Common use of Replacement Guarantees Clause in Contracts

Replacement Guarantees. As promptly as practicable after the date hereof, with respect to each Jointly Held Guarantee, Sellers shall use commercially reasonable efforts to cause a new guarantee, letter of credit, bond, cash deposit, or other financial assurance, as the case may be, to be issued, at no cost or expense to Buyer or any Acquired Company, such that the applicable Acquired Company will hold a stand-alone guarantee, letter of credit, bond, cash deposit, or other financial assurance for the obligations that are secured by such Jointly Held Guarantee on terms no less favorable than those contained in such Jointly Held Guarantee as of the date hereof or as provided for in the tariff of such Acquired Company (“Replacement Guarantee”). If a Replacement Guarantee has not been issued for any Jointly Held Guarantee prior to Closing, (i) Sellers shall, if requested by Buyer or the applicable Acquired Company, enforce such Jointly Held Guarantee on behalf of and for the benefit of such Acquired Company (proportionately and with equal priority with the rights, if any, of Sellers and its Affiliates under such Jointly Held Guarantee) until such Jointly Held Guarantee has been replaced by the Acquired Companies (provided, that the applicable Acquired Company may assert, on its own behalf, its rights under such Jointly Held Guarantee and Sellers, at their sole cost and expense, shall cooperate with such Acquired Company in pursuing such claims) and (ii) Sellers shall, at their sole cost and expense, continue to use commercially reasonable efforts to obtain such Replacement Guarantee, and Buyer shall cause the Acquired Companies to cooperate with Sellers in such endeavor.

Replacement Guarantees. As promptly as practicable after the date hereof, with respect to each Jointly Held Guarantee, Sellers Buyer and Seller shall use commercially reasonable efforts to cause a new guarantee, letter of credit, bond, cash deposit, or other financial assurance, as the case may be, to be issued, at no cost or expense to Buyer or any Acquired Company, such that the applicable Acquired Company will hold a stand-alone guarantee, letter of credit, bond, cash deposit, or other financial assurance for the obligations that are secured by such Jointly Held Guarantee on terms no less favorable than those contained in such Jointly Held Guarantee as of the date hereof or as provided for in the tariff of such Acquired Company (“Replacement Guarantee”). If a Replacement Guarantee has not been issued for any Jointly Held Guarantee prior to Closing, (i) Sellers shall, if requested by Buyer or the applicable Acquired Company, enforce such Jointly Held Guarantee on behalf of and for the benefit of such Acquired Company (proportionately and with equal priority with the rights, if any, of Sellers and its Affiliates under such Jointly Held Guarantee) until such Jointly Held Guarantee has been replaced by the Acquired Companies (provided, that the applicable Acquired Company may assert, on its own behalf, its rights under such Jointly Held Guarantee and Sellers, at their sole cost and expense, shall cooperate with such Acquired Company in pursuing such claims) and (ii) Sellers shall, at their sole cost and expense, continue to use commercially reasonable efforts to obtain from the respective beneficiary, in form and substance reasonably satisfactory to Seller and Buyer, on or before the Closing Date, valid and binding written releases of any securities, guarantees or indemnities given by or binding upon Seller or any of its Affiliates (other than the Group Companies) on behalf of the Group Companies exclusively relating to the Acquired Business, each of which is listed on Schedule 7.13 of the Company Disclosure Schedules (each, a “Seller Guarantee”), which release shall be effective as of the Closing, including, in the case of Buyer and its Affiliates, as applicable and at the election of Buyer (in its sole discretion), by providing substitute guarantees, furnishing letters of credit, instituting escrow agreements, posting surety or performance bonds or making other arrangements as the beneficiary may reasonably request. If any Seller Guarantee has not been released as of the Closing Date, then Buyer and Seller shall continue to use their commercially reasonable efforts after the Closing to cause as promptly as practicable the complete and unconditional release of Seller and its Affiliates and subsidiaries (other than the Group Companies) under any Seller Guarantee. Without limitation of Buyer’s obligations under this Agreement, for so long as Seller or any of its Affiliates or subsidiaries (other than the Group Companies) has performance obligations under such Replacement Seller Guarantee, Buyer shall (and Buyer shall cause the Post-Closing Company and Subsidiaries to) (a) perform such obligations on behalf of Seller or such Affiliate or subsidiary of Seller or (b) otherwise take such action as reasonably requested by Seller so as to put Seller and its Affiliates and subsidiaries (other than the Group Companies) in the same position as if Buyer or the Post-Closing Company or the Subsidiaries had performed or were performing such obligations. From and after the Closing, Buyer shall indemnify Seller, its Affiliates, its subsidiaries and their respective representatives against all Liabilities arising from and after the Closing pursuant to any Seller Guarantee in respect of the Acquired Companies to cooperate with Sellers in such endeavorBusiness.

Replacement Guarantees. As promptly (a) The Parties acknowledge that, in the course of conduct of the Energy Supply Business, Parent and its Affiliates may have entered into various arrangements in which guarantees, bonds, credit support or similar arrangements were issued by Parent or its Affiliates to support or facilitate the Energy Supply Business. Any such arrangements entered into by Parent and its Affiliates (other than the Energy Supply Group) are, to the extent related to the Energy Supply Business, hereinafter referred to as practicable after the date hereof, with respect to each Jointly Held Guarantee, Sellers “Parent Guarantees.” The Parties acknowledge and agree that the Parties shall use their respective commercially reasonable efforts to cause novate, assign or replace each Parent Guarantee with a new guaranteereplacement guarantee or similar support on similar terms and conditions from Energy Supply or an Energy Supply Sub following the Closing and to obtain the release of Parent and its Affiliates (other than Energy Supply or an Energy Supply Sub) from any Liability (other than any Liabilities in respect of Excluded Liabilities) with respect to such Parent Guarantees, letter of creditin each case, bondeffective on or prior to the Closing. If, cash deposit, or other financial assurance, as the case may be, to be issued, at no cost or expense to Buyer or any Acquired Company, such that the applicable Acquired Company will hold a stand-alone guarantee, letter of credit, bond, cash deposit, or other financial assurance for the obligations that are secured by such Jointly Held Guarantee on terms no less favorable than those contained in such Jointly Held Guarantee as of the date hereof Closing, any one or as provided for more of the Parent Guarantees has neither expired in the tariff accordance with its terms nor been novated, assigned or replaced in accordance with this Section 8.10 (any such obligation in respect of such Acquired Company a Parent Guarantee (other than any Liabilities in respect of Excluded Liabilities), until it expires, is terminated or novated, assigned or replaced in accordance with this Section 8.10, an “Replacement Outstanding Parent Guarantee”). If a Replacement Guarantee has not been issued for any Jointly Held Guarantee prior to Closing, (i) Sellers the Parties shall, if requested by Buyer or following the applicable Acquired Company, enforce such Jointly Held Guarantee on behalf of and for the benefit of such Acquired Company (proportionately and with equal priority with the rights, if any, of Sellers and its Affiliates under such Jointly Held Guarantee) until such Jointly Held Guarantee has been replaced by the Acquired Companies (provided, that the applicable Acquired Company may assert, on its own behalf, its rights under such Jointly Held Guarantee and Sellers, at their sole cost and expense, shall cooperate with such Acquired Company in pursuing such claims) and (ii) Sellers shall, at their sole cost and expenseClosing, continue to use their respective commercially reasonable efforts to obtain novate, assign or replace each such Replacement GuaranteeOutstanding Parent Guarantee in accordance with the immediately preceding sentence with a replacement guarantee or similar support on similar terms and conditions from Energy Supply or an Energy Supply Sub following the Closing. The costs of providing replacement guarantees or similar support in accordance with this Section 8.10 shall constitute Shared Expenses. (b) From and after the Closing, Energy Supply shall indemnify, defend and hold harmless Parent and its Affiliates (other than any member of the Combined Group) against, and Buyer shall cause reimburse Parent and its Affiliates (other than any member of the Acquired Companies Combined Group) for, any and all Losses that result from, relate to cooperate with Sellers in such endeavoror arise out of any Outstanding Parent Guarantee.

Replacement Guarantees. As promptly as practicable after (a) Section 6.23 of the date hereof, with respect to each Jointly Held Guarantee, Sellers Company Disclosure Letter sets forth certain outstanding guarantees (“Company Guarantees”) extended by certain Related Parties of the Company (“Company Guaranteeing Parties”) on behalf of Company. The Company shall use commercially reasonable efforts to cause a new guaranteesecure the full release, letter effective as of creditthe Closing Date, bond, cash deposit, of the Company Guaranteeing Parties by the beneficiaries or other financial assurancecounterparties to the Company Guarantees; provided that, as without the case may be, written consent of Parent (not to be issuedunreasonably withheld, at no cost delayed or expense conditioned), the Company shall not agree to Buyer or make any Acquired Company, payment to any such that the applicable Acquired Company will hold a stand-alone guarantee, letter of credit, bond, cash deposit, beneficiary or other financial assurance counterparty or amend in any manner adverse to the Company any obligation supported by any Company Guarantee in order to secure such release. Parent shall provide any information reasonably requested by the beneficiaries or counterparties of any Company Guarantees in connection with the matters contemplated by this Section 6.23, including information with respect to the creditworthiness of Parent and the Surviving Company. (b) In the event that definitive arrangements have not been made as of ten (10) Business Days prior to the Closing for the obligations that are secured Company Guaranteeing Parties to be released from any Company Guarantee by the beneficiaries or other counterparties of such Jointly Held Guarantee on terms no less favorable than those contained in such Jointly Held Company Guarantee as of the date hereof Closing Date, then Parent shall (i) propose to substitute Parent guarantees to replace the Company Guarantees at or prior to the Closing (and, if accepted by the counterparties to any Company Guarantees, Parent shall issue such Parent guarantees in replacement thereof at the Closing) and (ii) to the extent permitted by applicable Law and the terms thereof (including any requirement to seek consent of the counterparty), assume all obligations under each Company Guarantee, in each case in order to secure the full release, effective as provided for in of the tariff Closing Date, of the Company Guaranteeing Parties from any obligations under the Company Guarantees. (c) Subject to the receipt of any required third party consents, the Company Guarantees shall be canceled and terminated or fully assumed by Parent as of the Closing Date, and the Company Guaranteeing Parties have no further obligation or liability (contingent or otherwise) under such Acquired Company (“Replacement Guarantee”)Guarantees from and after the Closing Date. If a Replacement any Company Guarantee has not been issued for any Jointly Held Guarantee prior to canceled and terminated or fully assumed by Parent as of the Closing Date, then following the Closing, (i) Sellers shallParent shall indemnify and hold harmless the Company Guaranteeing Parties from and against any and all Losses suffered or incurred by them after the Closing Date in connection with the Company Guarantees, if requested by Buyer or and (ii) Parent shall not, without the applicable Acquired CompanyCompany Guaranteeing Party’s prior written consent, enforce amend in any manner adverse to the Company Guaranteeing Parties, or extend (or permit the extension of), any obligation supported by any Company Guarantee. (d) The Company and Parent shall take all actions necessary to secure the full release, effective as of the Closing Date, of the Liens set forth on Section 6.23(d) of the Company Disclosure Schedule; provided that, without the written consent of Parent (not to be unreasonably withheld, delayed or conditioned), the Company shall not agree to make any payment to the Lienholder or amend in any manner adverse to the Company any obligation supported by such Jointly Held Guarantee on behalf Liens in order to secure such release. Without limiting the foregoing, in the event that definitive arrangements have not been made as of and ten (10) Business Days prior to the Closing for the benefit release of the Liens set forth on Section 6.23(d) of the Company Disclosure Schedule, Parent and the Company shall (i) propose to provide a Parent guarantee of the obligations supported by such Liens, (ii) propose to provide the holder of such Acquired Company (proportionately and Liens with Liens over assets of Parent equal priority with to the rights, if anyvalue of the assets subject to the Liens set forth on Section 6.22, of Sellers whatever type and its Affiliates wherever located, unless such actions would cause a default under such Jointly Held GuaranteeParent’s credit arrangements, and (iii) until such Jointly Held Guarantee has been replaced by if the Acquired Companies undertakings in clause (provided, that the applicable Acquired Company may assert, on its own behalf, its rights under such Jointly Held Guarantee and Sellers, at their sole cost and expense, shall cooperate with such Acquired Company in pursuing such claimsi) and (ii) Sellers shallare insufficient to secure the release of such Liens, at their sole provide whatever forms of credit support, including letters of credit and/or cash collateralization), as may be necessary to secure the release of such Liens, unless such actions would cause a default under Parent’s credit arrangements, with the out-of-pocket fronting fee costs and carrying costs of such credit support (but, for the avoidance of doubt, not the cost of any amounts drawn on such credit support or the principal amount of any cash collateral) attributable to a period of up to 12 months from the Closing Date being borne 50% by Parent and expense, continue 50% by the Company as a Company Transaction Expense (and any such costs subsequent to use commercially reasonable efforts to obtain such Replacement Guarantee, and Buyer shall cause the Acquired Companies to cooperate with Sellers in such endeavorfirst anniversary of the Closing Date being borne 100% by Parent).