OR CONSENT TO THE ENTRY OF ANY JUDGMENT IN ANY PENDING OR THREATENED ACTION
RELATING TO THE MATTERS CONTEMPLATED HEREBY (IF ANY INDEMNIFIED PARTY IS A PARTY
THERETO OR HAS BEEN ACTUALLY THREATENED TO BE MADE A PARTY THERETO) UNLESS SUCH
SETTLEMENT, COMPROMISE OR CONSENT INCLUDES AN UNCONDITIONAL RELEASE OF THE
RELEVANT INDEMNIFIED PARTY AND EACH OTHER INDEMNIFIED PARTY FROM ALL LIABILITY
ARISING OR THAT MAY ARISE OUT OF OR IN CONNECTION WITH SUCH ACTION.
PROVIDED
THAT THE COMPANY IS NOT IN BREACH OF ITS INDEMNIFICATION OBLIGATIONS HEREUNDER,
NO INDEMNIFIED PARTY SHALL SETTLE OR COMPROMISE ANY ACTION SUBJECT TO
INDEMNIFICATION HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY.
SECTION 5.
TERM; TERMINATION.
(A)
THE TERM OF THIS AGREEMENT (THE "TERM")
SHALL COMMENCE ON THE DATE HEREOF AND SHALL CONTINUE UNTIL THE EARLIEST TO OCCUR
OF THE FOLLOWING: (I) CARLYLE (TOGETHER WITH ONE OR MORE OF ITS AFFILIATES)
CEASES TO CONTROL, IN THE AGGREGATE, AT LEAST 10% OF THE EQUITY SECURITIES OF
THE COMPANY ISSUED AND OUTSTANDING AT THE RELEVANT TIME; (II) THE COMPANY
EFFECTS A SALE (AS SUCH TERM IS DEFINED IN THE SECURITYHOLDERS AGREEMENT, DATED
AS OF THE DATE HEREOF (THE "SECURITYHOLDERS AGREEMENT"), AMONG THE COMPANY,
CERTAIN AFFILIATES OF CARLYLE AND THE OTHER SECURITYHOLDERS OF THE COMPANY PARTY
THERETO); OR (III) THE COMPANY EFFECTS A QUALIFIED IPO (AS DEFINED IN THE
SECURITYHODERS AGREEMENT).
3
(B)
UPON THE TERMINATION OF THIS AGREEMENT
PURSUANT TO SECTION 5(A)(I) OR (II), CARLYLE SHALL REFUND TO THE COMPANY THE
PORTION OF THE CONSULTING FEE, IF ANY, PAID BY THE COMPANY TO CARLYLE WITH
RESPECT TO THE PERIOD FROM THE DATE OF SUCH TERMINATION UNTIL THE EXPIRATION OF
THE CALENDAR QUARTER IN WHICH SUCH TERMINATION OCCURS.
(C)
UPON THE TERMINATION OF THIS AGREEMENT
PURSUANT TO SECTION 5(A)(III), THE COMPANY SHALL PAY TO CARLYLE A TERMINATION
PAYMENT THAT SHALL BE EQUAL TO THE NET PRESENT VALUE (CALCULATED USING A
DISCOUNT RATE EQUAL TO THE THEN CURRENT YIELD ON U.S. TREASURY SECURITIES OF
LIKE MATURITY) OF THE AGGREGATE AMOUNT OF THE CONSULTING FEE THAT WOULD HAVE
BEEN PAYABLE BY THE COMPANY TO CARLYLE WITH RESPECT TO THE PERIOD BEGINNING ON
THE DATE OF TERMINATION OF THIS AGREEMENT PURSUANT TO SECTION 5(A)(III) AND
ENDING ON THE SECOND ANNIVERSARY OF THE DATE OF SUCH TERMINATION.
THE
TERMINATION PAYMENT SHALL BE PAYABLE BY THE COMPANY TO CARLYLE WITHIN TWO
(2) DAYS AFTER THE DATE ON WHICH SUCH TERMINATION OF THIS AGREEMENT BECOMES
EFFECTIVE.
SECTION 6.
OTHER ACTIVITIES.
NOTHING
HEREIN SHALL IN ANY WAY PRECLUDE CARLYLE OR ANY OF ITS OFFICERS, EMPLOYEES,
AGENTS, REPRESENTATIVES, MEMBERS OR AFFILIATES FROM ENGAGING IN ANY BUSINESS
ACTIVITIES OR FROM PERFORMING SERVICES, WHETHER FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF OTHERS, INCLUDING FOR COMPANIES THAT MAY BE IN COMPETITION WITH THE
BUSINESS CONDUCTED BY THE COMPANY.
SECTION 7.
MISCELLANEOUS.
(A)
AMENDMENT; WAIVERS.
NO AMENDMENT,
ALTERATION OR MODIFICATION OF THIS AGREEMENT OR WAIVER OF ANY PROVISION OF THIS
AGREEMENT SHALL BE EFFECTIVE UNLESS SUCH AMENDMENT, ALTERATION, MODIFICATION OR
WAIVER IS APPROVED IN WRITING