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 THE INVESTOR, 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 WITHOUT THE PRIOR WRITTEN CONSENT OF THE INVESTOR AND
THE OTHER INVESTORS.
11.
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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17
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement by
their authorized representatives as of the date first above written.
CITIGROUP CAPITAL PARTNERS II
2007 CITIGROUP INVESTMENT, L.P.
By: Citigroup Private Equity LP, its general
partner
By:
/s/ Darren Friedman
Name: Darren Friedman
Title: Vice President
CITIGROUP CAPITAL PARTNERS II
EMPLOYEE MASTER FUND, L.P.
By: Citigroup Private Equity LP, its general
partner
By:
/s/ Darren Friedman
Name: Darren Friedman
Title: Vice President
CITIGROUP CAPITAL PARTNERS II
ONSHORE, L.P.
By: Citigroup Private Equity