Support Obligations. With respect to each guaranty, letter of credit, indemnity, performance or surety bond, cash deposit or other credit support arrangement issued by or for the account of the Company Entities and posted or provided by Sellers or Sellers’ Affiliates (other than the Company Entities), or by Duke or any of its Affiliates, including those items that are listed in Section 6.12 of the Company Disclosure Schedule (collectively, the “Support Obligations”), Purchaser shall furnish or obtain, as of or within 30 Business Days following the Closing, substitute credit support arrangements in replacement for the Support Obligations (including by furnishing letters of credit or cash collateral) and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) and, where applicable, their sureties or letter of credit issuers be fully and unconditionally released from their respective obligations under or otherwise with respect to the Support Obligations (with outstanding letters of credit returned by cancellation), in each case, in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support; provided that, with respect to cash deposits, Sellers may elect to have such collateral not replaced by Purchaser and instead leave such collateral in place as of Closing, provided, further, that Sellers shall, and shall cause their Affiliates (which, for the avoidance of doubt, shall not include Duke or any of its Affiliates) to, reasonably cooperate with Purchaser in connection with the foregoing; provided, further, that, notwithstanding anything in this Agreement to the contrary, Purchaser shall furnish or obtain substitute credit support arrangements in replacement for the Specified Support Obligations, and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) be fully and unconditionally released from their respective obligations under or otherwise with respect to the Specified Support Obligations simultaneously with the Closing, in each case in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support. Notwithstanding Purchaser’s compliance with this Section 6.12, if any such Support Obligation remains outstanding after the Closing, Purchaser shall, effective as of the Closing and until the earlier of release of all Support Obligations by Sellers, Duke or their respective Affiliates, as applicable, (a) indemnify, defend or hold harmless, Sellers, Duke, their respective Affiliates and their respective managers, officers, directors, employees, representatives, successors and assigns from and against, and reimburse and compensate them for, any and all Losses (including any out-of-pocket costs and expenses) incurred by any of them relating to the applicable Support Obligation the release of which did not occur as of the Closing, and not permit any Company Entity to, amend, modify or renew any Contract giving rise to such Support Obligations without the prior written consent of Sellers, and (b) pay to Sellers the applicable fee indicated on Section 6.12 of the Company Disclosure Schedule, which fee shall be due and payable by Purchaser to Sellers in monthly installments in arrears until the release of all Support Obligations. Notwithstanding anything to the contrary herein, during the Interim Period, Sellers and/or Sellers’ Affiliates (including the Company Entities) shall be entitled, in their sole discretion, to replace Specified Support Obligations currently posted or provided by Duke or its Affiliates with cash deposits, letters of credit, guaranties or performance bonds in amounts not materially greater than the amounts set forth on Section 6.12 of the Company Disclosure Schedule, which if posted or provided by Sellers or Sellers’ Affiliates other than the Company Entities, shall be treated as Support Obligations required to be replaced by Purchaser hereunder; provided that any such replacement cash deposits, letters of credit, guaranties or performance bonds shall not be direct obligations of any Company Entities.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Clearway Energy, Inc.), Purchase and Sale Agreement (Clearway Energy LLC)
Support Obligations. With respect (a) Prior to each guarantyClosing, letter Parent shall use its commercially reasonable efforts (and shall reasonably cooperate with the Sellers’ efforts) to terminate, or cause Parent or any of credit, indemnity, performance or surety bond, cash deposit or other credit support arrangement issued by or the Acquired Companies to be substituted in all respects for the account of the Company Entities Seller and posted or provided by Sellers or Sellers’ their Affiliates (other than the Company EntitiesAcquired Companies) under, and the Sellers, their Affiliates (other than the Acquired Companies), or by Duke or any of its Affiliates, including those items that are listed in Section 6.12 of the Company Disclosure Schedule (collectively, the “Support Obligations”), Purchaser shall furnish or obtain, as of or within 30 Business Days following the Closing, substitute credit support arrangements in replacement for the Support Obligations (including by furnishing letters of credit or cash collateral) and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) and, where applicable, their sureties or letter of credit issuers issuers, to be fully and unconditionally 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 or otherwise guaranties, to the counterparties with respect to the Support Obligations (with outstanding letters of credit returned by cancellation), to enable the Sellers and their Affiliates to terminate such Support Obligations without liability or otherwise be released or replaced in each case, in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit supportconnection therewith; provided that, with respect to cash depositseach Support Obligation, Sellers may elect to have such collateral not replaced by Purchaser and instead leave such collateral in place as of Closing, provided, further, that Sellers shall, and shall cause their Affiliates (which, for the avoidance of doubt, Parent shall not include Duke 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 its Affiliates) to, reasonably cooperate with Purchaser in connection with the foregoing; provided, further, that, notwithstanding anything in this Agreement to the contrary, Purchaser shall furnish or obtain substitute credit support arrangements in replacement for the Specified Support Obligations, and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) be fully and unconditionally released from their respective obligations under or otherwise with respect to the Specified Support Obligations simultaneously with the Closing, in each case in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support. Notwithstanding Purchaser’s compliance with this Section 6.12, if any such Support Obligation remains outstanding after the Closing, Purchaser shall, effective as of the Closing and until the earlier of release of all Support Obligations by Sellers, Duke or their respective AffiliatesAcquired Companies, as applicable, (a) indemnify, defend or hold harmless, Sellers, Duke, their respective Affiliates is not substituted in all respects for the Sellers and their respective managers, officers, directors, employees, representatives, successors Affiliates (and assigns from for which the Sellers and against, and reimburse and compensate them for, any and all Losses (including any out-of-pocket costs and expensestheir Affiliates are not released) incurred by any of them relating to the applicable Support Obligation the release of which did not occur 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 permit any Company Entity 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, amend, modify or renew any Contract giving rise -back guarantee with respect to such Support Obligations without Obligation for the prior written consent 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) pay the Sellers and their Affiliates shall continue to Sellers maintain such support Obligations as required pursuant to the terms of the Support Obligations and the related Contracts.
(b) If any continuing Support Obligation addressed by the last sentence of Section 6.10(a) is drawn upon after the Closing Date, Parent shall pay, or cause the applicable fee indicated on Section 6.12 Acquired Company to pay, Sellers or their designees the amount so claimed or drawn within ten (10) Business Days after the date of the Company Disclosure Scheduledraw. If Parent, which fee shall be due and payable by Purchaser or the applicable Acquired Company, fails to pay Sellers in monthly installments in arrears until the release of all Support Obligations. Notwithstanding anything to the contrary herein, or their designees during the Interim Periodsuch ten (10) Business Day period, Sellers and/or Sellers’ Affiliates (including may draw upon the Company Entities) shall be entitled, in their sole discretion, to replace Specified Support Obligations currently posted or back-to-back guarantee provided by Duke Parent or its Affiliates Affiliate in accordance with cash deposits, letters of credit, guaranties or performance bonds in amounts not materially greater than the amounts set forth on Section 6.12 of the Company Disclosure Schedule, which if posted or provided by Sellers or Sellers’ Affiliates other than the Company Entities, shall be treated as Support Obligations required to be replaced by Purchaser hereunder; provided that any such replacement cash deposits, letters of credit, guaranties or performance bonds shall not be direct obligations of any Company Entitiesterms thereof.
Appears in 2 contracts
Sources: Stock Purchase Agreement and Agreement and Plan of Merger, Stock Purchase Agreement and Agreement and Plan of Merger (Dynegy Inc.)
Support Obligations. With respect (a) In connection with the consummation of the transactions contemplated by the Destin Purchase Agreement, Seller has delivered to each guaranty, ADPC an irrevocable standby letter of credit, indemnity, performance credit (together with any renewals or surety bond, cash deposit or other credit support arrangement issued by or for the account of the Company Entities and posted or provided by Sellers or Sellers’ Affiliates (other than the Company Entities), or by Duke or any of its Affiliates, including those items that are listed in Section 6.12 of the Company Disclosure Schedule (collectivelyreplacements thereof, the “Credit Support ObligationsLC”) issued by Citibank, N.A. in favor of ADPC, relating to the $2,500,000 Guarantee between BP Corporation North America, Inc. and Minerals Management Service of the United States (the “Guarantee”) pursuant to that certain letter agreement by and between ADPC and Seller, dated as of March 30, 2016 (the “Credit Support Agreement”), Purchaser copies of which have previously been provided to Buyer.
(b) Buyer shall furnish or obtain, as of or within 30 Business Days following the Closing, substitute credit support arrangements in replacement for the Support Obligations (including by furnishing letters of credit or cash collateral) and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) and, where applicable, their sureties or letter of credit issuers be fully and unconditionally released from their respective obligations under or otherwise with respect to the Support Obligations (with outstanding letters of credit returned by cancellation), in each case, in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support; provided that, with respect to cash deposits, Sellers may elect to have such collateral not replaced by Purchaser and instead leave such collateral in place as of Closing, provided, further, that Sellers shall, and shall cause their Affiliates (which, for the avoidance of doubt, shall not include Duke or any of its Affiliates) to, reasonably cooperate with Purchaser in connection with the foregoing; provided, further, that, notwithstanding anything in this Agreement to the contrary, Purchaser shall furnish or obtain substitute credit support arrangements in replacement for the Specified Support Obligations, and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) be fully and unconditionally released from their respective obligations under or otherwise with respect to the Specified Support Obligations simultaneously with the Closing, in each case in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support. Notwithstanding Purchaser’s compliance with this Section 6.12, if any such Support Obligation remains outstanding after the Closing, Purchaser shall, effective as of the Closing and until the earlier of release of all Support Obligations by Sellers, Duke or their respective Affiliates, as applicable, (a) indemnify, defend or and hold harmless, Sellers, Duke, their respective Affiliates and their respective managers, officers, directors, employees, representatives, successors and assigns harmless each member of Seller Group from and against, and reimburse and compensate them for, against any and all Losses (including any out-of-pocket draws against, costs and expensesliabilities in maintaining, and any costs in cancelling such Credit Support LC) relating to, resulting from, or arising out of such Credit Support LC and incurred by any Seller.
(c) Within five (5) Business Days after the earlier of them (i) date that Seller shall have assigned and delegated, and Buyer shall have accepted and assumed, all of Seller’s obligations under the Destin Purchase Agreement and the Credit Support Agreement pursuant to and in accordance with Section 9.17 and (ii) the date that Seller shall have received consent from ADPC to Buyer’s replacement of the Credit Support LC (the “LC Replacement Period”), Buyer shall deliver to Seller a letter of credit, in form and substance acceptable to Seller, in the Stated Amount (as defined therein) of the Credit Support LC (the “Replacement LC,” and the date that Buyer actually delivers such Replacement LC, the “Replacement LC Delivery Date”) and shall cause as of the Replacement LC Delivery Date the release of the Seller Group from all obligations relating to the applicable Credit Support Obligation LC and any Losses related thereto, unless Seller or Buyer has obtained the release of which did not occur as the Guarantee pursuant to Section 7.2(d)(i) of the Closing, and not permit any Company Entity to, amend, modify or renew any Contract giving rise Destin Purchase Agreement prior to such Support Obligations without the prior written consent of Sellers, and (b) pay to Sellers the applicable fee indicated on Section 6.12 expiration of the Company Disclosure Schedule, which fee shall be due and payable by Purchaser to Sellers in monthly installments in arrears until the release of all Support Obligations. Notwithstanding anything to the contrary herein, during the Interim LC Replacement Period, Sellers and/or Sellers’ Affiliates (including the Company Entities) shall be entitled, in their sole discretion, to replace Specified Support Obligations currently posted or provided by Duke or its Affiliates with cash deposits, letters of credit, guaranties or performance bonds in amounts not materially greater than the amounts set forth on Section 6.12 of the Company Disclosure Schedule, which if posted or provided by Sellers or Sellers’ Affiliates other than the Company Entities, shall be treated as Support Obligations required to be replaced by Purchaser hereunder; provided that any such replacement cash deposits, letters of credit, guaranties or performance bonds shall not be direct obligations of any Company Entities.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (American Midstream Partners, LP), Purchase and Sale Agreement
Support Obligations. With respect to each guaranty, letter of credit, indemnity, performance or surety bond, cash deposit or other Purchaser acknowledges that Seller and certain Affiliates have provided certain credit support arrangement issued by or for pursuant to the account of the Company Entities support obligations and posted or provided by Sellers or Sellers’ Affiliates related agreements described on Schedule 3.23 (other than the Company Entities), or by Duke or any of its Affiliates, including those items that are listed in Section 6.12 of the Company Disclosure Schedule (collectively, the “Support Obligations”), Purchaser shall furnish or obtain, as of or within 30 Business Days following . During the Closing, substitute credit support arrangements in replacement for the Support Obligations (including by furnishing letters of credit or cash collateral) and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) and, where applicable, their sureties or letter of credit issuers be fully and unconditionally released from their respective obligations under or otherwise with respect to the Support Obligations (with outstanding letters of credit returned by cancellation)Interim Period, in each case, in form at Purchaser’s sole risk, cost and substance expense:
(a) Purchaser shall take all steps reasonably satisfactory to Sellers or the beneficiary necessary, including offering substitute guarantees of Sellers’ credit support; provided that, with respect to cash deposits, Sellers may elect to have such collateral not replaced by Purchaser and instead leave such collateral in place as of Closing, provided, further, that Sellers shallParent, and Seller shall cause their Affiliates cooperate (which, for the avoidance of doubt, it being understood that such cooperation shall not include Duke any requirement to pay any consideration or offer or grant any of its Affiliatesfinancial accommodation) toin all reasonable respects with Purchaser, reasonably cooperate with Purchaser in connection with the foregoing; provided, further, to endeavor to ensure that, notwithstanding anything in this Agreement to the contrary, Purchaser shall furnish or obtain substitute credit support arrangements in replacement for the Specified Support Obligations, and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) be fully and unconditionally released from their respective obligations under or otherwise with respect to the Specified Support Obligations simultaneously with the Closing, in each case in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support. Notwithstanding Purchaser’s compliance with this Section 6.12, if any such Support Obligation remains outstanding after the Closing, Purchaser shall, effective as of the Closing Date, (i) Seller and until its Affiliates (other than any Company Entity) shall be released from one hundred percent (100%) of any and all obligations or Liabilities relating to or arising under or out of or in connection with each Support Obligation, and (ii) substitute arrangements, if required by a beneficiary of any Support Obligation, of Purchaser or Purchaser Parent shall be in effect, including by providing (or causing to be provided) letters of credit or similar support, and
(b) without limiting the earlier of release of all Support Obligations by Sellersforegoing, Duke or their respective Affiliates, as applicable, in the event that the requirements set forth in clause (a) indemnify, defend or hold harmless, Sellers, Duke, their respective Affiliates and their respective managers, officers, directors, employees, representatives, successors and assigns from and against, and reimburse and compensate them for, any and all Losses (including any out-of-pocket costs and expenses) incurred by any of them relating to the applicable Support Obligation the release of which did this Section 6.04 are not occur met as of the ClosingClosing Date, and not permit any Company Entity tosubject to acceptance by Seller in its reasonable discretion, amendPurchaser or its relevant Affiliates shall, modify or renew any Contract giving rise to such in lieu of providing substitute arrangements in respect of Support Obligations without the prior written consent pursuant to clause (a)(ii) of Sellersthis Section 6.04, enter into such indemnification and reimbursement agreements with Seller or any of its Affiliates as reasonably necessary to provide Seller and such Affiliates with an effective release or full indemnification with respect to all obligations and Liabilities of Seller and such Affiliates to be released pursuant to in clause (b) pay to Sellers the applicable fee indicated on of this Section 6.12 of the Company Disclosure Schedule6.04; provided that, which fee shall be due and payable by Purchaser to Sellers in monthly installments in arrears until the release of all Support Obligations. Notwithstanding anything to the contrary herein, during the Interim Period, Sellers and/or Sellers’ Affiliates Purchaser’s indemnification obligations under clause (including the Company Entitiesi) shall be entitled, in their sole discretion, to replace Specified Support Obligations currently posted or provided by Duke or its Affiliates with cash deposits, letters of credit, guaranties or performance bonds in amounts not materially greater than the amounts set forth on affect Seller’s indemnification obligations under Section 6.12 of the Company Disclosure Schedule, which if posted or provided by Sellers or Sellers’ Affiliates other than the Company Entities, shall be treated as Support Obligations required to be replaced by Purchaser hereunder; provided that any such replacement cash deposits, letters of credit, guaranties or performance bonds shall not be direct obligations of any Company Entities11.01.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Cleco Power LLC), Purchase and Sale Agreement (NRG Energy, Inc.)
Support Obligations. With respect (i) Buyer recognizes that Seller and certain of its Affiliates have provided credit support to each guarantythe Paper Group, letter of credit, indemnity, performance or surety bond, cash deposit or their Subsidiaries and the Business and may have to (but shall not be obligated to) provide other credit support arrangement issued in connection with the transactions contemplated by or for the account of the Company Entities and posted or provided by Sellers or Sellers’ Affiliates (other than the Company Entities), or by Duke or any of its Affiliates, including those items that are listed in Section 6.12 of the Company Disclosure Schedule this Agreement (collectively, the “Support Obligations”). Buyer shall use reasonable best efforts to effect the full and unconditional release of Seller and its Affiliates from all Support Obligations, Purchaser including by the issuance, to the beneficiaries thereof, in sufficient amount of letters of credit, guaranties, cash collateral and/or other credit support as would reasonably be expected to cause the release of the Support Obligations.
(ii) In connection with replacement of such Support Obligation by Buyer, Buyer and Seller shall furnish cooperate to cause the beneficiary or obtainbeneficiaries of the Support Obligations to terminate and redeliver to Seller or its Affiliates, as applicable, as soon as practicable, each original copy of each original guaranty, letter of credit or within 30 Business Days following other instrument constituting or evidencing such Support Obligations as well as to redeliver to Seller and its Affiliates, any cash collateral in respect of the Support Obligations and, as to any Support Obligations terminated after the Closing, substitute credit support arrangements in replacement for the Support Obligations (including by furnishing letters of credit promptly to redeliver such originals or cash collateral) and shall ensure that Sellers, Sellers’ to Seller or its Affiliates, Duke and its Affiliates (as applicable) and, where applicable, their sureties or letter of credit issuers be fully and unconditionally released from their respective obligations under or otherwise with respect to the Support Obligations (with outstanding letters of credit returned by cancellation), in each case, to take such other actions as may be required to terminate such Support Obligations.
(iii) If Buyer is not successful in form obtaining the complete and substance reasonably satisfactory unconditional release of Seller and its Affiliates from the Support Obligations prior to Sellers or the beneficiary of Sellers’ credit support; provided that, with respect to cash deposits, Sellers may elect to have such collateral not replaced by Purchaser and instead leave such collateral in place as of Closing, providedthen Buyer shall continue to try to obtain such release after Closing and shall indemnify, furtherdefend and hold harmless Seller and its Affiliates from and against any and all Losses incurred by any such indemnified Persons in connection with the Support Obligations. Buyer shall, that Sellers shallfor so long as any Support Obligation remains outstanding, not, and shall cause each member of the Paper Group and their Affiliates (whichrespective Subsidiaries not to, for the avoidance of doubt, shall not include Duke effect any amendments or modifications or any other changes to the contracts, guaranties or letters of its Affiliatescredit to which any of such Support Obligations relate, or otherwise take any action that would effect any change to such contracts, guaranties or letters of credit, without Seller’s prior written consent.
(iv) to, reasonably cooperate with Purchaser in connection with the foregoing; provided, further, that, notwithstanding Notwithstanding anything in this Agreement to the contrary, Purchaser during the period from the date of this Agreement until the Closing Date, Buyer shall furnish have the right to contact and have discussions with each beneficiary of a Support Obligation in order to satisfy its obligations under this Section 8O; provided that (a) Buyer shall give Seller prior notice before making any such contact, (b) Seller shall have the right to have one of its representatives present on the telephone line or obtain substitute credit support arrangements in replacement person, as applicable, during any such contact or discussion, (c) Buyer shall only contact and hold discussions with such beneficiaries through representatives of Buyer previously approved by Seller, and (d) Buyer shall cause such representatives to comply with all procedures and protocols regarding such contacts and discussions that may be established by Seller.
(v) Prior to the Release Date, each of Buyer and Buyer Sub agrees not to assign, sell, transfer or convey all or any portion of the Target Units and/or the Paper Units and shall cause the members of the Paper Group not to assign, sell, transfer or convey all or any substantial portion of the assets of the Paper Group and its Subsidiaries, in a single transaction or series of related transactions, in each case without the assignment to the transferee of the rights of Buyer and Buyer Sub under this Agreement and the assumption in writing by the transferee (which assumption shall be enforceable by Seller and its Affiliates) of the obligations of Buyer and Buyer Sub under this Agreement (including the obligations of Buyer and Buyer Sub pursuant to this Section 8O); provided that, for the Specified avoidance of doubt, the sale of equity interests of Buyer (whether accomplished by merger or otherwise) shall not be deemed a sale, transfer, conveyance or assignment for purposes of this Section 8O. Buyer and Buyer Sub agree to take such actions such that any assignment, sale, transfer or conveyance in contravention of the preceding sentence shall be null and void ab initio. Buyer and Buyer Sub agrees to provide Seller with a copy of such assignment and assumption agreement prior to execution and prior to the assignment, sale, transfer or conveyance and a copy of the executed assignment and assumption agreement which shall be in the same form with such changes as Seller may reasonably request. Upon such an assignment, sale, transfer or conveyance pursuant to which the transferee assumes all of Buyer’s and Buyer Sub’s rights and obligations under this Agreement, Buyer and Buyer Sub shall have no further rights or obligations under this Agreement (except for obligations relating to breaches by Buyer and/or Buyer Sub occurring prior to the date of the assignment, sale, transfer or conveyance). The “Release Date” shall be the later of the date on which all of the Support Obligations, and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) be Obligations have been fully and unconditionally released from their respective and the date on which Seller has no more obligations owing to Buyer and/or Buyer Sub under or otherwise with respect to the Specified Support Obligations simultaneously with the Closing, in each case in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support. Notwithstanding Purchaser’s compliance with this Section 6.12, if any such Support Obligation remains outstanding after the Closing, Purchaser shall, effective as of the Closing and until the earlier of release of all Support Obligations by Sellers, Duke or their respective Affiliates, as applicable, (a) indemnify, defend or hold harmless, Sellers, Duke, their respective Affiliates and their respective managers, officers, directors, employees, representatives, successors and assigns from and against, and reimburse and compensate them for, any and all Losses (including any out-of-pocket costs and expenses) incurred by any of them relating to the applicable Support Obligation the release of which did not occur as of the Closing, and not permit any Company Entity to, amend, modify or renew any Contract giving rise to such Support Obligations without the prior written consent of Sellers, and (b) pay to Sellers the applicable fee indicated on Section 6.12 of the Company Disclosure Schedule, which fee shall be due and payable by Purchaser to Sellers in monthly installments in arrears until the release of all Support Obligations. Notwithstanding anything to the contrary herein, during the Interim Period, Sellers and/or Sellers’ Affiliates (including the Company Entities) shall be entitled, in their sole discretion, to replace Specified Support Obligations currently posted or provided by Duke or its Affiliates with cash deposits, letters of credit, guaranties or performance bonds in amounts not materially greater than the amounts set forth on Section 6.12 of the Company Disclosure Schedule, which if posted or provided by Sellers or Sellers’ Affiliates other than the Company Entities, shall be treated as Support Obligations required to be replaced by Purchaser hereunder; provided that any such replacement cash deposits, letters of credit, guaranties or performance bonds shall not be direct obligations of any Company EntitiesAgreement.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Aldabra 2 Acquisition Corp.), Purchase and Sale Agreement (Boise Cascade Holdings, L.L.C.)
Support Obligations. With From and after the Effective Date, each of Buyer and Buyer Parent will cooperate with Seller and the Company, and use commercially reasonable efforts, to cause (a) Seller, Seller’s Affiliates (other than the Company) and all sureties to be unconditionally released in full from any liability or obligation in respect to each guarantyof any surety, performance bond, letter of credit, indemnity, performance guaranty or surety bond, cash deposit similar ancillary obligation or other credit support arrangement amount issued by or for the account or benefit of the Company Entities or in connection with any liability or obligation of the Company, and posted (b) any deposits or provided other collateral pledged by Sellers or Sellers’ on behalf of Seller, MSG Holdings or their respective Affiliates (other than for the Company Entities), account or by Duke or any of its Affiliates, including those items that are listed in Section 6.12 benefit of the Company Disclosure Schedule (collectively, the “Support Obligations”), Purchaser shall furnish or obtain, as of or within 30 Business Days following the Closing, substitute credit support arrangements to be released in replacement for the Support Obligations (including by furnishing letters of credit or cash collateral) full and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) and, where applicable, their sureties or letter of credit issuers be fully and unconditionally released from their respective obligations under or otherwise with respect returned to the Support Obligations (with outstanding letters of credit returned by cancellation), in each case, in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support; provided that, with respect to cash deposits, Sellers may elect to have such collateral not replaced by Purchaser and instead leave such collateral in place as of Closing, provided, further, that Sellers shall, and shall cause their Affiliates (which, for the avoidance of doubt, shall not include Duke or any of its Affiliates) to, reasonably cooperate with Purchaser in connection with the foregoing; provided, further, that, notwithstanding anything in this Agreement to the contrary, Purchaser shall furnish or obtain substitute credit support arrangements in replacement for the Specified Support Obligations, and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) be fully and unconditionally released from their respective obligations under or otherwise with respect to the Specified Support Obligations simultaneously with the Closingpledgor, in each case in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support. Notwithstanding Purchaser’s compliance with this Section 6.12, if any such Support Obligation remains outstanding after the Closing, Purchaser shall, effective as respect of the Closing and until the earlier of release of all Support Obligations by SellersDevelopment Agreement (“Insured Obligations”) without further recourse to Seller, Duke or their respective Affiliates, as applicable, (a) indemnify, defend or hold harmless, Sellers, DukeMSG Holdings, their respective Affiliates or any such other Person (other than the Company), including pursuant to execution and delivery by the City of the Development Agreement Guarantor Release. If either such Insured Obligations are not unconditionally released or extinguished in full at or prior to the Closing in accordance with the previous sentence, or in the event that any of Seller, MSG Holdings or their respective Affiliates incurs, suffers or sustains any Losses in respect of any surety or guarantee provided by them under the Owner Participation Agreement, then Buyer will save, defend, indemnify and hold harmless Seller, Seller Parent, MSG Holdings and their respective managersAffiliates from and against any and all Losses asserted against, officersincurred, directorssustained or suffered by any of the foregoing as a result thereof and relating to a time period following the Closing. The provisions of Section 8.5 below will not apply to the preceding sentence. This Section 5.10 is intended to be for the benefit of, employeesand will be enforceable by, MSG Holdings and its Affiliates and each such Person’s heirs, legatees, representatives, successors and assigns from and againstassigns, and reimburse and compensate them for, any and all Losses (including any out-of-pocket costs and expenses) incurred by any it being expressly agreed that such Persons will be third party beneficiaries of them relating to the applicable Support Obligation the release of which did not occur as of the Closing, and not permit any Company Entity to, amend, modify or renew any Contract giving rise to such Support Obligations without the prior written consent of Sellers, and (b) pay to Sellers the applicable fee indicated on this Section 6.12 of the Company Disclosure Schedule, which fee shall be due and payable by Purchaser to Sellers in monthly installments in arrears until the release of all Support Obligations. Notwithstanding anything to the contrary herein, during the Interim Period, Sellers and/or Sellers’ Affiliates (including the Company Entities) shall be entitled, in their sole discretion, to replace Specified Support Obligations currently posted or provided by Duke or its Affiliates with cash deposits, letters of credit, guaranties or performance bonds in amounts not materially greater than the amounts set forth on Section 6.12 of the Company Disclosure Schedule, which if posted or provided by Sellers or Sellers’ Affiliates other than the Company Entities, shall be treated as Support Obligations required to be replaced by Purchaser hereunder; provided that any such replacement cash deposits, letters of credit, guaranties or performance bonds shall not be direct obligations of any Company Entities5.10.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (MSG Entertainment Spinco, Inc.), Membership Interest Purchase Agreement (Madison Square Garden Co)
Support Obligations. With respect (a) Purchaser and Seller shall cooperate and each use their commercially reasonable efforts to each guaranty, letter of credit, indemnity, performance or surety bond, cash deposit or other credit support arrangement issued by or for obtain from the account of the Company Entities and posted or provided by Sellers or Sellers’ Affiliates (other than the Company Entities), or by Duke or any of its Affiliates, including those items that are listed in Section 6.12 of the Company Disclosure Schedule (collectively, the “Support Obligations”), Purchaser shall furnish or obtain, as of or within 30 Business Days following the Closing, substitute credit support arrangements in replacement for the Support Obligations (including by furnishing letters of credit or cash collateral) and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) and, where applicable, their sureties or letter of credit issuers be fully and unconditionally released from their respective obligations under or otherwise with respect to the Support Obligations (with outstanding letters of credit returned by cancellation), in each casebeneficiary, in form and substance reasonably satisfactory to Sellers Seller, on or before the beneficiary Closing Date, valid and binding written unconditional releases of Sellers’ credit support; provided that, with respect to cash deposits, Sellers may elect to have such collateral not replaced by Purchaser Seller and instead leave such collateral in place as of Closing, provided, further, that Sellers shall, and shall cause their Affiliates (which, for the avoidance of doubt, shall not include Duke or any of its Affiliates) to, reasonably cooperate with Purchaser in connection with the foregoing; provided, further, that, notwithstanding anything in this Agreement to the contrary, Purchaser shall furnish or obtain substitute credit support arrangements in replacement for the Specified Support Obligations, and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) be fully and unconditionally released , from their respective obligations under the Contracts or otherwise other instruments set forth on Section 5.08 of the Seller Disclosure Letter (together with respect any similar obligations under any Contracts entered into after the date hereof in accordance with this Agreement (copies of which shall be provided to Purchaser within a reasonable time after entering into such Contracts), the “Support Obligations”) which shall be effective as of the Closing Date, including the Purchaser offering substitute guarantees, furnishing letters of credit, instituting escrow arrangements, posting surety or performance bonds or making other arrangements as the counterparty may reasonably request.
(b) Without limiting Purchaser’s obligations under Section 5.08(a), if such releases are not obtained as of the Closing Date, Seller or its Affiliates shall continue to maintain the applicable Support Obligations at the same levels as provided as of the Closing Date, and Purchaser and Seller shall continue to use their commercially reasonable efforts to replace such Support Obligations as promptly as practicable following the Closing Date (but in no event later than two (2) months following the Closing Date). Subject to the Specified terms hereof, effective as from the Closing Date and limited to any Support Obligations simultaneously with to the Closingextent and for as long as not released, in Purchaser shall (i) reimburse Seller and its Affiliates for, and indemnify and hold each case in form of them harmless from, all amounts paid or payable to the relevant beneficiary and substance (ii) reimburse Seller and its Affiliates for any third party expenses reasonably satisfactory to Sellers incurred by Seller or the beneficiary of Sellersits Affiliates for any Support Obligations issued by third parties on Seller’s or its Affiliates’ credit supportbehalf. Notwithstanding Purchaser’s compliance with this Section 6.12, if any such Support Obligation remains outstanding From and after the Closing, Purchaser shallshall promptly provide any financial, effective as of operational or ownership information regarding the Closing and until the earlier of release of all assets underlying any outstanding Support Obligations reasonably requested by SellersSeller from time to time, Duke or their respective Affiliates, as applicable, (a) indemnify, defend or hold harmless, Sellers, Duke, their respective Affiliates including for purposes of Seller’s risk assessment procedures and their respective managers, officers, directors, employees, representatives, successors and assigns from and againstfinancial reporting obligations, and reimburse and compensate them forshall cause proper provision to be made such that any successors, any and all Losses assigns or acquirors of such assets shall assume the obligations set forth in this Section 5.08.
(including any out-of-pocket costs and expensesc) incurred by any of them relating to the applicable Support Obligation the release of which did not occur as of the Closing, and not permit any Company Entity to, amend, modify or renew any Contract giving rise to such Support Obligations without the prior written consent of Sellers, and (b) pay to Sellers the applicable fee indicated on Section 6.12 of the Company Disclosure Schedule, which fee shall be due and payable by Purchaser to Sellers in monthly installments in arrears until the release of all Support Obligations. Notwithstanding anything to the contrary herein, during the Interim PeriodParties acknowledge and agree that at any time on or after the Closing Date, Sellers and/or Sellers’ Affiliates (including the Company Entities) shall be entitled, in their sole discretion, to replace Specified Support Obligations currently posted none of Seller or provided by Duke or any of its Affiliates with cash deposits, will have any obligation to renew any letters of credit, guaranties credit or surety or performance bonds in amounts not materially greater than issued on behalf of any Acquired Subsidiary or the amounts set forth on Section 6.12 Acquired Business after the expiration of the Company Disclosure Schedule, which if posted or provided by Sellers or Sellers’ Affiliates other than the Company Entities, shall be treated as Support Obligations required to be replaced by Purchaser hereunder; provided that any such replacement cash deposits, letters of credit, guaranties credit or surety or performance bonds shall not be direct obligations of any Company Entitiesbonds.
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Water Works Company, Inc.)
Support Obligations. With (a) Buyer recognizes that Seller or certain of the Non-Company Affiliates have provided guarantees or other credit support to or on behalf of the Company (such support obligations, as entered into, modified or replaced from time to time, are hereinafter referred to as the “Support Obligations”)).
(b) As promptly as practicable, Buyer shall use reasonable best efforts to replace the Support Obligations, and Seller and Buyer shall cooperate, and each shall use its reasonable best efforts, to effect the full and unconditional release, effective as of the Closing Date, of Seller or the applicable Non-Company Affiliate from all Support Obligations and all obligations and liabilities in respect thereof, 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) replacing any bonding/surety program on substantially similar terms and conditions to the existing bonding agreement;
(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; and/or
(iv) providing additional guarantees or assurances to induce beneficiaries of guarantees made by Seller or certain of the Non-Company Affiliates to release Seller or certain of the Non-Company Affiliates from such guarantees. In each case, Buyer shall ensure any credit support provided pursuant to this Section 7.1(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 any of their Affiliates to incur, pay, reimburse or provide, any liability, compensation, consideration or charge in order to replace the Support Obligations.
(c) Buyer and Seller shall cooperate, and each shall use their reasonable best efforts, to cause the beneficiary or beneficiaries of such Support Obligations to (i) remit any cash and cash equivalents (including any interest payable thereon) to Seller or one of its Non-Company Affiliates, as applicable, held under any escrow or cash collateral arrangement that is a Support Obligation promptly following the replacement of such escrow or cash collateral arrangement pursuant to Section 7.1(b)(ii) and (iii) terminate, surrender and redeliver to Seller, one of its Non-Company Affiliates or Seller’s other designee each original copy of each guaranty, letter of credit, indemnity, performance or surety bond, cash deposit surety or other credit support arrangement issued by instrument constituting or for evidencing such Support Obligations.
(d) In the account event that any of the Company Entities and posted Support Obligations are not replaced on or provided by Sellers or Sellers’ Affiliates (other than the Company Entities), or by Duke or any of its Affiliates, including those items that are listed in Section 6.12 of the Company Disclosure Schedule (collectively, the “Support Obligations”), Purchaser shall furnish or obtain, as of or within 30 Business Days following prior to the Closing, substitute credit support arrangements in replacement for the Support Obligations (including by furnishing letters of credit or cash collaterali) and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) and, where applicable, their sureties or letter of credit issuers be fully and unconditionally released from their respective obligations under or otherwise with respect to the Support Obligations (with outstanding letters of credit returned by cancellation), in each case, in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support; provided that, with respect to cash deposits, Sellers may elect to have such collateral not replaced by Purchaser and instead leave such collateral in place as of Closing, provided, further, that Sellers shall, and shall cause their Affiliates (which, for the avoidance of doubt, shall not include Duke extent Seller or any of its Affiliates) Non-Company Affiliates can terminate any Support Obligation, Seller may, or may cause the applicable Non-Company Affiliates to, reasonably cooperate with Purchaser in connection with the foregoing; providedfollowing 30 days prior written notice to Buyer, further, that, notwithstanding anything in this Agreement to the contrary, Purchaser shall furnish or obtain substitute credit support arrangements in replacement for the Specified Support Obligations, and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) be fully and unconditionally released from their respective obligations under or otherwise with respect to the Specified Support Obligations simultaneously with the Closing, in each case in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support. Notwithstanding Purchaser’s compliance with this Section 6.12, if terminate any such Support Obligation remains outstanding after the Closingin its sole discretion, Purchaser shall, effective as (ii) Buyer shall not be permitted to amend or modify any of the Closing and until the earlier terms of release of all Support Obligations by Sellers, Duke or their respective Affiliates, as applicable, (a) indemnify, defend or hold harmless, Sellers, Duke, their respective Affiliates and their respective managers, officers, directors, employees, representatives, successors and assigns from and against, and reimburse and compensate them for, any and all Losses (including any out-of-pocket costs and expenses) incurred by any of them relating to the applicable Support Obligation the release of which did not occur as of the Closing, and not permit any Company Entity to, amend, modify or renew any Contract giving rise to such Support Obligations without the prior written consent of SellersSeller or otherwise elect any options to extend the underlying obligation pursuant to which the Support Obligation has been provided without the prior written consent of Seller, and (biii) pay to Sellers pending the applicable fee indicated on Section 6.12 release or replacement of the Company Disclosure Schedule, which fee shall be due and payable by Purchaser to Sellers in monthly installments in arrears until the release of all Support Obligations. Notwithstanding anything , Buyer shall indemnify and hold harmless Seller and any of its Non-Company Affiliates against all amounts paid or incurred by any of them pursuant to the contrary hereinany such Support Obligations, during the Interim Period, Sellers and/or Sellers’ including any damages that may be sustained by Seller or any of its Non-Company Affiliates (including the Company Entities) shall be entitledas a result of any such Support Obligations, in their sole discretion, to replace Specified Support Obligations currently posted or provided by Duke or its Affiliates with cash deposits, letters respect of credit, guaranties or performance bonds in amounts not materially greater than the amounts set forth on Section 6.12 such Liability of the Company Disclosure Schedule, which if posted or provided by Sellers or Sellers’ Affiliates other than the Company Entities, shall be treated as Support Obligations required to be replaced by Purchaser hereunder; provided that any such replacement cash deposits, letters of credit, guaranties or performance bonds shall not be direct obligations of any Company EntitiesCompany.
Appears in 1 contract
Support Obligations. With respect (a) The Buyer shall use its commercially reasonable efforts to each guarantyreplace and effect the release of, letter effective as of creditClosing, indemnityany Support Obligations that are listed on Schedule 6.15, performance or surety bond, cash deposit or other including any additional credit support arrangement issued by or for the account of the Company Entities and posted or required to be provided by the Sellers or Sellers’ any of their Affiliates (other than the Company Entities)Acquired Companies) during the Interim Period with respect to the Acquired Companies, the property or assets of any Acquired Company, including the Project, or by Duke or any of its Affiliates, including those items that are listed in Section 6.12 of the Company Disclosure Schedule operation thereof (collectively, the “Support Obligations”), Purchaser shall furnish or obtain, as ) in accordance with the terms of or within 30 Business Days following this Agreement.
(b) To the Closing, substitute credit support arrangements in replacement for the extent any Support Obligations (including by furnishing letters of credit or cash collateral) and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) and, where applicable, their sureties or letter of credit issuers be fully and unconditionally released from their respective obligations under or otherwise with respect to the Support Obligations (with outstanding letters of credit returned by cancellation), in each case, in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support; provided that, with respect to cash deposits, Sellers may elect to have such collateral Obligation is not replaced by Purchaser and instead leave such collateral in place as of Closing, provided, further, that the Sellers shall, and shall cause their Affiliates (which, for the avoidance of doubt, shall are not include Duke released therefrom on or any of its Affiliates) to, reasonably cooperate with Purchaser prior to Closing in connection with the foregoing; provided, further, that, notwithstanding anything in this Agreement to the contrary, Purchaser shall furnish or obtain substitute credit support arrangements in replacement for the Specified Support Obligations, and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) be fully and unconditionally released from their respective obligations under or otherwise with respect to the Specified Support Obligations simultaneously with the Closing, in each case in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support. Notwithstanding Purchaser’s compliance accordance with this Section 6.126.15, the Buyer (i) shall continue to use its commercially reasonable efforts to promptly replace all Support Obligations and effect a full release of the Sellers and their respective Affiliates (other than the Acquired Companies), and (ii) if any such Support Obligation remains outstanding is drawn upon after the Closing, Purchaser shallshall promptly reimburse the Sellers to the extent any Support Obligation is drawn upon and the Sellers or any of their Affiliates makes any payment or is obligated to reimburse the party issuing such Support Obligation for the applicable drawn amount (including any related fees, effective as penalties or interest that may be incurred in connection with the drawing of any such Support Obligation). Furthermore, during the period beginning on the Closing Date and until ending on the earlier date on which the Sellers and their Affiliates no longer directly or indirectly retain, remain liable for or have any credit exposure with respect to any Support Obligation that is not replaced prior to or at Closing, the Buyer shall reimburse (or cause an Acquired Company to reimburse) to the Sellers, on a monthly basis (promptly following the end of release each month and provided reasonable supporting documentation has been provided to the Buyer), the amount of all any out of pocket costs or expenses (including interest required to be paid on the aggregate outstanding amount of such Support Obligations, if any), if any, that the Sellers and their Affiliates, directly or indirectly have paid to the applicable Support Obligation counterparties to maintain in effect such Support Obligations by Sellers(including with respect to any such interest, Duke at a rate equal to the interest rate that the Sellers or their respective Affiliates, as applicable, (a) indemnify, defend or hold harmless, Sellers, Duke, their respective Affiliates and their respective managers, officers, directors, employees, representatives, successors and assigns from and against, and reimburse and compensate them for, any and all Losses (including any out-of-pocket costs and expenses) incurred by any of them relating are responsible to the applicable Support Obligation the release of which did not occur as of the Closing, and not permit any Company Entity to, amend, modify or renew any Contract giving rise pay with respect to such Support Obligations Obligations).
(c) The Sellers (or their applicable Affiliates) shall maintain any Support Obligation that has not been replaced without the prior written consent of Sellers, amendment or modification thereunder (and (bcomply in all material respects with its terms) pay to Sellers the applicable fee indicated on Section 6.12 of the Company Disclosure Schedule, which fee shall be due and payable by Purchaser to Sellers in monthly installments in arrears until the release earlier of all Support Obligations. Notwithstanding anything to (i) the contrary herein, during the Interim Period, Sellers and/or Sellers’ Affiliates (including the Company Entities) shall be entitled, in their sole discretion, to replace Specified Support Obligations currently posted or provided by Duke or its Affiliates with cash deposits, letters of credit, guaranties or performance bonds in amounts not materially greater than the amounts set forth date on Section 6.12 of the Company Disclosure Schedule, which if posted or provided by Sellers or Sellers’ Affiliates other than the Company Entities, shall be treated as Support Obligations required to be it is replaced by Purchaser hereunder; provided that any such replacement cash deposits, letters of credit, guaranties the Buyer or performance bonds shall not be direct obligations of any Company Entitiesis otherwise no longer required or (ii) twelve (12) months after the Closing.
Appears in 1 contract
Support Obligations. With respect to each guarantySupport Obligation, letter of credit, indemnity, performance or surety bond, cash deposit or other credit support arrangement issued by or for (a) Buyer shall use its commercially reasonable efforts prior to the account of the Company Entities and posted or provided by Sellers or Sellers’ Affiliates Closing to (other than the Company Entities), or by Duke or any of its Affiliates, including those items that are listed in Section 6.12 of the Company Disclosure Schedule (collectively, the “Support Obligations”), Purchaser shall furnish or obtain, as of or within 30 Business Days following the Closing, substitute i) obtain credit support arrangements in replacement for substitution of the Support Obligations (including but only to the extent such Support Obligation is required in order to procure the release contemplated by furnishing letters of credit or cash collateralthe immediately succeeding clause (ii) and shall ensure only to the extent of such requirement) and (ii) procure that SellersSeller Parent, Sellers’ Affiliates, Duke Sellers and its their respective Affiliates (as applicable) and, where applicable, their respective sureties or letter of credit issuers issuers, be fully and unconditionally released from their respective obligations under or otherwise with respect to the Support Obligations (with outstanding letters of credit returned by cancellation), in each caseObligations, in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support; provided that, with respect to cash deposits, Sellers may elect to have such collateral not replaced by Purchaser and instead leave such collateral in place as of Closing, provided, further, that Sellers shall, and shall cause their Affiliates (which, for the avoidance of doubt, shall not include Duke or any of its Affiliates) to, reasonably cooperate with Purchaser in connection with the foregoing; provided, further, that, notwithstanding anything in this Agreement to the contrary, Purchaser shall furnish or obtain substitute credit support arrangements in replacement for the Specified Support Obligations, and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) be fully and unconditionally released from their respective obligations under or otherwise with respect to the Specified Support Obligations simultaneously with the Closing, in each case in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support. Notwithstanding Purchaser’s compliance with this Section 6.12, if any such Support Obligation remains outstanding after the Closing, Purchaser shall, effective as of the Closing and until the earlier of release of all Support Obligations by Sellers, Duke or their respective Affiliates, as applicable, (a) indemnify, defend or hold harmless, Sellers, Duke, their respective Affiliates and their respective managers, officers, directors, employees, representatives, successors and assigns from and against, and reimburse and compensate them for, any and all Losses (including any out-of-pocket costs and expenses) incurred by any of them relating to the applicable Support Obligation the release of which did not occur as of the Closing, and not permit any Company Entity to, amend, modify or renew any Contract giving rise to such Support Obligations without the prior written consent of SellersSeller Parent, and (b) pay to if Buyer is not successful, following the use of commercially reasonable efforts, in obtaining the complete and unconditional release of Seller Parent, Sellers the applicable fee indicated on Section 6.12 and their respective Affiliates from any such Support Obligations as of the Company Disclosure ScheduleClosing (each such Support Obligation until such time as such Support Obligation is fully and unconditionally released, a “Continuing Support Obligation”), then from and after the Closing, (i) Buyer shall continue to use commercially reasonable efforts to obtain promptly the full and unconditional release of Seller Parent, Sellers and their respective Affiliates and, where applicable, their respective sureties or letter of credit issuers, from each Continuing Support Obligation, (ii) Buyer 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) Buyer shall not, and shall cause the Purchased Companies and the Purchased Subsidiary not to, effect any amendments or modifications or any other changes to any Contracts or obligations to which fee 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 respective Affiliates under any Continuing Support Obligations without Seller Parent’s prior written consent. Schedule 2.07(c) shall be due and payable amended by Purchaser Seller Parent from time to Sellers in monthly installments in arrears until the release of all Support Obligations. Notwithstanding anything to the contrary herein, time during the Interim PeriodPeriod to add all additional Ordinary Course performance bonds or parent guaranties relating solely to the Business, Sellers and/or Sellers’ Affiliates (including and upon any such performance bond or parent guaranty being added to Schedule 2.07(c) in accordance with the Company Entities) foregoing, such performance bond or parent guaranty shall be entitled, in their sole discretion, to replace Specified Support Obligations currently posted or provided by Duke or its Affiliates with cash deposits, letters of credit, guaranties or performance bonds in amounts not materially greater than the amounts set forth on Section 6.12 of the Company Disclosure Schedule, which if posted or provided by Sellers or Sellers’ Affiliates other than the Company Entities, shall be treated as Support Obligations required deemed to be replaced by Purchaser hereunder; provided that any such replacement cash deposits, letters a Support Obligation for all purposes of credit, guaranties or performance bonds shall not be direct obligations of any Company Entitiesthis Agreement.
Appears in 1 contract
Sources: Equity Purchase Agreement (Casella Waste Systems Inc)
Support Obligations. With respect (a) Prior to each guarantyClosing, letter Buyer shall use commercially reasonable efforts to effect the full and unconditional release, effective as of creditthe Closing, indemnity, performance or surety bond, cash deposit or other of the Sellers and their Affiliates from any credit support arrangement issued by or for the account of the Company Entities and posted or obligations provided by Sellers or Sellers’ such Affiliates (other than with respect to the Company Entities)Acquired Assets or the Business, or by Duke or any of its Affiliates, including those items that which are specifically listed in Section 6.12 of on Schedule 7.4(a) at the Company Disclosure Schedule time required under such schedule (collectively, the “Support Obligations”), Purchaser shall furnish or obtainincluding by offering within a reasonable time in advance of such release replacement bonds, guaranties, letters of credit, cash collateral and/or escrow arrangements, as needed, to effect the replacement of or within 30 Business Days such Support Obligations, in accordance with the applicable requirements of such Support Obligations. Sellers shall reasonably cooperate with Buyer in such effort.
(b) If Buyer is not successful, following the use of commercially reasonable efforts, in obtaining the complete and unconditional release of Sellers and their Affiliates from the LTMA Support Obligations as of Closing, then Sellers shall have the right to waive the condition to Closing set forth in Section 9.3(a); and
(i) from and after the Closing, substitute credit support arrangements in replacement for Buyer shall continue to use commercially reasonable efforts to obtain promptly the full and unconditional release of Sellers and their Affiliates from the LTMA Support Obligations Obligations;
(including by furnishing letters of credit or cash collateralii) and Buyer shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates indemnify Sellers (as applicable) and their Affiliates for any liabilities, losses, costs or expenses incurred by Sellers or their Affiliates in connection with the LTMA Support Obligations arising or accruing after the Closing (excluding any such liabilities, losses, costs or expenses resulting from any breach of the LTMA Support Obligations) by Sellers and their Affiliates;
(iii) Buyer shall not, and shall cause its Affiliates not to, effect any amendments or modifications or any other changes to the contracts or obligations to which any of the LTMA Support Obligations relate, or to otherwise take any action that in either case would reasonably be expected to increase, extend or accelerate the liability of either Seller or their Affiliates under the LTMA Support Obligations, without such Seller’s prior written consent; and
(iv) Buyer shall deliver to Sellers at the Closing and maintain at all times thereafter until the full and unconditional release of the LTMA Support Obligations in accordance with this Section 7.4, where applicableat Sellers’ election, their sureties or either (A) an irrevocable, standby letter of credit issuers be fully in the amount of the maximum amount of exposure under the LTMA Support Obligations, in form and unconditionally released substance and from their respective an issuing bank reasonably satisfactory to Sellers or (B) a guaranty of the Buyer’s obligations under or otherwise hereunder with respect to the LTMA Support Obligations (from a Person with outstanding letters a Credit Rating of credit returned by cancellation)Investment Grade, in each case, which guarantee shall be in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support; provided that, with respect to cash deposits, Sellers may elect to have such collateral not replaced by Purchaser and instead leave such collateral in place as of Closing, provided, further, that Sellers shall, and shall cause their Affiliates (which, for the avoidance of doubt, shall not include Duke or any of its Affiliates) to, reasonably cooperate with Purchaser in connection with the foregoing; provided, further, that, notwithstanding anything in this Agreement to the contrary, Purchaser shall furnish or obtain substitute credit support arrangements in replacement for the Specified Support Obligations, and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) be fully and unconditionally released from their respective obligations under or otherwise with respect to the Specified Support Obligations simultaneously with the Closing, in each case in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support. Notwithstanding Purchaser’s compliance with this Section 6.12, if any such Support Obligation remains outstanding after the Closing, Purchaser shall, effective as of the Closing and until the earlier of release of all Support Obligations by Sellers, Duke or their respective Affiliates, as applicable, (a) indemnify, defend or hold harmless, Sellers, Duke, their respective Affiliates and their respective managers, officers, directors, employees, representatives, successors and assigns from and against, and reimburse and compensate them for, any and all Losses (including any out-of-pocket costs and expenses) incurred by any of them relating to the applicable Support Obligation the release of which did not occur as of the Closing, and not permit any Company Entity to, amend, modify or renew any Contract giving rise to such Support Obligations without the prior written consent of Sellers, and (b) pay to Sellers the applicable fee indicated on Section 6.12 of the Company Disclosure Schedule, which fee shall be due and payable by Purchaser to Sellers in monthly installments in arrears until the release of all Support Obligations. Notwithstanding anything to the contrary herein, during the Interim Period, Sellers and/or Sellers’ Affiliates (including the Company Entities) shall be entitled, in their sole discretion, to replace Specified Support Obligations currently posted or provided by Duke or its Affiliates with cash deposits, letters of credit, guaranties or performance bonds in amounts not materially greater than the amounts set forth on Section 6.12 of the Company Disclosure Schedule, which if posted or provided by Sellers or Sellers’ Affiliates other than the Company Entities, shall be treated as Support Obligations required to be replaced by Purchaser hereunder; provided that any such replacement cash deposits, letters of credit, guaranties or performance bonds shall not be direct obligations of any Company Entities.
Appears in 1 contract
Support Obligations. (i) Buyer recognizes that the Credit Support Obligors have provided the Support Obligations to or on behalf of the Company.
(ii) Buyer shall use commercially reasonable efforts to replace the Support Obligations with credit support provided by Buyer and its Affiliates in types and amounts no less favorable to Buyer and its Affiliates than the types and amounts set forth on Schedule 4R of the Company Disclosure Letter and to effect the full and unconditional release of the relevant Credit Support Obligors from the relevant Support Obligations and all obligations and liabilities in respect thereof, which replacement credit support may include:
(a) furnishing a letter of credit to replace each existing letter of credit that is a Support Obligation;
(b) providing a guaranty from Buyer Guarantor to replace each existing guaranty that is a Support Obligation; or
(c) instituting an escrow arrangement or posting a surety or performance bond, or otherwise novating, assigning or replacing any other Support Obligation, in the case of each of subparagraphs (a), (b) and (c), subject to the terms and provisions of this Section 6C. 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 obtain or effect any release of Support Obligations contemplated by this Section 6C.
(iii) In connection with the release of Support Obligations contemplated by this Section 6C, Buyer and Seller shall cooperate, and each shall use their commercially reasonable efforts, to cause the beneficiary or beneficiaries of such Support Obligations to (a) remit any cash and cash equivalents (including any interest payable thereon) to the Credit Support Obligor or its designee held under any escrow or cash collateral arrangement that is a Support Obligation promptly following the replacement of such escrow or cash collateral arrangement pursuant to Section 6C(ii) and (b) terminate, surrender and redeliver to the Credit Support Obligor or its designees each original copy of each such Support Obligation.
(iv) With respect to each guarantySupport Obligation that has not been replaced pursuant to Section 6C(ii) by the Closing Date, then:
(a) Buyer shall indemnify Seller and the applicable Credit Support Obligor for any Losses incurred by such Person in connection with each Support Obligation to the extent, and only to the extent, relating exclusively to the Company and attributable to the period commencing at or after the Closing (including reimbursement as promptly as reasonably practicable following demand therefor (which demand will include reasonable supporting documentation) with respect to any demand or draw upon, or withdrawal from, any Support Obligation);
(b) Buyer shall not, and shall cause its Affiliates, including the Company, not to, after the Closing, effect any amendments or modifications or any other changes to, assign, authorize or transfer to a third party, any Contracts or obligations to which any of the Support Obligations relate, or otherwise take any action that would increase, extend or accelerate the liability of any Credit Support Obligor under any Support Obligation, without Seller’s prior written consent;
(c) to the extent and only to the extent that any Credit Support Obligor has any performance obligations under any Support Obligations attributable to the period commencing at or after the Closing Date, Buyer shall (I) at any Credit Support Obligor’s written request and without creating any agency relationship or agency liability in respect thereof, perform such obligations of such Credit Support Obligor to the maximum extent practicable, and (II) otherwise take such actions as may be requested from time to time by the applicable Credit Support Obligor so as to put such Credit Support Obligor in the same position as if Buyer had performed or was performing such obligations; and
(d) Buyer shall deliver to Seller, on behalf of itself and its Affiliates at the Closing, and will maintain at all times after the Closing until the release of each Support Obligation in accordance with this Section 6C, a letter of credit, indemnity, performance credit or surety bond, cash deposit guaranty or other credit support arrangement issued by or for in a form reasonably acceptable to Seller from a third party reasonably acceptable to Seller in an amount equal to the account maximum amount of all outstanding Support Obligations, it being understood that (I) the Company Entities Buyer Guaranty shall satisfy the foregoing obligation and posted or provided by Sellers or Sellers’ Affiliates (II) Seller may reject any such credit support from any Person (other than the Company Entities)Buyer Guarantor) that maintains, or by Duke or any of its Affiliates, including those items that are listed has maintained in Section 6.12 of the Company Disclosure Schedule (collectively, the “Support Obligations”), Purchaser shall furnish or obtain, as of or within 30 Business Days following the Closing, substitute credit support arrangements in replacement for the Support Obligations (including by furnishing letters of credit or cash collateral) and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) and, where applicable, their sureties or letter of credit issuers be fully and unconditionally released from their respective obligations under or otherwise with respect to the Support Obligations (with outstanding letters of credit returned by cancellation), in each case, in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support; provided that, with respect to cash deposits, Sellers may elect to have such collateral not replaced by Purchaser and instead leave such collateral in place as of Closing, provided, further, that Sellers shall, and shall cause their Affiliates (which, for the avoidance of doubt, shall not include Duke or any of its Affiliates) to, reasonably cooperate with Purchaser in connection with the foregoing; provided, further, that, notwithstanding anything in this Agreement to the contrary, Purchaser shall furnish or obtain substitute credit support arrangements in replacement for the Specified Support Obligations, and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) be fully and unconditionally released from their respective obligations under or otherwise with respect to the Specified Support Obligations simultaneously with the Closing, in each case in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support. Notwithstanding Purchaser’s compliance with this Section 6.12, if any such Support Obligation remains outstanding after the Closing, Purchaser shall, effective as of the Closing and until the earlier of release of all Support Obligations by Sellers, Duke or their respective Affiliates, as applicable, (a) indemnify, defend or hold harmless, Sellers, Duke, their respective Affiliates and their respective managers, officers, directors, employees, representatives, successors and assigns from and against, and reimburse and compensate them for, any and all Losses (including any out-of-pocket costs and expenses) incurred by any of them relating to the applicable Support Obligation the release of which did not occur as of the Closing, and not permit any Company Entity to, amend, modify or renew any Contract giving rise to such Support Obligations without the prior written consent of Sellerssix (6) months, and (b) pay to Sellers the applicable fee indicated on Section 6.12 of the Company Disclosure Schedule, which fee shall be due and payable by Purchaser to Sellers in monthly installments in arrears until the release of all Support Obligations. Notwithstanding anything to the contrary herein, during the Interim Period, Sellers and/or Sellers’ Affiliates (including the Company Entities) shall be entitled, in their sole discretion, to replace Specified Support Obligations currently posted or provided by Duke or its Affiliates with cash deposits, letters of credit, guaranties or performance bonds in amounts not materially greater less than the amounts set forth on Section 6.12 of the Company Disclosure Schedule, which if posted or provided by Sellers or Sellers’ Affiliates other than the Company Entities, shall be treated as Support Obligations required to be replaced by Purchaser hereunder; provided that any such replacement cash deposits, letters of credit, guaranties or performance bonds shall not be direct obligations of any Company Entitiesan Investment Grade credit rating.
Appears in 1 contract
Sources: Purchase and Sale Agreement (New Jersey Resources Corp)
Support Obligations. (a) With respect to each guaranty, letter of credit, indemnity, performance or surety bond, cash deposit lien structure or other similar credit support arrangement issued by or for the account of the any Acquired Company Entities and posted or provided by Sellers or Sellers’ Affiliates (other than the Company Entities), or by Duke or any of its Affiliates, including those items that are is listed in Section 6.12 6.10(a) of the Company Seller Disclosure Schedule or, if not required to be issued as of the date of this Agreement, are otherwise required pursuant to the terms of the Material Contracts as described in Section 6.10(a) of the Seller Disclosure Schedule (collectively, the “Support Obligations”), the Purchaser shall furnish or use commercially reasonable efforts (and the Seller shall reasonably cooperate with the Purchaser’s efforts) to obtain, as of or within 30 Business Days following prior to the Closing, substitute credit support arrangements in replacement for the Support Obligations (including by furnishing letters of credit or cash collateral) and shall ensure to procure that Sellersthe Seller, Sellers’ Affiliates, Duke and its Affiliates (as applicable) and, where applicable, their sureties or letter of credit issuers be fully and unconditionally released from their respective obligations under or otherwise with respect to the Support Obligations (with outstanding letters of credit returned by cancellation)Obligations, in each case, in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit supportSeller; provided that, without limiting the Purchaser’s obligations under this Section 6.10(a), the Purchaser shall be required to offer to provide (i) a letter of credit in favor of General Electric International, Inc. in the amount of $10,000,000 with respect to cash depositsthe ▇▇▇▇▇▇▇▇▇ LTSA and (ii) a letter of credit in favor of General Electric International, Sellers may elect Inc. in the amount of $7,000,000 with respect to have the ▇▇▇▇ LTSA.
(b) If the Purchaser, despite using commercially reasonable efforts, is unable (i) to obtain such collateral not replaced by Purchaser and instead leave such collateral in place as release of the Seller, its Affiliates and, where applicable, their sureties or letter of credit issuers prior to the Closing, provided, further, that Sellers shall, and shall cause their Affiliates or (which, for the avoidance of doubt, shall not include Duke or any of its Affiliatesii) to, reasonably cooperate with Purchaser in connection with the foregoing; provided, further, that, notwithstanding anything in this Agreement to the contrary, Purchaser shall furnish or obtain deliver such substitute credit support arrangements in replacement for the Specified Support Obligations, then the Seller shall maintain, or cause to be maintained, such Support Obligations for up to a period of twelve (12) months after the Closing Date, in the amount, for the term and in the form required pursuant to the applicable Contract or Law (as in effect as of Closing) under which such Support Obligation was provided, and the Purchaser shall ensure (A) provide the Seller letters of credit, in form and substance reasonably acceptable to the Seller, that Sellers, Sellers’ can be drawn upon to reimburse the Seller or its Affiliates, Duke as applicable, for any draw on such Support Obligations occurring after the Closing, (B) indemnify, defend and hold harmless the Seller and its Affiliates from and against any and all Liabilities incurred by the Seller or its Affiliates in connection with such Support Obligations from and after Closing (as including the payment of any reasonable, documented out-of-pocket costs incurred by the Seller or its Affiliates in maintaining such Support Obligation) and (C) use commercially reasonable efforts to procure that the Seller, its Affiliates and, where applicable) , their sureties or letter of credit issuers be fully and unconditionally released from their respective obligations under or otherwise with respect to the Specified Support Obligations simultaneously with the Closing, in each case in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support. Notwithstanding Purchaser’s compliance with this Section 6.12, if any such Support Obligation remains outstanding as soon as practicable after the Closing, Purchaser shall, effective as of . On the Closing and until date that is the earlier of release of all Support Obligations by Sellers, Duke or their respective Affiliates, as applicable, twelve (a12) indemnify, defend or hold harmless, Sellers, Duke, their respective Affiliates months after the Closing Date and their respective managers, officers, directors, employees, representatives, successors and assigns from and against, and reimburse and compensate them for, any and all Losses (including any out-of-pocket costs and expenses) incurred by any of them relating to the date on which the applicable Support Obligation is replaced by the Purchaser, the Seller shall terminate, or shall cause the termination of, any applicable Support Obligations for which Purchaser has not obtained such substitution, termination or release as contemplated by this Section 6.10 (“Terminated Credit Support”), and at such time the Seller shall cause any letter of which did not occur as credit provided to the Seller pursuant to this Section 6.10 to be immediately terminated and promptly returned to the Purchaser pursuant to documentation reasonably requested by the Purchaser. Without limiting the Purchaser’s obligations under clause (B) above, if the Seller or an Affiliate thereof incurs any liability or cost after the Closing in connection with the Terminated Credit Support (including for breach of the Closing, and not permit any Company Entity to, amend, modify or renew any Contract giving rise obligation to such maintain Support Obligations without on and after the prior written consent date that is twelve (12) months after the Closing Date), Purchaser shall indemnify, defend and hold harmless Seller and its Affiliates from and against any and all Liabilities incurred by Seller or its Affiliates in connection with the Terminated Credit Support.
(c) For the avoidance of Sellersdoubt (i) any substitute credit support arrangements shall not be taken into account for purposes of determining the Purchase Price, and (bii) pay nothing in this Section 6.10 shall require Seller to Sellers extend the applicable fee indicated on Section 6.12 term of the Company Disclosure Schedule, which fee shall be due and payable by Purchaser to Sellers in monthly installments in arrears until the release of all Support Obligations. Notwithstanding anything to the contrary herein, during the Interim Period, Sellers and/or Sellers’ Affiliates (including the Company Entities) shall be entitled, in their sole discretion, to replace Specified any Support Obligations currently posted or provided by Duke or its Affiliates beyond the date of which such Credit Support would otherwise expire in accordance with cash deposits, letters of credit, guaranties or performance bonds in amounts not materially greater than the amounts set forth on Section 6.12 of the Company Disclosure Schedule, which if posted or provided by Sellers or Sellers’ Affiliates other than the Company Entities, shall be treated as Support Obligations required to be replaced by Purchaser hereunder; provided that any such replacement cash deposits, letters of credit, guaranties or performance bonds shall not be direct obligations of any Company Entitiesterms thereof.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Dynegy Inc.)
Support Obligations. With respect to each guaranty, letter of credit, indemnity, performance or surety bond, cash deposit or other credit support arrangement issued by or for the account of the Company Entities and posted or provided by Sellers or Sellers’ Affiliates (other than the Company Entities), or by Duke or any of its Affiliates, including those items that are listed in Section 6.12 of the Company Disclosure Schedule (collectively, the “Support Obligations”), Clearway Purchaser shall furnish or obtain, as of or within 30 Business Days following the Closing, substitute credit support arrangements in replacement for the Support Obligations (including by furnishing letters of credit or cash collateral) and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) and, where applicable, their sureties or letter of credit issuers be fully and unconditionally released from their respective obligations under or otherwise with respect to the Support Obligations (with outstanding letters of credit returned by cancellation), in each case, in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support; provided that, with respect to cash deposits, Sellers may elect to have such collateral not replaced by Clearway Purchaser and instead leave such collateral in place as of Closing, provided, further, that Sellers shall, and shall cause their Affiliates (which, for the avoidance of doubt, shall not include Duke or any of its Affiliates) to, reasonably cooperate with Clearway Purchaser in connection with the foregoing; provided, further, that, notwithstanding anything in this Agreement to the contrary, Clearway Purchaser shall furnish or obtain substitute credit support arrangements in replacement for the Specified Support Obligations, and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) be fully and unconditionally released from their respective obligations under or otherwise with respect to the Specified Support Obligations simultaneously with the Closing, in each case in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support. Notwithstanding Clearway Purchaser’s compliance with this Section 6.12, if any such Support Obligation remains outstanding after the Closing, Clearway Purchaser shall, effective as of the Closing and until the earlier of release of all Support Obligations by Sellers, Duke or their respective Affiliates, as applicable, (a) indemnify, defend or hold harmless, Sellers, Duke, their respective Affiliates and their respective managers, officers, directors, employees, representatives, successors and assigns from and against, and reimburse and compensate them for, any and all Losses (including any out-of-pocket costs and expenses) incurred by any of them relating to the applicable Support Obligation the release of which did not occur as of the Closing, and not permit any Company Entity to, amend, modify or renew any Contract giving rise to such Support Obligations without the prior written consent of Sellers, and (b) pay to Sellers the applicable fee indicated on Section 6.12 of the Company Disclosure Schedule, which fee shall be due and payable by Clearway Purchaser to Sellers in monthly installments in arrears until the release of all Support Obligations. Notwithstanding anything to the contrary herein, during the Interim Period, Sellers and/or Sellers’ Affiliates (including the Company Entities) shall be entitled, in their sole discretion, to replace Specified Support Obligations currently posted or provided by Duke or its Affiliates with cash deposits, letters of credit, guaranties or performance bonds in amounts not materially greater than the amounts set forth on Section 6.12 of the Company Disclosure Schedule, which if posted or provided by Sellers or Sellers’ Affiliates other than the Company Entities, shall be treated as Support Obligations required to be replaced by Clearway Purchaser hereunder; provided that any such replacement cash deposits, letters of credit, guaranties or performance bonds shall not be direct obligations of any Company Entities.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Clearway Energy, Inc.)
Support Obligations. With Purchaser shall use its reasonable best efforts to cause itself, one of its Affiliates or, in connection with the Closing and to be effective after the Closing, an Acquired Company, to be substituted in all respects for Sellers and any of their Affiliates, and for Sellers and their Affiliates to be unconditionally released, effective as of the Closing, in respect of, or otherwise terminate (and cause Sellers and their Affiliates to be unconditionally released in respect of), all obligations of Sellers and any of their Affiliates under each guarantyof the guarantees, letter indemnities, letters of credit, indemnityletters of comfort, performance or surety bondcommitments, cash deposit or understandings, agreements and other credit support arrangement issued by or for the account obligations of such Persons related to an Acquired Company that are set forth on Section 4.9 of the Company Entities and posted or provided by Sellers or Sellers’ Affiliates (other than the Company Entities), or by Duke or any of its Affiliates, including those items that are listed in Section 6.12 of the Company Disclosure Schedule Letter (collectively, the “Substituted Support Obligations”), Purchaser . The Substituted Support Obligations shall furnish include any and all new or obtain, as of or within 30 Business Days following the Closing, substitute replacement credit support arrangements obligations or any modification or increase in replacement for the Substituted Support Obligations (including by furnishing letters set forth on Section 4.9 of credit or cash collateral) the Sellers Disclosure Letter and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) and, where applicable, their sureties or letter all of credit issuers be fully and unconditionally released from their respective Purchaser’s obligations under or otherwise this Section 4.9 shall apply with respect to the Support Obligations (with outstanding letters of credit returned by cancellation)thereto, in each case, in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support; provided that, with respect without Purchaser’s prior written consent, neither Seller nor any of its Affiliates may enter into or execute any new credit support obligation if as a result of such new credit support obligation relating to cash depositsthe business of the Acquired Companies, Sellers may elect to have such collateral not replaced by Purchaser and instead leave such collateral in place the aggregate amount of Substituted Support Obligations as of Closingthe Closing would be increased by more than $25,000,000 as compared to the amount of Substituted Support Obligations as of the date hereof. For any of the guarantees, providedindemnities, furtherletters of credit, that letters of comfort, commitments, understandings, agreements and other obligations of Sellers shalland any of their Affiliates related to an Acquired Company for which Purchaser or the Acquired Company, as applicable, is not substituted in all respects for Sellers and shall cause their Affiliates (which, or for the avoidance of doubt, shall which Sellers and their Affiliates are not include Duke or any of its Affiliatesunconditionally released) to, reasonably cooperate with Purchaser in connection with the foregoing; provided, further, that, notwithstanding anything in this Agreement to the contrary, Purchaser shall furnish or obtain substitute credit support arrangements in replacement for the Specified Support Obligations, and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) be fully and unconditionally released from their respective obligations under or otherwise with respect to the Specified Support Obligations simultaneously with the Closing, in each case in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support. Notwithstanding Purchaser’s compliance with this Section 6.12, if any such Support Obligation remains outstanding after the Closing, Purchaser shall, effective as of the Closing and until that cannot otherwise be terminated effective as of the earlier of release of all Support Obligations by Sellers, Duke or Closing without causing an adverse effect on an Acquired Company (with Sellers and their respective Affiliates, as applicableAffiliates to be unconditionally released in respect thereof), (a) indemnifySellers shall, defend or hold harmless, Sellers, Duke, shall cause their respective applicable Affiliates and their respective managers, officers, directors, employees, representatives, successors and assigns from and against, and reimburse and compensate them for, any and all Losses (including any out-of-pocket costs and expenses) incurred by any of them relating to the applicable Support Obligation the release of which did not occur as of the Closing, and not permit any Company Entity to, amend, modify or renew any Contract giving rise to keep in place such Substituted Support Obligations without the prior written consent of Sellers(“Continuing Support Obligations”), and (b) pay Purchaser shall continue to Sellers the applicable fee indicated on Section 6.12 of the use its reasonable best efforts and shall cause each Acquired Company Disclosure Schedule, which fee shall be due to use its reasonable best efforts to effect such substitution or termination and payable by Purchaser to Sellers in monthly installments in arrears until the unconditional release of all Support Obligations. Notwithstanding anything with respect to the contrary herein, during Continuing Support Obligations as promptly as practical after the Interim Period, Closing and (c) Purchaser shall reimburse Sellers and/or Sellers’ for all documented amounts paid or incurred by Sellers or their Affiliates (including other than the Company EntitiesAcquired Companies) shall be entitledto the extent any guarantees, in their sole discretion, to replace Specified Support Obligations currently posted or provided by Duke or its Affiliates with cash depositsindemnities, letters of credit, guaranties letters of comfort, commitments, understandings, agreements and other obligations are called upon and Sellers or performance bonds any such Affiliates make any payment or are obligated to reimburse the issuing party thereof. In addition, commencing on the date that is six months after the Closing Date, on the last Business Day of each three-month period ending thereafter, until such time as no Continuing Support Obligations remain outstanding, Purchaser shall pay Sellers or their designees a fee in amounts not materially greater than respect of each Continuing Support Obligation equal to the amount of customary and market fees Sellers or its applicable Affiliate would have reasonably incurred if it posted a letter of credit in respect of the amounts set forth on covered by such Continuing Support Obligation for such three-month period (or, with respect to any Continuing Support Obligation outstanding for a portion, but not all, of such three-month period, for such portion of such three-month period). Without limiting the foregoing, neither Purchaser nor any of its Affiliates (including after the Closing the Acquired Companies) shall extend or renew any Contract containing or underlying a Continuing Support Obligation unless, prior to or concurrently with such extension or renewal, Purchaser or one of its Affiliates (including the Acquired Companies) is substituted in all respects for Sellers and any of their Affiliates under such Continuing Support Obligation. For purposes of this Section 6.12 4.9, “reasonable best efforts” shall include offering to provide to the applicable beneficiary of the Company Disclosure Schedulea Substituted Support Obligation, which if posted or provided by Sellers or Sellers’ Affiliates other than the Company Entitiesand providing such beneficiary, shall be treated as Support Obligations required to be replaced by Purchaser hereunder; provided that any such replacement cash depositsguarantees, indemnities, letters of credit, guaranties or performance bonds shall not be direct letters of comfort, commitments, understandings, agreements and other obligations of any Company Entitiesas are substantially similar in form and substance to the Substituted Support Obligations.
Appears in 1 contract
Support Obligations. With (e) The Purchaser recognizes that AQ Seller and certain of its Affiliates have provided credit support to the Company, its Subsidiaries and the SRO Business and may (but shall not be obligated to) provide other credit support in connection with the transactions contemplated by this Agreement (including with respect to each guaranty, letter the letters of credit, indemnity, performance or surety bond, cash deposit or guarantees and other credit support arrangement issued Support Obligations contemplated by or for the account of the Company Entities and posted or provided by Sellers or Sellers’ Affiliates (other than the Company EntitiesSchedule 12.06(a), or by Duke or any of its Affiliates, including those items that are listed in Section 6.12 of the Company Disclosure Schedule (collectively, the “Support Obligations”). The Purchaser shall, and shall cause its Affiliates to, (i) use reasonable best efforts with respect to all Support Obligations that relate primarily to the SRO Business, obtain the full and unconditional release of AQ Seller and its Affiliates thereunder with no further obligation, Liabilities or Losses to AQ Seller or any of its Affiliates and (ii) with respect to Support Obligations that are not primarily related to the SRO Business but that relate to both the SRO Business and the remaining businesses of AQ Holdings and its Subsidiaries (other than the Company and its Subsidiaries), use reasonable best efforts to obtain the full and unconditional release of AQ Seller and its Affiliates from the portion of such Support Obligations as relate, in whole or in part, to the SRO Business, in each case effective either on the Closing Date or on a date as soon as reasonably practicable thereafter. The Purchaser shall furnish indemnify and hold harmless the Sellers and their Affiliates from any Losses arising from the fact that the Purchaser is unable to obtain releases contemplated by this Section 12.06(a) prior to the Closing.
(f) The Purchaser shall, and shall cause its Affiliates to, use its reasonable best efforts to cause the beneficiary or obtainbeneficiaries of the Support Obligations to terminate and redeliver to AQ Seller or its Affiliates, as applicable, as soon as practicable, each original copy of each original guaranty, letter of credit or within 30 Business Days following other instrument constituting or evidencing the Support Obligations referred to in Section 12.06(a) above, as well as to redeliver to AQ Seller and its Affiliates, any cash collateral or other collateral in respect of such Support Obligations and, as to any Support Obligations terminated after the Closing, substitute credit support arrangements in replacement for the Support Obligations (including by furnishing letters of credit promptly to redeliver such originals or cash collateral) and shall ensure that Sellers, Sellers’ Affiliates, Duke and to AQ Seller or its Affiliates (other than the Company and its Subsidiaries), as applicable) , and, where applicable, their sureties or letter of credit issuers be fully and unconditionally released from their respective obligations under or otherwise with respect to the Support Obligations (with outstanding letters of credit returned by cancellation), in each case, cooperate and take such other actions as may be reasonably required to terminate or otherwise relieve AQ Seller and its Affiliates (other than the Company and its Subsidiaries) of such Support Obligations as relate, in form whole or in part to the SRO Business, including executing and substance reasonably satisfactory delivering any assumption agreements required by the counterparties to Sellers or any Support Obligations (e.g., insurers).
(g) At the beneficiary of Sellers’ credit support; provided that, with respect Purchaser’s written request prior to cash deposits, Sellers may elect to have such collateral not replaced by Purchaser and instead leave such collateral in place as of the Closing, provided, further, that Sellers shall, and AQ Seller shall cause their Affiliates (which, for the avoidance of doubt, shall not include Duke or any of its Affiliates) to, reasonably cooperate with the Purchaser in any reasonable manner in connection with the foregoingcovenants of the Purchaser described in Section 12.06(a) and Section 12.06(b); provided, further, that, notwithstanding anything in this Agreement to the contrary, Purchaser shall furnish or obtain substitute credit support arrangements in replacement for the Specified Support Obligations, and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) be fully and unconditionally released from their respective obligations under or otherwise with respect to the Specified Support Obligations simultaneously with the Closing, in each case in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support. Notwithstanding Purchaser’s compliance with this Section 6.12, if any such Support Obligation remains outstanding after the Closing, Purchaser shall, effective as of the Closing and until the earlier of release of all Support Obligations by Sellers, Duke or their respective Affiliates, as applicable, (a) indemnify, defend or hold harmless, Sellers, Duke, their respective Affiliates and their respective managers, officers, directors, employees, representatives, successors and assigns from and against, and reimburse and compensate them for, any and all Losses (including any out-of-pocket costs and expenses) incurred by any of them relating to the applicable Support Obligation the release of which did not occur as of the Closing, and not permit any Company Entity to, amend, modify or renew any Contract giving rise to such Support Obligations without the prior written consent of Sellers, and (b) pay to Sellers the applicable fee indicated on Section 6.12 of the Company Disclosure Schedule, which fee shall be due and payable by Purchaser to Sellers in monthly installments in arrears until the release of all Support Obligations. Notwithstanding anything to the contrary herein, during the Interim Period, Sellers and/or Sellers’ Affiliates (including the Company Entities) shall be entitled, in their sole discretion, to replace Specified Support Obligations currently posted or provided by Duke or its Affiliates with cash deposits, letters of credit, guaranties or performance bonds in amounts not materially greater than the amounts set forth on Section 6.12 of the Company Disclosure Schedule, which if posted or provided by Sellers or Sellers’ Affiliates other than the Company Entities, shall be treated as Support Obligations required to be replaced by Purchaser hereunder; provided that any such replacement cash deposits, letters of credit, guaranties or performance bonds cooperation shall not be direct obligations include any requirement of AQ Seller to expend money, commence any Company Entitieslitigation or arbitration proceeding or offer or grant any accommodation (financial or otherwise) to any third party.
Appears in 1 contract
Support Obligations. With Purchaser shall use its reasonable best efforts to cause itself, one of its Affiliates or, in connection with the Closing and to be effective after the Closing, an Acquired Company, to be substituted in all respects for Sellers and any of their Affiliates, and for Sellers and their Affiliates to be unconditionally released, effective as of the Closing, in respect of, or otherwise terminate (and cause Sellers and their Affiliates to be unconditionally released in respect of), all obligations of Sellers and any of their Affiliates under each guarantyof the guarantees, letter indemnities, letters of credit, indemnityletters of comfort, performance or surety bondcommitments, cash deposit or understandings, agreements and other credit support arrangement issued by or for the account obligations of such Persons related to an Acquired Company that are set forth on Section 4.9 of the Company Entities and posted or provided by Sellers or Sellers’ Affiliates (other than the Company Entities), or by Duke or any of its Affiliates, including those items that are listed in Section 6.12 of the Company Disclosure Schedule Letter (collectively, the “Substituted Support Obligations”), Purchaser . The Substituted Support Obligations shall furnish include any and all new or obtain, as of or within 30 Business Days following the Closing, substitute replacement credit support arrangements obligations or any modification or increase in replacement for the Substituted Support Obligations (including by furnishing letters set forth on Section 4.9 of credit or cash collateral) the Sellers Disclosure Letter and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) and, where applicable, their sureties or letter all of credit issuers be fully and unconditionally released from their respective Purchaser’s obligations under or otherwise this Section 4.9 shall apply with respect to the Support Obligations (with outstanding letters of credit returned by cancellation)thereto, in each case, in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support; provided that, with respect without Purchaser’s prior written consent, neither Seller nor any of its Affiliates may enter into or execute any new credit support obligation if as a result of such new credit support obligation relating to cash depositsthe business of the Acquired Companies, Sellers may elect to have such collateral not replaced by Purchaser and instead leave such collateral in place the aggregate amount of Substituted Support Obligations as of Closingthe Closing would be increased by more than $25,000,000 as compared to the amount of Substituted Support Obligations as of the date hereof. For any of the guarantees, providedindemnities, furtherletters of credit, that letters of comfort, commitments, understandings, agreements and other obligations of Sellers shalland any of their Affiliates related to an Acquired Company for which Purchaser or the Acquired Company, as applicable, is not substituted in all respects for Sellers and shall cause their Affiliates (which, or for the avoidance of doubt, shall which Sellers and their Affiliates are not include Duke or any of its Affiliatesunconditionally released) to, reasonably cooperate with Purchaser in connection with the foregoing; provided, further, that, notwithstanding anything in this Agreement to the contrary, Purchaser shall furnish or obtain substitute credit support arrangements in replacement for the Specified Support Obligations, and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) be fully and unconditionally released from their respective obligations under or otherwise with respect to the Specified Support Obligations simultaneously with the Closing, in each case in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support. Notwithstanding Purchaser’s compliance with this Section 6.12, if any such Support Obligation remains outstanding after the Closing, Purchaser shall, effective as of the Closing and until that cannot otherwise be terminated effective as of the earlier of release of all Support Obligations by Sellers, Duke or Closing without causing an adverse effect on an Acquired Company (with Sellers and their respective Affiliates, as applicableAffiliates to be unconditionally released in respect thereof), (a) indemnifySellers shall, defend or hold harmless, Sellers, Duke, shall cause their respective applicable Affiliates and their respective managers, officers, directors, employees, representatives, successors and assigns from and against, and reimburse and compensate them for, any and all Losses (including any out-of-pocket costs and expenses) incurred by any of them relating to the applicable Support Obligation the release of which did not occur as of the Closing, and not permit any Company Entity to, amend, modify or renew any Contract giving rise to keep in place such Substituted Support Obligations without the prior written consent of Sellers, and (b) pay to Sellers the applicable fee indicated on Section 6.12 of the Company Disclosure Schedule, which fee shall be due and payable by Purchaser to Sellers in monthly installments in arrears until the release of all “Continuing Support Obligations. Notwithstanding anything to the contrary herein, during the Interim Period, Sellers and/or Sellers’ Affiliates (including the Company Entities) shall be entitled, in their sole discretion, to replace Specified Support Obligations currently posted or provided by Duke or its Affiliates with cash deposits, letters of credit, guaranties or performance bonds in amounts not materially greater than the amounts set forth on Section 6.12 of the Company Disclosure Schedule, which if posted or provided by Sellers or Sellers’ Affiliates other than the Company Entities, shall be treated as Support Obligations required to be replaced by Purchaser hereunder; provided that any such replacement cash deposits, letters of credit, guaranties or performance bonds shall not be direct obligations of any Company Entities.”),
Appears in 1 contract
Sources: Stock Purchase Agreement (Algonquin Power & Utilities Corp.)
Support Obligations. With (a) Purchaser shall use commercially reasonable efforts to replace and effect the release of, effective as of the Closing, the non-cash credit support obligations provided with respect to the Companies and the Facilities listed on Section 6.12 of the Disclosure Letter (the “Non-Cash Credit Support Obligations”), including by:
(i) furnishing a letter of credit to replace each guaranty, existing letter of credit that is a Non-Cash Credit Support Obligation containing terms and conditions that are substantially similar to the terms and conditions of such existing letter of credit, indemnityor otherwise reasonably acceptable to Purchaser, performance and from an Acceptable LOC Bank; and
(ii) with respect to the Non-Cash Credit Support Obligations consisting of guarantees on Section 6.12 of the Disclosure Letter, offering to provide a letter of credit from an Acceptable LOC Bank in replacement of such guarantee in an amount up to the maximum amount set forth under “Subject Amount” next to such guarantee on Section 6.12 of the Disclosure Letter.
(b) If Purchaser is not successful, following the use of commercially reasonable efforts, in obtaining the release of a Non-Company Affiliate from any Non-Cash Credit Support Obligations prior to the Closing (each such Non-Cash Credit Support Obligation, until such time as such Non-Cash Credit Support Obligation is released in accordance with Section 6.12(b)(i), a “Continuing Support Obligation”) then, from and after the Closing:
(i) Purchaser shall continue to use its commercially reasonable efforts to obtain the release of the applicable Non-Company Affiliate from such Continuing Support Obligation;
(ii) Purchaser shall deliver to Calpine at the Closing, and maintain at all times until the release of such Continuing Support Obligation in accordance with Section 6.12(b)(i), a letter of credit reasonably satisfactory to Calpine from an Acceptable LOC Bank in an amount equal to the maximum amount set forth under “Subject Amount” next to such Continuing Support Obligation on Section 6.12 of the Disclosure Letter, which letter of credit shall terminate when such Continuing Support Obligation is released or surety bondexpires by its terms;
(iii) during the period that Calpine has any Continuing Support Obligations outstanding in the form of letters of credit following the thirtieth (30th) day after Closing, cash deposit or other Purchaser, commencing from and after such thirtieth (30th) day, shall pay Calpine a credit support arrangement issued by fee equal to 2.5% per annum on the aggregate “Subject Amount” outstanding with respect to such letters of credit which shall be payable on a monthly basis within ten (10) days of receipt of an invoice from Calpine;
(iv) for any Continuing Support Obligations which constitute guarantees, Purchaser shall indemnify and hold Calpine harmless from any Losses incurred under such guarantees after Closing; and
(v) Purchaser shall not amend, modify, renew or for the account extend any of the Company Entities and posted underlying Contracts with respect to (or provided by Sellers requiring) such Continuing Support Obligations in any manner that increases or Sellers’ Affiliates (other than the Company Entities), or by Duke extends Calpine’s or any of its Affiliates’ exposure thereunder; and in addition, including those items that are listed Sellers shall have no obligation to amend, modify or extend any letter of credit which remains in Section 6.12 place after Closing (and may cause the termination of the Company Disclosure Schedule (collectively, the any “Support Obligations”), Purchaser shall furnish or obtain, as of or within 30 Business Days following the Closing, substitute credit support arrangements in replacement for the Support Obligations (including by furnishing evergreen” letters of credit prior to the automatic renewal thereof but not sooner than the first anniversary of the Closing).
(c) All cash credit support obligations provided by Sellers or cash collateral) and any of their Affiliates with respect to the Companies, the Facilities or the operation thereof, shall ensure that Sellersbe included in the calculation of the Net Working Capital. Sellers shall not, Sellers’ Affiliatesnor shall they permit their Affiliates to, Duke and its Affiliates (as applicable) and, where applicable, their sureties encourage or cause any beneficiary of any credit support consisting of a guarantee or letter of credit issuers be fully and unconditionally released from their respective obligations listed on Section 4.16 of the Disclosure Letter to make demand under or otherwise draw under such guarantee or letter of credit.
(d) Assuming compliance by Purchaser with respect to the Support Obligations (with outstanding letters of credit returned by cancellation), in each case, in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support; provided that, with respect to cash depositsthis Section 6.12, Sellers may elect to have such collateral not replaced by Purchaser and instead leave such collateral in place as of Closing, provided, further, that Sellers shall, shall and shall cause their Affiliates (whichto maintain any Continuing Support Obligation which is a guaranty and no Seller shall, for the avoidance of doubt, nor shall not include Duke or any of its Affiliates) Seller permit any Affiliate to, reasonably cooperate with Purchaser in connection with terminate any Continuing Support Obligation which is a guaranty after the foregoing; provided, further, that, notwithstanding anything in this Agreement Closing Date until the Contract relating to such Continuing Support Obligation expires by its terms or by consent of the contrary, Purchaser shall furnish or obtain substitute credit support arrangements in replacement for applicable parties thereto until the Specified Continuing Support Obligations, and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) be fully and unconditionally released from their respective obligations under or otherwise with respect Obligation is replaced pursuant to the Specified Support Obligations simultaneously with the Closing, in each case in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support. Notwithstanding Purchaser’s compliance with this Section 6.12, if any such Support Obligation remains outstanding after the Closing, Purchaser shall, effective as of the Closing and until the earlier of release of all Support Obligations by Sellers, Duke or their respective Affiliates, as applicable, (a) indemnify, defend or hold harmless, Sellers, Duke, their respective Affiliates and their respective managers, officers, directors, employees, representatives, successors and assigns from and against, and reimburse and compensate them for, any and all Losses (including any out-of-pocket costs and expenses) incurred by any of them relating to the applicable Support Obligation the release of which did not occur as of the Closing, and not permit any Company Entity to, amend, modify or renew any Contract giving rise to such Support Obligations without the prior written consent of Sellers, and (b) pay to Sellers the applicable fee indicated on Section 6.12 of the Company Disclosure Schedule, which fee shall be due and payable by Purchaser to Sellers in monthly installments in arrears until the release of all Support Obligations. Notwithstanding anything to the contrary herein, during the Interim Period, Sellers and/or Sellers’ Affiliates (including the Company Entities) shall be entitled, in their sole discretion, to replace Specified Support Obligations currently posted or provided by Duke or its Affiliates with cash deposits, letters of credit, guaranties or performance bonds in amounts not materially greater than the amounts set forth on Section 6.12 of the Company Disclosure Schedule, which if posted or provided by Sellers or Sellers’ Affiliates other than the Company Entities, shall be treated as Support Obligations required to be replaced by Purchaser hereunder; provided that any such replacement cash deposits, letters of credit, guaranties or performance bonds shall not be direct obligations of any Company Entities.
Appears in 1 contract
Support Obligations. With respect (a) Prior to each guarantyClosing, letter Purchaser shall use its commercially reasonable efforts (and shall reasonably cooperate with the Sellers’ efforts) to terminate, or cause Purchaser or any of credit, indemnity, performance or surety bond, cash deposit or other credit support arrangement issued by or the Acquired Companies to be substituted in all respects for the account of the Company Entities Seller and posted or provided by Sellers or Sellers’ their Affiliates (other than the Company EntitiesAcquired Companies) under, and the Sellers, their Affiliates (other than the Acquired Companies), or by Duke or any of its Affiliates, including those items that are listed in Section 6.12 of the Company Disclosure Schedule (collectively, the “Support Obligations”), Purchaser shall furnish or obtain, as of or within 30 Business Days following the Closing, substitute credit support arrangements in replacement for the Support Obligations (including by furnishing letters of credit or cash collateral) and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) and, where applicable, their sureties or letter of credit issuers issuers, to be fully and unconditionally 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, 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 or otherwise guaranties, to the counterparties with respect to the Support Obligations (with outstanding letters of credit returned by cancellation), to enable the Sellers and their Affiliates to terminate such Support Obligations without liability or otherwise be released or replaced in each case, in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit supportconnection therewith; provided that, with respect to cash depositseach Support Obligation, Sellers may elect Purchaser shall not be required under this Section 6.10 to have deliver replacement credit support of the same type as, or with terms and conditions substantially similar to, such collateral not replaced Support Obligations, provided that the replacement credit support delivered by Purchaser complies with the terms and instead leave such collateral in place as conditions of Closing, provided, further, that Sellers shall, and shall cause their Affiliates (which, the applicable Contract or is otherwise acceptable to the counterparty thereto. For any Support Obligations for the avoidance of doubt, shall not include Duke which Purchaser or any of its Affiliates) to, reasonably cooperate with Purchaser in connection with the foregoing; provided, further, that, notwithstanding anything in this Agreement to the contrary, Purchaser shall furnish or obtain substitute credit support arrangements in replacement for the Specified Support Obligations, and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) be fully and unconditionally released from their respective obligations under or otherwise with respect to the Specified Support Obligations simultaneously with the Closing, in each case in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support. Notwithstanding Purchaser’s compliance with this Section 6.12, if any such Support Obligation remains outstanding after the Closing, Purchaser shall, effective as of the Closing and until the earlier of release of all Support Obligations by Sellers, Duke or their respective AffiliatesAcquired Companies, as applicable, (a) indemnify, defend or hold harmless, Sellers, Duke, their respective Affiliates is not substituted in all respects for the Sellers and their respective managers, officers, directors, employees, representatives, successors Affiliates (and assigns from for which the Sellers and against, and reimburse and compensate them for, any and all Losses (including any out-of-pocket costs and expensestheir Affiliates are not released) incurred by any of them relating to the applicable Support Obligation the release of which did not occur effective as of the Closing, (a) 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 permit any Company Entity be replaced at or prior to the Closing, Purchaser’s obligations hereunder shall be satisfied if Purchaser or its Affiliate enters into at Closing a back-to, amend, modify or renew any Contract giving rise -back guarantee with respect to such Support Obligations without Obligation for the prior written consent 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) pay the Sellers and their Affiliates shall continue to Sellers maintain such Support Obligations as required pursuant to the terms of the Support Obligations and the related Contracts.
(b) If any continuing Support Obligation addressed by the last sentence of Section 6.10(a) is drawn upon after the Closing Date, Purchaser shall pay, or cause the applicable fee indicated on Section 6.12 Acquired Company to pay, Sellers or their designees the amount so claimed or drawn within ten (10) Business Days after the date of the Company Disclosure Scheduledraw. If Purchaser, which fee shall be due and payable or the applicable Acquired Company, fails to pay Sellers or their designees during such ten (10) Business Day period, Sellers may draw upon the back-to-back guarantee provided by Purchaser to Sellers in monthly installments in arrears until the release of all Support Obligations. Notwithstanding anything to the contrary herein, during the Interim Period, Sellers and/or Sellers’ Affiliates (including the Company Entities) shall be entitled, in their sole discretion, to replace Specified Support Obligations currently posted or provided by Duke or its Affiliates Affiliate in accordance with cash deposits, letters of credit, guaranties or performance bonds in amounts not materially greater than the amounts set forth on Section 6.12 of the Company Disclosure Schedule, which if posted or provided by Sellers or Sellers’ Affiliates other than the Company Entities, shall be treated as Support Obligations required to be replaced by Purchaser hereunder; provided that any such replacement cash deposits, letters of credit, guaranties or performance bonds shall not be direct obligations of any Company Entitiesterms thereof.
Appears in 1 contract
Support Obligations. With (a) Buyer recognizes that certain of the Non-Company Affiliates have provided credit support to certain of the Project Companies with respect to each guaranty, letter of credit, indemnity, performance or surety bond, cash deposit or other the Projects pursuant to certain credit support arrangement issued by or for the account obligations, all of which that are outstanding as of the Company Entities and posted or provided by Sellers or Sellers’ Affiliates date hereof are set forth on Schedule 6.5(a) (other than the Company Entities), or by Duke or any of its Affiliates, including those items that are listed in Section 6.12 of the Company Disclosure Schedule (collectively, the “Support Obligations”), Purchaser shall furnish or obtain, as of or within 30 Business Days following the .
(b) Prior to Closing, substitute credit support arrangements in replacement for Buyer shall use commercially reasonable efforts to effect the Support Obligations (including by furnishing letters of credit or cash collateral) full and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) and, where applicable, their sureties or letter of credit issuers be fully and unconditionally released from their respective obligations under or otherwise with respect to the Support Obligations (with outstanding letters of credit returned by cancellation), in each case, in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support; provided that, with respect to cash deposits, Sellers may elect to have such collateral not replaced by Purchaser and instead leave such collateral in place as of Closing, provided, further, that Sellers shall, and shall cause their Affiliates (which, for the avoidance of doubt, shall not include Duke or any of its Affiliates) to, reasonably cooperate with Purchaser in connection with the foregoing; provided, further, that, notwithstanding anything in this Agreement to the contrary, Purchaser shall furnish or obtain substitute credit support arrangements in replacement for the Specified Support Obligations, and shall ensure that Sellers, Sellers’ Affiliates, Duke and its Affiliates (as applicable) be fully and unconditionally released from their respective obligations under or otherwise with respect to the Specified Support Obligations simultaneously with the Closing, in each case in form and substance reasonably satisfactory to Sellers or the beneficiary of Sellers’ credit support. Notwithstanding Purchaser’s compliance with this Section 6.12, if any such Support Obligation remains outstanding after the Closing, Purchaser shallunconditional release, effective as of the Closing and until Date, of the earlier of release of Non-Company Affiliates from all Support Obligations (provided, that with respect to any Support Obligations posted or maintained in connection with an Affiliate Contract, the terms of this Section 6.5 shall apply only to such Support Obligations posted or maintained in connection with those Affiliate Contracts that become Assigned Contracts) including by:
(i) subject to Schedule 6.5(a), furnishing a letter of credit to replace each existing letter of credit that is a Support Obligation containing terms and conditions that are substantially identical to the terms and conditions of such existing letter of credit and from lending institutions that have a Credit Rating commensurate with or better than that of lending institutions for such existing letter of credit; and
(ii) in the case of the Amended and Restated High Desert Power Master Power Purchase and Sales Agreement dated April 22, 2002 (the “CDWR Agreement”), between High Desert and the California Department of Water Resources (“CDWR”), if required, (x) furnishing a subordinated mortgage and security agreement as contemplated by SellersSpecial Condition 9(ii) thereof or (y) as provided in Schedule 6.5(a)(2).
(c) Buyer shall use commercially reasonable efforts to cause the beneficiary or beneficiaries of the Support Obligations to terminate and redeliver to Seller or one of its Affiliates each original copy of each original guaranty, Duke letter of credit or their respective other instrument constituting or evidencing such Support Obligations released or replaced pursuant to Section 6.5(b).
(d) If Buyer is not successful in obtaining the complete and unconditional release of the Non-Company Affiliates from any Support Obligations prior to Closing (each such Support Obligation, until such time as such Support Obligation is released in accordance with this Section 6.5, a “Continuing Support Obligation”), then, subject to Section 6.5(e) and Schedule 6.5(a), Seller or its Affiliates, as applicable, shall keep in place such guaranty, letter of credit or other instrument as is necessary to maintain each Continuing Support Obligations, and Buyer shall deliver to Seller at the Closing in accordance with this Section 6.5 and Schedule 6.5(a) support for Buyer’s obligations pursuant to clause (aii) indemnifybelow (the “Continuing Support Letter of Credit”); provided, defend or hold harmlesshowever, Sellers, Duke, their respective Affiliates and their respective managers, officers, directors, employees, representatives, successors and assigns that notwithstanding the foregoing:
(i) from and against, and reimburse and compensate them for, any and all Losses (including any out-of-pocket costs and expenses) incurred by any of them relating to the applicable Support Obligation the release of which did not occur as of after the Closing, Buyer shall continue to use commercially reasonable efforts to obtain the full and unconditional release of the Non-Company Affiliates from each Continuing Support Obligation; and
(ii) Buyer shall not, and shall cause the Project Companies not permit any Company Entity to, amend, modify effect any amendments or renew modifications or any Contract giving rise other changes to such the contracts or obligations to which any of the Continuing Support Obligations relate, or to otherwise take any action that could increase the liability of the Non-Company Affiliates under any Continuing Support Obligation or extend the stated maturity of any Continuing Support Obligation, without the Seller’s prior written consent of Sellers, and (b) pay to Sellers the applicable fee indicated on Section 6.12 of the Company Disclosure Scheduleconsent, which fee consent shall not be due and payable by Purchaser to Sellers in monthly installments in arrears until the release of all Support Obligations. Notwithstanding anything to the contrary herein, during unreasonably withheld or delayed.
(e) During the Interim Period, Sellers and/or SellersBuyer shall have the right to contact and have discussions with each beneficiary of a Support Obligation in order to satisfy its obligations under this Section 6.5; provided, however, that Buyer shall give Seller not less than five Business Days’ Affiliates (including the Company Entities) shall be entitled, in their sole discretion, to replace Specified Support Obligations currently posted or provided by Duke or its Affiliates with cash deposits, letters of credit, guaranties or performance bonds in amounts not materially greater than the amounts set forth on Section 6.12 of the Company Disclosure Schedule, which if posted or provided by Sellers or Sellers’ Affiliates other than the Company Entities, shall be treated as Support Obligations required to be replaced by Purchaser hereunder; provided that prior notice before making any such replacement cash depositscontact, letters Seller shall have the right to have one of creditits Representatives present via telephone or in person, guaranties as applicable, during any such contact or performance bonds discussion, Buyer shall not only contact and hold discussions with such beneficiaries through Representatives of Buyer previously approved by Seller, and Buyer shall cause such Representatives to comply with all reasonable procedures and protocols regarding such contacts and discussions that may be direct obligations of any Company Entitiesestablished by Seller.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Baltimore Gas & Electric Co)