Exhibit 10.46


 


AIRCRAFT PURCHASE AND SALE

AGREEMENT

(MSN 23276)


 


dated as of February 
24, 2006


 


between


 


HAWAIIAN
AIRLINES, INC.,


as Buyer


 


and


 


WILMINGTON
TRUST COMPANY,

not in its individual capacity but solely as owner trustee,

as Seller


 






 


One (1) 1986
Boeing Model 767-332 Aircraft

bearing Manufacturer’s Serial Number 23276 and

U.S. Registration Mark N117DL,

together with two (2) General Electric Model CF6-80A2 Engines

bearing Engine Manufacturer’s Serial Numbers 580328 and 580293


 






 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page

  
	
  ARTICLE I

  	
  DEFINITIONS

  	
  1

  
	
   

  	
  Section 1.1

  	
  Defined Terms

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  PURCHASE AND SALE OF AIRCRAFT

  	
  3

  
	
   

  	
  Section 2.1

  	
  Aircraft Sale

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  PURCHASE PRICE

  	
  4

  
	
   

  	
  Section 3.1

  	
  Purchase Price of
  Aircraft

  	
  4

  
	
   

  	
  Section 3.2

  	
  Deposit

  	
  4

  
	
   

  	
  Section 3.3

  	
  Payment Instructions

  	
  4

  
	
   

  	
  Section 3.4

  	
  No Adjustments

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  AIRCRAFT DELIVERY; TITLE AND RISK OF LOSS

  	
  4

  
	
   

  	
  Section 4.1

  	
  Aircraft Delivery Date

  	
  4

  
	
   

  	
  Section 4.2

  	
  Place of Delivery of
  Aircraft

  	
  5

  
	
   

  	
  Section 4.3

  	
  Delivery

  	
  5

  
	
   

  	
  Section 4.4

  	
  Buyer’s Acceptance of
  Aircraft

  	
  5

  
	
   

  	
  Section 4.5

  	
  Title and Risk of Loss

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  CONDITIONS PRECEDENT; DELIVERY CONDITIONS

  	
  5

  
	
   

  	
  Section 5.1

  	
  Seller’s Conditions
  Precedent

  	
  5

  
	
   

  	
  Section 5.2

  	
  Buyer’s Conditions
  Precedent

  	
  6

  
	
   

  	
  Section 5.3

  	
  Delivery Conditions;
  Inspections

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  SELLER’S WARRANTIES AND DISCLOSURES

  	
  7

  
	
   

  	
  Section 6.1

  	
  SELLER’S DISCLAIMERS OF
  WARRANTIES

  	
  7

  
	
   

  	
  Section 6.2

  	
  SELLER’S DISCLAIMERS OF
  PRIOR REPRESENTATIONS AND STATEMENTS

  	
  7

  
	
   

  	
  Section 6.3

  	
  Exceptions to Seller’s
  Disclaimers; Seller’s Warranties

  	
  8

  
	
   

  	
  Section 6.4

  	
  Buyer’s Acknowledgement

  	
  8

  
	
   

  	
  Section 6.5

  	
  Waiver Of Consequential
  Damages

  	
  9

  
	
   

  	
  Section 6.6

  	
  Assignment of
  Manufacturers’ Warranties

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  TAXES AND DUTIES

  	
  10

  
	
   

  	
  Section 7.1

  	
  Tax Indemnity

  	
  10

  
	
   

  	
  Section 7.2

  	
  No Set-Off, etc

  	
  10

  
	
   

  	
  Section 7.3

  	
  Survival

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  DELAY IN PERFORMANCE; LOSS OR DESTRUCTION OF AIRCRAFT

  	
  11

  
	
   

  	
  Section 8.1

  	
  Excusable Delay

  	
  11

  
	
   

  	
  Section 8.2

  	
  Termination for
  Excusable Delay

  	
  11

  
	
   

  	
  Section 8.3

  	
  Loss or Destruction of
  Aircraft

  	
  11

  
	
   

  	
  Section 8.4

  	
  Casualty Occurrence
  Defined

  	
  11

  



 


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  ARTICLE IX

  	
  INDEMNIFICATION

  	
  12

  
	
   

  	
  Section 9.1

  	
  General Indemnity in
  Favor of Seller

  	
  12

  
	
   

  	
  Section 9.2

  	
  General Indemnity in
  Favor of Buyer

  	
  13

  
	
   

  	
  Section 9.3

  	
  Survival

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  INSURANCE

  	
  14

  
	
   

  	
  Section 10.1

  	
  Insurance Requirements

  	
  14

  
	
   

  	
  Section 10.2

  	
  Broker’s Certificates

  	
  15

  
	
   

  	
  Section 10.3

  	
  Survival

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  REPRESENTATIONS

  	
  16

  
	
   

  	
  Section 11.1

  	
  Seller’s Representations

  	
  16

  
	
   

  	
  Section 11.2

  	
  Buyer’s Representations

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
  MISCELLANEOUS

  	
  18

  
	
   

  	
  Section 12.1

  	
  Transferability

  	
  18

  
	
   

  	
  Section 12.2

  	
  Further Assurances

  	
  18

  
	
   

  	
  Section 12.3

  	
  Notices

  	
  18

  
	
   

  	
  Section 12.4

  	
  Amendment

  	
  18

  
	
   

  	
  Section 12.5

  	
  No Waiver

  	
  18

  
	
   

  	
  Section 12.6

  	
  Confidentiality

  	
  18

  
	
   

  	
  Section 12.7

  	
  Severability of
  Provisions

  	
  19

  
	
   

  	
  Section 12.8

  	
  Time of Essence

  	
  19

  
	
   

  	
  Section 12.9

  	
  Counterparts

  	
  19

  
	
   

  	
  Section 12.10

  	
  Governing Law and
  Jurisdiction

  	
  19

  
	
   

  	
  Section 12.11

  	
  Broker Fees

  	
  20

  
	
   

  	
  Section 12.12

  	
  Costs and Expenses

  	
  20

  
	
   

  	
  Section 12.13

  	
  Prior Claims

  	
  20

  
	
   

  	
  Section 12.14

  	
  Complete Agreement

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Aircraft, Scheduled Delivery Date and
  Purchase Price

  	
   

  
	
  Exhibit B

  	
  Form of Bill of Sale

  	
   

  
	
  Exhibit C

  	
  Form of Acceptance Certificate

  	
   

  
	
  Exhibit D

  	
  Delivery Conditions

  	
   

  



 


ii

















 


AIRCRAFT PURCHASE AND SALE AGREEMENT (MSN 23276)


 


THIS AIRCRAFT PURCHASE AND SALE
AGREEMENT (MSN 23276) (this “Agreement”) is made and entered into as of this 24th day of
February, 2006, by and between WILMINGTON
TRUST COMPANY, a Delaware banking corporation, not in its individual
capacity but solely as owner trustee, with its principal address at Rodney
Square North, 1100 North Market Street, Wilmington, DE 19890 (“Seller”) under that certain Trust Agreement
dated as of December 1, 1986, as supplemented and amended, and HAWAIIAN AIRLINES, INC., a corporation
organized under the laws of the State of Delaware, with its principal address
at 3375 Koapaka Street, Suite G-350, Honolulu, HI 96819 (“Buyer”).


 


WHEREAS, Seller
desires to sell the Aircraft (as hereinafter defined) to Buyer and Buyer
desires to purchase the Aircraft.


 


NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth herein and other
good and valuable consideration, the parties hereto agree as follows:


 


ARTICLE I


 


DEFINITIONS


 


Except where the context otherwise requires, the
following words have the following meanings for all purposes of this Agreement.


 


Section 1.1                                   Defined Terms. As used herein:


 


“Acceptance
Certificate” has the meaning set forth Section 4.4.


 


“Additional Insureds” has the meaning set forth in Section 10.1.


 


“Agreement” has the meaning set forth in the recitals.


 


“Aircraft” has the meaning set
forth in Section 2.1.


 


“Aircraft Documentation” means
all records, logs, manuals and Technical Records relating to the Aircraft which
are in the possession of the Seller on the Delivery Date.


 


“Bill of Sale” has the
meaning set forth in Section 4.3.


 


“Buyer” has the meaning set forth
in the introductory paragraph.


 


“Buyer Claims”
has the meaning set forth in Section 9.2.


 


“Buyer Indemnitees” means each of
the Buyer and its affiliates, officers, directors, agents, subsidiaries,
shareholders, servants, representatives, attorneys, contractors,
subcontractors, successors, assigns and employees.


 


“Casualty Occurrence” has the meaning set forth in Section 8.4.


 

















 


“Claims” means all claims,
damages, losses, liabilities, obligations, penalties and judgments of every
kind and nature, including all costs and expenses, including reasonable
attorneys’ fees and expenses, incident thereto arising out of any act,
omission, event or circumstance occurring in relation to the Aircraft
(including, but not limited to, the airframe and either Engine, any landing
gear, component, equipment and any Part installed thereon, any of the
Aircraft Documentation and any other part, equipment data, or information sold
hereunder).


 


“Delivery” has the meaning set forth in Section 4.3.


 


“Delivery Conditions” has the meaning set forth in Section 5.2(b).


 


“Delivery Date” has the meaning set forth in Section 4.1.


 


“Delivery Location” means the
location set forth in Exhibit A attached hereto or such other location
mutually agreeable to Buyer and Seller.


 


“Delta” means Delta Airlines, Inc.


 


“Deposit” means the amount of One Million United States Dollars
(US$1,000,000).


 


“Engines” means two (2) used
General Electric model CF6-80A2 engines bearing the manufacturer’s serial
numbers set forth in Exhibit A.


 


“Escrow Agent” means Wells Fargo Bank Northwest,
National Association.


 


“Escrow Agreement” has the
meaning set forth in Section 3.2.


 


“Excusable Delays” has the
meaning set forth in Section 8.1.


 


“FAA” means the United States Federal Aviation
Administration.


 


“FAA Bill
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.


 


“Inspection” has the meaning set
forth in Section 5.3(b).


 


“Liens” means any mortgages, pledges, security interests, liens,
claims, encumbrances or other charges or rights of others of any kind.


 


“New York Courts” means the federal
and state courts of New York, New York located in the Borough of Manhattan.


 


“Owner Participant” means
N117DL, LLC.


 


“Parts” means all of the
components, accessories, furnishings, equipment, avionics, APU and parts
installed on, attached to or appurtenant to the Aircraft.


 


“Purchase Price” has the meaning set forth in Exhibit A.


 


2

















 


 “Scheduled
Delivery Date” has
the meaning set forth in Exhibit A.


 


“Seller” has the meaning set
forth the introductory paragraph.


 


“Seller Claims” has the meaning set forth in Section 9.1.


 


“Seller Indemnitees” means each
of the Seller, Wilmington Trust Company, Owner Participant, and, in each case,
any affiliate thereof (including, without limitation, Compass Capital Corporation
and Q Aviation, LLC), and each of their respective officers, directors, agents,
subsidiaries, shareholders, members, partners, managers, servants,
representatives, attorneys, contractors, subcontractors, successors, assigns
and employees.


 


“Seller Parties” means the
Seller, Owner Participant or any of their affiliated, associated or related
entities (including, without limitation, Compass Capital Corporation and Q
Aviation, LLC) and each of their respective officers, directors, agents,
subsidiaries, shareholders, members, partners, managers, servants,
representatives, beneficiaries, attorneys, contractors, subcontractors,
successors, assigns and employees.


 


“Seller Taxes” has the meaning
set forth in Section 7.1.


 


“Taxes” means any and all taxes, including, without limitation,
sales, use, ad valorem and value added taxes, assessments, charges, fees or
duties of any nature whatsoever.


 


“Taxing Authority” means any government or taxing
authority.


 


“Tax Indemnitee” means Seller, Owner Participant
and, in each case, any affiliate thereof (including, without limitation,
Compass Capital Corporation and Q Aviation, LLC), and each of their respective
officers, directors, subsidiaries, shareholders, members, partners, managers,
servants, representatives, attorneys, contractors, subcontractors, successors,
assigns, beneficiaries or agents thereof.


 


“Technical
Records” means all Aircraft and Engine technical and maintenance
records including, but not limited to, current Aircraft Maintenance Manual,
Aircraft Maintenance Records, Illustrated Parts Catalogue, Aircraft Wiring
Manual, Fault Isolation Manual, and Structural Repair Manual.


 


“Walk-Around Inspection” has the
meaning set forth in Section 5.3(b).


 


ARTICLE II


 


PURCHASE
AND SALE OF AIRCRAFT


 


Section 2.1                                   Aircraft
Sale. Pursuant to the terms and subject to the conditions contained in
this Agreement, Seller hereby agrees to sell and deliver (or cause the
delivery) to Buyer, and Buyer hereby agrees to purchase and accept (or cause
the purchase and acceptance) from Seller one (1) used Boeing 767-332
aircraft bearing the U.S. registration number and manufacturer’s serial number
set forth in Exhibit A attached hereto, with the aircraft including
therein two (2) Engines, all Parts, and the Aircraft Documentation
(collectively, the “Aircraft”).


 


3

















 


ARTICLE III


 


PURCHASE
PRICE


 


Section 3.1                                   Purchase
Price of Aircraft. Buyer shall pay to Seller the Purchase Price for the
Aircraft on the Delivery Date and immediately prior to Delivery.


 


Section 3.2                                   Deposit. The Deposit has been
paid into an escrow account with the Escrow Agent pursuant to that certain
Escrow Agreement, dated as of February 13, 2006, among Escrow Agent, Buyer
and Owner Participant (as amended, modified and supplemented from time to time,
the “Escrow Agreement”). The
Deposit shall be non-refundable (except as expressly provided herein). The
Deposit and any interest earned thereon shall be applied to the Purchase Price
on the Delivery Date.


 


Section 3.3                                   Payment Instructions. The
Purchase Price shall be paid by wire transfer of immediately available funds in
United States Dollars to the escrow account created under the Escrow Agreement
on or prior to the Delivery Date, and then disbursed from the escrow account to
the account of Seller as mutually agreed by each of the parties to the Escrow
Agreement on the Delivery Date and immediately prior to Delivery.


 


Section 3.4                                   No
Adjustments. No adjustments will be made to any amount owing hereunder
based on the maintenance status or condition of the Aircraft, the Engines, the
Parts, the Aircraft Documentation or based on any other fact, circumstance or
situation whatsoever, whether contemplated or unforeseeable.


 


ARTICLE IV


 


AIRCRAFT
DELIVERY; TITLE AND RISK OF LOSS


 


Section 4.1                                   Aircraft
Delivery Date. Subject to the terms hereof, Seller will use good faith
reasonable efforts to deliver the Aircraft to Buyer, and Buyer will use good
faith reasonable efforts to accept Delivery of the Aircraft from Seller, on the
Scheduled Delivery Date; provided, however, the Delivery of the
Aircraft may be changed to any business day up to and including March 10,
2006, upon the request of either party, so long as the requesting party is not
in breach of it obligations under this Agreement (the date that Delivery
actually occurs is the “Delivery Date”).
Except in the event of a delay in Delivery permitted under Section 5.3(b) or
Article VIII, if Delivery has not occurred by March 10, 2006 (or such
later date agreed to by Buyer and Seller in writing), then Buyer or Seller
(provided such terminating party is not then in breach of its obligations under
this Agreement) may terminate this Agreement by giving written notice to
the other, and if such election to terminate is made, then termination under
this Section shall terminate and discharge all obligations and liabilities
of Buyer and Seller hereunder. If this Agreement is terminated in accordance
with the immediately preceding sentence, the Deposit (together with interest
accrued thereon) shall be returned to Buyer in accordance with the Escrow
Agreement, unless Buyer is in breach of its obligations under this Agreement at
the time of such termination, in which case the Deposit (together with interest
accrued thereon) shall be delivered to Seller in accordance with the Escrow
Agreement. Except as expressly provided in


 


4

















 


Section 5.3(b) and
Article VIII, the termination provisions set forth in this Section 4.1
are in substitution for any other rights of termination or contract lapse
arising by operation of law by virtue of such delay. 


 


Section 4.2                                   Place
of Delivery of Aircraft. The Aircraft will be delivered to Buyer at the
Delivery Location.


 


Section 4.3                                   Delivery.
For purposes of this Agreement, “Delivery”
shall mean the delivery of possession of the Aircraft to Buyer and the transfer
by Seller to Buyer of its right, title and interest in and to the Aircraft and
the delivery by Seller to Buyer of the bill of sale substantially in the form of
Exhibit B hereto (the “Bill of Sale”),
together with the FAA Bill of Sale. For avoidance of doubt, Buyer and Seller
agree that the FAA Bill of Sale is being delivered solely to record the
conveyance of the Aircraft from Seller to Buyer at the FAA and the warranty in
the FAA Bill of Sale shall be interpreted to be consistent with the warranty
contained in the Bill of Sale.


 


Section 4.4                                   Buyer’s
Acceptance of Aircraft. Prior to the Delivery of the Aircraft, Buyer
shall execute an acceptance certificate in the form set forth in Exhibit C
(the “Acceptance Certificate”) and
no other acknowledgement or receipt of the Aircraft shall be required by Seller
(the Acceptance Certificate being conclusive evidence of Buyer’s satisfaction
or waiver of each of the conditions precedent set forth in Section 5.2
hereof).


 


Section 4.5                                   Title
and Risk of Loss. Except as otherwise provided herein, upon Delivery of
the Aircraft at the Delivery Location, the Delivery of the Bill of Sale and the
FAA Bill of Sale, and the payment of the Purchase Price, title to and risk of
loss or damage to the Aircraft from any cause whatsoever, and exclusive care,
custody and control thereof, will pass to Buyer.


 


ARTICLE V


 


CONDITIONS
PRECEDENT; DELIVERY CONDITIONS


 


Section 5.1                                   Seller’s
Conditions Precedent. Seller’s obligation to tender the Aircraft for
Delivery to Buyer shall be subject to the satisfaction of each of the following
conditions precedent on or prior to the Delivery Date:


 


(a)                                  Buyer
shall have duly authorized, executed, and delivered this Agreement;


 


(b)                                 Seller
shall have received the certificate of insurance and the letter of undertaking
from Buyer’s independent insurance broker evidencing the coverage required
under Article X hereof in form and substance reasonably satisfactory
to Seller;


 


(c)                                  Seller
shall have received a completed and executed sales tax exemption certificate
valid for the Delivery Location in form and substance satisfactory to
Seller.


 


(d)                                 Buyer
shall have accepted the Aircraft, as evidenced by delivery by Buyer to Seller
of the completed and executed Acceptance Certificate;


 


5

















 


(e)                                  Seller
shall have received the Purchase Price; and


 


(f)                                    The
representations given by Buyer shall be true and accurate on the Delivery Date.


 


Section 5.2                                   Buyer’s
Conditions Precedent. Buyer’s obligation to accept Delivery of the
Aircraft and to pay the Purchase Price therefor shall be subject to the
satisfaction of the following conditions precedent on or prior to the Delivery
Date:


 


(a)                                  Seller
shall have duly authorized, executed, and delivered this Agreement;


 


(b)                                 Subject
to Section 5.3(b), Seller shall have tendered the Aircraft for Delivery at
the Delivery Location to Buyer in the conditions specified in Exhibit D
hereto (the “Delivery Conditions”);


 


(c)                                  Seller
shall have tendered to Buyer good and marketable beneficial title to the
Aircraft, free and clear of any Liens of record with the Federal Aviation
Administration, other than Liens arising as a result of or attributable to
Buyer;


 


(d)                                 Seller
shall have executed and delivered the Bill of Sale and the FAA Bill of Sale;


 


(e)                                  Seller
shall have provided Buyer a written opinion of its special FAA counsel,
addressed to Buyer stating that Seller is the FAA-registered owner of the
Aircraft and that the Aircraft is free and clear of all Liens of record with
the Federal Aviation Administration; and


 


(f)                                    The
representations given by Seller shall be true and accurate on the Delivery
Date.


 


Section 5.3                                   Delivery
Conditions; Inspections.


 


(a)                                  Except
as provided in Section 6.3 below and as specified in the Delivery
Conditions, the Aircraft (including the airframe, each Engine, any landing
gear, component equipment and Part installed thereon or appurtenant
thereto, any of the Aircraft Documentation and any other Part, data or information
sold hereunder) will be delivered to Buyer in “AS-IS, WHERE-IS” condition,
subject to the disclaimer and acknowledgment set out in Article VI.


 


(b)                                 Buyer accomplished an inspection (“Inspection”) of
the Aircraft on or about January 20, 2006 and determined that the
condition of the Aircraft is acceptable to Buyer. After the execution of this
Agreement but prior to the Delivery Date at the Delivery Location and at Buyer’s
expense, Buyer may conduct a walk-around inspection (the “Walk-Around Inspection”) to confirm that
the Aircraft is in the same condition as on the date the Inspection was
accomplished, ordinary wear and tear excepted (i.e. has not sustained any
material damage), and if the Aircraft is in such Delivery Condition, Buyer will
execute the Acceptance Certificate; provided, however, if Buyer
determines at the Walk-Around Inspection that the Aircraft does not meet the
foregoing Delivery Condition, upon receiving a written notice and evidence
satisfactory to Seller (in Seller’s reasonable judgment) thereof from Buyer,
Seller may elect to either (i), correct the non-compliant Delivery
Condition at Seller’s expense and delay the Delivery Date by


 


6

















 


up to sixty (60) days or such later date as both parties agree, or (ii) terminate
this Agreement. If Seller elects to terminate this Agreement pursuant to the
foregoing, the Deposit (together with interest accrued thereon) shall be returned to Buyer in accordance with the
Escrow Agreement, whereupon all obligations hereunder shall terminate and be of
no further force and effect. In no event shall Seller be obligated to correct
any non-compliant Delivery Condition nor shall Seller have any liability for
the failure of the Aircraft to be in conformity with the Delivery Conditions.


 


ARTICLE VI


 


SELLER’S
WARRANTIES AND DISCLOSURES


 


Section 6.1                                   SELLER’S
DISCLAIMERS OF WARRANTIES. EXCEPT AS PROVIDED IN SECTION 6.3
BELOW, THE AIRCRAFT (INCLUDING BUT NOT LIMITED TO THE AIRFRAME, EITHER ENGINE,
ANY LANDING GEAR, COMPONENT, EQUIPMENT AND PART INSTALLED THEREON OR
APPURTENANT THERETO, ANY OF THE AIRCRAFT DOCUMENTATION AND ANY OTHER PART, DATA
OR INFORMATION SOLD HEREUNDER) IS SOLD ON AN “AS
IS, WHERE IS” BASIS,
WITH ALL FAULTS AND WITHOUT RECOURSE TO SELLER. THE WARRANTY SET FORTH IN SECTION 6.3
BELOW AND THE OBLIGATIONS AND LIABILITIES OF SELLER THEREUNDER ARE EXPRESSLY IN
LIEU OF, AND SELLER WILL NOT BE DEEMED TO HAVE MADE, AND BUYER HEREBY WAIVES,
ANY AND ALL OTHER REPRESENTATIONS, WARRANTIES, DUTIES, AND GUARANTEES OF ANY
KIND WHATSOEVER, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, CONCERNING THE
AIRCRAFT OR THE AIRWORTHINESS THEREOF (INCLUDING BUT NOT LIMITED TO THE
AIRFRAME, EITHER ENGINE, ANY LANDING GEAR, COMPONENT, EQUIPMENT AND PART INSTALLED
THEREON OR APPURTENANT THERETO, ANY OF THE AIRCRAFT DOCUMENTATION AND ANY OTHER
PART, DATA OR INFORMATION SOLD HEREUNDER) OR THE VALUE, CONDITION, DESIGN,
OPERATION, DURABILITY OR COMPLIANCE WITH SPECIFICATION OF THE AIRCRAFT
(INCLUDING BUT NOT LIMITED TO THE AIRFRAME, EITHER ENGINE, ANY LANDING GEAR,
COMPONENT, EQUIPMENT AND PART INSTALLED THEREON OR APPURTENANT THERETO,
ANY OF THE AIRCRAFT DOCUMENTATION AND ANY OTHER PART, DATA OR INFORMATION SOLD
HEREUNDER), INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR ANY PARTICULAR PURPOSE, AND BUYER HEREBY WAIVES ANY AND ALL
RIGHTS AND REMEDIES IT MAY HAVE AGAINST THE SELLER PARTIES RELATING TO ANY
OF THE FOREGOING AND ARISING BY LAW OR OTHERWISE INCLUDING BUT NOT LIMITED TO
ANY OBLIGATION ARISING FROM THE NEGLIGENCE OF ANY SELLER PARTY OR WITH RESPECT
TO LOSS OF USE, REVENUE OR PROFIT, THE EXISTENCE OF ANY LATENT, INHERENT OR ANY
OTHER DEFECT (WHETHER OR NOT DISCOVERABLE), OR AS TO THE INFRINGEMENT OF ANY
PATENT, COPYRIGHT, DESIGN OR OTHER PROPRIETARY RIGHT, OR OTHER INCIDENTAL OR
CONSEQUENTIAL DAMAGES.


 


Section 6.2                                   SELLER’S
DISCLAIMERS OF PRIOR REPRESENTATIONS AND STATEMENTS. ANY PRIOR
REPRESENTATIONS OR STATEMENTS, WHETHER


 


7

















 


ORAL OR WRITTEN, MADE
BY ANY SELLER PARTY AS TO THE CONDITION OR FITNESS OF THE AIRCRAFT (INCLUDING
BUT NOT LIMITED TO THE AIRFRAME, EITHER ENGINE, ANY LANDING GEAR, COMPONENT,
EQUIPMENT AND PART INSTALLED THEREON OR APPURTENANT THERETO, ANY OF THE
AIRCRAFT DOCUMENTATION AND ANY OTHER PART, DATA OR INFORMATION SOLD HEREUNDER)
OR ITS CAPABILITY OR CAPACITY, ARE SUPERSEDED HEREBY AND ANY SUCH
REPRESENTATIONS OR STATEMENTS NOT SPECIFICALLY SET FORTH IN THIS AGREEMENT ARE
HEREBY WITHDRAWN BY SELLER, IN EACH CASE, ON ITS OWN BEHALF AND ON BEHALF OF
ANY SELLER PARTY WHICH MAY HAVE MADE ANY SUCH REPRESENTATION OR STATEMENT,
SHALL NOT BE APPLICABLE TO THE TRANSACTIONS CONTEMPLATED HEREBY AND ARE OF NO
FURTHER FORCE AND EFFECT, AND BUYER ACKNOWLEDGES THAT BUYER HAS NOT RELIED AND
IS NOT RELYING ON ANY SUCH REPRESENTATION OR STATEMENT.


 


Section 6.3                                   Exceptions
to Seller’s Disclaimers; Seller’s Warranties. Seller hereby represents
and warrants to Buyer that upon Delivery: 
(a) Seller will have good and marketable title to the Aircraft, and
(b) such title thereto will be transferred to Buyer, in full, free and
clear of Liens of record with the Federal Aviation Administration, other than
Liens arising as a result of or attributable to Buyer.


 


Section 6.4                                   Buyer’s
Acknowledgement. BUYER EXPRESSLY AGREES AND ACKNOWLEDGES THAT NONE OF
THE SELLER PARTIES IS THE MANUFACTURER OF THE AIRCRAFT (INCLUDING BUT NOT
LIMITED TO THE AIRFRAME, EITHER ENGINE, ANY LANDING GEAR, COMPONENT, EQUIPMENT
AND PART INSTALLED THEREON OR APPURTENANT THERETO, ANY OF THE AIRCRAFT
DOCUMENTATION AND ANY OTHER PART, DATA OR INFORMATION SOLD HEREUNDER) AND THAT
THE AIRCRAFT (INCLUDING BUT NOT LIMITED TO THE AIRFRAME, EITHER ENGINE, ANY
LANDING GEAR, COMPONENT, EQUIPMENT AND PART INSTALLED THEREON OR
APPURTENANT THERETO, ANY OF THE AIRCRAFT DOCUMENTATION, AND ANY OTHER PART,
DATA OR INFORMATION SOLD HEREUNDER) IS OF A MAKE, SIZE, DESIGN AND CAPACITY
DESIRED BY BUYER FOR THE PURPOSES INTENDED BY BUYER AND IS A USED AIRCRAFT
(INCLUDING BUT NOT LIMITED TO THE USED AIRFRAME, EACH USED ENGINE, EACH USED
LANDING GEAR, USED COMPONENT, EQUIPMENT AND USED PART INSTALLED THEREON OR
APPURTENANT THERETO, ANY OF THE AIRCRAFT DOCUMENTATION AND ANY OTHER USED PART OR
DATA OR INFORMATION SOLD HEREUNDER), AND SUBJECT TO SECTION 6.3, BUYER
CONFIRMS THAT IT HAS NOT, IN ENTERING INTO THIS AGREEMENT, RELIED ON ANY
CONDITION, WARRANTY OR REPRESENTATION BY THE SELLER PARTIES, OR ANY AFFILIATE
OR AGENT THEREOF, EXPRESS OR IMPLIED, WHETHER ARISING BY APPLICABLE LAW OR
OTHERWISE IN RELATION TO THE AIRCRAFT (INCLUDING BUT NOT LIMITED TO THE
AIRFRAME, EITHER ENGINE, ANY LANDING GEAR, COMPONENT, EQUIPMENT AND PART INSTALLED
THEREON OR APPURTENANT THERETO, ANY OF THE AIRCRAFT DOCUMENTATION AND ANY OTHER
PART, DATA OR INFORMATION SOLD HEREUNDER) INCLUDING, WITHOUT LIMITATION,
WARRANTIES OR REPRESENTATIONS AS TO THE DESCRIPTION, QUALITY,


 


8

















 


DURABILITY,
AIRWORTHINESS, MERCHANTABILITY, FITNESS FOR ANY USE OR PURPOSE, VALUE,
CONDITION, DESIGN OR OPERATION OF ANY KIND OR NATURE OF THE AIRCRAFT (INCLUDING
BUT NOT LIMITED TO THE AIRFRAME. EITHER ENGINE, ANY LANDING GEAR, COMPONENT,
EQUIPMENT AND PART INSTALLED THEREON OR APPURTENANT THERETO, ANY OF THE
AIRCRAFT DOCUMENTATION AND ANY OTHER PART, DATA OR INFORMATION SOLD HEREUNDER)
AS TO THE ABSENCE OF ANY LATENT, INHERENT OR ANY OTHER DEFECTS (WHETHER OR NOT
DISCOVERABLE), OR AS TO THE INFRINGEMENT OF ANY PATENT, COPYRIGHT, DESIGN OR
OTHER PROPRIETARY RIGHT; AND THE BENEFIT OF ANY SUCH CONDITION, WARRANTY OR
REPRESENTATION IS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVED BY BUYER. IN
ADDITION BUYER HEREBY EXPRESSLY AGREES AND ACKNOWLEDGES THAT NONE OF THE SELLER
PARTIES SHALL BE LIABLE FOR THE USE, POSSESSION, DISPOSSESSION, RE-POSSESSION,
CONTROL, OPERATION, LOCATION, ANY LANDING, DEPARTURE, CONDITION, ACCEPTANCE,
REJECTION, DELIVERY, NON-DELIVERY, RE-DELIVERY, REGISTRATION, DE-REGISTRATION,
RE-REGISTRATION, SALE, LEASING, WET LEASING, CHARTERING, SUBLEASING,
IMPORTATION, EXPORTATION, TRANSFER OF TITLE OR OTHER DISPOSITION OF TITLE,
ABANDONMENT, STORAGE, MANUFACTURE, MAINTENANCE, SERVICE, REPAIR, OVERHAUL,
TESTING, DESIGN, MODIFICATION, DISMANTLING, DISASSEMBLY OR RE-ASSEMBLY OF THE
AIRCRAFT (INCLUDING BUT NOT LIMITED TO, THE AIRFRAME, EITHER ENGINE, ANY
LANDING GEAR, COMPONENT, EQUIPMENT AND PART INSTALLED THEREON OR
APPURTENANT THERETO, ANY OF THE AIRCRAFT DOCUMENTATION AND ANY OTHER PART,
DATA, OR INFORMATION SOLD HEREUNDER) BY BUYER OR BY ANY THIRD PERSON ON OR
AFTER THE DELIVERY DATE.


 


Section 6.5                                   Waiver
Of Consequential Damages. NO PARTY WILL BE LIABLE TO ANY OTHER FOR, AND
EACH PARTY HEREBY WAIVES AND RELEASES, ANY CLAIMS AGAINST THE OTHER PARTY FOR
ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT
LIMITATION, LOST REVENUES, LOST PROFIT, OR LOSS OF PROSPECTIVE ECONOMIC
ADVANTAGE, RESULTING FROM A PARTY’S PERFORMANCE OR FAILURE TO PERFORM UNDER
THIS AGREEMENT.


 


Section 6.6                                   Assignment
of Manufacturers’ Warranties. Seller hereby assigns, effective as of
the Delivery Date, to Buyer any and all existing assignable warranties, service
life policies, indemnities and patent indemnities of or other rights, remedies
or claims against manufacturers and maintenance and overhaul agencies relating
to the Aircraft and the Engines (in the case of rights, remedies or claims,
only with respect to rights, remedies or claims arising, or based on events,
occurrences and circumstances occurring, on or after the Delivery of the
Aircraft). Seller makes no representation or warranty as to the existence or
assignability of any such rights. Seller hereby further agrees on reasonable
request by Buyer, and at Buyer’s sole cost and expense, to give notice of such
assignment to the manufacturers or any third party supplier or maintenance
provider. Seller also hereby grants to Buyer rights of subrogation relating to
any claim which Seller may have under such warranties concerning the
Aircraft, and


 


9

















 


any Engines or
Parts. Seller shall, at Buyer’s sole cost and expense, execute and deliver appropriate
instruments as Buyer may reasonably request and as may be reasonably
necessary to secure such rights and protection for Buyer.


 


ARTICLE VII


 


TAXES
AND DUTIES


 


Section 7.1                                   Tax
Indemnity. Buyer will pay upon demand, and agrees to indemnify, on an after-tax
basis as described in Section 7.2, each Tax Indemnitee and hold each Tax
Indemnitee harmless from any and all Taxes imposed by any Taxing Authority
other than Seller Taxes, together with any penalties, fines or interest thereon
paid by or required to be paid by a Tax Indemnitee (reduced by any tax credits
or tax savings as a result of tax deductions available to such Tax Indemnitee
as a result of such Taxes, penalties, fines or interest) as a result of the
sale, Delivery or transfer to Buyer under this Agreement of the Aircraft,
either Engine or any Part (including any Aircraft Documentation related
thereto). For purposes of this Article VII, the term “Seller Taxes” shall mean Taxes imposed on
or measured by the gross or net income, profits, capital or gains of such Tax
Indemnitee by any Taxing Authority. If a claim is made against a Tax Indemnitee
for any Taxes for which Buyer has agreed to indemnify under this Article VII,
or for any penalty, fine or interest thereon, such Tax Indemnitee, upon receiving
notice of such claim, will promptly notify Buyer. Failure by such Tax
Indemnitee to so notify Buyer shall not relieve Buyer of its obligations to
indemnify hereunder, in the case of such Tax Indemnitee, except to the extent
Buyer is materially prejudiced by such failure. Seller and Buyer agree to
cooperate to minimize any Tax which might be imposed on each other as the
result of the purchase and sale transaction contemplated hereunder, including
the execution of such forms, certificates and documents as reasonably necessary
to minimize any Taxes which might be imposed.


 


Section 7.2                                   No
Set-Off, etc.


 


(a)                                  All
payments by one party to the other party under or in connection with this
Agreement will be made without set-off or counterclaim, free and clear of and
without deduction for or on account of any Taxes.


 


(b)                                 If
a party is compelled by law to make payment subject to any Tax for which such
party is required to indemnify the receiving party and as a consequence the
receiving party does not actually receive for its own benefit on the due date a
net amount equal to the full amount provided for under this Agreement, the
party making that payment will pay all necessary additional amounts to ensure
receipt by the other party of the full amount so provided for.


 


(c)                                  The
amount which Buyer will be required to pay with respect this Article VII will
be an amount sufficient to restore such Tax Indemnitee to the same position
such Tax Indemnitee would have been had such liability for Taxes subject to
indemnity pursuant to Section 7.1 not been incurred.


 


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Section 7.3                                   Survival.
Notwithstanding any other provision of this Agreement, the obligations of Buyer
and each Tax Indemnitee under this Article VII will survive the
consummation, completion or termination (or any combination of any thereof) of
this Agreement.


 


ARTICLE VIII


 


DELAY
IN PERFORMANCE; LOSS OR DESTRUCTION OF AIRCRAFT


 


Section 8.1                                   Excusable
Delay. No party will be responsible nor deemed to be in default of its
obligation hereunder on account of any delay in the Delivery of the Aircraft
hereunder due to causes reasonably beyond such party’s control and not
occasioned by its intentional acts or gross negligence including, by way of
illustration and not of limitation, acts of God, acts of terrorism, acts of
public enemies or hostilities, war, warlike operations, insurrection, riots,
fires, floods, explosions, earthquakes, epidemics or quarantine restrictions,
civil disturbance, any act of government, allocation regulations or orders
affecting materials, facilities or aircraft, strikes or labor troubles causing
cessation, slow-down or interruption of work, delay in transportation, or due
to any other cause to the extent it is reasonably beyond such party’s control or
not occasioned by such party’s intentional acts or gross negligence. Delays
resulting from any of the foregoing causes are referred to as “Excusable Delays.”


 


Section 8.2                                   Termination
for Excusable Delay. If, due to an Excusable Delay, Delivery of the Aircraft
is delayed more than sixty (60) days beyond March 10, 2006 (or such later
date agreed to by Buyer and Seller in writing) then Buyer or Seller may terminate
this Agreement by giving written notice to the other party at any time after
the expiration of such sixty (60) day period. Termination under this Section shall
terminate and discharge all obligations and liabilities of Buyer and Seller
hereunder and all undelivered items and services hereunder which are related
thereto. Following such termination, the Deposit (together with interest
accrued thereon) shall be returned to Buyer in accordance with the Escrow
Agreement. Except as expressly provided in Section 4.1 and Section 5.3(b),
the termination provisions set forth in this Section 8.2 are in substitution
for any other rights of termination or contract lapse arising by operation of
law by virtue of an Excusable Delay.


 


Section 8.3                                   Loss
or Destruction of Aircraft. If prior to the Delivery thereof, the
Aircraft shall suffer a Casualty Occurrence then this Agreement shall terminate
and neither Seller nor Buyer will have any further obligations to the other
party pursuant to this Agreement. Following such termination, the Deposit
(together with interest accrued thereon) shall be returned to Buyer in accordance with the Escrow Agreement. In
the event that either Engine suffers a Casualty Occurrence prior to the
Delivery of such Engine, then Seller shall have the right (but not the
obligation) to substitute an alternate engine for such Engine that suffered a
Casualty Occurrence provided such alternate engine meets the Delivery
Conditions.


 


Section 8.4                                   Casualty
Occurrence Defined. For purposes of this Agreement, “Casualty Occurrence” shall mean any total
or partial destruction of the Aircraft or either Engine the severity of which (i) materially
affects the operation and utility of the Aircraft or such Engine or (ii) makes
the repair of the Aircraft or such Engine uneconomical, in each case as


 


11

















 


determined by Seller
acting reasonably. Seller agrees to provide written notice of any total or
partial destruction of the Aircraft or either Engine promptly after Seller
becomes aware of such destruction and determines that such destruction
constitutes a Casualty Occurrence pursuant to the provisions hereof.


 


ARTICLE IX


 


INDEMNIFICATION


 


Section 9.1                                   General Indemnity in Favor of Seller.


 


(a)                                  Buyer
will be responsible for and shall indemnify, defend and hold harmless (and, for
a period of two (2) years following the Delivery Date, shall cause any
subsequent lessee or purchaser of the Aircraft to indemnify, defend and hold
harmless) each Seller Indemnitee on an after-tax basis, from and against any
and all Claims which occur after the Delivery (“Seller
Claims”), and which directly or indirectly arise in any manner out
of or in connection with (a) the ownership of the Aircraft (including but
not limited to, the airframe, either Engine, any landing gear, component,
equipment and Part installed thereon or appurtenant thereto, any of the
Aircraft Documentation and any other part, data, or information sold hereunder)
by Buyer or by any third person after the Delivery, or (b) the use,
possession, dispossession, re-possession, control, operation, location, any
landing, departure, condition, acceptance, rejection, Delivery, non-delivery
(but not non-delivery for a reason stated in Article VIII), re-delivery,
registration, de-registration, re-registration, sale, leasing, wet leasing,
chartering, subleasing, importation, exportation, transfer of title or other
disposition of title, abandonment, storage, manufacture, maintenance, service,
repair, overhaul, testing, design, modification, dismantling, disassembly or
re-assembly of the Aircraft (including but not limited to, the airframe, either
Engine, any landing gear, component, equipment and Part installed thereon
or appurtenant thereto, any of the Aircraft Documentation and any other part,
data, or information sold hereunder) by Buyer or by any third person after the
Delivery, or (c) any condition of, or defect in, the Aircraft (including
but not limited to, the airframe, either Engine, any landing gear, component,
equipment and Part installed thereon or appurtenant thereto, any of the
Aircraft Documentation and any other part, data, or information sold
hereunder), or any Seller Claim for patent, trademark or copyright infringement
arising after Delivery. The foregoing indemnity shall apply to all Seller
Claims, regardless of whether any such Seller Claim arises in tort (including,
without limitation, strict liability), under contract or otherwise, provided,
however, that this Section 9.1(a) shall not release any Seller
Indemnitee from liability (i) arising from such Seller Indemnitee’s
willful misconduct, (ii) arising from the breach by such Seller Indemnitee
of any of its obligations under this Agreement (unless such failure is caused
by the failure of Buyer to comply with any of its obligations under this
Agreement) or the breach by such Seller Indemnitee of any representation or
warranty in this Agreement or (iii) which are in the nature of ordinary or
usual operating or overhead expenses of Seller, except to the extent that the
same arise from the occurrence of any breach by Buyer of its obligations under
this Agreement.


 


(b)                                 Buyer
will pay a Seller Indemnitee upon demand for all reasonable expenses (including
without limitation, all reasonable legal and accountants’ fees and
disbursements, and interest) incurred by such Seller Indemnitee in enforcing
such Seller Indemnitee’s rights against


 


12

















 


Buyer under Section 9.1(a).
The aforementioned shall not apply if it is finally adjudicated by a court of
law in accordance with this Agreement that Buyer is not responsible for
indemnifying such Seller Indemnitee under Section 9.1(a). Seller
Indemnitee agrees to use commercially reasonable efforts to mitigate its
expenses incurred in enforcing its rights against Buyer under Section 9.1(a) so
long as Buyer promptly acknowledges and accepts its responsibility thereunder. However,
if Buyer fails to promptly comply with its indemnity obligations under Section 9.1(a),
a Seller Indemnitee’s efforts to mitigate these expenses shall cease.


 


(c)                                  Neither
the consummation of the sale pursuant to this Agreement nor any subsequent
lease, sale or other transfer of the Aircraft (or, as applicable, the airframe
or either Engine, any landing gear, component, equipment or Part thereof
or appurtenant thereto, any of the Aircraft Documentation or any other part,
data, or information sold hereunder) shall release Buyer from its obligations
pursuant to Section 9.1(a) and (b).


 


(d)                                 If
any Seller Claim is made against a Seller Indemnitee, such Seller Indemnitee,
upon receiving notice of such Seller Claim, will promptly notify Buyer;
provided, however, that failure or delay by such Seller Indemnitee to so notify
Buyer shall not relieve Buyer of its obligations to indemnify hereunder except
as to such Seller Indemnitee to the extent Buyer is materially prejudiced by
such failure or delay.


 


Section 9.2                                   General Indemnity in Favor of Buyer.


 


(a)                                  Seller
will be responsible for and shall indemnify, defend and hold harmless each
Buyer Indemnitee on an after-tax basis, from and against any and all Claims
which occur prior to the Delivery (“Buyer
Claims”), and which directly or indirectly arise in any manner out
of or in connection with (a) the ownership of the Aircraft (including but
not limited to, the airframe and either Engine, any landing gear, component,
equipment and any Part installed thereon, any of the Aircraft
Documentation and any other part, data, or information sold hereunder) by
Seller or by any third person prior to the Delivery, or (b) the use,
possession, dispossession, re-possession, control, operation, location,
landing, departure, condition, acceptance, rejection, registration,
de-registration, re-registration, sale, leasing, wet leasing, chartering,
subleasing, importation, exportation, transfer of title or other disposition of
title, abandonment, storage, manufacture, maintenance, service, repair,
overhaul, testing, design, modification, dismantling, disassembly or
re-assembly of the Aircraft (including but not limited to, the airframe and
either Engine, any landing gear, component, equipment and any Part installed
thereon, any of the Aircraft Documentation and any other part, equipment data,
or information sold hereunder) by Seller or by any third person prior to the
Delivery, or (c) any condition of, or defect in, the Aircraft (including
but not limited to, the airframe and either Engine, any landing gear,
component, equipment and Part installed thereon or appurtenant thereto,
any of the Aircraft Documentation and any other part, data, or information sold
hereunder), or any Buyer Claim for patent, trademark or copyright infringement
arising prior to Delivery. The foregoing indemnity shall apply to all Buyer
Claims, regardless of whether any such Buyer Claim arises in tort (including,
without limitation, strict liability), under contract or otherwise, provided,
however, that this Section 9.2(a) shall not release any Buyer
Indemnitee from liability (i) arising from such Buyer Indemnitee’s willful
misconduct, (ii) arising from the breach by such Buyer Indemnitee of any
of its obligations under this Agreement (unless such failure is caused by the
failure of Seller to


 


13

















 


comply with any of
its obligations under this Agreement) or the breach by such Buyer Indemnitee of
any representation or warranty in this Agreement or (iii) which are in the
nature of ordinary or usual operating or overhead expenses of Buyer, except to
the extent that the same arise from the occurrence of any breach by Seller of
its obligations under this Agreement. Notwithstanding anything contained in
this Section 9.2 to the contrary, Seller’s obligations under this Section 9.2
shall in all respects and for all purposes hereof be limited (both in scope of
liability and recovery) solely to the extent that Seller has recourse in
respect of any Buyer Claim to Delta in accordance with the terms of the prior
lease arrangement in respect of the Aircraft between Seller and Delta and only
to the extent that Seller actually recovers such Buyer Claim from Delta in
accordance therewith. In no event shall Seller have any liability under this Section 9.2
in excess of amounts it actually receives from Delta in respect of the related
Buyer Claim.


 


(b)                                 Subject
to the terms of and limitations contained in Section 9.2(a) above,
Seller will pay a Buyer Indemnitee upon demand for all reasonable expenses
(including without limitation, all reasonable legal and accountants’ fees and
disbursements, and interest) incurred by such Buyer Indemnitee in enforcing
such Buyer Indemnitee’s rights against Seller under Section 9.2(a). The
aforementioned shall not apply if it is finally adjudicated by a court of law
in accordance with this Agreement that Seller is not responsible for
indemnifying such Buyer Indemnitee under Section 9.2(a). Buyer Indemnitee
agrees to use commercially reasonable efforts to mitigate its expenses incurred
in enforcing its rights against Seller under Section 9.2(a).


 


(c)                                  Neither
the consummation of the sale pursuant to this Agreement nor any subsequent
lease, sale or other transfer of the Aircraft (or, as applicable, the airframe
or either Engine, any landing gear, component, equipment or Part thereof
or appurtenant thereto, any of the Aircraft Documentation or any other part,
data, or information sold hereunder) shall release Seller from its obligations
pursuant to Section 9.2(a) and (b).


 


(d)                                 If
any Buyer Claim is made against a Buyer Indemnitee, such Buyer Indemnitee, upon
receiving notice of such Buyer Claim, will promptly notify Seller; provided,
however, that failure or delay by such Buyer Indemnitee to so notify Seller
shall not relieve Seller of its obligations to indemnify hereunder except as to
such Buyer Indemnitee to the extent Seller is materially prejudiced by such
failure or delay.


 


Section 9.3                                   Survival.
Notwithstanding any other provision of this Agreement, the obligations of the
parties under this Article IX will survive the consummation, completion,
or termination (or any combination of any thereof) of this Agreement.


 


ARTICLE X


 


INSURANCE


 


Section 10.1                            Insurance
Requirements. Effective upon the Delivery of the Aircraft, and for a
period of not less than two (2) years thereafter, Buyer will at its
expense maintain, or in the alternative, shall cause each subsequent owner
and/or operator and/or lessee of the Aircraft, the airframe, either Engine or
Parts to maintain, with respect to the Aircraft, the airframe, each


 


14

















 


Engine and Parts
(including, without limitation, Parts that have been sold) comprehensive
aviation liability, aviation products liability and contractual liability
insurance including war risk and allied perils insurance (including passengers
and third parties), in an amount not less than the greater of (i) Five
Hundred Million United States Dollars (US$ 500,000,000) per occurrence, and (ii) the
highest amount of such coverage maintained by Buyer on any other aircraft it
owns or operates (as such amount shall be adjusted from time to time). Such
insurance policies shall be issued by insurance carriers of internationally
recognized responsibility reasonably satisfactory to Seller on terms reasonably
satisfactory to Seller and in addition, shall be endorsed:  (a) to name all Seller Indemnitees, and
each of their respective affiliates, subsidiaries, managers, servants,
representatives, attorneys, officers, directors, agents, partners,
shareholders, members, contractors, subcontractors, successors, assigns and
employees, as additional insureds (“Additional
Insureds”) thereunder; (b) to expressly provide that all of the
provisions thereof, except the limits of liability, shall operate in the same
manner as if there were a separate policy covering each insured and shall
waive, any right of subrogation of the insurers against each Additional
Insured; (c) to expressly provide that such insurance shall be primary without
any right of contribution from any other insurance which is carried by any
Additional Insured; (d) to expressly waive any right of the insurers to
set-off or counterclaim or any other deduction, whether by attachment or
otherwise, in respect of any liability of any Additional Insured; (e) to
expressly cover the contractual liability to each of the Additional Insureds
assumed by Buyer in Section 9.1 hereof; (f) to expressly state that
such insurance complies with the terms hereof, that all premiums in connection
with such insurance then due have been paid, and that any such insurance or
waiver may only be cancelled or materially changed in a manner adverse to
the respective Additional Insureds by the giving of thirty (30) days prior
written notice by the insurers, except with respect to war risk coverage, seven
(7) days prior written notice will be given, or if seven (7) days
notice is not available, such lesser period of time as generally being made
available by insurers; and (g) to expressly provide that, in respect of
the respective interests of each Additional Insured in such policies, the
insurance shall not be invalidated by any action or inaction of Buyer or such
other operator or any affiliate thereof (or any director, officer, agent or
employee thereof) or any other third party (other than the Additional Insureds)
and shall insure the respective interests of the Additional Insureds, as they
appear, regardless of any breach or violation of any warranty, declaration or
condition contained in such policies by Buyer or such other operator or any
affiliate thereof (or any director, officer, agent or employee thereof) or any
other third party (other than such Additional Insured). If Buyer maintains hull
insurance covering the Aircraft, Buyer shall use its best efforts to obtain a
waiver of subrogation in favor of the Additional Insureds from its hull
insurers. In the event that Buyer sells or leases the Aircraft within two years
of the Delivery Date, Buyer shall procure that the purchaser or lessee of the
Aircraft shall assume Buyer’s insurance obligations as set out in this Section.


 


Section 10.2                            Broker’s
Certificates. Buyer will furnish (or cause to be furnished) to Seller,
not less than three (3) business days prior to the Delivery Date (and at
least one (1) business day prior to the expiration of any such insurance
contracts), (a) a certificate of insurance addressed to Seller setting
forth the Additional Insureds, the policy numbers, a description of the
Aircraft and Engines (including manufacturer’s serial numbers) and a detailed
description of the coverages, policy forms and endorsements (including the
waiver of subrogation in favor of the Additional Insureds under the hull
insurances) relating to the insurances thereon, and (b) a letter of
undertaking from a broker or the insurers certifying that any such insurance may only
be


 


15

















 


cancelled or
materially changed in a manner adverse to the respective Additional Insureds by
the giving of thirty (30) days prior written notice by the insurers, except
that with respect to war risk coverage, seven (7) days prior written
notice will be given or, if seven (7) days notice is not available, such
lesser period of time as generally being made available by insurers.


 


Section 10.3                            Survival.
Notwithstanding any other provision of this Agreement, the obligations of the
parties under this Article X will survive the consummation, completion, or
termination (or combination of any thereof) of this Agreement.


 


ARTICLE XI


 


REPRESENTATIONS


 


Section 11.1                            Seller’s
Representations. Seller represents and warrants the following to Buyer
as of the date hereof and the Delivery Date:


 


(a)                                  Status.
Seller is a Delaware banking corporation duly organized and validly existing
under the laws of the State of Delaware and federal banking laws of the United
States and has the power to own its property and assets and carry on its
business as it is now being conducted.


 


(b)                                 Power
and Authority. Seller has the power and authority to enter into and perform and
has taken all necessary action to authorize its entry into and performance and
delivery of, this Agreement and the transactions contemplated hereby.


 


(c)                                  Legal
Validity. This Agreement has been duly executed and validly delivered by
Seller and constitutes the legal, valid and binding obligation of Seller
enforceable in accordance with its terms, subject to the effect of the
bankruptcy, insolvency and other similar laws affecting creditors’ rights.


 


(d)                                 Non-conflict
with Laws. So far as concerns Seller (and upon reliance of Buyer’s
representations) the entry into and performance of this Agreement and the
transactions contemplated hereby do not and will not conflict with:


 


(i)                                     any
law or regulation or any official or judicial order governing Seller’s banking
and trust powers;


 


(ii)                                  the
constitutional documents of Seller; or


 


(iii)                               any
agreement or document to which Seller is a party or which is binding upon
Seller or its assets.


 


(e)                                  Consents.
All authorizations, approvals, consents, licenses, exemptions, filings,
registrations, notarizations and other matters official or otherwise applicable
to Seller which are required or advisable in connection with the entry into,
performance, validity and enforceability of this Agreement, Delivery of the Aircraft
hereunder or any of the transactions contemplated have been obtained by Seller.


 


16

















 


(f)                                    Government
Proceedings. There are no pending or, to Seller’s knowledge, threatened
actions or proceedings before any court or administrative agency or arbitrator
that could adversely affect Seller’s ability to perform its obligations
under this Agreement.


 


Section 11.2                            Buyer’s
Representations. Buyer represents and warrants the following to Seller
as of the date hereof and the Delivery Date:


 


(a)                                  Status.
Buyer is a corporation duly organized and validly existing in good standing
under the laws of the State of Delaware and has the power to own its property
and assets and carry on its business as it is now being conducted.


 


(b)                                 Power
and Authority. Buyer has the power and authority to enter into and perform and
has taken all necessary action to authorize the entry into, performance and
delivery of this Agreement and the transactions contemplated hereby and
thereby.


 


(c)                                  No
Financing Contingencies. Buyer has no financing contingencies with regard
to the transactions contemplated herein.


 


(d)                                 Legal
Validity. This Agreement has been duly executed and validly delivered by
Buyer and constitutes the legal, valid and binding obligation of Buyer
enforceable in accordance with its terms, subject to the effect of the
bankruptcy, insolvency and other similar laws affecting creditors’ rights.


 


(e)                                  Non-conflict
with Laws. The entry into and performance of this Agreement and the
transactions contemplated hereby and thereby do not and will not conflict with:


 


(i)                                     any
law or regulation or any official or judicial order applicable to Buyer;


 


(ii)                                  the
constitutional documents of Buyer; or


 


(iii)                               any
agreement or document to which Buyer is a party or which is binding upon Buyer
or any of its assets.


 


(f)                                    Consents.
All authorizations, approvals, consents, licenses, exemptions, filings,
registrations, notarizations and other matters, official or otherwise
applicable to Buyer which are required or advisable in connection with the
entry into, performance, validity and enforceability of this Agreement,
purchase and acceptance of the Aircraft hereunder or any of the transactions
contemplated hereby have been obtained by Buyer.


 


(g)                                 Government
Proceedings. There are no pending or, to Buyer’s knowledge, threatened
actions or proceedings before any court or administrative agency or arbitrator
that could adversely affect Buyer’s ability to perform its obligations
under this Agreement.


 


17

















 


ARTICLE XII


 


MISCELLANEOUS


 


Section 12.1                            Transferability.
No assignment or transfer may be made by any party of all or any of its
rights or obligations in respect of this Agreement without the prior written
consent of the other parties, such consent not to be unreasonably withheld.


 


Section 12.2                            Further
Assurances. Each party agrees from time to time to do and perform 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 the other
party at the other party’s expense (unless otherwise expressly provided
hereunder with respect to such expense) to establish, maintain and protect the
rights and remedies of the other party and carry out and effect the intent and
purpose of this Agreement.


 


Section 12.3                            Notices.


 


(a)                                  All
notices under this Agreement shall be given to the intended recipient at the
address or facsimile number set out on the execution pages of this
Agreement (or such other address or facsimile number as either party may specify
to the other in writing from time to time).


 


(b)                                 Any
communication from one party to the other under this Agreement shall be
effective when actually received and in the case of a communication by
facsimile only if a transmission report is produced by the machine from which
the facsimile was sent indicating that the facsimile was sent in its entirety
to the facsimile number of the recipient notified for the purposes of this
clause, provided that if any communications are received after 5:00 p.m.
(New York time) on any day, the same shall only be effective at the
commencement of business on the next working day.


 


Section 12.4                            Amendment.
No provision of this Agreement may be amended, supplemented, waived,
modified, discharged, terminated or otherwise varied orally, but only by an
instrument in writing that specifically identifies the provision of this
Agreement that it purports to amend, supplement, waive, modify, discharge,
terminate or otherwise vary and is signed by the party against which the
enforcement of the amendment, supplement, waiver, modification, discharge,
termination or variance is sought. Each such amendment, supplement, waiver,
modification, discharge, termination or variance shall be effective only in the
specific instance and for the specific purpose for which it is given.


 


Section 12.5                            No
Waiver. No delay on the part of any party in exercising any of its
rights, powers or privileges under this Agreement shall operate as a waiver
thereof nor shall any single or partial exercise of any right, power or
privilege preclude any other or further exercise thereof, or the exercise of
any other right, power or privilege.


 


Section 12.6                            Confidentiality.
Except to the extent that any of the following is available in the public
domain (other than by reason of an act of either party in violation of this
Agreement), each party shall keep the terms of this Agreement and the
transactions contemplated


 


18

















 


hereby strictly
confidential, and may not disclose any such confidential information
without the prior written consent of the other party, provided that Seller may disclose
this Agreement and the transactions contemplated hereby to the other Seller
Parties, Buyer may disclose this Agreement and the transactions
contemplated hereby to Hawaiian Holdings, Inc., and either party may disclose
this Agreement and the transactions hereby contemplated if required to do so:


 


(i)                                     for
the purpose of legal proceedings, administrative or regulatory requirements or
as otherwise required by law (including, without limitation, by the filing of Form 8K
with the Securities Exchange Commission);


 


(ii)                                  to
effect any registrations, filings or recordations required by or pursuant to
this Agreement;


 


(iii)                               for
the purpose of disclosure to its auditors, its attorneys, insurance brokers or
other professional advisers; or


 


(iv)                              for
the purpose of advising any potential financier of the Aircraft.


 


Section 12.7                            Severability
of Provisions. If any provision of this Agreement is prohibited or
unenforceable in any jurisdiction, such prohibition or unenforceability shall
not invalidate the remaining provisions hereof or affect the validity or
enforceability of such provisions in any other jurisdiction.


 


Section 12.8                            Time
of Essence. The time stipulated in this Agreement for all payments
payable by Buyer to Seller and for the performance of the parties’ other
obligations under this Agreement will be of the essence for this Agreement.


 


Section 12.9                            Counterparts.
This Agreement may be executed in any number of counterparts and all of
such counterparts taken together shall be deemed to constitute one and the same
instrument.


 


Section 12.10                     Governing
Law and Jurisdiction.


 


(a)                                  THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAW).


 


(b)                                 The
parties hereto agree that the New York Courts are to have exclusive
jurisdiction to settle any disputes in connection with this Agreement and any
document related hereto and submit to the exclusive jurisdiction of the New
York Courts in connection with this Agreement. Each party hereto:


 


(i)                                     waives
objection to the New York Courts on grounds of inconvenient forum, venue or
otherwise as regards proceedings in connection with this Agreement; and


 


19

















 


(ii)                                  agrees
that a judgment or order of a New York Court in connection with this Agreement
is conclusive and binding on it and may be enforced against them in the
courts of any other jurisdiction.


 


Section 12.11                     Broker
Fees. Each party agrees to indemnify and hold the other party harmless
from and against any and all claims, suits, damages, costs and expenses
(including, but not limited to, reasonable attorney’s fees) asserted by agents,
brokers or other third parties, representing or allegedly representing such
party, for any commission or compensation of any nature whatsoever based upon
the sale or transfer between Seller and Buyer of the Aircraft. Seller represents
to Buyer that with the exception of Compass Capital Corporation (whose fees
shall be paid by Owner Participant) Seller has not retained or hired any
agents, brokers or other third party, for any commission or compensation of any
nature whatsoever based upon any such sale or transfer by Seller of the
Aircraft. Buyer represents to Seller that with the exception of CIT Capital
Markets (whose fees shall be paid by Buyer) Buyer has not retained or hired any
other agents, brokers or other third party, for any commission or compensation
of any nature whatsoever based upon the sale or transfer between Seller and
Buyer of the Aircraft.


 


Section 12.12                     Costs and
Expenses. Except as otherwise expressly provided herein, each party
will pay its own expenses incurred in connection with this Agreement and the
transactions contemplated hereby, including, without limitation, attorney’s
fees, filing fees, inspection and other consulting fees.


 


Section 12.13                     Prior Claims. Notwithstanding
anything contained herein to the contrary and for the avoidance of doubt, all
claims arising out of Delta’s rejection of the prior lease of the Aircraft
pursuant to Delta’s current bankruptcy proceedings shall be and remain property
and right of Seller.


 


Section 12.14                     Complete
Agreement. This Agreement contains the final and complete integration
of all prior expressions by the parties hereto with respect to the subject
matter hereof and shall constitute the entire agreement among the parties
hereto with respect to the subject matter hereof superseding all prior oral or
written understandings.


 


Section 12.15                     Recourse. Notwithstanding anything contained herein to the contrary,
it is expressly understood and agreed by the parties hereto 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 under the Trust Agreement with
Owner Participant (the “Trust Agreement”),
(b) each of the representations, undertakings and agreements herein made
on the part of the Owner Trustee 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 Estate (as defined
in the Trust Agreement) and (c) under no circumstances shall Wilmington
Trust Company be personally liable for the payment of any indebtedness or
expenses of the Owner Trustee or be liable for the breach or failure of any
obligation , representation, warranty or covenant made or undertaken by the
Owner Trustee under this Agreement or the other related documents.


 


*      *     
*


 


20

















 


IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be executed and delivered as
of the date first above written.


	
   

  	
   

  	
  WILMINGTON TRUST COMPANY,
  not in its

  individual capacity but solely as owner trustee,

  Seller

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   /S/ Tira L. Johnson

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Tira L. Johnson

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Financial Services Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address for Notices: 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Wilmington Trust Company

  Corporate Capital Markets Services Division

  Rodney Square North, 1100 North Market Street

  Wilmington, DE 19890

  Attn: Anita Roselli

  Facsimile: (302) 636-4140

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to Owner Participant: 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  N117DL, LLC

  c/o Q Aviation, LLC

  301 Commerce Street, Suite 3200

  Fort Worth, Texas 76102

  Attn: Business Affairs

  Facsimile: (817) 332-7463

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  HAWAIIAN AIRLINES, INC.,

  Buyer 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   /S/ Mark B. Dunkerley

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Mark B. Dunkerley

  
	
   

  	
   

  	
   

  	
  Title:

  	
  President & CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   /S/
  Peter R. Ingram

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Peter R. Ingram

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive Vice President, CFO &

  Treasurer

  
										



 

















 


	
   

  	
   

  	
  Address for Notices:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  HAWAIIAN AIRLINES, INC.

  3375 Koapaka Street, Suite G-350

  Honolulu, Hawaii 96819

  
	
   

  	
   

  	
  Attn:

  	
  Executive Vice President and

  Chief Financial Officer

  
	
   

  	
   

  	
  Facsimile: (808) 835-3695