Exhibit 10.33


 


AMENDMENT
NUMBER ONE AND WAIVER

TO CREDIT AGREEMENT


 


This AMENDMENT NUMBER ONE AND WAIVER TO CREDIT AGREEMENT (this “Amendment”) is
entered into as of August 19, 2005 by the lenders identified on the
signature pages hereof (the “Lenders”), WELLS FARGO FOOTHILL, INC.,
a California corporation (“Agent”; and together with the Lenders, the “Lender
Group”), as the arranger and administrative agent for the Lenders, HAWAIIAN HOLDINGS, INC., a Delaware corporation (“Parent”),
and HAWAIIAN AIRLINES, INC., a Delaware
corporation (“Borrower”), with reference to the following:


 


WHEREAS,
Borrower, Parent and the Lender Group are parties to that certain Credit
Agreement, dated as of June 2, 2005 (as amended, restated, supplemented,
or otherwise modified from time to time, the “Credit Agreement”);


 


WHEREAS,
Borrower, Parent and Agent are parties to that certain Post Closing Matters
Agreement, dated as of June 2, 2005 (as amended, restated, supplemented,
or otherwise modified from time to time, the “Post Closing Agreement”);


 


WHEREAS,
Borrower has requested that the Lender Group make certain amendments to the
Credit Agreement and grant waivers of certain Events of Default that have
occurred under the Credit Agreement; and


 


WHEREAS,
subject to the terms and conditions set forth herein, the Lender Group is
willing to make the amendments and grant the waivers requested by Borrower.


 


NOW, THEREFORE,
in consideration of the foregoing and the mutual covenants herein contained,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:


 


1.       Defined
Terms.  Capitalized terms used herein
and not otherwise defined herein shall have the meanings ascribed to them in
the Credit Agreement, as amended hereby.


 


2.       Post Closing
Agreement.  Agent hereby acknowledges
that, as of the date hereof, the conditions set forth in paragraphs 1, 2, 3, 4(i) and
4(ii) (solely with respect to Alaska, Nevada, Oregon, and Washington),
4(iii), 5, and 9 of Schedule A of the Post Closing
Agreement have been satisfied.


 


3.       Waiver.  The Lender Group hereby waives the Events of
Default that have occurred under Section 7.2 of the Credit Agreement as a
result of the failure by Borrower to (i) provide Agent with a monthly
calculation of Dilution, as required pursuant to Section 5.2 of the Credit
Agreement, (ii) provide Agent with financial and compliance reports for
the second quarter of 2005 and month of June 2005 within the time
proscribed by paragraphs (a) (b) and (c) of Schedule 5.3
of the Credit Agreement, and (iii) satisfy the conditions set
forth in paragraphs 4(i)


 





















 


and 4(ii) (solely with respect to Arizona, California
and Hawaii), 6, 7, 8, 10 and 11 of Schedule A of the Post Closing
Agreement within the time periods required therein.


 


4.       Amendment to
Loan Documents.


 


(a)           Schedule 5.2 of the Credit Agreement is hereby
amended and restated in its entirety as set forth in Exhibit A
attached hereto.


 


(b)           Schedule A of the
Post Closing Agreement is hereby amended and restated in its entirety as set
forth in Exhibit B attached hereto.


 


5.       Extension of
Reporting Deadline.  The deadline for
providing Agent with the financial and compliance reports for the second
quarter of 2005 and month of June 2005 
required by paragraphs (a) (b) and (c) of Schedule 5.3
of the Credit Agreement is hereby extended to August 24, 2005.


 


6.       Conditions
Precedent to Amendment.  The
satisfaction of each of the following shall constitute conditions precedent to
the effectiveness of this Amendment and each and every provision hereof:


 


(a)           Agent shall have received this
Amendment, duly executed by the parties hereto, and the same shall be in full
force and effect.


 


(b)           [intentionally omitted]


 


(c)           The representations and warranties
herein and in the Credit Agreement and the other Loan Documents shall be true
and correct in all material respects on and as of the date hereof, as though
made on such date (except to the extent that such representations and
warranties relate solely to an earlier date).


 


(d)           No Default or Event of Default shall
have occurred and be continuing on the date hereof, nor shall result from the
consummation of the transactions contemplated herein.


 


(e)           No injunction, writ, restraining
order, or other order of any nature prohibiting, directly or indirectly, the
consummation of the transactions contemplated herein shall have been issued and
remain in force by any Governmental Authority against Borrower, any Guarantor,
Agent, or any Lender.


 


7.       Release.  Borrower hereby waives, releases, remises and
forever discharges each member of the Lender Group, each of their respective
Affiliates, and each of their respective officers, directors, employees, and
agents (collectively, the “Releasees”), from any and all claims,
demands, obligations, liabilities, causes of action, damages, losses, costs and
expenses of any kind or character, known or unknown, past or present,
liquidated or unliquidated, suspected or unsuspected, which Borrower ever had,
now has or might hereafter have against any such Releasee which relates,
directly or indirectly, to the Credit Agreement or any other Loan Document, or
to any acts or omissions of any such Releasee with respect to the Credit


 


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Agreement
or any other Loan Document, or to the lender-borrower relationship evidenced by
the Loan Documents.  As to each and every
claim released hereunder, Borrower hereby represents that it has received the
advice of legal counsel with regard to the releases contained herein, and
having been so advised, Borrower specifically waives the benefit of the
provisions of Section 1542 of the Civil Code of California which provides
as follows:


 


“A GENERAL RELEASE DOES
NOT EXTEND TO CLAIMS WHICH A CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM, MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”


 


As to each and every
claim released hereunder, Borrower also waives the benefit of each other
similar provision of applicable federal or state law, if any, pertaining to
general releases after having been advised by its legal counsel with respect
thereto.


 


8.       Representations
and Warranties.  Borrower represents
and warrants to the Lender Group that (a) the execution, delivery, and
performance of this Amendment and of the Credit Agreement, as amended hereby, (i) are
within its powers, (ii) have been duly authorized by all necessary action,
and (iii) are not in contravention of any law, rule, or regulation
applicable to it, or any order, judgment, decree, writ, injunction, or award of
any arbitrator, court, or Governmental Authority, or of the terms of its
Governing Documents, or of any contract or undertaking to which it is a party
or by which any of its properties may be bound or affected; (b) this
Amendment and the Credit Agreement, as amended hereby, are legal, valid and
binding obligations of Borrower, enforceable against Borrower in accordance
with their respective terms; and (c) no Default or Event of Default has
occurred and is continuing on the date hereof or as of the date upon which the
conditions precedent set forth herein are satisfied.


 


9.       Choice of
Law.  The validity of this Amendment,
its construction, interpretation and enforcement, the rights of the parties
hereunder, shall be determined under, governed by, and construed in accordance
with the laws of the State of New York.


 


10.     Counterpart
Execution.  This Amendment may be
executed in any number of counterparts, all of which when taken together shall
constitute one and the same instrument, and any of the parties hereto may
execute this Amendment by signing any such counterpart.  Delivery of an executed counterpart of this
Amendment by telefacsimile or electronic mail shall be equally as effective as
delivery of an original executed counterpart of this Amendment.  Any party delivering an executed counterpart
of this Amendment by telefacsimile or electronic mail also shall deliver an
original executed counterpart of this Amendment, but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability,
and binding effect of this Amendment.


 


11.     Effect on
Loan Documents.


 


(a)           The Credit Agreement, as amended
hereby, and each of the other Loan Documents shall be and remain in full force
and effect in accordance with their respective terms and hereby are ratified
and confirmed in all respects.  The
execution, delivery, and


 


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performance
of this Amendment shall not operate, except as expressly set forth herein, as a
modification or waiver of any right, power, or remedy of Agent or any Lender
under the Credit Agreement or any other Loan Document.  The waivers, consents, and modifications herein
are limited to the specifics hereof, shall not apply with respect to any facts
or occurrences other than those on which the same are based, shall not excuse
future non-compliance with the Loan Documents, and shall not operate as a
consent to any further or other matter under the Loan Documents.


 


(b)           Upon and after the effectiveness of
this Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”,
“herein”, “hereof” or words of like import referring to the Credit Agreement,
and each reference in the other Loan Documents to “the Credit Agreement”, “thereunder”,
“therein”, “thereof” or words of like import referring to the Credit Agreement,
shall mean and be a reference to the Credit Agreement as modified and amended
hereby.


 


(c)           Upon and after the effectiveness of this
Amendment, each reference in the Post Closing Agreement to “this Agreement”, “hereunder”,
“herein”, “hereof” or words of like import referring to the Post Closing
Agreement, and each reference in the other Loan Documents to “the Post-Closing
Matters Agreement”, “thereunder”, “therein”, “thereof” or words of like import
referring to the Post Closing Agreement, shall mean and be a reference to the
Post Closing Agreement as modified and amended hereby.


 


(d)           To the extent that any terms and
conditions in any of the Loan Documents shall contradict or be in conflict with
any terms or conditions of the Credit Agreement, after giving effect to this
Amendment, such terms and conditions are hereby deemed modified or amended
accordingly to reflect the terms and conditions of the Credit Agreement as
modified or amended hereby.


 


(e)           This Amendment is a Loan Document.


 


12.     Entire
Agreement.  This Amendment embodies
the entire understanding and agreement between the parties hereto with respect
to the subject matter hereof and supersedes any and all prior or
contemporaneous agreements or understandings with respect to the subject matter
hereof, whether express or implied, oral or written.


 


[signature page follows]


 


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IN WITNESS WHEREOF, the
parties have entered into this Amendment as of the date first above written. 


 


	
   

  	
  HAWAIIAN HOLDINGS, INC., a Delaware

  
	
   

  	
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


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  HAWAIIAN AIRLINES, INC., a Delaware

  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


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  WELLS FARGO FOOTHILL, INC.,
a California corporation, as Agent
  and as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


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  D.B. ZWIRN SPECIAL OPPORTUNITIES

  FUND, L.P., a
  Delaware limited partnership

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  D.B. Zwirn Partners, LLC,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Zwirn Holdings, LLC,

  
	
   

  	
   

  	
  its managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
						



 


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  BERNARD NATIONAL LOAN
  INVESTORS,

  
	
   

  	
  LTD.,

  
	
   

  	
  a Cayman Islands company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Bernard Capital Funding,
  LLC

  
	
   

  	
   

  	
  its Investment Advisor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


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Exhibit A


 


Schedule 5.2


 


Provide Agent with each of the documents set forth
below at the following times in form satisfactory to the Required Lenders:


 


	
  Daily

  	
   

  	
  (a)           after the occurrence and during the continuation of an
  Event of Default, a detailed report by type and location of all of the Spare
  Parts not designated as Eligible Spare Parts which (i) have been moved
  from any location identified on Schedule 4.3 to a new location,
  or (ii) located at the premises of or otherwise put into the possession
  or control of any bailee, warehouseman, FAA repair station, servicer,
  mechanic, vendor, supplier, or other Person.



  
	
  Weekly

  	
   

  	
  (b)           a detailed report regarding Parent, Borrower, and
  Borrower’s Subsidiaries’ cash and Cash Equivalents including weekly cash collections
  and an indication of which amounts constitute Qualified Cash.



  
	
  Monthly (not later than the 25th day of each month)

  	
   

  	
  (c)           a collection and sales journal and credit register since
  the last such schedule, and a report regarding credit memoranda that have
  been issued since the last such report,

  

  (d)           notice of all
  claims, offsets, or disputes asserted by Account Debtors with respect to
  Parent’s and its Subsidiaries’ Accounts,

  

  (e)           a Borrowing Base
  Certificate,

  

  (f)            a
  (i) detailed aging and roll-forward, by total, of the Accounts of each
  of Parent, Borrower, and Borrower’s Subsidiaries, together with a
  reconciliation to the general ledger, and (ii) a manual interline
  settlement sheet of the Accounts of each of Parent, Borrower, and Borrower’s
  Subsidiaries,

  

  (g)           a summary aging,
  by vendor, of Parent’s, Borrower’s, and Borrower’s Subsidiaries’ accounts
  payable and any book overdraft, and a reconciliation to the general ledger,
  and

  

  (h)           [intentionally
  omitted]

  

  (i)            a summary
  description by type and location of all of the Spare Parts owned by Parent,
  Borrower, and Borrower’s Subsidiaries located both in and outside the United
  States, together with a reconciliation to the general ledger,



  
	
  Quarterly

  	
   

  	
  (j)            a summary description of all Slots, Gates, and Routes used,
  held by, contracted or licensed to, Parent, Borrower, and Borrower’s
  Subsidiaries,

  

  (k)           a report regarding Parent’s, Borrower’s, and Borrower’s
  Subsidiaries’ accrued, but unpaid, taxes (including any ad valorem and real estate taxes), and



  



 


1





















 


	
   

  	
   

  	
  (l)            a summary description by type and location of all of
  the Equipment owned by Parent, Borrower, and Borrower’s Subsidiaries and
  located in and outside the United States, together with a reconciliation to
  the general ledger,



  
	
  Within 3 Business Days after a request by Agent

  	
   

  	
  (m)          a detailed list of Parent’s and its Subsidiaries’ Account
  Debtors,

  

  (n)           copies of invoices
  in connection with Parent’s and its Subsidiaries’ Accounts, credit memos,
  remittance advices, deposit slips, shipping and delivery documents in
  connection with Parent’s and its Subsidiaries’ Accounts and, for Spare Parts
  and Equipment acquired by Parent or its Subsidiaries, purchase orders and
  invoices, and

  

  (o)           such other reports
  as to the Collateral or the financial condition of Parent and its
  Subsidiaries, as Agent may reasonably request.



  



 


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Exhibit B


 


SCHEDULE A


 


1.             Within
1 day after the Closing Date, Agent shall have received evidence satisfactory
to Agent that all payments contemplated to be made under the Plan of
Reorganization on the Closing Date have been made.


 


2.             Within
3 days after the Closing Date, Agent shall have received evidence satisfactory
to Agent that the Certificate of Merger for the State of Delaware duly
authenticated by the proper officer of the State of Delaware has been filed
with the Department of Commerce and Consumer Affairs, State of Hawaii.


 


3.             Within
3 days after the Closing Date, Agent shall have received evidence satisfactory
to Agent that account number 135166759 at Bank of Hawaii has been closed and
any and all collected and available funds in such account have been transferred
to the Cash Management Account.


 


4.             (x)
On or before August 31, 2005 for filings with the appropriate
jurisdictional officer for the State of Hawaii, (y) on or before January 31,
2006 for filings with the appropriate jurisdictional officers for each of the
State of Arizona and the State of California, and (z) within 3 days after the
Closing Date for filings in all other jurisdictions, Agent shall have received
evidence satisfactory to Agent that (i) notice of cessation of business by
Hawaiian Airlines, Inc., a Hawaii corporation (“HAL”), has been
filed with the appropriate jurisdictional officer in every jurisdiction where
HAL is qualified to do business immediately prior to the Merger, (ii) notice
that HHIC, Inc., a Delaware corporation (“HHIC”), has changed its
name to Hawaiian Airlines, Inc., a Delaware corporation, has been filed
with the appropriate jurisdictional officer in Alaska, Arizona, California,
Hawaii, Nevada, Oregon, and Washington, and (iii) the Merger Certificates
and notice that HHIC has changed its name to Hawaiian Airlines, Inc., a
Delaware corporation, has been filed with the FAA.


 


5.             Within
3 days after the Closing Date, Agent shall have received the Cash Management
Agreements, Control Agreements and Credit Card Agreements.


 


6.             On
or before September 12, 2005, Agent shall have received (i) (a) evidence
satisfactory to Agent that appropriate release documents have been duly filed
with the FAA and such other offices as may be necessary with respect to that
certain Lien in favor of Aviation Financial Services, Inc. (“AFS”)
pursuant to that certain Aircraft Spare Parts Chattel Mortgage, Security
Agreement, and Assignment of Rents (as amended, restated, supplemented or
otherwise modified and in effect from time to time, the “AFS Security
Agreement”), dated as of March 23, 2001, by and between Honeywell
International Inc., as debtor, and AFS, as successor in interest to Heller
Financial Leasing, Inc., as secured party, which was recorded by the FAA
on August 30, 2001 and assigned Conveyance No. X143641, (b) in
the event that the collateral that is the subject of the AFS Security Agreement
is not Collateral of Parent, Borrower, or Borrower’s Subsidiaries, evidence
that appropriate amendment documents have been duly filed with the FAA and such
other offices as may be necessary with respect to such Lien stating


 


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that such Lien is a precautionary filing, or (c) solely
in the event that Borrower is unable to obtain such evidence after diligent
effort, as determined in the Agent’s sole discretion, evidence from Parent and
Borrower certifying that no Collateral of Parent, Borrower, or Borrower’s
Subsidiaries is the subject of the AFS Security Agreement and such Lien,
together with such other evidence as the Agent shall require in its sole
discretion, and (ii) a supplemental opinion from FAA counsel, in form and
substance satisfactory to the Required Lenders, that the Engine and Spare Parts
Security Agreement has been recorded with the FAA in accordance with the
Federal Aviation Act and constitutes a first and prior Lien upon all Spare Parts
of the Borrower in favor of Agent and no other Liens (other than the Liens in
favor of Rolls-Royce Deutschland GmbH) are of record with the FAA with respect
to the Spare Parts.


 


7.             On
or before August 27, 2005, Agent shall have received evidence satisfactory
to Agent that a release of the Lien in favor of American Airlines, Inc. (“American
Airlines”) in Borrower’s Trademarks with Registration Numbers 1,312,666,
1,311,493, 1,458,293, 1,458,733, 1,460,129, 1,459,590, 1,544,887, and 1,811,311
pursuant to the Security Agreement (as amended, restated, supplemented or
otherwise modified and in effect from time to time), dated as of January 31,
1996 (and recorded with the United States Patent and Trademark Office on January 31,
1996 [Reel 1426 / Frame 0698]), by and between Borrower and American Airlines,
has been filed with the U.S. Patent and Trademark Office.


 


8.             On
or before August 22, 2005, for each motor vehicle that constitutes
Collateral owned by Borrower, Borrower shall deliver to Agent the certificate of
title that is in Borrower’s possession, custody, or control,     other than those certificates of title
which Borrower has been unable to locate after diligent effort, which are
identified on the schedule attached hereto as Exhibit 1.


 


9.             Within
30 days after the Closing Date, Agent shall have received a Control Agreement
with Morgan Stanley DWC Inc. or any of its Affiliates for account number 642456
64289066; provided that if such Control Agreement is not received within
such time period, Borrower shall cause such account to be closed and any and
all collected and available funds in such account will be transferred to the
Cash Management Account.


 


10.           On
or before August 31, 2005, Borrower shall deliver an updated Schedule 1.1(S)
to the Engine and Spare Parts Security Agreement which lists the Warranties
applicable thereto that are at least as extensive as the warranties that are
maintained by similarly situated businesses in accordance with industry
practice, and such Warranties are transferable at least to the extent that
similar warranties are transferable (without the consent of any other Person)
in accordance with industry practice.


 


11.           On
or before September 2, 2005, Borrower shall have either (a) obtained
consents from each lessor with respect to each material aircraft lease which
was assumed prior to the confirmation of the Plan of Reorganization, or (b) a
supplemented order from the Bankruptcy Court which provides that the provisions
of the Confirmation Order with respect to the assignment of the aircraft leases
to Borrower under the Plan of Reorganization applies to all material aircraft
leases which were assumed prior to the confirmation of the Plan of
Reorganization, which order shall be in form and substance satisfactory to
Agent.


 


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12.           Within 90 days after the Closing Date, Agent shall
have received a Collateral Access Agreement with respect to the following
locations: (a) Borrower’s primary maintenance and operations facility
located at Honolulu, Hawaii, and (b) each of Borrower’s maintenance and
operations facilities at (i) Lihue Airport, Hawaii, (ii) Maui
(Kahalui) Airport, Hawaii, (iii) Kona Airport, Hawaii, and (iv) Hilo
Airport, Hawaii; provided that (i) if such Collateral Access
Agreement is not received within such time period, Agent shall be entitled to
impose a reserve under Section 2.1(b) of the Credit Agreement
in an amount equal to the monthly rent for such location multiplied
by 3, (ii) Agent shall release such reserve upon receipt of such
Collateral Access Agreement, and (iii) failure to deliver such Collateral
Access Agreement shall not be an Event of Default so long as the Borrower is
making good faith efforts to obtain such Collateral Access Agreement.


 


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Exhibit 1


 


	
  Unit

  	
   

  	
  Asset Id

  	
   

  	
  Tag Number

  	
   

  	
  Short
  Desc.

  	
   

  	
  Acq Date

  	
   

  	
  Profile ID

  	
   

  	
  Serial ID

  	
   

  	
  Location

  	
   

  	
  Class

  	
   

  	
  Approximate

  Value

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


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