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SENIOR SECURED SUPERPRIORITY
DEBTOR-IN-POSSESSION CREDIT AGREEMENT
Dated as of September 26, 2002
and as Amended and Restated as of October 18, 2002
among
US AIRWAYS GROUP, INC.,
a Debtor and Debtor-in-Possession
under Chapter 11 of the Bankruptcy Code,
as the Borrower,
CERTAIN OF THE SUBSIDIARIES OF
US AIRWAYS GROUP, INC. PARTY HERETO,
as Guarantors,
RETIREMENT SYSTEMS OF ALABAMA HOLDINGS LLC,
as Administrative Agent, Syndication Agent and Collateral Agent
and
RETIREMENT SYSTEMS OF ALABAMA HOLDINGS LLC
and the other lenders from time to time party hereto,
as Lenders
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SENIOR SECURED SUPERPRIORITY
DEBTOR-IN-POSSESSION CREDIT AGREEMENT
This SENIOR SECURED SUPERPRIORITY DEBTOR-IN-POSSESSION CREDIT
AGREEMENT ("Agreement") is entered into as of September 26, 2002 and is
amended and restated as of October 18, 2002, among US AIRWAYS GROUP, INC., a
Delaware corporation and a debtor and debtor-in-possession in a case pending
under Chapter 11 of the Bankruptcy Code (as hereinafter defined) (the
"Borrower"), each of the Subsidiaries (as hereinafter defined) of the Borrower
from time to time party hereto, RETIREMENT SYSTEMS OF ALABAMA HOLDINGS LLC and
the other lenders from time to time party hereto (collectively, the "Lenders"
and individually, a "Lender"), and RETIREMENT SYSTEMS OF ALABAMA HOLDINGS LLC,
as Administrative Agent, Syndication Agent and Collateral Agent.
PRELIMINARY STATEMENTS
1. On August 11, 2002 (the "Petition Date"), the Borrower and each of
the Guarantors (as hereinafter defined) in existence on the Petition Date
filed voluntary petitions in the United States Bankruptcy Court for the
Eastern District of Virginia (such court, together with any other court having
jurisdiction over the Cases from time to time, the "Bankruptcy Court") for
relief, and commenced cases (the "Cases"), under Chapter 11 of 11 U.S.C.
ss.ss. 101 et seq. (as heretofore and hereafter amended, the "Bankruptcy
Code") and have continued in the possession of their assets and in the
management of their businesses pursuant to Sections 1107 and 1108 of the
Bankruptcy Code.
2. The Borrower has requested that the Lenders enter into revolving
credit, term and letter of credit facilities in an aggregate principal amount
not to exceed $500,000,000, all of the Borrower's obligations under which are
to be jointly and severally guaranteed by the Guarantors.
3. To provide guarantees and security for the repayment of the Loans
(as hereinafter defined), the reimbursement of any drawing under a Letter of
Credit (as hereinafter defined) and the payment of the other Obligations (as
hereinafter defined) of the Borrower and the Guarantors hereunder and under
the other Loan Documents (as hereinafter defined), the Borrower and the
Guarantors will provide to the Administrative Agent, the Collateral Agent and
the Lenders the following, each as more fully described herein:
A. a joint and several guaranty from the Guarantors of the due and
punctual payment and performance of the Obligations of the Borrower
hereunder;
B. subject to the Carve-Out (as hereinafter defined), an allowed
administrative expense claim pursuant to Section 364(c)(1) of the
Bankruptcy Code in each of the Cases having priority over all
administrative expenses of the kind specified in, or arising under, any
Sections of the Bankruptcy Code (including, without limitation, Sections
105, 326, 328, 330, 331, 503(b), 507, 546(c) or 726 thereof) whether or
not such claims or expenses may become secured by a judgment lien or
other non-consensual lien, levy or attachment;
C. subject to the Carve-Out and Permitted Senior Liens, first
priority Liens (as hereinafter defined) granted to the Collateral Agent
on behalf of the Administrative Agent, the Collateral Agent and the
Lenders pursuant to Section 364(c)(2) of the Bankruptcy Code on all real,
personal and mixed property of the Borrower and the Guarantors other than
Excluded Assets (as hereinafter defined) that is not subject to valid and
perfected Liens on the Petition Date or to valid Liens in existence on
the Petition Date that subsequently are perfected pursuant to Section
546(b) of the Bankruptcy Code; and
D. subject to the Carve-Out and Permitted Senior Liens, pursuant to
Section 364(c)(3) of the Bankruptcy Code, best priority Liens granted to
the Collateral Agent on behalf of the Administrative Agent, the
Collateral Agent and the Lenders on all real, personal and mixed property
of the Borrower and the Guarantors (other than Excluded Assets and
Section 1110 Assets) that is subject to valid and perfected Liens in
existence on the Petition Date of the Cases or to valid Liens in
existence on the Petition Date that subsequently are perfected pursuant
to Section 546(b) of the Bankruptcy Code, subject only to such existing
or subsequently perfected Liens.
4. On August 12, 2002, the Bankruptcy Court entered the Existing
Interim Order (as hereinafter defined), pursuant to which the Borrower was
authorized to borrow up to $75,000,000 and pay all fees and expenses payable
to or on behalf of Credit Suisse First Boston, Cayman Islands Branch, as
Administrative Agent under the Existing DIP Credit Agreement and Bank of
America, N.A., as Collateral Agent under the Existing DIP Credit Agreement,
pending entry of a final order by the Bankruptcy Court.
5. On August 14, 2002, in accordance with the terms and conditions of
the Existing Interim Order, the Existing Lenders advanced $75,000,000 to the
Borrower.
6. The Existing DIP Credit Agreement was terminated (except with
respect to contingent indemnification obligations) and replaced in its
entirety by this Agreement.
7. The parties hereto (other than Retirement Systems of Alabama
Holdings LLC) are each party to a Senior Secured Superpriority
Debtor-in-Possession Credit Agreement, dated as of September 26, 2002 (the
"Original Credit Agreement"), among the Borrower, the Lenders, the
Administrative Agent, the Collateral Agent and the Syndication Agent.
8. On the Effective Date (as defined below), The Retirement Systems
of Alabama will assign to Retirement Systems of Alabama Holdings LLC, and
Retirement Systems of Alabama Holdings LLC will assume from The Retirement
Systems of Alabama, all right, title and interest of The Retirement Systems of
Alabama in and to the Commitments, Loans and Notes issued (if any) under the
Original Credit Agreement and all of the rights and obligations of The
Retirement Systems of Alabama as Administrative Agent, Syndication Agent,
Collateral Agent and a Lender under the Original Credit Agreement, this
Agreement and the other Loan Documents.
9. The Borrower, the Lenders, the Administrative Agent, the
Collateral Agent and the Syndication Agent have agreed to amend and restate
the Original Credit Agreement to provide for certain amendments on the terms
set forth in this Agreement, which Agreement shall become effective upon
satisfaction of certain conditions precedent set forth herein.
10. It is the intent of the parties hereto that this Agreement not
constitute a novation of the obligation and liabilities existing under the
Original Credit Agreement or evidence payment of all or any of such
obligations and liabilities and that this Agreement amend and restate in its
entirety the Original Credit Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Account Collateral" has the meaning specified in Section 10.01(e).
"Administrative Agent" means RSA in its capacity as administrative
agent under any of the Loan Documents, or any successor administrative agent.
"Administrative Agent's Office" means the Administrative Agent's
address as set forth on Schedule 12.02, or such other address as the
Administrative Agent may from time to time notify the Borrower and the
Lenders.
"Administrative Agent's Disbursement Account" means the
Administrative Agent's account from which disbursements are to be made to the
Lenders hereunder as set forth on Schedule 12.02, or such other account as the
Administrative Agent may from time to time notify the Borrower and the
Lenders.
"Administrative Agent's Payment Account" means the Administrative
Agent's account to which payments are to be made by the Lenders hereunder as
set forth on Schedule 12.02, or such other account as the Administrative Agent
may from time to time notify the Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire
provided by each Lender in a form supplied by the Administrative Agent.
"AFA" means the Association of Flight Attendants.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. "Control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto. Without limiting the
generality of the foregoing, a Person shall be deemed to be Controlled by
another Person if such other Person possesses, directly or indirectly, power
to vote 10% or more of the securities having ordinary voting power for the
election of directors, managing general partners or the equivalent.
"After-Acquired Intellectual Property" has the meaning specified in
Section 10.04(h)(vi).
"Agent-Related Persons" means the Administrative Agent, the
Collateral Agent, together with their respective Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Agents" means the Administrative Agent and the Collateral Agent.
"Aggregate Commitments" means the sum of the Commitments of all the
Lenders.
"Agreement" means this Credit Agreement.
"Aircraft Mortgage" has the meaning specified in Section
6.26(a)(xii).
"Air Transportation Stabilization Act" means the Air Transportation
Safety and System Stabilization Act, P.L. 107-42, as the same may be amended
from time to time.
"ALPA" means Airline Pilots Association, International.
"American Express" means American Express Company, a New York
corporation.
"Applicable Rate" means a per annum rate equal to:
(a) with respect to Base Rate Loans, 2.50%;
(b) with respect to Eurodollar Rate Loans and Letters of Credit,
4.00%; and
(c) with respect to the commitment fee, (i) prior to the entry of
the Final Order, 0.50%, (ii) after the entry of the Final Order and until
such time as the Term Facility is drawn or utilized in full, (A) if less
than or equal to 1/3 of the Aggregate Commitments are drawn or utilized,
1.00%, (B) if less than or equal to 2/3 but more than 1/3 of the
Aggregate Commitments are drawn or utilized, 0.75%, and (C) if more than
2/3 of the Aggregate Commitments are drawn or utilized, 0.50%, and (iii)
at all times after the Term Facility is drawn or utilized in full and
until the Maturity Date, (A) if less than or equal to 1/3 of the amount
available under the Revolving Credit Facility is drawn or utilized,
1.00%, (B) if less than or equal to 2/3 but more than 1/3 of the
Revolving Credit Facility is drawn or utilized, 0.75%, and (C) if more
than 2/3 of the Revolving Credit Facility is drawn or utilized, 0.50%.
"Application" means the Application of the Borrower to the ATSB for
the issuance of a federal credit instrument under the Air Transportation
Stabilization Act and the Regulations dated June 7, 2002 (filed with the ATSB
on June 10, 2002), as amended, modified or supplemented from time to time.
"Approved Appraiser" means BACK Aviation Solutions or any replacement
appraiser selected by the Administrative Agent and reasonably acceptable to
the Borrower.
"Appropriate Lender" means, at any time, (a) with respect to the Term
Facility or the Revolving Credit Facility, a Lender that has a Commitment with
respect to such Facility at such time, and (b) with respect to the Letter of
Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have
been issued pursuant to Section 2.03(a), the Revolving Credit Lenders.
"Approved Fund" has the meaning specified in Section 12.07(g).
"ARC" means Airlines Reporting Corporation, a Delaware corporation.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit D.
"ATSB" means the Air Transportation Stabilization Board, created
pursuant to Section 102(b) of the Air Transportation Stabilization Act.
"ATSB Guaranty" means the guaranty proposed to be made by the ATSB
for approximately $900,000,000 of a loan in the aggregate principal amount of
approximately $1,000,000,000 pursuant to the Air Transportation Stabilization
Act.
"ATSB Loan" has the meaning specified in Section 4.04(c).
"Attorney Costs" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear
on a balance sheet of such Person prepared as of such date in accordance with
GAAP, (b) in respect of any operating leases of any Person, an amount equal to
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