UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
SCHEDULE 13D
Under the Securities Exchange Act of 1934
_______________________
HAWAIIAN AIRLINES, INC.
(Name of Issuer)
CLASS A COMMON STOCK, PAR VALUE $.01 PER SHARE
(Title of Class of Securities)
419849-104
(CUSIP Number)
_______________________
DAVID A. PERSING, ESQ.
885 THIRD AVENUE
34TH FLOOR
NEW YORK
NEW YORK 10022
TEL. NO.: (212) 888-5500
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
_______________________
JANUARY 18, 1996
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
statement because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with the statement [X].
Page 1 of 42 Pages
<PAGE>
SCHEDULE 13D
CUSIP NO. 419849-104 Page 2 of 42 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Airline Investors Partnership, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP(A) [ ]
(B) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
SHARES 2,727,272
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
8 SHARED VOTING POWER
--
9 SOLE DISPOSITIVE POWER
2,727,272
10 SHARED DISPOSITIVE POWER
--
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,727,272
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.49%
14 TYPE OF REPORTING PERSON
PN
<PAGE>
SCHEDULE 13D
CUSIP NO. 419849-104 Page 3 of 42 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AIP General Partner, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP(A) [ ]
(B) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
SHARES 2,727,272
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
8 SHARED VOTING POWER
--
9 SOLE DISPOSITIVE POWER
2,727,272
10 SHARED DISPOSITIVE POWER
--
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,727,272
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.49%
14 TYPE OF REPORTING PERSON
CO
<PAGE>
SCHEDULE 13D
CUSIP NO. 419849-104 Page 4 of 42 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
John W. Adams
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP(A) [ ]
(B) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
7 SOLE VOTING POWER
NUMBER OF
SHARES 2,727,272
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
8 SHARED VOTING POWER
--
9 SOLE DISPOSITIVE POWER
2,727,272
10 SHARED DISPOSITIVE POWER
--
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,727,272
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.49%
14 TYPE OF REPORTING PERSON
IN
<PAGE>
SCHEDULE 13D
CUSIP NO. 419849-104 Page 5 of 42 Pages
ITEM 1. SECURITY AND ISSUER.
This Schedule relates to shares of Class A Common Stock, par
value $.01 per share (the "Common Stock"), of Hawaiian Airlines, Inc., a
Hawaii corporation (the "Company"). The principal executive offices of
the Company are located at 3375 Koapaka Street, Suite G-350, Honolulu,
Hawaii 96819.
ITEM 2. IDENTITY AND BACKGROUND.
The names and addresses of the persons filing this Schedule are
as follows:
1. Airline Investors Partnership, L.P. ("AIP"), a Delaware limited
partnership, whose principal business and office address is c/o
John W. Adams, 885 Third Avenue, 34th Floor, New York, New York
10022, and which was formed for the purpose of acquiring stock of
the Company;
2. AIP General Partner, Inc. ("AIP General Partner"), a Delaware
corporation, whose principal business and office address is c/o
John W. Adams, 885 Third Avenue, 34th Floor, New York, New York
10022, and which was formed for the purpose of being, and is, the
general partner of AIP. John W. Adams and Richard F. Conway are the
sole directors of AIP General Partner. John W. Adams is the
President and Treasurer and Richard F. Conway is the Vice President
and Secretary of AIP General Partner. John W. Adams is the sole
shareholder of AIP General Partner and ultimately in control of this
corporation; and
3. John W. Adams, a United States citizen, whose business address is
885 Third Avenue, 34th Floor, New York, New York 10022. John W. Adams
is President of Smith Management Company, a New York based private
investment firm and is sole shareholder of AIP General Partner.
The above named persons are collectively referred to as the
"Reporting Parties."
<PAGE>
SCHEDULE 13D
CUSIP NO. 419849-104 Page 6 of 42 Pages
The following person is not a beneficial owner under this
Schedule but is identified as an officer or director of the entities
mentioned above:
Richard F. Conway, a United States citizen, whose business address is
885 Third Avenue, 34th Floor, New York, New York 10022. Richard F. Conway
is Vice President of Smith Management Company, and Vice President and
Secretary of AIP General Partner.
None of the Reporting Parties or the individual mentioned
above have, during the last five years, been (i) convicted in a criminal
proceeding or (ii) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which such
person was subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violation with respect to such
laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
On January 18, 1996 AIP acquired a Secured Convertible
Promissory Note of the Company, a copy of which is attached as Exhibit 1
hereto (the "Note"). The Note was issued to AIP to evidence a bridge
loan made by AIP in the amount of $3,000,000 pursuant to a Loan
Agreement, dated as of January 15, 1996 (the "Loan Agreement") between
the Company and AIP, a copy of which is attached as Exhibit 2 hereto.
The Note is convertible at the option of AIP into a maximum of 2,727,272
shares of Common Stock (subject to certain limitations set forth in the
Loan Agreement). The Note will be automatically converted into 2,727,272
shares of Common Stock if and when the closing occurs under the Stock
Purchase Agreement, dated as of December 8, 1995 (the "Stock Purchase
Agreement"), between the Company and AIP (a copy of the Stock Purchase
Agreement is included in the Proxy Statement of the Company, dated
January 13, 1996 and filed with the Securities and Exchange Commission
(the "Proxy Statement"), which is incorporated herein by reference),
pursuant to which AIP will acquire 18,181,818 shares of Common Stock and
four shares of Series B Special Preferred stock, par value $.01 per
share, of the Company for a purchase price of $1.10 per share. The
closing of the Stock Purchase Agreement is subject to the satisfaction of
several significant conditions including the approval of the transaction
by the Company's stockholders.
<PAGE>
SCHEDULE 13D
CUSIP NO. 419849-104 Page 6 of 42 Pages
The $3,000,000 loaned to the Company pursuant to the Loan
Agreement was loaned to AIP by an affiliated entity.
ITEM 4. PURPOSE OF THE TRANSACTION.
The purpose of the transaction is to provide a bridge loan to
the Company until the closing, if any, under the Stock Purchase
Agreement. The Reporting Parties have acquired the right to convert the
Promissory Note into Common Stock for possible future investment
purposes.
Except as set forth in the Proxy Statement of Hawaiian
Airlines, Inc., dated January 13, 1996, filed with the Securities and
Exchange Commission and incorporated herein by reference, the Reporting
Parties have no intention, plan or proposal with respect to:
1. The acquisition by any person of additional securities of the
issuer, or the disposition of securities of the issuer;
2. An extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the issuer or any of its
subsidiaries;
3. A sale or transfer of a material amount of assets of the issuer or
any of its subsidiaries;
4. Any change in the present Board of Directors or management of the
issuer, including any plan or proposals to change the number or term
of directors or to fill any existing vacancy on the Board.
5. Any material change in the present capitalization or dividend policy
of the issuer;
6. Any other material change in the issuer's business or corporate
structure;
7. Changes in the issuer's charter, bylaws or instruments corresponding
thereto or other actions which may impede the acquisition of control
of the issuer by any person;
8. Causing a class of securities of the issuer to be delisted from a
national securities exchange or to cease to be authorized to be
quoted in an inter-dealer
<PAGE>
SCHEDULE 13D
CUSIP NO. 419849-104 Page 7 of 42 Pages
quotation system of a registered national securities association;
9. A class of equity securities of the issuer becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the
Securities Exchange Act of 1934; or
10. Any action similar to any of those enumerated above.
Each of the Reporting Parties, however, may, at any time and
from time to time, and reserves the right to, acquire additional
securities of the Company, dispose of any such securities of the Company
or formulate other plans or proposals regarding the Company or its
securities, to the extent deemed advisable by such Reporting Party in
light of its general investment policies, market conditions or other
factors.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
To the best of the Reporting Parties' knowledge based on the
information contained in the Company's Proxy Statement, the aggregate
number of shares of Common Stock of the Company outstanding as of
December 18, 1995 is 6,845,105 shares.
As of the close of business on January 19, 1996:
NAME OF REPORTING PARTY:
AIP
(a) Aggregate Number of Securities Owned 2,727,272
---------
Percentage 28.49%
---------
(b) 1. Sole power to vote or to direct
the vote 2,727,272
---------
2. Shared power to vote or to direct
the vote --
---------
3. Sole power to dispose or to direct
the disposition 2,727,272
---------
4. Shared power to dispose of or to
direct the disposition --
---------
<PAGE>
SCHEDULE 13D
CUSIP NO. 419849-104 Page 9 of 42 Pages
(c) On January 18, 1996 AIP acquired a Secured Convertible
Promissory Note of the Company. The aggregate principal amount of the
Note is $3 million and such principal amount is convertible at the option
of AIP into shares of Class A Common Stock at $1.10 per share. The
conversion is subject to certain limitations set forth in the Loan
Agreement.
AIP GENERAL PARTNER
(a) Aggregate Number of Securities Owned 2,727,272
---------
Percentage 28.49%
---------
(b) 1. Sole power to vote or to direct
the vote 2,727,272
---------
2. Shared power to vote or to direct
the vote --
---------
3. Sole power to dispose or to direct
the disposition 2,727,272
---------
4. Shared power to dispose of or to
direct the disposition --
---------
JOHN W. ADAMS
(a) Aggregate Number of Securities Owned 2,727,272
---------
Percentage 28.49%
---------
(b) 1. Sole power to vote or to direct
the vote 2,727,272
---------
2. Shared power to vote or to direct
the vote --
---------
3. Sole power to dispose or to direct
the disposition 2,727,272
---------
4. Shared power to dispose of or to
direct the disposition --
---------
<PAGE>
SCHEDULE 13D
CUSIP NO. 419849-104 Page 10 of 42 Pages
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER
There are no contracts, arrangements, understandings or
relationships (legal or otherwise) among the persons named in Item 2 and
between such persons and any person with respect to any security of the
Company, except the following:
1. AIP and the Company entered into a Loan Agreement, dated as of
January 15, 1996, under which AIP advanced $3,000,000 to the Company
on January 18, 1996. The loan is evidenced by a Secured Convertible
Promissory Note. The principal amount of the Note is convertible
into a maximum of 2,727,272 shares of Class A Common Stock of the
Company;
2. AIP and the Company entered into a Stock Purchase Agreement ("Stock
Purchase Agreement"), dated as of December 8, 1995, under which AIP
agreed, subject to the terms and conditions set forth therein, to
purchase 18,181,818 shares of Common Stock and 4 shares of Series B
Special Preferred Stock of the Company for $1.10 per share. The
18,181,818 shares to be issued to AIP under this agreement will be
reduced by the number of shares issued to AIP upon conversion of the
Note. The Note will automatically be converted into 2,727,272
shares of Common Stock upon the closing of the Stock Purchase
Agreement. The effectiveness of the Stock Purchase Agreement
remains subject to the occurrence of several significant conditions,
including the approval of the transactions contemplated thereby by
the Company's stockholders.
Pursuant to the Stock Purchase Agreement, and as more fully
discussed in the Proxy Statement, the Company shall use its best efforts
to cause its stockholders to elect new Directors and to cause the
Company's By-laws and Articles and certain other agreements to which the
Company is a party to be amended.
3. John W. Adams will enter into an irrevocable proxy agreement
("Irrevocable Proxy Agreement") with a non-United States entity that
is a minority shareholder (the "Shareholder") of a Texas corporation
(the "subject company") that holds a 25% voting interest in the
limited partner of AIP. The Irrevocable Proxy
<PAGE>
SCHEDULE 13D
CUSIP NO. 419849-104 Page 11 of 42 Pages
Statement will provide that John W. Adams will have absolute authority
and discretion to vote the shares of the subject company held by the
Shareholder in connection with all matters relating to the Company.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
The Stock Purchase Agreement is contained in the Proxy Statement and is
herein incorporated by reference.
Exhibit 1: Secured Convertible Promissory Note
Exhibit 2: Loan Agreement
<PAGE>
SCHEDULE 13D
CUSIP NO. 419849-104 Page 12 of 42 Pages
SIGNATURES
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is
true, complete and correct.
January 29, 1996
AIRLINE INVESTORS PARTNERSHIP, L.P.
By AIP General Partner, Inc., its
general partner
By: /S/ John W. Adams
--------------------------
John W. Adams
President
AIP GENERAL PARTNER, INC.
By: /S/ John W. Adams
--------------------------
John W. Adams
President
/S/ John W. Adams
--------------------------
John W. Adams
SECURED CONVERTIBLE PROMISSORY NOTE
$3,000,000 January 18, 1996
FOR VALUE RECEIVED, the undersigned HAWAIIAN AIRLINES, INC., a
Hawaii corporation (the "Maker") hereby promises to pay to the order of
AIRLINE INVESTORS PARTNERSHIP, L.P. ("AIP"), or its assigns (the "Payee"),
at Payee's address set forth in the Loan Agreement referred to below, or
at such other place as the holder (the "Holder") of this Promissory Note
(the "Note") may from time to time designate in writing, in lawful money
of the United States and in immediately available funds, at the times and
in the manner provided hereinbelow, the principal sum of THREE MILLION
DOLLARS ($3,000,000.00) (or such lesser amount as shall equal the
aggregate unpaid principal amount of the Loans made by AIP to the Maker
under the Loan Agreement referred to below), together with interest on the
unpaid principal amount of each such Loan, at such address, in like money
and funds, for the period commencing on the date of such Loan until such
Loan shall be paid in full or the principal amount thereof shall have been
converted into shares of Class A Common Stock of the Maker as provided in
the Loan Agreement, at the rate per annum provided in the Loan Agreement.
The date and amount of each Loan made by AIP to the Maker, and
each payment or conversion made on account of the principal thereof, shall
be recorded by AIP on its books and, prior to any transfer of this Note,
endorsed by AIP on the schedule attached hereto or any continuation
thereof, each of which recordations or endorsements shall constitute prima
facie evidence of the matters set forth therein; PROVIDED that the failure
of AIP to make any such recordation or endorsement shall not affect the
obligations of the Maker to make a payment when due of any amount owing
under the Loan Agreement or hereunder in respect of the Loans made by AIP.
This Note is the Secured Convertible Promissory Note referred to
in the Loan Agreement dated as of January 15 1996 (as modified and
supplemented and in effect from time to time, the "Loan Agreement")
between the Maker and AIP and incorporated by reference herein, and
evidences Loans made by AIP thereunder. Terms used but not defined in
this Note have the respective meanings assigned to them in the Loan
Agreement.
The obligations of the Maker under this Note, the Loans and the
Loan Agreement are secured by certain property of Maker pursuant to that
certain Chattel Mortgage and Security Agreement dated as of January
,1996, between the Maker and AIP (the "Mortgage") and incorporated by
reference herein. THE LIEN OF THE MORTGAGE ON CERTAIN COLLATERAL (OTHER
THAN THE SPECIFIED COLLATERAL, AS DEFINED IN THE MORTGAGE) IS SUBORDINATE
TO (I) THE LIEN CREATED BY THAT CERTAIN LOAN AND SECURITY AGREEMENT, DATED
AS OF SEPTEMBER 12, 1994, BETWEEN MAKER AND THE CIT GROUP/CREDIT FINANCE,
INC. ("CIT") PURSUANT TO AN INTERCREDITOR AND
SUBORDINATION AGREEMENT, DATED AS OF JANUARY 15, 1996, BETWEEN CIT AND AIP
AND (II) THE LIEN CREATED BY THAT CERTAIN ROTABLE SPARE PARTS CHATTEL
MORTGAGE AND SECURITY AGREEMENT, DATED AS OF OCTOBER 30, 1992, BETWEEN
MAKER AND AEROUSA, INC. ("AEROUSA") PURSUANT TO AN INTERCREDITOR AND
SUBORDINATION AGREEMENT, DATED AS OF JANUARY 15, 1996, BETWEEN AEROUSA AND
AIP.
The aggregate principal outstanding under this Note, together
with interest accruing thereon shall be due and payable on the earliest of
(i) the Closing, (ii) February 10, 1996 and (iii) the date of termination
of the Stock Purchase Agreement in accordance with its terms. The
principal sum hereof, together with all accrued but unpaid interest, may
be prepaid at any time, in whole or in part, without premium or penalty.
All prepayments hereunder shall be applied as follows: first, to any and
all costs, fees or expenses due and owing hereunder, the Loan Agreement
and/or under the Mortgage (if any); second, to any and all accrued and
unpaid interest hereunder; and third, to outstanding principal hereunder.
The outstanding principal amount of this Note, in whole or in
part, is convertible into shares of Class A Stock at the option of the
Holder at any time, or from time to time, on or prior to maturity, upon
the terms and subject to the conditions specified in the Loan Agreement.
The outstanding principal amount of this Note shall be converted into
shares of Class A Stock upon the occurrence, if at all, of the Closing.
From and after maturity (whether by acceleration or otherwise),
the entire principal balance and (to the extent permitted by law) all
accrued and unpaid interest and all other sums (if any) due and owing
hereunder shall be payable on demand and shall bear interest until paid at
the rate specified in the Loan Agreement.
If any payment of principal, interest or other charges is stated
hereunder to be due and payable on a day which is not a Business Day (as
defined hereinbelow), then the due date for such payment shall be extended
to the next succeeding Business Day, provided that, in any such event,
such payment shall include interest accruing during such extension in
accordance with the terms of this Note.
In the event that an Event of Default shall occur and be
continuing, then, and in any such event and at any time thereafter, so
long as such Event of Default shall then be continuing, all amounts of
principal, interest and other sums and charges hereunder and under the
Loan Agreement including any Additional Amounts and the Mortgage may, at
the option of the Holder, be declared (by written notice to the Maker at
its address set forth in the Loan Agreement, but without presentment,
demand, protest, notice or any other formality, all of which are hereby
waived; provided, that if an Event of Default referred to in Section 9(f)
or (g) of the Loan Agreement shall have occurred, then in every such case,
all amounts of principal, interest, and other charges hereunder and under
the Loan
<PAGE>
Agreement, including any Additional Amounts and the Mortgage shall
immediately, and without further act, become due and payable) to be,
whereupon the same shall henceforth become, immediately due and payable,
anything herein to the contrary notwithstanding.
<PAGE>
This Note shall be governed by and construed in accordance with
the laws of the State of New York.
IN WITNESS WHEREOF, this Note has been duly executed as of the
date first above written.
HAWAIIAN AIRLINES, INC.
By: /S/ Bruce R. Nobles
-----------------------------
Bruce R. Nobles
Its: Chairman, President and Chief
Executive Officer
By: /S/ Rae A. Capps
------------------------------
Rae A. Capps
Its: Vice President, General Counsel
and Corporate Secretary
<PAGE>
SCHEDULE OF LOANS, PREPAYMENTS AND CONVERSIONS
This Note evidences Loans made under the within-described Loan
Agreement on the dates and in the principal amounts set forth below,
subject to the payments, conversions and prepayments of principal set
forth below:
<TABLE>
<CAPTION>
AMOUNT PAID, UNPAID
DATE MADE, PAID PRINCIPAL AMOUNT PREPAID OR PRINCIPAL NOTATION
OR CONVERTED OF LOAN CONVERTED AMOUNT MADE BY
- --------------- ---------------- ------------ --------- --------
<S> <C> <C> <C> <C>
</TABLE>
==============================================================================
$3,000,000
LOAN AGREEMENT
DATED AS OF JANUARY 15 , 96
BETWEEN
HAWAIIAN AIRLINES, INC.,
AS BORROWER
-----------
and
AIRLINE INVESTORS PARTNERSHIP, L.P.
AS LENDER
---------
==============================================================================
<PAGE>
TABLE OF CONTENTS
PAGE
Section 1. Definitions and Usage..........................1
1.01 Certain Defined Terms..........................1
1.02 Usage..........................................3
Section 2. Loans, Note, and Prepayments...................4
2.01 Loans..........................................4
2.02 Borrowings of Loans............................4
2.03 Note...........................................4
2.04 Optional Prepayments...........................4
Section 3. Payments of Principal and Interest.............4
3.01 Repayment of Loans.............................4
3.02 Additional Payments............................5
Section 4. Payments; Notices; Etc.........................5
4.01 Payments.......................................5
4.02 Notices for Borrowings.........................5
Section 5. Conversion of Note.............................5
5.01 Conversion Rights and Conversion Price.........5
5.023 Exercise of Conversion Rights..................6
5.03 Mandatory Conversion...........................6
5.04 Borrower's Covenants...........................6
5.05 Registration Rights............................7
Section 6. Conditions Precedent...........................9
6.01 Effective Date.................................9
6.02 Initial and Subsequent Loans..................11
Section 7. Representations and Warranties................11
7.01 Corporate Existence...........................11
7.02 Litigation....................................11
7.03 No Breach.....................................12
7.04 Action........................................12
7.05 Approvals.....................................12
7.06 Investment Company Act........................12
7.07 Public Utility Holding Company Act............12
7.08 True and Complete Disclosure..................12
Section 8. Covenants of the Borrower.....................13
8.01 Existence, Etc................................13
8.02 Consolidations, Mergers and Disposal of Assets13
8.03. Use of Proceeds...............................13
8.04. Additional Indentures.........................13
Section 9. Events of Default; Remedies...................13
Section 10. Miscellaneous................................15
10.01 Waiver........................................15
10.02 Notices.......................................15
10.03 Expenses, Etc.................................15
10.04 Amendments, Etc...............................16
10.05 Successors and Assigns........................16
<PAGE>
10.06 Assignments...................................16
10.07 Survival......................................16
10.08 Counterparts; Integration.....................16
10.09 Governing Law; Submission to Jurisdiction.....16
10.10 Waiver of Jury Trial..........................17
10.11 Independence of Covenants.....................17
10.10 Subordination of Lienl........................17
<PAGE>
LOAN AGREEMENT dated as of January 15 ,1996 between HAWAIIAN
AIRLINES, INC., a Hawaii corporation (the "Borrower"); and AIRLINE
INVESTORS PARTNERSHIP, L.P.,. a Delaware limited partnership (the
"Lender").
The parties hereto agree as follows:
SECTION 1. DEFINITIONS AND USAGE.
1.01 CERTAIN DEFINED TERMS. As used herein, each of the
following terms shall have the meaning ascribed thereto below (such
meaning to be applicable to both the singular and plural forms of the
term defined):
"ADDITIONAL AMOUNT" shall have the meaning set forth in Section
3.02.
"AFFILIATE" shall mean, as to any Person, any other Person that
directly or indirectly controls, or is under common control with, or is
controlled by, such Person. As used in this definition, "CONTROL"
(including, with its correlative meanings, "CONTROLLED BY" and "UNDER
COMMON CONTROL WITH") of a Person shall mean possession, directly or
indirectly, of the power (whether or not exercised) to direct or cause
the direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise).
"AMEX" shall mean the American Stock Exchange.
"APPROVED PURPOSES" shall have the meaning set forth in Section
4.02.
"AUTHORIZED OFFICER" shall mean the Chairman of the Board, the
President, the Chief Financial Officer, or any Vice President of the
Borrower.
"BORROWING NOTICE" shall have the meaning set forth in Section
4.02.
"BUSINESS DAY" shall mean any day other than a Saturday or
Sunday on which commercial banks are not authorized or required to close
in New York City or Honolulu, Hawaii.
"CLASS A STOCK" shall mean the Class A Common Stock, par value
$0.01 per share, of the Borrower.
"CLOSING" shall have the meaning set forth in the Stock
Purchase Agreement.
"CLOSING DATE" shall have the meaning set forth in the Stock
Purchase Agreement.
<PAGE>
"CONVERSION DATE" shall have the meaning set forth in Section
5.03.
"CONVERSION LIMITATION" shall have the meaning set forth in
Section 5.01.
"CONVERSION NOTICE" shall have the meaning set forth in Section
5.03.
"CONVERSION PRICE" shall have the meaning set forth in Section
5.03.
"CONVERSION SHARES" shall have the meaning set forth in Section
5.03.
"CONVERSION WAIVER" shall have the meaning set forth in Section
5.01.
"CONVERTED PRINCIPAL AMOUNT" shall have the meaning set forth in
Section 5.03.
"CONVERSION NOTICE" shall have the meaning set forth in Section
5.01.
"DISCLOSURE LETTER" shall have the meaning set forth in the Stock
Purchase Agreement.
"DOLLARS" and "$" shall mean lawful money of the United States of
America.
"EFFECTIVE DATE" shall mean the date upon which this Agreement
becomes effective in accordance with Section 6.01.
"EVENTS OF DEFAULT" shall have the meaning assigned to such term
in Section 9.
"EXCESS SHARES" shall have the meaning set forth in Section 3.02.
"FINAL MATURITY DATE" shall mean the earliest of (i) the Closing
Date, (ii) the date of termination of the Stock Purchase Agreement in
accordance with its terms and (iii) February 10, 1996, provided that if
such date is not a Business Day, the Final Maturity Date shall be the
next succeeding Business Day.
"GOVERNMENTAL ENTITY" means any governmental department, court,
bureau, commission, agency or other entity, whether of the United States
(including any state of subdivision thereof) or any other country
(including any political subdivision thereof).
"INDEBTEDNESS" shall mean, for any Person: (a) obligations
created, issued or incurred by such Person for
<PAGE>
borrowed money (whether by loan, the issuance and sale of debt
securities or the sale of Property to another Person subject to
an understanding or agreement, contingent or otherwise, to repurchase
such Property from such Person); (b) obligations of such Person to pay
the deferred purchase or acquisition price of Property or services,
other than trade accounts payable (other than for borrowed money)
arising, and accrued expenses incurred, in the ordinary course of
business; (c) Indebtedness of others secured by a Lien on the Property
of such Person, whether or not the respective indebtedness so
secured has been assumed by such Person; (d) obligations of such Person
as account party in respect of letters of credit or similar instruments
issued or accepted by banks and other financial institutions for account
of such Person; (e) capital lease obligations of such Person; and
(f) Indebtedness of others guaranteed by such Person; PROVIDED, HOWEVER,
that in no event shall "Indebtedness" of any Person mean or include
deferred taxes of such Person.
"LIEN" shall mean, with respect to any Property, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in
respect of such Property. For purposes of this Agreement and the other
Loan Documents, a Person shall be deemed to own subject to a Lien any
Property that it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or
other title retention agreement (other than an operating lease) relating
to such Property.
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, the
Note and the Mortgage and all Related Documents (as defined in the
Mortgage).
"LOANS" shall mean the loans made by the Lender pursuant to
Section 2.01.
"MATERIAL ADVERSE EFFECT" shall mean, with respect to the
Borrower, a material adverse effect on (a) the financial condition,
results of operations, business or prospects of the Borrower, (b) the
ability of the Borrower to perform its obligations under any of the Loan
Documents, (c) the validity or enforceability of any of the Loan
Documents or (d) the rights and remedies of the Lender under any of the
Loan Documents.
"MORTGAGE" shall mean the Chattel Mortgage and Security
Agreement, dated as of the date hereof, between Borrower and Lender.
"NOTE" shall mean the Secured Convertible Promissory Note, dated
as of the date hereof, executed and delivered by Borrower in favor of
Lender.
"PERSON" shall mean any individual, corporation,
<PAGE>
company, voluntary association, partnership, joint venture, trust,
unincorporated organization or Governmental Entity.
"POST-DEFAULT RATE" shall mean a rate per annum equal to 12% .
"PROPERTY" shall mean any right or interest in or to property of
any kind whatsoever, whether real, personal or mixed and whether tangible
or intangible.
"PROPOSED USE" shall have the meaning set forth in Section 4.02.
"PURCHASE PRICE PER SHARE" shall have the meaning set forth in
the Stock Purchase Agreement.
"SHARES" shall have the meaning set forth in the Stock Purchase
Agreement.
"STOCK PURCHASE AGREEMENT" means the Stock Purchase Agreement,
dated as of December 8, 1995, between Borrower and Lender.
"UNIONS" shall have the meaning set forth in the Stock Purchase
Agreement.
"UNMATURED DEFAULT" shall mean an event that with notice or lapse
of time or both would (if not cured or otherwise remedied within any
applicable grace period) become an Event of Default.
1.02 USAGE. All references to the singular or plural herein
shall also mean the plural or singular, respectively. The following
rules of interpretation apply to this Loan Agreement: (a) "or" is not
exclusive and "include" and "including" are not limiting; (b) "hereby",
"herein", "hereof", "hereunder", "this Loan Agreement" or other like
words refer to this Loan Agreement (c) a reference to any agreement or
other contract includes permitted supplements and amendments; (d) a
reference to a law includes any amendment or modification to such law and
any rules or regulations issued thereunder or any law enacted in
substitution or replacement therefor; (e) a reference to a Person
includes its permitted successors and assigns; (f) a reference herein to
a Section or Exhibit is to the relevant Section or Exhibit of this Loan
Agreement; (g) any right may be exercised at any time and from time to
time; (h) all obligations are continuing obligations; (i) time shall be
of the essence in the performance of all payment obligations; and (j) the
heading of the Sections, Exhibits and subsections are for the convenience
of reference only and shall not affect the meaning of this Loan
Agreement.
<PAGE>
SECTION 2. LOANS, NOTE, AND PREPAYMENTS.
2.01 LOANS. Lender agrees, on the terms and subject to
conditions of this Agreement, to make loans in the amounts specified in
Section 4.02 to the Borrower in Dollars during the period from and
including the Effective Date to but not including the Final Maturity Date
in an aggregate principal amount of up to but not exceeding $3,000,000.
2.02 BORROWINGS OF LOANS. The Borrower shall give the Lender
notice of each borrowing hereunder as provided in Section 4.02 hereof.
Not later than 1:00 p.m. New York time on the date specified for each
borrowing of a Loan hereunder, Lender shall make available the amount of
the Loan to be made by it on such date to the Borrower, at the account
specified in writing by Borrower to Lender in such notice, in immediately
available funds, for account of the Borrower.
2.03 NOTE.
(a) The Loans made by Lender to the Borrower shall be evidenced
by a single promissory note of the Borrower substantially in the form of
Exhibit A hereto, dated the date hereof.
(b) The date and amount of each Loan made by Lender to the
Borrower, and each payment or conversion made on account of the principal
thereof, shall be recorded by Lender on its books and, prior to any
transfer of the Note evidencing the Loans, endorsed by the Lender on the
schedule attached to the Note or any continuation thereof, each of which
recordations or endorsements shall constitute prima facie evidence of the
matters set forth therein; PROVIDED that the failure of the Lender to
make any such recordation or endorsement shall not affect the obligations
of the Borrower to make a payment when due of any amount owing hereunder
or under the Note in respect of the Loans to be evidenced by such Note.
2.04 OPTIONAL PREPAYMENTS; Subject to Lender's rights pursuant
to Section 5, the Borrower shall have the right to prepay the Loans at
any time or from time to time, without premium or penalty, PROVIDED that,
the Borrower shall give the Lender notice of each such prepayment as
provided in Section 10.02 at least two days prior to the date specified
for prepayment (upon the date specified in any such notice of prepayment,
the amount to be prepaid shall become due and payable hereunder).
SECTION 3. PAYMENTS OF PRINCIPAL AND INTEREST.
3.01 REPAYMENT OF LOANS.
(a) PRINCIPAL. The Borrower hereby promises to pay to the
Lender the entire outstanding principal amount of the Loans and each
such Loan shall mature and be payable in full, on the Final Maturity
Date.
(b) INTEREST. The Borrower hereby promises to pay to the Lender
interest
<PAGE>
on the unpaid principal amount of each Loan made by Lender to
the Borrower for the period from and including the date of the Loan to
but excluding the date such Loan shall be paid or prepaid in full, at the
rate of 10% per annum, calculated on the basis of a 365/366 day year.
Notwithstanding the foregoing, so long as any Event of Default shall have
occurred and be continuing, the Borrower hereby promises to pay to the
Lender interest at the Post-Default Rate (but not in excess of that
permitted by applicable law) on any principal of any Loan made by Lender
to the Borrower, any Additional Amount and on any other amount payable by
the Borrower hereunder or under the Note or under any other Loan
Document.
3.02 ADDITIONAL PAYMENTS. In the event that (i) the Final
Maturity Date is not the Closing Date and (ii) (1) the sum of (A) the
number of Conversion Shares converted prior to the Final Maturity Date
plus (B) the maximum number of shares into which the principal amount of
the Note at the Final Maturity Date may be converted shall (2) exceed the
Conversion Limitation (the amount of such excess herein called the
"Excess Shares"), then on the Final Maturity Date the Borrower shall pay
to Lender, in addition to the amounts set forth in Section 3.01, as
liquidated damages, and not as penalty, an amount (the "Additional
Amount") equal to the product of (X) the number of Excess Shares times
(Y) the excess of (a) the average closing price of a share of Class A
Stock on the AMEX for the thirty Business Days preceding the Final
Maturity Date over (b) $1.10 (One and 10/100 Dollars).
SECTION 4. PAYMENTS; NOTICES; ETC.
4.01 PAYMENTS.
(a) Except to the extent otherwise provided herein, all payments
of principal, interest and other amounts to be made by the Borrower under
this Agreement and the Note, and, except to the extent otherwise provided
therein, all payments to be made by the Borrower under any other Loan
Document, shall be made in Dollars, in immediately available funds,
without deduction, set-off or counterclaim, to the Lender at the account
specified in writing by the Lender to the Borrower on the date hereof,
not later than 2:00 p.m. New York time on the date on which such payment
shall become due (each such payment made after such time on such due date
to be deemed to have been made on the next succeeding Business Day).
4.02 NOTICES FOR BORROWINGS. Each notice of a borrowing (a
"Borrowing Notice") hereunder shall be signed by an Authorized Officer
and delivered by Borrower to Lender in the manner and at the address set
forth in Section 10.02 not later than two days prior to the requested
Borrowing Date (or such shorter period acceptable to the Lender). Such
notice shall set forth the requested amount of the loan to be made and be
accompanied by a description, in reasonable detail, of the proposed uses
(the "Proposed Uses") of such borrowing. The Lender, in its sole
discretion, shall approve or disapprove, each Proposed Use. The Lender
shall notify the Borrower of each approved Proposed Use (the "Approved
Purposes") and the amount of the loan made pursuant to such Borrowing
Notice shall be reduced by the amount, if any, of the Proposed Uses that
do not constitute Approved Purposes.
SECTION 5.CONVERSION OF NOTE.
<PAGE>
5.01 CONVERSION RIGHTS AND CONVERSION PRICE. Subject to and upon
compliance with the provisions of this Section 5, at the option of the
Lender or the current holder of the Note (the "Converting Holder"), the
Note or any portion of the outstanding principal thereof may, at any time
on or prior to the Final Maturity Date, be converted at the principal
amount th ereof, or any portion thereof, into fully paid and
nonassessable shares (calculated as to each conversion into integral
numbers of shares) of Class A Stock, at the conversion price of $1.10
(One and 10/100 Dollars) (the "Conversion Price") per share of Class A
Stock. Notwithstanding the foregoing, the aggregate number of shares of
Class A Stock into which the Note may be converted by the Converting
Holder shall not exceed the number of shares (the "Conversion
Limitation") that may be acquired by the Converting Holder (i) without a
vote of the shareholders of the Borrower under the rules of the AMEX or
(ii) pursuant to a currently effective waiver (a "Conversion Waiver") of
such rules by the AMEX.
5.02 EXERCISE OF CONVERSION RIGHTS. In order to exercise the
conversion right set forth in Section 5.01, the holder of the Note shall
deliver to the Borrower a notice (a "Conversion Notice") of (i) the
principal amount (a "Converted Principal Amount") of the Note to be
converted (which amount shall be an integral multiple of the Conversion
Price), (ii) the number of shares (the "Conversion Shares") of Class A
Stock into which the Converted Principal Amount shall be converted and
(iii) the date (the "Conversion Date") on which such conversion shall be
effective (which date may be no earlier than the date of such Conversion
Notice).
The Note shall be deemed to have been converted and the principal
amount of the Note reduced by the Converted Principal Amount on the
Conversion Date and the Converting Holder shall be treated for all
purposes as the record holder of the Conversion Shares on the Conversion
Date. As promptly as practical, but in no event more than three Business
Days after the Conversion Date, the Borrower shall issue and deliver to
the Converting Holder, at its address set forth herein, a certificate or
certificates (as specified by the Converting Holder) for the full number
of the Conversion Shares.
5.03 MANDATORY CONVERSION. In the event that the Closing occurs
at the Final Maturity Date, the outstanding principal amount of the Note
shall automatically be converted on the Final Maturity Date at the
Conversion Price into the maximum number of whole shares (without regard
to the Conversion Limitation) and the principal amount of the Note shall
be reduced by the corresponding Converted Principal Amount. In such
event, for purposes of the Stock Purchase Agreement the Converted
Principal Amount on the Final Maturity Date plus any prior Converted
Principal Amounts shall be deemed to be payment of the aggregate purchase
price of a number of Shares equal to the number of Conversion Shares on
the Final Maturity Date plus any prior Conversion Shares at the Purchase
Price Per Share. The Borrower shall issue and deliver on the Closing
Date to the Converting Holder, at the Closing a certificate or
certificates (as specified by the Converting Holder) for the full number
of the Conversion Shares so converted on the Closing Date.
<PAGE>
5.04 BORROWER'S COVENANTS. In connection with this Section 5,
the Borrower covenants and agrees with the Converting Holder as follows:
(a) In the event that at any time the Conversion Limitation
shall be less than 2,727,272 shares of Class A Stock, the Borrower shall
use its best efforts to obtain a waiver of the rules of the AMEX such
that the Conversion Limitation shall exceed 2,727,272 shares of Class A
Common Stock.
(b) The Borrower shall at all times reserve and keep available,
free from preemptive rights, out of its authorized and unissued Class A
Stock, for the purpose of effecting the conversion of the Note, the full
number of shares of Class A Stock then issuable upon the conversion of
the principal amount of the Note (without regard to the Conversion
Limitation).
(c) The Borrower shall pay any and all taxes, liens and charges
that may be payable in respect of the issue or delivery of shares of
Class A Stock on conversion of the Note pursuant hereto. The Borrower
shall not, however, be required to pay any tax which may be payable in
respect of any transfer involved in the issue and delivery of shares of
Class A Stock in a name other than that of the Converting Holder, and no
such issue or delivery shall be made unless and until the Person
requesting such issue has paid to the Borrower the amount of any such
tax, or has established to the satisfaction of the Borrower that such tax
has been paid.
(d) The Borrower covenants that all shares of Class A Stock
which may be issued upon conversion of the Note will upon issue be duly
authorized, fully paid and nonassessable.
5.05 REGISTRATION RIGHTS. If, and only if, the Closing does not
occur at the Final Maturity Date, the holders of Conversion Shares shall
have the following rights with respect to such Conversion Shares.
(a) From the date hereof and on or before January 15, 2006 at
any time Borrower proposes to file a registration statement under the
Securities Exchange Act of 1933, As amended (the "Act") with respect to
an offering by Borrower, for its own account or the account of its
shareholders, of shares of Class A Stock (other than a registration
statement on Form S-4 or S-8 (or any substitute form that may be adopted
by the Securities and Exchange Commission (the "Commission")) or filed in
connection with an exchange offer or an offering of securities or rights
solely to Borrower's existing security holders), then Borrower shall in
each such case give written notice of such proposed filing to the holders
of the Conversion Shares as soon as practicable (but in no event less
than 30 days before the anticipated filing date), and such notice shall
offer such holders the opportunity to register such shares of Conversion
Shares as such holder may request.
(b) Borrower shall use its best efforts to cause any managing
underwriter or underwriters of such proposed underwritten offering to
permit the Conversion Shares requested to be included in the registration
statement for such offering to be included on the
<PAGE>
same terms and conditions as any similar securities of Borrower included
therein. Notwithstanding the foregoing, if the managing underwriter or
underwriters of such offering advise Borrower that they reasonably
believe that the success of the offering would be materially and
adversely affected by inclusion of the Conversion Shares and the
inclusion of other shares (the "Other Shares") requested to be included,
such amount of Conversion Shares and Other Shares, pro rata, as shall be
required to substantially eliminate the adverse effect in the judgment of
the managing underwriter or underwriters, will be excluded from such
offering; provided that the Borrower shall not be required to effect such
elimination pro rata if the Borrower is contractually obligated to
include the Other Shares prior to the inclusion of shares of Class A
Stock held by others. In the case of a non-underwritten offering,
Borrower may decline to include any Conversion Shares in a registration
statement pursuant to Section 5.05(a) if it reasonably believes that such
inclusion would adversely affect the offering of the securities to be
covered by the proposed registration statement.
(c) To the extent not inconsistent with applicable law, each
holder whose securities are included in the registration statement
pursuant to this Section 5.05 agrees not to effect any public sale or
distribution of the issue being registered or a similar security of
Borrower, including a sale pursuant to Rule 144 under the Act, during the
14 days prior to, and during the 60-day period beginning on, the
effective date of such registration statement (except as part of such
registration), if and to the extent requested by Borrower in the case of
the non-underwritten public offering or if and to the extent requested by
the managing underwriter or underwriters in the case of an underwritten
public offering.
(d) The out-of-pocket expenses of any registration pursuant to
this Section 5.05 shall be borne by Borrower, except each holder
proposing to sell Conversion Shares pursuant to the registration shall
pay all underwriting discounts and commissions applicable to his shares
and all legal fees and expenses, if any, of his own counsel; PROVIDED,
HOWEVER, that if the out-of-pocket expenses of the registration pursuant
to this Section 5.05 are being borne by a person other than Borrower, its
successors or assigns, each holder proposing to sell Conversion Shares
pursuant to the registration shall pay his pro rata share of the out-of-
pocket expenses of such registration.
(e) In connection with the offering of any Conversion Shares
registered pursuant to this Section 5.05, Borrower shall take such action
as may be necessary to qualify or register the Conversion Shares to be
sold under the securities or "blue sky" laws of such jurisdictions as may
be reasonably requested by such holder or his underwriters; PROVIDED,
HOWEVER, that Borrower will not be required to (a) qualify generally to
do business in any jurisdiction where it would not otherwise be required
to qualify but for this Section, (b) subject itself to taxation in any
such jurisdiction or (c) consent to general service of process in any
such jurisdiction. The expenses of such qualification or registration
shall be borne pro rata by the holders of Conversion Share and any other
party registering shares pursuant to such registration statement in the
case of a registration pursuant to this Section 5.05.
(f) Borrower agrees to indemnify and hold harmless each holder
of Conversion Shares, its partners, if any and their respective officers,
directors and agents and
<PAGE>
each person, if any, who controls such holder within the meaning of
Section 15 of the Act or Section 20 of the Securities and Exchange
Act of 1934 (the "Exchange Act") from and against any and all lawsuits,
claims, damages, liabilities and expenses (including reasonable costs
of investigation) arising out of or based upon any untrue or alleged
untrue statements of a material fact contained in any registration
statement or prospectus relating to the Conversion Shares or in
any amendment or supplement thereto or in any preliminary prospectus,
or arising out of or based upon any omission or alleged omission
to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or expenses arise
out of, or are based upon, any such untrue statement or omission or
allegation thereof made in reliance upon and in conformity with
information furnished in writing to Borrower by such holder or at the
direction of such holder expressly for use therein; PROVIDED that, with
respect to any untrue statement or omission or alleged untrue statement
or omission made in any preliminary prospectus, the indemnity agreement
contained in this paragraph shall not apply to the extent that any such
loss, claim, damage, liability or expense results from the fact that a
current copy of the prospectus was not sent or given to the person
asserting any such loss, claim, damage, liability or expense at or prior
to the written confirmation of the sale of such Conversion Shares to such
person if it is determined that it was the responsibility of such holder
to provide such person with a current copy of the prospectus and such
current copy of the prospectus would have cured the defect giving rise to
such loss, claim, damage, liability or expense. Borrower also agrees to
indemnify and provide contribution arrangements to the underwriters of
the Conversion Shares, their officers and directors and each person who
controls such underwriters on substantially the same basis as that of the
indemnification of a holder provided in this Section 5.05(f).
(g) Each holder of Conversion Shares shall agree to indemnify
and hold harmless Borrower, its officers, directors and agents and each
person, if any, who controls Borrower within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from Borrower to such holder, but only
with respect to such information furnished in writing by such holder or
at such holder's direction expressly for use in any registration
statement or prospectus relating to the Conversion Shares, or any
amendment or supplement thereto, or any preliminary prospectus; PROVIDED
that, with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus, the indemnity
agreement contained in this paragraph shall not apply to the extent that
any such loss, claim, damage, liability or expense results from the fact
that a current copy of the prospectus was not sent or given to the person
asserting any such loss, claim, damage, liability or expense at or prior
to the written confirmation of the sale of such Conversion Shares to such
person if it is determined that it was the responsibility of Borrower to
provide such person with a current copy of the prospectus and such
current copy of the prospectus would have cured the defect giving rise to
such loss, claim, damage, liability or expense. Each holder shall also
agree to indemnify and provide contribution arrangements to the
underwriters of the Conversion Shares, their officers and directors and
each person who controls such underwriters on substantially the same
basis as that of the indemnification of Borrower provided in this
Section 5.05(g).
(h) Promptly after receipt by an indemnified party under
Section 5.05(f)
<PAGE>
or Section 5.05(g) above of notice of the commencement of any action
for which indemnification may be sought, the indemnified party shall
notify the indemnifying party. The failure to notify the
indemnifying party shall relieve it from any liability hereunder with
respect to the action, but only to the extent the indemnifying party was
actually harmed by such failure. In case any such action is brought
against any indemnified party, and it notifies any indemnifying party of
the commencement thereof, the indemnifying party shall be entitled to
assume and control the defense of the action at its expense, with counsel
reasonably satisfactory to the indemnified party, and if the indemnifying
party gives notice to such indemnified party of its election to assume
and control the defense, the indemnifying party will not be liable to
such indemnified party for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense or
investigation of the action. Notwithstanding the foregoing, the
indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified
party or such controlling person unless (i) the indemnifying party has
agreed to pay such fees and expenses or (ii) the named parties to any
such action or proceeding include both the indemnifying party and the
indemnified party and each of the indemnifying party and the indemnified
party shall have been advised by counsel that counsel employed by the
indemnifying party would, under applicable professional standards, have a
conflict in representing both the indemnified party and the indemnifying
party, it being understood, however, that such indemnifying party shall
not, in connection with any such action or proceeding or separate, but
substantially similar or related actions or proceedings, in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more
than one separate firm of attorneys at any time for such indemnified
party and controlling persons thereof.
SECTION 6.CONDITIONS PRECEDENT.
6.01 EFFECTIVE DATE. This Agreement shall become effective on
the first date that each of the following conditions shall have been
satisfied or fulfilled (or waived in accordance with Section 10.04):
(a) CERTIFICATES; OPINIONS; DOCUMENTS; ETC. The receipt by the
Lender of the following documents, each of which shall be satisfactory
to the Lender in form and substance:
(i) BYLAWS; RESOLUTIONS. A certificate of the secretary or
an assistant secretary of the Borrower, dated the Effective Date
and certifying (A) that attached thereto is a true and complete
copy of the bylaws of the Borrower as amended and in effect at
all times from the date on which the resolutions referred to in
clause (B) were adopted to and including the date of such
certificate, (B) that attached thereto is a true and complete
copy of resolutions duly adopted by the board of directors of the
Borrower authorizing the execution, delivery and performance of
the Loan Documents, the extensions of credit hereunder and the
issuance and the reservation for issuance of the shares of
Class A Stock issuable on conversion of the Note
<PAGE>
and that such resolutions have not been modified, rescinded or
amended and are in full force and effect, (C) as to the incumbency
and specimen signature of each officer of the Borrower executing
the Loan Documents and each other document to be delivered by the
Borrower from time to time in connection therewith (and the
Lender may conclusively rely on such certificate until it receives
notice in writing from the Borrower) and (D) there have been no
amendments to the Articles of Incorporation of the Borrower
since December 8, 1995.
(ii) STATUS AND OFFICER'S CERTIFICATES. Each of the
conditions set forth in Section 6.02(a) and (b) shall be true and
the Lender shall have received a certificate of an Authorized
Officer, dated the Effective Date, to the effect set forth in
Section 6.02(a) and (b) and to the effect that all of the
conditions required to be met by the Borrower set forth in this
Section 6.01 have been satisfied.
(iii) OPINION OF COUNSEL OF THE BORROWER. An opinion, dated
the Effective Date, of counsel to the Borrower, substantially in
the form of Exhibit B hereto and covering such other matters as
the Lender may reasonably request (and the Borrower hereby
instructs such counsel to deliver such opinion to the Lender).
(iv) NOTE. The Note, duly completed and executed by the
Borrower to the Lender.
(v) MORTGAGE. Counterparts of the Mortgage duly executed
on behalf of the Borrower and the Lender.
(vi) LOAN AGREEMENT. Counterparts of this Agreement duly
executed on behalf of the Borrower and the Lender.
(vii) COLLATERAL MATTERS. Uniform Commercial Code lien
searches and UCC-1 financing statements in such jurisdictions as
shall be reasonably requested by the Lender.
(viii) OTHER DOCUMENTS. Such other documents as the Lender
may reasonably request.
(b) RESTRUCTURING AGREEMENTS. The receipt by the Lender of
evidence, in form and substance satisfactory to the Lender, that:
(i) THE UNIONS SHALL HAVE RATIFIED THE MODIFICATIONS TO
THEIR RESPECTIVE COLLECTIVE BARGAINING AGREEMENTS AS CONTEMPLATED
BY EXHIBIT F TO THE STOCK PURCHASE AGREEMENT; AND
(ii) THE FUNDS MADE AVAILABLE BY THE DEFERRAL OF RENTALS AND
<PAGE>
MAINTENANCE PAYMENTS BY AMERICAN AIRLINES, INC. AS CONTEMPLATED BY
EXHIBIT D OF THE STOCK PURCHASE AGREEMENT SHALL HAVE BEEN
UTILIZED BY THE BORROWER TO PAY OPERATING EXPENSES.
The Lender shall promptly give the Borrower notice of the Effective Date.
6.02 INITIAL AND SUBSEQUENT LOANS. The obligation of the Lender
to make its initial Loan and any subsequent Loan, upon the occasion of
each borrowing, is subject to the conditions precedent that, both
immediately prior to the making of such Loan and also after giving effect
thereto and to the intended use thereof:
(a) NO DEFAULT. No Unmatured Default or Event of Default shall
have occurred and be continuing;
(b) REPRESENTATIONS AND WARRANTIES TRUE. The representations
and warranties made by the Borrower in Section 7 hereof and in each of
the other Loan Documents, shall be true and complete on and as of the
date of the making of such Loan or other extension of credit with the
same force and effect as if made on and as of such date (or, if any
such representation or warranty is expressly stated to have been made
as of a specific date, as of such specific date);
(c) BORROWING LIMITS. The limitation set forth in Sections 2.01
shall not be exceeded; and
(d) NOTICE. All Borrowing Notices shall have been properly and
timely given in accordance with the requirements of this Agreement.
Each Borrowing Notice by the Borrower hereunder shall constitute a
certification by the Borrower to the satisfaction of the conditions set
forth in clauses (a) to (d) above (both as of the date of such notice and
as of the date of such borrowing).
SECTION 7. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Lender that except as
set forth in the Disclosure Letter:
7.01 CORPORATE EXISTENCE. The Borrower (a) is a corporation,
partnership or other entity duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization; (b) has
all requisite corporate or other power, and has all governmental
licenses, authorizations, consents and approvals necessary to own its
assets and carry on its business as now being or as proposed to be
conducted except to the extent the failure to have any of the foregoing
would not have a Material Adverse Effect; and (c) is qualified to do
business and is in good standing in all jurisdictions in which the nature
of the business conducted by it makes such qualification necessary and
where failure so to qualify could have a Material Adverse Effect.
<PAGE>
7.02 LITIGATION. There are no legal or arbitral proceedings, or
any proceedings by or before any Governmental Entity, now pending against
the Borrower or (to the knowledge of the Borrower) threatened against
the Borrower in which there is a reasonable possibility of an adverse
decision against the Borrower which could have a Material Adverse Effect.
7.03 NO BREACH. None of the execution and delivery of this
Agreement, the Note and the other Loan Documents, the consummation of the
transactions herein and therein contemplated or compliance with the terms
and provisions hereof and thereof will conflict with or result in a
breach of, or require any consent under, the articles or bylaws of the
Borrower, or any applicable law or regulation, or any order, writ,
injunction or decree of any court or Governmental Entity, or any
agreement or instrument to which the Borrower is a party or by which its
Property is bound or to which it is subject, or constitute a default
under any such agreement or instrument, or result in the creation or
imposition of any Lien upon any Property of the Borrower pursuant to the
terms of any such agreement or instrument.
7.04 ACTION. The Borrower has all necessary corporate power,
authority and legal right to execute, deliver and perform its obligations
under each of the Loan Documents; the execution, delivery and performance
by the Borrower of each of the Loan Documents have been duly authorized
by all necessary corporate action on its part (including, without
limitation, any required shareholder approvals); and this Agreement has
been duly and validly executed and delivered by the Borrower and
constitutes, and the Note and the other Loan Documents when executed and
delivered by the Borrower (in the case of the Note, for value) will
constitute, its legal, valid and binding obligation, enforceable against
the Borrower in accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting creditors' rights
generally or by application of general principles of equity.
7.05 APPROVALS. No authorizations, approvals or consents of,
and, except for filings required by the Mortgage, no filings or
registrations with, any Governmental Entity, or any securities exchange,
are necessary for the execution, delivery or performance by the Borrower
of any of the Loan Documents or for the legality, validity or
enforceability thereof.
7.06 INVESTMENT COMPANY ACT. The Borrower is not an "investment
company", or a company "controlled" by an "investment company", within
the meaning of the Investment Company Act of 1940, as amended.
7.07 PUBLIC UTILITY HOLDING COMPANY ACT. The Borrower is not a
"holding company", or an "affiliate" of a "holding company" or a
"subsidiary company" of a "holding company", within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
7.08 TRUE AND COMPLETE DISCLOSURE. The information, reports,
financial statements, exhibits and schedules furnished in writing by the
Borrower to the Lender in
<PAGE>
connection with the negotiation, preparation or delivery of this
Agreement and the other Loan Documents or included herein or therein
or delivered pursuant hereto or thereto, when taken as a whole do not
contain any untrue statement of material fact or omit to state any
material fact necessary to make the statements herein or therein,
in light of the circumstances under which they were made, not
misleading. All written information furnished after the date hereof by
the Borrower to the Lender in connection with this Agreement and the
other Loan Documents and the transactions contemplated hereby and thereby
will be true, complete and accurate in every material respect, or (in the
case of projections) based on reasonable estimates, on the date as of
which such information is stated or certified.
SECTION 8. COVENANTS OF THE BORROWER.
The Borrower covenants and agrees with the Lender that, so long
as any Loan is outstanding and until payment in full of all amounts
payable by the Borrower hereunder:
8.01 EXISTENCE, ETC. The Borrower will:
(a) preserve and maintain its legal existence;
(b) preserve and maintain all of its material rights,
privileges, licenses and franchises;
(c) comply with the requirements of all applicable laws, rules,
regulations and orders of any Governmental Entity if failure to comply
with such requirements could have a Material Adverse Effect; and
(d) keep adequate records and books of account, in which
complete entries will be made in accordance with generally accepted
accounting principles consistently applied.
8.02 CONSOLIDATIONS, MERGERS AND DISPOSAL OF ASSETS. The
Borrower shall not consolidate with or merge into any other corporation
or convey, transfer or lease its properties and assets substantially as
an entirety to any Person.
8.03 USE OF PROCEEDS. The Borrower shall use the proceeds of
Loans only for Approved Purposes.
8.04 ADDITIONAL INDEBTEDNESS. On and after the Effective Date,
and so long as the Loans and the Note shall not have been paid in full,
the Borrower shall not without the written consent of the Lender incur
any Indebtedness other than Indebtedness incurred in the ordinary course
of business.
SECTION 9. EVENTS OF DEFAULT; REMEDIES.
If one or more of the following events (herein called "EVENTS OF
DEFAULT") shall occur and be continuing:
<PAGE>
(a) The Borrower shall: (i) default in the payment of any
principal of, or interest on, any Loan or any Additional Amount when
due (whether at stated maturity or at mandatory or optional
prepayment); or (ii) default in the payment of any fee or any other
amount payable by it hereunder or under any other Loan Document when
due and such default shall have continued unremedied for [ten (10)] or
more Business Days; or
(b) The Borrower shall default in the payment when due of any
amount due to American Airlines, Inc., CIT GROUP/Finance Credit Inc.,
GPA Group plc, AEROUSA, Inc., Robert Midkiff, Martin Anderson or any
principal of or interest on any of its other Indebtedness aggregating
$2,000,000 or more, or any event specified in any note, agreement,
indenture or other document evidencing or relating to any such
Indebtedness shall occur, which default or event may result in such
Indebtedness becoming or otherwise being declared due and payable
prior to its stated maturity; or
(c) Any representation, warranty or certification made or deemed
made herein or in any other Loan Document (or in any modification or
supplement hereto or thereto) by the Borrower, or any certificate
furnished to the Lender pursuant to the provisions hereof or thereof,
shall prove to have been false or misleading as of the time made (or
deemed made) or furnished in any material respect; or
(d) The Borrower shall default in the performance of any of its
other obligations in this Agreement or any other Loan Documentand such
default shall continue unremedied for a period of three (3) days after
notice thereof to the Borrower by the Lender; or
(e) The Borrower shall admit in writing its inability to, or be
generally unable to, pay its debts as such debts become due; or
(f) Borrower shall consent to the appointment of a custodian,
receiver, trustee or liquidator (or other similar official) of itself
or of a substantial part of its property, or Borrower shall be unable
to pay its debts generally as they become due, or shall make a general
assignment for the benefit of creditors, or Borrower shall file a
voluntary petition in bankruptcy or a voluntary petition or an answer
seeking reorganization in a proceeding under any bankruptcy law (as
now or hereafter in effect) or an answer admitting the material
allegations of a petition filed against Borrower in any such
proceeding, or Borrower by voluntary petition, answer or consent shall
seek relief as debtor under the provisions of any other present or
future bankruptcy or other similar law providing for the
reorganization or winding-up of corporations, or providing for an
agreement, composition, extension or adjustment with its creditors or
Borrower shall take any corporate action to authorize any of the
foregoing; or
(g) A petition against Borrower in a proceeding under any
bankruptcy or other insolvency law (as now or hereafter in effect)
shall be filed, and any decree or
<PAGE>
order adjudging Borrower a bankrupt or insolvent in such proceeding
shall remain in force undismissed and unstayed for a period of sixty
(60) days after such adjudication or, in the case the approval
of such petition by a court of competent jurisdiction is required,
the petition as filed or amended shall be approved by such a court
as properly filed and such approval shall not be withdrawn and the
proceeding shall not be dismissed within sixty (60) days thereafter,
or if, under the provisions of any law providing for reorganization
or winding-up of corporations which may apply to Borrower, any court
of competent jurisdiction shall enter an order or decree assuming
custody or control of Borrower or of any substantial part of its
property and such custody or control remains in force unrelinquished,
unstayed and unterminated for a period of thirty (30) days; or
(h) Any Loan Document, or any material provision in any Loan
Document, shall at any time or for any reason cease to be in full
force and effect or is declared to be null and void or is repudiated
or disavowed by the Borrower or the Borrower denies that it has any
further liability or obligation thereunder or gives notice to such
effect; or
(i) Borrower shall fail to issue to Lender, or the party
entitled thereto, shares of Class A Stock on the date required by
Section 5 hereof; or
(j) The Lender's Lien, mortgage or security interest in any of
the Collateral (as defined in the Mortgage) becomes unenforceable.
THEREUPON: (1) in the case of an Event of Default other than one
referred to in clause (f) or (g) of this Section 9, the Lender may by
notice to the Borrower declare the principal amount then outstanding of,
and the accrued interest on, the Loans plus any Additional Amount and all
other amounts payable by the Borrower hereunder and under the Note to be
forthwith due and payable, whereupon such amounts shall be immediately
due and payable without presentment, demand, protest or other formalities
of any kind, all of which are hereby expressly waived by the Borrower;
and (2) in the case of the occurrence of an Event of Default referred to
in clause (f) or (g) of this Section 9, the principal amount then
outstanding of, and the accrued interest on, the Loans plus any
Additional Amounts and all other amounts payable by the Borrower
hereunder and under the Note shall automatically become immediately due
and payable without presentment, demand, protest or other formalities of
any kind, all of which are hereby expressly waived by the Borrower.
SECTION 10.MISCELLANEOUS.
10.01WAIVER. No failure on the part of the Lender to exercise
and no delay in exercising, and no course of dealing with respect to, any
right, power or privilege under this Agreement or any Note or other Loan
Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege under this Agreement or
any Note or other Loan Document preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
<PAGE>
10.02 NOTICES. All notices, requests and other communications
provided for herein and under the other Loan Documents (including,
without limitation, any modifications of, or waivers or consents under,
this Agreement) shall be given or made in writing (including, without
limitation, by telex or telecopy), delivered to the intended recipient at
the "Address for Notices" specified below its name on the signature pages
hereof; or, as to any party, at such other address as shall be designated
by such party in a notice to each other party. Except as otherwise
provided in this Agreement, all such communications shall be deemed to
have been duly given when transmitted by telex or telecopier or
personally delivered or, in the case of a mailed notice, three days after
deposit, in each case given or addressed as aforesaid.
10.03 EXPENSES, ETC. The Borrower agrees to pay or reimburse the
Lender for paying: (a) $20,000 in fees and expenses incurred by the
Lender in connection with the negotiation and preparation of this
Agreement and all reasonable out-of-pocket costs and expenses of the
Lender in connection any modification, supplement or waiver of any of the
terms of this Agreement or any of the other Loan Documents; (b) all
reasonable out-of-pocket costs and expenses of the Lender (including,
without limitation, reasonable counsels' fees) in connection with (i) any
Unmatured Default or Event of Default and any enforcement or collection
proceedings resulting therefrom or in connection with the protection or
preservation of rights or interests or the negotiation of any
restructuring or "work-out" (whether or not consummated) of the
obligations of the Borrower hereunder and under the other Loan Documents
and (ii) the enforcement of this Section 10.03; and (c) all transfer,
stamp, documentary or similar taxes, assessments or charges levied by any
Governmental Entity in respect of any of the Loan Documents or any other
document referred to herein.
The Borrower hereby agrees (i) to indemnify the Lender and its
partners, and their respective directors, officers, employees, attorneys
and agents from, and hold each of them harmless against, any and all
losses, liabilities, claims, damages or expenses incurred by any of them
arising out of or by reason of any investigation or litigation or other
proceedings (including any threatened investigation or litigation or
other proceedings) (whether or not the Lender or such other indemnified
Person is a party thereto) relating to the extensions of credit hereunder
or any actual or proposed use by the Borrower of the proceeds of any of
the extensions of credit hereunder or otherwise relating to this
Agreement, including, without limitation, the reasonable fees and
disbursements of counsel incurred in connection with any such
investigation or litigation or other proceedings (but excluding any such
losses, liabilities, claims, damages or expenses incurred by reason of
the gross negligence or willful misconduct of the Person to be
indemnified) and (ii) not to assert any claim against the Lender, any of
its affiliates, or any of its respective directors, officers, employees,
attorneys and agents, on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to
any of the transactions contemplated herein or in any other Loan
Document.
10.04 AMENDMENTS, ETC. Except as otherwise expressly provided in
this Agreement, any provision of any Loan Document may be modified or
supplemented only by an instrument in writing signed by the Borrower and
the Lender.
<PAGE>
10.05 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
10.06 ASSIGNMENT. The Borrower may not assign any of its rights
or obligations hereunder or under the Note without the prior consent of
the Lender.
10.07 SURVIVAL. The obligations of the Borrower under Section
10.03 shall survive the repayment of the Loans. In addition, each
representation and warranty made, or deemed to be made by a notice of any
extension of credit, herein or pursuant hereto shall survive the making
of such representation and warranty, and the Lender shall not be deemed
to have waived, by reason of making any extension of credit hereunder,
any Unmatured Default or Event of Default which may arise by reason of
such representation or warranty proving to have been false or misleading,
notwithstanding that the Lender may have had notice or knowledge or
reason to believe that such representation or warranty was false or
misleading at the time such extension of credit was made.
10.08 COUNTERPARTS; INTEGRATION. This Agreement may be executed
in any number of counterparts, all of which taken together shall
constitute one and the same instrument and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement,
together with each of the other Loan Documents, constitute the entire
agreement and understanding among the parties hereto and supersede any
and all prior agreements and understandings, oral or written, relating to
the subject matter hereof.
10.09 GOVERNING LAW; SUBMISSION TO JURISDICTION. This Agreement
and the Note shall be governed by, and construed in accordance with, the
law of the State of New York. Each of the Lender and the Borrower hereby
submits to the nonexclusive jurisdiction of the United States District
Court for the Southern District of New York and of any New York state
court sitting in New York City for the purposes of all legal proceedings
arising out of or relating to this Agreement or the transactions
contemplated hereby. Each of the Lender and the Borrower irrevocably
consents to the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof
by registered or certified mail, postage prepaid, to such party at its
address set forth under its signature below, such service to become
effective when received at that address. Nothing herein shall affect the
right of any party to serve process in any other manner permitted by law
or to commence legal proceedings or otherwise proceed against any other
party in any other jurisdiction. Each of the Lender and the Borrower
irrevocably waives, to the fullest extent permitted by applicable law,
any objection which it may now or hereafter have to the laying of the
venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an
inconvenient forum.
10.10 WAIVER OF JURY TRIAL. EACH OF THE BORROWER AND THE LENDER
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
<PAGE>
10.11 INDEPENDENCE OF COVENANTS. All covenants under this
Agreement shall each be given independent effect so that if a particular
action or condition is not permitted by any such covenant, the fact that
it would be permitted by another covenant, by an exception thereto, or be
otherwise within the limitations thereof, shall not avoid the occurrence
of an Unmatured Default or an Event of Default if such action is taken or
condition exists.
10.10 SUBORDINATION OF LIEN. THE LIEN OF THE MORTGAGE ON CERTAIN
COLLATERAL (OTHER THAN THE SPECIFIED COLLATERAL, AS DEFINED IN THE
MORTGAGE) IS SUBORDINATE TO (I) THE LIEN CREATED BY THAT CERTAIN LOAN AND
SECURITY AGREEMENT, DATED AS OF SEPTEMBER 12, 1994, BETWEEN MAKER AND THE
CIT GROUP/CREDIT FINANCE, INC. ("CIT") PURSUANT TO AN INTERCREDITOR AND
SUBORDINATION AGREEMENT, DATED AS OF JANUARY 15, 1996, BETWEEN CIT AND
AIP AND (II) THE LIEN CREATED BY THAT CERTAIN ROTABLE SPARE PARTS CHATTEL
MORTGAGE AND SECURITY AGREEMENT, DATED AS OF OCTOBER 30, 1992, BETWEEN
MAKER AND AEROUSA, INC. ("AEROUSA") PURSUANT TO AN INTERCREDITOR AND
SUBORDINATION AGREEMENT, DATED AS OF JANUARY 15, 1996, BETWEEN AEROUSA
AND AIP.
[THIS SPACE INTENTIONALLY LEFT BLANK.]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered as of the day and year first above
written.
BORROWER:
HAWAIIAN AIRLINES, INC.
3375 Koapaka Street
Suite G350
Honolulu, Hawaii 96819
Attention: Vice President-Finance
Telecopier:(808) 836-4795
Telephone:(808) 835-3075
Copy to
3375 Koapaka Street
Suite G350
Honolulu, Hawaii 96819
Attention: Vice President-General Counsel
Telecopier:(808) 835-3690
Telephone:(808) 835-3610
By: /S/ Bruce R. Nobles
--------------------------------
Name: Bruce R. Nobles
Title: Chairman, President and
Chief Executive Officer
By: /S/ Rae A. Capps
---------------------------------
Name: Rae A. Capps
Title: Vice President, General
Counsel and Corporate Secretary
<PAGE>
LENDER:
AIRLINE INVESTORS PARTNERSHIP, L.P.
By: AIP GENERAL PARTNER, INC.
By: /S/ Richard Conway
---------------------------------
Name: Richard Conway
Title: Vice President
Address for Notices:
885 Third Avenue
34th Floor
New York, New York 10022
Telecopier No.: 212-751-9503
Telephone No.: 212-888-8575
