiry time of this
letter of credit.


 


This SWIFT/telex message forms
the operative credit instrument although a mail confirmation will follow.


 


This standby letter of credit
is subject to the Uniform Customs and Practice for Documentary Credits, 1993
Revision, International Chamber of Commerce Publication No. 500 and shall, as
to matters not governed by the Uniform Customs, be governed by and construed in
accordance with the Laws of the State of New York without reference to its law
on conflicts.


 


This letter of credit is
effective as of [Bank to insert date of posting].


 


Yours faithfully


 


[Name of bank officer and title]


 


23