US Airways 2004 Annual Report Download - page 212

Borrower shall provide Administrative Agent, within thirty (30) days after
demand by Administrative Agent, with a bond, letter of credit or similar
financial assurance evidencing to Administrative Agent's satisfaction that
necessary funds are available to pay the any costs pursuant to this SECTION 9.12
and of discharging any assessments which may be established on the Mortgaged
Property as a result thereof.
9.13 BORROWER'S REMEDIAL ACTION.
(a) VOLUNTARY REMEDIATION. In the event of any Release or
threatened Release of Hazardous Substances at, on, from or to the
Mortgaged Property or related to any other Collateral, Borrower shall
promptly make appropriate inquiry to determine whether any Hazardous
Substances Released at, on, from or to the Mortgaged Property are above or
below the Arizona Department of Environmental Quality ("ADEQ") action
levels, and, if above such levels, shall use commercially reasonable
efforts to obtain a "no further action" letter ("NFA") or similar approval
from the ADEQ. The application to obtain the NFA or other approval shall
provide maximum protection for the Administrative Agent, the Lenders, and
any other party designated by the Administrative Agent, and shall propose
the most time effective remedy. In all events of any Release or threatened
Release of a Hazardous Substance, Borrower and Guarantor shall take all
appropriate actions necessary to prevent or mitigate damage to and protect
the Mortgaged Property and other Collateral, and shall provide copies of
all correspondence, studies, reports, or other documentation to
Administrative Agent and the Lender. Administrative Agent and Lender shall
have the right to review and approve any action under this Section 9.13
(a).
(b) In the event Borrower or Guarantor undertakes any
remedial action with respect to any Hazardous Substances on, in, or under
the Mortgaged Property, Borrower or Guarantor shall conduct and complete
such remedial action in material compliance with all applicable
Environmental Laws, and in accordance with the policies, orders, and
directives of all federal, state, and local Governmental Authorities
except when, and only to the extent that, Borrower's or Guarantor's
liability for such presence, storage, use, disposal, transportation, or
discharge of any Hazardous Substances is being contested in good faith by
Borrower or Guarantor, and shall, where required by this provision, obtain
a NFA or other similar approval under the Arizona VRP. Any such remedial
action shall be performed in a manner that places no unreasonable
restriction or limitation on the use of the Mortgaged Property for its
intended purpose and is approved by the Administrative Agent, such
approval not to be unreasonably withheld.
(c) FAILURE TO PERFORM. If neither Borrower nor Guarantor
shall perform the obligations in this Section within thirty (30) days
after receipt of notice, Administrative Agent or Lender may elect, in
either of their sole discretion, and with no obligation to do so, to
undertake appropriate action. Any monies expended in such action,
including the costs of hiring consultants, investigation, removal,
remediation, or restoration, or the costs of curing any non-compliance,
and reasonable attorney's fees and disbursements, shall be reimbursed by
Borrower and Guarantor on demand, will constitute a portion of the Debt,
will bear interest from the date incurred until paid at the Default Rate,
and will be secured by the Collateral.
Borrower and Guarantor agree that Borrower and Guarantor shall be
unconditionally liable for the obligations under this SECTION 9.13 and such
liability shall not be limited to the original or amortized principal amount of
the Loan. Indemnitees may enforce the obligations under this SECTION 9.13
without first having recourse to any Collateral, any other Loan Document or any
other party liable thereunder or hereunder.
Senior Secured Term Loan
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