SECOND AMENDMENT TO SENIOR SECURED REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDMENT TO SENIOR SECURED REVOLVING CREDIT AGREEMENT,
dated as of June 28, 2002 (the "Amendment"), is by and between 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 (as so amended, the "Credit Agreement");
and
WHEREAS, Midwest Express Airlines, Inc., one of the Guarantors
("Airlines"), is entering into a Loan Agreement (the "Loan Agreement") with
Kreditanstalt fur Wiederaufbau (the "KfW"), as Lender thereunder, to finance
advance payments in connection with Airlines's purchase of certain Model 717-200
aircraft described therein (the "Aircraft") pursuant to Purchase Agreement No.
2371, dated as of September 28, 2001, and as may hereafter be amended and/or
supplemented from time to time, by and between Airlines and XxXxxxxxx Xxxxxxx
Corporation, a Maryland corporation (the "Manufacturer"), including all exhibits
thereto and all letter agreements then or thereafter entered into that by their
terms constitute part of such purchase agreement (the "Purchase Agreement"); and
WHEREAS, in connection with the Loan Agreement, Rolls-Royce Deutschland
Ltd. & Co. KG ("RRD") is entering into a Guarantee Agreement (the "Loan
Guarantee") with KfW whereby, among other things, RRD will guarantee to KfW the
payment by Airlines of principal and interest due under the Loan Agreement in
accordance with the terms thereof; and
WHEREAS, in connection with RRD's entry into the Loan Guarantee,
Airlines is entering into a Secured Reimbursement Agreement (the "Reimbursement
Agreement") with RRD providing, among other things, for the reimbursement by
Airlines to RRD of all amounts under the Loan Agreement that may become payable
by RRD to KfW under the Loan Guarantee; and
WHEREAS, as security for the payment and performance of Airlines's
obligations (i) to RRD under the Reimbursement Agreement, (ii) to KfW under the
Loan Agreement, (iii) to RRD, as Collateral Agent (the "Collateral Agent") under
the RRD/KfW Security Agreement (as defined below), and (iv) to either of RRD or
KfW under any other Transaction Document (as defined in the Loan Agreement) and
otherwise, Airlines is entering into a Security Agreement (the "RRD/KfW Security
Agreement") with Collateral Agent, pursuant to which Airlines is granting to the
Collateral Agent, for its benefit and each of RRD and KfW, a continuing first
priority security interest in and to the "Released Collateral" as defined in
Exhibit A attached hereto (the "Released Collateral"); and
WHEREAS, the Borrower, the Agent and the Lenders party hereto desire to
further amend the Credit Agreement as set forth herein.
IN CONSIDERATION of the mutual covenants, conditions and agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed that:
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 "Required Lenders"
contained in Section 1.1 is amended by deleting the "51%" contained therein and
inserting "100%" in its place.
2.1 Section 2.1 - Revolving Loans. Section 2.1 of the Credit Agreement
is amended in by deleting the amount "FIFTY-FIVE MILLION DOLLARS ($55,000,000)"
contained therein and inserting "FORTY-FIVE MILLION DOLLARS ($45,000,000)" in
its place.
2.2 Schedule 2.1(a) - Commitments. Schedule 2.1(a) to the Credit
Agreement is 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 on the date of this
Amendment. 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.
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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.
3.4 Purchase Agreement. All of the representations and warranties of
Airlines regarding the Purchase Agreement made in that certain letter of even
date herewith from Airlines and addressed to the Lenders (the "Purchase
Agreement Letter") are true and correct.
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.
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 Effectiveness. This Amendment shall be effective upon the
satisfaction of the following conditions:
(a) receipt by the Agent of this Amendment executed by the Borrower;
(b) execution and delivery to the Agent of a Reaffirmation of Guarantor
by the Guarantors;
(c) execution and delivery to the Lenders of the Purchase Agreement
Letter by Airlines; and
(d) such additional supporting documents and materials as the Agent or
Lenders may reasonably request.
-3-
4.7 Collateral Release. The Lenders authorize the Agent to release its
security interest in the Released Collateral pursuant to a Release substantially
in the form of Exhibit A attached hereto.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Second
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: Officer
------------------------------
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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 (the "Credit
Agreement"), by and between the Borrower, the Lenders and U.S. Bank National
Association, d/b/a Firstar Bank, N.A. as Agent for the Lenders, and related
agreements, as amended. Each Guarantor acknowledges the Second 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 Amendment, and the related agreements.
June 28, 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
---------------------------------------
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EXHIBIT A
RELEASE
RELEASE, dated as of June __, 2002 (this "Release"), by U.S. Bank National
Association, d/b/a Firstar Bank, N.A., as Agent (the "Agent"), in favor of
Midwest Express Holdings, Inc., a Wisconsin corporation ("MWEH"), Midwest
Express Airlines, Inc., a Wisconsin corporation ("MWE"), Rolls-Royce Deutschland
Ltd. & Co. KG ("RRD"), on behalf of itself and in its capacity as Collateral
Agent under the RRD/KfW Security Agreement (as defined below), Kreditanstalt fur
Wiederaufbau (the "KfW"), and their respective successors and assigns, including
their transferees.
WHEREAS, the Agent, MWEH and the lenders signatory to the Credit Agreement (as
defined below) from time to time (the "Credit Lenders"), are parties to that
certain Senior Secured Revolving Credit Agreement, dated as of August 31, 2001
(as amended, modified or supplemented from time to time, the "Credit
Agreement"); and
WHEREAS, the obligations of MWEH under the Credit Agreement are secured by a
security interest granted pursuant to that certain Subsidiary Security
Agreement, dated as of August 31, 2001 (the "Revolver Security Agreement"), by
and among the Agent, for itself and as agent for each of the Benefited Parties
thereunder (in such capacity, the "Security Agent"), and various subsidiaries of
MWEH, including but not limited to MWE; and
WHEREAS, MWE is entering into a Loan Agreement (the "Loan Agreement") with KfW,
as Lender thereunder, to finance advance payments in connection with MWE's
purchase of certain Model 717-200 aircraft described therein (the "Aircraft")
pursuant to Purchase Agreement No. 2371, dated as of September 28, 2001, and as
may hereafter be amended and/or supplemented from time to time, by and between
MWE and XxXxxxxxx Xxxxxxx Corporation, a Maryland corporation (the
"Manufacturer"), including all exhibits thereto and all letter agreements then
or thereafter entered into that by their terms constitute part of such purchase
agreement (the "Purchase Agreement"); and
WHEREAS, in connection with the Loan Agreement, RRD is entering into a Guarantee
Agreement (the "Loan Guarantee") with KfW whereby, among other things, RRD will
guarantee to KfW the payment by MWE of principal and interest due under the Loan
Agreement in accordance with the terms thereof; and
WHEREAS, in connection with RRD's entry into the Loan Guarantee, MWE is entering
into a Secured Reimbursement Agreement (the "Reimbursement Agreement") with RRD
providing, among other things, for the reimbursement by MWE to RRD of all
amounts under the Loan Agreement that may become payable by RRD to KfW under the
Loan Guarantee; and
WHEREAS, as security for the payment and performance of MWE's obligations (i) to
RRD under the Reimbursement Agreement, (ii) to KfW under the Loan Agreement,
(iii) to RRD, as Collateral Agent (the "Collateral Agent") under the RRD/KfW
Security
Agreement (as defined below), and (iv) to either of RRD or KfW under any other
Transaction Document (as defined in the Loan Agreement) and otherwise, MWE is
entering into a Security Agreement (the "RRD/KfW Security Agreement") with
Collateral Agent, pursuant to which MWE is granting to the Collateral Agent, for
its benefit and each of RRD and KfW, a continuing first priority security
interest in and to the collateral set forth on Schedule A hereto (the "Released
Collateral").
NOW THEREFORE, the Security Agent hereby agrees as follows:
1. Release. The Security Agent, for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, does hereby agree that:
(a) the Security Agent has relinquished, disclaimed, released and terminated any
of its right, title and interest in, to or under the Released Collateral; and
(b) the Released Collateral is irrevocably released from any lien, security
interest, assignment, mortgage, pledge or other encumbrance or claim in favor of
the Security Agent or any Credit Lender.
2. Form UCC-3. The Security Agent agrees to deliver to the Collateral Agent the
Uniform Commercial Code release statements set forth on Schedule B hereto. The
Security Agent further agrees to furnish additional reassignments, terminations
and releases and such other and further documents and instruments as may
reasonably be requested in order to effect and evidence more fully the matters
covered by this Release.
3. Authority. The Security Agent represents and warrants that the Security Agent
has full power and authority to enter into this Release and all consents and
approvals necessary for the execution and delivery by the Security Agent of this
Release have been duly obtained, taken or made and are in full force and effect.
4. Further Assurances. The Security Agent agrees, to the extent not already done
and at the expense of the Borrower, to take, with reasonable diligence, any
other reasonable actions which may be requested by the Collateral Agent to
effect and evidence of record the foregoing.
5. Effectiveness. This Agreement shall become effective on and as of the date
hereof when executed by the Security Agent.
6. Choice of Law. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE
OF [WISCONSIN] AND THE VALIDITY OF THIS AGREEMENT AND THE CONSTRUCTION,
INTERPRETATION, AND ENFORCEMENT HEREOF AND THE RIGHTS OF THE PARTIES THERETO
SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF [WISCONSIN].
7. Execution in Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
8. Headings. Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purposes.
[signature pages to follow]
IN WITNESS WHEREOF, this Release has been duly executed on behalf of the
undersigned by a duly authorized officer as of the date first written above.
U.S. BANK NATIONAL
ASSOCIATION, d/b/a FIRSTAR
BANK, N.A., as Agent and
Security Agent
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
SCHEDULE A
Released Collateral
1. All of MWE's right, title and interest which it now has or hereafter
may have in, to and under the Purchase Agreement and all Proceeds (as defined in
the Uniform Commercial Code) thereof, including:
(a) the right upon valid tender by the Manufacturer to purchase the Aircraft
pursuant to the terms and conditions of the Purchase Agreement (including the
right to accept delivery of the Aircraft), the right to take title to the
Aircraft and to be named the purchaser in the bills of sale to be delivered by
the Manufacturer for the Aircraft pursuant to the Purchase Agreement, and any
other rights, title or interest of MWE in or to the Aircraft;
(b) the right to transfer the right, title and interest of MWE in and to the
Purchase Agreement or in any Aircraft, in part or as an entirety;
(c) all claims for damages in respect of such Aircraft arising as a result of
any default by the Manufacturer under the Purchase Agreement;
(d) any and all rights of MWE to compel performance of the terms of the Purchase
Agreement in respect of the Aircraft;
(e) the benefit of any deposits or advance payments received by the Manufacturer
under the Purchase Agreement (whether financed by a Loan under and as defined in
the Loan Agreement, or paid by MWE from its own funds, or otherwise), and all
rights of MWE to receive payments, credits, rebates or monies refunded by the
Manufacturer thereunder or under that certain Consent to Assignment executed by
the Manufacturer as Seller under and as defined in the Purchase Agreement;
(f) all rights of MWE to exercise any election or option, or to make any
decision or determination, or to give any notice, consent, waiver or approval
thereunder or in respect thereof; and
(g) all Proceeds of any of the foregoing.
2. All of MWE's right, title and interest which it now has or hereafter
may have in, to and under any of the Transaction Documents. For purposes of this
Schedule A, the "Transaction Documents" means any or all of the Loan Agreement,
the Reimbursement Agreement, the RRD/KfW Security Agreement, the Notice of and
Consent to Assignment, and all other agreements, documents and certificates
relating to MWE's obligations under any of the foregoing, or that are required
to be delivered under any of the foregoing.
SCHEDULE B
UCC Financing Statements
------------------------
ITEM TERMINATE UCC-1 SECURED DEBTOR FILING NO. UCC-3 UCC-3 PLACE OF
("T") / FILING PARTY FILING TYPE OF FILING
PARTIAL DATE DATE FILING
RELEASE ("R")
----------------------------------------------------------------------------------------------------------
1 R 09/26/01 U.S. Bank Midwest 010005202514 Partial Wisconsin
National Express Release Department
Association Airlines, of
Inc. Financial
Institutions
2 R 09/27/01 U.S. Bank Midwest 0002096521 Partial Connecticut
National Express Release UCC
Association Airlines, Commercial
Inc. Recording
Division
3 R 09/27/01 U.S. Bank Midwest 200100209175 Partial Florida
National Express Release Secretary
Association Airlines, of State
Inc.
SCHEDULE 2.1(a)
REVOLVING COMMITMENTS, LOC COMMITMENTS
and SWING LINE COMMITMENT PERCENTAGES
Revolving Commitment Amount Revolving Commitment Percentage
U.S. Bank National Association $21,681,810 48.1818%
M&I Xxxxxxxx & Ilsley Bank $16,772,715 37.2727%
Bank One, NA $6,545,475 14.5455%
Totals $45,000,000 100.0000%
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%
