Common use of Support Obligations Clause in Contracts

Support Obligations. From and after the Closing, except as set forth in this Agreement or any other Transaction Document, Buyer will use commercially reasonable efforts to promptly (i) cause Seller, Seller’s Affiliates and all sureties to be unconditionally released in full from any liability or obligation in respect of any surety or performance bond or similar ancillary obligation or amount issued for the account of Seller or any of Seller’s Affiliates or in connection with any liability or obligation of Seller or any of Seller’s Affiliates and that is listed on Section 6.3 of the Disclosure Schedule (“Insured Bonds”), without further recourse to any such Person and (ii) replace each Insured Bond with one or more surety or performance bonds or letters of credit or other forms of security, in amounts and on terms satisfactory to the applicable Governmental Authority or other beneficiary to guarantee the reimbursement of such Governmental Authority or other beneficiary of any amounts paid by it under or in respect of the applicable Insured Bond following the Closing, which bond(s) will remain in full force and effect the underlying liability or obligation has been unconditionally released or extinguished in full. If any Insured Bond is not unconditionally released or extinguished in full at or prior to the date that is ninety (90) days after the Closing Date in accordance with the foregoing sentence, Buyer shall provide such financial assurances to Seller or the providers of such Insured Bond, as may be reasonably requested by Seller or such bond or other financial guarantee provider; provided, that following the Closing, Seller and Seller’s Affiliates will have no obligation to pay any renewal fee or premium in respect of any Insured Bond. Buyer will indemnify and hold harmless any Seller Indemnified Party from and against any Losses suffered or incurred by them in connection with any of the foregoing Insured Bonds from and after the Closing, including any expenses or fees incurred in connection with any such Insured Bond being called or terminated.

Support Obligations. From Purchaser acknowledges that Seller and after certain Affiliates have provided certain credit support pursuant to the Closingsupport obligations and related agreements described on Schedule 3.26 (the “Support Obligations”). During the Interim Period, except as set forth in this Agreement or any other Transaction Document, Buyer will Purchaser shall use commercially reasonable efforts to promptly (i) cause Sellernegotiate a replacement of such Support Obligations with the beneficiaries thereof and to effect the complete and unconditional release of all other Support Obligations in a manner reasonably satisfactory to Purchaser, Seller’s Affiliates Seller and all sureties to be unconditionally released in full from any liability or obligation in respect the beneficiaries thereof, including by means of any surety or performance a letter of credit, escrow, posting a bond or similar ancillary obligation or amount issued for the account of Seller or any of Seller’s Affiliates or in connection with any liability or obligation of Seller or any of Seller’s Affiliates and that is listed on Section 6.3 of the Disclosure Schedule (“Insured Bonds”)cash deposit, without further recourse to any such Person and (ii) replace each Insured Bond with one or more surety or performance bonds or letters of credit or other forms of securityarrangements. Seller agrees that if, in amounts and on terms satisfactory to the applicable Governmental Authority or other beneficiary to guarantee the reimbursement of such Governmental Authority or other beneficiary of any amounts paid by it under or in respect of the applicable Insured Bond following the Closing, which bond(s) will remain in full force and effect the underlying liability such replaced Support Obligations are drawn on or obligation has been unconditionally released or extinguished in full. If any Insured Bond payment is not unconditionally released or extinguished in full at or prior to the date that is ninety (90) days after the Closing Date in accordance with the foregoing sentence, Buyer shall provide such financial assurances to Seller or the providers of such Insured Bond, as may be reasonably requested by Seller or such bond or other financial guarantee provider; provided, that following the Closingdemanded thereunder, Seller and Seller’s Affiliates will have no obligation to pay any renewal fee or premium in respect of any Insured Bond. Buyer will indemnify and hold harmless Purchaser and its Affiliates (as applicable) for its pro rata percentage of any such draw or demand for payment under any Support Obligation in proportion to Seller’s share of Class B Interests. To the extent that Purchaser cannot cause the release, termination and replacement of any Support Obligations, Purchaser shall (i) indemnify and hold harmless Seller Indemnified Party and its Affiliates (as applicable) from and against 75% of any and all Losses suffered that may be suffered, incurred or incurred sustained by them in connection with any of the foregoing Insured Bonds from and them or to which any of them become subject, resulting from, arising out of or relating to any such Support Obligation being in effect on or after the Closing, Closing Date (including as a result of any expenses draw or fees incurred in connection with demand for or making of any payment by Seller or any such Insured Bond being called or terminatedAffiliate of Seller under any Support Obligation) with respect to the full extent of such Support Obligation and (ii) diligently continue to seek the release, termination and replacement of such Support Obligation; provided that Purchaser’s indemnification obligations under clause (i) shall not affect Seller’s indemnification obligations under Section 11.01.

Support Obligations. From Prior to the Closing Date, Seller and after the ClosingBuyer shall cooperate to, except as set forth in this Agreement or any other Transaction Document, Buyer will and shall each use commercially reasonable efforts to, terminate, or cause Buyer to promptly (i) cause Seller, be substituted in all respects for Seller and any of Seller’s Affiliates and all sureties to be unconditionally released in full from any liability or obligation in respect of all obligations of Seller and any surety of its Affiliates under all Support Obligations (other than those Support Obligations that relate to Permits or performance bond Material Contracts that are not transferred to Buyer (or similar ancillary obligation its designee) as of Closing). With respect to any Coal Support Obligation that remains outstanding after the Closing Date (until such time as such Coal Support Obligation is terminated or amount issued substituted in accordance herewith, an “Outstanding Coal Support Obligation”), (a) Buyer shall continue to use its commercially reasonable efforts to terminate, or cause Buyer to be substituted in all respects for Seller and any of its Affiliates in respect of, all obligations of Seller or any of its Affiliates under such Outstanding Coal Support Obligations; (b) Buyer shall not renew, amend or extend the account terms of (in any manner that increases or extends or otherwise adversely changes the obligations of Seller or any of Seller’s Affiliates under) any Contract or in connection with any liability or other obligation of for which Seller or any of its Affiliates is or would reasonably be expected to be liable under, any such Outstanding Coal Support Obligations unless Seller and all of Seller’s Affiliates are completely released from all Support Obligations and that is listed on Section 6.3 of the Disclosure Schedule (“Insured Bonds”), without further recourse to any other liability under such Person Contracts; and (iic) replace Seller shall and, if applicable, shall cause its Affiliates to, maintain each Insured Bond such Outstanding Coal Support Obligation until (1) its termination in accordance with one or more surety or performance bonds or letters of credit or other forms of securityits terms, in amounts and on terms satisfactory to the applicable Governmental Authority or other beneficiary to guarantee the reimbursement of such Governmental Authority or other beneficiary of any amounts paid by it under or in respect of the applicable Insured Bond following the Closing, which bond(s(2) will remain in full force and effect the underlying liability or obligation substitution has been unconditionally released effected or extinguished in full. If any Insured Bond is not unconditionally released or extinguished in full at or prior to the date that is ninety (903) days after the Closing Date its termination in accordance with the foregoing immediately succeeding sentence. After Closing, if a draw occurs under an Outstanding Coal Support Obligation as the result of an event of default by Buyer shall provide such financial assurances to or its Affiliates, and Seller (or the providers of such Insured BondSeller’s Affiliate, as may applicable) pays an amount equal to or greater than $500,000 in connection therewith, then Seller (or Seller’s Affiliate, as applicable) shall be reasonably requested by Seller or entitled to terminate such bond or other financial guarantee providerOutstanding Coal Support Obligation upon at least five (5) Business Days’ prior written notice to Buyer; provided, that following all applicable notice and cure periods under the ClosingContract to which such Outstanding Coal Support Obligation relates shall have expired; provided further, that Buyer shall not have reimbursed Seller and (or Seller’s Affiliates will have Affiliate, as applicable) for such payment. The provisions of this Agreement notwithstanding, in no obligation to pay event shall any renewal fee or premium in respect of any Insured Bond. Buyer will indemnify and hold harmless any Seller Indemnified Party from and against any Losses suffered or incurred by them in connection with any Outstanding Coal Support Obligation remain outstanding after the termination of the foregoing Insured Bonds from underlying Contract relating to such Outstanding Coal Support Obligation, and after the ClosingSeller (or Seller’s Affiliate, including any expenses or fees incurred in connection with as applicable) may terminate any such Insured Bond being called or terminatedOutstanding Coal Support Obligation as of the date of such termination of such Contract.

Support Obligations. From and after (a) Buyer recognizes that Seller or certain of its Affiliates have provided guarantees or other credit support with respect to the Business or the Transferred Assets to third parties, all of which that are outstanding as of the date hereof are set forth on Schedule 5.3(a) (b) Prior to the Closing, except as set forth in this Agreement or any other Transaction Document, Buyer will shall use its commercially reasonable efforts to promptly replace the Support Obligations, and Seller and Buyer shall cooperate, and each shall use its commercially reasonable efforts, to effect the full and unconditional release, effective as of the Closing Date, of Seller or the applicable Affiliate from all Support Obligations and all obligations and liabilities in respect thereof, in the case of Buyer, by (among other things): (i) furnishing a letter of credit to replace each existing letter of credit that is a Support Obligation containing terms and conditions that are substantially similar to the terms and conditions of such existing letter of credit; (ii) providing a guaranty from a creditworthy party to replace each existing guaranty that is a Support Obligation containing terms and conditions that are substantially similar to the terms and conditions of such existing guaranty; or (iii) replacing any other security agreement or arrangement on substantially similar terms and conditions to the existing security agreement or arrangement that is a Support Obligation. In each case, Buyer shall ensure any credit support provided pursuant to this Section 5.3(b) satisfies all of the credit support provisions of the applicable Contract. For the avoidance of doubt, it is specifically acknowledged and agreed by the Parties that Seller shall not be obligated to incur, pay, reimburse or provide or cause Sellerany of their respective Affiliates to incur, Seller’s Affiliates pay, reimburse or provide, any liability, compensation, consideration or charge in order to replace the Support Obligations (and all sureties neither Buyer nor Seller shall be obligated to be unconditionally released in full from pay any liability or obligation in respect of any surety or performance bond consent or similar ancillary obligation fee). (c) Buyer and Seller shall cooperate, and each shall use its commercially reasonable efforts, to cause the beneficiary or amount issued for beneficiaries of such Support Obligations to (i) remit any cash and cash equivalents (including any interest payable thereon) to Seller or the account applicable Affiliate of Seller held under any escrow or any of Seller’s Affiliates or in connection with any liability or obligation of Seller or any of Seller’s Affiliates and cash collateral arrangement that is listed on a Support Obligation promptly following the replacement of such escrow or cash collateral arrangement pursuant to Section 6.3 of the Disclosure Schedule (“Insured Bonds”), without further recourse to any such Person 5.3(b)(iii) and (ii) replace each Insured Bond with one or more surety or performance bonds or letters of credit or other forms of securityterminate, in amounts surrender and on terms satisfactory to the applicable Governmental Authority or other beneficiary to guarantee the reimbursement of such Governmental Authority or other beneficiary of any amounts paid by it under or in respect of the applicable Insured Bond following the Closing, which bond(s) will remain in full force and effect the underlying liability or obligation has been unconditionally released or extinguished in full. If any Insured Bond is not unconditionally released or extinguished in full at or prior to the date that is ninety (90) days after the Closing Date in accordance with the foregoing sentence, Buyer shall provide such financial assurances redeliver to Seller or the providers applicable Affiliate of such Insured Bond, as may be reasonably requested by Seller or such bond Seller’s other designee each original copy of each guaranty, letter of credit, bond, surety or other financial guarantee provider; provided, that following instrument constituting or evidencing such Support Obligations. (d) If Buyer and Seller are unable to obtain the Closing, full and unconditional release of Seller and Seller’s Affiliates will have no obligation to pay any renewal fee or premium in respect applicable Affiliate of Seller from any Insured Bond. Buyer will indemnify and hold harmless any Seller Indemnified Party from and against any Losses suffered or incurred by them in connection with any Support Obligation as of the foregoing Insured Bonds Closing pursuant to Section 5.3(b) (each such unreleased Support Obligation, until such time as it is released in accordance with Section 5.3, a “Continuing Support Obligation”): (i) from and after the ClosingClosing Date, including any expenses or fees incurred in connection Buyer and Seller shall continue to cooperate, and each shall continue to use the same efforts required under Section 5.3(b) with any such Insured Bond being called or terminated.respect to the pre-Closing period, to obtain promptly the full and unconditional

Support Obligations. From (a) Buyer recognizes that Seller may have provided credit support with respect to the Acquired Assets (collectively, the “Support Obligations”). As promptly as practicable after the Sale Order is entered by the Bankruptcy Court, Buyer shall use reasonable efforts to effect the full and unconditional release of Seller from any and all Support Obligations identified by Seller to Buyer by: (i) furnishing letters of credit containing terms and conditions that are substantially identical to the terms and conditions of existing letters of credit and from lending institutions that are either investment grade institutions or have a credit rating commensurate with or better than that of lending institutions for existing letters of credit; (ii) instituting escrow arrangements with terms equal to, or more favorable to the counterparty than, the terms of existing escrow arrangements; (iii) posting surety or performance bonds issued by an institution having a credit rating at least equal to those of the issuer of existing surety or performance bonds, and which replacement surety or performance bonds contain terms and conditions that are substantially identical to the terms and conditions of existing surety or performance bonds; and (iv) providing substitute guaranties. (b) Buyer and Seller shall use reasonable efforts to cause the beneficiary or beneficiaries of the Support Obligations to terminate and redeliver to Seller, prior to the Closing, each original copy of each original guaranty, letter of credit or other instrument constituting or evidencing such Support Obligations, to redeliver to Seller any cash collateral in respect of the Support Obligations and, as to any Support Obligations terminated after the Closing, except promptly to redeliver such originals or cash to Seller, and in each case, to take such other actions as set forth may be required to terminate such Support Obligations. (c) If Buyer is not successful in obtaining the complete and unconditional release of Seller from the Support Obligations prior to the Closing, then Buyer shall indemnify, defend and hold harmless Seller from and against any and all costs, expenses, reimbursements or performance incurred by Seller in connection with the Support Obligations. Buyer shall, for so long as any Support Obligation remains outstanding, not effect any amendments or modifications or any other changes to the agreements, guaranties or letters of credit to which any of such Support Obligations relate, or otherwise take any action that would effect any change to such agreements, guaranties or letters of credit without Seller’s prior written consent. Notwithstanding anything in this Agreement or any other Transaction Documentto the contrary, prior to Closing, Buyer will use commercially reasonable efforts shall have the right to promptly contact and have discussions with each beneficiary of a Support Obligation in order to satisfy its obligations under this Section 7.5; provided that (i) cause Seller, Seller’s Affiliates and all sureties to be unconditionally released in full from any liability or obligation in respect of any surety or performance bond or similar ancillary obligation or amount issued for the account of Buyer shall give Seller or any of Seller’s Affiliates or in connection with any liability or obligation of Seller or any of Seller’s Affiliates and that is listed on Section 6.3 of the Disclosure Schedule (“Insured Bonds”), without further recourse to prior notice before making any such Person contact and (ii) replace each Insured Bond with Seller shall have the right to have one or more surety or performance bonds or letters of credit or other forms of security, in amounts and its representatives present on terms satisfactory to the applicable Governmental Authority or other beneficiary to guarantee the reimbursement of such Governmental Authority or other beneficiary of any amounts paid by it under telephone line or in respect of the applicable Insured Bond following the Closing, which bond(s) will remain in full force and effect the underlying liability or obligation has been unconditionally released or extinguished in full. If any Insured Bond is not unconditionally released or extinguished in full at or prior to the date that is ninety (90) days after the Closing Date in accordance with the foregoing sentence, Buyer shall provide such financial assurances to Seller or the providers of such Insured Bondperson, as may be reasonably requested by Seller or such bond or other financial guarantee provider; providedapplicable, that following the Closing, Seller and Seller’s Affiliates will have no obligation to pay any renewal fee or premium in respect of any Insured Bond. Buyer will indemnify and hold harmless any Seller Indemnified Party from and against any Losses suffered or incurred by them in connection with any of the foregoing Insured Bonds from and after the Closing, including any expenses or fees incurred in connection with during any such Insured Bond being called contact or terminateddiscussion.

Support Obligations. From (a) Buyer shall, at its sole risk, cost and after the Closingexpense, except as set forth in this Agreement use reasonable best efforts, including offering substitute guarantees, letters of credit, bonds, credit assurances or any other Transaction Document, Buyer will use commercially reasonable efforts to promptly (i) cause Seller, Sellersimilar support of or procured by Buyer’s Affiliates other than the Company Entities, and Seller shall provide, and Seller shall cause the Company Entities to provide, all sureties reasonable support, cooperation and assistance (it being understood that such support, cooperation and assistance shall not include any requirement to pay any consideration or offer or grant any financial accommodation), to ensure that, effective as of the Closing Date, Seller and its Affiliates (other than any Company Entity) shall be unconditionally released in full from any liability all obligations and Liabilities relating to or obligation in respect arising under or out of any surety or performance bond or similar ancillary obligation or amount issued for the account of Seller or any of Seller’s Affiliates or in connection with any liability each Support Obligation entered into on or obligation before the date of this Agreement or in the Interim Period in accordance with the terms of this Agreement and Seller or its Affiliates shall continue to maintain the applicable Support Obligations. (b) Without limiting Buyer’s obligations under the preceding sentence, if such releases are not obtained as of the Closing Date, Seller or its Affiliates shall continue to maintain the applicable Support Obligations, in each case, at the same levels as provided as of the Closing Date, and Buyer shall continue to use its reasonable best efforts to replace such Support Obligations as promptly as practicable following the Closing Date (but in no event later than thirty-six (36) months following the Closing Date). Subject to the terms hereof, effective as from the Closing Date and limited to any Support Obligations to the extent and for as long as not released, Buyer shall (i) reimburse Seller and its Affiliates for, and hold each of them harmless from, all amounts paid or payable to the relevant beneficiary, (ii) reimburse Seller and its Affiliates for any Third Party expenses reasonably incurred by Seller or its Affiliates for any Support Obligations issued by Third Parties on Seller’s Affiliates behalf (excluding any internal costs or administrative overhead) and that is listed (iii) pay to Seller a fee equal to, during the first twelve (12) months following the Closing Date, 1.5% p.a., and thereafter 2.25% p.a. on Section 6.3 the aggregate nominal amount of Support Obligations issued by Seller itself, as applicable. The fee pursuant to (iii) shall be due and payable by Buyer to Seller in monthly instalments and the Disclosure Schedule reimbursement pursuant to (“Insured Bonds”), without further recourse to any such Person i) and (ii) replace each Insured Bond shall occur within ten (10) Business Days of Seller providing Buyer with one or more surety or performance bonds or letters evidence and documentation thereof reasonably satisfactory to Buyer. (c) To the extent that Support Obligations are issued after the date hereof, Seller shall use reasonable best efforts to ensure that all recipients of credit Support Obligations issued by a member of the Remaining Seller Group and all issuers providing Support Obligations on behalf of a member of the Remaining Seller Group for the benefit of the Company Entities agree to accept an assurance provided by Buyer Parent or other forms Affiliate of security, in amounts and on terms satisfactory to Buyer (other than the applicable Governmental Authority or other beneficiary to guarantee the reimbursement of such Governmental Authority or other beneficiary of any amounts paid by it under or in respect of the applicable Insured Bond following the Closing, which bond(sCompany Entities) will remain in full force and effect the underlying liability or obligation has been unconditionally released or extinguished in full. If any Insured Bond is not unconditionally released or extinguished in full at or prior to the date that is ninety (90) days after the Closing Date in accordance with the foregoing sentence, Buyer shall provide such financial assurances to Seller or the providers of such Insured Bond, as may be reasonably requested by Seller or such bond or other financial guarantee provider; provided, that following the Closing, Seller and Seller’s Affiliates will have no obligation to pay any renewal fee or premium in respect of any Insured Bond. Buyer will indemnify and hold harmless any Seller Indemnified Party from and against any Losses suffered or incurred by them in connection with any of the foregoing Insured Bonds from and after the Closing, including any expenses or fees incurred in connection with any such Insured Bond being called or terminateda substitute.

Support Obligations. From and after the Closing, except as set forth in this Agreement or any other Transaction Document, Buyer will shall use commercially reasonable efforts to promptly (ia) cause Seller, Seller’s Affiliates the Sellers and all sureties their Related Parties to be unconditionally released in full from any liability or obligation in respect of any surety surety, letter of credit, or performance bond or similar ancillary obligation or amount issued for the account of Seller the Sellers or any of Seller’s Affiliates their Related Parties or in connection with any liability or obligation of Seller the Sellers or any of Seller’s Affiliates their Related Parties all to the extent listed and that is listed disclosed on Section 6.3 Schedule 5.12 of the Company Disclosure Schedule (“Insured Bonds”), without further recourse to any such Person and (iiy) to the extent required, replace each Insured Bond with one or more surety or performance bonds or letters of credit or other forms of security, in amounts and on terms satisfactory to the applicable Governmental Authority or other beneficiary to guarantee the reimbursement of to such Governmental Authority or other beneficiary of any amounts paid by it under or in respect of the applicable Insured Bond following the Closing, which bond(s) will shall remain in full force and effect until such the underlying liability or obligation has been unconditionally released or extinguished in fullfull or otherwise released by the Governmental Authority. If any Insured Bond is not unconditionally released or extinguished in full at or prior to the date that is ninety one hundred twenty (90120) days after the Closing Date in accordance with Date, the foregoing sentence, Buyer Sellers and their Related Parties shall provide such financial assurances be permitted to Seller or the providers of terminate such Insured Bond, as may be reasonably requested by Seller or such bond or other financial guarantee provider; provided, that following the ClosingClosing Date, Seller and Seller’s Affiliates will neither the Sellers nor their Related Parties shall have no any obligation to pay any renewal fee or premium in respect of any Insured Bond. Buyer will shall indemnify and hold harmless any Seller Indemnified Party the Sellers and their Related Parties from and against any Losses suffered or incurred by them in connection with any of the foregoing Insured Bonds from and any matter first occurring after the Closing, including any expenses or fees incurred in connection with any such Insured Bond being called or terminated.