Support Obligations. (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 the letters of credit, guarantees and other Support Obligations contemplated by Schedule 12.06(a), 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 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 beneficiaries 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 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, promptly to redeliver such originals or cash to AQ Seller or its Affiliates (other than the Company and its Subsidiaries), as applicable, and, 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 whole or in part to the SRO Business, including executing and delivering any assumption agreements required by the counterparties to any Support Obligations (e.g., insurers). (g) At the Purchaser’s written request prior to the Closing, AQ Seller shall cooperate with the Purchaser in any reasonable manner in connection with the covenants of the Purchaser described in Section 12.06(a) and Section 12.06(b); provided, that such cooperation shall not include any requirement of AQ Seller to expend money, commence any litigation or arbitration proceeding or offer or grant any accommodation (financial or otherwise) to any third party.
Appears in 1 contract
Support Obligations. (ea) The Purchaser recognizes that AQ Seller Buyer shall, at its sole risk, cost and certain of its Affiliates have provided credit support to the Companyexpense, 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 (use reasonable best efforts, including with respect to the offering substitute guarantees, letters of credit, guarantees and other Support Obligations contemplated bonds, credit assurances or similar support of or procured by Schedule 12.06(a), collectively, the “Support Obligations”). The Purchaser shall, and shall cause its Buyer’s 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 Entities, and its SubsidiariesSeller shall provide, and Seller shall cause the Company Entities to provide, all reasonable support, cooperation and assistance (it being understood that such support, cooperation and assistance shall not include any requirement to pay any consideration or offer or grant any financial accommodation), use reasonable best efforts to obtain the full and unconditional release ensure that, effective as 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 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 shallDate, and shall cause its Affiliates to, use its reasonable best efforts to cause the beneficiary or beneficiaries 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 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, promptly to redeliver such originals or cash to AQ Seller or its Affiliates (other than the Company and its Subsidiaries), as applicable, and, 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 any Company Entity) shall be released from all obligations and Liabilities relating to or arising under or out of or in connection with each Support Obligation entered into on or before the Company date of this Agreement or in the Interim Period in accordance with the terms of this Agreement and Seller or its SubsidiariesAffiliates shall continue to maintain the applicable Support Obligations.
(b) Without limiting Buyer’s obligations under the preceding sentence, if such releases are not obtained as of the Closing Date, Seller or its Affiliates shall continue to maintain the applicable Support Obligations, in each case, at the same levels as provided as of the Closing Date, and Buyer shall continue to use its reasonable best efforts to replace such Support Obligations as relate, promptly as practicable following the Closing Date (but in whole or in part no event later than thirty-six (36) months following the Closing Date). Subject to the SRO Businessterms hereof, including executing effective as from the Closing Date and delivering any assumption agreements required by the counterparties limited to any Support Obligations to the extent and for as long as not released, Buyer shall (e.g.i) reimburse Seller and its Affiliates for, insurers)and hold each of them harmless from, all amounts paid or payable to the relevant beneficiary, (ii) reimburse Seller and its Affiliates for any Third Party expenses reasonably incurred by Seller or its Affiliates for any Support Obligations issued by Third Parties on Seller’s behalf (excluding any internal costs or administrative overhead) and (iii) pay to Seller a fee equal to, during the first twelve (12) months following the Closing Date, 1.5% p.a., and thereafter 2.25% p.a. on the aggregate nominal amount of Support Obligations issued by Seller itself, as applicable. The fee pursuant to (iii) shall be due and payable by Buyer to Seller in monthly instalments and the reimbursement pursuant to (i) and (ii) shall occur within ten (10) Business Days of Seller providing Buyer with evidence and documentation thereof reasonably satisfactory to Buyer.
(gc) At To the Purchaser’s written request prior to extent that Support Obligations are issued after the Closingdate hereof, AQ Seller shall cooperate with the Purchaser in any use reasonable manner in connection with the covenants best efforts to ensure that all recipients of Support Obligations issued by a member of the Purchaser described in Section 12.06(aRemaining Seller Group and all issuers providing Support Obligations on behalf of a member of the Remaining Seller Group for the benefit of the Company Entities agree to accept an assurance provided by Buyer Parent or other Affiliate of Buyer (other than the Company Entities) and Section 12.06(b); provided, that such cooperation shall not include any requirement of AQ Seller to expend money, commence any litigation or arbitration proceeding or offer or grant any accommodation (financial or otherwise) to any third partyas a substitute.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Consolidated Edison Inc)
Support Obligations. (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 the letters of credit, guarantees and other Support Obligations contemplated by Schedule 12.06(a), 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 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 itself, one of its Affiliates or, in connection with the beneficiary or beneficiaries 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 of the guarantees, indemnities, letters of credit, letters of comfort, commitments, understandings, agreements and other obligations of such Persons related to an Acquired Company that are set forth on Section 4.9 of the Sellers Disclosure Letter (collectively, the “Substituted Support Obligations”). The Substituted Support Obligations shall include any and all new or replacement credit support obligations or any modification or increase in the Substituted Support Obligations set forth on Section 4.9 of the Sellers Disclosure Letter and all of Purchaser’s obligations under this Section 4.9 shall apply with respect thereto, provided that, 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 terminate the business of the Acquired Companies, the aggregate amount of Substituted Support Obligations as of the 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, indemnities, letters of credit, letters of comfort, commitments, understandings, agreements and redeliver other obligations of Sellers and any of their Affiliates related to AQ Seller an Acquired Company for which Purchaser or its Affiliatesthe Acquired Company, as applicable, is not substituted in all respects for Sellers and their Affiliates (or for which Sellers and their Affiliates are not unconditionally released) effective as soon of the Closing and that cannot otherwise be terminated effective as practicable, each original copy of each original guaranty, letter of credit or other instrument constituting or evidencing the Support Obligations referred Closing without causing an adverse effect on an Acquired Company (with Sellers and their Affiliates to in Section 12.06(a) above, as well as to redeliver to AQ Seller and its Affiliates, any cash collateral or other collateral be unconditionally released in respect of such Support Obligations and, as to any Support Obligations terminated after the Closing, promptly to redeliver such originals or cash to AQ Seller or its Affiliates (other than the Company and its Subsidiariesthereof), as applicable(a) Sellers shall, andor shall cause their applicable Affiliates to, keep in each case, cooperate and take place 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 whole or in part to the SRO Business, including executing and delivering any assumption agreements required by the counterparties to any Substituted Support Obligations (e.g., insurers“Continuing Support Obligations”).
(g) At the Purchaser’s written request prior to the Closing, AQ Seller shall cooperate with the Purchaser in any reasonable manner in connection with the covenants of the Purchaser described in Section 12.06(a) and Section 12.06(b); provided, that such cooperation shall not include any requirement of AQ Seller to expend money, commence any litigation or arbitration proceeding or offer or grant any accommodation (financial or otherwise) to any third party.,
Appears in 1 contract
Sources: Stock Purchase Agreement (Algonquin Power & Utilities Corp.)
Support Obligations. (ea) The Purchaser recognizes Buyer shall use its commercially reasonable efforts to replace and effect the release of, effective as of Closing, any Support Obligations that AQ Seller and certain of its Affiliates have provided are listed on Schedule 6.15, including any additional credit support required to be provided by the Company, its Subsidiaries and Sellers or any of their Affiliates (other than the SRO Business and may (but shall not be obligated toAcquired Companies) provide other credit support in connection with during the transactions contemplated by this Agreement (including Interim Period with respect to the letters Acquired Companies, the property or assets of creditany Acquired Company, guarantees and other Support Obligations contemplated by Schedule 12.06(a)including the Project, or the operation thereof (collectively, the “Support Obligations”). The Purchaser shall, ) in accordance with the terms of this Agreement.
(b) To the extent any Support Obligation is not replaced 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 indemnify and hold harmless the Sellers and their Affiliates from are not released therefrom on or prior to Closing in accordance with this Section 6.15, 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 Losses arising from such Support Obligation is drawn upon after the fact Closing, shall 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, 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 ending on the 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 each month and provided reasonable supporting documentation has been provided to the Buyer), the amount of 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 Purchaser is unable to obtain releases contemplated by this Section 12.06(a) prior Sellers and their Affiliates, directly or indirectly have paid to the Closing.
(f) The Purchaser shall, and shall cause its Affiliates to, use its reasonable best efforts applicable Support Obligation counterparties to cause the beneficiary or beneficiaries of the maintain in effect such Support Obligations (including with respect to terminate and redeliver any such interest, at a rate equal to AQ Seller the interest rate that the Sellers or its their Affiliates, as applicable, as soon as practicable, each original copy of each original guaranty, letter of credit or other instrument constituting or evidencing the Support Obligations referred are responsible to in Section 12.06(a) above, as well as pay with respect 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, promptly to redeliver such originals or cash to AQ Seller or its Affiliates (other than the Company and its Subsidiaries), as applicable, and, 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 whole or in part to the SRO Business, including executing and delivering any assumption agreements required by the counterparties to any Support Obligations (e.g., insurersObligations).
(gc) At The Sellers (or their applicable Affiliates) shall maintain any Support Obligation that has not been replaced without amendment or modification thereunder (and comply in all material respects with its terms) until the Purchaser’s written request prior to earlier of (i) the date on which it is replaced by the Buyer or is otherwise no longer required or (ii) twelve (12) months after the Closing, AQ Seller shall cooperate with the Purchaser in any reasonable manner in connection with the covenants of the Purchaser described in Section 12.06(a) and Section 12.06(b); provided, that such cooperation shall not include any requirement of AQ Seller to expend money, commence any litigation or arbitration proceeding or offer or grant any accommodation (financial or otherwise) to any third party.
Appears in 1 contract
Support Obligations. (ea) The Purchaser recognizes that AQ Seller Prior to Closing, Buyer shall use commercially reasonable efforts to effect the full and certain unconditional release, effective as of its the Closing, of the Sellers and their Affiliates have provided from any 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 obligations provided by this Agreement (including Sellers or such Affiliates with respect to the letters of creditAcquired Assets or the Business, guarantees and other Support Obligations contemplated by which are specifically listed on Schedule 12.06(a), 7.4(a) at the time required under such schedule (collectively, the “Support Obligations”), including 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 such Support Obligations, in accordance with the applicable requirements of such Support Obligations. The Purchaser shallSellers 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, 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;
(ii) Buyer shall 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, (i) use reasonable best efforts with respect effect any amendments or modifications or any other changes to all the contracts or obligations to which any of the LTMA Support Obligations relate, or to otherwise take any action that relate primarily in either case would reasonably be expected to increase, extend or accelerate the SRO Businessliability of either Seller or their Affiliates under the LTMA Support Obligations, obtain 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 AQ Seller the LTMA Support Obligations in accordance with this Section 7.4, at Sellers’ election, either (A) an irrevocable, standby letter of credit in the amount of the maximum amount of exposure under the LTMA Support Obligations, in form and its Affiliates thereunder with no further obligation, Liabilities substance and from an issuing bank reasonably satisfactory to Sellers or Losses to AQ Seller or any (B) a guaranty of its Affiliates and (ii) the Buyer’s obligations hereunder with respect to the LTMA Support Obligations that are not primarily related from a Person with a Credit Rating of Investment Grade, which guarantee shall be in form and substance reasonably satisfactory 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 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 ClosingSellers.
(f) The Purchaser shall, and shall cause its Affiliates to, use its reasonable best efforts to cause the beneficiary or beneficiaries 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 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, promptly to redeliver such originals or cash to AQ Seller or its Affiliates (other than the Company and its Subsidiaries), as applicable, and, 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 whole or in part to the SRO Business, including executing and delivering any assumption agreements required by the counterparties to any Support Obligations (e.g., insurers).
(g) At the Purchaser’s written request prior to the Closing, AQ Seller shall cooperate with the Purchaser in any reasonable manner in connection with the covenants of the Purchaser described in Section 12.06(a) and Section 12.06(b); provided, that such cooperation shall not include any requirement of AQ Seller to expend money, commence any litigation or arbitration proceeding or offer or grant any accommodation (financial or otherwise) to any third party.
Appears in 1 contract
Support Obligations. With respect to each Support Obligation, (ea) The Purchaser recognizes that AQ Seller and certain of Buyer shall use its Affiliates have provided commercially reasonable efforts prior to the Closing to (i) obtain credit support arrangements in substitution of the Support Obligations (but only to the Company, its Subsidiaries and extent such Support Obligation is required in order to procure the SRO Business and may (but shall not be obligated to) provide other credit support in connection with the transactions release contemplated by this Agreement the immediately succeeding clause (including with respect ii) and only to the letters extent of creditsuch requirement) and (ii) procure that Seller Parent, guarantees Sellers and other their respective Affiliates and, where applicable, their respective sureties or letter of credit issuers, be fully and unconditionally released from their respective obligations under the Support Obligations, in form and substance reasonably satisfactory to Seller Parent, and (b) if Buyer is not successful, following the use of commercially reasonable efforts, in obtaining the complete and unconditional release of Seller Parent, Sellers and their respective Affiliates from any such Support Obligations contemplated by Schedule 12.06(aas of the Closing (each such Support Obligation until such time as such Support Obligation is fully and unconditionally released, a “Continuing Support Obligation”), collectively, then from and after the “Support Obligations”). The Purchaser shall, and shall cause its Affiliates toClosing, (i) Buyer shall continue to use commercially reasonable best efforts with respect to all Support Obligations that relate primarily to the SRO Business, obtain promptly the full and unconditional release of AQ Seller Parent, Sellers and its their respective Affiliates thereunder 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 no further obligationeach Continuing Support Obligation, Liabilities or to the extent such Losses to AQ Seller result from the operation of the Business by Buyer or any of its Affiliates after the Closing and (iiiii) 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 Buyer shall 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 shallnot, and shall cause its Affiliates the Purchased Companies and the Purchased Subsidiary not to, use its reasonable best efforts effect any amendments or modifications or any other changes to cause the beneficiary any Contracts or beneficiaries obligations to which any of the Continuing Support Obligations relate that would reasonably be expected to terminate and redeliver to AQ materially increase the Liability of any of Seller Parent, Sellers or its Affiliates, as applicable, as soon as practicable, each original copy of each original guaranty, letter of credit or other instrument constituting or evidencing the their respective Affiliates under any Continuing Support Obligations referred without Seller Parent’s prior written consent. Schedule 2.07(c) shall be amended by Seller Parent from time to in Section 12.06(a) above, as well as time during the Interim Period to redeliver to AQ Seller and its Affiliates, any cash collateral add all additional Ordinary Course performance bonds or other collateral in respect of such Support Obligations and, as to any Support Obligations terminated after the Closing, promptly to redeliver such originals or cash to AQ Seller or its Affiliates (other than the Company and its Subsidiaries), as applicable, and, 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 whole or in part parent guaranties relating solely to the SRO Business, including executing and delivering upon any assumption agreements required by the counterparties such performance bond or parent guaranty being added to any Support Obligations (e.g., insurers).
(gSchedule 2.07(c) At the Purchaser’s written request prior to the Closing, AQ Seller shall cooperate in accordance with the Purchaser in any reasonable manner in connection with the covenants foregoing, such performance bond or parent guaranty shall be deemed to be a Support Obligation for all purposes of the Purchaser described in Section 12.06(a) and Section 12.06(b); provided, that such cooperation shall not include any requirement of AQ Seller to expend money, commence any litigation or arbitration proceeding or offer or grant any accommodation (financial or otherwise) to any third partythis Agreement.
Appears in 1 contract
Sources: Equity Purchase Agreement (Casella Waste Systems Inc)
Support Obligations. (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 the letters of credit, guarantees and other Support Obligations contemplated by Schedule 12.06(a), 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 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 itself, one of its Affiliates or, in connection with the beneficiary or beneficiaries 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 of the guarantees, indemnities, letters of credit, letters of comfort, commitments, understandings, agreements and other obligations of such Persons related to an Acquired Company that are set forth on Section 4.9 of the Sellers Disclosure Letter (collectively, the “Substituted Support Obligations”). The Substituted Support Obligations shall include any and all new or replacement credit support obligations or any modification or increase in the Substituted Support Obligations set forth on Section 4.9 of the Sellers Disclosure Letter and all of Purchaser’s obligations under this Section 4.9 shall apply with respect thereto, provided that, 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 terminate the business of the Acquired Companies, the aggregate amount of Substituted Support Obligations as of the 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, indemnities, letters of credit, letters of comfort, commitments, understandings, agreements and redeliver other obligations of Sellers and any of their Affiliates related to AQ Seller an Acquired Company for which Purchaser or its Affiliatesthe Acquired Company, as applicable, is not substituted in all respects for Sellers and their Affiliates (or for which Sellers and their Affiliates are not unconditionally released) effective as soon of the Closing and that cannot otherwise be terminated effective as practicableof the Closing without causing an adverse effect on an Acquired Company (with Sellers and their Affiliates to be unconditionally released in respect thereof), each original copy of each original guaranty(a) Sellers shall, letter of credit or other instrument constituting or evidencing the shall cause their applicable Affiliates to, keep in place such Substituted Support Obligations referred (“Continuing Support Obligations”), (b) Purchaser shall continue to in Section 12.06(a) above, as well as use its reasonable best efforts and shall cause each Acquired Company to redeliver use its reasonable best efforts to AQ Seller effect such substitution or termination and its Affiliates, any cash collateral or other collateral in unconditional release with respect of such to the Continuing Support Obligations and, as to any Support Obligations terminated promptly as practical after the Closing, promptly to redeliver such originals Closing and (c) Purchaser shall reimburse Sellers for all documented amounts paid or cash to AQ Seller incurred by Sellers or its their Affiliates (other than the Company Acquired Companies) to the extent any guarantees, indemnities, letters of credit, letters of comfort, commitments, understandings, agreements and other obligations are called upon and Sellers or 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 respect of each Continuing Support Obligation equal to the amount of customary and market fees Sellers or its Subsidiariesapplicable Affiliate would have reasonably incurred if it posted a letter of credit in respect of the amounts 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, as applicable, and, in each case, cooperate and take such other actions as may be reasonably required to terminate or otherwise relieve AQ Seller and neither Purchaser nor any of its Affiliates (other than including after the Company 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 its Subsidiaries) any of their Affiliates under such Continuing Support Obligations as relateObligation. For purposes of this Section 4.9, in whole or in part “reasonable best efforts” shall include offering to provide to the SRO Businessapplicable beneficiary of a Substituted Support Obligation, including executing and delivering any assumption providing such beneficiary, such replacement guarantees, indemnities, letters of credit, letters of comfort, commitments, understandings, agreements required by the counterparties to any Support Obligations (e.g., insurers).
(g) At the Purchaser’s written request prior and other obligations as are substantially similar in form and substance to the Closing, AQ Seller shall cooperate with the Purchaser in any reasonable manner in connection with the covenants of the Purchaser described in Section 12.06(a) and Section 12.06(b); provided, that such cooperation shall not include any requirement of AQ Seller to expend money, commence any litigation or arbitration proceeding or offer or grant any accommodation (financial or otherwise) to any third partySubstituted Support Obligations.
Appears in 1 contract