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 respect to In connection with the ▇▇▇▇ Guaranty, during consummation of the Interim Periodtransactions contemplated by the Destin Purchase Agreement, Seller and Buyer shall, and Buyer shall cause Buyer’s Affiliates to, use their respective Commercially Reasonable Efforts has delivered 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 ADPC an irrevocable standby letter of credit from a creditworthy (together with any renewals or replacements thereof, the “Credit Support LC”) 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 bank acceptable (the “Guarantee”) pursuant to ▇▇▇▇▇▇ ▇▇▇▇▇▇ for that certain letter agreement by and between ADPC and Seller, dated as of March 30, 2016 (the account “Credit Support Agreement”), copies of Buyer or Buyer Parent Guarantor as applicant in an amount (x) sufficient which have previously been provided 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 ClosingBuyer. (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 Closingindemnify, 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 defend and hold harmless each member of Seller and its Affiliates Group from and against any and all Losses that may be suffered(including draws against, incurred or sustained by costs and liabilities in maintaining, and any of them or to which any of them become subjectcosts in cancelling such Credit Support LC) relating to, resulting from, or arising out of or relating to the ▇▇▇▇ Guaranty being in effect on or after the Closing Date such Credit Support LC and incurred by Seller. (including as a result of any draw or demand for or making of any payment by ▇▇▇▇ under the ▇▇▇▇ Guarantyc) 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 Within five (5) Business Days after the earlier of (i) date that Seller shall have assigned and delegated, and Buyer shall have accepted and assumed, all of such written notice. If Buyer fails Seller’s obligations under the Destin Purchase Agreement and the Credit Support Agreement pursuant 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 and in accordance with the terms thereof; Section 9.17 and (ii) the date that Seller shall have received consent from and after ADPC to Buyer’s replacement of the ClosingCredit Support LC (the “LC Replacement Period”), Buyer shall deliver to Seller a letter of credit, in form and Seller shall continue substance acceptable to use Commercially Reasonable Efforts to obtain Seller, in the full Stated Amount (as defined therein) of the Credit Support LC (the “Replacement LC,” and unconditional release of ▇▇▇▇ from its obligations under the ▇▇▇▇ Guaranty as contemplated by Section 6.5(a); and (iiidate that Buyer actually delivers such Replacement LC, the “Replacement LC Delivery Date”) Buyer shall not, and shall cause as of the Acquired Companies not to, effect any amendments or modifications or any other changes Replacement LC Delivery Date the release of the Seller Group from all obligations relating to the Contracts Credit Support LC and any Losses related thereto, unless Seller or obligations to which any Buyer has obtained the release 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 Guarantee pursuant to Section 6.5(b), at 7.2(d)(i) of the Destin Purchase Agreement prior to 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 cancellationLC Replacement Period.

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.