EXHIBIT 6-4 DRAFT - - THAI Aircraft Trading · · 2015-04-30ordinary course of business; ... (two) PW4168 engines bearing Manufacturer’s Serial Numbers P733307 and P733329 respectively

EXHIBIT 6-4

USED AIRCRAFT PURCHASE AGREEMENT (HS-TEM)

E6-4 USED AIRCRAFT PURCHASE AGREEMENT / A330-321 HS-TEM / 16 APR 15 1 of 21

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THIS USED AIRCRAFT PURCHASE AGREEMENT is made this __________, 2015 BY and

BETWEEN:

(1) THAI AIRWAYS INTERNATIONAL PUBLIC COMPANY LIMITED, a public limited

company organized and existing under the laws of Thailand, whose registered office is located

at 89 Vibhavadi Rangsit Road, Bangkok 10900, Thailand (hereinafter referred to as “Seller”);

and

(2) _____________, a company incorporated under the laws of _____________and having a

place of business located at _______________ (hereinafter referred to as “Buyer”).

The Seller and the Buyer hereinafter collective referred to as the “Parties” or each a “Party”.

WHEREAS:

A. Seller is the owner of Airbus A330-321 with THAI aircraft registration, HS-TEM and bearing

Manufacturer’s Serial Number 346 being a used aircraft (“Used Aircraft”); and

B. Seller and Buyer have entered into that certain Memorandum of Understanding dated

__________, 2015 (“MOU”) relating to the purchase by Buyer and the sale by Seller of the

Used Aircraft; and

C. Seller as the owner of the Used Aircraft has the right to sell the Used Aircraft and Buyer has

the right to purchase the Used Aircraft; and

D. Seller is willing to sell and Buyer desires to purchase the Used Aircraft on and subject to the

terms and conditions set out in this Agreement.

IT IS HEREBY AGREED as follows:

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this Agreement (including the Recitals and Appendices), the following expressions

shall have, except where the context otherwise requires, the respective meanings show

opposite them:

“Agreement” or “UAPA” shall mean this Used Aircraft Purchase Agreement together with all Appendices hereto as originally executed and as varied, amended, supplemented or modified from time to time;

“Aircraft” shall mean the Used Aircraft including without limitation the Parts and the Aircraft Documentation but not including the remaining jet fuel on board;

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“Aircraft Documentation”

shall mean aircraft documents as specified in Appendix C;

“Business Day(s)” shall mean a Day(s), other than a Saturday and Sunday which banks are open for business in Bangkok and Singapore;

“Day(s)” shall mean calendar day(s);

“Default” shall mean the material breach or non-compliance with any provision of this Agreement;

“Delivery” shall mean the delivery of the title to and possession of the Used Aircraft Package by Seller to Buyer at the Delivery Location in accordance with the provisions of this Agreement;

“Delivery Date” shall mean day of or the date on which Delivery takes place or another date which is rescheduled as a result of Force Majeure as contemplated by Clause 5.9, provided that such date (a) is not a Saturday or Sunday or other day on which banking institutions in Bangkok and Singapore, are authorized or required by Law to be closed and (b) is a Day on which the DCA is open for de-registration of the Used Aircraft upon Delivery by Seller to Buyer at the Delivery Location;

“Delivery Location” shall mean the aircraft facility at Don Mueang (DMK) or Suvarnabhumi (BKK) or U-Tapao (UTP) International Airport, Thailand;

“DCA” shall mean the Department of Civil Aviation of the Ministry of Transport of the Kingdom of Thailand and any successor thereto under the laws of the Kingdom of Thailand;

“EASA” shall mean the European Aviation Safety Agency;

“Engines” shall mean the engines installed on the Used Aircraft on the Delivery Date and which are identified in Clause 2.2.1 and Appendix A;

“Eurocontrol” shall mean the Central Route Charges Office of the Eurocontrol Organisation;

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

“Force Majeure” shall mean acts of God or public enemy, civil war, insurrection or riots, fire, flood, explosion, earthquake, accident, epidemic, quarantine restriction, any act of government, governmental priority, allocation, regulation or order affecting the Used Aircraft Package, strike or labour dispute causing cessation, slow down or interruption of work or any other cause to the extent that such cause is beyond the reasonable control of Seller or Buyer whether mentioned above or not;

“Governing Law” shall mean the laws of England;

“Governmental Entity” shall mean and include:

(a) Any state or territory or political sub-division thereof; and

(b) Any authority, board, commission, department, division,

organization, institution, court, tribunal or agency of any of

those entities specified in paragraph (a) above;

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“Law” shall mean and include:

(a) Any common or customary law;

(b) Any statute, decree, constitution, judicial decision,

legislation, ordinance, regulation, order , or other legislative

measure of any Governmental Entity;

(c) Any present or future directive, regulation, request or

requirement (in each case, whether or not having the force of

law) the non-compliance with which would have a material

adverse effect on the Parties’ ability to perform their

obligations hereunder; and

(d) Any treaty, pact, compact or other agreement to which any

Governmental Entity is a party;

“Lien” shall mean any mortgage, pledge, duties, taxes, bankruptcies, lien, security interest, lease or other charge, claim or encumbrance including liens of any airport, hanger keeper, mechanic, material man, carrier or employee, claims or charges relating to landing fees or any other services provided by airport or air traffic control authorities such as Eurocontrol, or other similar lien arising in the ordinary course of business;

“Maintenance Program” or “Seller’s Maintenance Program”

shall mean the maintenance program to which the Used Aircraft has been subject during its ownership or operation by Seller;

“Memorandum of Understanding”

shall mean that certain Memorandum of Understanding dated __________, 2015, between Seller and Buyer;

“Month(s)” shall mean successive periods of 30 (thirty) Days;

“Other Reasons” shall mean reasons other than Force Majeure relating to, arising from or in connection with the correction of technical defects or deficiencies in the condition of the Used Aircraft and/or operational problems with the Used Aircraft as specified in writing by Buyer resulting from Buyer’s Technical Inspection;

“Parties” shall mean Seller and Buyer collectively;

“Parts” shall mean the parts specified in Clause 2.2.2;

“Party” shall mean Seller or Buyer;

“Person” shall mean and include any individual, corporation, partnership, firm, joint venture, trust, unincorporated organization, association, Governmental Entity or organization or association of which any thereof is a member or participant and in each case whether having distinct legal personality or not;

“Purchase Price” shall mean the purchase price agreed to be paid by Buyer and agreed to accept by Seller for the purchase of the Used Aircraft Package which is specified in Clause 6;

“Seller’s Account” shall mean Seller’s bank account specified in Clause 7.2;

“Technical Acceptance” shall mean the Buyer’s issuance of acceptance of the Used Aircraft Package pursuant to Clause 4 hereof;

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“Technical Acceptance Date”

shall mean the date on or before the Delivery Date, or another date (a) to which Technical Acceptance is rescheduled as a result of Other Reasons as contemplated by Clause 5.8 or of Force Majeure as contemplated by Clause 5.9 or (b) as is mutually agreed upon in writing by the Parties;

“Technical Acceptance Location”

shall mean the Seller’s facility at Don Mueang (DMK) or Suvarnabhumi (BKK) or U-Tapao (UTP) International Airport, Thailand where Seller parked the Aircraft for Delivery;

“Thai Taxes” shall mean all taxes, duties, levies, imposts, fees, assessments and charges levied, imposed, assessed or charged by the Kingdom of Thailand or any political subdivision thereof;

“Used Aircraft” shall mean that certain used aircraft identified in Clause 2 and Appendix A including the Engines and Parts;

“Used Aircraft Documents”

shall mean the items identified in Clause 2.2. and Appendix C;

“Used Aircraft Package” shall mean the Used Aircraft and its Used Aircraft Documents;

“Year(s)” shall mean any period (s) of 12 (twelve) consecutive Months.

1.2 Interpretation

Except where the context otherwise requires, references in this Agreement to:

(a) Clause, paragraphs, sub-paragraphs or Appendices are, unless otherwise specified,

references to clauses, paragraphs and sub-paragraphs of, and Appendices to, this

Agreement;

(b) Any statute or other legislative provision shall be read to include any statutory or

legislative modification or re-enactment thereof, or any substitution therefore;

(c) “Seller” includes any successor in title or any permitted assignee or transferee;

(d) “Buyer” includes any successor in title or any permitted assignee or transferee; and

(e) The masculine gender shall include the feminine and neuter and the singular

number shall include the plural and vice versa.

1.3 Headings

Clause and other headings contained in this Agreement are for ease of reference only and

shall not be taken into account in the construction or interpretation of any provision to

which they refer.

2. SUBJECT MATTER OF SALE

2.1 Seller shall sell and deliver to Buyer, and Buyer shall purchase from Seller that certain

Used Aircraft with THAI aircraft registration and bearing Manufacturer’s Serial Number

as follows:

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THAI aircraft registration: HS-TEM

Manufacturer’s Serial Number: 346

2.2 Together with the Used Aircraft Package shall include the following:

2.2.1 2 (two) PW4168 engines bearing Manufacturer’s Serial Numbers P733307 and

P733329 respectively and all equipment, accessories, parts and other properties

installed on or appurtenant to such engines (together, the “Engines”);

2.2.2 All equipment, accessories, parts and other properties installed on the Used

Aircraft according to aircraft component list (“Parts”); but not including

remaining jet fuel on board and;

2.2.3 Aircraft Documentation as specified in Appendix C.

3. REPRESENTATIONS AND WARRANTIES

3.1 Representations and Warranties of Seller

Seller acknowledges that Buyer has entered into this Agreement in full reliance on

representations made by Seller on the following terms and Seller now covenants,

represents and warrants to Buyer that the following statements are at the date hereof, and

on the Delivery Date will be true and accurate:

3.1.1 Seller is organized and existing as a public limited company with limited liability

under the laws of the Kingdom of Thailand and has power to conduct its business

as presently conducted, to own its assets, and to enter into and perform its

obligations under this Agreement;

3.1.2 the Memorandum and Articles of Association and other constitutional documents

of Seller incorporate provisions which authorize, and all necessary corporate

action has been taken and all necessary governmental and other necessary

approvals have been obtained to authorize Seller to sign and deliver this

Agreement and to perform and comply with its obligations hereunder, and neither

the execution and delivery of this Agreement nor will the performance of the

transactions contemplated hereby nor compliance by Seller with any of the terms

and provisions hereof contravene any Law by which Seller is bound or subject or

contravene the constitutional documents of the Seller;

3.1.3 this Agreement has been duly entered into and delivered by Seller and constitutes

the valid, legal and binding obligations of Seller enforceable in accordance with

its terms;

3.1.4 Seller is subject to the laws of the Kingdom of Thailand and is not entitled to

immunity form suit, legal or other proceedings as a result of sovereign immunity

and Seller’s choice of English law and submission to the jurisdiction of the

English courts is valid and binding upon it and will be recognized and enforced

by the courts of Thailand;

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3.1.5 Seller is and on Delivery Date will be the legal and beneficial owner of the Used

Aircraft Package free of all Liens and as at Delivery, Seller will have full right,

title and authority to transfer such title to the Used Aircraft Package to Buyer

with full title guarantee; and

3.1.6 the officer executing this Agreement has the authority to execute this Agreement

and bind Seller.

3.2 Representations and Warranties of Buyer

Buyer acknowledges that Seller has entered into this Agreement in full reliance on

representations made by Buyer on the following terms and Buyer now covenants,

represents and warrants to Seller that the following statements are at the date hereof, and

on the Delivery Date will be, true and accurate:

3.2.1 Buyer is a limited liability company duly organized in accordance with the laws

of the ________________ and has the corporate power and authority to carry on

its business as presently conducted and to perform its obligations under this

Agreement;

3.2.2 the documents which contain or establish Buyer’s constitution incorporate

provisions which authorize, and all necessary corporate action on the part of

Buyer has been taken and all necessary governmental and other necessary

approvals have been obtained to authorize Buyer to sign and deliver this

Agreement and to perform its obligations hereunder, and neither the execution

and delivery of this Agreement nor the performance of the transactions

contemplated hereby nor compliance by Buyer with any of the terms and

provisions hereof will contravene any Law by which Buyer is bound or subject;

3.2.3 this Agreement has been duly entered into and delivered by Buyer and constitutes

the valid, legal and binding obligations of Buyer enforceable in accordance with

its terms; and

3.2.4 the officer executing this Agreement has the authority to execute this Agreement

and bind Buyer.

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4. TECHNICAL ACCEPTANCE AND DELIVERY

Technical Acceptance

4.1 Not earlier than 14 (fourteen) Days and not later than 10 (ten) Days prior to the Delivery

Date for the Used Aircraft, Buyer shall commence an inspection of the Used Aircraft for

Technical Acceptance at the Delivery Location.

The inspection will cover:

- Aircraft Inspection without engines and APU run

- Documentation Review

The inspection will be performed in accordance with the Aircraft Maintenance Manual

(“AMM”).

Seller will correct any defects or deficiencies made apparent during the ground inspection

due to the inconsistency with which defect or deficiency is inconsistent with the condition

of the Aircraft specified in Clause 8. Time consumed for the correction(s) of any defects

or deficiencies including but not limited to the time period for repaired and/or

replacement of unserviceable component(s)/part(s) and inspection shall not consider

being any causes of default on delay in delivery of the Used Aircraft. The Parties will

negotiate in good faith to conclude and specify the delivery date for the Used Aircraft.

Any other requirements will be subject to mutual agreement and additional charge.

4.2 Upon the completion of that required by Clauses 4.1 hereof, Buyer shall indicate and

confirm its unconditional and irrevocable written acceptance of the physical, technical

condition of the Used Aircraft Package as in conformity for purchase under this

Agreement without any reservation by execution and delivery to Seller at the Technical

Acceptance Location of the Technical Acceptance Certificate substantially in the form set

out in Appendix D-1 (“Technical Acceptance Certificate”).

4.3 All risk of defect or deficiency in the Used Aircraft Package and of damage to the Used

Aircraft Package arising from any defect or deficiency (other than as may be covered by

Seller’s insurance) will pass from Seller to Buyer upon Technical Acceptance. Upon and

subsequent to Technical Acceptance and at all times thereafter: (a) Seller shall not in any

way whatsoever or howsoever arising be liable for, and shall have no obligation to

remedy or correct, any defect or deficiency in the Used Aircraft Package or any damage

to the Used Aircraft Package arising from any defect or deficiency (other than as may be

covered by Seller’s insurance), and (b) Buyer shall not have any recourse whatsoever or

howsoever arising against Seller for any defect or deficiency in the Used Aircraft Package

or any damage to the Used Aircraft Package arising from any defect or deficiency.

Days mean calendar days.

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5. Delivery

5.1 Title to and possession of the Used Aircraft Package shall be delivered by Seller and

accepted by Buyer for the purposes of this Agreement on the Delivery Date at the

Delivery Location.

5.2 Each of Seller’s obligation hereunder (including without limitation, to sell the Used

Aircraft Package and to transfer title thereto on the Delivery Date), shall be subject to the

fulfillment of the conditions precedent specified in Appendix E-1, in each case in a form

and substance reasonably acceptable to Seller (“Seller’s Conditions Precedent”). Each of

Buyer’s obligations hereunder (including without limitation to purchase the Used Aircraft

Package) shall be subject to the fulfillment of the conditions precedent specified in

Appendix E-2 each in a form and substance reasonably acceptable to Buyer (“Buyer’s

Conditions Precedent”).

5.3 Subject to the fulfillment of Seller’s Conditions Precedent, Buyer shall remit the Purchase

Price Balance to the Seller. Upon Seller’s receipt of the notice of transfer of funds from

the Buyer, Seller shall release a duly executed Bill of Sale substantially in the form of

Appendix B (“Warranty Bill of Sale”)

5.4 Subject to the fulfillment of Buyer's Conditions Precedent, on or prior to the Delivery

Date and contemporaneous with payment of the Purchase Price Balance, Buyer shall

indicate and confirm its unconditional and irrevocable acceptance of title to the Used

Aircraft Package under this Agreement without any reservation by execution and delivery

to Seller at the Delivery Location of the Delivery Acceptance Certificate substantially in

the form set out in Appendix D-2. Buyer shall, if not otherwise agreed by Seller in

writing, accept delivery of the Used Aircraft and title thereto from Seller within 30

(thirty) Days of the execution of this UAPA.

5.5 Title to and risk of loss to the Used Aircraft Package will pass from Seller to Buyer after

the fulfillment of those conditions set forth in Clause 5.2 and upon receipt by Seller of all

payment for the Used Aircraft and the delivery by Seller to Buyer of the Warranty Bill of

Sale of the said aircraft, as specified in Clause 5.4.

5.6 Seller shall require the DCA to de-register Seller as owner of the Used Aircraft and Buyer

shall be responsible for the Aircraft to be registered simultaneously. Seller will neither be

liable for any deferment nor delay by Buyer.

5.7 In the event that this UAPA is terminated for any reason whatsoever, Buyer shall have no

right or any vested interest of whatsoever nature or however arising to claim title,

ownership or lien of or to the Used Aircraft or any part thereof. Until such time as legal

title to each Used Aircraft has been transferred to Buyer, Seller shall have authority to

retain and/or operate all or any part thereof.

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Delay in Delivery - Other Reasons

5.8 Any delay by Seller in delivering the Used Aircraft Package to Buyer not more than 10

(ten) Days from the issuance of the Technical Acceptance Certificate for Other Reasons

shall not constitute Default by Seller.

Delay in Delivery - Force Majeure

5.9 Seller shall have no responsibility or liability for any failure to comply with any of its

obligations under this Agreement including to transfer title to the Used Aircraft Package

or any part thereof on the initially scheduled Delivery Date due to the occurrence of an

event of Force Majeure. Upon the occurrence of an event of Force Majeure, Seller shall

promptly notify Buyer of the circumstances thereof and shall use its reasonable endeavors

to avoid the consequences of such event of Force Majeure. Save as is otherwise provided

in this Agreement, Buyer shall not be entitled to terminate this Agreement or refuse to

accept the transfer of title to the Used Aircraft Package or any part thereof when tendered

by Seller as a consequence of any delay due to the occurrence of an event of

Force Majeure. If, however, as a result of Force Majeure Seller is unable to comply with

any of its obligations under this Agreement including to transfer title to the Used Aircraft

Package or any part thereof to Buyer within 30 (thirty) Days of the initially scheduled

Delivery Date, Buyer shall be entitled, by notice in writing to Seller, to terminate its

obligation to purchase the Used Aircraft Package from Seller. Any right to terminate its

obligations to purchase the Used Aircraft Package under this Clause 5.9 shall constitute

Buyer's sole right in the event of any failure of Seller to comply with any of its

obligations under this Agreement including but not limited to transferring title to the Used

Aircraft as a result of the consequences of Force Majeure, provided that in the event of

such termination pursuant to this Clause 5.9 Seller shall return the Deposit to Buyer

without interest.

Default in Delivery

5.10 Subject to the provisions of this Clause 5, if Buyer (a) fails to comply with any of Buyer’s

obligations under this Agreement, including the execution and delivery of the Technical

Acceptance Certificate to the Seller on the Technical Acceptance Date at the Technical

Acceptance Location and the Used Aircraft is presented for acceptance in the condition

specified in Clause 8 (or as may have been modified in accordance with Clause 4.1), or

(b) fails to accept Delivery of the Used Aircraft Package or any part thereof when

tendered for delivery by Seller according to the agreed Delivery Date or (c) fails to

deliver those items specified in Appendix E-1 on the due date for delivery thereof, any

one or more of such shall constitute a Default.

Subject to the provisions of this Clause 5, if Seller fails to (aa) fulfill any of its

obligations under this Agreement, and (bb) transfer title to the Used Aircraft Package or

any part thereof in accordance with the terms of this Agreement, and (cc) comply with all

of the conditions specified in Appendix E-2 on the due date for delivery or waiver by

Buyer thereof, such shall constitute a Default.

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5.11 If Seller terminates this Agreement due to Default by Buyer, Buyer shall have no right

nor any vested interest of whatsoever nature and howsoever arising to claim title,

ownership or Lien of or to the Used Aircraft Package or any part thereof unless and until

title to the Used Aircraft Package has been transferred to Buyer, provided that Buyer shall

retain the right to take action against the Seller for any Default on the part of Seller.

6. PURCHASE PRICE

The Purchase Price for the Used Aircraft Package to be paid to Seller by Buyer is

USD ____________ (____________ United States Dollars).

7. PAYMENT CONDITIONS

7.1 Payment of the Purchase Price shall be made in accordance with the following:

7.1.1 Buyer has paid to Seller by money transfer, the amount of USD ____________

(____________ United States Dollars) as a deposit (“the Deposit”) for the

purchase of the Used Aircraft Package; and

7.1.2 On the Delivery Date immediately prior to Delivery and the transfer of title to the

Used Aircraft Package, (but only after Technical Acceptance), Buyer shall pay or

remit in cleared funds to Seller's Account, the amount of USD ____________

(____________ United States Dollars) being the remaining balance of the

Purchase Price ("Purchase Price Balance")

7.2 Payment of the Purchase Price (comprising the Deposit and Purchase Price Balance)

above constitutes the full price without any deduction or withholding whether in respect

of set-off, counterclaim duties, taxes charges or otherwise whatsoever and howsoever

arising (other than Thai Taxes) including but not limited to duties, taxes or any other

charges imposed by any Governmental Entity or any other Person and shall therefore be

made in full without any reduction whatsoever in the agreed Purchase Price.

The details of Seller's Account are as follows:

BANK NAME: CITIBANK, N.A. / SINGAPORE BRANCH

BANK ADDRESS: 8 MARINA VIEW # 16-01

ASIASQUARE TOWER 1

SINGAPORE 018960

ACCOUNT No.: 0-010964-032

ACCOUNT NAME: THAI AIRWAYS INTERNATIONAL PUBLIC

COMPANY LIMITED

TELEX: RS 24584 CITIBANK SIN

SWIFT CODE: CITISGSG

PHONE: (65) 6224-2622

FACSIMILE: (65) 6657-5775

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Or other accounts as stipulated by Seller in writing. All bank charges, expenses and any

other administrative costs arising in relation to the telegraphic transfer shall be borne by

Buyer.

7.3 The payment in full by Buyer of all payments due and payable pursuant to this

Agreement including but not limited to the Purchase Price (comprising the Deposit and

the Purchase Price Balance), shall be made on their respective due dates and the timely

payment thereof shall be considered of the essence in this Agreement. Buyer shall not be

entitled to seek any extension of time or enlargement of the period specified for the

respective payments for any reason whatsoever otherwise than with the consent of Seller

or any Default attributable to Seller. Other than in the instance of Default attributable to

Seller, in the event that payment of the Purchase Price (comprising the Deposit and the

Purchase Price Balance) specified in Clause 7.1, is not paid upon the due date for

payment in full, such shall constitute Default on the part of Buyer whereupon this

Agreement shall automatically terminate unless Seller issues a notice in writing to Buyer

specifying otherwise.

In case of delay payment for which the cause is not due to Force Majeure, Buyer agrees

to compensate to Seller due to such a failure on actual cost basis and interest fee upon

demand on the portion of deficit amount until full payment is paid.

7.4 All prices and payments specified in this Agreement, including but not limited to the

Purchase Price (comprising the Deposit and the Purchase Price Balance) are in United

States Dollars. Buyer shall comply with all applicable monetary and exchange control

regulations and shall obtain any necessary authority from any Governmental Entity or

other Person administering such regulations (other than applicable monetary or exchange

control regulations, and any necessary authority from and Governmental Entity or other

person administering such regulations within the Kingdom of Thailand) in order to enable

Buyer to make payments at the time and place and in the manner specified herein.

In the event that Buyer is prevented by reason of Force Majeure from performing its

obligations pursuant to this Agreement, Buyer shall promptly notify Seller of the

circumstances thereof and shall use its best endeavors to avoid the consequences of such

event of Force Majeure. If Buyer fails to perform its obligations under this Agreement for

a period exceeding 30 (thirty) Days by reason of Force Majeure, Seller shall be entitled

by notice in writing to Buyer, to terminate this Agreement. In the event of such

termination pursuant to this Clause 7.4, Seller shall return the Deposit to Buyer without

interest, and such termination will discharge all obligations and liabilities of Seller and

Buyer with respect to this Agreement.

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8. DELIVERY CONDITION

At the time of Delivery to Buyer, Used Aircraft will be in the conditions as per Terms of

Reference and Aircraft Specification and Additional Information as attached in Appendix A.

In case of any requirement by Buyer to have the Aircraft be delivered in the condition or under

the terms other than described and agreed upon under this UAPA which include but not be

limited to maintenance work, ferry flight or de-registration, Buyer will address such the

requirement no later than the agreed Delivery Date. Buyer agrees that Seller is neither obligated

to perform such the services nor serve for the required deviation, and if so agreed, there will be

a separate terms and conditions. A written document will be executed after a quotation from

Seller is accepted by Buyer.

9. WARRANTY; DISCLAIMER; RELEASE; INDEMNITIES

9.1 Seller warrants to Buyer that it has good title to the Used Aircraft Package and that such

is free and clear of all Liens whatsoever as of the Delivery Date.

9.2 Except as otherwise expressly provided in Clause 8 hereof, the Used Aircraft Package,

including the Engines, Parts, Used Aircraft Documents and/or other items delivered by

Seller to Buyer under this Agreement are sold to Buyer on an “As-Is, Where-Is”

condition and the warranty of title set forth in Clause 9.1 hereof is exclusive of and in

substitution for, and Buyer hereby waives, releases and renounces: (i) any and all other

warranties, obligations and liabilities of Seller, express or implied, arising by Law or

otherwise, with respect to the Used Aircraft Package including the Engine, Parts, Used

Aircraft Documents and/or other items delivered by Seller to Buyer under this

Agreement; and (ii) any and all rights, claims and remedies of Buyer against Seller,

express or implied, arising by Law or otherwise, with respect to any nonconformance or

defect in the Used Aircraft Package, including the Engines, Parts, Used Aircraft

Documents and/or any other items delivered by Seller to Buyer under this Agreement,

and with respect to any other matter arising under or by virtue of this Agreement.

9.3 Upon and subsequent to Delivery and at all times thereafter, as the case may be, Buyer

agrees to assume liability for, defend, pay and indemnify, and hold harmless Seller and

Seller’s successors and assigns, subsidiaries, affiliates, agents, directors, offices and

employees (“Seller Indemnitees”) from and against any and all claims, liabilities, suits,

damages, losses, judgments, penalties, fines, or indemnity payments of whatsoever kind

and nature, including costs and expenses incident thereto, which may be asserted against,

suffered by, charged to or recoverable from the Seller Indemnitees by reason of injury to

or death of any person, or loss of or damage to any property of any Person, party or entity

arising out of or in any way connected with Buyer’s ownership, possession, use,

maintenance, repair, sale, lease, license, transfer or any grant of physical control or

custody to any Person, party or entity of the Used Aircraft Package, including the

Engines, Parts, Used Aircraft Documents and/or any other items delivered by Seller to

Buyer under this Agreement, whether or not arising in tort or occasioned in whole or in

part by the fault or negligence of the Seller Indemnitees.

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9.4 The Used Aircraft Package will be delivered to Buyer at the Delivery Location in

whatever condition it is in subject to the provisions of Clause 8 (or as may have been

modified in accordance with Clause 4.1) on the Delivery Date.

9.5 The Delivery of Used Aircraft Package to Buyer in accordance with the terms of this

Agreement shall fully discharge Seller’s obligations under this Agreement.

10. TERMINATION

This Agreement may be terminated in the circumstances set out below:

10.1 Mutual Agreement:

Upon the mutual written agreement of the Parties hereto, this Agreement may be

terminated at any time.

10.2 Default by Buyer:

10.2.1 Except in the event of Buyer’s Default with respect to the payment of the Deposit

or the Purchase Price Balance as specified in Clause 7.3 or any payment by Buyer

to Seller under this Agreement in which case this Agreement shall automatically

terminate, if Buyer defaults pursuant to the provisions of this Agreement, Seller

may at its option terminate this Agreement by delivery of a notice in writing to

Buyer; and

10.2.2 If prior to Delivery, Buyer defaults pursuant to Clause 10.2.1 and/or Clause 7.3 of

any other UAPA, Seller may at its option terminate this Agreement by the

delivery of a notice in writing to Buyer.

10.2.3 If Buyer defaults pursuant to Clause 5.10 and this Agreement has not been

terminated by Seller, Seller shall be unconditionally and irrevocably entitled to

keep the full amount of the Deposit for its own account and benefit. In addition to

the above, Buyer agrees to reimburse or compensate Seller of all costs and

expenses for loss and/or damages incurred to Seller for such late acceptance

delivery of the Used Aircraft Package and/or late taking of the Used Aircraft

Package by Buyer including but not limited to parking fee, maintenance costs,

preservation costs, aircraft storage costs and/or other expenses.

10.2.4 Following the occurrence of an default of Buyer which is continuing under any of

the other agreement(s) signed between Seller and Buyer, in addition to all rights

and remedies of Seller elsewhere in the UAPA (s) or under Law, Seller may

immediately or at any time thereafter, without notice to Buyer use, apply or retain

all or part of the Deposit in or towards the payment or discharge of any matured

obligation owed by Buyer under the UAPA or any other Agreement(s), in such

order as Seller sees fit, and/or exercise any of the rights of set off against all or

part of the Deposit.

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10.3 Default By Seller:

If Seller defaults pursuant to the provisions of this UAPA, Buyer may at its option

terminate this Agreement by delivery of a notice in writing to Seller; and

10.4 Force Majeure:

If either Party is prevented by reason of Force Majeure from performing its obligations

pursuant to this Agreement for a period exceeding 30 (thirty) Days, the non-affected

Party may at its option, terminate this Agreement by delivery of a notice in writing to the

affected Party.

10.5 Other Reasons:

If Seller is prevented by Other Reasons from delivering the Used Aircraft Package to

Buyer not more than 10 (ten) Days from the issuance of the Technical Acceptance

Certificate, Buyer may at its option, terminate this UAPA by delivery of a notice in

writing to Seller.

In case the Used Aircraft does not meet the conditions described in this UAPA during the

delivery process due to causes beyond Seller’s controls, Seller reserves the right to

terminate this UAPA with no liabilities.

10.6 Used Aircraft Package Lost or Destroyed:

If prior to Delivery, the Used Aircraft Package is lost or destroyed due to any cause, this

UAPA shall automatically terminate.

11. EFFECT OF TERMINATION

11.1 In the event that this UAPA is terminated pursuant to Clause 10.1, Clause 10.4, Clause

10.5 or Clause 10.6, Seller shall return the Deposit to Buyer without interest. Such

termination will discharge all obligations and liabilities of the Parties with respect to this

Agreement.

11.2 In the event that this UAPA is terminated pursuant to Clause 10.2, Seller shall be entitled

to keep the Deposit for its own account and benefit. Seller shall be entitled to any and all

remedies available to it at law or in equity, including the remedy of injunctive relief and

specific performance.

11.3 In the event that this UAPA is terminated pursuant to Clause 10.3, Buyer shall be entitled

to any and all remedies available to it at law or in equity, including the return of its

Deposit and Letter of Credit (if any) and the remedy of injunctive relief and specific

performance.

11.4 Any termination of this UAPA howsoever caused shall not affect any rights or liabilities

of Seller or Buyer which have accrued prior to the date of termination.

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12. TAXES AND CUSTOMS DUTIES

12.1 Buyer shall be responsible for and shall pay, and shall indemnify and hold Seller harmless

from, all taxes, duties, levies, imposts, fees, assessments and charges of any nature,

levied, imposed, assessed or charged by any Governmental Entity in the countries other

than Thailand, imposed upon Seller as a consequence of the Purchase Price Balance being

paid to Seller’s Account other than taxes imposed upon the net income of Seller.

12.2 Subject to Clause 12.3, Buyer shall be responsible for and shall pay all taxes, duties,

levies, imposts, fees, assessments and charges of any nature, levied, imposed, assessed or

charged by any Governmental Entity, imposed upon Buyer as a consequence of any

transaction pursuant hereto or contemplated by this Agreement other than Thai Taxes.

12.3 Except for any event of Force Majeure, Buyer irrevocably and unconditionally undertakes

to physically export the Used Aircraft or any of the Used Aircraft components and/or

parts and/or the disposal outside of Thailand and obtain customs clearance therefore

within 30 (thirty) Days of the Delivery Date. In the event that Buyer fails to physically

export any Used Aircraft or any of the Used Aircraft components and/or parts and/or the

disposal outside of Thailand and obtain customs clearance thereof within 30 (thirty) Days

of the Delivery Date. Seller shall collect from Buyer and Buyer shall pay to Seller

immediately upon demand, in addition to the Purchase Price for such Used Aircraft, the

Value Added Tax (VAT) in an amount equal to the currently imposed rate of 7% (seven

percent) of that portion of the Purchase Price allocated in this Agreement to the goods

remaining within Thailand. It is further agreed that should the VAT rate be changed, still

Buyer will pay for the total amount of VAT as accordingly applicable.

12.4 Buyer shall be responsible for and shall pay, and shall indemnify and hold Seller harmless

from, all taxes, duties, levies, imposts, fees, assessments and charges of any nature,

levied, imposed, assessed or charged by any Governmental Entity in Thailand imposed

upon Seller as a consequence of the Purchase Price Balance being paid to Seller’s

Account other than taxes imposed upon the net income of Seller.

12.5 Seller shall be responsible for and shall pay, and shall indemnify and hold Buyer harmless

from, all levies, imposts, fees, assessments, claims and charges of any nature, levied,

imposed, assessed or charged by any Person authorized to collect such landing and

navigation fees or charges on the Used Aircraft arising prior to Delivery.

12.6 Buyer agrees that all amounts payable to Seller under this Agreement shall be made free

and clear of and without deduction for any and all taxes, levies, imposts, duties, charges,

withholdings or deductions of any kind whatsoever. If Buyer is required by any

Governmental Entity to deduct or withhold any sums from any of the amount payable to

Seller hereunder, the amount payable shall be increased by such amount so that the net

amount received by Seller after the required deduction or withholding would equal the

amount Seller would have received had no such deduction or withholding been made.

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12.7 The Parties agree to use their best efforts to minimize any tax liability in respect of any

transaction pursuant hereto or contemplated by this Agreement. Each Party hereto shall

be responsible for and shall pay all taxes, duties, levies, imposts, fees, assessments and

charges of any nature, levied, imposed, assessed or charged by any governmental

authority, agency or body imposed upon such Party in connection with or as a

consequence of any transaction pursuant hereto or contemplated by this Agreement.

12.8 Buyer shall have to pay to Seller prior to delivery of the Used Aircraft all additional costs

and expenses incurred by Seller arising from or in connection with the request by Buyer

on the Used Aircraft which are not contemplated or beyond the scope of this UAPA.

13. RESTRICTIVE COVENANTS

13.1 Buyer hereby represents, warrants, undertakes and covenants not to sell, lease, license or

grant physical control or custody of the Used Aircraft, Engines, Parts, Used Aircraft

Documents or any other item sold, delivered or provided by Seller to Buyer pursuant to

this Agreement, in violation of any import/export or transfer of technology restrictions

imposed by any Laws and or regulations by which Seller is legally bound of which Buyer

has been notified by Seller or of which Buyer should otherwise reasonably be aware.

13.2 Seller shall assume no liability whatsoever for any sale, leased, licensing or granting of

physical control or custody of the Used Aircraft, Engines, Parts, Used Aircraft

Documents and / or any other items sold, delivered or provided by Seller to Buyer

pursuant to this Agreements in violation of any import/export of transfer of technology

restrictions imposed by any Laws or regulations by which Seller is legally bound of

which Buyer has been notified by Seller or of which Buyer should otherwise reasonably

be aware, and Buyer agrees to assume liability for, defend, pay and indemnify, and hold

harmless Seller from and against breach of the negative covenant set out in Clause 13.1

hereof.

14. MANUFACTURER’S AND SUPPLIER’S WARRANTIES

Seller hereby assigns and agrees to assign absolutely and with full title guarantee to Buyer with

effect from the time title to the Used Aircraft Package is transferred from Seller to Buyer

pursuant to this Agreement all applicable manufacturer’s, supplier’s, repairer’s and maintenance

contractor’s warranties which have been given or assigned to Seller or the benefit of which

Seller is otherwise entitled, to the extent that such are existing in respect of the Used Aircraft

Package or any part thereof at the time title to the Used Aircraft Package is transferred from

Seller to Buyer and which are capable of being assigned. For the avoidance of doubt, Buyer’s

rights under this Clause 14 may be assigned. Seller shall give Buyer reasonable aid and

assistance in enforcing the rights of Buyer arising under such warranties and any such

warranties held by Seller that are not assigned to Buyer because they are non-assignable;

provided, that Buyer shall reimburse Seller for any reasonable and verified expenses actually

incurred and paid by Seller in rendering such aid and assistance; and from time to time, upon the

request of Buyer, Seller shall notify any such manufacturers and maintenance and overhaul

agencies of the assignment of such warranties to Buyer.

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15. NOTICES

All notices and other communications hereunder shall be in writing and in the English language

and shall be deemed to have been duly given: when delivered by courier or messenger during

normal business hours of the recipient; when sent, if transmitted by facsimile transmission

(receipt confirmed) during normal business hours of the recipient; or on the seventh day

following mailing, if mailed by certified or registered airmail, in each case addressed as follows:

If to Seller: Thai Airways International Public Company Limited,

89 Vibhavadi Rangsit Road,

Bangkok 10900,

Thailand

Attention:

Flg. Off. Suwatchai Suwanmaitree

Director of Engineering Department (BKKTE)

Technical Department Telephone: +66 (0) 2137-6200

Mobile: +66 (0) 8 9519-1285

Facsimile: +66 (0) 2137-6940

E-mail: [email protected]

If to Buyer: ………………………………………………

………………………………………………

………………………………………………

………………………………………………

Attention:

……………………………………………… ……………………………………………… Telephone: …………………………………

Mobile: …………………………………

Facsimile: …………………………………

E-mail: …………………………………

Each Party shall be obliged to send a communication to the other Party hereto in accordance

with this Clause 15 notifying of any changes in the relevant details set out in this Clause 15,

which details shall then be deemed to have been amended accordingly. Such communication

notifying of the changes shall be issued within 7 (seven) Days of such change.

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16. NO THIRD PARTY BENEFICIARIES

This Agreement will inure to the exclusive benefit of and be binding upon the Parties hereto and

their respective successors and permitted assigns. Nothing in this Agreement, express or

implied is intended to confer on any Person other than the Parties hereto and their respective

successors and permitted assigns, any right, remedies, obligations or liabilities under or by

reason of this Agreement. For the avoidance of doubt, Seller’s warranty of title to be given in

the Warranty Bill of Sale will extend to Buyer’s successors or assigns.

17. ASSIGNMENT

This Agreement will inure to the benefit and be binding upon each of the Parties hereto and

their respective successors and permitted assigns. The rights and the obligations of any Party

under this Agreement may be assigned, novated, delegated or transferred in whole or in part

with the prior written consent of the other Party which consent shall not be unreasonably

withheld.

18. CUMULATIVE RIGHTS AND NON WAIVER

The rights of the Parties under this Agreement are cumulative and may be exercised as the

Parties consider appropriate and are in addition to their respective rights under the Governing

Law.

The failure of any Party hereto, at any time, to require performance by the other Party of any

provision of this Agreement shall not be construed as a waiver of any right under this

Agreement unless such waiver is expressly given in writing.

19. SEVERABILITY

If any provision (or provisions) of this Agreement is deemed illegal, invalid or unenforceable,

such illegality, invalidity, or unenforceability shall not affect the legality, validity and

enforceability of any part of this Agreement, which shall be construed as if such illegal, invalid

or unenforceable provision (or provisions) had not been inserted in this Agreement, unless the

severability of such illegal, invalid or unenforceable provision would destroy the underlying

business purposes of this Agreement in which case the Parties shall negotiate in good faith to

substitute such illegal, invalid or unenforceable provision (or provisions) with a legal, valid and

enforceable provision (or provisions) which carries out the original intent of the Parties.

20. COSTS AND EXPENSES

Except as otherwise expressly provided in this Agreement, each Party hereto shall be

responsible for and shall pay any costs and expenses incurred by such Party in connection with

or as a consequence of any transaction pursuant to this Agreement or contemplated by this

Agreement, including but not limited to legal costs and expenses.

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21. GOVERNING LAW

This Agreement shall be governed by and construed and interpreted in accordance with the

Governing Law.

22. DISPUTES

22.1 The Parties hereby submit to the non-exclusive jurisdiction of the courts of England as

regards any dispute, claim or matter arising under this Agreement.

22.2 Seller hereby designates and appoints General Manager, London, whose office is located

at 41 Albemarle Street, London W1S 4BF as its authorized agent for service of process in

England in respect of any suit or proceeding with respect to this Agreement.

22.3 Buyer hereby designates and appoints ______________________________________

______________________________________________________________________

______________________________________________________________________

______________________________________________________________________

as its authorized agent for service of process in England in respect of any suit or

proceeding with respect to this Agreement.

22.4 Seller and Buyer shall be obliged to send a communication to Seller in accordance with

Clause 15 notifying of any changes in the relevant details set out in Clauses 22.2 or 22.3

as the case may be, which details shall then be deemed to have been amended

accordingly. Such communication notifying of the changes shall be issued not less than

21 (twenty one) Days prior to such change.

23. CONFIDENTIALITY

The Parties agree to use commercially reasonable efforts to maintain strict confidentiality with

respect to this Agreement (including the Purchase Price) and not to discuss it with any other

party or make any public announcement with respect to it without the other Party’s prior written

consent, except to the extent: (a) required by Law; (b) required by existing contractual

obligations; (c) reported to any securities exchange, regulatory agency, or other Governmental

Entity to which any of the Parties is subject or submits, wherever situated, including, without

limitation, the DCA, Stock Exchange of Thailand and the Securities and Exchange Commission

of Thailand; (d) disclosed to the legal counsel, independent accountants and other professional

advisers of each Party who are under an obligation to keep such information confidential except

to the extent permitted under this Agreement; (e) required by either Party to enforce against the

other Party its rights and remedies under this Agreement; (f) at the time of disclosure is or has

become available in the public domain from a source other than the Parties; and (g) disclosed to

Buyer’s successors or assigns. The Parties’ obligation pursuant to this Clause 23 shall survive

the performance of the terms of this Agreement, its rescission, or other termination.

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24. ENTIRE AGREEMENT

This Agreement contains all of the terms and conditions agreed by the Parties regarding the

subject matter of this Agreement and supersedes any prior agreements, understandings or

arrangements between them, whether oral or in writing. No representation, undertaking or

promise shall be taken to have been given, or be implied, from anything said or written in

negotiations between the Parties prior to this Agreement, except as set out in this Agreement.

25. COUNTERPARTS

This Agreement may be executed in more than one counterpart, each of which shall be deemed

to constitute an original, and shall become effective when one or more counterparts have been

signed by both Parties hereto and such a counterpart (so signed) has been delivered to each of

the Parties hereto.

26. FURTHER ASSURANCES

Buyer and Seller shall take all such action and do all such things including execution of all such

documents as may be reasonably necessary or desirable in order to effect the transaction

contemplated by this Agreement.

27. APPROVAL OF SELLING THE USED AIRCRAFT

THAI is required by relevant rules and regulations to obtain approval from THAI Board of

Directors and from the Minister of the Ministry of Transportation for all transactions involving

the buying or selling of any aircraft. BUYER hereby agrees and acknowledges that THAI shall

not be required to deliver the Used Aircraft until the final approval has been obtained. THAI

shall push its best efforts to obtain such approval

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IN WITNESS WHEREOF the Parties hereto have executed this Agreement by their duly authorized

representatives as of the day and year first herein written.

Signed for and on behalf of

SELLER, THAI AIRWAYS INTERNATIONAL PUBLIC COMPANY LIMTED

By: ___________________________________

( )

Witnessed: _____________________________

( )

Witnessed: _____________________________

( )

Signed for and on behalf of

BUYER

By: ___________________________________

( )

Witnessed: _____________________________

( )

Witnessed: _____________________________

( )