PURCHASE AGREEMENT (AIRCRAFT NO. 1) by HAWAIIAN HOLDINGS INC
Company: HAWAIIAN HOLDINGS INC
SEC CIK: 1172222
SEC Type: EX-10.68
SIC Code: 4512
SIC Industry: AIR TRANSPORTATION, SCHEDULED
QuickLinks -- Click here to rapidly navigate through this document
PURCHASE AGREEMENT
(AIRCRAFT NO. 1)
THIS PURCHASE AGREEMENT (AIRCRAFT NO. 1) (this "Agreement") is entered into as of the 14th day of October, 2011, among WILMINGTON TRUST COMPANY, a Delaware trust company, not in its individual capacity, but solely as Owner Trustee (in such capacity, "Purchaser") for the benefit of HKAC LEASING LIMITED, a private Irish limited company ("Owner Participant"), OWNER PARTICIPANT, and HAWAIIAN AIRLINES, INC., a Delaware corporation ("Seller").
WHEREAS, Seller and Airbus S.A.S. ("Airbus") entered into that certain Airbus A330/A350 XWB Purchase Agreement, dated as of January 31, 2008, as amended from time to time (the "Airbus Purchase Agreement"), pursuant to which Seller, as purchaser thereunder, has agreed to purchase from Airbus, as seller thereunder, certain Airbus aircraft and related goods and services including, among other things, the Aircraft (as hereinafter defined);
WHEREAS, Seller wishes to assign to Purchaser, on the terms and conditions set forth herein, Seller's right to accept delivery of, purchase and take title to the Aircraft and the Airframe Warranties under the Airbus Purchase Agreement and the Engine Warranties under the TCA (collectively, the "Assigned Property");
WHEREAS, in consideration of the assignment to Purchaser of the Assigned Property, Purchaser is willing to assume Seller's obligation to pay the Purchase Price with respect to the Aircraft to Airbus under the Airbus Purchase Agreement on the terms and subject to the conditions set forth herein; and
WHEREAS, concurrent with the assignment of the Assigned Property and the payment of the Purchase Price to Airbus, Purchaser shall lease the Aircraft to Seller, and Seller shall lease the Aircraft from Purchaser subject to the terms of the Operating Lease Agreement (Aircraft No. 1) among Purchaser, as lessor, Seller, as lessee, and Owner Participant, as owner participant, to be entered into concurrently herewith substantially in the form attached as Exhibit A hereto (the "Lease Agreement").
NOW, THEREFORE, in consideration of the mutual covenants, agreements, representations and warranties herein contained, Owner Participant, Seller and Purchaser agree as follows:
Section 1. Definitions. In this Agreement, unless the contrary intention is stated, a reference to: (i) words importing the plural shall include the singular and vice versa; and (ii) any document shall include that document as amended, novated, assigned, or supplemented. Capitalized terms used but not defined in this Agreement shall have the meaning ascribed to them in the Lease Agreement (as hereinafter defined).
"Acceptance Certificate" means a certificate of acceptance for the Aircraft in the form attached as Schedule 2 to the Purchase Agreement Assignment.
"Agreement" has the meaning set forth in the preamble.
"Airbus" has the meaning set forth in the preamble.
"Airbus Consent" means the consent and agreement among Seller, Purchaser and Airbus to be entered into on or about the Delivery Date, in substantially the form attached as Schedule 3 to the Purchase Agreement Assignment.
"Airbus Purchase Agreement" has the meaning set forth in the preamble.
"Aircraft" means, collectively, the Airframe and the Engines attached thereto, as more fully described in the Acceptance Certificate [**], together where the context permits, references to the "Aircraft" shall include a separate reference to the Airframe, all Engines, Parts, components and systems thereof, the equipment installed thereon including but not limited to the BFE, and the Maintenance Manuals and Technical Records. For the avoidance of doubt, the Aircraft excludes the LDMCR, title to which shall be retained by Seller, provided that the LDMCR shall be installed on the Aircraft at Delivery.
[**]—Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
[Purchase Agreement]
"Airframe" means: (a) the Airbus A330-200 airframe more fully described in the Acceptance Certificate; (b) any and all Parts incorporated or installed in or attached to such airframe at Delivery; and (c) the BFE, if any.
"Airframe Warranties" means the warranty rights in respect of the Airframe given by Airbus to Seller pursuant to [**] the Airbus Purchase Agreement, as are and remain available on Delivery Date, a true, correct and complete copy of which shall be attached to the Airbus Consent and which comprises all of the assignable warranty rights in respect of the Airframe given to Seller.
"Assigned Property" has the meaning set forth in the preamble.
"Delivery" means the delivery of (a) title to the Aircraft from Airbus to Purchaser pursuant to the Purchase Agreement Assignment and (b) possession of the Aircraft from Purchaser to Seller in accordance with the terms and conditions of the Lease Agreement.
"Delivery Date" means the date of Delivery.
"Delivery Location" has the meaning set forth in Section 4.
"Engine" means each of the Rolls-Royce Trent Model 772B-60 EP engines more fully described in the Acceptance Certificate and any and all Parts incorporated or installed in or attached to such Engine at Delivery.
"Engine Warranties" means the warranty rights in respect of the Engines given by Rolls-Royce to Seller pursuant to [**] the TCA.
"Lease Agreement" has the meaning set forth in the preamble.
"Owner Participant" has the meaning set forth in the preamble.
"Person" means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Government Entity or other entity of whatever nature.
"Purchase Agreement Assignment" means the aircraft purchase agreement assignment between Seller and Purchaser to be entered into after the date hereof, in substantially the form attached as Exhibit B hereto.
"Purchaser" has the meaning set forth in the preamble.
"Purchase Price" has the meaning set forth on Schedule 1 attached hereto.
"Related Airbus Consent" means the consent and agreement among Seller, Purchaser or an Affiliate of Purchaser and Airbus, to be dated on or prior to the Delivery Date, in substantially the form attached as Schedule 3 to each Related Purchase Agreement Assignment.
"Related Aircraft" means the two Airbus A330-200 model aircraft, together with the two Rolls-Royce Trent 772B-60 engines to be installed thereon at delivery thereof, to be purchased by Seller under the Airbus Purchase Agreement [**] and which purchase rights are being assigned to Purchaser or an Affiliate of Purchaser concurrently herewith pursuant to the Related Purchase Agreements.
"Related Lease Agreements" means each of the lease agreements executed concurrently herewith between Seller, as lessee, and Purchaser or an Affiliate of Purchaser, as lessor, and Owner Participant or an Affiliate of Owner Participant, as owner participant, in respect of the Related Aircraft.
[**]—Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
2
[Purchase Agreement]
"Related Purchase Agreement" means each of the purchase agreements executed concurrently herewith between Seller, as seller, Purchaser or an Affiliate of Purchaser, as purchaser, Owner Participant or an Affiliate of Owner Participant, as owner participant, in respect of the Related Aircraft.
"Related Purchase Agreement Assignment" means each of the purchase agreement assignments to be entered into after the date hereof among Seller, as assignor, Purchaser or an Affiliate of Purchaser, as assignee, and Owner Participant or an Affiliate of Owner Participant, as owner participant, in respect of the Related Aircraft.
"Rolls-Royce" means Rolls-Royce plc.
"Seller" has the meaning set forth in the preamble.
"Warranties" means the Airframe Warranties and the Engine Warranties.
Section 2. Sale and Purchase of the Aircraft. Subject to the terms and conditions hereof, on the Delivery Date (a) Seller agrees to (i) assign to Purchaser the Assigned Property pursuant to the Purchase Agreement Assignment and (ii) lease from Purchaser the Aircraft pursuant to the Lease Agreement and (b) Purchaser agrees to (i) purchase the Assigned Property and pay the Purchase Price to Airbus with respect to the Aircraft and accept the assignment of Warranties from Seller and (ii) lease the Aircraft to Seller pursuant to the Lease Agreement.
Section 3. Consideration for the Sale. At Delivery, in consideration for Seller's assignment of the Assigned Property to Purchaser pursuant to the Purchase Agreement Assignment and Seller's lease of the Aircraft from Purchaser pursuant to the Lease Agreement as contemplated in Section 2 hereof (subject to the satisfaction or written waiver by the Purchaser of the conditions precedent set forth in Section 9 hereof), Purchaser shall pay to Airbus at such account as Airbus or Seller shall advise to Purchaser in writing no less than two Business Days prior to Delivery, the Purchase Price in full for the Assigned Property.
Section 4. Delivery. Delivery shall take place in Toulouse, France (the "Delivery Location") on the Delivery Date.
4.01 Condition. The Aircraft shall be delivered to the Purchaser hereunder factory new from Airbus in the Airbus Aircraft Specification and in accordance with Schedule 1 to the Lease Agreement and evidence thereof (or waiver thereof by Purchaser) shall be conclusively demonstrated by Purchaser's execution of the Lease Supplement and Seller's execution of the Acceptance Certificate (as Purchaser's agent pursuant to the Purchase Agreement Assignment) on the Delivery Date (subject to any discrepancies that Airbus, Seller and Purchaser agree are inconsistent with the requirements of the Airbus Purchase Agreement and this Agreement and are listed by Seller and Airbus in the Acceptance Certificate and by Seller and Purchaser in the schedule to the Lease Supplement for correction by the Airbus subsequent to delivery of the Aircraft). Seller shall use commercially reasonable efforts to cause Airbus to permit Purchaser or its authorized representatives to observe Airbus' technical acceptance process for the Aircraft and to attend and observe the acceptance tests and inspections of the Aircraft contemplated by the Airbus Purchase Agreement.
[**]—Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
3
[Purchase Agreement]
4.02 Obligation to Purchase. Purchaser's obligation to purchase the Assigned Property is subject to and expressly conditions upon, Seller satisfying all of its obligations under the Lease Agreement other than accepting Delivery of the Aircraft from Purchaser on the Delivery Date under the Lease Agreement (which acceptance shall be taken to occur simultaneously with such Delivery).
4.03 Event of Loss. If an Event of Loss with respect to the Aircraft occurs prior to the Scheduled Delivery Date, Seller will notify Purchaser promptly following receipt of notice from Airbus and, unless Airbus has notified Seller of a new Delivery Date that is before the Longstop Date, this Agreement shall automatically terminate whereupon neither party will have any further liability to the other except that Purchaser will return to Seller the Security Deposit or Security Deposit LC (if previously paid or delivered to Purchaser), as applicable, in accordance with Section 5.5(b) of the Lease Agreement and any prepaid Rent, in each case, without deduction for any costs and expenses. If after an Event of Loss with respect to the Aircraft prior to Delivery, Airbus advises Lessee of a new Scheduled Delivery Date prior to the Longstop Date, such new date shall be the Scheduled Delivery Date and this Agreement shall continue in full force and effect.
4.04 Default Prior to Delivery. If, prior to the Delivery Date, (a) any of Purchaser, Owner Participant or their respective Affiliates shall default on any of its obligations under a Related Purchase Agreement, Related Purchase Agreement Assignment or a Related Lease Agreement, including, without limitation, their obligation to purchase the applicable Related Aircraft from Airbus or to lease the applicable Related Aircraft to Seller, then Seller may terminate this Agreement and each other Operative Document immediately upon providing written notice to Purchaser, (b) Airbus terminates the Airbus Purchase Agreement in its entirety or with respect to the Aircraft, then Seller may terminate this Agreement and each other Operative Document immediately upon providing written notice to Purchaser, or (c) if (i) a Lease Default under Section 10.1(a) of a Related Lease Agreement has occurred, (ii) a Lease Event of Default has occurred under any Related Lease Agreement, (iii) Seller fails to take delivery of a Related Aircraft in breach of the terms hereof and of the applicable Related Lease Agreement after such Related Aircraft has been tendered for delivery in accordance with the terms thereof, or (iv) Purchaser terminates the Lease Agreement for any other reason in accordance with the terms thereof, then Purchaser may terminate this Agreement and each other Operative Document immediately upon providing written notice to Seller.
4.05 Insolvency Event Termination. In the event that Airbus ceases to do business or commences any process of liquidating all or substantially all of its assets and Seller terminates the Airbus Purchase Agreement in its entirety or with respect to the Aircraft in accordance with the terms thereof, then either Seller or Purchaser may terminate this Agreement and all other Operative Documents by written notice to the other whereupon none of the parties will have any further liability to the other except that Purchaser will return to Seller the Security Deposit or Security Deposit LC (if previously paid or delivered to Purchaser), as applicable, in accordance with Section 5.5(b) of the Lease Agreement and any prepaid Rent, in each case, without deduction for any costs and expenses.
Section 5. Representations and Warranties of Seller. Seller represents and warrants to Purchaser and Owner Participant, as of the date hereof and as of Delivery, as follows:
5.01 Ownership. Seller is the sole legal and beneficial owner of the Assigned Property.
[**]—Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
4
[Purchase Agreement]
5.02 No Liens. There are no Liens over and Seller will not create or allow to subsist any Lien over the whole or any part of the Assigned Property other than in accordance with this Agreement or the other Operative Documents and the Assigned Property is free and clear of all Liens other than Lessor Liens.
5.03 Warranties. The Warranties are in full force and effect and are enforceable in accordance with their terms and at Delivery (i) there will be annexed to the Airbus Consent a true correct and complete copy of the Airframe Warranties and (ii) Seller will, or will cause Rolls-Royce to, deliver a true correct and complete copy of the Engine Warranties to Purchaser.
5.04 Airbus Purchase Agreement. The Airbus Purchase Agreement is in full force and effect and is enforceable in accordance with its terms, and neither Seller, nor to Seller's knowledge, Airbus is in default under the Airbus Purchase Agreement.
Section 6. Seller Covenants. Seller covenants to Purchaser and Owner Participant as follows:
6.01 No Amendment or Termination. Seller has not and will not enter into any agreement with Airbus which would substantially amend, modify, rescind or terminate the Airbus Purchase Agreement in respect of the Aircraft without the prior written consent of Purchaser, including any change to the Scheduled Delivery Month, other than to order additional parts, equipment or furnishings for the Aircraft that would not materially affect the marketability, value or utility of the Aircraft.
6.02 Performance. Seller has performed and will perform all of its duties and obligations under the Airbus Purchase Agreement (other than with respect to the payment of the Purchase Price).
6.03 Closing. Seller shall use all reasonable efforts to fulfill or obtain the fulfillment of conditions set forth herein as they relate to Seller on or prior to the Delivery Date.
6.04 No Amendment of Warranties. Seller will not amend or consent to any amendment of the Warranties without the prior written consent of Purchaser.
Section 7. Representations and Warranties of Purchaser. Purchaser represents and warrants to Seller, as of the date hereof and as of Delivery, as follows:
7.01 Sophisticated Investor. Purchaser (i) is a sophisticated entity with respect to the purchase of the Aircraft or is being advised by such a Person, (ii) is able to bear the economic risk associated with the purchase of the Aircraft, (iii) has such knowledge and experience, and has made investments of a similar nature, so as to be aware of the risks and uncertainties inherent in the purchase of rights and assumption of liabilities of the type contemplated in this Agreement or is being advised by a Person with such knowledge and experience, and (iv) has independently and without reliance upon Seller, and based on such information as Purchaser has deemed appropriate, made its own analysis and decision to enter into this Agreement, except that Purchaser has relied upon Seller's express representations, warranties, covenants, agreements and indemnities in this Agreement. Purchaser acknowledges that Seller has not given Purchaser any investment advice, credit information or opinion on whether the purchase of the Aircraft is prudent.
[**]—Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
5
[Purchase Agreement]
7.02 No Breach. Upon execution of the Purchase Agreement Assignment, Purchaser will not be in breach of its obligations thereunder.
Section 8. Purchaser Covenants. Purchaser covenants to Seller as follows:
8.01 Prospective International Interests. Purchaser shall not (and shall not permit any Financier or Security Trustee to) register any interests in the Airframe or any Engine at the International Registry prior to Delivery of the Aircraft.
8.02 Closing. Purchaser shall use all reasonable efforts to fulfill or obtain the fulfillment of conditions set forth herein as they relate to Purchaser on or prior to the applicable Delivery Date.
Section 9. Conditions Precedent to the Obligation of Purchaser to Purchase the Aircraft. The obligation of Purchaser to purchase the Assigned Property and pay the Purchase Price to Airbus on the Delivery Date is subject to the fulfillment on or prior to Delivery of the following conditions, any one or more of which may be waived by Purchaser in writing:
9.01 Representations, Warranties and Covenants. The representations and warranties of Seller contained in this Agreement shall be true in all material respects on and as of Delivery with the same force and effect as though made on such date (except to the extent that such representations and warranties relate solely to an earlier date). Seller shall have performed and complied in all material respects with all covenants and agreements required by this Agreement to be performed or complied with by Seller, on or prior to Delivery.
9.02 Delivery of Documents. The following documents shall have been delivered to Purchaser:
(a) a copy of the Acceptance Certificate, executed by Seller, as agent for Purchaser pursuant to the Purchase Agreement Assignment;
(b) a copy of the Engine Warranties, certified by an officer of Seller as being a true, correct and complete copy of such Engine Warranties; and
(c) all other agreements, instruments, certificates and other documents reasonably requested by Purchaser prior to Delivery to effect the transactions contemplated by this Agreement.
9.03 Liens. The Aircraft shall be free and clear of all Liens other than Lessor Liens.
9.04 Airbus Purchase Agreement. All conditions precedent under the Airbus Purchase Agreement and the Purchase Agreement Assignment (other than the payment of the Purchase Price to Airbus) to Airbus' obligation to deliver title to the Aircraft to Purchaser, including the payment of any pre-delivery payments required in respect of the Aircraft, shall have been satisfied and Purchaser shall have received evidence satisfactory to it that all such conditions precedent have been satisfied.
9.05 Lease Agreement. All conditions precedent to Purchaser's obligation to the lease of the Aircraft to Seller under the Lease Agreement shall have been satisfied or waived or deferred by Purchaser in its discretion.
9.06 Delivery. Airbus shall have tendered the Aircraft for Delivery at the Delivery Location in the condition required under the Airbus Purchase Agreement and Lease Agreement.
[**]—Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
6
[Purchase Agreement]
Section 10. Conditions Precedent to the Obligation of Seller to Close. The obligation of Seller to assign the Assigned Property to Purchaser pursuant to this Agreement and the Purchase Agreement Assignment is subject to the fulfillment on or prior to Delivery of the following conditions, any one or more of which may be waived by Seller in writing:
10.01 Representations, Warranties and Covenants. The representations and warranties of Purchaser contained in this Agreement shall be true in all material respects on and as of Delivery with the same force and effect as though made on such date (except to the extent that such representations and warranties relate solely to an earlier date). Purchaser and Owner Participant shall
