Exhibit 10.45


 


AIRCRAFT PURCHASE AGREEMENT


 


This Aircraft Purchase Agreement (“Agreement”) is entered
into as of February 16,
2006, between and among Wilmington Trust Company, not in its individual
capacity but solely as owner trustee (“Seller”), of a trust described on Schedule 1
(“Trust”) and beneficially owned by Marathon Structured Finance Fund, L.P. (“Marathon”)
through Marathon’s participation in the beneficial interest in a trust estate,
Marathon, and Hawaiian Airlines, Inc. (“Purchaser”).


 


WHEREAS, pursuant to that certain Letter of Intent dated
as of February 10, 2006 (“Letter of Intent”) Purchaser agreed to purchase
from the Seller, and Seller agreed to sell to the Purchaser, among other
things, three (3) used Boeing 767-332 aircraft, in passenger configuration,
bearing manufacturer’s serial numbers 23275, 23277 and 23278 and FAA (as
defined below) registration numbers N116DL, N118DL, and N119DL, respectively,
and six (6) General Electric Model CF6-80A2 aircraft engines bearing,
respectively, manufacturer’s serial numbers 580314 and 580315 (N116DL), 580317
and 580318 (N118DL), and 580319 and 580320 (N119DL), and including all
installed, appurtenant, and loose parts and equipment (whether or not installed
on board) and all logs, manuals, drawings, and other technical documentation
and Technical Records (as defined below) associated therewith (collectively,
the “Aircraft”). for the required Purchase Price (as defined below).


 


NOW, THEREFORE, for and in consideration of the premises
and covenants herein contained the parties hereto agree as follows:


 


1.                                      DEFINITIONS


 


1.1                               “Agreement” has the meaning set forth in
the preamble hereto;


 


1.2                               “Aircraft” means the aircraft described
in the recitals hereto;


 


1.3                               “Bill of Sale” shall mean an executed
Bill of Sale in substantially the form of Exhibit B hereto that will
not be filed with the FAA;


 


1.4                               “Closing Date” shall mean a date on or
prior to February 22, 2006 which is mutually agreed by Seller and
Purchaser;


 


1.5                               “Delivery” means the transfer on the
Closing Date of full legal and marketable title to the Aircraft by Seller to
Purchaser hereunder, free of all Security Interests; provided that for the
purposes of this definition and this Agreement, satisfaction (or waiver by the
Purchaser) of the conditions in Section 4.2 and satisfaction (or waiver by
the Seller) of the conditions in Section 4.1 shall constitute Delivery of
the Aircraft;


 


1.6                               “Delta” means Delta Air Lines, Inc.;


 


1.7                               “Escrow Agent” means Orrick,
Herrington & Sutcliffe LLP or such successor escrow agent in
accordance with the Escrow Instructions;


 


1.8                               “Escrow Instructions” means
that certain Escrow Agreement dated as of February 16, 2006, between and
among Purchaser, Seller, and the Escrow Agent;


 

















 


1.9                               “Existing Mortgages” means
each of those certain Trust Indenture and Security Agreements in respect of
each respective Aircraft, each dated as of December 1, 1986, and each
recorded with the FAA on January 15, 1987, which Existing Mortgages shall
be released by the Indenture Trustee upon receipt of the Purchase Price;


 


1.10                        “Existing Structure” means
the current leveraged lease structures whereby each of the Aircraft (i) were
subject to Leases by Delta, as lessee, but which Leases were subsequently
rejected by Delta in its currently pending chapter 11 bankruptcy case, (ii) is
owned by Seller, in its capacity as owner trustee, (iii) is beneficially
owned by Marathon through Marathon’s participation in the beneficial interest
in a trust estate, (iv) is subject to debt owed to the Indenture Trustee
for the benefit of the Loan Participants, and (v) is subject to an
Existing Mortgage in favor of the Indenture Trustee for the benefit of the Loan
Participants;


 


1.11                        “FAA” means the United States
Federal Aviation Administration;


 


1.12                        “FAA Bills of Sale” means
an executed A/C Form 8050-2 FAA Aircraft Bill of Sale in respect of the
Aircraft in form acceptable for recording with the FAA;


 


1.13                        “FAA Counsel” Daugherty, Fowler,
Peregrin & Haught, a professional corporation;


 


1.14                        “FAA Registration Application” means an
executed A/C Form 8050-1 FAA Registration Application;


 


1.15                        “Indenture Trustee” means
JP Morgan Chase Bank acting as indenture trustee for the Loan Participants;


 


1.16                        “Leases” means the leveraged lease
structure whereby each of the Aircraft were subject to a lease by Delta, as
lessee;


 


1.17                        “Letter of Intent” has
the meaning set forth in the preamble hereto;


 


1.18                        “Loan Participants” means
a group of financial institutions;


 


1.19                        “Marathon” has the meaning set forth in
the preamble hereto;


 


1.20                        “New York UCC” means the Uniform Commercial
Code in effect in the State of New York;


 


1.21                        “Pending Foreclosure” means
the pending public sale of the Aircraft by the Loan Participants under the
Existing Structure scheduled to be held on February 27, 2006 at 10:00 a.m.;


 


1.22                        “Purchaser” has the meaning set forth in
the preamble hereto;


 


1.23                        “Purchase Price” has the meaning set
forth in Section 5.1 hereof;


 


1.24                        “Redemption” means Seller’s execution of
Seller’s right to redeem the Aircraft pursuant to Section 9-623 of the New
York UCC;


 


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1.25                        “Releases” has the meaning set forth in Section 4.2(e) hereof;


 


1.26                        “Security Deposit” has
the meaning set forth in Section 5.1 hereof;


 


1.27                        “Security Interest” means
any mortgage, including the Existing Mortgages, charge, pledge, lien,
encumbrance, assignment, hypothecation, right of set-off or any other agreement
or arrangement having the effect of conferring security not constituted by or
against Purchaser;


 


1.28                        “Seller” has the meaning set forth in the
preamble hereto;


 


1.29                        “Taxes” means any and all present and
future taxes, duties, withholdings, levies, assessments, imposts, fees, and
other governmental charges of all kinds (including without limitation any value
added or similar tax and any stamp, documentary, registration or similar tax),
together with any penalties, fines, surcharges and interest thereon and any
additions thereto;


 


1.30                        “Technical Records” means
all Aircraft and engine technical and maintenance records including, but not
limited to, current Aircraft Maintenance Manuals, Aircraft Maintenance Records,
Illustrated Parts Catalogue, Aircraft Wiring Manuals, Fault Isolation Manuals,
and Structural Repair Manuals;


 


1.31                        “Third Party Liability Event” has the
meaning set forth in Section 9.1 hereof;


 


1.32                        “Transaction Documents” means
this Agreement, the FAA Bills of Sale, the Bill of Sale, the Releases, the
Escrow Instructions, any agreement amending or supplementing any of the
foregoing documents, and any agreement or document executed or delivered, or
required to be executed and delivered, in connection with any of the foregoing
documents;


 


1.33                        “Trust” has the meaning set forth in
the preamble hereto; and


 


1.34                        “Trust Agreement” means the trust
agreement described in Schedule 1 hereto;


 


2.                                      REPRESENTATIONS AND WARRANTIES


 


2.1                               Seller’s Representations and Warranties:  Seller represents and warrants to Purchaser
that the following statements are at the date hereof true and accurate:


 


(a)                                  Seller is a national banking association organized and existing under the
laws of the United States of America and has the power to enter into and
implement the transactions contemplated by the Transaction Documents; and


 


(b)                                 the execution, delivery and performance of the Transaction Documents to
which it is a party has been duly authorized by all necessary action on the part of
Seller.


 


2.2                               Purchaser’s Representations and Warranties:  Purchaser
represents and warrants to Seller that the following statements are true and
accurate at the date hereof:


 


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(a)                                  Purchaser is a corporation organized and existing under the laws of the
State of Delaware and has the power to enter into and implement the
transactions contemplated by the Transaction Documents; and


 


(b)                                 the execution, delivery, and performance of the Transaction Documents to
which it is a party has been duly authorized by all necessary action on the part of
Purchaser.


 


2.3                               Marathon’s Representations and Warranties:  Marathon represents and warrants
to Purchaser that the following statements are true and accurate at the date
hereof:


 


(a)                                  Marathon is a limited partnership organized and existing under the laws of
Delaware and has
the power to enter into and implement the transactions contemplated by the
Transaction Documents;


 


(b)                                 the execution, delivery and performance of the Transaction Documents to
which it is a party has been duly authorized by all necessary action on the part of
Marathon; and


 


(c)                                  Marathon has the power and authority to direct Seller to take all actions
necessary to authorize and instruct Seller to perform the actions
contemplated by the Transaction Documents (and no further consents are
required), and Marathon has taken all actions necessary to authorize and instruct
Seller to perform the actions contemplated by the Transaction Documents;
and


 


(d)                                 the United States Bankruptcy Court for the Southern District of New York
has entered an order approving Delta’s rejection of the Leases.


 


3.                                      AGREEMENT TO SELL AND PURCHASE


 


3.1                               Agreement:  Subject to the provisions of this Agreement
including Section 7 hereof, Seller agrees to sell the Aircraft to
Purchaser, and Purchaser agrees to purchase the Aircraft from Seller in an “AS-IS, WHERE-IS” condition upon Delivery
as of the Closing Date.


 


3.2                               Closing Date:    The Delivery of the Aircraft shall occur on
the Closing Date upon satisfaction (or waiver by the applicable party) of the
conditions precedent set forth in Section 4 hereof, time being of the
essence of this Agreement. No adjournment of the Closing Date shall occur, and
if the Delivery does not occur on or prior to February 22, 2006 (i.e. if
the conditions in Section 4 are not satisfied or waived on or prior to
such date), Purchaser’s obligation to purchase the Aircraft shall automatically
terminate, in which event (a) the Security Deposit and any income thereon
shall be distributed by the Escrow Agent to the Seller or the Purchaser in
accordance with Section 5.2 hereof and (b) the balance of the
Purchase Price and all other amounts deposited by the Purchaser into the escrow
account and income thereon shall be refunded to the Purchaser by the Escrow
Agent within three (3) calendar days following the date of Purchaser’s
request thereof.


 


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3.3                               Beneficial Owner:  Upon release of all or a portion of the
Purchase Price to the Indenture Trustee in accordance with the Escrow
Instructions on the Closing Date (which will occur when the conditions in Section 4
have been satisfied or waived in accordance with Section 4), Purchaser
shall be deemed to be the beneficial owner of the Aircraft for all purposes.


 


3.4                               Transfer of Title:  Subject to the provisions of this Agreement and by virtue of Delivery and
the satisfaction or waiver of the conditions in Section 4.2, Seller shall
pass to Purchaser full legal and marketable title to the Aircraft free of
Security Interests.


 


3.5                               Risk:  Notwithstanding any provision hereof to the
contrary, risk of loss or destruction of the Aircraft or damage to the Aircraft
shall pass from Seller to Purchaser only upon Delivery on the Closing Date.


 


4.                                      CONDITIONS PRECEDENT


 


4.1                               Seller Conditions:  The obligation of Seller to sell the Aircraft to Purchaser shall be
subject to fulfillment of the following conditions precedent on or prior to the
Closing Date (except to the extent that Seller agrees in writing in its
absolute discretion to waive or defer any such condition):


 


(a)                                  Seller shall have received a copy of the Escrow Instructions duly executed
by Purchaser and the Escrow Agent;


 


(b)                                 Seller shall have received the Purchase Price;


 


(c)                                  Seller shall have received a copy of this Agreement duly executed by
Purchaser;


 


(d)                                 Seller shall have received a duly executed copy of the Aircraft or
Aircraft Parts Exemption Certificate; and


 


(e)                                  The representations given by Purchaser shall be true and accurate on the
Closing Date.


 


4.2                               Purchaser Conditions:  The obligation of Purchaser to purchase the Aircraft from Seller shall be
subject to fulfillment of each of the following conditions precedent on or
prior to the Closing Date (except to the extent that Purchaser agrees in
writing in its absolute discretion to waive or defer any such condition):


 


(a)                                  Purchaser shall have received a copy of the Escrow Instructions duly executed
by Seller and the Escrow Agent;


 


(b)                                 Purchaser shall have received a copy of this Agreement duly executed by
Seller and Marathon;


 


(c)                                  Purchaser shall have received FAA Bills of Sale for each of the Aircraft
duly executed by Seller;


 


(d)                                 Purchaser shall have received the Bill of Sale duly executed by Seller;


 


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(e)                                  Purchaser or Purchaser’s FAA Counsel shall have received (i) the
release of the Existing Mortgage and all other Security Interests, if any, against
the Aircraft in recordable format for filing with the FAA (“Releases”) and (ii) authorization
by the Indenture Trustee to release the Releases for recording with the FAA;


 


(f)                                    No consummation of the Pending Foreclosure;


 


(g)                                 Consummation of the Redemption; and


 


(h)                                 The representations given by Seller and Marathon shall be true and
accurate on the Closing Date.


 


5.                                      PURCHASE PRICE


 


5.1                               Purchase Price:  The price for the Aircraft is Twenty Four
Million United States Dollars (“US$24,000,000”) in cash for all the Aircraft
(i.e. US$8,000,000 per Aircraft), which amount shall be satisfied by Purchaser’s
payment to the Escrow Agent (a) on the date hereof of a security deposit
in the amount of US$1,500,000 (“Security Deposit”) and (b) on or before February 21,
2006 of the US$22,500,000 balance of the Purchase Price all in accordance with
the Escrow Instructions set forth in Exhibit A.


 


5.2                               Security Deposit/Partial Prepayment/Refund:  The Security Deposit shall become
a partial prepayment of the Purchase Price owed by Purchaser to Seller, fully
earned, and non-refundable, and the Seller shall have the right to receive the
Security Deposit and any income earned thereon from the Escrow Agent within
three (3) calendar days after the Seller’s request therefor if the
Delivery does not occur on or before February 22, 2006 (i.e. if the
conditions set forth in Section 4 are not satisfied or waived prior to
such date), except (i) in the event of the occurrence of the Pending
Foreclosure prior to the effectuation of the Redemption, (ii) in the event
of default by Seller under this Purchase Agreement, (iii) in the event Delivery
does not occur on or prior to February 22, 2006 as provided in Section 3.2
hereof for a reason other than a breach by the Purchaser of its obligations
under this Agreement, or (iv) in the event of a total or partial loss of
the Aircraft prior to Delivery, and in each such case set forth in clauses (i) through
(iv) of this sentence, Purchaser’s obligation to purchase the Aircraft
shall automatically terminate and the Security Deposit and the balance of the
Purchase Price and all other amounts deposited by the Purchaser into the escrow
account and any income thereon shall be refunded to the Purchaser within three (3) calendar
days following the date of Purchaser’s request thereof.


 


6.                                      DELIVERY


 


6.1                               Delivery:  Subject to the provisions of Section 3
and satisfaction (or waiver by the applicable party) of the conditions
precedent set out in Sections 4.1 and 4.2, Seller shall effect the transfer of
title to the Aircraft to Purchaser on the Closing Date by duly executing and
delivering the FAA Bills of Sale and the Bill of Sale, and delivering the
Releases to Purchaser. Upon delivery of the FAA Bills of Sale, the Bill of
Sale, and the Releases to Purchaser and payment of the Purchase Price to
Seller, title to the Aircraft shall pass from Seller to Purchaser. It is
understood that the receipt of the Releases by the


 


6

















 


Purchaser’s FAA Counsel
and authorization by the Indenture Trustee to release the Releases for
recording with the FAA shall constitute receipt of such Releases hereunder by
the Purchaser sufficient for the Purchaser to authorize the Escrow Agent (upon
satisfaction (or waiver by the applicable party) of all other conditions in Section 4)
to wire to the Indenture Trustee the amount required to consummate the
Redemption.


 


6.2                               Delivery Location:  The FAA Bills of Sale, the Bill of Sale, and
the Releases shall be delivered to Purchaser (or FAA Counsel) while the
Aircraft is located on the ground at Southern California Aviation in
Victorville, California (the “Delivery Location”). Purchaser shall be solely
responsible for taking physical possession of the Aircraft at its current
location at Southern California Aviation in Victorville, California.


 


6.3                               Tender and Acceptance of Delivery:  On the Closing Date, subject to the
provisions of Section 3 and satisfaction (or waiver by the applicable
party) of the conditions precedent set out in Sections 4.1 and 4.2, Seller
shall tender the Aircraft for Delivery and Purchaser shall acknowledge
acceptance of the Aircraft, by execution and delivery of an acceptance
certificate in substantially the same form as Exhibit C hereto.


 


7.                                      CONDITION OF AIRCRAFT


 


7.1                               Disclaimers:  Each of the Aircraft is being conveyed “AS-IS,
WHERE-IS” upon Delivery as of the Closing Date, with all faults and without any
representation, warranty, or guarantee of any kind being made or given by the
Seller or its servants or agents, express or implied, arising by law or
otherwise, other than as expressly provided for herein.


 


WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, THE SELLER SPECIFICALLY DISCLAIMS,
AND EXCLUDES FROM THIS AGREEMENT, OTHER THAN AS EXPRESSLY PROVIDED HEREIN, AND
PURCHASER BY THE ACCEPTANCE HEREOF EXPRESSLY WAIVES: (a) ANY WARRANTY AS
TO THE AIRWORTHINESS, VALUE, DESIGN, QUALITY, DURABILITY, COMPLIANCE WITH
SPECIFICATIONS, MANUFACTURE, OPERATIONS, OR CONDITION OF THE AIRCRAFT, THE
EQUIPMENT INSTALLED THEREON, OR ANY DAMAGE THERETO; (b) ANY EXPRESS OR
IMPLIED REPRESENTATION OR WARRANTY OF MERCHANTABILITY OR FITNESS FOR USE OR FOR
A PARTICULAR PURPOSE; (c) ANY EXPRESS OR IMPLIED REPRESENTATION OR
WARRANTY OF FREEDOM FROM ANY RIGHTFUL CLAIM BY WAY OF INFRINGEMENT OR THE LIKE
(INCLUDING WITHOUT LIMITATION, INFRINGEMENT OF ANY PATENT, TRADEMARK OR
COPYRIGHT); (d) ANY IMPLIED REPRESENTATION OR WARRANTY ARISING FROM COURSE
OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT TO THE
AIRCRAFT; (e) ANY EXPRESS OR IMPLIED WARRANTY REGARDING THE CONDITION OF
THE AIRCRAFT; AND (f) ANY OBLIGATION OR LIABILITY OF ANY OF SELLER OR
MARATHON ARISING IN CONTRACT OR IN TORT (INCLUDING STRICT LIABILITY OR SUCH AS MAY ARISE
BY REASON OF SUCH PERSON’S NEGLIGENCE NOT CONSTITUTING GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT) ACTUAL OR IMPUTED, OR IN STRICT LIABILITY, INCLUDING ANY
OBLIGATION OR LIABILITY FOR LOSS OF USE, REVENUE OR PROFIT, WITH RESPECT TO THE
AIRCRAFT OR


 


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FOR ANY LIABILITY OF
SELLER OR MARATHON TO ANY THIRD PARTY OR ANY OTHER DIRECT, INCIDENTAL, SPECIAL
OR CONSEQUENTIAL DAMAGE WHATSOEVER WITH RESPECT TO THE AIRCRAFT.


 


7.2                               Acceptance of Delivery:  DELIVERY OF THE AIRCRAFT BY THE SELLER,
ACCEPTANCE OF THE AIRCRAFT BY PURCHASER AND, THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS SHALL BE CONCLUSIVE
PROOF, AS BETWEEN PURCHASER AND SELLER, THAT PURCHASER HAS EXAMINED AND
INVESTIGATED THE AIRCRAFT AND EACH PART THEREOF AND THAT THE AIRCRAFT ARE
IN EVERY WAY SATISFACTORY TO PURCHASER.


 


NOTWITHSTANDING THE FOREGOING, PRIOR TO AND/OR
AFTER DELIVERY, SELLER SHALL (AT PURCHASER’S SOLE COST AND EXPENSE) COOPERATE
WITH PURCHASER AS REASONABLY NECESSARY (I) TO OBTAIN VALID CERTIFICATES OF
AIRWORTHINESS FOR THE AIRCRAFT (IT BEING UNDERSTOOD THAT SELLER GIVES NO
REPRESENTATION, WARRANTY OR ASSURANCE OF ANY KIND THAT SUCH CERTIFICATES CAN BE
OBTAINED), (II) TO ENSURE THE AIRCRAFT COMPLY WITH SUCH CERTIFICATES, (III) TO
OBTAIN, AND BE IN COMPLIANCE WITH, CURRENT AND VALID REGISTRATION FOR THE
AIRCRAFT, AND (IV) TO OBTAIN, AND IF NECESSARY RECREATE, ALL TECHNICAL RECORDS
(IT BEING UNDERSTOOD THAT SELLER GIVES NO REPRESENTATION, WARRANTY OR ASSURANCE
OF ANY KIND THAT SUCH TECHNICAL RECORDS CAN BE OBTAINED OR RECREATED).


 


8.                                      MANUFACTURER’S WARRANTIES


 


8.1                               Manufacturer Warranties. Effective
upon Delivery as of the Closing Date, Seller hereby assigns to Purchaser all
Seller’s rights, title, and interest (to the extent that such assignment is
permitted by the terms hereof) in:


 


(a)                                  All agreements with the Aircraft and engine manufactures or any third
party supplier or maintenance provider relating to the applicable Aircraft and
engine warranties, if any.


 


It is understood that
Seller gives no representation, warranty or assurance of any kind that any of
the foregoing can be accomplished or that any such assignment will be
effective.


 


8.2                               Further Assurances with Respect to Manufacturer Warranties:  Seller
agrees on request by Purchaser to give notice of such assignment to the
manufacturers or any third party supplier or maintenance provider. Seller also
hereby grants to Purchaser rights of subrogation relating to any claim which
Seller may have under such warranties concerning the Aircraft, and any
engines or parts. Seller shall execute and deliver appropriate instruments and
take such other action as Purchaser may reasonably request and as may be
reasonably necessary to secure such rights and protection for Purchaser.


 


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9.                                      INDEMNITY AND TAXES


 


9.1                               Indemnity:  Seller and Marathon, jointly and severally,
agree to indemnify Purchaser and its officers, directors, employees, agents,
and affiliates against any liability to a third party which any such person may incur
in relation to the Aircraft to the extent such liability arises out of an event
that occurred prior to Delivery of the Aircraft to Purchaser (“Third Party
Liability Event”), to the extent Seller or Marathon would have recourse to
Delta or the prior operator for such amounts and does in fact recover from
Delta or such prior operator for such liability. For the avoidance of doubt, (a) the
indemnity by Seller and Marathon is being provided on a non-recourse basis, in
that it will be limited to the amount, if any, that Seller and Marathon
actually recover from Delta or the prior operator of the Aircraft on account of
the Third Party Liability Event, and (b) any amount received by Seller
Marathon from Delta or the prior operator on account of any claim other than a
claim for indemnity for the Third Party Liability Event, including without
limitation amounts received on account of Delta’s or the prior operator’s
rejection of any of the Leases, any tax indemnity claim, or any administrative
claim against Delta or the prior operator, will not be deemed to have been
recovered from Delta or the prior operator for the purposes of this indemnity
and will therefore not be available to fund the indemnity hereunder with
respect to any Third Party Liability Event.


 


9.2                               Taxes:  Purchaser shall be responsible for all sales, use, transfer, value added,
and similar taxes arising in connection with the sale of the Aircraft, other
than taxes assessed against a party attributable to such party’s overall
income, profits, or gains. The parties shall cooperate (at the expense of the
party requesting action to be taken) in order to minimize the imposition of any
such taxes.


 


10.                               FURTHER PROVISIONS


 


10.1                        Further Assurances:  Seller agrees from time to time to do and
perform, at Purchaser’s expense (except in the case of delivery of the Releases
which shall be accomplished at Seller’s sole cost and expense), such other and
further acts and execute and deliver any and all such other instruments as may be
required by law or reasonably requested by Purchaser to establish, maintain,
and protect the rights and remedies of the parties as set forth herein and to
carry out and effect the intent and purpose of this Agreement.


 


10.2                        Rights Cumulative, Waivers:  The rights of each of the parties under this
Agreement are cumulative, may be exercised as often as each party
considers appropriate and are in addition to its rights under applicable law. The
rights of each of the parties (whether arising under this Agreement or the
applicable law) shall not be capable of being waived or varied otherwise than
by an express waiver or variation in writing; and in particular any failure to
exercise or any delay in exercising any of such rights shall not operate as a
waiver or variation of that or any other such right; any defective or partial
exercise of any of such rights shall not preclude any other or further exercise
of that or any other such right; and no act or course of conduct or negotiation
on the part of either party or on its behalf shall in any way preclude it
from exercising any such right or constitute a suspension or any variation of
any such right.


 


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10.3                        Amendments:  The provisions of this Agreement shall not be
varied otherwise than by an instrument in writing executed by or on behalf of
the parties hereto.


 


10.4                        Notices:  Unless otherwise expressly provided herein, all notices, instructions,
demands, and other communications hereunder shall be in writing and shall be
delivered personally, sent via Federal Express or other express courier
service, effective upon delivery or refusal of attempted delivery, or sent by
registered or certified mail, postage prepaid and return receipt requested, or
sent by facsimile transmission, with a confirming copy sent by air mail,
postage prepaid, and the date of personal delivery or facsimile transmission or
7 business days after the date of mailing (other than in the case of the
mailing of a confirming copy of a facsimile transmission), as the case may be,
shall be the date of such notice, in each case addressed to:


 


	
  Seller:

  	
   

  	
  Wilmington Trust Company

  
	
   

  	
   

  	
  Rodney
  Square North

  
	
   

  	
   

  	
  1110 North Market Street

  
	
   

  	
   

  	
  Wilmington, Delaware 19801

  
	
   

  	
   

  	
  Attn: Anita Roselli

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Telephone: (302) 636-6198

  
	
   

  	
   

  	
  Facsimile: (302) 636-6140

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Marathon
  Structured Finance Fund, L.P.

  
	
   

  	
   

  	
  461
  Fifth Avenue

  
	
   

  	
   

  	
  New
  York, New York 10017

  
	
   

  	
   

  	
  Attention:
  Mr. Louis Hanover

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Telephone:
  (212) 381-4431

  
	
   

  	
   

  	
  Facsimile:
  (212) 381-4498

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with
  copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bruce
  C. Silvers, Esq.

  
	
   

  	
   

  	
  Bingham
  McCutchen LLP

  
	
   

  	
   

  	
  One
  State Street

  
	
   

  	
   

  	
  Hartford,
  Connecticut 06103

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Telephone:
  (860) 240-2943

  
	
   

  	
   

  	
  Facsimile:
  (860) 240-2561

  
	
   

  	
   

  	
   

  
	
  Purchaser:

  	
   

  	
  Hawaiian Airlines, Inc.

  
	
   

  	
   

  	
  3375 Koapaka St., Suite G 350

  
	
   

  	
   

  	
  Honolulu, Hawaii 96819

  
	
   

  	
   

  	
  Attn: Executive Vice President and Chief Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Telephone:
  (808) 835-3700

  
	
   

  	
   

  	
  Facsimile:
  (808) 835-3695

  



 


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  with copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Ronald W. Goldberg, Esq.

  
	
   

  	
   

  	
  Orrick, Herrington & Sutcliffe LLP

  
	
   

  	
   

  	
  777 South Figueroa Street, Suite 3200

  
	
   

  	
   

  	
  Los
  Angeles, California 90017

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Telephone:
  (213) 612-2382

  
	
   

  	
   

  	
  Facsimile:
  (213) 612-2499

  



 


10.5                        Entire Agreement:  This Agreement and the Escrow Instructions
constitute the entire agreement between the parties hereto in relation to the
sale and purchase of the Aircraft and supersede all previous proposals,
agreements, and other written and oral communications in relation thereto.


 


10.6                        Costs and Expenses:


 


(a)                                  Each party shall bear its own fees, costs, and expenses in connection with
the preparation, negotiation, and completion of this Agreement and performance
of the transactions contemplated hereby, except as expressly provided herein. Should
a dispute arise between the parties in connection with this Agreement, the
prevailing party shall be entitled to reimbursement of reasonable legal fees in
connection with any litigation occurring as a result of that dispute.


 


(b)                                 For the avoidance of doubt, Purchaser shall not be responsible for any
broker’s fees, commissions, or expenses relating to the sale of the Aircraft by
Seller.


 


10.7                        Counterparts:  This Agreement may be executed in any
number of separate counterparts by the parties, and each counterpart shall
when executed and delivered be an original document, but all counterparts shall
together constitute one and the same instrument.


 


11.                               LAW AND JURISDICTION


 


11.1                        Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial:


 


(a)                                  THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE SELLER, THE
PURCHASER, AND MARATHON HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.


 


(b)                                 ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH OF THE SELLER, PURCHASER, AND MARATHON HEREBY IRREVOCABLY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. EACH OF THE SELLER, THE PURCHASER, AND


 


11

















 


MARATHON HEREBY FURTHER
IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK JURISDICTION OVER SUCH
PERSON, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT BROUGHT IN ANY OF THE AFORESAID COURTS, THAT ANY
SUCH COURT LACKS JURISDICTION OVER SUCH PERSON. EACH OF THE SELLER AND THE
PURCHASER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID TO SUCH PERSON, AT ITS ADDRESS FOR NOTICES
PURSUANT TO SECTION 10.4 HEREOF, SUCH SERVICE TO BECOME EFFECTIVE TEN (10) DAYS
AFTER SUCH MAILING. EACH OF THE SELLER AND THE PURCHASER HEREBY IRREVOCABLY
WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES
AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED
HEREUNDER THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF EACH OF THE SELLER, THE PURCHASER AND MARATHON
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE OTHER PARTY IN ANY OTHER
JURISDICTION.


 


(c)                                  EACH OF THE SELLER, THE PURCHASER, AND MARATHON HEREBY 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 BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (b) ABOVE
AND HEREBY FURTHER 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. EACH OF THE SELLER, PURCHASER AND
MARATHON FURTHER IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY
IN ANY COURT OR JURISDICTION, INCLUDING, WITHOUT LIMITATION, THOSE REFERRED TO
IN CLAUSE (b) ABOVE, IN RESPECT OF ANY MATTER ARISING OUT OF OR RELATING
TO THIS AGREEMENT.


 


12.                               BROKERS AND OTHER THIRD PARTIES


 


12.1                        No Brokers: Other than Purchaser’s
retention of CIT to facility the procurement of the Aircraft, each of the
parties hereby represents and warrants to the other that it has not paid,
agreed to pay, or caused to be paid directly or indirectly in any form, any
commission, percentage, contingent fee, brokerage or other similar payments of
any kind, in connection with the establishment or operation of this Agreement,
to any person (other than fees payable by each party to its legal advisers).


 


12

















 


12.2                        Indemnity: Each party agrees to indemnify
and hold the other harmless from and against any and all claims, suits,
damages, costs, and expenses (including, but not limited to reasonable
attorneys’ fees) asserted by any agent, broker, or other third party, against a
counterparty to this Agreement or the other Transaction Documents for any
commission or compensation of any nature whatsoever based upon this Agreement
or the Transaction Documents or the Aircraft, if such claim, suit, damage,
cost, or expense arises out of any breach by the indemnifying party, its
employees, or agents of Section 12.1 hereof.


 


12.3                        Limitation of Owner Trustee Liability: It is
expressly understood and agreed by the parties that (a) this Agreement is
executed and delivered by Wilmington Trust Company, not individually or
personally, but solely as owner trustee, in the exercise of the powers and
authority conferred and vested in it, pursuant to the Trust Agreement, (b) each
of the representations, undertakings and agreements herein made on the part of
the Trust is made and intended not as personal representations, undertakings
and agreements by Wilmington Trust Company but is made and intended for the
purpose of binding only the Trust, (c) nothing herein contained shall be
construed as creating any liability on Wilmington Trust Company, individually
or personally, to perform any covenant either expressed or implied
contained herein, all such liability, if any, being expressly waived by the
parties hereto and by any person claiming by, through or under the parties
hereto, and (d) under no circumstances shall Wilmington Trust Company be
personally liable for the payment of any indebtedness or expenses of the Trust
or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under this Agreement or
any other related documents.


 


[THE REMAINDER OF THIS PAGE IS
INTENTIONALLY LEFT BLANK]


 


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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
shown above.


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  Wilmington Trust Company, not
  in its individual

  capacity but solely as Owner Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By 

  	
  /S/ Anita Roselli

  	
   

  
	
   

  	
  Name: Anita Roselli

  
	
   

  	
  Title: Financial Services
  Officer

  
	
   

  	
   

  
	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Hawaiian Airlines, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By 

  	
  /S/ Peter Ingram

  	
   

  
	
   

  	
  Name: Peter Ingram

  
	
   

  	
  Title: Executive Vice
  President, Chief Financial

  Officer & Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By 

  	
  /S/ H. Norman Davies, Jr.

  	
   

  
	
   

  	
  Name: H. Norman Davies, Jr.

  
	
   

  	
  Title: Executive Vice
  President - Operations

  
	
   

  	
   

  
	
   

  	
  MARATHON:

  
	
   

  	
   

  
	
   

  	
  Marathon Structured Finance
  Fund, L.P.

  
	
   

  	
   

  
	
   

  	
  By 

  	
  /S/ Louis
  Hanover

  	
   

  
	
   

  	
  Name: Louis
  Hanover

  
	
   

  	
  Title: Chief
  Investment Officer

  
					



 


14

















 


SCHEDULE 1


 


DESCRIPTION OF TRUST


 


Trust Agreement (Delta 1986-7, 8 &9) dated as of October 1,
1992 between The First National Bank of Boston and Wilmington Trust Company, as
Owner Trustee.


 


1