EXHIBIT 10.23
FLEET NATIONAL BANK
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
As of September 30, 2001
Mercury Air Group, Inc.
0000 XxXxxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, Chief Financial Officer
Re: Limited Consent
Ladies and Gentlemen:
Reference is made to the Revolving Credit and Term Loan Agreement dated
as of March 2, 1999 (as amended, modified, supplemented or restated and in
effect from time to time, the "Credit Agreement") by and among (a) MERCURY AIR
GROUP, INC., a Delaware corporation having its principal place of business at
0000 XxXxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000 (the "Borrower"), (b) FLEET
NATIONAL BANK (formerly known as BankBoston, N.A.), a national banking
association, as agent (in such capacity the "Agent") for itself and the other
Banks referred to below; and (c) FLEET NATIONAL BANK and the other financial
institutions from time to time parties thereto (collectively, the "Banks").
Capitalized terms defined in the Credit Agreement that are not otherwise defined
in this letter agreement shall have the respective meanings assigned to such
terms in the Credit Agreement.
Pursuant to Section 13.17 of the Credit Agreement, the Borrower has
agreed that it will not amend, supplement or otherwise modify the Subordinated
Debt Documents without the prior written consent of the Agent and the Majority
Banks. The Borrower has advised the the Agent that the Borrower and WMF have
agreed, inter alia, to amend certain financial covenants contained in the
Securities Purchase Agreement, dated as of September 10, 1999 (the "Purchase
Agreement") between the Borrower and WMF pursuant to the terms of an Amendment
No. 2 to the Purchase Agreement (the "Amendment") attached hereto as Exhibit A.
Subject to the satisfaction of the conditions set forth below, the Agent
and the Majority Banks hereby consent to the amendment of the Subordinated Debt
Documents in accordance with the provisions contained in the Amendment.
The limited consent set forth in this letter agreement shall be
effective upon the satisfaction of each of the following conditions, each to be
in form and substance satisfactory to the Agent:
(i) delivery to the Agent of original counterpart signature
pages to this letter agreement, duly executed and delivered by the
Majority Banks, the Borrower and each of the Guarantors;
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(ii) receipt by the Agent, for the benefit of those Banks who
execute and deliver a copy of this letter agreement by November 16, 2001
(the "Signatory Banks"), a fee in the amount of $10,000 per Signatory
Bank, as well as such fees payable to the Agent for its own account as
may be agreed between the Borrower and the Agent; and
(iii) delivery to the Agent of a copy of the Amendment,
including all schedules and exhibits thereto, certified by an officer of
the Borrower as a true, correct and complete copy thereof.
The consent contained in this letter agreement is limited strictly to
its terms, shall apply only to the specific matters and events described herein,
shall not extend to or affect any of the Borrower's or the Guarantors' other
obligations contained in the Credit Agreement or any other Loan Document. Except
as expressly set forth herein, nothing contained herein shall be deemed to be a
waiver of, or shall in any way impair or prejudice, any rights of the Agent or
the Banks under the Credit Agreement or any other Loan Document. Nothing
contained in this letter agreement shall be construed to imply a willingness on
the part of the Agent and the Banks to grant any similar or other future
consents.
This letter agreement may be executed in any number of 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 instrument. THIS LETTER
AGREEMENT SHALL BE AN INSTRUMENT UNDER SEAL AND SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
(WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OR CHOICE OF LAW).
[remainder of this page intentionally left blank]
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Kindly acknowledge your agreement with the terms of this letter
agreement by signing in the space indicated below and returning a copy of this
letter to the Agent.
FLEET NATIONAL BANK
(f/k/a BankBoston, N.A.),
individually and as Agent
By:
-------------------------------------
Name:
Title:
UNITED CALIFORNIA BANK
FORMERLY KNOWN AS SANWA BANK CALIFORNIA
By:
-------------------------------------
Name:
Title:
MELLON BANK, N.A.
By:
-------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
-------------------------------------
Name:
Title:
ACCEPTED AND AGREED:
MERCURY AIR GROUP, INC.
By:
-------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Chief Financial Officer
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Each of the Guarantors hereby consents to the terms of the foregoing letter
agreement, and each confirms its obligation to the Agent and the Banks under its
Guaranty.
MERCFUEL, INC.
By:
--------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
MAYTAG AIRCRAFT CORPORATION
By:
--------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Treasurer
MERCURY AIR CARGO, INC.
By:
--------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Treasurer
MERCURY ACCEPTANCE CORPORATION
By:
--------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Treasurer
EXCEL CARGO, INC.
By:
--------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Treasurer
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MERCURY AIR CENTERS, INC.
(f/k/a Xxxxxxx Flying Service, Inc.)
By:
--------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Treasurer
AEG FINANCE CORPORATION
By:
--------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Treasurer
JUPITER AIRLINE AUTOMATION
SERVICES, INC.
(f/k/a RPA Airline Automation Services,
Inc. and Xxxx Xxxxx and Associates, Inc.)
By:
--------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Treasurer
HERMES AVIATION, INC.
By:
--------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Treasurer
VULCAN AVIATION, INC.
By:
--------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Treasurer
