Common use of Equity Commitments Clause in Contracts

Equity Commitments. 2.5.1 Each of the Investors hereby affirms and agrees that it is bound by its Commitment or Rollover Commitment, as applicable, and the provisions set forth in each of its Equity Commitment Letters or Rollover Agreement, as applicable, and that Parent shall be entitled to enforce the provisions of each Equity Commitment Letter or Rollover Agreement, as applicable, upon the direction of (a) the Majority Holder (provided that the Majority Holder has delivered a written notice to each other Investor stating that the Majority Holder will fund its or their Commitment immediately prior to the consummation of the Merger and concurrently with the funding of the Commitments of the other Initial and Joining Investors and the transfer and contribution of the Rollover Commitment by the Rollover Investor) or (b) the Company if the Company is permitted to enforce, or to cause Parent to enforce, the provisions of the Equity Commitment Letters and Rollover Agreement, as applicable, under the specific circumstances and as specifically set forth therein and in Section 8.5 of the Merger Agreement and does in fact so enforce, or cause Parent to enforce, such provisions. To the extent Parent enforces any Equity Commitment Letter or Rollover Agreement, as applicable, at the direction of the Majority Holder, Parent shall not attempt to enforce any Closing Equity Commitment Letter or Rollover Agreement, as applicable, until the Closing Conditions have been satisfied or validly waived as permitted hereunder. The Equity Commitment Letters shall only be funded by each Initial and Joining Investor ratably and substantially contemporaneously with each of the other Initial and Joining Investors and with the Rollover Commitment under the Rollover Agreement, the Rollover Shares shall only be transferred and contributed to Parent substantially contemporaneously with the Initial and Joining Investors funding under their Commitments, and Parent shall only enforce the Equity Commitment Letters and Rollover Agreement ratably among the Investors. Parent shall not have any right to enforce an Equity Commitment Letter or Rollover Agreement, as applicable, unless acting at the direction of the Majority Holder or the Company as set forth above, and no Investor shall have any right to enforce any of the Equity Commitment Letters or the Rollover Agreement other than (x) an Investor shall have the right to enforce any Equity Commitment Letter or Rollover Agreement to which it is a party and (y) as set forth in the last sentence of Section 5.3.2. 2.5.2 Prior to the Closing and the contribution of the equity funding contemplated by each Equity Commitment Letter and the Rollover Investment contemplated by the Rollover Agreement, BCP (or an Affiliate thereof) shall be the shareholder and appoint the members of the board of directors of Parent or any of its holding companies or Subsidiaries, including Merger Sub. 2.5.3 Except in the case of and to the extent of any syndication, all equity interests issued by Parent in connection with the Equity Commitment Letters or Rollover Agreement, as the case may be, at the Closing shall be issued to the Investors and their respective Permitted Transferees pro rata in class, series and amount and otherwise in accordance with such Investors’ Commitments or Rollover Commitment, as the case may be, and each Consortium Investor shall purchase (or acquire through rollover in the case of the Rollover Investor) equity interests (or debt instruments or securities) of each class and series at the same price per share (or other applicable unit).

Equity Commitments. 2.5.1 2.1.1 Each of Sponsor hereby agrees to fund or cause to be funded the Investors Commitment under its Equity Commitment Letter, on the terms and subject to the conditions and limitations thereof. Each Sponsor hereby affirms and agrees that it the Buyer is bound by its Commitment or Rollover Commitment, as applicable, and the provisions set forth in each of its Equity Commitment Letters or Rollover Agreement, as applicable, and that Parent shall be entitled to and shall enforce the provisions of the Equity Commitment Letters in accordance with this Agreement and the terms of each such Equity Commitment Letter or Rollover Agreement, as applicable, upon the direction of (a) the Majority Holder (provided that the Majority Holder has delivered a written notice to each other Investor stating that the Majority Holder will fund its or their Commitment immediately prior to the consummation of the Merger and concurrently with the funding of the Commitments of the other Initial and Joining Investors and the transfer and contribution of the Rollover Commitment by the Rollover Investor) or (b) the Company if the Company is permitted to enforce, or cause the Buyer to cause Parent to enforce, enforce the provisions of the such Equity Commitment Letters and Rollover Agreement, as applicable, Letter under the specific circumstances and as specifically set forth therein and in Section 8.5 11.11 of the Merger Purchase Agreement and does in fact so enforce, or cause Parent the Buyer to enforce, enforce such provisions. To Neither the extent Parent enforces Buyer nor the Sponsors shall attempt to enforce the funding of any Commitment under any Equity Commitment Letter or Rollover Agreement, as applicable, at the direction of the Majority Holder, Parent shall not attempt to enforce any Closing Equity Commitment Letter or Rollover Agreement, as applicable, until the Closing Conditions have been satisfied or validly waived as permitted hereunder. The Equity Commitment Letters shall only be funded by each Initial and Joining Investor ratably and substantially contemporaneously with each of the other Initial and Joining Investors and with the Rollover Commitment under the Rollover Agreement, the Rollover Shares shall only be transferred and contributed to Parent substantially contemporaneously with the Initial and Joining Investors funding under their Commitments, and Parent shall only enforce the Equity Commitment Letters and Rollover Agreement ratably among the Investors. Parent shall not have any right to enforce an Equity Commitment Letter or Rollover Agreement, as applicable, unless acting at the direction of the Majority Holder or the Company as set forth above, and no Investor shall have any right to enforce any of the Equity Commitment Letters or the Rollover Agreement other than (x) an Investor shall have the right to enforce any Equity Commitment Letter or Rollover Agreement to which it is a party and (y) as applicable conditions set forth in the last foregoing sentence of Section 5.3.2. 2.5.2 Prior have been satisfied and, if such conditions are satisfied, DYN shall be entitled to cause the Closing and Buyer to enforce the contribution provisions of the equity funding contemplated by each ECP Equity Commitment Letter in the event ECP has not funded thereunder and ECP shall be entitled to cause the Buyer to enforce the provisions of the DYN Equity Commitment Letter in the event DYN has not funded thereunder. This Section 2.1.1 shall terminate upon the occurrence of the First Buyout Condition. 2.1.2 In the event that the PIPE Closing occurs concurrently with the Closing, DYN hereby agrees to use the aggregate Purchase Price (as defined in the Stock Purchase Agreement), less related costs and expenses, to fund a portion of the Commitment under the DYN Equity Commitment Letter. In the event that the PIPE Closing occurs following the Closing, each Sponsor and the Rollover Investment Buyer shall take the actions contemplated by Section 2.15.2. In the Rollover event that the parties under the Stock Purchase Agreement are required to consummate the PIPE Closing in accordance with the Stock Purchase Agreement, BCP ECP shall cause Terawatt to pay the Purchase Price (or an Affiliate thereof) shall be the shareholder and appoint the members of the board of directors of Parent or any of its holding companies or Subsidiaries, including Merger Sub. 2.5.3 Except as defined in the case of and Stock Purchase Agreement) pursuant to the Stock Purchase Agreement and, to the extent Terawatt does not have the requisite funds to pay all of the Purchase Price (as defined in the Stock Purchase Agreement), ECP shall provide such requisite funds to Terawatt. 2.1.3 If the First Buyout Condition fails to occur, notwithstanding anything to the contrary in this Agreement and the Commitment Letters, the Sponsors hereby agree that in the event that the Buyer does not require the full amount of the Sponsors’ aggregate Commitment to fulfill its obligations under the Purchase Agreement (such unused amount, the “Excess Amount”), all or a portion of any syndicationsuch Excess Amount shall nevertheless be contributed to the Buyer in an amount necessary to satisfy the minimum cash balance of the Buyer required under the Debt Commitment Letter, all equity interests issued and thereafter, the Commitment of each Sponsor shall be reduced as follows: first, ECP’s Commitment shall be reduced by Parent up to the Bridge Portion and then, if the Excess Amount exceeds the Bridge Portion, each Sponsor’s Commitment shall be reduced by its pro rata portion (in connection accordance with its respective Commitment Percentage). 2.1.4 If the First Buyout Condition fails to occur, in exchange for each Sponsor’s Equity Commitment Letters or Rollover Agreement, as the case may beCommitment, at the Closing shall be issued to Closing, upon execution of an Amended and Restated Limited Liability Company Agreement of the Investors and their respective Permitted Transferees pro rata in class, series and amount and otherwise in accordance with such Investors’ Commitments or Rollover Commitment, as the case may be, and each Consortium Investor shall purchase (or acquire through rollover Buyer substantially in the case form of the Rollover Investor) equity LLC Agreement Form, the Buyer shall issue, directly or indirectly, to each Sponsor an additional number of limited liability company interests in the Buyer so that each such Sponsor shall hold, directly or indirectly, a number of limited liability company interests in the Buyer equal to such Sponsor’s Commitment Percentage of the outstanding limited liability company interests in the Buyer (or debt instruments or securities) of each class and series at the same price per share (or other applicable unitafter giving effect to such issuances).

Equity Commitments. 2.5.1 Each (a) Subject to the terms of the SAC Equity Commitment Letter, SAC Capital hereby assigns $92,457,329.00 of its commitment under the SAC Equity Commitment Letter to Mobile Investors and the parties hereto agree that the amount of such assignment may be increased and/or decreased from time to time by SAC Capital and Mobile Investors. Notwithstanding anything herein to the contrary, parties to this Agreement other than SAC Capital and Mobile Investors shall not be entitled to enforce this Section 2.3(a). (b) Each Investor hereby affirms and agrees that it is bound by its Commitment or Rollover CommitmentBuyer, as applicableacting at the direction of Mobile Investors, and the provisions set forth in each of its Equity Commitment Letters or Rollover Agreement, as applicable, and that Parent shall be entitled to enforce (including seeking specific performance) the provisions of each Equity Commitment Letter or Rollover Agreementin accordance with its terms; provided, as applicablehowever, upon that it is understood that it is anticipated that $10 million of the direction commitment under the SAC Commitment Letter will be funded by certain of (a) the Majority Holder (provided that lenders under the Majority Holder has delivered a written notice to each other Investor stating that the Majority Holder will fund its Debt Commitment Letter or their Commitment immediately prior affiliates pursuant to the consummation a separate equity commitment letter with Buyer and that it is anticipated that a portion of the Merger funds to be provided by Mobile Investors pursuant to its commitment hereunder will be provided using funds committed to Mobile Investors by certain affiliates of Sankaty Advisors LLC and concurrently with the funding ZelnickMedia. Buyer shall not attempt such enforcement of the Commitments of the other Initial and Joining Investors and the transfer and contribution of the Rollover Commitment by the Rollover Investor) or (b) the Company if the Company is permitted to enforce, or to cause Parent to enforce, the provisions of the Equity Commitment Letters and Rollover Agreement, as applicable, under the specific circumstances and as specifically set forth therein and in Section 8.5 of the Merger Agreement and does in fact so enforce, or cause Parent to enforce, such provisions. To the extent Parent enforces any Equity Commitment Letter or Rollover Agreement, as applicable, at the direction of the Majority Holder, Parent shall not attempt to enforce any Closing Equity Commitment Letter or Rollover Agreement, as applicable, until Mobile Investors has determined that the Closing Conditions have been satisfied or validly waived as permitted hereunder. The Equity Commitment Letters shall only be funded by each Initial and Joining Investor ratably and substantially contemporaneously with each of the other Initial and Joining Investors and with the Rollover Commitment under the Rollover Agreement, the Rollover Shares shall only be transferred and contributed to Parent substantially contemporaneously with the Initial and Joining Investors funding under their Commitments, and Parent shall only enforce the Equity Commitment Letters and Rollover Agreement ratably among the Investors. Parent shall not have any right to enforce an Equity Commitment Letter or Rollover Agreement, as applicable, unless acting at the direction of the Majority Holder or the Company as set forth above, and no Investor Buyer shall have any no right to enforce any of the Equity Commitment Letters or (including the portion of SAC Capital’s obligation assigned to Mobile Investors hereunder) unless acting at the direction of Mobile Investors. The Rollover Agreement other than (x) an Investor Investors shall not have the any right to enforce (including seeking specific performance) the SAC Equity Commitment Letter (including the portion of SAC Capital’s obligation assigned to Mobile Investors hereunder). For the avoidance of doubt, it is understood that the creditors of Buyer shall not have any right to enforce (including seeking specific performance) the Equity Commitment Letters (including the portion of SAC Capital’s obligation assigned to Mobile Investors hereunder) or to cause Buyer to enforce (including seeking specific performance) any of the Equity Commitment Letters (including the portion of SAC Capital’s obligation assigned to Mobile Investors hereunder). (c) Prior to the Closing, no Investor shall transfer, directly or indirectly, its obligations and/or rights under its Equity Commitment Letter or Rollover Agreement this Agreement, other than as approved in writing by Mobile Investors; provided, however, that in each case any such transferee shall be obligated to which it is become a party to this Agreement and no such assignment shall relieve the assigning party of its obligations hereunder if the assignee does not perform its obligations. (yd) as Mobile Investors, or Buyer acting at the direction of Mobile Investors, shall be permitted to terminate any Rollover Commitment Letter in whole or in part if any Rollover Investor party thereto is in material breach of its obligations to fund the Commitment set forth in the last sentence of Section 5.3.2. 2.5.2 Prior to the Closing and the contribution of the equity funding contemplated by each Equity such Rollover Commitment Letter; provided, that any such termination shall not relieve any Investor from liability for any breach under any Rollover Commitment Letter and the Rollover Investment contemplated by the Rollover Agreement, BCP (or an Affiliate thereof) shall be the shareholder and appoint the members of the board of directors of Parent or prior to any of its holding companies or Subsidiaries, including Merger Subsuch termination. 2.5.3 Except in the case of and to the extent of any syndication, all equity interests issued by Parent in connection with the Equity Commitment Letters or Rollover Agreement, as the case may be, at the Closing shall be issued to the Investors and their respective Permitted Transferees pro rata in class, series and amount and otherwise in accordance with such Investors’ Commitments or Rollover Commitment, as the case may be, and each Consortium Investor shall purchase (or acquire through rollover in the case of the Rollover Investor) equity interests (or debt instruments or securities) of each class and series at the same price per share (or other applicable unit).

Equity Commitments. 2.5.1 Each (a) On and subject to the terms and conditions hereof, including entry of the Investors hereby affirms Confirmation Order and agrees that it is bound by its the ECA Approval Order, each Commitment or Rollover CommitmentParty agrees, as applicableseverally and not jointly, to purchase, and the provisions set forth in each Company agrees to sell to such Commitment Party, on the Closing Date, for a per-share amount equal to the Purchase Price, a number of its Equity Commitment Letters or Rollover Agreement, as applicable, and that Parent shall be entitled Common Shares equal to enforce the provisions of each Equity Commitment Letter or Rollover Agreement, as applicable, upon the direction of (a) such Commitment Party’s Equity Commitment Percentage as of the Majority Holder Closing Date multiplied by (provided b) the aggregate number of Equity Commitment Shares, rounded among the Commitment Parties solely to avoid fractional shares as the Commitment Parties may determine in their sole discretion. The obligations of the Commitment Parties to purchase such Equity Commitment Shares as described in this Section 2.1(a) shall be referred to as the “Equity Commitment”. (b) From the date hereof until July 19, 2019, any unsecured creditor of the Debtors that is not an Initial Commitment Party may elect to become a Subsequent Commitment Party by executing and delivering a Subsequent Commitment Party Joinder executed by such Subsequent Commitment Party and the Majority Holder has delivered Company, pursuant to which such Subsequent Commitment Party shall agree to be bound by the terms and provisions of this Agreement. Such Subsequent Commitment Party shall have a written notice to each other Investor stating that the Majority Holder will fund its or their Final Equity Commitment immediately prior equal to the consummation amount listed on the signature page to such Subsequent Commitment Party’s Subsequent Commitment Party Joinder, which amount shall be no more than the product of (i) its Claim Percentage multiplied by (ii) the Merger and concurrently with Aggregate Equity Commitment Amount. Schedule 1 (including the funding of the Final Equity Commitments of the other Initial Commitment Parties) shall be updated to reflect the addition of any Subsequent Commitment Parties in accordance with the terms hereof and Joining Investors and thereof. (c) Fifteen (15) days prior to the transfer and contribution date scheduled for the confirmation hearing on the Plan, the Chief Restructuring Officer of the Rollover Company shall deliver a written certificate to the Parties indicating the aggregate amount of cash that he in good faith believes is required to be paid as consideration pursuant to this Agreement so that the reorganized Debtors (i) are projected to have at least $75,000,000 of unrestricted cash on their consolidated balance sheet projected as of the Effective Date (after taking into account the Effective Date Funded Debt (as defined in the Restructuring Term Sheet)) and (ii) are able to satisfy the payment of the Allowed Thirty Two Claim (as defined in the Restructuring Term Sheet) if the New Secured Financing (as defined in the Restructuring Term Sheet) is insufficient to satisfy the payment of the Allowed Thirty Two Claim (as defined in the Restructuring Term Sheet) (collectively, the “Aggregate Equity Contribution”); provided, however, that notwithstanding anything herein to the contrary, the Aggregate Equity Contribution shall not exceed the Aggregate Equity Commitment Amount in connection with (i) above. To the extent the Debtors collect, or, in the opinion of the Chief Restructuring Officer of the Company, are expected to collect, within 30 days following the Effective Date, past-due accounts receivables and/or letters of credit associated therewith are released following delivery of such certificate, which in either case result in additional unrestricted cash on the balance sheet on or before the Effective Date, then the Chief Restructuring Officer of the Company shall so notify the parties in writing and, subject to the proviso in the prior sentence, the Aggregate Equity Contribution shall be revised. (d) The aggregate number of Common Shares that will be received by the Rollover Investor) or Commitment Parties in exchange for the Aggregate Equity Contribution shall equal the quotient of (bi) the Company if Aggregate Equity Contribution divided by (ii) the Company is permitted to enforce, or to cause Parent to enforcePurchase Price (collectively, the provisions “Equity Commitment Shares”). The issuance of the Equity Commitment Letters Shares to the Commitment Parties, and Rollover Agreementany issuance of Common Shares in satisfaction of the Company’s obligation to pay the Commitment Premium, shall be exempt from the registration requirements of the securities laws pursuant to Section 4(a)(2) of the Securities Act of 1933, as applicable, under the specific circumstances and as specifically set forth therein and in Section 8.5 of the Merger Agreement and does in fact so enforceamended, or cause Parent to enforce, such provisions. To the extent Parent enforces any Equity Commitment Letter or Rollover Agreement, as applicable, at the direction of the Majority Holder, Parent shall not attempt to enforce any Closing Equity Commitment Letter or Rollover Agreement, as applicable, until the Closing Conditions have been satisfied or validly waived as permitted hereunder. The Equity Commitment Letters shall only be funded by each Initial and Joining Investor ratably and substantially contemporaneously with each of the other Initial and Joining Investors and with the Rollover Commitment under the Rollover Agreement, the Rollover Shares shall only be transferred and contributed to Parent substantially contemporaneously with the Initial and Joining Investors funding under their Commitments, and Parent shall only enforce the Equity Commitment Letters and Rollover Agreement ratably among the Investors. Parent shall not have any right to enforce an Equity Commitment Letter or Rollover Agreement, as applicable, unless acting at the direction of the Majority Holder or the Company as set forth above, and no Investor shall have any right to enforce any of the Equity Commitment Letters or the Rollover Agreement other than (x) an Investor shall have the right to enforce any Equity Commitment Letter or Rollover Agreement to which it is a party and (y) as set forth in the last sentence of Section 5.3.2another available exemption from registration. 2.5.2 Prior to the Closing and the contribution of the equity funding contemplated by each Equity Commitment Letter and the Rollover Investment contemplated by the Rollover Agreement, BCP (or an Affiliate thereof) shall be the shareholder and appoint the members of the board of directors of Parent or any of its holding companies or Subsidiaries, including Merger Sub. 2.5.3 Except in the case of and to the extent of any syndication, all equity interests issued by Parent in connection with the Equity Commitment Letters or Rollover Agreement, as the case may be, at the Closing shall be issued to the Investors and their respective Permitted Transferees pro rata in class, series and amount and otherwise in accordance with such Investors’ Commitments or Rollover Commitment, as the case may be, and each Consortium Investor shall purchase (or acquire through rollover in the case of the Rollover Investor) equity interests (or debt instruments or securities) of each class and series at the same price per share (or other applicable unit).