Common use of Support Obligations Clause in Contracts

Support Obligations. (a) With respect to the ▇▇▇▇ Guaranty, during the Interim Period, Seller and Buyer shall, and Buyer shall cause Buyer’s Affiliates to, use their respective Commercially Reasonable Efforts to work together to procure the full and unconditional release, effective as of the Closing Date, of ▇▇▇▇’▇ obligations under the ▇▇▇▇ Guaranty. For purposes of this subsection, Commercially Reasonable Efforts shall require (i) jointly approaching ▇▇▇▇▇▇ ▇▇▇▇▇▇ to discuss and negotiate alternative arrangements for satisfying Kinder ▇▇▇▇▇▇’▇ credit support requirements, and (ii) in support of any such alternative credit support arrangements, Buyer offering to replace the ▇▇▇▇ Guaranty with a substitute guarantee from Buyer or Buyer Parent Guarantor on terms acceptable to ▇▇▇▇▇▇ ▇▇▇▇▇▇ (provided that the maximum principal amount guaranteed may not be increased) and, if the foregoing is not accepted by ▇▇▇▇▇▇ ▇▇▇▇▇▇, Buyer or Buyer Parent Guarantor offering to deliver to ▇▇▇▇▇▇ ▇▇▇▇▇▇ a letter of credit from a creditworthy United States bank acceptable to ▇▇▇▇▇▇ ▇▇▇▇▇▇ for the account of Buyer or Buyer Parent Guarantor as applicant in an amount (x) sufficient to cover the entire amount that may be payable under the ▇▇▇▇ Guaranty or (y) such lesser amount deemed sufficient by ▇▇▇▇▇▇ ▇▇▇▇▇▇, and, if such offer is accepted by ▇▇▇▇▇▇ ▇▇▇▇▇▇, providing such letter of credit to ▇▇▇▇▇▇ ▇▇▇▇▇▇ in connection with the Closing. (b) If Buyer and Seller are not successful in obtaining the complete and unconditional release of ▇▇▇▇ from its obligations under the ▇▇▇▇ Guaranty prior to Closing as contemplated in Section 6.5(a), then Seller or its Affiliates, as applicable, shall cause ▇▇▇▇ to keep in place the ▇▇▇▇ Guaranty, and Buyer shall deliver to Seller at the Closing, and shall keep in place, an irrevocable, standby letter of credit in form and substance reasonably satisfactory to Seller and in an amount equal to the maximum amount of exposure under the ▇▇▇▇ Guaranty and issued by Citibank N.A. pursuant to Buyer Parent Guarantor’s debtor-in-possession credit agreement authorized by the DIP Order or another irrevocable, standby letter of credit on substantially similar terms from a creditworthy financial institution reasonably acceptable to Seller (the “Continuing Support Letter of Credit”); provided, however, that as a condition to the continuing maintenance of the ▇▇▇▇ Guaranty: (i) From and after the Closing, Buyer hereby agrees to indemnify and hold harmless Seller and its Affiliates from and against any and all Losses that may be suffered, incurred or sustained by any of them or to which any of them become subject, resulting from, arising out of or relating to the ▇▇▇▇ Guaranty being in effect on or after the Closing Date (including as a result of any draw or demand for or making of any payment by ▇▇▇▇ under the ▇▇▇▇ Guaranty) with respect to the full extent of the ▇▇▇▇ Guaranty. In furtherance, and not limitation, of the forgoing, if the ▇▇▇▇ Guaranty is drawn upon in accordance with its terms after the Closing Date, upon receipt of written notice thereof from Seller, Buyer shall pay Seller or its designee the amount so drawn upon in accordance with its terms within five (5) Business Days after the date of such written notice. If Buyer fails to pay Seller or its designee within such five (5) Business Day period, Seller may draw upon or otherwise enforce the terms of the Continuing Support Letter of Credit in accordance with the terms thereof; (ii) from and after the Closing, Buyer and Seller shall continue to use Commercially Reasonable Efforts to obtain the full and unconditional release of ▇▇▇▇ from its obligations under the ▇▇▇▇ Guaranty as contemplated by Section 6.5(a); and (iii) Buyer shall not, and shall cause the Acquired Companies not to, effect any amendments or modifications or any other changes to the Contracts or obligations to which any of the obligations under the ▇▇▇▇ Guaranty relates to the extent such amendment or modification would increase the liability of ▇▇▇▇ under the ▇▇▇▇ Guaranty or extend the stated maturity of any obligation to which the ▇▇▇▇ Guaranty relates, without Seller’s prior written consent (which consent may be withheld in its sole and absolute discretion). (c) If a Continuing Support Letter of Credit is provided pursuant to Section 6.5(b), at the expiration or termination of the ▇▇▇▇ Guaranty (such that it is no longer subject to restoration or reinstatement), Seller shall deliver or cause to be delivered to Buyer the Continuing Support Letter of Credit for cancellation.

Support Obligations. (a) With Buyer recognizes that certain of the Non-Company Affiliates have provided credit support on behalf of certain of the Acquired Companies with respect to the ▇▇▇▇ Guarantyoperation of their respective Businesses, during to the Interim PeriodCoal Participant Project Operators with respect to the Coal Participant Projects and otherwise pursuant to certain credit support obligations, Seller including guarantees, letters of credit, escrow arrangements, surety and Buyer shallperformance bonds and security agreements and arrangements (other than collateral included in Net Working Capital), and all of which that are outstanding as of the date hereof are set forth on Schedule 6.5(a) (the “Support Obligations”). (b) Prior to the Closing, Buyer shall cause Buyer’s Affiliates to, use their respective Commercially Reasonable Efforts commercially reasonable efforts to work together to procure effect the full and unconditional release, effective as of the Closing Date, of ▇▇▇▇’▇ obligations under the ▇▇▇▇ Guaranty. For purposes Non-Company Affiliates from all Support Obligations (provided that with respect to any Support Obligations posted or maintained in connection with an Affiliate Dedicated Contract, the terms of this subsectionSection 6.5 shall apply only to such Support Obligations posted or maintained in connection with those Affiliate Dedicated Contracts that become Assigned Contracts), Commercially Reasonable Efforts shall require including by: (i) jointly approaching ▇▇▇▇▇▇ ▇▇▇▇▇▇ providing a Buyer guaranty to discuss replace each existing guaranty that is a Support Obligation containing terms equal to or more favorable to the beneficiary thereof than the terms of such existing guaranty (other than with respect to the credit rating of the guarantor); provided that if the beneficiary of any existing guaranty does not accept such a replacement guaranty (effective as of the Closing) by the date that is forty-five (45) days after the date hereof (A) and negotiate alternative arrangements for satisfying Kinder ▇▇▇▇▇▇’▇ the terms of such existing guaranty or of any Contract or Law requiring such existing guaranty to be maintained permit the replacement of such existing guaranty with another form of credit support, Buyer shall offer the beneficiary of such existing guaranty such other form of credit support requirementsin order to obtain the release of such existing guaranty or (B) if the terms of such existing guaranty or of any such Contract or Law requiring such existing guaranty to be maintained do not so permit the replacement of such existing guaranty, Buyer shall offer to replace such existing guaranty with a Letter of Credit or cash in an amount up to the amount of such existing guaranty in substitution therefor; (ii) 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; (iii) instituting an escrow arrangement to replace each existing escrow arrangement that is a Support Obligation with terms equal to or more favorable to the counterparty thereunder than the terms of such existing escrow arrangement; (iv) posting a surety or performance bond to replace each existing surety or performance bond that is a Support Obligation issued by a Person having a net worth and Credit Rating at least equal to those of the issuer of such existing surety or performance bond, and containing terms and conditions that are substantially identical to the terms and conditions of such existing surety or performance bond; and (v) replacing any other security agreement or arrangement on substantially identical terms and conditions to the existing security agreement or arrangement that is a Support Obligation. (c) Buyer shall use commercially reasonable efforts to cause the beneficiary or beneficiaries of the Support Obligations to (i) remit any cash to Sellers or their respective Non-Company Affiliates, as applicable, held under any escrow arrangement that is a Support Obligation promptly following the replacement of such escrow arrangement pursuant to Section 6.5(b)(iii) (unless such cash has been reflected in Net Working Capital as being transferred with the Acquired Companies at Closing) and (ii) in support terminate and redeliver to Sellers or their respective Affiliates each original copy of any such alternative credit support arrangementseach original guaranty, Buyer offering to replace the ▇▇▇▇ Guaranty with a substitute guarantee from Buyer or Buyer Parent Guarantor on terms acceptable to ▇▇▇▇▇▇ ▇▇▇▇▇▇ (provided that the maximum principal amount guaranteed may not be increased) and, if the foregoing is not accepted by ▇▇▇▇▇▇ ▇▇▇▇▇▇, Buyer or Buyer Parent Guarantor offering to deliver to ▇▇▇▇▇▇ ▇▇▇▇▇▇ a letter of credit from a creditworthy United States bank acceptable or other instrument constituting or evidencing such Support Obligations; provided that for purposes of clarity, Buyer’s obligations to ▇▇▇▇▇▇ ▇▇▇▇▇▇ for the account of Buyer provide replacement credit support are limited exclusively to those items listed on Schedule 6.5(a), as amended or Buyer Parent Guarantor as applicant in an amount (x) sufficient supplemented pursuant to cover the entire amount that may be payable under the ▇▇▇▇ Guaranty or (y) such lesser amount deemed sufficient by ▇▇▇▇▇▇ ▇▇▇▇▇▇, and, if such offer is accepted by ▇▇▇▇▇▇ ▇▇▇▇▇▇, providing such letter of credit to ▇▇▇▇▇▇ ▇▇▇▇▇▇ in connection with the ClosingSection 6.5(g). (bd) If Buyer and Seller are is not successful successful, following the use of commercially reasonable efforts, in obtaining the complete and unconditional release of ▇▇▇▇ the Non-Company Affiliates from its obligations under any Support Obligations effective as of the ▇▇▇▇ Guaranty prior to Closing (each such Support Obligation, until such time as contemplated such Support Obligation is released in accordance with Section 6.5(a6.5(d)(i), then Seller or its Affiliates, as applicable, shall cause ▇▇▇▇ to keep in place the ▇▇▇▇ Guaranty, and Buyer shall deliver to Seller at the Closing, and shall keep in place, an irrevocable, standby letter of credit in form and substance reasonably satisfactory to Seller and in an amount equal to the maximum amount of exposure under the ▇▇▇▇ Guaranty and issued by Citibank N.A. pursuant to Buyer Parent Guarantor’s debtor-in-possession credit agreement authorized by the DIP Order or another irrevocable, standby letter of credit on substantially similar terms from a creditworthy financial institution reasonably acceptable to Seller (the “Continuing Support Letter of CreditObligation”); provided, however, that as a condition to the continuing maintenance of the ▇▇▇▇ Guarantythen: (i) From and after the Closing, Buyer hereby agrees to indemnify and hold harmless Seller and its Affiliates from and against any and all Losses that may be suffered, incurred or sustained by any of them or to which any of them become subject, resulting from, arising out of or relating to the ▇▇▇▇ Guaranty being in effect on or after the Closing Date (including as a result of any draw or demand for or making of any payment by ▇▇▇▇ under the ▇▇▇▇ Guaranty) with respect to the full extent of the ▇▇▇▇ Guaranty. In furtherance, and not limitation, of the forgoing, if the ▇▇▇▇ Guaranty is drawn upon in accordance with its terms after the Closing Date, upon receipt of written notice thereof from Seller, Buyer shall pay Seller or its designee the amount so drawn upon in accordance with its terms within five (5) Business Days after the date of such written notice. If Buyer fails to pay Seller or its designee within such five (5) Business Day period, Seller may draw upon or otherwise enforce the terms of the Continuing Support Letter of Credit in accordance with the terms thereof; (ii) from and after the Closing, Buyer and Seller shall continue to use Commercially Reasonable Efforts commercially reasonable efforts to obtain promptly the full and unconditional release of ▇▇▇▇ the Non-Company Affiliates from its obligations under the ▇▇▇▇ Guaranty as contemplated each Continuing Support Obligation; (ii) Buyer shall indemnify each Seller and each Non-Company Affiliate for any Losses incurred by Section 6.5(a); andeach Seller and each Non-Company Affiliate in connection with each Continuing Support Obligation; (iii) Buyer shall not, shall cause each Acquired Company not to and shall use its commercially reasonable efforts to cause the Acquired Companies each Coal Participant Project Operator not to, effect any amendments or modifications or any other changes to the Contracts or obligations to which any of the obligations under the ▇▇▇▇ Guaranty relates Continuing Support Obligations relate, or to the extent such amendment otherwise take any action, in each case that increases, extends or modification would increase accelerates the liability of ▇▇▇▇ the Non-Company Affiliates under any Continuing Support Obligation, without Sellers’ prior written consent; and (iv) Buyer shall deliver to Sellers at the ▇▇▇▇ Guaranty Closing and maintain at all times until the full and unconditional release of each Continuing Support Obligation in accordance with Section 6.5(d)(i) either: (A) a Letter of Credit in an amount equal to maximum amount as set forth under “Subject Amount” on Schedule 6.5(a) for all Continuing Support Obligations in the aggregate (and the full amount of such Letter of Credit shall be available for drawing with respect to any one or extend more of the stated maturity Continuing Support Obligations), which amount shall be reduced from time to time by the amount of any obligation Continuing Support Obligations from which Sellers are subsequently released; provided that, if at any time the issuer of the Letter of Credit fails to meet the Minimum Issuer Requirements, then within five (5) Business Days of the earlier of (1) Sellers’ request and (2) Buyer’s knowledge of such failure, Buyer shall replace the Letter of Credit with a Letter of Credit from an issuer that meets the Minimum Issuer Requirements; provided, further, that, if Buyer elects to fulfill its obligations under this Section 6.5(d)(iv) through the provision of a Letter of Credit pursuant to this clause (A), then on the last Business Day of each three (3) month period following the Closing Date until such time as no Continuing Support Obligations remain outstanding, Buyer shall pay Sellers or their designee a fee in respect of each Continuing Support Obligation, with such fee determined in accordance with Section 6.5(d)(iv)(C) below; or (B) an unlimited guaranty of Buyer’s obligations hereunder with respect to the Continuing Support Obligations from a Person with a Credit Rating of Investment Grade, which the ▇▇▇▇ Guaranty relates, without Seller’s prior written consent (which consent may guarantee shall be withheld in form and substance satisfactory to each Seller in its sole discretion; provided that, if Buyer’s guarantor fails to maintain a Credit Rating of Investment Grade at any time, then Buyer shall provide a Letter of Credit pursuant to Section 6.5(d)(iv)(A) within five (5) Business Days of the earlier of (1) Sellers’ request and absolute discretion(2) Buyer’s knowledge of such failure; provided, further, that, if Buyer elects to fulfill its obligations under this Section 6.5(d)(iv) through the provision of a guaranty pursuant to this clause (B), then on the last Business Day of each three (3) month period following the Closing Date until such time as no Continuing Support Obligations remain outstanding, Buyer shall pay Sellers or their designee a fee in respect of each Continuing Support Obligation, with such fee determined in accordance with Section 6.5(d)(iv)(C) below. (cC) If The fee payable by Buyer pursuant to clauses (A) and (B) of Sections 6.5(d)(iv) shall be determined as follows: On the last Business Day of the first three (3) month period following the Closing Date, the fee shall be calculated at a rate of one and one-quarter percent (1.25%) (on a per annum basis) on the amount under the heading “Subject Amount” on Schedule 6.5(a) with respect to each Continuing Support Letter Obligation remaining outstanding as of Credit is such date, and the rate of such fee shall increase by an additional one-half percent (0.5%) (on a per annum basis) on the last Business Day of each subsequent three (3) month period after such initial three (3) month period after the Closing Date with respect to any such Continuing Support Obligation that remains outstanding, up to a maximum rate of three and one-quarter percent (3.25%) (on a per annum basis); provided that, if any Continuing Support Obligations continue to remain outstanding, then on each twelve (12) month anniversary of the Closing Date, the maximum rate for calculating such fee shall increase over the maximum rate applicable to the immediately preceding twelve (12) month period by the increase in LIBOR over such twelve (12) month period, if any (but for the avoidance of doubt, any decrease in LIBOR shall not affect such maximum rate); provided further, that if the rate for calculating any fee payable under this Section 6.5(d) would exceed the highest rate permitted under applicable Law, then, ipso facto, the rate shall be automatically reduced to the maximum lawful rate. (e) Notwithstanding anything in this Agreement to the contrary, each Seller and each Non-Company Affiliate may not terminate any Continuing Support Obligations at any time after the Closing Date until such Continuing Support Obligations terminate or expire by their terms or by consent of the applicable beneficiary or are replaced pursuant to this Section 6.5(b6.5. (f) During the Interim Period, Buyer 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 Sellers prior notice before making any such contact. (g) Any and all new or replacement credit support obligations or any modification or increase in the existing credit support obligations entered into or executed by any Seller or Non-Company Affiliate with respect to any Acquired Company and/or under the Co-Owner Agreements with respect to the Projects during the Interim Period shall constitute Support Obligations hereunder, and all of Buyer’s obligations under this Section 6.5 shall apply with respect thereto; provided that Sellers shall consult with Buyer prior to any Seller or Non- Company Affiliate entering into or executing any new credit support obligation if as a result of such new credit support obligation, the aggregate outstanding amount of Support Obligations as of the Closing would be increased by more than $50,000,000 as compared to the outstanding amount of Support Obligations as of the date hereof. Sellers shall have the continuing obligation until the Closing to supplement or amend promptly Schedule 6.5(a) with respect to any additional Support Obligations entered into during the Interim Period, which, if existing at the date of this Agreement, would have been required to be set forth Schedule 6.5(a), at the expiration and to provide such supplements or termination of the ▇▇▇▇ Guaranty (such that it is no longer subject to restoration or reinstatement), Seller shall deliver or cause to be delivered amendments to Buyer the Continuing Support Letter of Credit for cancellationon a regular basis.

Support Obligations. (a) With Buyer recognizes that certain of the Non-Company Affiliates have provided and/or will provide Credit Support (i) to the Companies, (ii) with respect to the ▇▇▇▇ GuarantyAffiliate Contracts, during and/or (iii) with respect to the Interim PeriodCG&E Transactions pursuant to certain Credit Support obligations (the “Support Obligations”). (b) Prior to Closing, Seller and Buyer shall, and Buyer shall cause Buyer’s Affiliates to, use their respective Commercially Reasonable Efforts commercially reasonable efforts to work together to procure effect the full and unconditional release, effective as of the Closing DateClosing, of ▇▇▇▇’▇ obligations under the ▇▇▇▇ Guaranty. For purposes of this subsectionNon-Company Affiliates from all Support Obligations, Commercially Reasonable Efforts shall require including by undertaking the following promptly following the Signing Date: (i) jointly approaching ▇▇▇▇▇▇ ▇▇▇▇▇▇ offering to discuss each beneficiary thereof a guaranty from a Person with Credit Ratings at least equal to the Required Rating to replace each existing guaranty that is a Support Obligation, which shall contain terms at least as favorable to such beneficiary thereof in all respects (including terms, amount and negotiate alternative arrangements for satisfying Kinder ▇▇▇▇▇▇’▇ conditions) than such existing guaranty (other than with respect to the credit rating of the guarantor); provided, that if the beneficiary of any existing guaranty does not accept such a replacement guaranty by the date that is ninety (90) days after the Signing Date (A) and the terms of such existing guaranty or of any Contract or Law requiring such existing guaranty to be maintained permit the replacement of such existing guaranty with another form of credit support, Buyer will offer the beneficiary of such existing guaranty such other form of credit support requirementsin order to obtain the release of such existing guaranty or (B) if the terms of such existing guaranty or of any such Contract or Law requiring such existing guaranty to be maintained do not so permit the replacement of such existing guaranty, Buyer will offer to replace such existing guaranty with a Letter of Credit or cash in the amount of such existing guaranty in substitution therefor; (ii) furnishing a Letter of Credit to replace each existing letter of credit that is a Support Obligation (including all such letters of credit posted by or on behalf of any Duke Credit Support Provider with respect to the Transactions) containing terms and conditions that are substantially identical to the terms and conditions of such existing letter of credit; (iii) instituting an escrow arrangement to replace each existing escrow arrangement that is a Support Obligation with terms at least as favorable to the counterparty thereunder than the terms of such existing escrow arrangement; (iv) posting a surety or performance bond to replace each existing surety or performance bond that is a Support Obligation issued by a Person having a net worth and Credit Rating at least equal to those of the issuer of such existing surety or performance bond, and containing terms and conditions that are substantially identical to the terms and conditions of such existing surety or performance bond; (v) posting cash to replace any cash that is a Support Obligation provided by a Non-Company Affiliate; provided that Buyer shall have the option to offer a Letter of Credit to replace such cash so long as such Letter of Credit is (A) non-recourse to Seller or any Non-Company Affiliate, (B) issued by Buyer in favor of the applicable Counterparty, (C) in a form acceptable to the applicable Counterparty and Buyer (with a copy of such form of such Letter of Credit provided by Buyer to Seller prior to such Letter of Credit being offered to such Counterparty) and (D) not reasonably expected to delay the consent of the applicable Counterparty to the release of such Credit Support; and (vi) replacing any other security agreement or arrangement on substantially identical terms and conditions to the existing security agreement or arrangement that is a Support Obligation. (c) Buyer shall use commercially reasonable efforts to cause the beneficiary or beneficiaries of the Support Obligations to (i) remit any cash to Seller or one of its Affiliates, as applicable, held under any escrow arrangement that is a Support Obligation promptly following the replacement of such escrow arrangement pursuant to Section 6.7(b)(iii) and (ii) in support terminate and redeliver to Seller or one of any such alternative credit support arrangementsits Affiliates each original copy of each original guaranty, Buyer offering to replace the ▇▇▇▇ Guaranty with a substitute guarantee from Buyer or Buyer Parent Guarantor on terms acceptable to ▇▇▇▇▇▇ ▇▇▇▇▇▇ (provided that the maximum principal amount guaranteed may not be increased) and, if the foregoing is not accepted by ▇▇▇▇▇▇ ▇▇▇▇▇▇, Buyer or Buyer Parent Guarantor offering to deliver to ▇▇▇▇▇▇ ▇▇▇▇▇▇ a letter of credit from or other instrument constituting or evidencing such Support Obligations; provided that if a creditworthy United States bank acceptable party is unable to ▇▇▇▇▇▇ ▇▇▇▇▇▇ for return such item of Credit Support (in the account form of Buyer guaranties, letters of credit or Buyer Parent Guarantor as applicant other instruments constituting or evidencing such Support Obligations (other than cash)) because such items of Credit Support cannot be located after diligent efforts, then in lieu of returning such item of Credit Support the party obligated to make such return may, with the consent of the Person entitled to receive such Credit Support, provide an amount (x) sufficient to cover the entire amount that may be payable under the ▇▇▇▇ Guaranty or (y) such lesser amount deemed sufficient by ▇▇▇▇▇▇ ▇▇▇▇▇▇affidavit of lost guaranty, and, if such offer is accepted by ▇▇▇▇▇▇ ▇▇▇▇▇▇, providing such letter of credit or such other instrument, which shall contain an indemnity reasonably satisfactory to ▇▇▇▇▇▇ ▇▇▇▇▇▇ in connection with the Closingsuch receiving party and which shall acknowledge that such Credit Support is terminated and no further obligations exist thereunder. (bd) If Buyer and Seller are is not successful successful, following the use of commercially reasonable efforts, in obtaining the complete and unconditional release of ▇▇▇▇ the Non-Company Affiliates from its obligations under the ▇▇▇▇ Guaranty prior to any Support Obligations as of Closing (each such Support Obligation, until such time as contemplated such Support Obligation is released in accordance with this Section 6.5(a6.7(d)(i), then Seller or its Affiliates, as applicable, shall cause ▇▇▇▇ to keep in place the ▇▇▇▇ Guaranty, and Buyer shall deliver to Seller at the Closing, and shall keep in place, an irrevocable, standby letter of credit in form and substance reasonably satisfactory to Seller and in an amount equal to the maximum amount of exposure under the ▇▇▇▇ Guaranty and issued by Citibank N.A. pursuant to Buyer Parent Guarantor’s debtor-in-possession credit agreement authorized by the DIP Order or another irrevocable, standby letter of credit on substantially similar terms from a creditworthy financial institution reasonably acceptable to Seller (the “Continuing Support Letter of CreditObligation”); provided, however, that as a condition to the continuing maintenance of the ▇▇▇▇ Guarantythen: (i) From and after the Closing, Buyer hereby agrees to indemnify and hold harmless Seller and its Affiliates from and against any and all Losses that may be suffered, incurred or sustained by any of them or to which any of them become subject, resulting from, arising out of or relating to the ▇▇▇▇ Guaranty being in effect on or after the Closing Date (including as a result of any draw or demand for or making of any payment by ▇▇▇▇ under the ▇▇▇▇ Guaranty) with respect to the full extent of the ▇▇▇▇ Guaranty. In furtherance, and not limitation, of the forgoing, if the ▇▇▇▇ Guaranty is drawn upon in accordance with its terms after the Closing Date, upon receipt of written notice thereof from Seller, Buyer shall pay Seller or its designee the amount so drawn upon in accordance with its terms within five (5) Business Days after the date of such written notice. If Buyer fails to pay Seller or its designee within such five (5) Business Day period, Seller may draw upon or otherwise enforce the terms of the Continuing Support Letter of Credit in accordance with the terms thereof; (ii) from and after the Closing, Buyer and Seller shall continue to use Commercially Reasonable Efforts its commercially reasonable efforts to obtain promptly the full and unconditional release of ▇▇▇▇ Seller and the Non-Company Affiliates from its obligations under each Continuing Support Obligation; (ii) Buyer shall indemnify Seller and the ▇▇▇▇ Guaranty as contemplated Non-Company Affiliates for any Losses incurred by Section 6.5(a); andit or the Non-Company Affiliates in connection with each Continuing Support Obligation; (iii) Buyer shall not, and shall cause the Acquired Companies not to, effect any amendments or modifications or any other changes to the Contracts contracts or obligations to which any of the obligations under the ▇▇▇▇ Guaranty relates Continuing Support Obligations relate, or to the extent such amendment otherwise take any action, in each case that increases, extends or modification would increase accelerates the liability of ▇▇▇▇ the Non-Company Affiliates under the ▇▇▇▇ Guaranty or extend the stated maturity of any obligation to which the ▇▇▇▇ Guaranty relatesContinuing Support Obligation, without Seller’s prior written consent consent; and (which consent e) Until such time as all Continuing Support Obligations in the form of guaranties have been fully and unconditionally released in accordance with Section 6.7(d), Buyer shall pay to Seller or Seller’s designee on the last Business Day of each month beginning on the last Business Day of the three month anniversary of the Closing Date (each, a “Payment Date”) a fee of 0.55% (on a per annum basis) on (i) the maximum aggregate exposure (determined solely by reference to the maximum amount that may be withheld in its sole and absolute discretion). (c) If a guaranteed under Continuing Support Letter of Credit is provided pursuant Obligations in accordance with the terms thereof with respect to Section 6.5(b)Continuing Support Obligations that are capped, at the expiration or termination of and determined solely by reference to the ▇▇▇▇ Guaranty (such ▇-to-market exposure thereunder with respect to Continuing Support Obligations that it is no longer subject to restoration or reinstatementare not capped), calculated as of the 15th day of such month in which the applicable Payment Date occurs, of the applicable Seller or Non-Company Affiliates providing such Continuing Support Obligations. Buyer shall deliver to Seller on each Payment Date a listing of any releases of Continuing Support Obligations pursuant to Section 6.7(d) obtained since the prior Payment Date. (f) Notwithstanding anything in this Agreement to the contrary, Seller and the Non-Company Affiliates may not terminate any Continuing Support Obligations at any time after the Closing until such Continuing Support Obligations terminate or expire by their terms or by consent of the applicable beneficiary or are replaced pursuant to this Section 6.7. (g) Buyer 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 6.7; provided, however, that Buyer shall give Seller prior notice before making any such contact and Seller shall deliver have the right to be present during any such discussions. (h) From and after Closing, Buyer shall provide or cause to be delivered provided all Credit Support required to be provided with respect to the CG&E Transactions pursuant to the terms of the TRS Agreement. (i) Promptly following the effective date of the termination or expiration in full of any Continuing Support Obligation in the form of a letter of credit (i) that was posted by a Duke Credit Support Provider on behalf of a Company (which, for purposes of clarification, shall not include any Credit Support provided with respect to the CG&E Transactions) and (ii) to the extent that such letter of credit was included in the calculation of the Credit Support Payment made by Buyer to Seller pursuant to Article II, Seller shall return to Buyer an amount of cash equal to the Continuing portion of the Credit Support Letter Payment allocated to such letter of Credit for cancellationcredit in the calculation thereof minus the amount of any drawings made on such letter of credit on or after Closing and prior to the date of the termination or expiration of such letter of credit.

Support Obligations. (a) With Buyer acknowledges that certain of the Non-Acquired Company Affiliates (each, a “Support Provider”) have provided credit support to or on behalf of certain Acquired Companies pursuant to certain credit support obligations as set forth on Schedule 6.6. (b) At or prior to Closing, Seller shall cause the Collateral Account Guarantees to be released and returned to the applicable Support Provider, and such accounts to which the Collateral Account Guarantees relate shall, to the extent required by the Project Financing Documents or other agreements pursuant to which the Collateral Account Guarantees were provided, be funded by Buyer with cash, a surety bond, a guaranty or a letter of credit in accordance with the terms of the Project Financing Documents or the other agreements pursuant to which the Collateral Account Guarantees were provided. (c) At or prior to Closing, with respect to the ▇▇▇▇ GuarantySupport Obligations, during each of the Interim Period, Seller and Buyer shall, and Buyer Parties shall cause Buyer’s Affiliates to, use their respective Commercially Reasonable Efforts to work together to procure effect the full and unconditional release, effective as of the Closing Date, of ▇▇▇▇’▇ obligations under the ▇▇▇▇ GuarantySupport Providers from such Support Obligations or the return or cancellation of any letter of credit, surety bond, guaranty or other credit support. For purposes of this subsection, in the case of Buyer, such Commercially Reasonable Efforts shall require include: (i) jointly approaching ▇▇▇▇▇▇ ▇▇▇▇▇▇ furnishing a letter of credit, from a lending institution that has a Credit Rating at least equal to discuss the lending institution for such existing letter of credit, to replace each existing letter of credit that is a Support Obligation containing terms and negotiate alternative arrangements for satisfying Kinder ▇▇▇▇▇▇’▇ credit support requirements, conditions that are substantially the same to the terms and conditions of such existing letter of credit; (ii) providing a Buyer guaranty (or Buyer Affiliate guaranty) to replace each existing guaranty that is a Support Obligation containing terms at least equal to the terms of such existing guaranty (other than with respect to the credit rating of the guarantor), provided that if the beneficiary of any existing guaranty does not accept such a replacement guaranty (effective as of the Closing) (A) and the terms of such existing guaranty or of any Contract or Law requiring such existing guaranty to be maintained permit the replacement of such existing guaranty with another form of credit support, Buyer shall offer the beneficiary of such existing guaranty such other form of credit support in support order to obtain the release of such existing guaranty or (B) if the terms of such existing guaranty or of any such alternative credit support arrangementsContract or Law requiring such existing guaranty to be maintained do not so permit the replacement of such existing guaranty, Buyer offering shall offer to replace the ▇▇▇▇ Guaranty such existing guaranty with a substitute guarantee from Buyer or Buyer Parent Guarantor on terms acceptable to ▇▇▇▇▇▇ ▇▇▇▇▇▇ (provided that the maximum principal amount guaranteed may not be increased) and, if the foregoing is not accepted by ▇▇▇▇▇▇ ▇▇▇▇▇▇, Buyer or Buyer Parent Guarantor offering to deliver to ▇▇▇▇▇▇ ▇▇▇▇▇▇ a letter of credit from a creditworthy United States bank acceptable to ▇▇▇▇▇▇ ▇▇▇▇▇▇ for the account of Buyer or Buyer Parent Guarantor as applicant cash in an amount up to the amount of such existing guaranty in substitution therefor; or (iii) replacing any other existing security agreement or arrangement on substantially the same terms and conditions to such existing security agreement or arrangement that is a Support Obligation. In each case, (x) sufficient any breach or default under a Material Contract occurring solely as a result of Buyer’s failure to cover procure or provide any such credit support instruments on or prior to the entire amount that may be payable under the ▇▇▇▇ Guaranty Closing shall not constitute a breach of any of Seller’s representations and warranties contained in Article 3 or Article 4 and (y) such lesser amount deemed sufficient notwithstanding anything to the contrary in this Section 6.6(c), Buyer shall ensure any credit support provided pursuant to this Section 6.6(c) 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, andpay, if such offer is accepted by ▇▇▇▇▇▇ ▇▇▇▇▇▇reimburse or provide, providing such letter or cause any of credit its Affiliates to ▇▇▇▇▇▇ ▇▇▇▇▇▇ incur, pay, reimburse or provide, any liability, compensation, consideration or charge in connection with order to replace the ClosingSupport Obligations. (bd) If During the Interim Period, Buyer shall have the right to contact and Seller are not successful have discussions with each beneficiary of a Support Obligation in obtaining the complete and unconditional release of ▇▇▇▇ from order to satisfy its obligations under the ▇▇▇▇ Guaranty prior to Closing as contemplated in this Section 6.5(a), then Seller or its Affiliates, as applicable, shall cause ▇▇▇▇ to keep in place the ▇▇▇▇ Guaranty, and Buyer shall deliver to Seller at the Closing, and shall keep in place, an irrevocable, standby letter of credit in form and substance reasonably satisfactory to Seller and in an amount equal to the maximum amount of exposure under the ▇▇▇▇ Guaranty and issued by Citibank N.A. pursuant to Buyer Parent Guarantor’s debtor-in-possession credit agreement authorized by the DIP Order or another irrevocable, standby letter of credit on substantially similar terms from a creditworthy financial institution reasonably acceptable to Seller (the “Continuing Support Letter of Credit”)6.6; provided, however, that as a condition to the continuing maintenance of the ▇▇▇▇ Guaranty: (i) From and after the Closing, Buyer hereby agrees to indemnify and hold harmless Seller and its Affiliates from and against any and all Losses that may be suffered, incurred or sustained by any of them or to which any of them become subject, resulting from, arising out of or relating to the ▇▇▇▇ Guaranty being in effect on or after the Closing Date (including as a result of any draw or demand for or making of any payment by ▇▇▇▇ under the ▇▇▇▇ Guaranty) with respect to the full extent of the ▇▇▇▇ Guaranty. In furtherance, and not limitation, of the forgoing, if the ▇▇▇▇ Guaranty is drawn upon in accordance with its terms after the Closing Date, upon receipt of written notice thereof from Seller, Buyer shall pay give Seller or its designee the amount so drawn upon in accordance with its terms within not less than five (5) Business Days after the date of Days’ prior written notice before making any such written notice. If Buyer fails to pay Seller or its designee within such five (5) Business Day period, Seller may draw upon or otherwise enforce the terms of the Continuing Support Letter of Credit in accordance with the terms thereof; contact and (ii) Seller shall have the right to have Seller’s Representatives present via telephone or in person, as applicable, during any such contact or discussion, provided that Seller’s Representatives’ failure to be present shall not prevent Buyer from contacting and after having discussions with such beneficiaries of the Support Obligations. Seller shall provide to Buyer all information in the possession of Seller and its Affiliates reasonably requested by Buyer in connection with the obligations of Buyer under this Section 6.6. (e) Prior to the Closing, Buyer and Seller shall continue to use Commercially Reasonable Efforts to obtain the full and unconditional release of ▇▇▇▇ from its obligations under the ▇▇▇▇ Guaranty as contemplated by Section 6.5(a); and (iii) Buyer shall not, and shall cause the Acquired Companies its Affiliates not to, effect any amendments or modifications or any other changes to the Contracts or obligations to which any Support Obligations relate. If, at any time after the Effective Date, any credit support obligation required to be provided to or on behalf of the obligations Acquired Companies under the ▇▇▇▇ Guaranty relates to the extent such amendment or modification would increase the liability of ▇▇▇▇ under the ▇▇▇▇ Guaranty or extend the stated maturity terms of any obligation to which the ▇▇▇▇ Guaranty relates, without Seller’s prior written consent (which consent may be withheld in its sole and absolute discretion). (c) If a Continuing Support Letter of Credit is provided pursuant to Section 6.5(b), at the expiration Material Contract or termination of the ▇▇▇▇ Guaranty (such that it is no longer subject to restoration or reinstatement)Law, Seller shall deliver promptly notify Buyer and the Parties shall cooperate in good faith in determining the amount and form of credit support obligations and in no event shall Seller provide, or cause permit its Affiliates to be delivered to Buyer provide, any credit support obligation in an amount greater than the Continuing Support Letter of Credit for cancellationminimum amount required without Buyer’s consent.

Support Obligations. The Parent covenants and agrees with the Holders that, for so long as any Preferred Shares remain outstanding: (a) With respect it will provide the Issuer with sufficient cash to ensure that the ▇▇▇▇ Guaranty, during Issuer is able to pay to each Holder all amounts to which such Holder is entitled in accordance with the Interim Period, Seller Series B-1 Preferred Share Terms and Buyer shall, the Series B-2 Preferred Share Terms and Buyer shall cause Buyer’s Affiliates to, use their respective Commercially Reasonable Efforts it will take such action as is necessary to work together enable the Issuer to procure the full and unconditional release, effective as of the Closing Date, of ▇▇▇▇’▇ comply with its obligations under the ▇▇▇▇ Guaranty. For purposes of this subsection, Commercially Reasonable Efforts shall require (i) jointly approaching ▇▇▇▇▇▇ ▇▇▇▇▇▇ to discuss Series B-1 Preferred Share Terms and negotiate alternative arrangements for satisfying Kinder ▇▇▇▇▇▇’▇ credit support requirements, and (ii) in support of any such alternative credit support arrangements, Buyer offering to replace the ▇▇▇▇ Guaranty with a substitute guarantee from Buyer or Buyer Parent Guarantor on terms acceptable to ▇▇▇▇▇▇ ▇▇▇▇▇▇ (provided that the maximum principal amount guaranteed may not be increased) and, if the foregoing is not accepted by ▇▇▇▇▇▇ ▇▇▇▇▇▇, Buyer or Buyer Parent Guarantor offering to deliver to ▇▇▇▇▇▇ ▇▇▇▇▇▇ a letter of credit from a creditworthy United States bank acceptable to ▇▇▇▇▇▇ ▇▇▇▇▇▇ for the account of Buyer or Buyer Parent Guarantor as applicant in an amount (x) sufficient to cover the entire amount that may be payable under the ▇▇▇▇ Guaranty or (y) such lesser amount deemed sufficient by ▇▇▇▇▇▇ ▇▇▇▇▇▇, and, if such offer is accepted by ▇▇▇▇▇▇ ▇▇▇▇▇▇, providing such letter of credit to ▇▇▇▇▇▇ ▇▇▇▇▇▇ in connection with the Closing.Series B-2 Preferred Share Terms; (b) If Buyer it will, upon direction by the Issuer, cause the issuance and Seller are not successful in obtaining the complete and unconditional release of ▇▇▇▇ from its obligations under the ▇▇▇▇ Guaranty prior to Closing as contemplated in Section 6.5(a), then Seller or its Affiliates, as applicable, shall cause ▇▇▇▇ to keep in place the ▇▇▇▇ Guaranty, and Buyer shall deliver to Seller at the Closing, and shall keep in place, an irrevocable, standby letter of credit in form and substance reasonably satisfactory to Seller and in an amount equal delivery to the maximum amount Holders of exposure under such number of Common Shares necessary to satisfy the ▇▇▇▇ Guaranty and issued by Citibank N.A. Issuer’s obligations upon an exchange of Preferred Shares pursuant to Buyer Parent Guarantor’s debtor-in-possession credit agreement authorized by the DIP Order or another irrevocable, standby letter of credit on substantially similar terms from a creditworthy financial institution reasonably acceptable to Seller (the “Continuing Support Letter of Credit”); provided, however, that as a condition to the continuing maintenance of the ▇▇▇▇ Guaranty: (i) From Series B-1 Preferred Share Terms and after the Closing, Buyer hereby agrees to indemnify Series B-2 Preferred Share Terms and hold harmless Seller and its Affiliates from and against any and all Losses that may be suffered, incurred or sustained by any of them or to which any of them become subject, resulting from, arising out of or relating to the ▇▇▇▇ Guaranty being in effect on or after the Closing Date (including as a result of any draw or demand for or making of any payment by ▇▇▇▇ under the ▇▇▇▇ Guaranty) with respect to the full extent of the ▇▇▇▇ Guaranty. In furtherance, and not limitation, of the forgoing, if the ▇▇▇▇ Guaranty is drawn upon in accordance with its terms after the Closing Date, upon receipt of written notice thereof from Seller, Buyer shall pay Seller or its designee the amount so drawn upon in accordance with its terms within five (5) Business Days after the date of such written notice. If Buyer fails to pay Seller or its designee within such five (5) Business Day period, Seller may draw upon or otherwise enforce the terms of the Continuing Support Letter of Credit in accordance with the terms thereofhereof; (c) it will not vote or otherwise take any action to cause a Liquidation Event; (d) it will remain the direct or indirect beneficial owner of all the outstanding shares or other equity securities of the Issuer, other than (i) the Preferred Shares and the Series A Preferred Shares, (ii) from such other securities that the Issuer is permitted to create without the approval of the Holders and after (iii) any other securities that the ClosingIssuer creates with the requisite approval of the Holders pursuant to the Series B-1 Preferred Share Terms and Series B-2 Preferred Share Terms; (e) for so long as at least 10% of the Preferred Shares remain outstanding, Buyer it will use commercially reasonable efforts to maintain the listing of the Common Shares on the NASDAQ or another stock exchange registered with the SEC under 6(a) of the Exchange Act, other than in connection with a Change of Control; (f) it will not exercise any voting or consent rights which may be exercisable by the Holders of Preferred Shares in accordance with the Series B-1 Preferred Shares Terms and Seller shall continue Series B-2 Preferred Shares Terms or pursuant to use Commercially Reasonable Efforts applicable law with respect to obtain any Preferred Shares held by the full Parent, and unconditional release of ▇▇▇▇ from will cause its obligations under Affiliates not to exercise any such voting or consent rights with respect to any Preferred Shares held by such Affiliates; (g) in the ▇▇▇▇ Guaranty event that it holds any Preferred Shares, it will take such action as contemplated by Section 6.5(a)is necessary such that such Preferred Shares will no longer remain outstanding; and (iiih) Buyer shall not, and shall cause the Acquired Companies it will not to, effect declare any amendments or modifications or any other changes to the Contracts or obligations to which dividends on any of its issued and outstanding share capital at any time after the obligations under Dividend Change Date if the ▇▇▇▇ Guaranty relates to amount of Accumulated Cash Dividends in respect of either the extent such amendment Series B-1 Preferred Shares or modification would increase the liability of ▇▇▇▇ under the ▇▇▇▇ Guaranty or extend the stated maturity of any obligation to which the ▇▇▇▇ Guaranty relates, without Seller’s prior written consent (which consent may be withheld in its sole and absolute discretion)Series B-2 Preferred Shares is greater than zero. (c) If a Continuing Support Letter of Credit is provided pursuant to Section 6.5(b), at the expiration or termination of the ▇▇▇▇ Guaranty (such that it is no longer subject to restoration or reinstatement), Seller shall deliver or cause to be delivered to Buyer the Continuing Support Letter of Credit for cancellation.