PROVISIONS HEREOF SHALL NOT IN ANY WAY BE
AFFECTED OR IMPAIRED THEREBY.
9.
SUCCESSORS; BINDING EFFECT.
EACH INDEMNIFYING PARTY WILL REQUIRE
ANY SUCCESSOR (WHETHER DIRECT OR INDIRECT, BY PURCHASE, MERGER, CONSOLIDATION,
REORGANIZATION OR OTHERWISE) TO ALL OR SUBSTANTIALLY ALL OF THE BUSINESS AND
ASSETS OF SUCH INDEMNIFYING PARTY, BY AGREEMENT IN FORM AND SUBSTANCE
SATISFACTORY TO MANAGER, THE FUND, THE OTHER
12
INVESTORS AND THEIR COUNSEL, EXPRESSLY TO ASSUME AND AGREE TO PERFORM THIS
AGREEMENT IN THE SAME MANNER AND TO THE SAME EXTENT THAT SUCH INDEMNIFYING PARTY
WOULD BE REQUIRED TO PERFORM IF NO SUCH SUCCESSION HAD TAKEN PLACE.
THIS
AGREEMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF EACH PARTY HERETO
AND ITS SUCCESSORS AND PERMITTED ASSIGNS, AND EACH OTHER INDEMNITEE, BUT NEITHER
THIS AGREEMENT NOR ANY RIGHT, INTEREST OR OBLIGATION HEREUNDER SHALL BE
ASSIGNED, WHETHER BY OPERATION OF LAW OR OTHERWISE, BY THE COMPANY ENTITIES
WITHOUT THE PRIOR WRITTEN CONSENT OF MANAGER, THE FUND AND THE OTHER INVESTORS.
10.
MISCELLANEOUS.
THE HEADINGS CONTAINED IN THIS AGREEMENT ARE FOR
REFERENCE PURPOSES ONLY AND SHALL NOT AFFECT IN ANY WAY THE MEANING OR
INTERPRETATION OF THIS AGREEMENT.
THIS AGREEMENT IS NOT INTENDED TO CONFER ANY
RIGHT OR REMEDY HEREUNDER UPON ANY PERSON OTHER THAN EACH OF THE PARTIES HERETO
AND THEIR RESPECTIVE SUCCESSORS AND PERMITTED ASSIGNS AND EACH OTHER
INDEMNITEE.
NO AMENDMENT, MODIFICATION, SUPPLEMENT OR DISCHARGE OF THIS
AGREEMENT, AND NO WAIVER HEREUNDER SHALL BE VALID AND BINDING UNLESS SET FORTH
IN WRITING AND DULY EXECUTED BY THE PARTY OR OTHER INDEMNITEE AGAINST WHOM
ENFORCEMENT OF THE AMENDMENT, MODIFICATION, SUPPLEMENT OR DISCHARGE IS SOUGHT.
NEITHER THE WAIVER BY ANY OF THE PARTIES HERETO OR ANY OTHER INDEMNITEE OF A
BREACH OF OR A DEFAULT UNDER ANY OF THE PROVISIONS OF THIS AGREEMENT, NOR THE
FAILURE BY ANY PARTY HERETO OR ANY OTHER INDEMNITEE ON ONE OR MORE OCCASIONS, TO
ENFORCE ANY OF THE PROVISIONS OF THIS AGREEMENT OR TO EXERCISE ANY RIGHT, POWERS
OR PRIVILEGE HEREUNDER, SHALL BE CONSTRUED AS A WAIVER OF ANY OTHER BREACH OR
DEFAULT OF A SIMILAR NATURE, OR AS A WAIVER OF ANY PROVISIONS HEREOF, OR ANY
RIGHTS, POWERS OR PRIVILEGES HEREUNDER.
THE RIGHTS, INDEMNITIES AND REMEDIES
HEREIN PROVIDED ARE CUMULATIVE AND ARE NOT EXCLUSIVE OF ANY RIGHTS, INDEMNITIES
OR REMEDIES THAT ANY PARTY OR OTHER INDEMNITEE MAY OTHERWISE HAVE BY CONTRACT,
AT LAW OR IN EQUITY OR OTHERWISE.
THIS AGREEMENT MAY BE EXECUTED IN SEVERAL
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL, AND ALL OF WHICH
TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement by
their authorized representatives as of the date first above written.
MERRILL LYNCH GLOBAL PARTNERS, INC.
By:
/s/ Gregory A. Bitar
Name: Gregory A. Bitar
Title: Managing Director
ML GLOBAL PRIVATE EQUITY FUND, L.P.
By:
MLGPE LTD, its general partner
By:
/s/ Gregory A. Bitar
Name: Gregory A. Bitar
Title: Managing