THIRD AMENDMENT TO SENIOR SECURED REVOLVING CREDIT AGREEMENT
THIS THIRD AMENDMENT TO SENIOR SECURED REVOLVING CREDIT AGREEMENT,
dated as of August 29, 2002 (the "Amendment"), is by and among MIDWEST EXPRESS
HOLDINGS, INC. (the "Borrower"), the lenders party hereto and U.S. BANK NATIONAL
ASSOCIATION, as Agent (the "Agent").
RECITALS
WHEREAS, the Borrower is party to that certain Senior Secured Revolving
Credit Agreement, dated as of August 31, 2001, by and among the Borrower, the
lenders party thereto (each, a "Lender" and collectively, the "Lenders") and the
Agent, as amended by the First Amendment to Senior Secured Revolving Credit
Agreement dated as of January 9, 2002 and the Second Amendment to Senior Secured
Revolving Credit Agreement dated as of June 28, 2002 (as so amended, the "Credit
Agreement"); and
WHEREAS, the Borrower has requested that the Lenders and the Agent
amend the Credit Agreement as set forth herein; and
WHEREAS, the Lenders and the Agent are willing to amend the Credit
Agreement as set forth herein, but only under the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing premises and the
covenants, conditions and agreements set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used in this Amendment but not defined herein shall
have the definitions assigned in the Credit Agreement.
ARTICLE II
AMENDMENTS
The Credit Agreement is amended as follows:
2.1 Section 1.1 - Definitions. The definition of "Revolving Termination
Date" in Section 1.1 is deleted in its entirety and replaced by the following:
"Revolving Termination Date" means September 30, 2002, or the
date when the Revolving Commitments are terminated in full pursuant to
this Credit Agreement.
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2.2 Section 1.1 - Definitions. The following new definitions of
"Airlines" and Astral" are inserted in Section 1.1 in appropriate alphabetical
order:
"Airlines" means Midwest Express Airlines, Inc.
"Astral" means Astral Aviation, Inc.
2.3 Section 8(k) - Events of Default. Section 8(k) of the Credit
Agreement is amended by deleting the word "or" at the end thereof.
2.4 Section 8(l) - Events of Default. Section 8(l) of the Credit
Agreement is amended by inserting the word "or" at the end thereof.
2.5 Section 8(m) - Events of Default. A new Section 8(m) of the Credit
Agreement is created to read as follows:
(m) Airlines and Astral cease, or announce their intention to
cease, 40% or more of their flight operations for 5 consecutive days,
or Airlines ceases, or announces its intention to cease, all flight
operations for more than 24 hours;
2.6 Schedule 2.1(a) - Commitments. If the Borrower elects to deliver
the notice and make a prepayment of Revolving Loans pursuant to Section
4.6(f)(2) of this Amendment, then Schedule 2.1(a) to the Credit Agreement is
deleted in its entirety and replaced by Schedule 2.1(a) attached to this
Amendment.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the Agent and the
Lenders that:
3.1 Credit Agreement. All of the representations and warranties made by
the Borrower in the Credit Agreement are true and correct as of the date hereof.
No Default or Event of Default under the Credit Agreement has occurred and is
continuing as of the date of this Amendment.
3.2 Authorization; Enforceability. The making, execution and delivery
of this Amendment, and performance of and compliance with the terms of the
Credit Agreement, as amended, have been duly authorized by all necessary
corporate action by the Borrower. This Amendment is the valid and binding
obligation of the Borrower, enforceable against the Borrower in accordance with
its terms.
3.3 Absence of Conflicting Obligations. The making, execution and
delivery of this Amendment, and performance of and compliance with the terms of
the Credit Agreement, as amended, do not violate any presently existing
provision of law or the articles of incorporation or bylaws of the Borrower or
any agreement to which the Borrower is a party or by which it is bound.
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ARTICLE IV
MISCELLANEOUS
4.1 Continuance of Credit Agreement. Except as specifically amended by
this Amendment, the Credit Agreement shall remain in full force and effect.
4.2 Survival. All agreements, representations and warranties made in
this Amendment or in any documents delivered pursuant to this Amendment shall
survive the execution of this Amendment and the delivery of any such document.
4.3 Governing Law. This Amendment shall be governed by the laws of the
State of Wisconsin (without regard to choice of law principles).
4.4 Counterparts; Headings. This Amendment may be executed in several
counterparts, each of which shall be deemed an original, but such counterparts
shall together constitute but one and the same agreement. Article and Section
headings in this Amendment are inserted for convenience of reference only and
shall not constitute a part hereof.
4.5 Severability. Any provision of this Amendment 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 of this Amendment or affecting the
validity or enforceability of such provision in any other jurisdiction.
4.6 Conditions to Effectiveness. This Amendment shall become effective
as of the date hereof upon the satisfaction of each the following conditions
precedent:
(a) The Agent shall have received a fully-executed copy of this
Amendment, executed by each of the Borrower, the Lenders and the Agent;
(b) The Agent shall have received a fully-executed copy of a
Reaffirmation of Guaranty in the form attached hereto, executed by each of the
Guarantors;
(c) No Default or Event of Default shall have occurred and be
continuing;
(d) The Borrower shall have paid to the Agent, for the respective pro
rata accounts of the Lenders, an amendment fee in the amount of $100,000, which
fee shall be non-refundable and fully earned as of the date hereof;
(e) The Borrower shall have paid all outstanding fees and expenses of
the Agent's legal counsel and all fees and expenses of the Agent's legal counsel
incurred in connection with this Amendment; and
(f) (1) The Borrower shall have delivered to the Agent and the Lenders
a written consent from Thrivent Financial for Lutherans, as successor in
interest to Aid Association for Lutherans, consenting to the execution and
delivery by the Borrower of (i) a second priority mortgage, security agreement
and fixture filing in favor of the Agent, for the benefit of the Lenders,
covering the Borrower's headquarters building and associated real estate located
at
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0000 Xxxxx Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxx, and (ii) a third priority
mortgage, security agreement and fixture filing in favor of U.S. Bank National
Association, as Card Processor, covering the Borrower's headquarters building
and associated real estate at the foregoing location; or
(2) The Borrower shall have (i) delivered to the Agent and the
Lenders a written notice that the Borrower has not been able to obtain the
consent described in the foregoing Section 4.6(f)(1) and elects instead to
proceed under the provisions of this Section 4.6(f)(2), and (ii) paid to the
Agent, pursuant to Sections 3.3(c) and 3.13 of the Credit Agreement, a
prepayment of Revolving Loans of not less than $7,000,000.
4.7 Appraisals. The Borrower shall cooperate fully, and cause the
Guarantors to cooperate fully, with all appraisers engaged by the Agent to
examine and appraise any of the assets of the Borrower and/or the Guarantors, in
the Agent's discretion, including without limitation making such assets and
information available promptly for inspection by such appraiser(s) as the Agent
may request from time to time. The Borrower agrees that the fees and expenses of
all such appraisers shall be payable by the Borrower.
4.8 Ratification. The Credit Agreement, as amended hereby, the other
Credit Documents and all other documents, instruments and agreements related
thereto, are hereby ratified and confirmed in all respects and shall continue in
full force and effect. The Credit Agreement shall, together with this Amendment,
be read and construed as a single agreement. All references in the Credit
Agreement, the other Credit Documents and any related agreement or instrument
shall hereafter refer to the Credit Agreement as amended hereby.
4.9 No Other Amendments. Except as expressly provided in this
Amendment, all of the terms and conditions of the Credit Agreement and the other
Credit Documents remain in full force and effect. Nothing contained in this
Amendment shall be construed to imply a willingness on the part of the Lenders
or the Agent to grant any similar or other future waivers or amendments of any
of the terms and conditions of the Credit Agreement or the other Credit
Documents.
4.10 Release. In order to induce the Agent and the Lenders to enter
into this Amendment, the Borrower and the Guarantors acknowledge and agree that:
(a) they do not have any claim or cause of action against the Agent or any of
the Lenders (or any of their respective directors, officers, employees or
agents); (b) they do not have any offset right, counterclaim or defense of any
kind against any of its obligations, indebtedness or liabilities to the Agent
and the Lenders; and (c) each of the Agent and the Lenders have heretofore
properly performed and satisfied in a timely manner all of their obligations to
the Borrower and the Guarantors. The Borrower and the Guarantors wish to
eliminate any possibility that any past conditions, acts, omissions, events,
circumstances or matters would impair or otherwise adversely affect any of the
Agent's or the Lenders' rights, interests, contracts, collateral security or
remedies. Therefore, the Borrower and the Guarantors unconditionally release,
waive and forever discharge (i) any and all liabilities, obligations, duties,
promises or indebtedness of any kind of either of the Agent or any of the
Lenders to the Borrower or any Guarantor, except the obligations to be performed
by the Agent and the Lenders as expressly stated in the Credit Agreement, as
amended hereby, and the other Credit Documents, and (ii) all claims, offsets,
causes of action, suits or defenses of
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any kind whatsoever (if any), whether arising at law or in equity, whether known
or unknown, which the Borrower or any Guarantor might otherwise have against the
Agent or any of the Lenders or any of their directors, officers, employees or
agents, in either case (i) or (ii) on account of any condition, act, omission,
event, contract, liability, obligation, indebtedness, claim, cause of action,
defense, circumstance or matter of any kind whatsoever arising or occurring on
or prior to the date of this Amendment. Except as prohibited by law, the
Borrower and the Guarantors hereby waive any right they may have to claim or
recover in any litigation involving the Agent or any of the Lenders, any
special, exemplary, punitive or consequential damages or any damages other than,
or in addition to, actual damages. The Borrower and the Guarantors (A) certify
that no representative, agent or attorney of any Lender or the Agent has
represented, expressly or otherwise, that such Lender or the Agent would not, in
the event of litigation, seek to enforce the foregoing waivers, releases and
discharges, and (B) acknowledge that the Agent and the Lenders have been induced
to enter into this Amendment by, among other things, the waivers, releases,
discharges and certifications contained herein. The waivers, releases and
discharges in this paragraph shall be effective regardless of any other event
that may occur or not occur on or after the date hereof.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Senior Secured Revolving Credit Agreement as of the day and year first written
above.
MIDWEST EXPRESS HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Title: CFO
------------------------------
U.S. BANK NATIONAL
ASSOCIATION, in its
capacity as Agent and as a
Lender
By: /s/ [Authorized Representative]
---------------------------------
Title: Assistant Vice President
------------------------------
M&I XXXXXXXX & ILSLEY BANK
By: /s/ [Authorized Representative]
---------------------------------
Title: Vice President
------------------------------
Attest:/s/[Authorized Representative]
------------------------------
Title: Vice President
------------------------------
BANK ONE, NA (Main Office Chicago)
By: /s/ [Authorized Representative]
--------------------------------
Title: Vice President
------------------------------
Signature Page
REAFFIRMATION OF GUARANTY
Each of the undersigned (each a "Guarantor") executed a Subsidiary
Guaranty (each a "Guaranty") dated as of August 31, 2001 in favor of the Lenders
(as defined in each Guaranty) pursuant to which each Guarantor guaranteed
certain obligations owed by Midwest Express Holdings, Inc. (the "Borrower") to
the Lenders, including, without limitation, all debts, liabilities, obligations,
covenants and agreements of the Borrower in that certain Senior Secured
Revolving Credit Agreement, dated as of August 31, 2001 (as amended from time to
time, the "Credit Agreement"), by and between the Borrower, the Lenders and U.S.
Bank National Association, as Agent for the Lenders, and related agreements, as
amended. Each Guarantor acknowledges and consents to the Third Amendment to
Senior Secured Revolving Credit Agreement and hereby agrees that it shall remain
liable under its Guaranty for all amounts owed pursuant to the Credit Agreement,
as amended by the Third Amendment, and the related agreements. Further, each
Guarantor expressly agrees that it shall be irrevocably bound by the provisions
of the Release set forth in Section 4.10 of the Third Amendment.
August 29, 2002.
MIDWEST EXPRESS AIRLINES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Title: CFO
---------------------------------------
ASTRAL AVIATION, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Title: CFO
---------------------------------------
MIDWEST EXPRESS SERVICES - OMAHA, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Title: President
---------------------------------------
MIDWEST EXPRESS SERVICES - KANSAS CITY, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Title: President
---------------------------------------
YX PROPERTIES, LLC
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Title: President
--------------------------------------
Reaffirmation of Guaranty
SCHEDULE 2.1(a)
REVOLVING COMMITMENTS, LOC COMMITMENTS
and SWING LINE COMMITMENT PERCENTAGES
Revolving Commitment Amount Revolving Commitment Percentage
U.S. Bank National Association $18,309,084 48.1818%
M&I Xxxxxxxx & Ilsley Bank $14,163,626 37.2727%
Bank One, NA $5,527,290 14.5455%
Totals $38,000,000 100.0000%
LOC Commitment Amount LOC Commitment Percentage
U.S. Bank National Association $12,045,450 48.1818%
M&I Xxxxxxxx & Xxxxxx Bank $9,318,175 37.2727%
Bank One, NA $3,636,375 14.5455%
Totals $25,000,000 100.0000%
Swing Line Commitment Percentage
U.S. Bank National Association 48.1818%
M&I Xxxxxxxx & Ilsley Bank 37.2727%
Bank One, NA 14.5455%
Totals 100.0000%
