Common use of Payment Agreement Clause in Contracts

Payment Agreement. (a) The Obligor, as primary obligor and not as surety, hereby agrees to fully and promptly pay to each Beneficiary the Guaranteed Amount when due to such Beneficiary under the applicable AWA Operative Document, but subject always to the provisions of Section 2.6. The foregoing payment obligation is made without prejudice to any right the Obligor may have to reject any AWA Operative Document in connection with any proceeding under Chapter 11 of the Bankruptcy Code in which the Obligor is a debtor; provided, however, that the Guaranteed Amounts include all amounts (including under Section 506(b) of the Bankruptcy Code) which would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, and the operation of Section 502(b)(2) of the Bankruptcy Code. (b) If the Obligor should fail to pay any Guaranteed Amount when due in accordance with Section 2.1(a) hereof and/or Section 2.1(a) of the Related Payment and Indemnity Agreement, for the purposes of determining the Guaranteed Amount hereunder and under the Related Payment and Indemnity Agreement, and notwithstanding the provisions of the applicable AWA Operative Document for determining interest on amounts not paid by the Obligor when due, the rate of interest payable on such Guaranteed Amount not paid when due shall be the higher of (x) the rate per annum specified for such purpose in the applicable AWA Operative Document (notwithstanding any termination or rejection of such AWA Operative Document) and (y) the LIBOR Rate plus 3.95% (such higher amount, the "Applicable Rate"). If a Guaranteed Amount due hereunder and unpaid is no longer accruing interest under an applicable AWA Operative Document, then the Obligor shall pay interest on such Guaranteed Amount on each Roll-Up Date to the applicable Beneficiary at a rate equal to the Applicable Rate. If any amount of accrued interest payable in accordance with the immediately preceding sentence is not paid on a Roll-Up Date, then such amount shall be added to the applicable Guaranteed Amount on such Roll-Up Date. The provisions of this Agreement and the Related Payment and Indemnity Agreement shall be interpreted so as to avoid any duplication of interest accrual or payment in respect of the same Guaranteed Amount. (c) The Obligor further agrees to pay on demand all reasonable and actual costs and expenses of the Security Trustee and the Beneficiaries, if any (including, without limitation, reasonable counsel fees and expenses), in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of the Operative Documents (including, without limitation, reasonable fees and expenses of one counsel for the Security Trustee and one counsel for all of the Beneficiaries in connection with the enforcement of their rights under the Operative Documents). (d) This agreement constitutes a continuing, irrevocable, absolute and unconditional agreement to make payment of each Guaranteed Amount when due (and not of collection), and the Obligor specifically agrees that it shall not be necessary or required that any Beneficiary exercise any right, assert any claim or demand or enforce any remedy whatsoever against any Person before or as a condition to the enforcement of its obligations hereunder. If a Beneficiary receives an amount in payment of any Guaranteed Amount under an AWA Operative Document after it has received payment of such Guaranteed Amount under this Agreement and all other Guaranteed Amounts then due and payable, it shall hold such amount in trust for the benefit of the Obligor and promptly pay such amount to the Obligor. If a Beneficiary receives a payment of a Guaranteed Amount under this Agreement, the Obligor shall be subrogated to the Beneficiary's claims under the AWA Operative Documents relating to that payment; provided that right of subrogation shall be subject and subordinate to the Beneficiary's rights under the AWA Operative Documents until all of the Guaranteed Amounts then due and payable have been paid in full.

Payment Agreement. (a) The Obligor, as primary obligor and not as surety, hereby agrees to fully and promptly pay to each Beneficiary the Guaranteed Amount when due to such Beneficiary under the applicable AWA Operative IAI Transaction Document, but subject always to the provisions of Section 2.6. The foregoing payment obligation is made without prejudice to any right the Obligor may have to reject any AWA Operative Document in connection with any proceeding under Chapter 11 of the Bankruptcy Code in which the Obligor is a debtor; provided, however, that the Guaranteed Amounts include all amounts (including under Section 506(b) of the Bankruptcy Code) which would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, and the operation of Section 502(b)(2) of the Bankruptcy Code. (b) If the Obligor should fail to pay any Guaranteed Amount (other than interest) when due in accordance with Section 2.1(a) hereof and/or Section 2.1(a) of the Related Payment and Indemnity Agreementhereof, for the purposes of determining the Guaranteed Amount hereunder and under the Related Payment and Indemnity Agreementhereunder, and notwithstanding the provisions of the applicable AWA Operative IAI Transaction Document for determining interest on amounts not paid by the Obligor when due, the rate of interest payable on such Guaranteed Amount not paid when due shall be the higher of (x) the rate per annum specified for such purpose in the applicable AWA Operative IAI Transaction Document (notwithstanding any termination or rejection of such AWA Operative IAI Transaction Document) and (y) the LIBOR Rate plus 3.954.75% (such higher amount, the "“Applicable Rate"”); provided that Obligor shall be entitled to a credit against any interest accruing hereunder to the extent that Obligor actually pays interest under the applicable IAI Transaction Document to which the unpaid Guaranteed Amount relates, so that the aggregate amount of interest payable by Obligor in respect of the Guaranteed Amount (taking into account the interest it actually pays under the applicable IAI Transaction Document to which the unpaid Guaranteed Amount relates) equals, but does not exceed, the Applicable Rate. If a Guaranteed Amount (other than interest) due hereunder and unpaid is no longer accruing interest under an applicable AWA Operative IAI Transaction Document, then the Obligor shall pay interest on such Guaranteed Amount on each Roll-Up Date to the applicable Beneficiary at a rate equal to the Applicable Rate. If any amount of accrued interest payable in accordance with the immediately preceding sentence is not paid on a Roll-Up Date, then such amount shall be added to the applicable Guaranteed Amount on such Roll-Up Date. The provisions of this Agreement and the Related Payment and Indemnity Agreement shall be interpreted so as to avoid any duplication of interest accrual or payment in respect of the same Guaranteed Amount. (c) The Obligor further agrees to pay on demand all reasonable and actual costs and expenses of the Security Trustee Collateral Agent and the Beneficiaries, if any (including, without limitation, reasonable counsel fees and expenses), in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of the Operative Transaction Documents (including, without limitation, reasonable fees and expenses of one counsel for the Security Trustee Collateral Agent and one counsel for all of the Beneficiaries in connection with the enforcement of their rights under the Operative Transaction Documents). (d) This agreement constitutes a continuing, irrevocable, absolute and unconditional agreement to make payment of each Guaranteed Amount when due (and not of collection), and the Obligor specifically agrees that it shall not be necessary or required that any Beneficiary exercise any right, assert any claim or demand or enforce any remedy whatsoever against any Person before or as a condition to the enforcement of its obligations hereunder. If a Beneficiary receives an amount in payment of any Guaranteed Amount under an AWA Operative IAI Transaction Document after it has received payment of such Guaranteed Amount under this Agreement and all other Guaranteed Amounts then due and payable, it shall hold such amount in trust for the benefit of the Obligor and promptly pay such amount to the Obligor. If a Beneficiary receives a payment of a Guaranteed Amount under this Agreement, the Obligor shall be subrogated to the Beneficiary's ’s claims under the AWA Operative IAI Transaction Documents relating to that payment; provided that right of subrogation shall be subject and subordinate to the Beneficiary's ’s rights under the AWA Operative IAI Transaction Documents until all of the Guaranteed Amounts then due and payable have been paid in full.

Payment Agreement. (a) The ObligorTo induce the Obligee Party to enter into that certain Agreement and Plan of Merger dated as of the date hereof (as amended, as primary obligor supplemented or otherwise modified from time to time in accordance with its terms, the “Merger Agreement”), by and not as suretyamong the Obligee Party, Skipper Limited, a Cayman Islands exempted company with limited liability (“Parent”) and Skipper Acquisition Corporation, a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”), pursuant to which Merger Sub will merge with and into the Obligee Party, the Obligor hereby absolutely, unconditionally and irrevocably covenants and agrees with the Obligee Party to fully pay an amount equivalent to 11.004% (the “Percentage”) of all of the payment obligations of Parent and/or Merger Sub pursuant to Sections 7.17(c), 9.03(c), 9.03(d) and promptly pay 9.03(e) of the Merger Agreement (collectively, the “Obligations”) in the event that Parent and Merger Sub fail to each Beneficiary the Guaranteed Amount when due to fulfill their payment obligations of such Beneficiary amount under the applicable AWA Operative DocumentMerger Agreement; provided that, but subject always notwithstanding anything to the provisions contrary contained in this Payment Agreement, in no event shall the Obligor’s aggregate liability under this Payment Agreement exceed 11.004% of Section 2.6the Obligations less any amount actually paid by Parent or Merger Sub to the Obligee Party in respect of the Obligations multiplied by the Percentage (the “Maximum Amount”). The foregoing Obligee Party acknowledges that in the event that Parent and/or Merger Sub has any unsatisfied Obligations, payment of the Obligor’s Percentage of such unsatisfied Obligations by the Obligor (or by any other Person, including Parent and/or Merger Sub, on behalf of the Obligor) whether pursuant to this Payment Agreement or otherwise shall constitute satisfaction in full of the Obligor’s obligation is made without prejudice with respect thereto. The Obligor shall not have any obligations or liability to any right the Obligor may have to reject any AWA Operative Document Person relating to, arising out of or in connection with any proceeding under Chapter 11 of the Bankruptcy Code in which the Obligor is a debtor; provided, however, that the Guaranteed Amounts include all amounts (including under Section 506(b) of the Bankruptcy Code) which would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Codethis Payment Agreement other than as expressly set forth herein, and the operation parties hereto hereby acknowledge and agree that this Payment Agreement may not be enforced without giving effect to the Maximum Amount and Sections 1.08 and 1.09. Concurrently with the delivery of Section 502(b)(2this Payment Agreement, the parties set forth on Annex A (each an “Other Obligor”) are also entering into payment agreements or similar agreements substantially identical to this Payment Agreement with the Obligee Party. Capitalized terms used but not defined in this Payment Agreement shall have the meanings assigned to such terms in the Merger Agreement. All payments hereunder shall be made in lawful money of the Bankruptcy CodeU.S., in immediately available funds. The Obligor shall make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind, except as expressly provided in this Payment Agreement. The Obligor acknowledges that the Obligee Party is entering into the Transactions in reliance upon the execution of this Payment Agreement. (b) If Subject to the Obligor should fail terms and conditions of this Payment Agreement, if Parent and/or Merger Sub fails to pay any Guaranteed Amount when due in accordance with Section 2.1(a) hereof and/or Section 2.1(a) of the Related Payment and Indemnity Agreement, for the purposes of determining the Guaranteed Amount hereunder and under the Related Payment and Indemnity Agreement, and notwithstanding the provisions of the applicable AWA Operative Document for determining interest on amounts not paid by the Obligor Obligations when due, then all of the rate of interest payable on such Guaranteed Amount not paid when due shall be the higher of (x) the rate per annum specified for such purpose in the applicable AWA Operative Document (notwithstanding any termination or rejection of such AWA Operative Document) and (y) the LIBOR Rate plus 3.95% (such higher amount, the "Applicable Rate"). If a Guaranteed Amount due hereunder and unpaid is no longer accruing interest under an applicable AWA Operative Document, then the Obligor shall pay interest on such Guaranteed Amount on each Roll-Up Date Obligor’s liabilities to the applicable Beneficiary at a rate equal to the Applicable Rate. If any amount of accrued interest payable in accordance with the immediately preceding sentence is not paid on a Roll-Up Date, then such amount shall be added to the applicable Guaranteed Amount on such Roll-Up Date. The provisions of this Agreement and the Related Payment and Indemnity Agreement shall be interpreted so as to avoid any duplication of interest accrual or payment Obligee Party hereunder in respect of such Obligations shall become immediately due and payable and the same Guaranteed Obligee Party may, at the Obligee Party’s option, take any and all actions available hereunder or under applicable Law to collect such Obligations from the Obligor (subject to the Maximum Amount). In furtherance of the foregoing, the Obligor acknowledges that the Obligee Party may, in its sole discretion, bring and prosecute a separate action or actions against the Obligor for the full amount of the Obligor’s Percentage of the Obligations (subject to the Maximum Amount), regardless of whether any action is brought against Parent, Merger Sub or any Other Obligor. The Obligor agrees to pay on demand its Percentage of all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Obligee Party in connection with the enforcement of its rights hereunder, which amounts, if paid, will be in addition to the Obligations and not included within a determination of the Maximum Amount if the Obligor fails or refuses to make any payment to the Obligee Party hereunder when due and payable. (c) The parties hereto acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Payment Agreement were not performed in accordance with its specific terms or were otherwise breached and further agree that the Obligee Party shall be entitled to an injunction, specific performance and other equitable relief against the Obligor to prevent breaches of this Payment Agreement and to enforce specifically the terms and provisions hereof, in addition to any other remedy to which it is entitled at Law or in equity, and shall not be required to provide any bond or other security in connection with any such order or injunction. The Obligor further agrees not to pay oppose the granting of any such injunction, specific performance and other equitable relief on demand all reasonable and actual costs and expenses the basis that (x) the Obligee Party has an adequate remedy at Law or (y) an award of an injunction, specific performance or other equitable relief is not an appropriate remedy for any reason at Law or in equity (collectively, the Security Trustee and the Beneficiaries, if any (including, without limitation, reasonable counsel fees and expenses), in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of the Operative Documents (including, without limitation, reasonable fees and expenses of one counsel for the Security Trustee and one counsel for all of the Beneficiaries in connection with the enforcement of their rights under the Operative Documents“Prohibited Defense”). (d) This agreement constitutes a continuing, irrevocable, absolute and unconditional agreement to make payment of each Guaranteed Amount when due (and not of collection), and the Obligor specifically agrees that it shall not be necessary or required that any Beneficiary exercise any right, assert any claim or demand or enforce any remedy whatsoever against any Person before or as a condition to the enforcement of its obligations hereunder. If a Beneficiary receives an amount in payment of any Guaranteed Amount under an AWA Operative Document after it has received payment of such Guaranteed Amount under this Agreement and all other Guaranteed Amounts then due and payable, it shall hold such amount in trust for the benefit of the Obligor and promptly pay such amount to the Obligor. If a Beneficiary receives a payment of a Guaranteed Amount under this Agreement, the Obligor shall be subrogated to the Beneficiary's claims under the AWA Operative Documents relating to that payment; provided that right of subrogation shall be subject and subordinate to the Beneficiary's rights under the AWA Operative Documents until all of the Guaranteed Amounts then due and payable have been paid in full.