Exhibit 10.5




 




AMENDED AND RESTATED COMMERCIAL

COOPERATION AGREEMENT




 




This Amended and

Restated Commercial Cooperation Agreement (“Agreement”) is made this 18

day of September, 2002 (the “Effective Date”), by and between AMERICA

WEST AIRLINES, INC., a Delaware corporation (“America West”), with its

principal administrative office at 111 West Rio Salado Parkway, Tempe, Arizona

85281, and HAWAIIAN AIRLINES, INC. (“Hawaiian”), with its principal

administrative office at 3375 Koapaka Street, G-350, Honolulu, HI 96819.




 




Recitals




 




America West and

Hawaiian are each certificated air carriers providing air transportation

services with respect to both passengers and cargo in their respective areas of

operation.




 




America West and

Hawaiian desire to enter into a cooperative relationship that will include the

code-sharing of flights, through check-in, special prorate arrangements for

passengers, and joint sales and marketing programs.




 




NOW, THEREFORE, in

consideration of the premises and the mutual promises herein contained, America

West and Hawaiian hereby agree that:




 




1.             Schedules to be Operated.




 




(a)           To the extent permitted by law,

Hawaiian flights operated by Hawaiian may be marketed not only under Hawaiian’s

“HA” designator code but also under America West’s “HP*” designator code.  Such flight segments shall hereafter be

referred to as “Code Shared Segments”. 

A flight involving Code Shared Segments wherein at least one segment is

operated by Hawaiian and one segment is operated by America West is hereafter

referred to as a “Code Share Flight” Exhibit A attached hereto sets

forth the initial city pairs where Code Shared Segments may operate during the

term of this Agreement.  Neither America

West nor Hawaiian (each a “Carrier” and, collectively, the “Carriers”)

shall have an obligation to extend Code Shared Segments to other city pairs or

to maintain operations of its aircraft on any routes.  If Hawaiian ceases operation of any Code Shared Segments, such

city pairs shall cease to be Code Shared Segments under this Agreement.  America West may place its designator code

on the Hawaiian flights in the Code Shared Segments designated on Exhibit A

attached hereto.




 




(b)           America West may request, in writing,

that Hawaiian place America West’s designator code on flights operated by

Hawaiian in markets not listed on Exhibit A (a “Code Request”).  Hawaiian in its reasonable judgment within

30 days after receipt of the Code Request (the “Response Notice”) shall

either consent to or reject the Code Request. 

If Hawaiian consents, then such markets shall become Code Shared

Segments, shall be added to Exhibit A by




 





























 




written amendment

executed by both of the Carriers and shall be subject to all the terms and

conditions of this Agreement effective on the effective date specified in the consent.  If Hawaiian fails to issue the Response

Notice, timely, then Hawaiian shall be deemed to have rejected the Code

Request.




 




(c)           Subject to the limitations set forth

below, America West, upon written notice to Hawaiian, may require that Hawaiian

remove America West’s designator code from certain Code Shared Segments

operated by Hawaiian.  Subject to the

limitations set forth below, Hawaiian, upon at least 90 days’ prior written

notice to America West, may cause the designator code of America West to be

removed from the Code Shared Segments operated by Hawaiian.  The right to remove the designator code and

the right to cause the designator code to be removed pursuant to the preceding

two sentences shall be subject to the following limitations, except as

permitted pursuant to Paragraph 2 below: (i) prior to the first anniversary of

the Effective Date, neither Carrier may remove the designator code or cause the

designator code to be removed from any Code Shared Segments; and (ii) during

each subsequent 180-day period during the Term, the total Code Shared Segments

removed by America West and Hawaiian shall not exceed 33% of the Code Shared

Segments designated on Exhibit A that remain subject to this Agreement on the

first day of such 180-day period.  Upon such

removal, America West shall cease to book any additional passengers on such

Code Shared Segments and ticketed passengers holding reservations on the

removed Code Shared Segments will be notified and reaccommodated, to the extent

necessary, by America West.  Upon

removal of a designator code in accordance with this paragraph 1(c), such

markets shall no longer be Code Shared Segments.




 




2.             Schedules.  For flights operating within Code Shared

Segments, Hawaiian, subject to Section 11 of the Terms and Conditions, shall

operate the schedule published by it on the date hereof or the date the Code

Shared Segment is added to this Agreement. 

Hawaiian may change its schedule for flights operated within Code Shared

Segments in its own discretion; provided that, if a proposed change in the

schedule will have an adverse effect on America West’s connecting opportunities

to the flights operated within Code Shared Segments, Hawaiian will provide

America West with as much advance notice as practical of the schedule change.  If the adverse effect of the proposed change

makes the continued operation of the Code Shared Segment(s) undesirable, in the

opinion of America West, America West can delete such Code Shared Segment(s)

from the operation of this Agreement effective on the effective date of the

schedule change by providing written notice to Hawaiian, whereupon Hawaiian

shall delete America West’s  code from

the flights operated within such Code Shared Segments.  Upon such deletion, America West shall cease

to book any additional passengers on such Code Shared Segments and ticketed

passengers holding reservations on that Code Shared Segment will be notified

and reaccommodated, to the extent necessary, by America West.




 




2





























 




3.             Pricing and Capacity Control of

Code Shared Segments.




 




(a)           Pricing.




 




(i)            America West independently and in

its own discretion will set the price and file the tariffs and fares as may be

required for Code Share Flights (each, a “Code Share Itinerary” and

collectively, “Code Share Itineraries”) that utilize America West’s

designator codes (HP or HP*).  Unless

specifically permitted by this Agreement, America West shall only establish and

publish fares for carriage for Code Shared Itineraries that include a flight

segment operated by America West between the city pairs set forth in Exhibit G.




 




(ii)           The Carriers agree that with the

exception of Code Shared Segments operated by a regional carrier operating as

America West Express no third party carriage shall be included in the price or

acceptable routing for a Code Share Itinerary.




 




(iii)          If no fare is published by America

West for a Code Share Flight, the fare(s) published by Hawaiian through ATPCO

for Code Share Segments operated by Hawaiian within a Code Share Itinerary

shall be the only fares offered by America West for such Code Share Segments

and such fare shall be the fare paid to Hawaiian.




 




(iv)          America West shall not offer any

off-tariff or unpublished fare(s), or discounts or rebates for flights operated

by Hawaiian, either separately or as part of a Code Share Itinerary.




 




(b)           Capacity Control.  Hawaiian will determine, independently and

at its sole discretion, the number of seats that will be made available by it

in a particular reservation booking designator.  The Carriers will establish a mutually agreeable method of

mapping fare codes consistent with Exhibit B attached hereto.  On or before the 180th day after

the Effective Date and thereafter on each anniversary of the Effective Date and

within 10 days after either Carrier provides written notice to the other

Carrier that it is changing its reservations booking class designators(“RBDs”)

and/or hierarchy, the Carriers shall review the method of mapping RBDs and, if

necessary and mutually agreeable, shall amend Exhibit B in accordance with this

Agreement.  The effective date of such

change shall be no sooner than thirty (30) days after agreement is reached or

another date mutually agreed in writing between the Carriers.




 




4.             Revenue Allocation.  The revenue from Code Share Itineraries will

be allocated between the Carriers in accordance with Exhibit C attached

hereto.  It is understood that tickets

for Code Share Flights will be issued such that a separate coupon will be

utilized for each flight segment. 

Revenue shall be settled through the Airline Clearing House (“ACH”).




 




3





























 




5.             Procedures Manual.  Detailed procedures for implementing this

Agreement will be set forth in the procedures manual (“Procedures Manual”),

which will be prepared by the parties in connection with this Agreement.  The Procedures Manual, including any

amendments or supplements to the Procedures Manual agreed in writing by the

parties from time to time, shall be incorporated by reference and made a part

of this Agreement.  Except as otherwise

set forth in this Agreement, the terms of this Agreement shall prevail in the

event of a conflict between a provision of this Agreement and any provision of

the Procedures Manual.




 




6.             Term.  This Agreement shall be effective as of the

Effective Date and, unless earlier terminated as provided elsewhere in this

Agreement (including the exhibits hereto), shall continue in effect until

October 31, 2005 (the “Term”). 

Notwithstanding the foregoing to the contrary, Hawaiian shall not place

America West’s designator code on any flights within the Code Shared Segments

until all required governmental reviews of this Agreement and the routes have

occurred.




 




7.             Sales and Marketing Programs.  To the extent permitted by law, the Carriers

will work to develop and implement mutually agreeable joint sales and marketing

programs, including, but not limited to Internet marketing, to help promote the

code share relationship.  Details of

joint program development, charges for inclusion therein and the individual

components thereof will be negotiated and agreed between the Carriers.




 




8.             Other Agreements.




 




(a)           In furtherance of the relationship,

the Carriers shall enter into agreements concerning the following subject matters:




 




Subject

Matter




 




A.            Airport Lounge Access Agreement




B.            Frequent Flyer Participation

Agreement




 




(b)           In furtherance of the relationship,

the Carriers may, without obligation, enter into agreements concerning the

following subject matters:




 




Subject

Matter




 




A.                                   Ground

Handling




B.                                     Internet

Link/Logo License Agreement




C.                                     Code

Share Agreements with Related Parties




D.                                    Pro-rate

Agreement for Cargo




E.                                      Employee

Travel Benefits




F.                                      TCN

Code Share Agreement




 




4





























 




9.             Incorporation.  Incorporated by reference herein and made a

part hereof are Exhibits A, B, C, D (the “Terms and Conditions”), E and

F attached hereto.




 




10.           Governing Law; Venue; Jurisdiction.  This Agreement shall be governed by and

construed in accordance with the laws of the State of Arizona without reference

to principles of choice or conflicts of law. 

The exclusive venue for any lawsuit filed in state court relating to

this Agreement shall be in Maricopa County, Arizona.  The exclusive venue for any lawsuit filed in federal court

relating to this Agreement shall be in the federal District Court for the

District of Arizona.  With respect to

any lawsuit arising out of this Agreement, the Carriers agree that exclusive jurisdiction

shall be with the applicable court as set forth in this paragraph with respect

to venue.




 




11.           Original Agreement.  Hawaiian shall immediately notify America

West upon Hawaiian’s receipt of all necessary labor union approvals (“Approval

Notice”) of the terms and conditions of the parties’ Commercial Cooperation

Agreement dated July 19, 2002 (“Original Agreement”).  Following receipt of the Approval Notice by America West, the

parties, as soon as reasonably practicable, shall execute all necessary documents

to reinstate the Original Agreement and terminate this Agreement so that

America West flights may be marketed under Hawaiian’s “HA*” designator code as

contemplated under the Original Agreement.




 




IN WITNESS

WHEREOF, the parties hereto have caused this Agreement to be executed as of the

last date written below.




 




	

  HAWAIIAN AIRLINES, INC.


  	

  AMERICA WEST AIRLINES,

  INC.


  
	

   


  	

   


  
	

  By:


  	

   


  	

   


  	

  By:


  	

   


  	

   


  
	

   


  	

  John B. Happ


  	

   


  	

  Dion Flannery


  
	

  Title:


  	

  Senior Vice President


  	

   


  	

  Vice President –

  Scheduling and


  
	

   


  	

  Marketing and Sales


  	

   


  	

  Route Planning


  
	

   


  	

   


  	

   


  	

   


  
	

  Date:


  	

   


  	

   


  	

  Date:


  	

   


  	

   


  
	

   


  	

   


  
	

   


  	

   


  
	

  By:


  	

   


  	

   


  	

   


  
	

   


  	

  Lyn Flanigan Anzai


  	

   


  	

   


  
	

  Title


  	

  Vice President, General

  Counsel


  	

   


  	

   


  
	

   


  	

  and Corporate Security


  	

   


  
	

   


  	

   


  
	

  Date:


  	

   


  	

   


  	

   


  
											





 




5





























Exhibit

A




To




Commercial Cooperation Agreement




Between




America West and Hawaiian




 




Code Shared Segments




 




1.             Code Shared

Segments operated by Hawaiian Airlines between the following city pairs:




 




HNL-LAS




HNL-PHX




HNL-ITO




HNL-KOA




HNL-LIH




HNL-LNY




HNL-MKK




HNL-OGG




 




2.             Except where

otherwise allowed, all Code Share Itineraries must include flights operated by

both HA and HP / HP regional carriers.




 




- End Exhibit A -




 




A-1





























 




CONFIDENTIAL




 




Exhibit B




To




Commercial Cooperation Agreement




Between




America West and Hawaiian




 




Fare Class Mapping




 




1.               CODESHARE BOOKING

CLASS REQUIREMENTS




 




(a)          The booking scheme

outlined in paragraph 2, below shall be filed in IPGT1, CAB581 Rule 7 by HP

to apply when the HA flights covered by this Agreement are sold using the HP*

code on a through HP/HP* fare




 




(b)         Both carriers shall

ensure that the booking scheme outlined in this paragraph 1 shall be used for

translation of booking class designators in their in-house reservation systems,

in global distribution systems, and for interline settlement.




 




2.               Codeshare Class

Mapping – U.S. Domestic, Mexico and Canada Routings - HP* flights Operated by

HA




 




The following

corresponding reservations booking designators (RBDs) shall be used for HP*

codeshare flights operated by HA.




 




[REDACT]




 




- End Exhibit B -




 




B-1





























Exhibit C




To




Commercial Cooperation Agreement




Between




America West and Hawaiian




 




Codeshare Settlement Agreement




 




 




Section 1.  Application/Ticket Stock




 




1.1                               This

Exhibit applies to all HA and HP published fares as defined herein between

Canada/Mexico and the USA for code share service outlined in the Agreement

which are issued using HP/401 and HA/173 ticket stock, including neutral ARC

and IATA ticket stock validated with the HP/401 and HA/173 numeric airline

accounting codes.  Except for participation

by regional carriers operating as America West Express, third party carrier

participation in the itinerary and Amount To Be Prorated (ATBP) is NOT allowed.




1.2                                 Tickets

issued for Local Market Code Share, pursuant to the Agreement shall be settled between

HA and HP according to Exhibit F of the Agreement and not under the terms of

this Exhibit C.




 




Section 2.  Interline Settlement




 




America West and Hawaiian hereby agree to divide revenues and otherwise

prorate fares as set forth in the Appendix and the Attachments hereto.




 




Section 3.  Intentionally Omitted




 




Section

4.  Intentionally Omitted




 




Section

5.  Notices




 




Notwithstanding the notice section of the Agreement, all notices,

requests, demands and other communication required pursuant to this Exhibit

shall be in writing and delivered by hand, certified mail, courier, telex, or

telecopy, e-mail or given by facsimile transmission to the Carriers at the

following addresses.  Email

communication requires acknowledgment from the receiving party.




 




If to Hawaiian:




 




To:              Hawaiian Airlines, Inc.




Honolulu

International Airport




P. O. Box 30008




3375 Koapaka

Street, Suite G-350




Honolulu,

Hawaii  96820




Attn.:  Sr. Director, Market Planning




Telephone:           (808) 838-6769




Facsimile:              (808)

838-6746




email:                     damon_hylton@hawaiianair.com




 




Matters pertaining

to accounting of this Exhibit should be referred to HA at:




Telex Address

HNLACHA




Attention:  Manager-Interline Accounting




 




C-1





























 




With a copy to:         Hawaiian Airlines, Inc.




Attn.:  Vice President and General Counsel




P. O. Box 30008




3375 Koapaka

Street Suite G-350




Honolulu,

Hawaii  96820-0008




Telephone:                (808) 835-3610




Facsimile:                  (808) 835-3690




email:                          lyn_anzai@hawaiianair.com




 




If to America West:




 




To:              Jacqueline Kaye




Director –

Alliances and Partnerships




4000 E Sky Harbor

Blvd.




Phoenix, AZ  85034




Phone:                (480) 693-5824




Facsimile:           (480) 693-2873




email:                

jacqueline.kaye@americawest.com




 




Matters pertaining

to accounting of this Exhibit should be referred to HP at:




Telex Address

PHXINHP




Attention:  Manager-Interline Accounting




 




Section

6.  Intentionally Omitted




 




Section

7: Relationship to Agreement




 




In the event of any inconsistency between this Exhibit and the

Agreement, the terms and conditions and provisions of the Agreement shall

prevail.




 




Section 8. Integration by Reference

of ATA Interline Traffic Agreement-Passenger




 




8.1                                 The

Carriers acknowledge and agree (i) that they are signatories to the Air

Transport Association Interline Traffic Agreement-Passenger(ATA Resolution

5.65) (as amended from time to time) , and (ii) that the terms and conditions

set forth in ATA Resolution 5.65 are incorporated herein by reference.  In the event of any inconsistency between

ATA Resolution 5.65 and this Exhibit, the provisions of this Exhibit shall

prevail.




 




C-2





























 




CONFIDENTIAL




 




APPENDIX




Interline Settlement General

Conditions




 




1.1 

General




 




The Carriers agree to divide revenues and otherwise prorate fares as

set forth below, starting from the Effective Date and effective for the term of

the Agreement.




i.                                   Applicable

Fare/Ticket Types:  For rules

governing tickets applicable to this Exhibit, see attachment A.




ii.                                Revenue

Settlement:  See Attachment B.  For involuntary reroutes and FIMs, see

Attachment C.




iii.                             Applicable

Published Fares:  For fare

verification purposes, the applicable published fare is that filed with ATPCO

in effect on the date the passenger’s ticket is issued.




iv.                             [REDACT]




v.                                Fare

Class Mapping:  Reservation booking

class (RBD)/Class mapping requirements are as outlined in Exhibit B in the

Agreement.




vi.                            Applicable Flights:  This Exhibit does not apply to any

HP-marketed flight (HP* flight designated) other than carriers operating as

America West Express in the flight number range(s) 5000-6999 or to any

HA-marketed (HA* designated flight) not operated by HA in the flight number

ranges 3200-3499 operated by American Eagle and 4000-4999 operated by Alaska

Airlines.




vii                            Rule

Waivers: The billing Carrier shall recognize rule waivers granted by the

other Carrier or its ticketing agents only when such waiver applies to tickets

issued using the “waiving carrier’s” numeric airline accounting code.  Waiver of booking class requirements is not

permitted.




viii.                      Minimum

Prorate Rule:  The IATA Minimum

Prorate Rules as specified in chapter E.1.e of the Prorate Manual Passenger

(PM-P) do not apply between the Carriers to any of the provisions specifically

addressed herein.




 




1.2 

Exclusions




 




This Exhibit does

not include:




i.                             Frequent

Flyer Tickets - Any arrangement for settlement of properly issued frequent

flyer redemption tickets,  charges, or

fees.




ii.                          Special

Fees - Any arrangement for settlement of any fees  or charges not reflected on a ticket as part of the fare

calculation, including but not limited to CRS fees, credit card fees, GSA fees,

etc.




iii.                       Agency(AD)

and Industry(ID) Discounts - AD and ID tickets shall be issued for travel

on the operating carrier’s numeric airline accounting code under the terms and conditions

set forth by the operating carrier and properly issued AD/ID tickets shall not

be settled under the terms and conditions of this Exhibit.




 




1.3  Settlement of Accounts




 




Account settlement

and payment of all amounts due under this Exhibit shall be accomplished through

the ACH in accordance with the ACH Manual of Procedure. Tickets not meeting the

criteria of this Exhibit and therefore not subject to this Exhibit shall be

settled according to other agreements in effect between the Parties, or in the

absence of same, the provisions of the ACH Manual shall apply.




 




C-3





























 




1.4 

Collection of Applicable Fares




 




Except for the

fare reductions specifically noted herein, all other charges with respect to

transportation furnished hereunder, including charges for excess baggage, shall

be governed by each party’s applicable tariffs, rules and regulations.




 




1.5 

Responsibility for Compliance with Conditions




 




Each Carrier

agrees to see that its agents comply with the terms and conditions of this

Exhibit.  Should the terms and

conditions of this Exhibit be violated by a Carrier or its agents, the Carrier

in violation agrees to reimburse the other Carrier(s) any losses or damages incurred

by the other Carrier(s) due to violation of the terms and conditions herein by

the Carrier in violation or its agents.




 




C-4





























 




ATTACHMENT

A – CODESHARE TICKET ACCEPTANCE




 




A)          ACCEPTABLE




 




America West and Hawaiian

shall allow interline ticketing of the following fare types on Code Share

Flights: 




 




1.                                                                     Commercial

published fares filed with ATPCO




 




B)            UNACCEPTABLE




 




This Exhibit does not apply to ticketing for Code

Share Flights except as referenced in paragraph A above.  Unacceptable tickets may include but not be

limited to the following types of documents/fares. Except when a separate

agreement for settlement of such document/fare exists between the carriers, in

the event such documents/fares are issued for Code Share Flights, they shall be

settled pursuant to Attachment B, paragraph B.2:




 




1.               Student discount

tickets (i.e., council travel or STA, CIEE’s and USTI’s)




2.               Unpublished fare

tickets with or without a fare shown which may include but not be limited to,

bulk fare/inclusive tour tickets and/or domestic consolidator tickets.




3.               Non-standard ticket

stock




4.               Electronic tickets;

Until such time as a bilateral interline e-ticketing agreement exists between

America West and Hawaiian, America West shall not enable e-ticketing for

codeshare designated flights and passengers with electronic tickets shall be

referred to the issuing airline or travel agency to obtain a standard printed

ticketed for presentation to America West.




5.               Zero value tickets,

including Frequent Flyer documents, DB100 and AD100’s




6.               Discounted voucher

tickets (i.e., Silver Liners and Fly Free Vouchers)




7.               VUSA tickets for

published and unpublished fares.




8.               Industry (ID) and

Agency (AD) discounted tickets.




9.               Tickets issued in

RBD’s not listed/defined/mapped in Exhibit B




 




C)            America West and

Hawaiian grant each other an endorsement waiver with respect to tickets issued

for Code Share Flights pursuant to the Agreement.




 




D)           Employee pass and duty

travel tickets shall be issued using Hawaiian’s numeric airline accounting code

and shall be accepted according to the terms and conditions of the bilateral

reduced rate agreement for employee travel in effect between America West and

Hawaiian. The Carriers’ respective employee travel departments are free to

(re)negotiate the terms and conditions of the aforementioned agreement at any

time.




 




E)             The “Frequent Flyer

Participation Agreement”, referenced in the Agreement, will determine policies

and procedures dealing with the acceptance and settlement of properly issued

frequent flyer documents, including frequent flyer redemption documents.  Tickets deemed ‘unacceptable’ according to

paragraph B.5. above shall be settled as specified herein.




 




F)             This Exhibit in no

way overrides or supercedes the passenger handling procedures or rules

identified in SIPP rule 120.20 as they relate to irregular or unscheduled

operations occurring on the intended day of departure of a Hawaiian or America

West flight, refer to Attachment C.




 




C-5





























 




CONFIDENTIAL




 




ATTACHMENT

B - ACCOUNTING AND SETTLEMENT




 




A)                       General




 




1.               When the ATBP

includes travel on the joint routings of flights operated by Hawaiian and

America West which include Code Shared Segments, fares/documents defined in

Attachment A, paragraph A issued pursuant to this Exhibit shall be settled

using the terms of this Attachment B, paragraph C.




2.               UATP charges will

be handled according to the standard provisions in the ACH manual.




3.               No

handling fee shall apply




 




B)                       Value

of Coupons Honored “As Is”




 




1.               Tickets issued pursuant to this Exhibit, as defined

under Attachment A, paragraph A- Acceptable, that are lifted or exchanged by

Hawaiian or America West will be billed using routine procedures for interline

billing, as if the original coupon had been endorsed to the operating carrier.

Pro-ration of such documents will be based on the revenue settlement formula in

Attachment B, paragraph C - Revenue Settlement and in all cases the operating

carrier’s highest fare for the cabin of service ticketed shall be used for

pro-ration.




 




[REDACT]




 




C) -

Revenue Settlement




 




1.              Domestic Itineraries




 




U.S. domestic fares issued pursuant to this Exhibit

(as defined in Attachment A) and in accordance with paragraph A.1 of this

Attachment B will be [REDACT].




 




[REDACT]




 




[REDACT]




 




2.              International

Itineraries




 




[REDACT]




 




3.              Surcharges




Surcharges

applicable to an individual arrival or departure city shall accrue to the

Carrier providing the service.  All

other surcharges will be settled using the provisions of the ACH Manual for

domestic/Canadian itineraries and IATA PMP for international itineraries.




 




C-6





























 




ATTACHMENT

C – INVOLUNTARY RE-ROUTING AND FLIGHT INTERRUPTION MANIFESTS




 




1.                                       Provided

no change in the passenger’s flight routing is required, whenever possible, the

Carriers agree to accept the passenger’s original ticket, without reissue and

settle under the same terms and conditions as if the original ticket had been

used for travel.




 




2.                                       Flight

Interruption Manifests (“FIMS”) and reissued (fare basis “INVOL”) tickets as

defined in ACH Section C.3 - Procedure 1.15 for involuntary re-routing that are

issued by America West or Hawaiian will be valued according to normal ACH

procedures.  The interline service charge

does not apply.




 




- End Exhibit C -




 




C-7





























 




Exhibit

D




To




Agreement




Between




America West and Hawaiian




 




General

Terms and Conditions




 




1.             Code-Sharing

Licenses and Flight Controls.




 




(a)           Grant of HP* License.  Subject to the terms and conditions of this

Agreement, America West hereby grants to Hawaiian a nonexclusive,

nontransferable, revocable license to use the HP* designator code on all of

Hawaiian’s flights operated within Code Shared Segments and Local Market Code

Shared Segments.  Subject to the terms

and conditions of this Agreement, Hawaiian shall place the HP* designator code

on all of Hawaiian’s flights operated within the Code Shared Segments and Local

Market Code Shared Segments and shall, to the extent reasonable, display such

designator code in all monitors in code shared stations.  (Hawaiian flights flown using the HP* code

are hereinafter referred to as “HP* Flights”).




 




(b)           Control of HP* Flights.  Hawaiian shall have sole responsibility for

and control over, and America West shall have no responsibility for, control

over or obligations or duties with respect to, each and every aspect of

Hawaiian’s operations including, without limitation, scheduling (except as

provided in Section 2 of the Agreement and Section 11 of the Terms and Conditions),

pricing (except as provided in Section 3 of the Agreement), planning of flight

itineraries and routings, reservations, reservations control/yield management,

flight crew, dispatch, fueling, weight and balance, flight release, aircraft

maintenance and engineering, and flight operations and compliance with

applicable rules and regulations.  At a

minimum, all maintenance and engineering of Hawaiian aircraft used on Code

Shared Segments and operation of such aircraft shall comply with all Federal

Aviation Administration (“FAA”) standards, Hawaiian’s approved

maintenance plan and applicable laws, ordinances, statutes, rules and

regulations (“Applicable Laws”).




 




2.             Confidential

Information.  Neither Hawaiian nor

America West shall disclose to the other Carrier or be required to disclose by

the other Carrier any information relating to its scheduling (except as

provided in Section 2 of the Agreement and Section 11 of the Terms and

Conditions), pricing (except as provided in Section 3 of the Agreement), inventory

control or flight profitability.  Except

to the extent necessary to obtain applicable regulatory approval and effect

interline settlement using ATPCO’s CIPS product, neither Hawaiian nor America

West shall disclose the terms of this Agreement, any information about the

existence or nature of any dispute hereunder or any information with respect to

the other Carrier obtained as a result of this Agreement,




 




D-1





























 




either during the Term or

thereafter; provided, however, that such disclosure may be made if required by

law or by any order of a court or administrative agency, and then, if possible,

only upon prior written notice by the disclosing Carrier to the other

Carrier.  The Carriers recognize that,

in the course of the performance of each of the provisions hereof, each Carrier

may be given and may have access to information of the other Carrier, including

proposed schedule and fare changes, sales and promotional programs, passenger

and cargo loads and other operating and competitive information, including but

not limited to statistical data concerning the same (“Confidential

Information”).  Neither of the

Carriers will use for its own business purpose any of the Confidential

Information obtained from the other Carrier, other than to carry out the

obligations set forth herein.  Each

Carrier shall preserve, and shall ensure, to the extent commercially

reasonable, that each of its officers, agents, consultants and employees who

receive Confidential Information preserve, the confidentiality of the other

Carrier’s Confidential Information and shall not disclose Confidential

Information to a third party without prior written consent from the other

Carrier or use Confidential Information except as contemplated by this

Agreement or if required by law or by any order of a court or administrative

agency, and then, if possible, only upon prior written notice by the disclosing

Carrier to the other Carrier.  This

Section 2 shall survive the termination or expiration of this Agreement.




 




3.             Quality of Service.  Hawaiian shall perform its service with

respect to flights operated within Code Shared Segments under this Agreement in

substantially the same manner that Hawaiian performs services generally on all

flights operated by Hawaiian.  Hawaiian

shall provide the same standard of in-flight services to code share passengers

as it provides its own passengers traveling in the same class of service.  Hawaiian agrees that, in conducting flight

operations under the designator of America West, it will employ prudent safety

and loss prevention policies in accordance with Applicable Laws.




 




4.             Operation Reviews.  America West shall have the right, at its

own cost, to inspect, review and observe Hawaiian’s operations of HP* Flights

and to conduct full safety and/or service audits of operations, manuals and

procedures reasonably related to HP* Flights. Any safety audit may include,

without limitation, maintenance and operation procedures, crew planning,

reservations, passenger and baggage handling, customer service, personnel

records, spare parts, inventory records, training records and manuals and

flight, flight training and operational personnel records.  In the exercise of such rights, America West

does not undertake any responsibility for the performance of Hawaiian’s

operations and procedures.  America West

will exercise such rights in coordination with Hawaiian so as not to cause any

disruptions to the operations of Hawaiian. 

Neither Carrier shall have access to the other Carrier’s records,

documents or systems relating to pricing, inventory control or flight

profitability.  Within forty-five (45)

days of the Effective Date, each Carrier shall provide the other Carrier with

an operation standards review document in a form and substance acceptable to

the other Carrier.




 




5.             Public Relations.  In the event of any irregularity in the

operations of Code Shared Segments under this Agreement, including, without

limitation, any event that




 




D-2





























 




causes damage to persons

or property, Hawaiian shall identify itself as being operated independently of

America West, and as being solely responsible for its operations.  Hawaiian may state that it holds a

code-sharing license from America West if third parties inquire as to such

relationship.  Hawaiian designates its

chief public relations officer to speak for and on its behalf with respect to

irregular operations involving flights operated by Hawaiian.




 




6.             Disaster Response.




 




(a)           Hawaiian and America West agree to

comply with the Family Assistance Act of 1996 and any amendments thereto (the “Act”).  Hawaiian and America West shall maintain and

file with the NTSB and DOT required plans that are compliant with the

provisions of the Act.  Copies of these

plans and any amendments thereto shall be exchanged for effective planning

purposes.




 




(b)           Hawaiian and America West shall work

in good faith to create a written plan setting forth each party’s role,

responsibilities, and obligations in the event of an aviation disaster and the

activation of each carrier’s Family Assistance Plan (the “Disaster Response

Plan”).  If the Carriers fail to

create a Disaster Response Plan, then the Disaster Response Plan shall be the

disaster response plan of the Carrier involved in the aviation disaster.  Should a disaster involving  Hawaiian occur, both parties shall carry out

their respective duties under the Disaster Response Plan.




 




(c)           Hawaiian and America West shall

cooperate to accomplish all training and preparation necessary for their

compliance with the Act and the Disaster Response Plan.




 




7.             Irregularities in

Operations.  Hawaiian shall promptly

notify America West of all irregularities involving a HP* Flight which result

in any material damage to persons or property as soon as such information is

available and shall furnish to America West as much detail as practicable.




 




8.             Reporting

Obligation.  Hawaiian, on a monthly

basis, shall furnish America West a summary of complaints, notices of

violation, requests to cease activity or similar correspondence which

reasonably relate to HP* Flights and which are received by Hawaiian from

America West or Hawaiian passengers, respectively, any government authority or

any other party.  Hawaiian shall comply

with America West’s reasonable requests for copies of any such documents.  The Carrier receiving such complaints,

notices of violations, requests to cease activity or similar correspondence

shall use commercially reasonable efforts to resolve such matters.




 




9.             Flight Display.




 




(a)           All Code Shared Segments will be

included in the schedule, availability and fare displays of all computerized

reservations systems in which America West and Hawaiian participate, the

Official Airline Guide (to the extent




 




D-3





























 




agreed upon) and

America West’s and Hawaiian’s internal reservation systems, under the shared

code as well as the operating carrier’s code. 

America West and Hawaiian will take commercially reasonable measures to

ensure the display of the schedules of all Code Share Flights in accordance

with the preceding sentence.  America

West shall have the obligation to inform the passenger booked to travel on

Hawaiian of any special conditions applicable to travel on the aircraft of

Hawaiian.




 




(b)           America West and Hawaiian will

disclose and identify the flights operated as Code Shared Segments to the

public as actually being a flight of and operated by the operating carrier, in

at least the following ways:




 




(i)           a symbol will be used in timetables

and computer reservation system indicating that the flights operated as Code

Shared Segments are actually operated by Hawaiian;




 




(ii)          to the extent reasonable, messages on

airport flight information displays will identify Hawaiian on Code Shared

Segments;




 




(iii)         America West and Hawaiian advertising

concerning Code Shared Segments and America West and Hawaiian reservations will

disclose the operator of each flight; and




 




(iv)         in any other manner prescribed by law.




 




(c)           All flights displayed in the computer

reservation system are subject to the conditions set forth on Exhibit E

attached hereto.




 




10.           Terms and Conditions

of Carriage and Claims Procedures.




 




(a)           In all cases the contract of carriage

between a passenger and a Carrier and between the Carriers will be that of the

Carrier whose fare is used in issuing the ticket for the Code Share Flight or

flight within a Local Code Shared Segment. 

The operating procedures and procedures for claims handling of Hawaiian

shall be applicable to the Code Shared Segments.  The Carriers will work together to identify discrepancies in

their respective contracts of carriage, operating procedures and procedures for

claims handling between the Carriers.




 




(b)           The Carriers will use existing ACH

procedures when handling and settling claims made by customers in connection

with Code Shared Segments.




 




11.           Irregularity

Handling.




 




(a)           Except as provided in the Procedures

Manual, in the event of flight delays, cancellations or other schedule

irregularities that affect any flights within Code




 




D-4





























 




Shared Segments or

flights intended to connect to any flights within Code Shared Segments,

Hawaiian will inform America West as soon as practical of all pertinent

information concerning an irregularity for customer information and handling

purposes.  The Carriers may develop

customer response protocols and tracking systems, which are integrated across

both Carriers’ systems.




 




(b)           The parties agree that they will

cooperate to the extent reasonably possible to accommodate passengers

experiencing flight irregularities (including, but not limited to, schedule

changes within twenty-four 24 hours, flight cancellations, delayed flights,

flight interruptions and delayed, damaged, pilfered or lost baggage).  Except as otherwise provided in the

Procedures Manual, in the event of a flight irregularity or denied boarding,

the Carrier causing or experiencing the irregularity or denied boarding shall

be responsible for and bear all costs and expenses associated with, accommodating

the passengers that have been affected by such flight irregularity or denied

boarding, including, but not limited to, hotel accommodations, meals, ground

transfers, communications, interline transfers and baggage recovery to the same

extent it accommodates its own passengers in the same class of service (i.e.

the written policies and procedures of the operating Carrier will be

followed).  Except as otherwise provided

in the Procedures Manual, the Carrier causing or experiencing the irregularity

or denied boarding shall reimburse the other Carrier for the costs and expenses

incurred on its behalf as a result of such flight irregularities or denied

boardings.




 




12.           Airport Operational

Assistance.  Each Carrier, to the

extent reasonably practicable, intends to develop a seamless transfer for

passengers connecting from an    America

West flight to HP* Flight and from a HP* Flight to an America West flight.  In connection therewith, America West and

Hawaiian will use commercially reasonable efforts to coordinate their schedules

involving Code Shared Segments to minimize the waiting time and to maximize

convenience of passengers who are connecting from an America West flight to an

HP* Flight and from an HP* Flight to an America West flight; provided, however,

except as otherwise provided herein, no Carrier shall be obligated to operate a

specific flight or schedule and the Carriers retain absolute control over their

schedules.  Each Carrier to the extent

commercially reasonable shall provide the other with the airport operational

assistance to assist with schedule compatibility for Code Share Flights, where

applicable.




 




13.           Tariff Filing.  Subject to the terms of paragraph 3(a) of

the Agreement, America West will file the tariffs and fares, as required by law,

for Code Share Itineraries that include flights operated as Code Shared

Segments utilizing its designator code (HP or HP*).




 




14.           Transportation Taxes.  Each Carrier shall be responsible for

collecting and paying any taxes or fees assessed by any governmental authority

or airport on the transportation of passengers or property for transportation

utilizing its travel documents.




 




D-5





























 




15.           Booking Fees.  Except as expressly provided in Exhibit F,

attached hereto, the operating Carrier will be responsible for any booking fee

relating to such segment charged by the vendor of a computer reservation system

used to create a booking on that flight.




 




16.           Reservations and

Inventory Management. Subject to the rights of America West to manage the

seat inventory that it controls, including seats on the flight of Hawaiian,

Hawaiian shall maintain its reservations and inventory management systems in

good order so that America West will be able to offer the same functionality to

its customer as is enjoyed by the customers of Hawaiian, including the ability

to make advance seat assignments where applicable and access inventory that is

available for sale (in the appropriate inventory class) on the reservations

system of Hawaiian, but excluding, until technically practical, the ability to

review seat maps.  Notwithstanding the

foregoing to the contrary, reservations and bookings involving groups of 10 or

more passengers must be handled through the group sales department of Hawaiian

and such reservations shall be made using Hawaiian’s airline designator code.




 




17.           Flight Coupon

Handling.




 




(a)           America West Authorization.  America West hereby authorizes Hawaiian to

handle America West flight coupons specifying America West through flight

numbers under this Agreement in the same way as if these coupons were

specifying Hawaiian flights.  America

West, upon written request from Hawaiian, shall confirm this authorization

immediately to third parties.




 




(b)           Interline Settlement.  Hawaiian will be responsible for collection

of the Code Share Flight coupons and coupons for flights operated within Local

Code Shared Segments applicable to flights operated by Hawaiian. Invoicing and

settlement for such coupons shall be governed by the Airlines Clearing House

(ACH) Manual of Procedure.




 




(c)           Interline E-Ticketing.  The Carriers, at their own cost and expense,

will use commercially reasonable efforts to implement Interline E-ticketing

capability, including, without limitation, billing rules and procedures.




 




18.           Compliance with Laws

and Regulations.  America West and

Hawaiian each agree to perform their respective obligations under this

Agreement in compliance with Applicable Laws and to maintain all licenses to

operate its airline required under Applicable Laws.  Each Carrier shall be responsible, at its own cost, for obtaining

any regulatory authorizations necessary to operate its flights or utilize its

designator code on flights operated in the Code Shared Segments; provided that,

the other Carrier shall render such reasonable assistance as is reasonably

requested in order to obtain such regulatory authorizations.




 




D-6





























 




19.           Independent Parties.




 




(a)           Independent Contractors.  It is expressly recognized and agreed that

each Carrier, in its performance and otherwise under this Agreement, is and

shall be engaged and acting as an independent contractor and in its own

independent and separate business; that each Carrier shall retain complete and

exclusive control over its staff and operations and the conduct of its

business; and that each Carrier shall bear and pay all expenses, costs, risks

and responsibilities incurred by it in connection with its obligations under

this Agreement.  Neither America West

nor Hawaiian nor any officer, employee, representative, or agent of America

West or Hawaiian shall in any manner, directly or indirectly, expressly or by

implication, be deemed to be in, or make any representation or take any action

which may give rise to the existence of, any employment, agent, partnership, or

other like relationship between America West and Hawaiian, but each Carrier’s

relationship as respects the other Carrier in connection with this Agreement is

and shall remain that of an independent contractor.




 




(b)           Status of Employees.  The employees, agents and/or independent

contractors of Hawaiian shall be employees, agents, and/or independent

contractors of Hawaiian for all purposes, and under no circumstances shall be

deemed to be employees, agents or independent contractors of America West.  The employees, agents and/or independent

contractors of America West shall be employees, agents and/or independent

contractors of America West for all purposes, and under no circumstances shall

be deemed to be employees, agents or independent contractors of Hawaiian.  America West shall have no supervisory power

or control over any employees, agents or independent contractors employed by

Hawaiian, and Hawaiian shall have no supervisory power or control over any

employees, agents and independent contractors employed by America West.




 




(c)           Liability for Employee Costs.  Each Carrier, with respect to its own

employees (hired directly or through a third party), shall be responsible for

the payment of worker’s compensation and/or employer’s liability (including

insurance premiums where required by law), as applicable, and for the payment

of all taxes, contributions or other payments for unemployment compensation,

vacations, or retirement age benefits, pensions and all other benefits now or

hereafter imposed upon employers with respect to its employees by any

government or agency thereof or any other party (whether measured by the wages,

salaries, compensation or other remuneration paid to such employees or

otherwise).




 




D-7





























 




 




20.           Indemnification and

Insurance.




 




(a)           Indemnification.




 




(i)           Except as otherwise provided herein,

each Carrier will indemnify, defend and hold harmless the other Carrier and its

directors, officers, employees, and agents from all liabilities, damages,

losses, claims, suits, judgments, costs, penalties, fines, causes of action,

fees and expenses, including reasonable attorneys’ and consultant’s fees and

court costs, directly or indirectly incurred, imposed upon or brought against

the other Carrier as the result of any claims that arise out of or in

connection with or as a consequence of the performance or failure of

performance of the indemnifying Carrier’s obligations hereunder, including, but

not limited to, operation of the aircraft by the operating Carrier.  In addition, each Carrier will indemnify,

defend and hold harmless the other Carrier and its directors, officers,

employees, and agents from all liabilities, damages, losses, claims, suits,

judgments, costs, penalties, fines, causes of action, fees and expenses,

including reasonable attorneys’ and consultant’s fees and court costs, directly

or indirectly incurred, imposed upon or brought against the other Carrier as

the result of any claims by third parties that arise out of, in connection with

or as a consequence of any products or services received from or supplied by

the indemnifying Carrier in connection with this Agreement while such third

party is under the control or in custody of or are being transported by the

indemnifying Carrier.




 




(ii)          The indemnified Carrier

has no right under this Section 20(a) to seek indemnification for claims that

arise out of such Carrier’s  gross

negligence or willful misconduct.




 




(iii)         In the case of each

indemnified Carrier:




 




A.            it shall promptly notify the

indemnifying Carrier in writing of any claim for indemnification hereunder,

take no action that will prejudice the claim and take reasonable interim steps

to protect the indemnified party’s right to defend;




 




B.            it shall cede to the indemnifying

Carrier, if the latter so requests, sole control of the defense and any related

settlement negotiations of any matter covered by indemnification hereunder

provided, the indemnifying party shall give due consideration to the indemnified

party’s input in connection with such defense and/or settlement;




 




D-8





























 




CONFIDENTIAL




 




C.            it shall provide to the indemnifying

Carrier, at latter’s expense, all reasonable information and assistance for

such defense or settlement; and




 




D.            the indemnifying Carrier shall not

be liable for any settlement of any such claim or suit entered into by the

indemnified Carrier without the former’s consent (which consent shall not be

unreasonably withheld).




 




(b)           Insurance Coverage.




 




(i)           Each Carrier shall, at

all times during the term of this Agreement, as applicable, maintain in full

force and effect policies of insurance as follows:




 




A.            Comprehensive Airline Liability

Insurance, including Aircraft Third Party, Passenger, including Passengers’

Baggage and Personal Effects, Cargo and Mail Legal Liability for a Combined

Single Limit (CSL) of not less than [REDACT] per

occurrence per Aircraft for each Carrier and War Risks and allied perils

Liability (as may exist from time to time and in such amounts are as

commercially available from time to time in the worldwide airline insurance

marketplace for carriers similarly situated as the Carriers).  In respect of Personal Injury, the maximum

limit is $25 million per offense and in the aggregate.




 




B.            Workmen’s Compensation or Government

Social Insurance:




 




Insurance                                                                    Per

Accident




 




(Company Employee)                                               Statutory




 




(ii)          Subject to Section

20(b)(i) of the Terms and Conditions, the operating Carrier shall, as

applicable, cause the policies of insurance described in such Section 20(b)(i)

with respect to flights operated as Code Shared Segments by it to be duly and

properly endorsed by that Carrier’s insurance underwriters as follows:




 




A.            to provide that each Carrier will

waive its rights of recovery against the other and require its insurance

policies required by this contract to permit such a waiver;




 




B.            to provide that the other Carrier,

its directors, officers, agents, employees and other authorized representatives

shall be endorsed as additional insured parties thereunder;




 




D-9





























 




C.            to provide that said insurance shall

be primary to and without right of contribution from any other insurance which

may be available to the additional insureds;




 




D.            to include a breach of warranty

provision in favor of the additional insureds;




 




E.             to accept and insure the operating

Carrier’s hold  harmless and indemnity undertaking under Section 20(a) of

the  Terms and Conditions, but only to

the extent of the coverage afforded by the policy or policies;




 




F.             to provide that said policy or

policies or any part or parts thereof shall not be canceled, terminated or

materially altered, changed or amended until 30 days (but seven days or such

lesser period as may be available in respect of war and allied periods) after

written notice thereof shall have been sent to the other Carrier;




 




G.            provide that the coverage afforded

to the additional insureds will not be invalidated by any act or omission of

any other person or party; and




 




H.            provide that coverage will not be

cancelled or materially altered without providing additional insureds with at

least 30 days’ prior written notice (except for War Risks).




 




(iii)         Simultaneously with the

commencement of this Agreement, and from time to time thereafter upon request

by either party, the other party shall furnish to the requesting party evidence

reasonably satisfactory to the requesting party of the aforesaid insurance

coverage and endorsements, including certificates certifying that the aforesaid

insurance and endorsements are in full force and effect.  Initially, this evidence shall be a

certificate of insurance required hereunder.




 




(c)           Survival of Rights and

Obligations.  The rights and obligations

of Section 20(a) of the Terms and Conditions shall survive the expiration or

termination of this Agreement.




 




21.           Term and Termination.




 




(a)           Term.  The Term shall be as set forth in Section 6

of the Agreement, unless earlier terminated as provided in this Section 21.




 




D-10





























 




(b)           Termination as a

Result of Changes in Laws.  If,

during the Term, there is any change in treaties, statutes or regulations of

air transportation (and legally binding interpretations thereof) (“Prohibiting

Laws”) that prevents America West or Hawaiian or both from operating the

HP* Flights or carrying out the arrangements contemplated by this Agreement or

attaches conditions or restrictions on the operation of HP* Flights that have a

material adverse effect on a Carrier’s other services or operations not

contemplated by this Agreement, then the Carriers will consult, within 30 days

after any of the occurrences described herein. 

The purpose of such consultations will be to assess such change or

changes and to seek mutual agreement as to what, if any, changes to this

Agreement are necessary or appropriate, including but not limited to the early

termination and cancellation of this Agreement; provided such changes to this

Agreement shall not materially and adversely affect the obligations of or

economic benefits to the Carriers.  Any

such changes to this Agreement shall be made in accordance with the procedure

set forth in Section 24 of the Terms and Conditions.  If the Carriers cannot agree on the changes to this Agreement,

then this Agreement shall terminate on the earlier of the effective date of

such Prohibiting Laws or 30 days after notice from either Carrier to the other.




 




(c)           Other Termination

Rights.  In addition to the

termination provisions of Paragraph (b) of this Section, this Agreement may be

terminated as follows:




 




(i)           By either Carrier on 30 days’ prior

written notice, if the other Carrier has breached any provision of this

Agreement unless such other Carrier cures such breach within such 30 day period

(or such larger period as is required in the exercise of due diligence provided

the cure is commenced during such thirty day period and is continuously and

diligently pursued to completion);




 




(ii)          By either Carrier immediately on

notice, if the other Carrier shall be dissolved or shall fail to maintain its

corporate existence in good standing, or shall have its authority to operate as

a scheduled airline suspended or revoked, either in whole or with respect to

the HP* Flights  or shall cease

operations as a scheduled airline except as permitted in Section 26;




 




(iii)         By either Carrier if a petition is

filed by or against the other Carrier under bankruptcy law, or any other law

providing for the relief of debtors, and the affected party does not succeed in

having such petition lifted or stayed within 60 days from the date of any order

of bankruptcy passed thereon; it being understood that the Carrier at its

option may cancel this Agreement immediately and exercise such other remedies

as may be available at law and/or in equity;




 




D-11





























 




(iv)         By either Carrier immediately on notice

if the other Carrier fails to maintain the insurance coverage that is required

to be maintained pursuant to Section 20 of the Terms and Conditions;




 




(v)          By either Carrier immediately on

notice if the other Carrier has its participation in the ACH suspended or

revoked and such suspension or revocation continues for a period of five days

without reinstatement; and




 




(vi)         By either Carrier immediately on notice

if the other Carrier voluntarily withdraws from participation in the ACH;




 




(vii)        By either Carrier (including the

acquired or merged Carrier) upon not less than 180 days’ prior written notice

if a Carrier is acquired by or merged into another certificated airline; and




 




(viii)       By either Carrier by providing the other

Carrier with at least 180 days’ prior written notice in the event of a change

of control of either Carrier or a sale of substantially all of either Carrier’s

assets.  “Change of Control”

means any “person” or “group” (each as used in Sections 13(d)(3) and 14(d)(2)

of the Exchange Act) either becomes the beneficial owner (as defined in Rule

13d-3 of the Exchange Act), directly or indirectly, of voting securities of

either party (or securities converted into or exchangeable for such voting

securities) representing 50% or more of the combined voting power of all voting

securities of the party (on a fully diluted basis) or otherwise has the

ability, directly or indirectly, to elect a majority of the board of directors

of the party or any person or two or more persons acting in concert shall have

acquired by contract or otherwise, or shall have entered into a contract or

arrangement that, upon consummation thereof, will result in its or their acquisition

of the power to exercise, directly or indirectly, a controlling influence on

the management or policies of the party; provided, however, that a transfer of

voting securities to a holding company by Hawaiian shareholders pursuant to

which after the transfer the Hawaiian shareholders become the holders of the

voting securities in the holding company and the control of the holding company

is the same as the control of Hawaiian on the Effective Date as approved at the

Hawaiian shareholders 2002 annual meeting, shall not be deemed a Change of

Control.




 




(d)           On the expiration or termination of

this Agreement, each Carrier shall undertake (i) to immediately cease the use

of the other Carrier’s Service Marks (as defined below) and to sign and deliver

to the other Carrier any notification of cessation; (ii) to procure that the

flight designator code of the other Carrier is removed from all reservation

systems, timetables, displays, schedules and other publications in relations to

its respective services with immediate effect (in relation to computerized

publication) and with effect from the next published




 




D-12





























 




edition (in

relation to printed publications); (iii) through commercially reasonable

efforts the Carriers shall notify all customers to which they have reasonable

access who have purchased tickets, any portion of which is unused for what were

shared code flights that the code designator no longer applies to that flight

nor does the flight have any association with the applicable Carrier; and (iv)

in the event the termination is the result of any of the matters enumerated in

subparagraph 21(c)(i)-(v), the terminating Carrier may pursue all rights and

remedies available at law and in equity against the other Carrier; provided,

however, that in no event shall either Carrier be entitled to recover special,

consequential or punitive damages from the other Carrier.




 




22.           Trademarks.




 




(a)           Hawaiian shall have a nonexclusive,

nontransferable and revocable license only for the Term to use the America West

Service Marks (as defined below) solely in its marketing programs for the

purpose of promoting Code Share Flights. 

All advertising programs using any America West Service Marks shall be

subject to America West’s prior written approval, which may be granted or

withheld in its sole discretion.  In

general, Hawaiian’s use of the America West Service Marks shall do no more than

identify the code-share relationship between America West and Hawaiian, and

advertise that schedules are coordinated to provide convenient

connections.  Any marketing program,

advertising brochures, schedules, signs or information disseminated to the

public or intended to be disseminated to the public (“Advertising Material”)

shall be subject to the prior written approval of America West, which may be

granted or withheld in its sole discretion, reflect that America West and

Hawaiian are operated separately and shall comply with any Applicable

Laws.  Hawaiian is specifically

prohibited from using any of the America West Service Marks on its aircraft or

other equipment, on its stationery, or elsewhere.  Hawaiian hereby acknowledges America West’s exclusive ownership

of the America West Service Marks and agrees that it will not do anything that

would infringe, abridge or adversely affect, impair or reduce the value or

validity of the America West Service Marks. 

In no event shall Hawaiian allow the use of any America West Service

Marks in marketing, selling, promoting or otherwise identifying or referencing

any flight that is not within a Code Shared Segment.




 




(b)           America West shall have a

nonexclusive, nontransferable and revocable license only for the Term of this

Agreement to use the Hawaiian Service Marks (as defined below) solely in its

marketing programs for the purpose of promoting Code Share Flights and Local

Code Shared Segments.  All advertising

programs using any Hawaiian Service Marks shall be subject to Hawaiian’s prior

written




 




D-13





























 




approval, which

may be granted or withheld in its sole discretion.  In general, America West’s use of the Hawaiian Service Marks

shall do no more than identify the code-share relationship between America West

and Hawaiian, and advertise that schedules are coordinated to provide

convenient connections.  Any Advertising

Material shall be subject to the prior written approval of Hawaiian, which may

be granted or withheld in its sole discretion, reflect that America West and

Hawaiian are operated separately and shall comply with any Applicable

Laws.  America West is specifically

prohibited from using any of the Hawaiian Service Marks on its aircraft or

other equipment, on its stationery, or elsewhere.  America West hereby acknowledges Hawaiian’s exclusive ownership

of the Hawaiian Service Marks and agrees that it will not do anything that

would infringe, abridge or adversely affect, impair or reduce the value or

validity of the  Hawaiian Service Marks.  In no event shall America West allow the use

of any  Hawaiian Service Marks in

marketing, selling, promoting or otherwise identifying or referencing any

flight that is not a Code Shared Segment.




 




(c)           As used herein the term “Service

Marks” shall include, without limitation: (i) with respect to America West:

“America West”, the “HP” and “HP*” designator codes, “Flight Fund” and  “AWA”, and (ii) with respect to Hawaiian:

“Hawaiian”, the “HA” designator code, and “HawaiianMiles”.




 




(d)           Any artworks, drawings, creative or

technical information and advice provided in connection with this Agreement

shall be treated as the property of the providing Carrier.




 




23.           Financial Settlement.  Financial transactions resulting from this

Agreement shall be settled through the ACH unless otherwise agreed, as long as

both Carriers are members or associate members of the ACH.    In the event either Carrier voluntarily

withdraws as a member or associate member of the ACH, settlement shall take

place in accordance with the ACH Manual of Procedure, including all procedures

for rejection, rebilling, and correspondence.




 




24.           Entire Agreement,

Waivers and Amendments.  This

Agreement constitutes the entire understanding of the Carriers with respect to

the subject matter hereof superseding all prior discussions and agreements,

written or oral.  This Agreement may not

be amended, nor may any of its provisions be waived, except by writing signed

by both Carriers.  No delay on the part

of either Carrier in exercising any right power or privilege hereunder shall

operate as a waiver hereof, nor shall any waiver operate as a continuing waiver

of any right, power or privilege.




 




25.           Notices.  All notices given hereunder shall be in

writing delivered by hand, certified mail or telecopy to the Carriers at the

following addresses:




 




If to America West:




 




	

  4000 E. Sky Harbor

  Boulevard


  	

   


  	

  Telephone No.:  480-693-5757


  
	

  Phoenix, Arizona 85034


  	

   


  	

  Telecopier No.:  480-693-5954


  
	

  Executive Vice President Marketing and Sales


  	

   


  	

   


  





 




D-14





























 




With copy to:




 




	

  4000 E. Sky Harbor Blvd.


  	

   


  	

  Telephone No.:  480-693-5838


  
	

  Phoenix, Arizona 85034


  	

   


  	

  Telecopier No.:  480-693-5155


  
	

  Vice President and General Counsel


  	

   


  	

   


  





 




If to Hawaiian:




 




	

  Hawaiian Airlines, Inc.


  	

   


  	

  Telephone No.:

  808-838-6737


  
	

  3375 Koapaka Drive


  	

   


  	

  Telecopier No.:

  808-838-6769


  
	

  Suite G-350


  	

   


  	

   


  
	

  Honolulu, Hawaii 96819


  	

   


  	

   


  
	

  Senior Vice President Marketing and Sales


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

  Attention:  John B. Happ


  	

   


  	

   


  





 




With copy to:




 




	

  Hawaiian Airlines, Inc.


  	

   


  	

  Telephone No.:

  808-835-3610


  
	

  3375 Koapaka Drive


  	

   


  	

  Telecopier No.:

  808-835-3690


  
	

  Suite G-350


  	

   


  	

   


  
	

  Honolulu, Hawaii 96819


  	

   


  	

   


  
	

  Vice President and General Counsel


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

  Attention:  Lyn Flanigan Anzai


  	

   


  	

   


  





 




26.           Successors and

Assigns.  Neither Carrier may assign

its rights or delegate its duties under this Agreement without the prior

written consent of the other Carrier, and any such purported assignment or

delegation shall be void, except, subject to the provisions of Section 21(vii),

either party may assign or transfer this agreement to any company with which

such company may merge, combine or consolidate or which may otherwise succeed

to all or any substantial portion of that company’s assets.  In the event of an acquisition or merger

with another party, the party acquired or merged will notify the other party

within seven days after the closing of the relevant transaction.  This Agreement shall be binding on the

lawful successors of each Carrier.




 




27.           Severability.  Any provision of this Agreement which is

prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,

be ineffective to the extent of such prohibition or unenforceability without

invalidating the remaining provisions hereof, and any prohibition or

unenforceability in any jurisdiction shall not invalidate or render

unenforceable such provision in any other jurisdiction.




 




28.           Headings.  The headings in this Agreement are for

convenience of reference only and shall not define or limit any of the terms or

provisions hereof.




 




D-15





























 




29.           Signage.  The Carriers shall use their commercially

reasonable efforts to insure that signage for each Carrier is displayed at all

stations at which Code Shared Segments originate, connect or terminate.  Each Carrier shall be responsible for all

costs and expenses associated with producing, providing and hanging of their

signage.  Each Carrier’s displays must

conform to existing partner signage guidelines.




 




30.           Force Majeure.  Neither Carrier shall be liable to the other

Carrier with respect of any failure to fulfill its obligations under this

Agreement if such failure is due to reasons beyond its control, including but

not limited to governmental interference, direction or restriction, war or

civil commotion, strikes, lock-outs, labor disputes, public enemy, blockade,

insurrections, riots, acts of nature, epidemics or quarantine restrictions (“Force

Majeure”).  If either Carrier is

effected by Force Majeure, it shall promptly notify the other party, in

writing, of the nature and anticipated duration of the Force Majeure.  If a Force Majeure will result in a failure

of performance for more than 60 days, the other Carrier may terminate this

Agreement by written notice to the Carrier affected by the Force Majeure.




 




31.           Incorporation by

Reference. All exhibits and schedules to this Agreement are fully

incorporated herein as though set forth herein in full.




 




32.           Counterparts.

This Agreement may be executed in counterparts, each of which shall be deemed

an original, but all of which shall constitute one and the same instrument.




 




33.           Attorneys’ Fees.

If there is any litigation or administrative proceeding (including an appeal)

between the Carriers to enforce or interpret any provisions hereof or rights

arising hereunder, the unsuccessful Carrier in such litigation, arbitration or

administrative proceeding (including an appeal) as determined by the court,

arbitrator or hearing officer, shall pay to the successful Carrier, as

determined by the court, arbitrator or hearing officer all costs and expenses,

including but not limited to reasonable attorneys’ fees incurred by the

successful Carrier, such fees to be determined by the court sitting without a

jury, if applicable.




 




34.           Jury Waiver.  Carriers hereby knowingly, voluntarily,

intentionally and irrevocably waive the right either of them may have to a

trial by jury in respect to any litigation, whether in contract or tort, at law

or in equity, based hereon, or arising out of, under or in connection with this

Agreement and any other document or instrument contemplated to be executed in

conjunction herewith, or any course of conduct, course of dealing, statements

(whether verbal or written) or actions of any party hereto.




 




- End Exhibit D -




 




D-16





























 




CONFIDENTIAL




 




Exhibit E




To Agreement Between




America West and Hawaiian




 




CRS Availability Display Parameters




 




[REDACT]




 




E-1





























Exhibit F




To




Agreement




Between




America West and Hawaiian




 




 




 




Local Market Code Share




 




A.                                   APPLICATION




 




1)                                      Local

market code share is allowed as specified herein for city pairs mutually agreed

to by the Carriers as documented in paragraph B, below.  Local market code

share is defined as America West offering for sale a Hawaiian flight whereby

the fare component does not include travel on any flight operated by America

West (“Local Market Code Share”).  

Such flights shall hereafter be referred to as “Local Market Code

Shared Segments”.




 




2)                                      The

Carriers agree that the only fares that America West shall offer for sale

applicable to Local Market Code Shared Segments shall be published fares filed

with ATPCO and made available in PIPPS.




 




3)                                      America

West shall be liable for collection and remittance of all applicable taxes,

passenger facility charges, security fees and other fees, taxes and charges

that may be applicable.




 




4)                                      This

Exhibit does not apply to frequent flyer award travel or to any private or

un-published tariff, industry or agency discounted travel or any other

discounted fare not specifically allowed herein.




 




5)                                      The

class mapping set forth in Exhibit B, attached to the Agreement, shall apply to

the Local Market Code Share.




 




6)                                      This

Exhibit is incorporated into the Agreement. 

In the event of any conflict between the Agreement and this Exhibit,

this Exhibit shall control.  Except as

expressly provided otherwise herein and to the extent of any conflict with this

Exhibit F, all of the terms, covenants and conditions of the Agreement

applicable to Code Shared Segments shall apply to Local Market Code Shared

Segments to the same extent they apply to Code Shared Segments.




 




F-1





























 




CONFIDENTIAL




 




B.                                     LOCAL

MARKET CODE SHARED SEGMENTS




 




Hawaiian hereby

authorizes America West to place its designator code on the following city

pairs for the purpose of Local Market Code Share.




 




HA operated flights

between:




PHX and HNL




PHX and

OGG/LIH/KOA/ITO/LNY/MKK via HNL




LAS and HNL




LAS and

OGG/LIH/KOA/ITO/LNY/MKK via HNL




 




C.                                     TICKET

STOCK




 




Settlement amounts

specified in Paragraph D below apply only to standard industry travel documents

issued on:




 




1)              America West’s ‘401’

ticket stock including neutral ARC and IATA ticket stock validated with America

West’s ‘401’ airline designator code; and




 




2)              Hawaiian’s ‘173’

ticket stock including neutral ARC and IATA ticket stock validated with

Hawaiian’s ‘173’ airline designator code.




 




D.                                    SETTLEMENT




 




Settlement for Local Market Code Shared Segments shall

take place through ACH in accordance with the ACH Manual of Procedure.




 




HP* flights operated by

HA




 




a)                                      [REDACT]




 




b)                                     For

any ticket issued for Local Market Code Shared Segments with no fare, bulk,

zero value, or any fare or ticket type other than allowed herein, the terms and

conditions of Exhibit C shall apply.




 




E.                                      INTERLINE

SERVICE CHARGE




 




1)                                     [REDACT]




 




2)                                      Except

as expressly set forth in this Exhibit F, no other fees or commissions shall

apply.




 




F-2





























 




F.                                      OTHER

CHARGES




 




[REDACT]




 




G.                                     DISCOUNTS




 




No discounts apply




 




H.                                    TERMINATION

OF LOCAL MARKET CODE SHARE




 




1)                                      Local

Market Code Share may be canceled by either Carrier with at least 30 days’

advance written notice to the other Carrier (the “Termination Notice”)

at any time after January 1, 2003.  The

Termination Notice shall specify the effective date of the termination.




 




2)                                      Cancellation

of a Local Market Code Shared Segment shall not be subject to the requirements

of paragraph 1(c) and shall not in and of itself cause the Code Shared Segment

to be removed from use in Code Shared Itineraries.




 




-                    End Exhibit

F -




 




F-3





























Exhibit

G




To




Commercial Cooperation Agreement




Between




America West and Hawaiian




 




1.             America West may

establish and publish fares for Code Share Itineraries that include a flight

segment operated by America West between the following city pairs:




 




PHX-ABQ                             PHX-DTW                            PHX-MKE




PHX-ATL                              PHX-ELP                              PHX-MSP




PHX-AUS                              PHX-EWR                            PHX-OMA




PHX-BIL                               PHX-FLG                              PHX-ORD




PHX-BOI                              PHX-GDL                             PHX-PHL




PHX-BOS                             PHX-GJT                              PHX-PIT




PHX-BWI                             PHX-IAD                               PHX-PRC




PHX-CLE                              PHX-IAH                               PHX-RDU




PHX-CMH                            PHX-ICT                               PHX-SAT




PHX-COS                             PHX-IND                               PHX-SLC




PHX-DCA                             PHX-JFK                              PHX-STL




PHX-DEN                                                                              PHX-TPA




PHX-DFW                            PHX-MCI                              PHX-TUS




PHX-DRO                             PHX-MEX                             PHX-YUM




PHX-DSM




 




- End Exhibit G -




 




G-1