Common use of Damages Commitment Clause in Contracts

Damages Commitment. In the event Parent or Merger Sub is determined pursuant to a final, non-appealable judgment to be liable for monetary damages for Parent or Merger Sub’s Fraud or willful breach (as defined in Section 8.02 of the Merger Agreement) of the Merger Agreement pursuant to and in accordance with Section 8.03(d) of the Merger Agreement, then the Sponsor hereby commits and agrees to, severally and not jointly with the Other Sponsor, purchase, or to cause the purchase of, equity interests of Parent and to pay, or cause to be paid to Parent in exchange therefor, its pro rata portion (calculated based on the relative Equity Commitment hereunder and under the Other Sponsor Equity Commitment Letter) of such monetary damages (the “Damages Commitment”), the proceeds of which shall be used by Parent solely to pay the amount of such monetary damages pursuant to the Merger Agreement; provided that (a) in no event shall Sponsor’s aggregate monetary obligations pursuant to this Section 3 exceed its pro rata portion (calculated based on the relative Equity Commitment hereunder and under the Other Sponsor Equity Commitment Letter) of the Parent Liability Cap (the “Damages Commitment Cap”) and (b) the Damages Commitment shall be subject to the substantially contemporaneous payment to Parent of the “Damages Commitment” contemplated by the Other Sponsor Equity Commitment Letter; provided that clause (b) shall not limit or impair the ability of Parent or the Company to seek enforcement of the Damages Commitment of the Sponsor under and in accordance with this Section 3 if and only if (x) Parent or the Company, as applicable, is also seeking, to the same extent, enforcement of the “Damages Commitment” contemplated by the Other Sponsor Equity Commitment Letter in accordance with the terms thereof or (y) the Other Sponsor has satisfied or has irrevocably confirmed it is prepared to satisfy its “Damages Commitment” under the Other Sponsor Equity Commitment Letter.

Damages Commitment. In Upon the event terms and subject to the conditions set forth herein, the Investors hereby agree that if (i) the Merger Agreement is terminated by the Company pursuant to Section 8.1(g) of the Merger Agreement under circumstances where Parent may be liable for damages with respect to a Willful Breach by Parent or Merger Sub is determined pursuant to a final, non-appealable judgment to be liable for monetary damages for of the Merger Agreement or fraud by Parent or Merger Sub’s Fraud , in each case, prior to or willful breach (as defined in connection with such termination and in accordance with, and subject to the conditions set forth in, Section 8.02 8.2(b) of the Merger AgreementAgreement (“Qualifying Termination”) and (ii) damages with respect to such Qualifying Termination (the “Parent Liability”) have been (x) finally agreed pursuant to a final written settlement agreement between Parent and the Company or (y) awarded by a court having jurisdiction under Section 9.10 of the Merger Agreement pursuant to a final non-appealable Order finding that such obligation is due and in accordance payable by Parent (the amount so awarded or agreed, together with Section 8.03(d) any out-of-pocket fees and expenses and other amounts required to be paid by Parent or Merger Sub as a result of Parent’s failure to pay or cause to be paid the Merger AgreementRequired Amounts, then the Sponsor hereby commits and agrees to“Parent Qualifying Termination Liability”), severally and not jointly with the Other Sponsor, Investors shall purchase, or to cause the purchase of, equity interests Equity Securities of Parent and for an aggregate amount in immediately available cash funds equal to paythe Parent Qualifying Termination Liability (or, or cause to be paid to Parent in exchange thereforthe case of each Investor, its pro rata portion (calculated based on the relative Equity Commitment hereunder and under the Other Sponsor Equity Commitment Letter) Pro Rata Percentage of such monetary damages amount), not to exceed the Damages Commitment Cap (the defined below)(the “Damages Commitment”), the proceeds of which amount shall be used by Parent solely to pay fund and satisfy the amount Parent Qualifying Termination Liability. The aggregate obligation of such monetary damages pursuant the Investors to the Merger Agreement; provided that (a) in no event shall Sponsor’s aggregate monetary obligations fund any amounts pursuant to this Section 3 shall in no event exceed $600,000,000 in the aggregate (or, in the case of each Investor, its pro rata portion (calculated based on the relative Equity Commitment hereunder and under the Other Sponsor Equity Commitment LetterPro Rata Percentage of such amount) of the Parent Liability Cap (the “Damages Commitment Cap”) and (b) ). The obligation of the Investors to fund the Damages Commitment may be reduced by the Investors on a dollar for dollar basis for purchases of securities of Parent by an assignee or transferee permitted by Section 6 of this letter agreement. For the avoidance of doubt, nothing herein shall be subject limit the Company’s right to the substantially contemporaneous payment to Parent specific performance of the “Damages Commitment” contemplated by obligations of Parent, including to effect the Other Sponsor Equity Commitment Letter; provided that clause (b) shall not limit or impair the ability of Parent or the Company to seek enforcement of the Damages Commitment of the Sponsor under and Closing, in accordance with this Section 3 if and only if (x) Parent or the Company, as applicable, is also seeking, to the same extent, enforcement 9.8 of the “Damages Commitment” contemplated by the Other Sponsor Equity Commitment Letter in accordance with the terms thereof or (y) the Other Sponsor has satisfied or has irrevocably confirmed it is prepared to satisfy its “Damages Commitment” under the Other Sponsor Equity Commitment LetterMerger Agreement.

Damages Commitment. In The Family Stockholders hereby jointly and severally commit, subject to the event Parent or terms and conditions set forth in Section 3(b) hereof, that if the Company terminates the Merger Sub is determined Agreement pursuant to Section 7.01(d) of the Merger Agreement to the extent that damages are either (A) judicially determined by a final, non-appealable and binding judgment to be liable for monetary damages for of a court of competent jurisdiction rendered against Parent or Merger Sub’s Fraud or willful breach (as defined Sub in Section 8.02 favor of the Merger Agreement) Company in respect of a breach of the Merger Agreement pursuant by Parent or Merger Sub or (B) agreed in writing by Parent and the Company to be paid by Parent or Merger Sub to the Company (such amounts payable, “Damages”, and in accordance with Section 8.03(dthe aggregate amount of such Damages, the “Damage Amount”), the Family Stockholders hereby jointly and severally commit to K-Z Evergreen that they agree to fund an aggregate amount not to exceed $23,750,000 to K-Z Evergreen (the “Maximum Damage Commitment Amount”) of the Merger Agreement, then the Sponsor hereby commits and agrees to, severally and not jointly with the Other Sponsor, solely to allow K-Z Evergreen to purchase, or to cause the purchase of, directly or indirectly through one or more intermediate entities, equity interests securities of Parent and with an aggregate purchase price not to pay, or cause exceed the Maximum Damage Commitment Amount solely to allow Parent to fund a portion of the aggregate Damage Amount to be paid to by Parent in exchange therefor, its pro rata portion (calculated based on the relative Equity Commitment hereunder and under the Other Sponsor Equity Commitment Letter) of such monetary damages or Merger Sub (the “Damages Commitment”). In the event that the Damage Amount becomes payable, the proceeds of which shall be used by Parent solely to pay the amount of such monetary damages pursuant to the Merger Agreement; provided that (a) in no event shall Sponsor’s aggregate monetary obligations the Family Stockholders be obligated to fund or otherwise pay to K-Z Evergreen or any other Person any amount in excess of the Maximum Damages Commitment Amount. If the Damage Amount under the K-Z LLC Commitment Letter is reduced pursuant to this Section 3 exceed its pro rata portion (calculated based on the relative Equity Commitment hereunder and under the Other Sponsor Equity Commitment Letter) of the Parent Liability Cap (the “Damages Commitment Cap”) and (b) terms thereof, then the Damages Commitment hereunder shall be subject reduced on a dollar for dollar basis along with any reduction to the substantially contemporaneous payment to Parent of the “Damages Commitment” contemplated by the Other Sponsor Equity Commitment Letter; provided that clause (b) shall not limit or impair the ability of Parent or the Company to seek enforcement of the Damages Commitment of under the Sponsor under and in accordance with this Section 3 if and only if (x) Parent or the Company, as applicable, is also seeking, K-Z LLC Commitment Letter pursuant to the same extent, enforcement of the “Damages Commitment” contemplated by the Other Sponsor Equity Commitment Letter in accordance with the terms thereof or (y) the Other Sponsor has satisfied or has irrevocably confirmed it is prepared to satisfy its “Damages Commitment” under the Other Sponsor Equity Commitment Letterthereof.

Damages Commitment. In The Trident VII Funds hereby commit, severally but not jointly, and subject to the event Parent or terms and conditions set forth in Section 3(b) hereof, that if the Company terminates the Merger Sub is determined Agreement pursuant to Section 7.01(d) of the Merger Agreement to the extent that damages are either (A) judicially determined by a final, non-appealable and binding judgment to be liable for monetary damages for of a court of competent jurisdiction rendered against Parent or Merger Sub’s Fraud or willful breach (as defined Sub in Section 8.02 favor of the Merger Agreement) Company in respect of a breach of the Merger Agreement pursuant by Parent or Merger Sub or (B) agreed in writing by Parent and the Company to be paid by Parent or Merger Sub to the Company (such amounts payable, “Damages”, and in accordance with Section 8.03(d) the aggregate amount of such Damages, the Merger Agreement“Damage Amount”), then the Sponsor Trident VII Funds hereby commits and agrees to, severally and not jointly with the Other Sponsor, commit to Trident Pine that they shall purchase, or to shall cause the purchase of, directly or indirectly through one or more intermediate entities, equity interests securities of Parent and Trident Pine with an aggregate purchase price not to payexceed the amounts set forth opposite their names on Schedule 1 (each, or cause the applicable “Maximum Damage Commitment Amount”) solely to allow Trident Pine to fund a portion of the aggregate Damage Amount to be paid to by Parent in exchange therefor, its pro rata portion (calculated based on the relative Equity Commitment hereunder and under the Other Sponsor Equity Commitment Letter) of such monetary damages or Merger Sub (the “Damages Commitment”). In the event that the Damage Amount becomes payable, the proceeds of which shall be used by Parent solely to pay the amount of such monetary damages pursuant to the Merger Agreement; provided that (a) in no event shall Sponsor’s aggregate monetary obligations the Trident VII Funds be obligated to fund or otherwise pay to Trident Pine or any other Person any amount in excess of the Maximum Damages Commitment Amount applicable to them. If the Damage Amount under the Trident Pine Equity Commitment Letter is reduced pursuant to this Section 3 exceed its pro rata portion (calculated based on the relative Equity Commitment hereunder and under the Other Sponsor Equity Commitment Letter) of the Parent Liability Cap (the “Damages Commitment Cap”) and (b) terms thereof, then the Damages Commitment hereunder shall be subject reduced dollar for dollar on a pro rata basis along with any reduction to the substantially contemporaneous payment to Parent of the “Damages Commitment” contemplated by the Other Sponsor Equity Commitment Letter; provided that clause (b) shall not limit or impair the ability of Parent or the Company to seek enforcement of the Damages Commitment of under the Sponsor under and in accordance with this Section 3 if and only if (x) Parent or the Company, as applicable, is also seeking, to the same extent, enforcement of the “Damages Commitment” contemplated by the Other Sponsor Trident Pine Equity Commitment Letter in accordance with pursuant to the terms thereof or (y) the Other Sponsor has satisfied or has irrevocably confirmed it is prepared to satisfy its “Damages Commitment” under the Other Sponsor Equity Commitment Letterthereof.

Damages Commitment. In K-Z Evergreen hereby commits, subject to the event Parent or terms and conditions set forth in Section 3(b) hereof, that if the Company terminates the Merger Sub is determined Agreement pursuant to Section 7.01(d) of the Merger Agreement to the extent that damages are either (A) judicially determined by a final, non-appealable and binding judgment to be liable for monetary damages for of a court of competent jurisdiction rendered against Parent or Merger Sub’s Fraud or willful breach (as defined Sub in Section 8.02 favor of the Merger Agreement) Company in respect of a breach of the Merger Agreement pursuant by Parent or Merger Sub or (B) agreed in writing by Parent and the Company to be paid by Parent or Merger Sub to the Company (such amounts payable, “Damages”, and in accordance with Section 8.03(d) the aggregate amount of such Damages, the Merger Agreement“Damage Amount”), then the Sponsor K-Z Evergreen hereby commits and agrees to, severally and not jointly with the Other Sponsor, to Parent that it shall purchase, or to shall cause the purchase of, directly or indirectly through one or more intermediate entities, equity interests securities of Parent and with an aggregate purchase price not to pay, or cause exceed $23,750,000 (the “Maximum Damage Commitment Amount”) solely to fund a portion of the aggregate Damage Amount to be paid to by Parent in exchange therefor, its pro rata portion (calculated based on the relative Equity Commitment hereunder and under the Other Sponsor Equity Commitment Letter) of such monetary damages or Merger Sub (the “Damages Commitment”). In the event that the Damage Amount becomes payable, the proceeds of which shall be used by Parent solely to pay the amount of such monetary damages pursuant to the Merger Agreement; provided that (a) in no event shall Sponsor’s K-Z Evergreen be obligated to fund or otherwise pay to Parent or any other Person any amount in excess of the Maximum Damages Commitment Amount. If the Damage Amount is less than the aggregate monetary obligations pursuant to this Section 3 exceed its pro rata portion (calculated based on the relative Equity Damages Commitment hereunder and under the Other Sponsor Trident Equity Commitment Letter) of the Parent Liability Cap (the “Damages Commitment Cap”) and (b) , then the Damages Commitment shall be subject to the substantially contemporaneous payment to Parent of the “Damages Commitment” contemplated by the Other Sponsor Equity Commitment Letter; provided that clause (b) shall not limit or impair the ability of Parent or the Company to seek enforcement of reduced on a pro rata basis with the Damages Commitment of under the Sponsor under and in accordance with this Section 3 if and only if (x) Parent or the Company, as applicable, is also seeking, to the same extent, enforcement of the “Damages Commitment” contemplated by the Other Sponsor Trident Equity Commitment Letter in accordance with the terms thereof or (y) the Other Sponsor has satisfied or has irrevocably confirmed it is prepared to satisfy its “Damages Commitment” under the Other Sponsor Equity Commitment Letterby such difference.

Damages Commitment. In Trident Pine hereby commits, subject to the event Parent or terms and conditions set forth in Section 3(b) hereof, that if the Company terminates the Merger Sub is determined Agreement pursuant to Section 7.01(d) of the Merger Agreement to the extent that damages are either (A) judicially determined by a final, non-appealable and binding judgment to be liable for monetary damages for of a court of competent jurisdiction rendered against Parent or Merger Sub’s Fraud or willful breach (as defined Sub in Section 8.02 favor of the Merger Agreement) Company in respect of a breach of the Merger Agreement pursuant by Parent or Merger Sub or (B) agreed in writing by Parent and the Company to be paid by Parent or Merger Sub to the Company (such amounts payable, “Damages”, and in accordance with Section 8.03(d) the aggregate amount of such Damages, the Merger Agreement“Damage Amount”), then the Sponsor Trident Pine hereby commits and agrees to, severally and not jointly with the Other Sponsor, to Parent that it shall purchase, or to shall cause the purchase of, directly or indirectly through one or more intermediate entities, equity interests securities of Parent and with an aggregate purchase price not to pay, or cause exceed $23,750,000 (the “Maximum Damage Commitment Amount”) solely to fund a portion of the aggregate Damage Amount to be paid to by Parent in exchange therefor, its pro rata portion (calculated based on the relative Equity Commitment hereunder and under the Other Sponsor Equity Commitment Letter) of such monetary damages or Merger Sub (the “Damages Commitment”). In the event that the Damage Amount becomes payable, the proceeds of which shall be used by Parent solely to pay the amount of such monetary damages pursuant to the Merger Agreement; provided that (a) in no event shall Sponsor’s Trident Pine be obligated to fund or otherwise pay to Parent or any other Person any amount in excess of the Maximum Damages Commitment Amount. If the Damage Amount is less than the aggregate monetary obligations pursuant to this Section 3 exceed its pro rata portion (calculated based on the relative Equity Damages Commitment hereunder and under the Other Sponsor K-Z LLC Equity Commitment Letter) of the Parent Liability Cap (the “Damages Commitment Cap”) and (b) , then the Damages Commitment shall be subject to the substantially contemporaneous payment to Parent of the “Damages Commitment” contemplated by the Other Sponsor Equity Commitment Letter; provided that clause (b) shall not limit or impair the ability of Parent or the Company to seek enforcement of reduced on a pro rata basis with the Damages Commitment of under the Sponsor under and in accordance with this Section 3 if and only if (x) Parent or the Company, as applicable, is also seeking, to the same extent, enforcement of the “Damages Commitment” contemplated by the Other Sponsor K-Z LLC Equity Commitment Letter in accordance with the terms thereof or (y) the Other Sponsor has satisfied or has irrevocably confirmed it is prepared to satisfy its “Damages Commitment” under the Other Sponsor Equity Commitment Letterby such difference.