Common use of Support Obligations Clause in Contracts

Support Obligations. (a) Prior to Closing, Parent shall use its commercially reasonable efforts (and shall reasonably cooperate with the Sellers’ efforts) to terminate, or cause Parent or any of the Acquired Companies to be substituted in all respects for the Seller and their Affiliates (other than the Acquired Companies) under, and the Sellers, their Affiliates (other than the Acquired Companies), and where applicable, their sureties or letter of credit issuers, to be released from their respective obligations under, the Support Obligations set forth in Section 6.10 of the Company Disclosure Schedule as soon as possible after Closing. In furtherance and not in limitation of the preceding sentence, at the Sellers’ request, Parent will offer (and provide, if accepted) (i) a sufficient amount of letters of credit, (ii) cash collateral, and (iii) to assume the Sellers’ or their Affiliates’ obligations under guaranties, to the counterparties with respect to the Support Obligations to enable the Sellers and their Affiliates to terminate such Support Obligations without liability or otherwise be released or replaced in connection therewith; provided that, with respect to each Support Obligation, Parent shall not be required under this Section 6.10 to deliver replacement credit support of the same type as, or with terms and conditions substantially similar to, such Support Obligations, provided that the replacement credit support delivered by Parent complies with the terms and conditions of the applicable Contract or is otherwise acceptable to the counterparty thereto. For any Support Obligations for which Parent or any of the Acquired Companies, as applicable, is not substituted in all respects for the Sellers and their Affiliates (and for which the Sellers and their Affiliates are not released) effective as of the Closing, (a) Parent shall continue to use its commercially reasonable efforts and shall cause the Acquired Companies to use their commercially reasonable best efforts to effect such substitution and release as soon as possible after the Closing, and provided, that in the event that any Support Obligation cannot be replaced at or prior to the Closing, Parent’s obligations hereunder shall be satisfied if Parent or its Affiliate enters into at Closing a back-to-back guarantee with respect to such Support Obligation for the benefit of the Sellers in the form of an irrevocable, standby letter of credit or other similar form of security for 100% of the Sellers’ or their Affiliates’ obligations with respect to such Support Obligation and (b) the Sellers and their Affiliates shall continue to maintain such support Obligations as required pursuant to the terms of the Support Obligations and the related Contracts.

Support Obligations. With respect to each Support Obligation, (a) Prior to Closing, Parent Buyer shall use its commercially reasonable efforts prior to the Closing to (and shall reasonably cooperate with the Sellers’ effortsi) to terminate, or cause Parent or any obtain credit support arrangements in substitution of the Acquired Companies Support Obligations (but only to be substituted the extent such Support Obligation is required in all respects for order to procure the release contemplated by the immediately succeeding clause (ii) and only to the extent of such requirement) and (ii) procure that Seller Parent, Sellers and their respective Affiliates (other than the Acquired Companies) underand, and the Sellers, their Affiliates (other than the Acquired Companies), and where applicable, their respective sureties or letter of credit issuers, to be fully and unconditionally released from their respective obligations under, under the Support Obligations, in form and substance reasonably satisfactory to Seller Parent, and (b) if Buyer is not successful, following the use of commercially reasonable efforts, in obtaining the complete and unconditional release of Seller Parent, Sellers and their respective Affiliates from any such Support Obligations set forth in Section 6.10 as of the Company Disclosure Schedule Closing (each such Support Obligation until such time as soon as possible such Support Obligation is fully and unconditionally released, a “Continuing Support Obligation”), then from and after the Closing. In furtherance and not in limitation of the preceding sentence, at the Sellers’ request, Parent will offer (and provide, if accepted) (i) a sufficient amount Buyer shall continue to use commercially reasonable efforts to obtain promptly the full and unconditional release of letters Seller Parent, Sellers and their respective Affiliates and, where applicable, their respective sureties or letter of creditcredit issuers, from each Continuing Support Obligation, (ii) cash collateralBuyer shall indemnify Seller Parent, Sellers and their respective Affiliates for all Losses incurred by any of Seller Parent, Sellers or their respective Affiliates in connection with each Continuing Support Obligation, to the extent such Losses result from the operation of the Business by Buyer or any of its Affiliates after the Closing and (iii) to assume the Sellers’ or their Affiliates’ obligations under guarantiesBuyer shall not, to the counterparties with respect to the Support Obligations to enable the Sellers and their Affiliates to terminate such Support Obligations without liability or otherwise be released or replaced in connection therewith; provided that, with respect to each Support Obligation, Parent shall not be required under this Section 6.10 to deliver replacement credit support of the same type as, or with terms and conditions substantially similar to, such Support Obligations, provided that the replacement credit support delivered by Parent complies with the terms and conditions of the applicable Contract or is otherwise acceptable to the counterparty thereto. For any Support Obligations for which Parent or any of the Acquired Companies, as applicable, is not substituted in all respects for the Sellers and their Affiliates (and for which the Sellers and their Affiliates are not released) effective as of the Closing, (a) Parent shall continue to use its commercially reasonable efforts and shall cause the Acquired Purchased Companies and the Purchased Subsidiary not to, effect any amendments or modifications or any other changes to use any Contracts or obligations to which any of the Continuing Support Obligations relate that would reasonably be expected to materially increase the Liability of any of Seller Parent, Sellers or their commercially reasonable best efforts respective Affiliates under any Continuing Support Obligations without Seller Parent’s prior written consent. Schedule 2.07(c) shall be amended by Seller Parent from time to effect such substitution and release as soon as possible after time during the ClosingInterim Period to add all additional Ordinary Course performance bonds or parent guaranties relating solely to the Business, and providedupon any such performance bond or parent guaranty being added to Schedule 2.07(c) in accordance with the foregoing, that in the event that any Support Obligation cannot be replaced at such performance bond or prior to the Closing, Parent’s obligations hereunder parent guaranty shall be satisfied if Parent or its Affiliate enters into at Closing deemed to be a back-to-back guarantee with respect to such Support Obligation for the benefit all purposes of the Sellers in the form of an irrevocable, standby letter of credit or other similar form of security for 100% of the Sellers’ or their Affiliates’ obligations with respect to such Support Obligation and (b) the Sellers and their Affiliates shall continue to maintain such support Obligations as required pursuant to the terms of the Support Obligations and the related Contractsthis Agreement.

Support Obligations. (ai) Prior to Closing, Parent shall use its commercially reasonable efforts (and shall reasonably cooperate with the Sellers’ efforts) to terminate, or cause Parent or any Buyer recognizes that certain of the Acquired Companies Non-Company Affiliates have provided credit support to be substituted in all respects for the Seller and their Affiliates (other than the Acquired Companies) under, and the Sellers, their Affiliates (other than the Acquired Companies), and where applicable, their sureties or letter of credit issuers, to be released from their respective obligations under, the Support Obligations set forth in Section 6.10 on behalf of the Company Disclosure Schedule as soon as possible after Closing. In furtherance and not in limitation of the preceding sentence, at the Sellers’ request, Parent will offer (and provide, if acceptedits Subsidiaries or other Non-Company Affiliates that currently hold assets to be transferred prior to Closing pursuant to Section 6O(iii) (i) a sufficient amount of the “Transferred Assets”), including guarantees, letters of credit, escrows, sureties and performance bonds, security agreements and other similar arrangements, which are outstanding as of the Original Agreement Date as set forth on Exhibit F (such support obligations, to the extent related to the Company, its Subsidiaries or the Transferred Assets as entered into, modified or replaced from time to time in the ordinary course of business are hereinafter referred to as the “Support Obligations”). (ii) cash collateral, and (iii) to assume the Sellers’ or their Affiliates’ obligations under guaranties, Prior to the counterparties Closing, Seller and Buyer shall cooperate to replace the Support Obligations and Buyer shall use commercially reasonable efforts to replace the Support Obligations and, as requested by Seller, effect the full and unconditional release of the Support Obligations listed on Schedule 6C(ii) (provided that such release may not require the termination in full of the underlying guarantees, letters of credit, escrows, sureties and performance bonds, security agreements and other similar arrangements to the extent such broader obligation relates to other obligations of the Non- Company Affiliates), effective as of the Closing Date, of the applicable Non-Company Affiliate from all Support Obligations and all obligations and liabilities in respect thereof by: (a) furnishing a letter of credit to replace each existing letter of credit that is a Support Obligation containing terms and conditions equal to or more favorable to the beneficiary thereof than the terms and conditions of such existing letter of credit; (b) providing a Buyer guarantee to replace each existing guarantee that is a Support Obligation containing terms equal to or more favorable to the beneficiary thereof than the terms of such existing guarantee (other than with respect to the Support Obligations credit rating of the guarantor); provided that if the beneficiary of any existing guarantee does not accept such a replacement guarantee, Buyer shall offer such beneficiary another form of acceptable credit support and use commercially reasonable efforts to enable obtain the Sellers and their Affiliates to terminate such Support Obligations without liability release of each existing guarantee; or (c) instituting an escrow arrangement or posting a surety or performance bond, or otherwise be released novating, assigning or replaced in connection therewith; provided that, with respect to each replacing any other Support Obligation, Parent shall not be required under this Section 6.10 to deliver replacement credit support of the same type as, or with Obligation on terms and conditions substantially similar to, such Support Obligations, provided that equal to or more favorable to the replacement credit support delivered by Parent complies with beneficiary thereof than the terms and conditions of the existing Support Obligations. In each case Buyer shall ensure any credit support provided pursuant to this Section 6C(ii) satisfies all of the credit support provisions of the applicable Contract Contract, Law or is otherwise acceptable Permit to the counterparty theretowhich it relates. For any Support Obligations for which Parent 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 any of its Affiliates to incur, pay, reimburse or provide, any liability, compensation, consideration or charge in order to replace the Acquired CompaniesSupport Obligations. (iii) Buyer and Seller shall cooperate, as applicable, is not substituted in all respects for the Sellers and their Affiliates (and for which the Sellers and their Affiliates are not released) effective as of the Closing, (a) Parent each shall continue to use its commercially reasonable efforts and shall efforts, to cause the Acquired Companies beneficiary or beneficiaries of such Support Obligations to use their commercially reasonable best efforts (a) remit any cash and cash equivalents (including any interest payable thereon) to effect such substitution and release as soon as possible after Seller or the Closing, and provided, applicable Non-Company Affiliate held under any escrow or cash collateral arrangement that in the event that any is a Support Obligation cannot be replaced at promptly following the replacement of such escrow or prior cash collateral arrangement pursuant to the Closing, Parent’s obligations hereunder shall be satisfied if Parent or its Affiliate enters into at Closing a back-to-back guarantee with respect to such Support Obligation for the benefit of the Sellers in the form of an irrevocable, standby letter of credit or other similar form of security for 100% of the Sellers’ or their Affiliates’ obligations with respect to such Support Obligation Section 6C(ii) and (b) terminate, surrender and redeliver to Seller, the Sellers and their Affiliates shall continue to maintain such support Obligations as required pursuant to the terms applicable Non-Company Affiliate or Seller’s other designee each original copy of the each Support Obligations and the related ContractsObligation.

Support Obligations. (a) Prior to Closing, Parent Purchaser shall use its commercially reasonable efforts (and shall reasonably cooperate with the Sellers’ efforts) to terminate, or cause Parent Purchaser or any of the Acquired Companies to be substituted in all respects for the Seller and their Affiliates (other than the Acquired Companies) under, and the Sellers, their Affiliates (other than the Acquired Companies), and where applicable, their sureties or letter of credit issuers, to be released from their respective obligations under, the Support Obligations set forth in Section 6.10 of the Company Disclosure Schedule as soon as possible after Closing. In furtherance and not in limitation of the preceding sentence, at the Sellers’ request, Parent Purchaser will offer (and provide, if accepted) (i) a sufficient amount of letters of credit, (ii) cash collateral, and (iii) to assume the Sellers’ or their Affiliates’ obligations under guaranties, to the counterparties with respect to the Support Obligations to enable the Sellers and their Affiliates to terminate such Support Obligations without liability or otherwise be released or replaced in connection therewith; provided that, with respect to each Support Obligation, Parent Purchaser shall not be required under this Section 6.10 to deliver replacement credit support of the same type as, or with terms and conditions substantially similar to, such Support Obligations, provided that the replacement credit support delivered by Parent Purchaser complies with the terms and conditions of the applicable Contract or is otherwise acceptable to the counterparty thereto. For any Support Obligations for which Parent Purchaser or any of the Acquired Companies, as applicable, is not substituted in all respects for the Sellers and their Affiliates (and for which the Sellers and their Affiliates are not released) effective as of the Closing, (a) Parent Purchaser shall continue to use its commercially reasonable efforts and shall cause the Acquired Companies to use their commercially reasonable best efforts to effect such substitution and release as soon as possible after the Closing, and provided, that in the event that any Support Obligation cannot be replaced at or prior to the Closing, ParentPurchaser’s obligations hereunder shall be satisfied if Parent Purchaser or its Affiliate enters into at Closing a back-to-back guarantee with respect to such Support Obligation for the benefit of the Sellers in the form of an irrevocable, standby letter of credit or other similar form of security for 100% of the Sellers’ or their Affiliates’ obligations with respect to such Support Obligation and (b) the Sellers and their Affiliates shall continue to maintain such support Support Obligations as required pursuant to the terms of the Support Obligations and the related Contracts.

Support Obligations. (a) Prior to Closingthe Closing Date, Parent Seller and Buyer shall cooperate to, and shall each use its commercially reasonable efforts (and shall reasonably cooperate with the Sellers’ efforts) to to, terminate, or cause Parent or any of the Acquired Companies Buyer to be substituted in all respects for the Seller and their any of Seller’s Affiliates in respect of all obligations of Seller and any of its Affiliates under all Support Obligations (other than the Acquired Companies) under, and the Sellers, their Affiliates (other than the Acquired Companies), and where applicable, their sureties or letter of credit issuers, to be released from their respective obligations under, the those Support Obligations set forth in Section 6.10 that relate to Permits or Material Contracts that are not transferred to Buyer (or its designee) as of the Company Disclosure Schedule as soon as possible after Closing). In furtherance and not in limitation of the preceding sentence, at the Sellers’ request, Parent will offer (and provide, if accepted) (i) a sufficient amount of letters of credit, (ii) cash collateral, and (iii) to assume the Sellers’ or their Affiliates’ obligations under guaranties, to the counterparties with With respect to any Coal Support Obligation that remains outstanding after the Closing Date (until such time as such Coal Support Obligations to enable the Sellers and their Affiliates to terminate such Support Obligations without liability Obligation is terminated or otherwise be released or replaced substituted in connection therewith; provided thataccordance herewith, with respect to each an “Outstanding Coal Support Obligation, Parent shall not be required under this Section 6.10 to deliver replacement credit support of the same type as, or with terms and conditions substantially similar to, such Support Obligations, provided that the replacement credit support delivered by Parent complies with the terms and conditions of the applicable Contract or is otherwise acceptable to the counterparty thereto. For any Support Obligations for which Parent or any of the Acquired Companies, as applicable, is not substituted in all respects for the Sellers and their Affiliates (and for which the Sellers and their Affiliates are not released) effective as of the Closing”), (a) Parent 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 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 other obligation 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 other liability under such Contracts; and (c) Seller shall and, if applicable, shall cause its Affiliates to, maintain each such Outstanding Coal Support Obligation until (1) its termination in accordance with its terms, (2) substitution has been effected or (3) its termination in accordance with the Acquired Companies to use their commercially reasonable best efforts to effect such substitution and release as soon as possible after the 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 or its Affiliates, and Seller (or Seller’s Affiliate, as applicable) pays an amount equal to or greater than $500,000 in connection therewith, then Seller (or Seller’s Affiliate, as applicable) shall be entitled to terminate such Outstanding Coal Support Obligation upon at least five (5) Business Days’ prior written notice to Buyer; provided, that in all applicable notice and cure periods under the event that any Contract to which such Outstanding Coal Support Obligation canrelates shall have expired; provided further, that Buyer shall not be replaced at have reimbursed Seller (or prior to Seller’s Affiliate, as applicable) for such payment. The provisions of this Agreement notwithstanding, in no event shall any Outstanding Coal Support Obligation remain outstanding after the Closing, Parent’s obligations hereunder shall be satisfied if Parent or its Affiliate enters into at Closing a back-to-back guarantee with respect termination of the underlying Contract relating to such Outstanding Coal Support Obligation, and Seller (or Seller’s Affiliate, as applicable) may terminate any such Outstanding Coal Support Obligation for the benefit as of the Sellers in the form date of an irrevocable, standby letter such termination of credit or other similar form of security for 100% of the Sellers’ or their Affiliates’ obligations with respect to such Support Obligation and (b) the Sellers and their Affiliates shall continue to maintain such support Obligations as required pursuant to the terms of the Support Obligations and the related ContractsContract.

Support Obligations. (a) Prior On or prior to Closingthe Closing Date, Parent Buyer shall use its commercially reasonable efforts (and shall reasonably cooperate with the Sellers’ efforts) to terminate, or cause Parent or any replace each of the Acquired Companies to be substituted in all respects for the Seller and their Affiliates (other than the Acquired Companies) under, and the Sellers, their Affiliates (other than the Acquired Companies), and where applicable, their sureties or letter of credit issuers, to be released from their respective obligations under, the Support Obligations set forth in Section 6.10 of the Company Disclosure Schedule as soon as possible after Closing. In furtherance and not in limitation of the preceding sentencewith parent guarantees, at the Sellers’ request, Parent will offer (and provide, if accepted) (i) a sufficient amount of letters of credit, bonds, indemnities, or another credit assurance of comparable and sufficient nature, in each case in form that satisfies the requirements of the underlying Contract requiring provision of such Support Obligations in such a manner that each such Support Obligation is released and returned by the beneficiary thereof, or cancelled or otherwise terminated, by the Closing Date. Notwithstanding the foregoing, Sellers (iiacting in their sole discretion) cash collateral, and (iii) shall have the option to assume elect to waive the Sellers’ or their Affiliates’ obligations under guaranties, to the counterparties condition precedent with respect to the replacement of any individual Support Obligations in order to enable facilitate timely Closing, in which case Buyer shall be obligated to complete such replacement in the Sellers same manner within 10 Business Days after the Closing, and their Affiliates to terminate in the event of any draw on or claim against the applicable Support Obligation in the period after the Closing and before replacement of such Support Obligations without liability or otherwise be released or replaced in connection therewith; provided thatObligation by Xxxxx, with respect Xxxxx agrees to each Support Obligation, Parent shall not be required under this Section 6.10 to deliver replacement credit support of the same type as, or with terms indemnify and conditions substantially similar to, such Support Obligations, provided that the replacement credit support delivered by Parent complies with the terms and conditions of the applicable Contract or is otherwise acceptable to the counterparty thereto. For any Support Obligations for which Parent or any of the Acquired Companies, as applicable, is not substituted in all respects for the hold harmless Sellers and their Affiliates (excluding for the avoidance of doubt, any Company Entity) for any and for which all resulting Losses (including the payment of any costs incurred by Sellers and their Affiliates are not released) effective as of the Closing, (a) Parent shall continue to use its commercially reasonable efforts and shall cause the Acquired Companies to use their commercially reasonable best efforts to effect in maintaining such substitution and release as soon as possible after the ClosingSupport Obligations), and provided, that in the event that any Support Obligation cannot be replaced at or Buyer shall deliver to Sellers prior to the ClosingClosing a first-demand, Parentnon-revocable and transferrable bank guarantee or letter of credit, issued by an international bank of primary standing (and with a credit rating of investment grade by a reputable rating agency), in a form reasonably satisfactory to Sellers, guaranteeing without any exceptions or conditions Buyer’s indemnification obligations under this Section 6.07, that is callable, pursuant to and in accordance with its terms until the later of (i) the full release of all outstanding Support Obligations, and (ii) the full and final discharge of all of Buyer’s obligations hereunder shall be satisfied if Parent or its Affiliate enters into at Closing a back-to-back guarantee with respect to such Support Obligation for the benefit of the Sellers in the form of an irrevocable, standby letter of credit or other similar form of security for 100% of the Sellers’ or their Affiliates’ obligations with respect to such Support Obligation and (b) the Sellers and their Affiliates shall continue to maintain such support Obligations as required pursuant to the terms of the Support Obligations and the related Contractsunder this Section 6.07.