Exhibit 10.4
AMENDMENT NUMBER THREE TO
AMENDED
AND RESTATED CREDIT AGREEMENT, WAIVER AND EXTENSION
THIS AMENDMENT NUMBER THREE TO
AMENDED AND RESTATED CREDIT AGREEMENT, WAIVER AND
EXTENSION (this “
Amendment ”), dated as of June 28, 2011, is
entered into by and among the lenders identified on the signature
pages hereof (such lenders, together with their respective
successors and permitted assigns, are referred to hereinafter each
as a “ Lender ”, and, collectively, the “
Lenders ”), WELLS FARGO CAPITAL
FINANCE, INC. , a California corporation, as agent for the
Lenders (in such capacity, together with its successors and assigns
in such capacity, “ Agent ”), HAWAIIAN
HOLDINGS, INC. , a Delaware corporation (“
Parent ”), and HAWAIIAN AIRLINES, INC. , a
Delaware corporation (“ Borrower ”), and in
light of the following:
W I T N E S S E T
H
WHEREAS , Parent, Borrower, Lenders, and Agent are
parties to that certain Amended and Restated Credit Agreement,
dated as of December 10, 2010 (as amended, restated,
supplemented, or otherwise modified from time to time, the “
Credit Agreement ”);
WHEREAS , Parent, Borrower, and Agent are parties to
that certain Amended and Restated Security Agreement, dated as of
December 10, 2010 (as amended, restated, supplemented, or
otherwise modified from time to time, the “ Security
Agreement ”);
WHEREAS , Borrower and Agent are parties to that certain
Amended and Restated Engine and Spare Parts Security Agreement,
dated as of December 10, 2010 (as amended, restated,
supplemented, or otherwise modified from time to time, the “
Engine and Spare Parts Security Agreement
”);
WHEREAS , Borrower has informed Agent and the Lenders
that it intends to prepay certain capital leases (the “
Designated Prepayments ”);
WHEREAS , Borrower has informed Agent and the Lenders
that it intends to purchase an additional Engine manufactured by
Rolls-Royce Deutschland Ltd & Co KG with
manufacturer’s serial number 13452 and model number
BR700-715-A1-30 (the “ Designated Engine
”);
WHEREAS , (a) pursuant to Section 6.7
of the Credit Agreement, Borrower is required to provide Agent with
15 days prior written notice of the Designated Prepayments (the
“ Notice of Prepayment Requirement ”) only to
the extent that such prepayments are not being made in connection
with Refinancing Indebtedness permitted by Section 6.1
of the Credit Agreement, (b) pursuant to
Section 4.6 of the Engine and Spare Parts Security
Agreement, Borrower is required to provide Agent with at least 30
days prior notice before subjecting to the Security Interest (as
such term is defined in the Engine and Spare Parts Security
Agreement) and Lien of the Engine and Spare Parts Security
Agreement the Designated Engine (the “ Notice of
Designated Engine Requirement ”), and (c) pursuant
to Section 4.6 of the Engine and Spare Parts Security
Agreement and Section 6(n)(i) of the Security
Agreement, Borrower is required to execute and deliver to Agent the
documents listed in such sections (the “ Designated Engine
Deliverables ”) in respect of the Designated Engine by
the time periods listed therein (the “ Designated Engine
Deliverables Deadline ”);
WHEREAS , Borrower has requested that Agent and the
undersigned Lenders (a) waive the Notice of Prepayment
Requirement, (b) waive the Notice of Designated Engine
Requirement, (c) consent to the extension of the Designated
Engine Deliverables Deadline to the date that is 30 days after the
date when Borrower acquires the Designated Engine, and
(d) make certain other amendments to the Credit Agreement;
and
WHEREAS , upon the terms and conditions set forth
herein, Agent and the undersigned Lenders are willing to
accommodate Borrower’s requests.
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NOW, THEREFORE
, in consideration of the foregoing
and the mutual covenants herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as
follows:
1.
Defined Terms . All initially capitalized terms used
herein (including the preamble and recitals hereof) without
definition shall have the meanings ascribed thereto in the Credit
Agreement (including Schedule 1.1 thereto), as amended
hereby.
2.
Amendments to Credit Agreement .
(a)
Schedule 1.1 of the Credit Agreement is hereby amended and
modified by amending and restating, or adding (as applicable) the
following definitions in the appropriate alphabetical
order:
““ ACME ”
means Airline Contract Maintenance and Equipment, Inc., a
Delaware corporation.”
““ EBITDA ”
means, with respect to any fiscal period, Parent’s and its
Subsidiaries’ consolidated net earnings (or loss), minus
extraordinary gains, interest income, net fair value decrease (or
increase) in jet fuel Hedging Agreements that did not qualify as
hedges as defined in the Financial Accounting Standards
Board’s Statement of Financial Accounting Standards
No. 133, and, to the extent not reported or classified as
depreciation or amortization expense, amortization of favorable
maintenance contracts, accretion of unfavorable real estate leases,
accretion of unfavorable aircraft leases, amortization of favorable
aircraft leases, and accretion of unfavorable engine leases, plus,
without duplication, non-cash extraordinary losses, non-cash Stock
option expenses, interest expense, income taxes, depreciation and
amortization, and charges resulting from the early termination of
leases for Borrower’s lease of its fifteen (15) Boeing 717
Aircraft to the extent incurred during June of 2011 and in an
aggregate amount not to exceed $70,000,000, in each case, for
such period, as determined in accordance with
GAAP.”
““ Permitted
Fundamental Changes ” means (i) so long as no
Default or Event of Default has occurred and is continuing or would
result thereform, any merger or consolidation between or among Loan
Parties, provided that (y) Borrower must be the
surviving entity of any such merger or consolidation to which it is
a party and (z) no merger or consolidation may occur between
or among Parent and any other Loan Party, (ii) any merger or
consolidation between or among Loan Parties (other than Parent) and
Subsidiaries of Parent that are not Loan Parties so long as
(y) a Loan Party is the surviving entity of any such merger or
consolidation and (z) no Event of Default has occurred and is
continuing or would result from such merger or consolidation,
(iii) any merger or consolidation between or among
Subsidiaries of Parent that are not Loan Parties, provided, that
(y) if any involved Subsidiary is organized under the laws of
the United States, any state thereof, or the District of Columbia,
the survivor of such merger or consolidation must also be organized
under the laws of the United States, any state thereof, or the
District of Columbia) and (z) if the Stock (or any portion
thereof) of any involved Subsidiary is subject to a Lien in favor
of Agent, the Stock of the surviving Subsidiary of the merger or
consolidation must be subject to a Lien in favor of Agent,
(iv) the liquidation, winding up, or dissolution of a
Subsidiary of Parent that is not a Loan Party (other than any such
Subsidiary the Stock of which (or any portion thereof) is subject
to a Lien in favor of Agent, unless the assets of such liquidating,
winding up, or dissolving Subsidiary are transferred to (y) a
Loan Party (other than Parent) or (z) another Subsidiary of
Parent the Stock of which is subject to a Lien in favor of Agent
(provided, that if the liquidating, winding up, or dissolving
Subsidiary is organized under the laws of the United States, any
state thereof, or the District of Columbia, the Subsidiary to which
such assets are transferred must also be organized under the laws
of the United States, any state thereof, or the District of
Columbia)) so long as all of the assets of such liquidating,
winding up, or dissolving Subsidiary are transferred to a
Subsidiary of Parent that is not liquidating, winding up, or
dissolving, or (v) so long as no Event of Default has occurred
and is continuing or would result therefrom, transfers of assets
between Borrower and ACME to the extent that Borrower has obtained
each consent or waiver under any agreement to which Borrower is a
party (other than the Loan Documents) that is required in order to
permit such transfer or assignment thereunder; provided ,
however , that in no event shall the transfer of
(I) any Aircraft, Engines, Spare Parts, or other assets as to
which the perfection
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of a security interest therein would require the
filing or recording of documents with the FAA and the International
Registry, or (II) any Real Property, Copyrights (as such term
is defined in the Security Agreement), Trademarks (as such term is
defined in the Security Agreement), Patents (as such term is
defined in the Security Agreement), Commercial Tort Claims, or
other assets as to which the perfection of a Lien therein would
require the filing or recording of documents with public offices
other than public offices where Uniform Commercial Code financing
statements are filed, unless, solely in the case of this clause
(II), such Loan Party makes any filings required or reasonably
requested by Agent under the Loan Documents to perfect
Agent’s Lien in such assets, in the case of each of clauses
(I) and (II), constitute a Permitted Fundamental
Change.”
““ Specified
Contracts ” means the maintenance and service contracts
with respect to Aircraft, Engines, and Spare Parts owned, leased,
or operated by Borrower to which Borrower is a
party.”
““ Third
Amendment ” means that certain Amendment Number Three to
Amended and Restated Credit Agreement, dated as June 28, 2011,
by and among Parent, Borrower, Agent and the
Lenders.”
(b)
The definition of “ Permitted Disposition ”
contained in Schedule 1.1 of the Credit Agreement is hereby
amended by (i) deleting the word “and” at the end
of clause (u) of such section, (ii) replacing the period
at the end of clause (v) of such section with “,
and”, and (iii) adding the language below immediately
after the end of clause (v) of such section:
“(w)
so long as no Event of Default has occurred and is continuing or
would result therefrom, transfers of assets between Borrower and
ACME to the extent that Borrower has obtained each consent or
waiver under any agreement to which Borrower is a party (other than
the Loan Documents) that is required in order to permit such
transfer or assignment thereunder; provided , however
, that in no event shall the transfer of (I) any Aircraft,
Engines, Spare Parts, or other assets as to which the perfection of
a security interest therein would require the filing or recording
of documents with the FAA and the International Registry, or
(II) any Real Property, Copyrights (as such term is defined in
the Security Agreement), Trademarks (as such term is defined in the
Security Agreement), Patents (as such term is defined in the
Security Agreement), Commercial Tort Claims, or other assets as to
which the perfection of a Lien therein would require the filing or
recording of documents with public offices other than public
offices where Uniform Commercial Code financing statements are
filed, unless, solely in the case of this clause (II), such Loan
Party makes any filings required or reasonably requested by Agent
under the Loan Documents to perfect Agent’s Lien in such
assets, in the case of each of clauses (I) and (II),
constitute a Permitted Disposition.”
(c)
The definition of “ Permitted Indebtedness ”
contained in Schedule 1.1 of the Credit Agreement is hereby
amended by (i) deleting the word “and” at the end
of clause (s) of such section, (ii) replacing the period
at the end of clause (t) of such section with “,
and”, and (iii) adding the language below immediately
after the end of clause (t) of such section:
“(u)
Indebtedness consisting of limited recourse guarantees by ACME with
respect to Indebtedness of Borrower permitted pursuant to clause
(c) of this definition of Permitted Indebtedness, so long as
the recourse of the beneficiaries of such guarantees with respect
thereto is limited to ACME’s right, title, and interest in
the Specified Contracts assigned by Borrower to ACME, including the
warranties and related rights associated with Aircraft and Engines
that are the subject of the Indebtedness of Borrower that is
guaranteed pursuant to the terms of such limited recourse
guarantees.”
(d)
The definition of “ Permitted Intercompany Advances
” contained in Schedule 1.1 of the Credit Agreement is
hereby amended by amended and restating such definition in its
entirety as follows:
““Permitted Intercompany
Advances” means unsecured loans or advances or capital
contributions (a) from Parent or Borrower to any Subsidiary of
Parent or any Subsidiary of Borrower that is a Loan Party,
(b) from ACME to Borrower, (c) from any of
Borrower’s Subsidiaries to Borrower, (d) from
any
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Subsidiary of Borrower that is not a Loan Party
to any other Subsidiary of Borrower, or (e) a Loan Party to a
Subsidiary of Borrower that is not a Loan Party so long as
(i) the amount of such loans or advances or capital
contributions does not exceed $1,000,000 in any fiscal year,
(ii) no Event of Default has occurred and is continuing or
would result therefrom, and, (iii) for each of clauses (a),
(b), (c), (d) or (e) above, any party that is owed money
from a Loan Party in such transaction has executed an Intercompany
Subordination Agreement.”
(e)
The definition of “ Permitted Liens ” contained
in Schedule 1.1 of the Credit Agreement is hereby amended by
(i) deleting the word “and” in clause (w) of
such section, (ii) replacing the period at the end of clause
(x) of such section with the language “, and”, and
(iii) adding the language below immediately after the end of
clause (x) of such section:
“(y)
Liens granted by ACME on ACME’s right, title, and interest in
the Specified Contracts assigned by Borrower to ACME, including the
warranties and related rights associated with Aircraft and Engines
that are the subject of the Indebtedness of Borrower that is
guaranteed pursuant to the terms of such Indebtedness permitted
pursuant to clause (u) of the definition of Permitted
Indebtedness, to the extent that such Liens secure the Indebtedness
of ACME permitted pursuant to clause (u) of the definition of
Permitted Indebtedness;”
(f)
Section 6.9 of the Credit Agreement is hereby amending
by amending and restating such section in its entirety as
follows:
“6.9
Distributions .
Other than Permitted Distributions, make any distribution or other
payment on account of, or declare or pay any dividend (in cash or
other property, other than Stock) on (or to the direct or indirect
holders of Stock issued by Borrower or any other Subsidiary of
Parent in their capacity as such), or purchase, acquire, redeem, or
retire, any Stock issued by Borrower or any other Subsidiary of
Parent, of any class, whether now or hereafter outstanding. For the
avoidance of doubt, this Section 6.9 does not restrict
Parent from making Permitted Redemptions or Permitted
Conversions.”
(g)
Section 6.10 of the Credit Agreement is hereby amending
by amending and restating such section in its entirety as
follows:
“6.10
Accounting Methods .
Modify or
change its fiscal year (other than as may be required to comply
with GAAP and any other change so long as each of the Loan Parties
maintains the same fiscal year) or its method of accounting (other
than as may be required to conform to GAAP).”
(h)
Section 6.12 of the Credit Agreement is hereby amended
by (i) deleting the word “and” at the end of
clause (e) of such section, (ii) replacing the period at
the end of clause (f) of such section with “,
and”, and (iii) adding the language below immediately
after the end of clause (f) of such section:
“(g)
transactions among Borrower, ACME, or any of their respective
Subsidiaries that are Loan Parties which are expressly permitted by
Sections 6.1 , 6.2 , 6.3 , and 6.4
.”
3.
Waiver and Extension . Anything in the Credit
Agreement, the Security Agreement, and the Engine and Spare Parts
Security Agreement to the contrary notwithstanding, and subject to
the satisfaction or waiver of the conditions precedent set forth in
Section 4 hereof, Agent and the undersigned Lenders
hereby (a) waive the Notice of Prepayment Requirement so long
as, with respect to the Designated Prepayments, Borrower has
complied with each of the requirements of Section 6.7
of the Credit Agreement (other than the requirement that the
written notice that Borrower provides to Agent be given 15 days
prior to any such Designated Prepayments described in clause
(b) of the definition of Permitted Prepayment, to the extent
such prepayments are not being made in connection with Refinancing
Indebtedness permitted by Section 6.1 of the Credit
Agreement), (b) waive the Notice of Designated Engine
Requirement, and (c) consent to the extension of the
Designated Engine Deliverables Deadline to the date that is 30 days
after the date when Borrower
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acquires the Designated Engine; provided
, however , nothing herein, nor any communications among
Parent, Borrower, any Guarantor, Agent, or any Lender, shall be
deemed a waiver with respect to any Events of Default, or any
future failure of Parent, Borrower or any Guarantor to comply fully
with any provision of the Credit Agreement or any provision of any
other Loan Document, and in no event shall this waiver be deemed to
be a waiver of enforcement of any of Agent’s or
Lenders’ rights or remedies under the Credit Agreement and
the other Loan Documents, at law (including under the Code), in
equity, or otherwise including, without limitation, the right to
declare all Obligations immediately due and payable pursuant to
Section 9.1 of the Credit Agreement, with respect to
any Defaults or Events of Default now existing or hereafter
arising. Except as expressly provided herein, Agent and each
Lender hereby reserves and preserves all of its rights and remedies
against Parent, Borrower and any Guarantor under the Credit
Agreement and the other Loan Documents, at law (including under the
Code), in equity, or otherwise including, without limitation, the
right to declare all Obligations immediately due and payable
pursuant to Section 9.1 of the Credit Agreement.
The failure of Borrower to deliver to Agent the Designated Engine
Deliverables within the applicable time frame set forth above shall
constitute an immediate Event of Default.
4.
Conditions Precedent to Amendment . The satisfaction of each
of the following shall constitute conditions precedent to the
effectiveness of the Amendment (the first date upon which all such
conditions have been satisfied, the “ Amendment Effective
Date ”):
(a)
Agent shall have received this Amendment, duly executed by the
parties hereto, and the same shall be in full force and
effect.
(b)
Agent shall have received the reaffirmation and consent of each
Guarantor attached hereto as Exhibit A , duly executed
and delivered by an authorized officer of each
Guarantor.
(c)
Agent shall have received a certificate from the Secretary of ACME
(i) attesting to the resolutions of ACME’s Board of
Directors authorizing its execution, delivery and performance of
the Loan Documents to which ACME is a party, (ii) authorizing
specific officers of ACME to execute the same, (iii) attesting
to the incumbency and signatures of such specific officers of ACME,
(iv) certifying as to the Governing Documents, as amended,
modified, or supplemented to the date of this Amendment of ACME,
and attaching certified copies of such Governing Documents,
(v) certifying as to a certificate of status with respect to
ACME, dated within 10 days of the date of this Amendment, such
certificate to be issued by the appropriate officer of the
jurisdiction of organization of ACME, which certificate shall
indicate that ACME is in good standing in such jurisdiction, and
(vi) certifying as to certificates of status with respect to
ACME, each dated within 30 days of the Closing Date, such
certificates to be issued by the appropriate officer of the
jurisdictions (other than the jurisdiction of organization of ACME)
in which its failure
