This instrument was prepared by and
after recordation should be returned to:
Thrivent Financial for Lutherans
0000 Xxxxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Law Department
_____________________________________SPACE ABOVE THIS LINE FOR RECORDER'S USE___
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT (the "Agreement") is made as of October ___, 2002,
by and among U.S. BANK NATIONAL ASSOCIATION, a national banking association,
BANK ONE, NA (MAIN OFFICE, CHICAGO), a national banking association, M&I
XXXXXXXX & ILSLEY BANK, a Wisconsin banking association (each a "Subordinate
Mortgagee" and collectively the "Subordinate Mortgagees"), THRIVENT FINANCIAL
FOR LUTHERANS, a Wisconsin corporation ("Senior Mortgagee"), and MIDWEST EXPRESS
AIRLINES, INC., a Wisconsin corporation ("Borrower").
Recitals
A. Senior Mortgagee and Borrower have entered into that certain loan
agreement pursuant to which Senior Mortgagee loaned to Borrower the
principal sum of Three Million Six Hundred Twenty Five Thousand and No/100
Dollars ($3,625,000.00) (the "Thrivent Loan"). The Loan is evidenced by
that certain Mortgage Note dated March 26, 1996, executed by Borrower in
favor of Senior Mortgagee (the "Senior Note"), and is secured by, among
other things, that certain Real Estate Mortgage and Security Agreement
(the "Senior Mortgage") dated as of March 26, 1996, executed by Borrower
in favor of Senior Mortgagee and recorded on March 28, 1996, in the
Register's Office (the "Land Records") of Milwaukee County, Wisconsin, in
Reel 3765, Image 729 to 756 inclusive, as Document No. 7198157 (the
"Senior Mortgage"). The Senior Mortgage encumbers certain real and
personal property owned by Borrower and located at 0000 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxxx, Xxxxxxxxx (collectively, the "Mortgaged Property"), as
more particularly described in the Senior Mortgage and Exhibit A attached
hereto. (The Senior Note, the Senior Mortgage and all other documents
evidencing or securing the Thrivent Loan are hereinafter collectively
referred to as the "Thrivent Loan Documents".)
B. Subordinate Mortgagees have made certain loans, advances and other
financial accommodations to or for the benefit of Borrower in the past and
may do so in the future. To secure Borrower's obligations to Subordinate
Mortgagees, Borrower has granted to Subordinate Mortgagees first priority
security interests and liens in certain of Borrower's
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personal property (the "Personal Property Collateral"), and to further
secure the present and future obligations of Borrower to Subordinate
Mortgagees Borrower desires to grant to Subordinate Mortgagees second and
third priority real estate mortgages and security interests encumbering
all or part of the Mortgaged Property (individually a "Subordinate
Mortgage" and collectively the "Subordinate Mortgages").
C. The Senior Mortgage prohibits Borrower from executing and delivering the
Subordinate Mortgages without the Senior Mortgagee's consent. As a
condition of consenting to Borrower's execution and delivery of the
Subordinate Mortgages, Senior Mortgagee has required that Borrower and
Subordinate Mortgagees enter into this Intercreditor Agreement, and
Borrower and Subordinate Mortgagees are willing to enter into this
Intercreditor Agreement to induce Senior Mortgagee to provide its consent
to Borrower's execution and delivery of the Subordinate Mortgages.
NOW THEREFORE, in consideration of the mutual promises herein contained, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. The foregoing recitals are true and correct and are incorporated herein by
this reference and made a part hereof.
2. Until the Thrivent Loan is paid in full neither Borrower nor any
Subordinate Mortgagee shall otherwise take or permit any action
prejudicial to or inconsistent with Senior Mortgagee's rights under the
Senior Mortgage.
If any proceeds of the Mortgaged Property are received by any Subordinate
Mortgagee prior to payment in full of the Thrivent Loan, such payment
shall be delivered forthwith to the Senior Mortgagee by the recipient for
application to the Thrivent Loan, in the form received except for the
addition of any endorsement or assignment necessary to effect transfer of
all rights therein to Senior Mortgagee without recourse to any Subordinate
Mortgagee. Senior Mortgagee is irrevocably authorized to supply any
required endorsement or assignment which may have been omitted. Until so
delivered, any such proceeds shall be held by the recipient in trust for
Senior Mortgagee. Notwithstanding any provision to the contrary contained
herein, if any Subordinate Mortgagee is required to return to Borrower or
to Borrower's estate, or to any person claiming by, through or under
Borrower, any such proceeds which previously had been paid to such
Subordinate Mortgagee and delivered to Senior Mortgagee, then Senior
Mortgagee shall forthwith pay to such Subordinate Mortgagee an amount
equal to the amount which such Subordinate Mortgagee was so required to
return.
3. Subordinate Mortgagees, their successors, assigns or any other beneficiary
under any Subordinate Mortgage, shall not acquire by subrogation, contract
or otherwise any lien upon the estate, right or interest in the Mortgaged
Property, which may arise as a result of payment, by any Subordinate
Mortgagee, of real estate taxes, assessments or other
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governmental charges levied by the state, county or federal government,
which is or may be prior in right to the Senior Mortgage, or any extension
thereof, unless within thirty (30) days following written notice of such
Subordinate Mortgagee's intention to make such payment, the then holder of
the Senior Mortgage shall fail or refuse to purchase or acquire by
subrogation or otherwise such prior lien, estate, right or interest, or
shall fail within such period to commence and thereafter proceed
diligently to purchase or acquire the same.
4. The Subordinate Mortgages and any interest of Subordinate Mortgagees in
the Mortgaged Property shall be expressly subject and subordinate to the
Senior Mortgage, and any and all advances thereunder in whatever amounts
and whenever made, with interest thereon, and to any expenses, charges and
fees incurred thereby, including any and all of such advances, interest,
expenses, charges and fees which may increase the indebtedness secured by
the Senior Mortgage above the original principal amount thereof.
Notwithstanding the foregoing, Borrower shall comply in all respects with
the provisions of Section 7.2 of the Senior Secured Revolving Credit
Agreement, dated as of August 31, 2001, among Borrower's parent
corporation and Subordinate Mortgagees, as amended or restated from time
to time.
5. Subordinate Mortgagees, their successors and assigns hereby assign and
release unto Senior Mortgagee:
(a) all of their right, title and interest or claim, if any, in and to
the proceeds of all policies of insurance covering the Mortgaged
Property for application upon the indebtedness secured by, or other
disposition thereof in accordance with the provisions of, the Senior
Mortgage and any other Thrivent Loan Documents, except as otherwise
set forth in Section 4 hereof; and
(b) all of its right, title and interest or claim, if any, in and to all
awards or other compensation made for any taking of any part of the
Mortgaged Property, to be applied upon the indebtedness secured by,
or disposed of in accordance with, the provisions of the Senior
Mortgage and any other Thrivent Loan Documents, except as otherwise
set forth in Section 4 hereof
In the event that following any such application and disposition of the
insurance proceeds and condemnation award and other compensation, any
balance remains, then such excess shall be made payable to the order of
such Subordinate Mortgagee or its successors or assigns.
6. If Senior Mortgagee shall at any time release to Borrower any insurance
proceeds or condemnation awards for the purpose of restoration of the
Mortgaged Property, such releases shall not be deemed to be an additional
advance under the Senior Mortgage.
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7. Notwithstanding any term herein to the contrary, no Subordinate Mortgagee
hereunder will, even if entitled to, foreclose under any Subordinate
Mortgage without the prior written consent of Senior Mortgagee.
8. A default under either Subordinate Mortgage shall, at the sole and
exclusive option of Senior Mortgagee, constitute a default under the
Senior Mortgage.
9. Each Subordinate Mortgagee shall provide Senior Mortgagee with a copy of
each and every notice of default or other notice given by such Subordinate
Mortgagee to Borrower under a Subordinate Mortgage at the same time such
notice is served upon Borrower, and no such notice to Borrower shall be
effective unless and until a copy thereof is thus served upon Senior
Mortgagee.
10. Subordinate Mortgagees shall advise Senior Mortgagee, at Senior
Mortgagee's request from time to time, of the status of the performance of
Borrower's obligations under the Subordinate Mortgages.
11. In consideration of the mutual consents, representations, obligations, and
other covenants of Senior Mortgagee and Subordinate Mortgagees herein
stated, (i) no notice, consent or approval shall be required to, by or
from Subordinate Mortgagee in connection with any extension, amendment or
other modification of the Thrivent Loan Documents, it being understood and
agreed by Subordinate Mortgagee that Subordinate Mortgagees waive any
rights they may otherwise have at law and/or in equity to so receive
and/or give notice, consent or approval to any such amendment, extension,
or other modification of the Thrivent Loan Documents, and (ii) no notice,
consent or approval shall be required to, by or from Senior Mortgagee in
connection with any extension, amendment or other modification of the
Subordinate Mortgages or any loan agreement, promissory note, instrument,
or other document among any one or more of Subordinate Mortgagees and
Borrower, it being understood and agreed by Senior Mortgagee that Senior
Mortgagee waives any rights it may otherwise have at law and/or in equity
to so receive and/or give notice, consent or approval to any such
amendment, extension, or other modification of the Subordinate Mortgages
or such loan agreement, promissory note, instrument, or other document.
12. Subordinate Mortgagees waive any and all rights to have the Mortgaged
Property marshaled.
13. All notices, demands, requests or other communications required or
permitted under this Agreement shall be in writing and be deemed to have
been properly given if personally delivered or if sent by United States
certified or registered mail, return receipt requested, or by Federal
Express or other comparable courier service, postage prepaid, addressed to
the party for whom it is intended at its address hereinafter set forth:
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If to Senior Mortgagee:
Thrivent Financial for Lutherans
0000 Xxxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxx 00000
Attention: Law Department
If to Subordinate Mortgagees:
U.S. Bank National Association
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, Managed Assets Division
Bank One, NA (Main Office Chicago)
0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx
M&I Xxxxxxxx & Ilsley Bank
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
If to Borrower:
Midwest Express Airlines, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Notice shall be deemed given as of the date of personal delivery, or, if
there has been no personal delivery, as of three (3) days after the date
notice is sent, regardless of the date of receipt. Any party may designate
a change of address by written notice to the others, given at least ten
(10) days before such change of address is to become effective.
14. Time is of the essence with respect to the obligations contained herein.
15. This Agreement shall be binding upon, and inure to the benefit of, the
successors and assigns of the parties hereto.
16. This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Wisconsin.
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17. This Agreement may be executed and delivered in counterparts.
18. The effective date of this Agreement shall be the date on the first page
hereof notwithstanding the fact that this Agreement may have been executed
on a date prior to such date.
19. So long as the Senior Mortgage encumbers the Mortgaged Property, all
interests of the Subordinate Mortgagees in the Mortgaged Property are, and
shall continue to be, subject and subordinate to any and all leases of all
or any part of the Mortgaged Property.
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IN WITNESS WHEREOF, Senior Mortgagee, Subordinate Mortgagees, and Borrower have
executed this Intercreditor Agreement as of the date first above written.
"SUBORDINATE MORTGAGEES"
U.S. Bank National
Association, a
national banking
corporation
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title Vice President
By: /s/ Xxxxxx X. Xxxx
------------------------------
Name: Xxxxxx X. Xxxx
Title Senior Vice President
Bank One, NA (Main Office Chicago),
a national banking association
By: /s/ Xxxxx X. Xxxx
------------------------------
Name: Xxxxx X. Xxxx
Title Officer
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title AVP
M&I Xxxxxxxx & Ilsley Bank,
a Wisconsin banking corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title Vice President
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title SVP
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"SENIOR MORTGAGEE"
Thrivent Financial for Lutherans,
a Wisconsin corporation
By: /s/ Xxxxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxxxx X. Xxxxxxx
Assistant Vice President -
Mortgages and Real Estate
By: /s/ Xxxxx Xxxxx
------------------------------
Xxxxx Xxxxx
Assistant Secretary
"BORROWER"
Midwest Express Airlines, Inc.,
a Wisconsin corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxx
President & CEO
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx
Xx. VP & CFO
-8-
STATE OF WISCONSIN )
) ss.
COUNTY OF )
On this 7th day of October, 2002, before me personally came the above named
Xxxxxx Xxxxxxx, Vice President and Xxxxxx X. Xxxx, Xx. Vice President, of U.S.
BANK NATIONAL ASSOCIATION, a national banking corporation, to me known to be
such officers of said corporation and to me well known to be the persons who
executed the above instrument and acknowledged the same as the deed of said
corporation.
(SEAL)
/s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Notary Public
My commission expires 4-11-04.
STATE OF ILLINOIS )
) ss.
COUNTY OF XXXX )
On this 7th day of October, 2002, before me personally came the above named
Xxxxx X. Xxxx, Officer and Xxxxxx X. Xxxxxxxx, AVP, of BANK ONE, NA (MAIN
OFFICE CHICAGO), a national banking corporation, to me known to be such officers
of said corporation and to me well known to be the persons who executed the
above instrument and acknowledged the same as the deed of said corporation.
(SEAL)
/s/ [Notary Public]
--------------------------------
Notary Public
My commission expires 11/29/03.
STATE OF WISCONSIN )
) ss.
COUNTY OF MILWAUKEE )
On this 7 day of October, 2002, before me personally came the above named
Xxxxx X. Xxxxxx, Vice President and Xxxxxx X. Xxxxx, SVP, of M&I XXXXXXXX &
XXXXXX BANK, a Wisconsin banking corporation, to me known to be such officers
of said corporation and to me well known to be the persons who executed the
above instrument and acknowledged the same as the deed of said corporation.
(SEAL)
/s/ [Notary Public]
--------------------------------
Notary Public
My commission expires 5-4-03.
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STATE OF WISCONSIN )
) ss.
COUNTY OF OUTAGAMIE )
On this 8th day of October, 2002, before me personally came the above named
Xxxxxxxxx X. Xxxxxxx, Assistant Vice President and Xxxxx Xxxxx, Assistant
Secrtary, of THRIVENT FINANCIAL FOR LUTHERANS, a Wisconsin corporation, to me
known to be such officers of said corporation and to me well known to be the
persons who executed the above instrument and acknowledged the same as the deed
of said corporation.
(SEAL)
/s/ [Notary Public]
--------------------------------
Notary Public
My commission expires 8-6-2006.
STATE OF WISCONSIN )
) ss.
COUNTY OF MILWAUKEE )
On this 7th day of October, 2002, before me personally came the above named
Xxxxxxx X. Xxxxxxxx, President, and Xxxxxx X. Xxxxxxx, Xx. VP & CFO, of MIDWEST
EXPRESS AIRLINES, INC., a Wisconsin corporation, to me known to be such officers
of said corporation and to me well known to be the persons who executed the
above instrument and acknowledged the same as the deed of said corporation.
(SEAL)
/s/ Xxxxx X. Xxxxx
----------------------------------
Notary Public
My commission expires permanent.
Exhibit A
PARCEL A
All that part of the Northwest 1/4 and Northeast 1/4 of the Southwest 1/4 of
Section 4, Town 5 North, Range 22 East, in the City of Oak Creek, County of
Milwaukee, State of Wisconsin, bounded and described as follows:
Commencing at the Northwest corner of said Southwest 1/4; thence South
00(degree) 37' 08" West along the West section line of said Section 4 and center
line of South Xxxxxx Avenue (S.T.H. "38"), 330.079 feet (recorded as 330.00
feet) to the South line of platted Oakdale Heights extended and the place of
beginning of the lands herein to be described; thence North 89(degree) 21' 42"
East along the South line of said subdivision, 2,151.644 feet to a point which
is 500.135 feet West of the East line of the Southwest 1/4; thence South
00(degree) 41' 43" West parallel to the East line of the Southwest 1/4, 692.130
feet to the North line of Certified Survey Map No. 5170 extended; thence North
89(degree) 22' 52" West along said North line of said Certified Survey Map,
1540.204 feet; thence North 00(degree) 37' 08" East and parallel to the said
West section line, 410.000 feet; thence North 89(degree) 22' 52" West, 610.000
feet to the West line of said Southwest 1/4 and center line of South Xxxxxx
Avenue (S.T.H. "38"); thence North 00(degree) 37' 08" East along said West line,
234.921 feet to the place of beginning. EXCEPTING the West 75 feet of the
aforedescribed lands previously dedicated for right of way purposes of South
Xxxxxx Avenue (S.T.H. "38").
PARCEL B
Non-Exclusive Easements for drainage as set forth in Easement Agreement recorded
September 11, 1995, on Reel 3625, Image 232 to 246, as Document No. 7123752,
affecting Parcel 1 of Certified Survey Map No. 5856.
Tay Key No. 000-0000-000
Address: 0000 Xxxxx Xxxxxx Xxxxxx
