EXECUTION COPY
GENERAL CONTINUING GUARANTY
This GENERAL CONTINUING GUARANTY (this "Guaranty"), dated as of June 2,
2005, is executed and delivered by those Guarantors listed on the signature
pages hereof and those additional entities that hereafter become parties hereto
by executing the form of joinder attached hereto as Exhibit A (each,
individually, a "Guarantor" and, individually and collectively, jointly and
severally, the "Guarantors"), in favor of CANYON CAPITAL ADVISORS LLC, a
Delaware limited liability company, in its capacity as agent for the Lenders
referred to below (together with its successors and assigns, the "Agent"):
WHEREAS, Hawaiian Holdings, Inc., a Delaware corporation, Hawaiian
Airlines, Inc., a Delaware corporation ("Borrower"), and the below defined
Lenders and Agent are parties to that certain Credit Agreement of even date
herewith (as amended, restated, supplemented or otherwise modified from time to
time, including all schedules thereto, the "Credit Agreement");
WHEREAS, each Guarantor is an Affiliate of Borrower and, as such, will
benefit by virtue of the financial accommodations extended to Borrower by the
below defined Lender Group; and
WHEREAS, in order to induce the Lender Group to enter into the Credit
Agreement and the other Loan Documents and to extend the financial
accommodations to Borrower pursuant to the Credit Agreement, and in
consideration thereof, and in consideration of any loans or other financial
accommodations heretofore or hereafter extended by the Lender Group to Borrower,
whether pursuant to the Credit Agreement or otherwise, each Guarantor has agreed
to guaranty the Guarantied Obligations.
NOW, THEREFORE, in consideration of the foregoing, each Guarantor
hereby agrees as follows:
1. DEFINITIONS AND CONSTRUCTION.
(a) Definitions. Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to them in the Credit Agreement.
The following terms, as used in this Guaranty, shall have the following
meanings:
"Agent" has the meaning set forth in the preamble to this Guaranty.
"Borrower" has the meaning set forth in the recitals to this Guaranty.
"Credit Agreement" has the meaning set forth in the recitals to this
Guaranty.
"Guarantied Obligations" means all of the "Obligations", as defined in
the Credit Agreement.
"Guarantor" and "Guarantors" have the meanings set forth in the
preamble to this Guaranty.
"Guaranty" has the meaning set forth in the preamble to this Guaranty.
"Lenders" means, individually and collectively, each of the lenders
identified on the signature pages to the Credit Agreement, and shall include any
other Person made a party to the Credit Agreement in accordance with the
provisions of Section 13.1 thereof (together with their respective successors
and assigns).
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"Lender Group" means, individually and collectively, each of the
Lenders and Agent.
"Voidable Transfer" has the meaning set forth in Section 9 of this
Guaranty.
(b) Construction. Unless the context of this Guaranty clearly requires
otherwise, references to the plural include the singular, references to the
singular include the plural, the terms "includes" and "including" are not
limiting, and the term "or" has, except where otherwise indicated, the inclusive
meaning represented by the phrase "and/or." The words "hereof," "herein,"
"hereby," "hereunder," and similar terms in this Guaranty refer to this Guaranty
as a whole and not to any particular provision of this Guaranty. Section,
subsection, clause, schedule, and exhibit references herein are to this Guaranty
unless otherwise specified. Any reference in this Guaranty to any agreement,
instrument, or document shall include all alterations, amendments, changes,
extensions, modifications, renewals, replacements, substitutions, joinders, and
supplements, thereto and thereof, as applicable (subject to any restrictions on
such alterations, amendments, changes, extensions, modifications, renewals,
replacements, substitutions, joinders, and supplements set forth herein).
Neither this Guaranty nor any uncertainty or ambiguity herein shall be construed
against the Lender Group or the Guarantors, whether under any rule of
construction or otherwise. On the contrary, this Agreement has been reviewed by
all parties and shall be construed and interpreted according to the ordinary
meaning of the words used so as to accomplish fairly the purposes and intentions
of all parties hereto. Any reference herein to the satisfaction or payment in
full of the Guarantied Obligations shall mean the payment in full in cash (or
cash collateralization in accordance with the terms of the Credit Agreement) of
all Guarantied Obligations other than unasserted contingent indemnification
Guarantied Obligations and the full and final termination of any commitment to
extend any financial accommodations under the Credit Agreement and any other
Loan Document. Any reference herein to any Person shall be construed to include
such Person's successors and assigns. Any requirement of a writing contained
herein or any other Loan Document shall be satisfied by the transmission of a
Record and any Record so transmitted shall constitute a representation and
warranty as to the accuracy and completeness of the information contained
therein.
2. GUARANTIED OBLIGATIONS. Each Guarantor hereby irrevocably and
unconditionally guaranties to Agent, for the benefit of the Lender Group, as and
for its own debt, until final payment in full thereof has been made, (a) the
payment of the Guarantied Obligations, when and as the same shall become due and
payable, whether at maturity, pursuant to a mandatory prepayment requirement, by
acceleration, or otherwise; it being the intent of each Guarantor that the
guaranty set forth herein shall be a guaranty of payment and not a guaranty of
collection; and (b) the punctual and faithful performance, keeping, observance,
and fulfillment by Borrower of all of the agreements, conditions, covenants, and
obligations of Borrower contained in the Credit Agreement and under each of the
other Loan Documents.
3. CONTINUING GUARANTY. This Guaranty includes Guarantied Obligations
arising under successive transactions continuing, compromising, extending,
increasing, modifying, releasing, or renewing the Guarantied Obligations,
changing the interest rate, payment terms, or other terms and conditions
thereof, or creating new or additional Guarantied Obligations after prior
Guarantied Obligations have been satisfied in whole or in part. To the maximum
extent permitted by law, each Guarantor hereby waives any right to revoke this
Guaranty as to future Obligations. If such a revocation is effective
notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees
that (a) no such revocation shall be effective until written notice thereof has
been received by Agent, (b) no such revocation shall apply to any Guarantied
Obligations in existence on such date (including any subsequent continuation,
extension, or renewal thereof, or change in the interest rate, payment terms, or
other terms and conditions thereof), (c) no such revocation shall apply to any
Guarantied Obligations made or created after such date to the extent made or
created pursuant to a legally binding commitment of Agent in existence on the
date of such revocation, (d) no payment by any Guarantor, Borrower, or from any
other
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source, prior to the date of such revocation shall reduce the maximum obligation
of any Guarantor hereunder, and (e) any payment by Borrower or from any source
other than a Guarantor subsequent to the date of such revocation shall first be
applied to that portion of the Guarantied Obligations as to which the revocation
is effective and which are not, therefore, guarantied hereunder, and to the
extent so applied shall not reduce the maximum obligation of any Guarantor
hereunder.
4. PERFORMANCE UNDER THIS GUARANTY. In the event that Borrower fails to
make any payment of any Guarantied Obligations, on or prior to the date such
payment is due and payable after expiration of any applicable grace period
thereof, or if Borrower shall fail to perform, keep, observe, or fulfill any
other obligation referred to in clause (b) of Section 2 of this Guaranty in the
manner provided in the Credit Agreement or any other Loan Document after the
expiration of any applicable grace or cure period, each Guarantor immediately
shall cause, as applicable, such payment to be made or such obligation to be
performed, kept, observed, or fulfilled; provided, however that no Guarantor
shall be required to perform, keep, observe, or fulfill any other obligation
referred to in clause (b) of Section 2 of this Guaranty if prohibited by law.
5. PRIMARY OBLIGATIONS. This Guaranty is a primary and original obligation
of each Guarantor, is not merely the creation of a surety relationship, and is
an absolute, unconditional, and continuing guaranty of payment and performance
which shall remain in full force and effect until the Guarantied Obligations
have been paid in full in cash in accordance with the provisions of the Credit
Agreement. Each Guarantor hereby agrees that it is directly, jointly and
severally with any other guarantor of the Guarantied Obligations, if any, liable
to Agent, for the benefit of the Lender Group that the obligations of each
Guarantor hereunder are independent of the obligations of Borrower or any other
guarantor, and that a separate action may be brought against each Guarantor,
whether such action is brought against Borrower or any other guarantor or
whether Borrower or any other guarantor is joined in such action. Each Guarantor
hereby agrees that its liability hereunder shall be immediate and shall not be
contingent upon the exercise or enforcement by any member of the Lender Group of
whatever remedies they may have against Borrower or any other guarantor, or the
enforcement of any lien or realization upon any security by any member of the
Lender Group. Each Guarantor hereby agrees that any release which may be given
by Agent to Borrower or any other guarantor shall not release any Guarantor.
Each Guarantor consents and agrees that no member of the Lender Group shall be
under any obligation to marshal any property or assets of Borrower or any other
guarantor in favor of such Guarantor, or against or in payment of any or all of
the Guarantied Obligations.
6. WAIVERS.
(a) To the fullest extent permitted by applicable law, each Guarantor
hereby waives: (i) notice of acceptance hereof; (ii) notice of any loans or
other financial accommodations made or extended under the Credit Agreement, or
the creation or existence of any Guarantied Obligations; (iii) notice of the
amount of the Guarantied Obligations, subject, however, to such Guarantor's
right to make inquiry of Agent to ascertain the amount of the Guarantied
Obligations at any reasonable time; (iv) notice of any adverse change in the
financial condition of Borrower or of any other fact that might increase any
Guarantor's risk hereunder; (v) notice of presentment for payment, demand,
protest, and notice thereof as to any instrument among the Loan Documents; (vi)
notice of any Default or Event of Default under the Credit Agreement; and (vii)
all other notices and demands to which such Guarantor might otherwise be
entitled, except if such notice or demand is specifically required to be given
to such Guarantor under this Guaranty or any other Loan Documents to which such
Guarantor is a party.
(b) To the fullest extent permitted by applicable law, each Guarantor
hereby waives the right by statute or otherwise to require any member of the
Lender Group to institute suit against Borrower or to exhaust any rights and
remedies which any member of the Lender Group has or may have
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against Borrower. In this regard, each Guarantor agrees that it is bound to the
payment of each and all Guarantied Obligations, whether now existing or
hereafter arising, as fully as if the Guarantied Obligations were directly owing
to Agent or the Lender Group, as applicable, by such Guarantor. Each Guarantor
further waives any defense arising by reason of any disability or other defense
(other than the defense that the Guarantied Obligations shall have been
performed and paid in full, to the extent of any such payment) of Borrower or by
reason of the cessation from any cause whatsoever of the liability of Borrower
in respect thereof.
(c) To the fullest extent permitted by applicable law, each Guarantor
hereby waives: (i) any right to assert against any member of the Lender Group
any defense (legal or equitable), set-off, counterclaim, or claim which such
Guarantor may now or at any time hereafter have against Borrower or any other
party liable to any member of the Lender Group; (ii) any defense, set-off,
counterclaim, or claim, of any kind or nature, arising directly or indirectly
from the present or future lack of perfection, sufficiency, validity, or
enforceability of the Guarantied Obligations or any security therefor; (iii) any
right or defense arising by reason of any claim or defense based upon an
election of remedies by any member of the Lender Group; and (iv) the benefit of
any statute of limitations affecting such Guarantor's liability hereunder or the
enforcement thereof, and any act which shall defer or delay the operation of any
statute of limitations applicable to the Guarantied Obligations shall similarly
operate to defer or delay the operation of such statute of limitations
applicable to such Guarantor's liability hereunder.
(d) Until such time as all of the Guarantied Obligations have been paid
in full: (i) each Guarantor hereby waives and postpones any right of subrogation
such Guarantor has or may have as against Borrower with respect to the
Guarantied Obligations; (ii) each Guarantor hereby waives and postpones any
right to proceed against Borrower or any other Person, now or hereafter, for
contribution, indemnity, reimbursement, or any other suretyship rights and
claims (irrespective of whether direct or indirect, liquidated or contingent),
with respect to the Guarantied Obligations; and (iii) each Guarantor also hereby
waives and postpones any right to proceed or to seek recourse against or with
respect to any property or asset of Borrower.
7. RELEASES. Each Guarantor consents and agrees that, without notice to or
by such Guarantor and without affecting or impairing the obligations of any
Guarantor hereunder, any member of the Lender Group may, by action or inaction,
compromise or settle, extend the period of duration or the time for the payment,
or discharge the performance of, or may refuse to, or otherwise not enforce, or
may, by action or inaction, release all or any one or more parties to, any one
or more of the terms and provisions of the Credit Agreement or any other Loan
Document or may grant other indulgences to the Borrower in respect thereof, or
may amend or modify in any manner and at any time (or from time to time) any one
or more of the Credit Agreement or any other Loan Document, or may, by action or
inaction, release or substitute any other guarantor, if any, of the Guarantied
Obligations, or may enforce, exchange, release, or waive, by action or inaction,
any security for the Guarantied Obligations or any other guaranty of the
Guarantied Obligations, or any portion thereof.
8. NO ELECTION. The Agent, on behalf of the Lender Group shall have the
right to seek recourse against each Guarantor to the fullest extent provided for
herein and no election by Agent, on behalf of any member of the Lender Group, to
proceed in one form of action or proceeding, or against any party, or on any
obligation, shall constitute a waiver of Agent's, on behalf of the Lender Group,
right to proceed in any other form of action or proceeding or against other
parties unless Agent, on behalf of the Lender Group, has expressly waived such
right in writing. Specifically, but without limiting the generality of the
foregoing, no action or proceeding by Agent, on behalf of the Lender Group,
under any document or instrument evidencing the Guarantied Obligations shall
serve to diminish the liability of any Guarantor under this Guaranty except to
the extent that the Lender finally and unconditionally shall have realized
payment in full of the Guarantied Obligations by such action or proceeding.
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9. REVIVAL AND REINSTATEMENT. If the incurrence or payment of the
Guarantied Obligations or the obligations of any Guarantor under this Guaranty
by any Guarantor or the transfer by any Guarantor to Agent of any property of
such Guarantor should for any reason subsequently be declared to be void or
voidable under any state or federal law relating to creditors' rights, including
provisions of the Bankruptcy Code relating to fraudulent conveyances,
preferences, or other voidable or recoverable payments of money or transfers of
property (collectively, a "Voidable Transfer"), and if the Lender Group is
required to repay or restore, in whole or in part, any such Voidable Transfer,
or elects to do so upon the reasonable advice of its counsel, then, as to any
such Voidable Transfer, or the amount thereof that the Lender Group is required
or elects to repay or restore, and as to all reasonable costs, expenses, and
attorneys fees of the Lender Group related thereto, the liability of such
Guarantor automatically shall be revived, reinstated, and restored and shall
exist as though such Voidable Transfer had never been made.
10. FINANCIAL CONDITION OF BORROWER. Each Guarantor represents and warrants
to the Lender Groupthat it is currently informed of the financial condition of
Borrower and of all other circumstances which a diligent inquiry would reveal
and which bear upon the risk of nonpayment of the Guarantied Obligations. Each
Guarantor further represents and warrants to the Lender Groupthat it has read
and understands the terms and conditions of the Credit Agreement and each other
Loan Document. Each Guarantor hereby covenants that it will continue to keep
itself informed of Borrower's financial condition, the financial condition of
other guarantors, if any, and of all other circumstances which bear upon the
risk of nonpayment or nonperformance of the Guarantied Obligations.
11. PAYMENTS; APPLICATION. All payments to be made hereunder by any
Guarantor shall be made in Dollars, in immediately available funds, and without
deduction (whether for taxes or otherwise) or offset and shall be applied to the
Guarantied Obligations in accordance with the terms of the Credit Agreement.
12. ATTORNEYS FEES AND COSTS. Each Guarantor agrees to pay, on demand, all
reasonable attorneys fees and all other reasonable costs and expenses which may
be incurred by Agent or the Lender Group in connection with the enforcement of
this Guaranty or in any way arising out of, or consequential to, the protection,
assertion, or enforcement of the Guarantied Obligations (or any security
therefor), irrespective of whether suit is brought.
13. NOTICES. All notices and other communications hereunder to Agent shall
be in writing and shall be mailed, sent, or delivered in accordance with Section
11 of the Credit Agreement. All notices and other communications hereunder to
any Guarantor shall be in writing and shall be mailed, sent, or delivered in
care of Borrower in accordance with Section 11 of the Credit Agreement.
14. CUMULATIVE REMEDIES. No remedy under this Guaranty, under the Credit
Agreement, or any other Loan Document is intended to be exclusive of any other
remedy, but each and every remedy shall be cumulative and in addition to any and
every other remedy given under this Guaranty, under the Credit Agreement, or any
other Loan Document, and those provided by law. No delay or omission by the
Lender Group or Agent on behalf thereof to exercise any right under this
Guaranty shall impair any such right nor be construed to be a waiver thereof. No
failure on the part of the Lender Group or Agent on behalf thereof to exercise,
and no delay in exercising, any right under this Guaranty shall operate as a
waiver thereof; nor shall any single or partial exercise of any right under this
Guaranty preclude any other or further exercise thereof or the exercise of any
other right.
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15. SEVERABILITY OF PROVISIONS. Each provision of this Guaranty shall be
severable from every other provision of this Guaranty for the purpose of
determining the legal enforceability of any specific provision.
16. ENTIRE AGREEMENT; AMENDMENTS. This Guaranty constitutes the entire
agreement between each Guarantor and the Lender Group pertaining to the subject
matter contained herein. Except for modifications made pursuant to the execution
and delivery of a joinder and supplement in accordance with Section 22(a)
hereof, this Guaranty may not be altered, amended, or modified, nor may any
provision hereof be waived or noncompliance therewith consented to, except by
means of a writing executed by each Guarantor and Agent, on behalf of the Lender
Group. Any such alteration, amendment, modification, waiver, or consent shall be
effective only to the extent specified therein and for the specific purpose for
which given. No course of dealing and no delay or waiver of any right or default
under this Guaranty shall be deemed a waiver of any other, similar or
dissimilar, right or default or otherwise prejudice the rights and remedies
hereunder.
17. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon each
Guarantor and its successors and assigns and shall inure to the benefit of the
successors and assigns of the Lender Group; provided, however, except in
connection with a Permitted Merger, no Guarantor shall assign this Guaranty or
delegate any of its duties hereunder without Agent's prior written consent and
any unconsented to assignment shall be absolutely void. In the event of any
assignment or other transfer of rights by the Lender Group, the rights and
benefits herein conferred upon the Lender Group shall automatically extend to
and be vested in such assignee or other transferee.
18. NO THIRD PARTY BENEFICIARY. This Guaranty is solely for the benefit of
each member of the Lender Group and each of its successors and assigns and may
not be relied on by any other Person.
19. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.
THE VALIDITY OF THIS GUARANTY, THE CONSTRUCTION, INTERPRETATION, AND
ENFORCEMENT HEREOF, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL
MATTERS ARISING HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION
WITH THIS GUARANTY SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE COUNTY OF NEW
YORK, STATE OF NEW YORK, PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT
AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT AGENT'S OPTION, IN
THE COURTS OF ANY JURISDICTION WHERE AGENT ELECTS TO BRING SUCH ACTION OR WHERE
SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH GUARANTOR AND EACH MEMBER
OF THE LENDER GROUP WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY
RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT
TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION
19.
EACH GUARANTOR AND EACH MEMBER OF THE LENDER GROUP HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN,
INCLUDING CONTRACT CLAIMS,
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TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY
CLAIMS. EACH GUARANTOR AND EACH MEMBER OF THE LENDER GROUP REPRESENT THAT EACH
HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF
LITIGATION, A COPY OF THIS GUARANTY MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL
BY THE COURT.
20. COUNTERPARTS; TELEFACSIMILE EXECUTION. This Guaranty may be executed in
any number of counterparts and by different parties on separate counterparts,
each of which, when executed and delivered, shall be deemed to be an original,
and all of which, when taken together, shall constitute but one and the same
Guaranty. Delivery of an executed counterpart of this Guaranty by telefacsimile
shall be equally as effective as delivery of an original executed counterpart of
this Guaranty. Any party delivering an executed counterpart of this Guaranty by
telefacsimile also shall deliver an original executed counterpart of this
Guaranty but the failure to deliver an original executed counterpart shall not
affect the validity, enforceability, and binding effect of this Guaranty.
22. NEW SUBSIDIARIES.
(a) JOINDER. Any Subsidiary (whether by acquisition or creation) of
Parent that is required pursuant to Section 5.16 of the Credit Agreement to
execute a joinder to this Guaranty shall execute and deliver to Agent a joinder
to this Guaranty, substantially in the form of Exhibit A (Joinder) attached
hereto. Upon the execution and delivery of such a joinder by any such
Subsidiary, such Subsidiary shall become a Guarantor hereunder with the same
force and effect as if originally named as a Guarantor herein. The execution and
delivery of any document adding an additional Guarantor as a party to this
Guaranty shall not require the consent of any Guarantor hereunder. The rights
and obligations of each Guarantor hereunder shall remain in full force and
effect notwithstanding the addition of any new Guarantor hereunder.
(b) AGREEMENT TO BE BOUND. Each Guarantor hereby agrees to be bound by
each and all of the terms and provisions of the Credit Agreement applicable to
such Guarantor. Without limiting the generality of the foregoing, by its
execution and delivery of this Guaranty, each Guarantor hereby: (a) makes to the
Lender Group each of the representations and warranties set forth in the Credit
Agreement applicable to such Guarantor fully as though such Guarantor were a
party thereto, and such representations and warranties are incorporated herein
by this reference, mutatis mutandis; and (b) agrees and covenants (i) to do each
of the things set forth in the Credit Agreement that Borrower agrees and
covenants to cause its Subsidiaries to do, and (ii) to not do each of the things
set forth in the Credit Agreement that Borrower agrees and covenants to cause
its Subsidiaries not to do, in each case, fully as though such Guarantor was a
party thereto, and such agreements and covenants are incorporated herein by this
reference, mutatis mutandis.
[Signature page to follow]
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IN WITNESS WHEREOF, the undersigned has executed and delivered this
Guaranty as of the date first written above.
HAWAIIAN HOLDINGS, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer,
Treasurer & Secretary
[SIGNATURE PAGE TO GUARANTY - TERM B]
EXHIBIT A
FORM OF JOINDER AGREEMENT
as of
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CANYON CAPITAL ADVISORS LLC
as Agent under the below defined Credit Agreement
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Re: Hawaiian Airlines, Inc.
Ladies and Gentlemen:
Reference hereby is made to: (i) that certain Credit Agreement, dated
as of June __, 2005 (as from time to time amended, modified, supplemented,
renewed, extended, or restated, the "Credit Agreement"), among, on the one hand,
HAWAIIAN HOLDINGS, INC., a Delaware corporation ("Parent"), HAWAIIAN AIRLINES,
INC., a Delaware corporation ("Borrower"); and, on the other hand, the lenders
identified on the signature pages thereof (together with their respective
successors and permitted assigns, each individually a "Lender" and collectively,
the "Lenders"), and CANYON CAPITAL ADVISORS LLC, a Delaware limited liability
company, in its capacity as agent for the Lenders (together with its successor
and assigns,"Agent"); and (ii) that certain General Continuing Guaranty, dated
as of June __, 2005 (as from time to time amended, modified, supplemented,
renewed, extended, or restated, the "Guaranty"), by Parent and the other
Guarantors identified on the signature pages thereof in favor of Agent.
This Joinder Agreement is executed and delivered by
___________________, a ___________________ ("New Guarantor") in favor of Agent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings given to such terms in the Credit Agreement.
1. Joinder. New Guarantor hereby joins in and agrees to be bound by
each and every provision of the Guaranty, and each other Loan Document to which
a "Guarantor" under the Credit Agreement is party, mutatis mutandis, and, in
doing so, becomes a "Guarantor" under the Credit Agreement and the Guaranty.
2. Without limiting the generality of the foregoing, New Guarantor
hereby irrevocably and unconditionally guaranties to Agent, for the benefit of
the Lender Group, as and for its own debt, until final payment in full thereof
has been made, (a) the payment of the Guarantied Obligations, when and as the
same shall become due and payable, whether at maturity, pursuant to a mandatory
prepayment requirement, by acceleration, or otherwise; it being the intent of
New Guarantor that the guaranty set forth herein shall be a guaranty of payment
and not a guaranty of collection; and (b) the punctual and faithful performance,
keeping, observance, and fulfillment by Borrower of all of the agreements,
conditions, covenants, and obligations of Borrower contained in the Credit
Agreement and under each of the other Loan Documents.
3. Representations and Warranties. New Guarantor hereby represents and
warrants to Agent and each Lender that: (a) the execution, delivery, and
performance of this Joinder Agreement and any other
Loan Document to which it is a party has been duly authorized by all necessary
action on the part of such New Guarantor, and does not and will not (i) violate
any provision of federal, state, or local law or regulation, its Governing
Documents, or any order, judgment, or decree of any court or other Governmental
Authority binding on it, (ii) conflict with, result in a breach of, or
constitute (with due notice or lapse of time or both) a default under any of
material contractual obligation or material lease of New Guarantor, (iii) result
in or require the creation or imposition of any Lien of any nature whatsoever
upon any properties or assets of New Guarantor or any other loan party, other
than Permitted Liens, or (iv) require any approval of the holders of its capital
Stock (or equivalent) or any approval or consent of any Person under any
material contractual obligation of New Guarantor, other than those already
obtained prior to the effective date hereof; (b) this Joinder Agreement and any
and all other Loan Documents to which it is made a party hereunder constitute
its legal, valid, and binding obligations, enforceable against it in accordance
with their respective terms; (c) the chief executive office of New Guarantor is
set forth on Schedule 4.7(b) to the Credit Agreement; and (d) each other
representation and warranty set forth in any Loan Document and applicable to New
Guarantor is and will be true and correct as of the date hereof.
4. Binding Effect. This Joinder Agreement is binding upon and
enforceable against New Guarantor and its respective successors and assigns. It
shall inure to the benefit of and may be enforced by Agent and the Lenders and
their respective successors and assigns.
5. Notices. All notices and other communications hereunder to New
Guarantor shall be in writing and shall be mailed, sent, or delivered in care of
Borrower in accordance with Section 11 of the Credit Agreement.
6. Loan Document. This Joinder Agreement is a Loan Document.
7. Loan Document References. (a) Each reference in the Credit
Agreement, the Guaranty, and the other Loan Documents to a "Guarantor" or words
of like import referring to a Guarantor (or any subset thereof) shall include
and refer to New Guarantor; and (b) each reference in the Guaranty, or any other
Loan Document to this "Agreement", "hereunder", "herein", "hereof",
"thereunder", "therein", "thereof", or words of like import referring to the
Guaranty, or such other Loan Document shall mean and refer to such agreement as
amended by this Joinder Agreement.
8. Further Assurances. New Guarantor shall execute and deliver to Agent
all financing statements, continuation financing statements, security
agreements, chattel mortgages, pledges, mortgages, deeds of trust, assignments,
supplements in respect of any of the foregoing, endorsements of certificates of
title, applications for title, affidavits, reports, notices, schedules of
accounts, letters of authority, and all other documents that Agent may
reasonably request, in form satisfactory to Agent, to perfect and to continue to
perfect Agent's security interests in the Collateral and in order to fully
consummate all of the transactions contemplated under this Joinder Agreement and
the Loan Documents.
9. Counterparts. This Joinder Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Joinder Agreement by
signing any such counterpart. Delivery of an executed counterpart of this
Joinder Agreement by telefacsimile shall be equally as effective as delivery of
an original executed counterpart of this Joinder Agreement. Any party delivering
an executed counterpart of this Joinder Agreement by telefacsimile also shall
deliver an original executed counterpart of this Joinder Agreement but the
failure to deliver an original executed counterpart shall not affect the
validity, enforceability, and binding effect of this Joinder Agreement.
[Signature Pages Follow]
-2-
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, as of the date first above written.
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a
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By:
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Name:
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Title:
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[SIGNATURE PAGE TO JOINDER TO GUARANTY]
