Private and confidential
 | Rolls-Royce plc PO Box 31,Derby DE24 8BJ,England Telephone: +44 (0) 1332 242424 Fax: +44 (0) 01332 249936 www.rolls-royce.com |
Hawaiian Airlines, Inc.
3375 Koapaka Street
Suite G350
Honolulu, Hawaii 96819
USA
December 20, 2013
Dear Sirs,
AMENDMENT NUMBER FIVE ("AMENDMENT 5") TO THE GENERAL TERMS AGREEMENT REFERENCE DEG 5327 BETWEEN ROLLS-ROYCE PLC, ROLLS-ROYCE TOTAL CARE SERVICES LIMITED ("ROLLS-ROYCE") AND HAWAIIAN AIRLINES, INC. ("HAWAIIAN"), DATED OCTOBER 27, 2008 AS AMENDED (THE "AGREEMENT")
BACKGROUND:
(A) The Parties entered into the Agreement.
| (B) | The Parties wish to amend certain terms of the Agreement that relate to escalation, payment terms and the charges adjustment matrix terms; such amended terms shall apply from the date of this Amendment 5. |
(C) This Amendment 5 sets out the provisions agreed by the Parties in relation to the above.
AGREED TERMS:
1. INTERPRETATION
In this Amendment 5 capitalised terms that are not otherwise defined have the same meaning as given to them in the Agreement.
2. REPRESENTATIONS AND WARRANTIES
2.1 General
Each Party makes the following representations and warranties to the other:
| (a) | it is a corporation duly incorporated and validly existing under the laws of its jurisdiction of incorporation and, if relevant under such laws, in good standing; |
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Rolls-Royce plc Registered office: 65 Buckingham Gate, London SW1E 6AT.
Company number: 1003142. Registered in England Amdt 5 to DEG5327
[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
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| (b) | it has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, this Amendment 5 and the transactions contemplated by it; |
| (c) | the entry into and performance by it of, and the transactions contemplated by, this Amendment 5 do not and will not conflict with: |
(i) any law applicable to it;
(ii) its constitutional documents; or
(iii) any agreement or instrument binding upon it or any of its assets;
| (d) | the obligations expressed to be assumed by it in this Amendment 5 are legal, valid and binding obligations enforceable in accordance with their terms (except as enforceability may be limited by bankruptcy, insolvency, reorganisation or other laws of general application affecting the enforcement of creditors’ rights); |
| (e) | its payment obligations under this Amendment 5 rank at least equally with all its other present and future unsecured and unsubordinated payment obligations except for obligations preferred on a mandatory basis by Law applying to companies generally. |
2.2 Survival
Each of the representations and warranties survive the execution of this Amendment 5.
3. AMENDMENTS TO THE AGREEMENT
| 3.1 | The escalation formula detailed in Exhibit E-1 Schedule 2 – Engine Base Price Escalation Formula of the Agreement is deleted in its entirety and replaced with the formula detailed in Appendix A to this Amendment 5. |
| 3.2 | The payment terms detailed in Exhibit G – TotalCare Provision, Clause 3 of the Agreement are amended as follows: |
[**]
| 3.3 | The [**] detailed in [**] of the Agreement is deleted in its entirety and replaced with the [**] detailed in Appendix B to this Amendment 5. |
4. ASSIGNMENT
The terms and conditions of this Amendment 5 are personal to Hawaiian and may not, under any circumstances, be assigned, novated or otherwise transferred to any third party, except as provided in the third paragraph of Clause 14.4 of the Agreement. Any purported assignment, novation or other transfer of the terms and conditions of this Amendment 5 shall be void.
5. GENERAL
All rights, obligations and liabilities under this Amendment 5 shall be subject to and in accordance with the provisions of the Agreement and, except as specifically amended herein, the provisions of the Agreement shall remain in full force and effect and this Amendment 5 is made without prejudice to either
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Rolls-Royce plc Registered office: 65 Buckingham Gate, London SW1E 6AT.
Company number: 1003142. Registered in England Amdt 5 to DEG5327
[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
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Private and confidential
of the Parties' existing rights (unless expressly stated in this Amendment 5) set forth or arising under the Agreement. In the event of any conflict between the terms of this Amendment 5 and the Agreement, the terms of this Amendment 5 shall prevail.
For the avoidance of doubt, any default by Hawaiian under this Amendment 5 shall be considered a default under the Agreement.
6. CONFIDENTIALITY
The provisions of this Amendment 5 are confidential in accordance with Clause 10 of the Agreement, and shall not (except as provided in Clauses 10.7 and 14.12 of the Agreement) be disclosed to any third party without the prior written consent of the other party.
7. INTEGRATION
This Amendment 5 constitutes a "writing" within the meaning of Clause 14.5 of the Agreement, embodies the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior oral or written negotiations, agreements and understandings of the parties with respect to the subject matter hereof.
8. INCORPORATION BY REFERENCE
The terms and provisions of Clauses 14.3, 14.5, 14.6, 14.7, 14.8, 14.9 and 14.13 of the Agreement are hereby incorporated by reference, as though fully set forth herein.
Signed for and on behalf of: Signed for and on behalf of:
| HAWAIIAN AIRLINES, INC. | ROLLS-ROYCE PLC |
By: /s/ Scott Topping By: /s/ Carl Brazier
Printed Scott Topping Printed Carl Brazier
Title: EVP, CFO and Treasurer Title: Commercial Manager
Signed for and on behalf of: Signed for and on behalf of:
| HAWAIIAN AIRLINES, INC. | ROLLS-ROYCE TOTALCARE SERVICES LIMITED |
By: By: /s/ J. Shannahan
Printed Printed J. Shannahan
Title: Title: Director
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Rolls-Royce plc Registered office: 65 Buckingham Gate, London SW1E 6AT.
Company number: 1003142. Registered in England Amdt 5 to DEG5327
[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
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Appendix A to Amendment 5
EXHIBIT E-1
SCHEDULE 2 – ENGINE BASE PRICE ESCALATION FORMULA
[**]
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Rolls-Royce plc Registered office: 65 Buckingham Gate, London SW1E 6AT.
Company number: 1003142. Registered in England Amdt 5 to DEG5327
[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
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Appendix B to Amendment 5
[**]
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Rolls-Royce plc Registered office: 65 Buckingham Gate, London SW1E 6AT.
Company number: 1003142. Registered in England Amdt 5 to DEG5327
[**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
Confidential