IN FORM AND SUBSTANCE
SATISFACTORY TO MANAGER, THE FUND, THE OTHER 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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13
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement by
their authorized representatives as of the date first above written.
TC Group IV, L.L.C.
By:
TC Group, L.L.C., its sole member
By:
TCG Holdings, L.L.C., its managing member
By:
/s/ Gregory S. Ledford
Name:
Gregory S. Ledford
Title:
Managing Director
CARLYLE PARTNERS IV, L.P.
By:
TC Group IV, L.P., its general partner
By:
TC Group IV, L.L.C., its general partner
By:
TC Group, L.L.C., its sole member
By:
TCG Holdings, L.L.C., its managing member
By:
/s/ Gregory S. Ledford
Name:
Gregory S. Ledford
Title:
Managing Director
CP IV COINVESTMENT, L.P.
By:
TC Group IV, L.P., its general partner
By:
TC Group