US Airways 2004 Annual Report Download - page 222

or Guarantor to comply with the provisions of this Section would be inadequate
and that such failure would not be adequately compensable in damages, each of
the Borrower and Guarantor agrees that the covenants of this Section may be
specifically enforced.
11.11 EXPENDITURES BY LENDERS. Borrower shall promptly pay within fifteen
(15) Business Days after request therefore (a) all reasonable out-of-pocket
costs, fees, and expenses paid or incurred by Administrative Agent and Highland
Capital Management, L.P., incident to any Loan Document (including, but not
limited to, the reasonable fees and expenses of counsel to Administrative Agent
and Highland Capital Management, L.P. in connection with the negotiation,
preparation, delivery, execution, coordination, and administration of the Loan
Documents and any related amendment, waiver, or consent) and (b) all reasonable
out-of-pocket costs and expenses of Lenders and Administrative Agent incurred by
Administrative Agent or any Lender in connection with the enforcement of the
obligations of Borrower and Guarantor arising under the Loan Documents
(including, without limitation, costs and expenses incurred in connection with
any workout or bankruptcy) or the exercise of any Rights arising under the Loan
Documents (including, but not limited to, reasonable attorneys' fees including
allocated cost of internal counsel, court costs, and other costs of collection),
all of which shall be a part of the Obligation and shall bear interest at the
Default Rate from the date due until the date repaid.
11.12 INDEMNIFICATION. EACH OF BORROWER AND GUARANTOR AGREES TO INDEMNIFY
DEFEND, RELEASE, SAVE AND HOLD HARMLESS ADMINISTRATIVE AGENT, AND EACH LENDER,
AND EACH OF THEIR RESPECTIVE AFFILIATES AND THEIR RESPECTIVE OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, AND ADVISORS (EACH, AN "INDEMNIFIED
PARTY") FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES
(INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL CLAIMS OR ENVIRONMENTAL
DAMAGES), COSTS, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE
ATTORNEYS' FEES) THAT MAY BE INCURRED BY OR ASSERTED OR AWARDED AGAINST ANY
INDEMNIFIED PARTY, IN EACH CASE ARISING OUT OF OR IN CONNECTION WITH OR BY
REASON OF (INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH ANY INVESTIGATION,
LITIGATION, OR PROCEEDING OR PREPARATION OF DEFENSE IN CONNECTION THEREWITH) THE
LOAN DOCUMENTS, THE BREACH OF ANY WARRANTY, REPRESENTATION, OR COVENANT
CONTAINED IN THE LOAN DOCUMENTS, ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN OR
THE ACTUAL OR PROPOSED USE OF THE LOAN PROCEEDS (INCLUDING ANY OF THE FOREGOING
ARISING FROM THE NEGLIGENCE OF THE INDEMNIFIED PARTY), EXCEPT TO THE EXTENT SUCH
CLAIM, DAMAGE, LOSS, LIABILITY, COST, OR EXPENSE IS FOUND IN A FINAL,
NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED
FROM SUCH INDEMNIFIED PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN THE
CASE OF AN INVESTIGATION, LITIGATION, OR OTHER PROCEEDING TO WHICH THE INDEMNITY
IN THIS SECTION 11.12 APPLIES, SUCH INDEMNITY SHALL BE EFFECTIVE WHETHER OR NOT
SUCH INVESTIGATION, LITIGATION, OR PROCEEDING IS BROUGHT BY BORROWER, GUARANTOR,
THEIR RESPECTIVE DIRECTORS, SHAREHOLDERS, OR CREDITORS OR AN INDEMNIFIED PARTY
OR ANY OTHER PERSON OR ANY INDEMNIFIED PARTY IS OTHERWISE A PARTY THERETO AND
WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED HEREBY ARE CONSUMMATED. EACH OF
BORROWER AND GUARANTOR RELEASES AND AGREES NOT TO ASSERT ANY CLAIM AGAINST ANY
INDEMNIFIED PARTY ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT,
CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR OTHERWISE RELATING TO THE
LOAN DOCUMENTS, ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN OR THE ACTUAL OR
PROPOSED USE OF THE LOAN PROCEEDS. WITHOUT PREJUDICE TO THE SURVIVAL OF ANY
OTHER AGREEMENT OF THE BORROWER OR GUARANTOR HEREUNDER, THE AGREEMENTS AND
OBLIGATIONS OF THE BORROWER AND GUARANTOR CONTAINED IN THIS SECTION 11.12 SHALL
SURVIVE THE PAYMENT IN FULL OF THE OBLIGATIONS AND ALL OTHER AMOUNTS PAYABLE
UNDER THE LOAN DOCUMENTS.
Senior Secured Term Loan
40