AMENDMENT
TO
LOAN AGREEMENT, SECURITY AGREEMENT AND AIRCRAFT
MORTGAGE
dated
as of October 20, 2008,
US
AIRWAYS GROUP, INC.,
as Borrower,
certain
subsidiaries of the Borrower
CITICORP
NORTH AMERICA, INC.,
as Administrative Agent
AMENDMENT
TO LOAN AGREEMENT, SECURITY AGREEMENT AND AIRCRAFT
MORTGAGE
AMENDMENT
NO. 3 TO LOAN AGREEMENT, dated as of October 20, 2008, between
US AIRWAYS GROUP, INC., a Delaware corporation (the “
Borrower ”), certain Subsidiaries of the Borrower
signatory hereto and CITICORP NORTH AMERICA, INC. (“
Citicorp ”), as administrative agent and collateral
agent for the Lenders (in such capacity, together with its
successors and permitted assigns, the “ Administrative
Agent ”), AMENDMENT NO. 1 TO SECURITY AGREEMENT, dated as
of October 20, 2008, between the Borrower, certain
Subsidiaries of the Borrower signatory hereto and the
Administrative Agent and, AMENDMENT NO. 1 TO AIRCRAFT MORTGAGE,
dated as of October 20, 2008, between the Borrower, certain
Subsidiaries of the Borrower signatory hereto and the
Administrative Agent (collectively, the “ Amendment
”).
WHEREAS,
the Borrower, the direct and indirect Subsidiaries of the Borrower
party thereto, the Lenders and the Administrative Agent entered
into the Loan Agreement, dated as of March 23, 2007 (as
amended, supplemented or otherwise modified prior to the date
hereof, the “ Loan Agreement ”);
WHEREAS,
the Borrower, the direct and indirect Subsidiaries of the Borrower
party thereto and the Administrative Agent entered into the
Security Agreement, dated as of March 23, 2007 (as amended,
supplemented or otherwise modified prior to the date hereof, the
“ Security Agreement ”);
WHEREAS,
the Borrower, the direct and indirect Subsidiaries of the Borrower
party thereto and the Administrative Agent entered into the
Aircraft, Engines, Propellers and Spare Parts Mortgage and Security
Agreement, dated as of March 23, 2007 (as amended,
supplemented or otherwise modified prior to the date hereof, the
“ Aircraft Mortgage ”);
WHEREAS,
the Borrower wishes to amend certain provisions of the Loan
Agreement, the Security Agreement and the Aircraft Mortgage as set
forth herein;
WHEREAS,
at the request of the Borrower, the Requisite Lenders have
delivered consent letters, each in the form of Exhibit A
hereto (a “ Lender Consent Letter ”), to the
Administrative Agent consenting to the amendments as set forth
herein in their entirety; and
NOW,
THEREFORE, in consideration of the mutual agreements contained
herein, the parties hereto agree as follows:
S-1
Section 1.1
Definitions Except as otherwise defined in this Amendment,
terms defined in Section 1.1 of the Loan Agreement are used
herein as defined therein.
AMENDMENTS
TO THE LOAN AGREEMENT, THE SECURITY AGREEMENT AND THE AIRCRAFT
MORTGAGE
THE
AIRCRAFT MORTGAGE
Section 2.1
Amendments to Definitions The following definitions
contained in Section 1.1 of the Loan Agreement are hereby
amended as follows as of the Effective Date:
(a)
Airbus Financing Letter Agreement . The definition of Airbus
Financing Letter Agreement is hereby amended and restated in its
entirety as follows:
““
Airbus Financing Letter Agreement ” means,
collectively, (i) the A350 XWB Financing Letter Agreement,
dated as of October 2, 2007, among US Airways, AWA, the
Borrower, and AVSA, S.A.R.L., or any financing pursuant thereto, as
amended, restated, supplemented or modified from time to time,
(ii) the A320 Family Financing Letter Agreement, dated as of
October 2, 2007, among US Airways, AWA, the Borrower, and
AVSA, S.A.R.L., or any financing pursuant thereto, as amended,
restated, supplemented or modified from time to time, and
(iii) the A321 Junior Financing Letter Agreement, dated as of
October 20, 2008, among US Airways and Airbus S.A.S., or any
financing pursuant thereto, as amended, restated, supplemented or
modified from time to time.”
(b)
Asset Sale . The definition of Asset Sale is hereby amended
by (i) deleting the parenthetical “(including available
seat miles and frequent flier miles (including dividend and
flightfund miles))” from clause (a) of the proviso;
(ii) deleting the word “or” immediately prior to
clause (l) thereof; and (iii) adding “; or
(m) the sale, transfer or other disposition of available seat
miles and frequent flier miles (including dividend miles)”
after the word “amounts” at the end of clause
(l) thereof.
(c)
Collateral Release Value . The definition of Collateral
Release Value is hereby amended by adding the following proviso
after the parenthetical at the end of the definition: “;
provided that with respect to any Specified Transaction, the
Collateral Release Value is the minimum amount necessary to satisfy
the applicable Specified Transaction Prepayment Condition with
respect to such Specified Transaction”.
(d)
Excess Cash Flow . The definition of Excess Cash Flow is
hereby amended by amending and restating clause (iii)(A) thereof as
follows:
“(iii) the
sum of (A) payments by the Obligors of scheduled principal and
interest with respect to the consolidated Indebtedness of the
Borrower (but excluding Indebtedness that is solely the obligation
of any Subsidiary that is not an Obligor) during such period, to
the extent such payments are not prohibited under this
Agreement”.
(e)
Excluded Cash. The definition of Excluded Cash is hereby
amended by (i) deleting the word “or” at the end
of clause (vii) thereof; (ii) replacing the period at the
end of clause (viii) thereof with “; or” and
(iii) adding the following new clauses (ix), (x) and
(xi):
“(ix) subject
to Liens securing reimbursement obligations in respect of letters
of credit issued for the account of any Obligor for the benefit of
any credit card processor, so long as the aggregate amount of such
cash and Cash Equivalents does not exceed 115% of the maximum
available amount under the secured letters of credit;
(x)
subject to Liens securing the GECAS Financing to cure collateral
deficiencies thereunder; or
(xi)
proceeds of any property subject to a Lien in favor of a Person
other than the Administrative Agent to the extent the Lien on such
property is permitted hereunder or cash and cash equivalents from
time to time in possession of a third party pursuant to a mortgage,
indenture or similar instrument that the Obligors are permitted to
enter into hereunder.”
(f)
Excluded Property — Leases . The definition of
Excluded Property is hereby amended by adding the following
immediately after the end of clause (i)(3) thereof: “, in
each case together with improvements and fixtures located on such
leased real property”.
(g)
Excluded Property — Aircraft Related Equipment . The
definition of Excluded Property is hereby amended by
(i) deleting the word “Spare” in the parenthetical
in clause (ii) thereof and (ii) adding the following
immediately after the words “Supporting Route
Facilities” in clause (ii) thereof: “and any rights of
any Obligor as lessee, licensee, lessor or licensor with respect to
a lease or license of any of the foregoing and any other assets
customarily securing Indebtedness used to acquire, finance or
refinance such Aircraft Related Equipment, Gates, Slots or
Supporting Route Facilities such as all books, records,
logs,
manuals,
data and inspection, modification and overhaul records, related
intellectual property (whether owned or leased) or the like and, in
the case of spare parts, spare part tracking systems and any and
all computer programs and inventory management systems (including
but not limited to all source codes and user interfaces associated
therewith as well as all date files used as input thereto and data
files or other records generated thereby) used to track and manage
the location, use, and maintenance status of spare parts and
appliances, in each case”.
(h)
Excluded Property — Property Subject to a Lien
. The definition of Excluded Property is hereby amended by deleting
the phrases “on the Closing Date” and “, or
following the Closing Date,” in clause
(iii) thereof.
(i)
Excluded Property — Engine and Simulator Purchase
Agreements . The definition of Excluded Property is hereby
amended by adding the following immediately after the words
“aircraft purchase agreements” in clause
(vii) thereof: “, engine purchase agreements, Flight
Simulator purchase agreements and, to the extent entered into after
the Closing Date, other agreements for the purchase of Aircraft
Related Equipment, in each case”.
(j)
Excluded Property — Property Pledged or Sold in Specified
Transactions . The definition of Excluded Property is hereby
amended by (i) deleting the word “and” immediately
prior to clause (viii) thereof and (ii) adding the
following at the end of clause (viii) thereof: “;
(ix) any property sold, transferred, disposed of, or pledged
or financed in connection with a Specified Transaction (it being
understood that such property (and all subsequently acquired
property of the same type) shall remain Excluded Property
regardless of whether it is subsequently released from such
Specified Transaction)”.
(k)
Flight Simulators . The definition of Flight Simulators is
hereby amended by adding “, whether now owned or hereafter
acquired” immediately after the word
“Obligor”.
(l)
Gates . The definition of Gates is hereby amended and
restated in its entirety as follows:
““
Gates ” means all of the right, title, privilege,
interest and authority of any Obligor with respect to premises used
for the purpose of holdroom seating and boarding space and related
aircraft parking positions to enplane and deplane passengers at any
airport or terminal in the United States or in any foreign country,
at which such Obligor, or any sublessee of such Obligor, as the
case may be, conducts scheduled operations, arising under any
lease, usufruct, use agreement, facility agreement or similar
agreement governing the right to use that portion of the premises
demised or covered by such lease, usufruct, use agreement, facility
agreement or similar agreement, whether now owned or hereafter
acquired.”
(m)
Loan . The definition of Loan is hereby amended by deleting
“(a)” immediately after the words
“Section 2.1”.
(n)
Net Condemnation Proceeds . The definition of Net
Condemnation Proceeds is hereby amended by inserting “, or
having a Lien on,” immediately after the words
“beneficial interest in” in clause (ii)(c)
thereof.
(o)
Net Insurance Proceeds . The definition of Net Insurance
Proceeds is hereby amended by inserting “, or having a Lien
on,” immediately after the words “beneficial interest
in” in clause (ii)(c) thereof.
(p)
Replacement Secured Financing . The definition of
Replacement Secured Financing is hereby amended by adding the
following immediately after the word “transaction” the
last time it appears in the definition: “; provided
that the GECAS Financing and any other Specified Transaction that
is structured as a financing transaction that is secured by any of
the Obligors’ Appraised Collateral or Accounts shall be
deemed to constitute a Replacement Secured Financing so long as the
applicable Specified Transaction Prepayment Condition is satisfied
with respect thereto.”
(q)
Routes . The definition of Routes is hereby amended and
restated in its entirety as follows:
““
Routes ” means a right, license, permit, or other
authorization held by the Borrower or any other Obligor, whereby
the Borrower, or, if applicable, such other Obligor is entitled or
permitted to fly between two or more points, either within one
country or between two countries, including without limitation,
applicable designations pursuant to any transport agreement between
the United States and a foreign government, frequencies, exemption
and certificate authorities, Fifth Freedom Rights and
“behind/beyond rights”, whether now owned or hereafter
acquired.”
(r)
Supporting Route Facilities . The definition of Supporting
Route Facilities is hereby amended and restated in its entirety as
follows:
““
Supporting Route Facilities ” means the takeoff and/or
landing rights (which are not Slots), ticket counters, office
space, terminals, maintenance facilities and baggage claim areas at
each airport which are necessary to operate a Route held by the
Borrower or any other Obligor, whether now held or hereafter
acquired.”
Section 2.2
New Definitions . The following new definitions are hereby
added to Section 1.1 in proper alphabetical order:
(a)
Barclays Financing . “ Barclays Financing
” America West Co-Branded Card Agreement, dated
January 25, 2005, between US Airways and Barclays as amended,
restated, supplemented or modified from time to time.
(b)
Engines . “ Engines ” means any aircraft
engines owned by an Obligor, whether now owned or hereafter
acquired.
(c)
GECAS Financing . “ GECAS Financing ”
means, collectively, the Senior Secured Spare Parts Financing
Facility, dated as of October 20, 2008 and the Senior Secured
Spare Engines Financing Facility, dated as of October 20,
2008, to be entered into with General Electric Capital Corporation
which financing facilities shall be secured by, among other things,
spare parts (including all rotables, repairables, expendables and
appliances), spare engines (including all appliances) and other
property customarily securing spare parts and spare engines
financings, including, among other things, computer software, all
books, records, logs, manuals, data and inspection, modification
and overhaul records relating to such spare parts or spare engines,
insurance, requisition and condemnation proceeds relating to such
spare parts and spare engines, warranty assignments, purchase
agreement assignments and the like and proceeds of the
foregoing.
(d)
Other Specified Transaction . “ Other Specified
Transaction ” means any sale, transfer or other
disposition of Appraised Collateral and/or Accounts and related
assets or any financing secured by any such assets that previously
secured the Obligations (whether pursuant to a loan agreement, note
purchase agreement, credit facility, indenture, mortgage, sale and
leaseback transaction or otherwise) so long as, in each case, such
transaction is consummated on or after the Third Amendment
Effective Date and on or before September 30, 2009 and at the
time of the closing of any such transaction the Borrower has
satisfied the Other Specified Transaction Prepayment
Condition.
(e)
Other Specified Transaction Prepayment Condition . “
Other Specified Transaction Prepayment Condition
” means, with respect to any Other Specified Transaction, the
requirement that at the time of the consummation of such Other
Specified Transaction, the Borrower shall have delivered to the
Administrative Agent, for the ratable benefit of the Lenders, an
amount in cash equal to not less than 75% of the aggregate
Appraised Value of the Appraised Collateral sold, transferred,
disposed of, pledged or financed in such Other Specified
Transaction (or in the case of any sale, transfer, disposition or
financing of Accounts, 75% of the Collateral Value of all Eligible
Accounts sold, transferred, disposed of or pledged in such
transaction), which amount shall be applied to prepay the Loan in
accordance with Section 2.5.
(f)
Primary Specified Transaction . “ Primary Specified
Transaction ” means the GECAS Financing so long as such
transaction is consummated on the Third Amendment Effective Date
and at the time of the closing of any such transaction the Borrower
has satisfied the Primary Specified Transaction Prepayment
Condition.
(g)
Primary Specified Transaction Prepayment Condition . “
Primary Specified Transaction Prepayment Condition ”
means the requirement that at the time of the consummation of the
Primary Specified Transaction, the Borrower shall have prepaid the
Loan in an aggregate amount of not less than
$400 million.
(h)
Specified Transaction . “ Specified Transaction
” means the Primary Specified Transaction and any Other
Specified Transaction.
(i)
Specified Transaction Prepayment Condition . “
Specified Transaction Prepayment Condition ” means
(i) in the case of the Primary Specified Transaction, the
Primary Specified Transaction Prepayment Condition and (ii) in
the case of any Other Specified Transaction, the Other Specified
Transaction Prepayment Condition.
(j)
Third Amendment . “ Third Amendment ”
means the Amendment to Loan Agreement, Security Agreement and
Aircraft Mortgage, dated as of October 20, 2008, among the
Administrative Agent, the Borrower and certain Subsidiaries of the
Borrower party thereto.
(k)
Third Amendment Effective Date . “ Third Amendment
Effective Date ” means the “Effective Date”
as defined in the Third Amendment.
Section 2.3
Further Amendments.
(a)
Notice of Voluntary Prepayments . Section 2.4(a) is
hereby amended by adding the following parenthetical immediately
after the words “fifteen (15) days,”: “(or
three (3) days, in the case of a prepayment in connection with
the Primary Specified Transaction and five (5) days, in case
of a prepayment in connection with an Other Specified
Transaction)”.
(b)
Mandatory Prepayments — Replacement Secured Financings
. Section 2.5(a) is hereby amended by adding the following
proviso to the
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