Exhibit 10.3
FIRST AMENDMENT TO Senior Secured Superpriority
Debtor-In-Possession CREDIT AGREEMENT
This First Amendment to Senior Secured Superpriority
Debtor-In-Possession Credit Agreement (this "Amendment") is entered into as of
November 6, 2002 by and 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 defined in the Credit Agreement referred to below)
(the "Borrower"), each of its subsidiaries that are signatories hereto and
Retirement Systems of Alabama Holdings LLC ("RSA"), with respect to the
following:
A. WHEREAS, the Borrower has entered into a Senior Secured
Superpriority Debtor-In-Possession Credit Agreement, dated as of September 26,
2002 and as amended and restated as of October 18, 2002 (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the
"Credit Agreement"), with each of the Subsidiaries of the Borrower from time
to time party thereto, the lenders from time to time party thereto (the
"Lenders") and RSA (as successor-in-interest to The Retirement Systems of
Alabama), as a Lender, Administrative Agent, Syndication Agent and Collateral
Agent. Terms defined in the Credit Agreement and not otherwise defined herein
are used herein as defined in the Credit Agreement.
B. WHEREAS the Borrower filed a motion with the Bankruptcy
Court on October 18, 2002 which if granted, would permit Loan Parties to
pledge cash collateral to secure a Loan Party's performance under Fuel Swap
Agreements (defined below) in an amount estimated to be between $32,000,000
and $64,000,000 for the next calendar year (the "Motion").
C. WHEREAS, the parties hereto have agreed to amend the
Credit Agreement to permit the Loan Parties' to pledge cash collateral in
connection with the Fuel Swap Agreements on the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the
terms and conditions hereof, the parties hereto agree as follows:
1. Incorporation. Recitals A through C are hereby
incorporated as though set forth in full herein.
2. Definitions. Section 1.01 of the Credit Agreement is
hereby amended as follows:
(a) The following definition is hereby added to
Section 1.01 of the Credit Agreement in alphabetical
order:
"`Fuel Swap Agreement' means a Swap Contract
entered into for the purpose of limiting financial
exposure to jet fuel price fluctuations."
(b) The definition of "Permitted Senior Liens" set
forth in Section 1.01 of the Credit Agreement is hereby
amended by replacing "or (q)." therein with ", (q) or (r)."
3. Controlled Accounts. Section 6.17 of the Credit Agreement
is hereby amended by: (a) deleting the parenthetical "(except with respect to
any cash collateralization in respect of Swap Contracts )" therein and (b)
replacing "and Section 7.01(q)" therein with ", Section 7.01(q) and Section
7.01(r)"
4. Permitted Liens. Section 7.01 of the Credit Agreement is
hereby amended by:
(a) replacing the semicolon at the end of Section
7.01(f) therein with the following language:
"provided, however, nothing in this Section 7.01(f)
shall permit Liens incurred or deposits made to
secure Indebtedness permitted by Section
7.03(c)(vii);";
(b) deleting "and" at the end of Section 7.01(p)
therein;
(c) replacing "." with "and" at the end of Section
7.01(q) therein; and
(d) adding the following provision as Section
7.01(r):
"(r) pledges of cash collateral securing a Loan
Party's obligations under Fuel Swap Agreements that
constitute Indebtedness permitted under Section
7.03(c)(vii) so long as the aggregate amount of
cash collateral pledged by the Borrower and any
other Loan Parties in connection therewith does not
exceed $45,000,000 at any time."
5. Conditions. This Amendment shall be effective upon the
receipt by RSA of (a) a copy of the form of Master Agreement (as defined in
the Motion) and (b) this Amendment, fully executed.
6. Delivery of Master Agreements. The Borrower agrees to
deliver to RSA a copy of any Master Agreement entered into by the Borrower or
any other Loan Party within 15 days after such agreement's execution.
7. Stipulation. So long as the order of the bankruptcy court
approving the Motion limits all cash collateral pledged by the Borrower and
the Loan Parties in connection with Fuel Swap Agreements to an amount not to
exceed $45,000,000 in the aggregate at any time, RSA agrees to enter into a
stipulation with the Borrower to be filed in the bankruptcy court in
connection therewith.
8. Reaffirmation. Except as expressly set forth herein, the
Credit Agreement and the other Loan Documents shall remain in full force and
effect in accordance with their respective terms and each such agreement is
hereby ratified and affirmed by each of the parties hereto.
9. Miscellaneous.
(a) Counterparts. This Amendment may be executed in
one or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument. Delivery by
telecopier of an executed counterpart of a signature page to this Amendment
shall be effective as delivery of an original executed counterpart of this
Amendment. The Administrative Agent may also require that any such documents
and signatures delivered by telecopier be confirmed by a manually-signed
original thereof; provided that the failure to request or deliver the same
shall not limit the effectiveness of any document or signature delivered by
telecopier.
(b) Governing Law. This Amendment shall be governed
by and construed according to the laws of the State of New York and to the
extent applicable, the Bankruptcy Code.
(c) Attorneys' Fees. Borrower shall pay all fees
and costs incurred by RSA in connection with the negotiation, documentation
and execution of this Amendment as well as the enforcement of any of RSA's
rights or remedies under the Amendment in accordance with the provisions of
Section 12.04 of the Credit Agreement.
(d) Jury Trial Waiver. EACH PARTY TO THIS AMENDMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION ARISING UNDER THIS AMENDMENT, THE CREDIT AGREEMENT
OR ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO
THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS
AMENDMENT, THE CREDIT AGREEMENT OR ANY LOAN DOCUMENT, OR THE TRANSACTIONS
RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES
AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AMENDMENT
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed as of the date first above written.
US AIRWAYS GROUP, INC.
US AIRWAYS, INC.
MIDATLANTIC AIRWAYS, INC.
ALLEGHENY AIRLINES, INC.
US AIRWAYS LEASING AND SALES, INC.
MATERIAL SERVICES COMPANY, INC.
PSA AIRLINES, INC.
PIEDMONT AIRLINES, INC.
By: ________________________________________
Name:_______________________________________
Title: Authorized Signatory for
Each of the Above
RETIREMENT SYSTEMS
OF ALABAMA HOLDINGS
LLC, as
Administrative
Agent, Syndication
Agent, Collateral
Agent and Lender
By: _________________________________________
Name:________________________________________
Title:_______________________________________
