exhibit10_62b.htm


     

    
    

     

    
      	
              EXHIBIT
      10.62(b)

            


    

     

    
 

    AMENDMENT
NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT

     

    AMENDMENT
NO. 1, dated as of October 28, 2008 (this “Amendment”),
to the Amended and Restated Senior Secured Credit Agreement, dated as of
September 3, 2008 (as amended, restated, amended and restated, supplemented,
refinanced, replaced or otherwise modified from time to time, the “Credit
Agreement”), among Midwest Airlines, Inc. (the “Borrower”),
Midwest Air Group, Inc. (“Parent”),
each of the subsidiaries of the Borrower from time to time party thereto, each
lender from time to time party thereto (the “Lenders”),
Wells Fargo Bank Northwest, National Association (“Wells
Fargo”), as administrative agent (in such capacity, the “Administrative
Agent”) and Wells Fargo, as Collateral Agent.

     

    W I T N E S S E T
H:

     

        WHEREAS,
subject to the terms and conditions of this Amendment, the parties hereto wish
to amend the Credit Agreement as provided herein.

     

        NOW,
THEREFORE, in consideration of the premises and the agreements, provisions and
covenants herein contained, the parties hereto agree as follows:

     

        SECTION
1. Definitions.  Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.

     

        SECTION
2. Limited
Waiver.  Concurrently with the funding of $20,000,000 of
additional Term Loans on October 28, 2008 pursuant to Sections 2.01(c) and (d)
of the Credit Agreement, and subject to Section 12.22 of the Credit Agreement
(as amended hereby), the Lenders hereby waive the conditions set forth in
Section 4.02 of the Credit Agreement; provided, that the parties acknowledge and
agree that the limited waiver set forth in this Section 2 shall not be construed
as an acknowledgement by any Lender that any or all of the conditions set forth
in Section 4.02 of the Credit Agreement have or have not been satisfied as of
the date hereof, and such conditions shall not be deemed to be satisfied except
as in accordance with Section 12.22 of the Credit Agreement (as amended
hereby).

     

        SECTION
3. Amendment of the Credit
Agreement.  The Credit Agreement is hereby amended, effective
as of the Amendment No. 1 Effective Date (as defined below), as
follows:

     

        3.1. Amendment
to Exhibits.  The exhibits to the Credit Agreement are hereby amended
by adding a new Exhibit J in the form attached hereto as Exhibit J.

     

        3.2. Amendment to Section
1.1.  Section 1.1 of the Credit Agreement is hereby amended by
inserting the following new definition in appropriate alphabetical
order:

     

    “Instruction
Letter” means the Instruction Letter attached hereto as Exhibit
J.

     

        3.3. Amendment to Article
II.  Article II is hereby amended by adding the following new
Section 2.02(b)(vi):

     

        “(vi)           In
the event the conditions set forth in Section 4.02 have not been satisfied (or
waived) to the satisfaction of each Significant Lender (or waived by each
Significant Lender) on or before April 30, 2009, the Borrower shall prepay an
aggregate principal amount of the Term Loans equal to the amount of funds required to be in
the Account (as defined in the Instruction Letter) subject to the terms of the
Instruction Letter, as amended, modified or replaced from time to time, as of
such date.”

    3.4. Amendment to Article
VII.  Article VII is hereby amended by adding the following new
Section 7.23:

     

        “7.23                      E-170
Expenditures.  Make any expenditures (other than de minimis expenditures) in
respect of the E170 certification program until the later of April 30, 2009 or
completion of the labor agreement contemplated by the Business
Plan.”

     

        3.5.   Amendment to Article
XII.  Article XII is hereby amended by adding the following new
Section 12.22:

     

        “12.22                      Revocation of Instruction
Letter.  Each Lender hereby agrees to instruct the Collateral
Agent (and the Collateral Agent agrees to follow such instructions) (x) upon the
receipt by the Administrative Agent of a certificate from a Responsible Officer
of the Borrower certifying, to the satisfaction of each Significant Lender, that
(i) the agreements between the Borrower and each of Boeing Capital Corporation
and Skywest Airlines, Inc. include provisions to effectuate the cash flow and
permanent cost reductions described in the business plan provided by the
Borrower to the TPG Entities and Republic, (ii) each such agreement has been
duly executed and delivered by each Loan Party that is a party thereto and (iii)
each such agreement constitutes a legal, valid and binding obligation of such
Loan Party, enforceable against each Loan Party that is a party thereto in
accordance with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors’
rights generally or by equitable principles relating to enforceability, to
modify the Instruction Letter in order to reduce the amount of funds in the
Account (as defined in the Instruction Letter) that are subject to the
Instruction Letter from $20,000,000 to $10,000,000 and (y) upon the satisfaction
(or waiver) of the conditions set forth to the Milestone Achievement Date in
Section 4.02 to the satisfaction of each Significant Lender, to promptly revoke
the Instruction Letter.  The Collateral Agent agrees that it will not
revoke or modify the Instruction Letter unless instructed to do so by the
Required Lenders.”

     

        SECTION
4. Effectiveness.  This
Amendment shall become effective as of the date (the “Amendment No. 1
Effective Date”) on which the Administrative Agent shall have received
(a) duly executed and completed counterparts hereof (in the form provided and
specified by the Administrative Agent) that, when taken together, bear the
signatures of (i) the Borrower, (ii) each Guarantor and (iii) the Required
Lenders and (b) duly executed and completed counterparts of the Instruction
Letter that, when taken together, bear the signatures of (i) the Collateral
Agent, (ii) Associated Bank, National Association, (iii) Borrower and (iv)
Skyway.

     

        SECTION
5. Validity of Obligations and
Liens.

     

        (a) Validity of
Obligations.  The Borrower and each Guarantor acknowledge and
agree that, notwithstanding the effectiveness of this Amendment, each of the
Borrower and each Guarantor is indebted to the Lenders and the Agents for the
Secured Credit Obligations, without defense, counterclaim or offset of any kind,
and each of the Borrower and each Guarantor hereby ratifies and reaffirms the
validity, enforceability and binding nature of such Secured Credit
Obligations.

     

        (b) Validity of
Guarantees.  Each Guarantor hereby confirms and agrees that
notwithstanding the effectiveness of this Amendment, the Guaranty is, and shall
continue to be, in full force and effect and each is hereby ratified and
confirmed in all respects.

     

        (c) Validity of Liens and Loan
Documents.  Each of the Borrower and each Guarantor ratifies
and reaffirms the validity and enforceability (without defense, counterclaim or
offset of any kind) of the Liens and security interests granted to secure any of
the Secured Credit Obligations by each of the Borrower and each Guarantor to the
Collateral Agent, for the benefit of the Secured Parties, pursuant to the
Secured Credit Documents to which any such Borrower or Guarantor is a party and
hereby confirms and agrees that notwithstanding the effectiveness of this
Amendment each Secured Credit Document is, and shall continue to be, in full
force and effect and each is hereby ratified and confirmed in all
respects.

     

        SECTION
6. Effect of
Amendment.

     

        6.1.   Except
as expressly set forth herein, this Amendment shall not by implication or
otherwise limit, impair, constitute a waiver of or otherwise affect the rights
and remedies of the Lenders, the other Secured Parties or the Administrative
Agent under the Credit Agreement or any other Secured Credit Document, and shall
not alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement or any
other provision of the Credit Agreement or of any other Secured Credit Document,
all of which are ratified and affirmed in all respects and shall continue in
full force and affect.  Nothing herein shall be deemed to entitle the
Borrower to a consent to, or a waiver, amendment, modification or other change
of, any of the terms, conditions, obligations, covenants or agreements contained
in the Credit Agreement or any other Secured Credit Document in similar or
different circumstances.

     

        6.2.   This
Amendment shall constitute a “Loan Document” for all purposes of the Credit
Agreement and the other Secured Credit Documents.

     

        SECTION
7. General.

     

        7.1.   GOVERNING
LAW.  THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

     

        7.2.   Costs and
Expenses.  The Borrower agrees to reimburse the Administrative
Agent and the Lenders for their reasonable out-of-pocket costs and expenses in
connection with this Amendment, including the reasonable fees, charges and
disbursements of counsel for the Lenders and the Administrative
Agent.

     

        7.3.   Counterparts.  This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all such counterparts together shall constitute
but one and the same instrument.  Delivery of any executed counterpart
of a signature page of this Amendment by facsimile or electronic transmission
shall be as effective as delivery of a manually executed counterpart
hereof.

     

        7.4.   Headings.  The
headings of this Amendment are for purposes of reference only and shall not
limit or otherwise affect the meaning hereof.

     

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    IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their respective duly authorized officers as of the
day and year first above written.

     

    
      
        	 	MIDWEST
      AIRLINES, INC.	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ Curtis
      E. Sawyer	 
	 	 	Name:
      Curtis E. Sawyer 	 
	 	 	Title:  Senior
      Vice President and Chief Financial Officer	 
	 	 	 	 


      

    

     

     

    
      
        	 	MIDWEST
      AIR GROUP, INC.	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ Curtis
      E. Sawyer	 
	 	 	Name:
      Curtis E. Sawyer 	 
	 	 	Title:  Senior
      Vice President and Chief Financial Officer	 
	 	 	 	 


      

    

    


     

    
      	 	
              SKYWAY
      AIRLINES, INC.

            	 
	 	 	 	 
	
               

            	
              By:
      

            	/s/ Curtis
      E. Sawyer	 
	 	 	Name:
      Curtis E. Sawyer 	 
	 	 	Title:      Vice
      President	 
	 	 	 	 


    

     

     

    
      
        	 	BESTCARE
      HOLDINGS, INC.	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ Curtis
      E. Sawyer	 
	 	 	Name:
      Curtis E. Sawyer 	 
	 	 	Title:     Treasurer 	 
	 	 	 	 


      

    

     

     

    
      	 	MIDWEST
      EXPRESS SERVICES – KANSAS CITY, INC.	 
	 	 	 	 
	
               

            	
              By:
      

            	/s/ 
      Curtis E. Sawyer	 
	 	 	Name:
      Curtis E. Sawyer 	 
	 	 	Title:     President 	 
	 	 	 	 


    

     

     

    
      
        	 	MIDWEST
      EXPRESS SERVICES – OMAHA, INC.	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ 
      Curtis E. Sawyer	 
	 	 	Name:
      Curtis E. Sawyer 	 
	 	 	Title:     President 	 
	 	 	 	 


      

    

     

     

    
      	 	YX
      PROPERTIES, LLC	 
	 	By:
      Midwest Express Services – Omaha, Inc., its sole member	 
	 	 	 	 
	
               

            	
              By:
      

            	/s/ Curtis
      E. Sawyer	 
	 	 	Name:
      Curtis E. Sawyer 	 
	 	 	Title:     President 	 
	 	 	 	 


    

     

     

    
      
        	 	WELLS
      FARGO BANK NORTHWEST,	 
	 	NATIONAL
      ASSOCIATION,, as Administrative Agent and as Collateral Agent	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ Val
      T. Orton	 
	 	 	Name:
      Val T. Orton 	 
	 	 	Title:
      Vice President	 
	 	 	 	 


      

    

     

     

    
      	 	TPG
      MIDWEST US V, LLC, as Lender	 
	 	By:
      TPG Advisors V, Inc.	 
	 	Its:
      Managing Member	 
	 	 	 	 
	
               

            	
              By:
      

            	/s/ Clive
      Bode	 
	 	 	 	 


    

     

     

    
      
        	 	TPG
      MIDWEST INTERNATIONAL V, LLC, as Lender	 
	 	By:
      TPG GenPar V, L.P.	 
	 	Its:
      Managing Member	 
	 	By:
      TPG Advisors V, Inc.	 
	 	Its:
      General Partner	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ Clive
      Bode	 
	 	 	Name 	 
	 	 	Title 	 
	 	 	 	 


      

    

     

     

    
      
        	 	REPUBLIC
      AIRWAYS HOLDINGS INC., as a Lender	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ Robert
      H. Cooper	 
	 	 	Name: Robert
      H. Cooper 	 
	 	 	Title:
      EVP & DVO 	 
	 	 	 	 


      



    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


     

    




    EXHIBIT
J

    INSTRUCTION
LETTER