EXHIBIT 10(5)
LEASE AMENDMENT N0. 5
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THIS LEASE AMENDMENT XX. 0 (xxxxxx xxxxxx "Xxxxxxxxx Xx. 0"), dated as of
October 6, 1995, between AMERICAN AIRLINES, INC., a Delaware corporation
("Lessor"), and HAWAIIAN AIRLINES, INC., a Hawaii corporation ("Lessee").
WITNESSETH:
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WHEREAS, Lessor and Lessee have heretofore entered into that certain
Aircraft Lease Agreement dated as of September 12, 1994 (as amended and
supplemented from time to time, the "Lease Agreement", defined terms used herein
as therein defined), which provides for the execution of a Lease Amendment for
the purpose of, among other things, amending the Lease Agreement and any Lease
Supplements thereto; and
WHEREAS, the Lease Agreement was modified and amended by those certain
Lease Supplements No. 1 through 6, each dated as of September 12, 1994, recorded
with the Lease Agreement, with the Federal Aviation Administration (the "FAA")
on September 16, 1994 as Conveyance No. P98874, by that certain Lease Supplement
No. 7 dated as of September 21, 1994, recorded with the FAA on October 26, 1994
as Conveyance No. 1100230, by that certain Lease Supplement No. 8 dated as of
October 6, 1994, recorded with the FAA on October 31, 1994 as Conveyance No.
LL08311, by that certain Amendment to Lease Agreement, Lease Supplements and
Lease Supplement No. 9, dated as of November 12, 1994, recorded with the FAA on
November 21, 1994 as Conveyance No. NN007458, by that certain Lease Supplement
No. 10 dated November 21, 1994, recorded by the FAA on March 15, 1995 as
conveyance No. YY010872, by that certain Lease Amendment No. 2 dated April 13,
1995 ("Lease Amendment No. 2"), recorded by the FAA on May 26, 1995 as
Conveyance No. D06501, by that certain Lease Amendment No. 3 dated June 1, 1995
("Lease Amendment No. 3"), recorded by the FAA on June 8, 1995 as Conveyance No.
E19773, and by that certain Lease Amendment No. 4 dated August 22, 1995 ("Lease
Amendment No. 4"), recorded by the FAA on ____________, 1995 as Conveyance
No. _______________; and
WHEREAS, Lessee has failed to make certain payments of Rent due and payable
on or prior to the date hereof, and Lessor has agreed to defer payment of the
overdue Deferred Basic Rent as set forth herein; and
WHEREAS, Lessor's agreement to the additional deferrals as set forth herein
is conditioned upon Lessee's performance of its obligations under this Lease
Amendment No. 5 and the Consulting Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and pursuant to the Lease Agreement, the Lessor and Lessee hereby
amend the Lease Agreement as follows:
A. AMENDMENT TO THE LEASE AGREEMENT.
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1. The following definitions set forth in Section 1 of the Lease Agreement
shall be amended in their entirety as follows:
"'Additional Deferred Basic Rent Payment Dates' means November 22,
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1995 and December 1, 8, 19 and 22, 1995."
"'Deferred Basic Rent Payment Dates' means March 31, 1995, April 7,
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14 and 21, 1995, May 1, 1995 and November 20, 1995."
2. The first sentence of Subsection 3(b) of the Lease Agreement shall be
amended in its entirety to read as follows:
"Lessee hereby agrees to pay Lessor (i) Basic Rent (except Deferred Basic
Rent) for each Aircraft throughout the Term in the amounts set forth in Schedule
I on the day prior to each applicable Basic Rent Payment Date commencing on the
day prior to the applicable Delivery Date, and (ii) Deferred Basic Rent for all
the Aircraft throughout the applicable Terms in the amounts set forth in
Schedule I on the Deferred Basic Rent Payment Dates; provided, however, that
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if on or before November 20, 1995, Lessee has paid to Lessor at least
$8,822,753.42 of the Deferred Basic Rent Payment due and payable on November 20,
1995, then Lessee shall pay to Lessor the remainder of the Deferred Basic Rent
for all the Aircraft in the amounts set forth in Schedule I on the Additional
Deferred Basic Rent Payment Dates."
3. Section 13A(n) of the Lease Agreement shall be amended by changing the
reference to "In-Service Aircraft" to read "In-Use Aircraft."
4. The first paragraph of Section 14A of the Lease Agreement shall be
amended in its entirety to read as follows:
"Upon the occurrence of any Lessee Event of Default and at any time
thereafter so long as the same shall be continuing, Lessor may, at its option,
declare this Lease to be in default by a written notice to Lessee and Lessor may
concurrently therewith or at any time thereafter, as part of the same or a
separate written notice, declare this Lease to be terminated, and immediately
proceed to do any one or more of the following as Lessor in its sole discretion
shall elect, to the extent permitted by, and subject to compliance with any
mandatory requirements of, applicable law then in effect; provided that upon the
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occurrence of any Lessee Event of Default described in Section 13A(i) or (j)
above, this Lease Agreement shall automatically be in default, and Lessor may
elect to do any of the following, without prior notice to Lessee:"
5. Section 17(b) of the Lease Agreement shall be amended by deleting the
following words from the eighth through tenth lines thereof:
"...confirmed by (i) telephone contemporaneously to the person entitled to
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receive such notice (or to such person's secretary) and (ii)..."
6. Section 17(m)(iii) shall be amended by adding the following to the end
thereof:
"In the event that an order is issued giving Lessor possession of any In-
Use Aircraft, Lessee hereby waives any right it may have to return of possession
of such aircraft, and covenants that it will not seek any order permitting it to
retain or repossess such Aircraft, by posting a bond or otherwise. In the event
that any court declines to issue an order permitting Lessor to repossess any In-
Use Aircraft unless Lessor posts or issues a bond, or Lessor elects not to
request that the requirement for such a bond be waive, Lessee hereby agrees that
(if Lessor so elects) the amount of such bond shall not be required to exceed
one year's Basic Rent for such Aircraft."
6. Schedule I to the Lease Agreement shall be amended in its entirety to
read as set forth in Schedule I attached hereto.
B. CONDITIONS PRECEDENT TO EFFECTIVENESS OF THIS AMENDMENT NO. 5.
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This Amendment No. 5 shall become effective upon the fulfillment of the
following conditions precedent:
1. On the effective date of this Amendment No. 5 (the "Supplement
Effective Date"), the representations and warranties of Lessee set forth in the
Lease Agreement shall be true and accurate as if made on such date.
2. The Lease Amendment and the applicable Lease Supplements shall have
been executed and filed for information with the FAA in Oklahoma city, Oklahoma.
3. The receipt by Lessor from Lessee not later than two (2) days prior to
the Supplement Effective Date of the following, dated as of such Supplement
Effective Date, all of which shall be satisfactory in form and substance to
Lessor:
(a) copies of the articles of incorporation and by-laws of Lessee,
certified to be true and up to date copies by a duly authorized officer thereof
or certifying no changes or amendments thereto since the date they were last
certified to Lessor by Lessee;
(b) copies of resolutions of the board of directors of Lessee authorizing
Lessee to enter into and perform this Amendment No. 5 and the transactions
contemplated hereby, certified to be true and up to date copies by a duly
authorized officer of Lessee;
(c) a closing certificate and an incumbency certificate of a duly
authorized officers of Lessee setting out the names and signatures of the person
or persons
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authorized to sign the Lease Agreement;
(d) receipt by Lessor of the installments of Basic Rent pursuant to
Section 3 of the Lease Agreement, as amended hereby, and Supplement Rent
pursuant to Exhibit F to this Lease Agreement, as amended hereby, and payment of
all amounts then due under any other Long-Term Agreement.
4. The Final Order confirming the Plan shall be and remain in full force
and effect.
5. The Long-Term Agreements and the Letter of Credit shall be in full
force and effect.
6. No Default or Lessee Event of Default shall have occurred and be
continuing after giving effect to this Lease Amendment and no "Event of Default"
or "Termination Event" shall have occurred and be continuing under the Long-Term
Agreements.
C. MISCELLANEOUS.
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1. Except as set forth herein, all terms and provisions contained in the
Lease Agreement shall remain in full force and effect. Nothing contained in this
Lease Amendment No. 5 shall be deemed a waiver by Lessor of any amounts due and
owing under the Lease or of any rights of Lessor existing on the date hereof
under the Lease; provided, however, that the amount of Deferred Basic Rent
represents the unpaid Rent due and owing on the date hereof (the "Unpaid Rent"),
and Lessor's sole remedy for the Unpaid Rent shall be the payment of Deferred
Basic Rent. Lessor hereby waives any Event of default under the Lease Agreement
arising solely from Lessee's failure to pay the Unpaid Rent; further provided
that Lessee's failure to pay the Deferred Basic Rent shall constitute an Event
of Default under the Lease Agreement and entitle Lessor to enforce all rights
and remedies under Section 14A of the Lease.
2. Lessee hereby confirms its agreement to pay to Lessor Basic Rent
(including Deferred Basic Rent) and Supplemental Rent for the Aircraft
throughout the Term in accordance with Section 3 of the Lease Agreement.
3. This Amendment No. 5 is being delivered in the State of Texas and shall
in all respects be governed by, and construed in accordance with, the laws of
the State of Texas, including all matters of construction, validity and
performance.
4. This Amendment No. 5 may be executed in several counterparts, each
fully-executed counterparts all of which shall be deemed an original, and all
such counterparts shall constitute one and the same instrument. To the extent
that this Amendment No. 5 constitutes chattel paper, as such term is defined in
the Uniform Commercial Code as in effect in any applicable jurisdiction, no
security interest in this Amendment No. 5 may be created through the transfer or
possession of any
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counterpart other than the counterpart marked as the "Original."
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, Lessor and Lessee have caused this Amendment No. 5 to
be duly executed and delivered as of the date and year first above written.
AMERICAN AIRLINES, INC.
By: /s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx
Vice President- Corporate
Development and Treasurer
HAWAIIAN AIRLINES, INC.
By: /s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
President and Chief Executive
Officer
By: /s/ XXX X. XXXXX
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Xxx X. Xxxxx
Vice President, General Counsel
and Corporate Secretary
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SCHEDULE I
This Schedule I has been left intentionally blank for recording purposes,
as the parties deem the information contained therein to be confidential
financial information.
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