Exhibit 8
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March 7, 1999
Allied Waste Industries, Inc.
00000 Xxxxx Xxxxxxxx-Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Equity Commitment Letter
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Ladies and Gentlemen:
You have advised us that you have entered into an agreement, dated the
date hereof (the "Agreement"), with the corporation referred to as Blue (the
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"Target") pursuant to which you will acquire (the "Acquisition") all of the
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outstanding capital stock of the Target. References to the "Company" mean you
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and your subsidiaries. Capitalized terms used but not otherwise defined herein
shall have the meaning given thereto in the Agreement.
You have advised us that the total funds necessary to consummate the
Acquisition and to pay related fees and expenses will be approximately $9
billion. (The approximate sources and uses of the funds necessary to consummate
the Acquisition are set forth on Exhibit A hereto.) Such funds will be provided
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by (i) the incurrence of up to $9.750 billion principal amount of indebtedness
(the "Bank Financing") under a replacement bank credit facility on the terms set
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forth in the bank commitment letter, dated the date hereof (the "Bank Commitment
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Letter"), and (ii) the issuance and sale by you of 1,000,000 shares (the
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"Shares") of a newly created series of preferred stock having the terms set
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forth on Exhibit B hereto, at an aggregate purchase price of $1.0 billion
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(together with the Bank Financing, the "Financing"). The Acquisition, the
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Financing and the other transactions contemplated hereby are collectively
referred to herein as the "Transactions."
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You agree to sell to each of the undersigned, or one or more of their
respective affiliated investment funds under management and/or designees
(collectively, the "Investors"), and each of the undersigned, severally and not
jointly, commits to
purchase, or to cause one or more of its affiliated investment funds under
management and/or designees to purchase, upon the terms and subject to the
conditions set forth or referred to herein and the Exhibits attached hereto,
including, but not limited to Exhibit C (collectively, the "Commitment Letter"),
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the number of Shares set forth under its name on the signature page hereto. The
purchase of the Shares shall take place simultaneously with the consummation of
the Merger, on a date that you will designate to us in writing no later than ten
days prior to such date.
Upon the earlier of (i) the effective time of the Merger and (ii) the
Target paying or becoming obligated to pay the Company any amounts by reason of,
or in connection with, the termination of the Agreement (including, without
limitation, any amounts payable pursuant to Section 5.11(b) of the Agreement),
you shall as promptly as reasonably practicable pay by wire transfer of
immediately available funds to Apollo Management IV, LP or its designees
("Apollo"), Blackstone Management Partners III LLC ("Blackstone"), GSCP, Inc.
and DLJ Merchant Banking II, Inc., or its designee, a non-refundable transaction
fee of $11.0 million, $8.75 million, $2.5 million and $2.75 million,
respectively.
You agree (a) to indemnify and hold harmless us, our affiliates and
partners, and the respective officers, directors, members, employees, advisors
and agents of each of us, our affiliates and partners (each, an "indemnified
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person"), from and against (and to reimburse each indemnified person as the same
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are incurred) any and all losses, claims, damages, liabilities, costs and
expenses (collectively, "Losses") to which any indemnified person may become
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subject or incur directly or indirectly based upon, arising out of, or in
connection with this Commitment Letter, the Financing, the use of the proceeds
thereof, the other Transactions (including the Acquisition) or any related
transaction or any claim, litigation, investigation or proceeding relating to
any of the foregoing, regardless of whether any indemnified person is a party
thereto, and to reimburse each indemnified person upon demand for any reasonable
legal or other reasonable out of pocket expenses incurred in connection with
investigating or defending any of the foregoing, provided that the foregoing
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indemnity will not, as to any indemnified person, apply to Losses to the extent
they are found by a final, non-appealable judgment of a court to arise from the
willful misconduct or gross negligence of such indemnified person, and (b)
whether or not the Financing is consummated, to reimburse us and our affiliates
on demand for all reasonable out-of-pocket expenses (including, but not limited
to, reasonable expenses of due diligence, consultant's fees and expenses, travel
expenses, and reasonable fees, charges and disbursements of counsel) incurred in
connection with the Transactions and any related documentation or the amendment,
modification or waiver thereof. No indemnified person shall be
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liable for any indirect, consequential or punitive damages in connection with
this Commitment Letter, the definitive financing documentation or its activities
related to the Transactions.
You hereby represent and covenant that (a) to the best of your
knowledge, all information (excluding information of a general economic nature
and financial projections) concerning you, the Target, the Acquisition, and the
other Transactions (the "Information") that has been or will be prepared by or
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on behalf of you or any of your authorized representatives and that has been
made or will be made available to us or any of our authorized representatives in
connection with the Transactions, when taken as a whole, will at the time made
available be correct in all material respects and will not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements contained therein not materially misleading in light of
the circumstances under which such statements are made, (b) all financial
projections concerning you, the Acquisition, and the other Transactions or, to
the best of your knowledge, the Target (the "Projections") that have been
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prepared by or on behalf of you or the Target or any of your or its authorized
representatives and that have been or will be made available to us or any of our
authorized representatives in connection with the Transactions have been and at
the time made available will be prepared in good faith based upon assumptions
believed by you to be reasonable and (c) the transactions contemplated by the
Commitment Letter have been approved by a majority of the members of the
Company's board of directors who are not affiliated with the purchasers of the
Shares and the directors have received an opinion of Chase Securities Inc. to
the effect that the transactions contemplated by this Commitment Letter are fair
to the Company from a financial point of view. You agree to supplement the
Information and the Projections from time to time until the effective time of
the Merger so that the representations and covenants in the preceding sentence
remain correct.
This Commitment Letter and our commitment hereunder shall not be
assignable by you (and any purported assignment shall be null and void), are
solely for the benefit of the parties hereto and do not confer any benefits
upon, or create any rights in favor of, any person other than the parties hereto
and the indemnified persons referred to above. This Commitment Letter may not
be amended or waived except by an instrument in writing signed by each party
hereto. This Commitment Letter may be executed in any number of counterparts,
each of which shall be an original, and all of which, when taken together, shall
constitute one agreement. Delivery of an executed signature page of this
Commitment Letter by facsimile transmission shall be as effective as delivery of
a manually executed counterpart hereof. This Commitment Letter is the
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only agreement that has been entered into between us relating to our commitment
with respect to any Shares and sets forth the entire understanding of the
parties with respect thereto (other than a separate agreement regarding certain
modifications to the existing shareholders' and registration rights agreements
among you and certain of our affiliates).
This Commitment Letter shall be governed by and construed in
accordance with the laws of the State of New York. EACH OF THE PARTIES HERETO
IRREVOCABLY AGREES TO WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR
COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF
THIS COMMIT MENT LETTER OR THE PERFORMANCE OF SERVICES HEREUNDER. You
irrevocably and unconditionally submit to the exclusive jurisdiction of any
state or federal court sitting in the Borough of Manhattan, The City of New
York, over any suit, action or proceeding arising out of or relating to this
Commitment Letter. Service of any process, summons, notice or document by
registered mail addressed to you at your address set forth above shall be
effective service of process against you for any such suit, action or proceeding
brought in any such court. You irrevocably and uncondition ally waive any
objection to the laying of venue of any such suit, action or proceeding brought
in any such court and any claim that any such suit, action or proceeding has
been brought in an inconvenient forum. A final judgment in any such suit,
action or proceeding brought in any such court may be enforced in any other
courts to whose jurisdiction you are or may be subject, by suit upon judgment.
This Commitment Letter is delivered to you on the understanding that
you shall not, and shall cause your directors, officers, employees, agents and
advisors (collectively, "Representatives") not to, directly or indirectly,
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disclose this Commitment Letter or any of its terms or substance to any other
person except (i) on a confidential basis to your Representatives who are
directly involved in the consideration of this matter and agree to keep this
Commitment Letter and its terms and substance confidential, (ii) as may be
compelled in a judicial or administrative proceeding (in which case you agree to
inform us promptly thereof), (iii) on a confidential basis, to Target and its
Representatives who are directly involved in the consideration of the
Acquisition so long as Target has agreed to keep, and to cause its
Representatives to keep, this Commitment Letter and its terms and substance
confidential (except as contemplated by clause (iv) of this sentence), (iv) the
reference to this Commitment Letter in the Agreement and (v) to the extent
required under applicable securities laws. Notwithstanding the foregoing, any
press release or filing with the Securities and Exchange Commission disclosing
this Commitment Letter or the terms or substance
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hereof shall be subject to our prior review and consent, which shall not be
unreasonably withheld or delayed.
Our commitment in this Commitment Letter will terminate at 5:00 p.m.,
New York City time, on March 8, 1999, unless on or prior to such time you sign
and return an enclosed counterpart of this Commitment Letter and, if so accepted
on or prior to such time, the commitment contained herein will terminate at 5:00
p.m., New York City time, on the earliest of (i) the termination of the
Agreement, (ii) the material amendment of the Agreement or the waiver by the
Company of any of the conditions or covenants contained therein, in each case
without the approval of Apollo and Blackstone, which may be given or withheld in
their sole discretion, (iii) the date you notify us that you have elected not to
consummate the Merger, (iv) the date of execution and delivery of a definitive
agreement among us with respect to the purchase and sale of the Shares and (v)
December 31, 1999 (or such later date as may be agreed to by you and us). The
reimbursement, fee, indemnification, choice of law, submission to jurisdiction
and confidentiality provisions contained herein shall remain in full force and
effect regardless of whether definitive financing documentation shall be
executed and delivered and notwithstanding the termination of this Commitment
Letter or our commitment contained herein.
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If the foregoing correctly sets forth our agreement, please indicate
your acceptance of the terms hereof by returning to us executed counterparts
hereof.
Very truly yours,
APOLLO MANAGEMENT IV, L.P.
By: ____________________________
Name:
Title: Vice President
Number of shares: 440,000
Aggregate purchase price: $440,000,000
BLACKSTONE CAPITAL PARTNERS III
MERCHANT BANKING FUND L.P.
By: Blackstone Management
Associates III L.L.C.,
its General Partner
By: ____________________________
Name:
Title:
Number of shares: 350,000
Aggregate purchase price: $350,000,000
GREENWICH STREET CAPITAL PARTNERS II, L.P.
GSCP OFFSHORE FUND, L.P.
GREENWICH FUND, L.P.
GREENWICH STREET EMPLOYEES FUND, L.P.
TRV EXECUTIVE FUND, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
their General Partner
By: ____________________________
Name:
Title:
Number of shares 100,000
Aggregate purchase price $100,000,000
DLJMB FUNDING II, INC.
By: DLJMB Funding, Inc.
By: ____________________________
Name:
Title:
Number of shares: 15,707.286
Aggregate purchase price: $15,707,286
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: ____________________________
Name:
Title:
Number of shares: 68,155.846
Aggregate purchase price: $68,155,846
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: ____________________________
Name:
Title:
Number of shares: 2,714.282
Aggregate purchase price: $2,714,282
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By: ____________________________
Name:
Title:
Number of shares: 3,984.699
Aggregate purchase price: $3,984,699
DLJ DIVERSIFIED PARTNERS-A, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By: ____________________________
Name:
Title:
Number of shares: 1,479.781
Aggregate purchase price: $1,479,781
DLJ MILLENNIUM PARTNERS, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: ____________________________
Name:
Title:
Number of shares: 1,102.004
Aggregate purchase price: $1,102,004
DLJ MILLENNIUM PARTNERS-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: ____________________________
Name:
Title:
Number of shares: 214.936
Aggregate purchase price: $214,936
DLJ FIRST ESC L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: ____________________________
Name:
Title:
Number of shares: 131.148
Aggregate purchase price: $131,148
DLJ OFFSHORE PARTNERS II, C.V.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: ____________________________
Name:
Title:
Number of shares: 3,351.548
Aggregate purchase price: $3,351,548
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: ____________________________
Name:
Title:
Number of shares: 306.011
Aggregate purchase price: $306,011
DLJ ESC II L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: ____________________________
Name:
Title:
Number of shares: 12,852.459
Aggregate purchase price: $12,852,459
Accepted and agreed to as
of the date first written above by:
ALLIED WASTE INDUSTRIES, INC.
By: ___________________________
Name:
Title:
Exhibit A
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Sources and Uses of Funds on the Merger Date
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(in million of dollars)
For Consolidated Entity
Use of Funds Sources of Funds
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Consideration for Shares $7,065.0 Revolving Facility $ 0.0
Consideration for Options for BFI 291.7 Senior Unsecured Increasing 2,500.0
Rate Note Facility and/or Senior
Subordinated Notes
Severance and Termination 177.0 Asset Sale Term Loan Facility 1,500.0
Payments
Repayment of Commercial Paper 740.5 Tranche A Facility 2,250.0
of BFI
Repayment of existing Senior 319.8 Tranche B Facility 1,000.0
Secured Credit Facility of
Borrower
Excess Cash 47.3 Tranche C Facility 1,000.0
Transaction Costs 100.0 Equity Contribution 750.0
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Financing Fees 258.7 Total Sources $9,000.0
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Total Uses $9,000.0
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Exhibit B
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$1,000,000,000 Convertible Preferred Stock
Summary of Proposed Terms
Investors......... Those parties signatory to the commitment letter to which
this term sheet is attached (the "Commitment Letter") and
their respective affiliated funds under management and/or
designees (the "Investors").
Issuer............ Allied Waste Industries, Inc., a Delaware corporation
(the "Company").
Issue............. 1,000,000 shares of Series _ Senior Convertible Preferred
Stock, par value $.10 per share (the "Preferred Stock").
Liquidation
Preference........ $1,000 per share of Preferred Stock, plus the value of
accrued and unpaid dividends through and including the
date of determination (the "Liquidation Preference").
Upon any liquidation, dissolution or other winding up of
the affairs of the Company, before any distribution or
payment is made to any equity security of the Company
ranking junior to the Preferred Stock, the holders of the
Preferred Stock shall be paid the greater of (a) the
Liquidation Preference or (b) the amount that would be
payable to the holders of shares of Preferred Stock if the
holders of the Preferred Stock had converted all outstand
ing shares of Preferred Stock into shares of common stock,
par value $.01 per share, of the Company (the "Common
Stock"), immediately prior to such liquidation,
dissolution or other winding up.
Initial Aggregate
Liquidation
Preference........ $1,000,000,000.
Purchase Price.... On the date of issuance of the Preferred Stock (the "Issue
Date"), the Investors shall purchase the Preferred Stock
for total cash consideration equal to $1,000,000,000 or
$1,000 per share.
Registration/
Transfer.......... The Preferred Stock will be sold in a private placement
directly by the Company to the Investors and initially
shall not be registered under the Securities Act of 1933,
as amended.
The Company shall enter into an amended and restated
registration rights agreement with the Investors providing
the rights contemplated by that certain letter agreement
dated the date of the Commitment Letter (the "Letter
Agreement").
Dividends......... Dividends shall accrue from the Issue Date at an annual
rate equal to the greater of:
(a) (i) with respect to dividends accruing prior to the
earlier of the date the Stockholder Approval (as defined
below) is obtained and the tenth anniversary of the Issue
Date, (A) 6.5% of the Liquidation Preference per annum
during the first six months following the Issue Date and
(B) thereafter, 6.5% of the Liquidation Preference per
annum plus an additional 1% of the Liquidation Prefer ence
per annum for each six month period after the Issue Date
until the Stockholder Approval is obtained, (ii) with
respect to dividends accruing on or after the date the
Stockholder Approval has been obtained and on or before
the tenth anniversary of the Issue Date, 6.5% of the
Liquidation Preference per annum, or (iii) with respect to
dividends accruing after the tenth anniversary of the
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Issue Date, 12% of the Liquidation Preference per annum;
and
(b) the quarterly dividend last declared, as of such
Dividend Payment Date, by the board of directors of the
Company with respect to the Common Stock.
Notwithstanding the foregoing, (i) dividends shall never
accrue at a rate in excess of 12% of the Liquidation
Preference per annum and (ii) any dividends accruing on or
after the fifth anniversary of the Issue Date that are not
paid in cash on the applicable Dividend Payment Date shall
accrue at 12% of the Liquidation Preference per annum.
Dividends shall be payable, in cash, when, as and if
declared by the board of directors of the Company, and if
not paid on the applicable Dividend Payment Date, shall be
added to the Liquidation Preference on such Dividend
Payment Date. Thereafter, such dividend will no longer be
payable in cash. "Dividend Payment Date" means March 31,
June 30, September 30 and December 31 of each year.
Conversion
Rights.......... From and after receipt of the Stockholder Approval, each
share of Preferred Stock shall be convertible at the
option of the holder initially into the number of fully
paid and nonassessable shares of Common Stock equal to the
Liquidation Preference at the time of conversion divided
by $18.00.
For so long as the Stockholder Approval is not obtained,
the Preferred Stock shall be convertible at the option of
the holder into the number of shares of Series _ Junior
Preferred Stock, par value $.10 per share, of the Com pany
(the "Junior Preferred Stock"), determined pursuant to the
preceding paragraph. Depositary share arrange ments will
be put in place to the extent necessary due to
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authorized share limitations. The Junior Preferred Stock
shall be non-redeemable and shall at least have all rights
of a share of Common Stock (including, but not limited to,
ranking no less than pari passu with the Common Stock as
to dividends and any other distributions de clared on the
Common Stock and payment upon liquida tion). The Junior
Preferred Stock will be entitled to vote with the Common
Stock on a share for share basis and shall, to the extent
permitted by the rules of any applica ble stock exchange
or other trading market, be convert ible share for share
into Common Stock, subject to adjustments to voting and
conversion rights, if any, for depositary share
arrangements.
The conversion privileges set forth above shall include
customary anti-dilution protection.
Listing......... The Company shall use its reasonable best efforts to cause
the shares of Common Stock and, to the extent permitted,
the Junior Preferred Stock (if, as and when issued and
offered pursuant to an effective registration statement)
issuable upon conversion of the Preferred Stock to be
listed or otherwise eligible for trading on each principal
trading market for the Common Stock.
Optional
Redemption
Rights.......... The Company shall not have the right to redeem the
Preferred Stock prior to the later of (a) the third
anniver sary of the Issue Date and (b) receipt of the
Stockholder Approval. Thereafter, the Company shall have
the right to redeem the Preferred Stock, in whole but not
in part, at the Liquidation Preference; provided, if such
redemp tion is prior to the fifth anniversary of the Issue
Date, the Company shall have such right only if the
average closing price of the Common Stock (as reported
(absent manifest error) in The Wall Street Journal), for
the thirty consecutive trading days ending on the date of
notice of the Company's intent to redeem the Preferred
Stock exceeds 150% of the conversion price, as then in
effect.
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Any such redemption shall be effected no earlier
than thirty days after the Investors receive such notice
of redemption.
Ranking.......... The Preferred Stock shall rank senior to all existing and
future classes of common or preferred stock of the
Company.
Voting Rights.... The Preferred Stock and the Junior Preferred Stock shall
have the right to vote, together with the Common Stock, as
a single class, on all matters on which the Company's
common stockholders are entitled to vote. For purposes of
such voting, (a) each share of Preferred Stock shall have
the number of votes equal to the number of shares of
Common Stock then issuable upon conversion of such share
of Preferred Stock (without regard to whether the
Stockholder Approval has been obtained) and (b) each share
of Junior Preferred Stock will have the number of votes
that would otherwise be represented by the number of
shares of Common Stock in lieu of whose issuance such
share of Junior Preferred Stock is issued.
For so long as any shares of Preferred Stock or Junior
Preferred Stock are outstanding, the holders of Preferred
Stock and Junior Preferred Stock, voting separately as a
class, shall have the right to elect the number of
directors of the Company that Apollo and Blackstone or
their affiliates would be entitled to elect pursuant to
the Second Amended and Restated Share Agreement (the
"Stockholders' Agreement"), by and among the Company and
the Investors. Such directors will be deemed to be the
directors elected by Xxxxxx and Blackstone under the
Stockholders' Agreement.
The Preferred Stock and the Junior Preferred Stock shall
each be entitled to vote as a separate class with respect
to amendments to the Company's certificate of incorpora
tion, by merger or otherwise, that adversely affect the
rights of each such class of stock.
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Stockholder
Approval......... To comply with the requirements of the New York Stock
Exchange, the Company shall use its reasonable best
efforts to obtain stockholder approval of the conversion
of the Preferred Stock into shares of Common Stock (the
"Stockholder Approval"). If feasible, the Company shall
present a proposal for the Stockholder Approval (to
gether, to the extent consistent with their fiduciary
duties, with the affirmative recommendation of a majority
of the members of the Company's board of directors not
affiliated with the Investors or their affiliates) at the
Company's 1999 annual meeting of its stockholders. Unless
previously adopted, the Company shall resubmit a proposal
for the Stockholder Approval at the next two annual
meetings of its stockholders, at two special meetings of
its stockholders convened at the Investors' request and at
any other meetings chosen by the Company.
Change of
Control.......... Upon the occurrence of a change of control, the Com pany
shall offer to purchase any and all of the shares of
Preferred Stock at 101% of the Liquidation Preference.
Preferred Stock
Purchase
Agreement........ The shares of Preferred Stock shall be issued pursuant to
a stock purchase agreement reasonably satisfactory to the
Investors (including the form of the certificate of desig
nation attached thereto). Such stock purchase agreement
shall contain (a) representations and warranties substan
tially similar to those in the definitive documentation
for the Debt Financing (which shall not serve as
conditions to closing but shall otherwise survive the
closing) and (b) other representations and warranties
relating to organization, capitalization, validity of the
shares and similar matters (which shall serve as
conditions to, and survive, the closing); indemnities;
covenants; and conditions precedent subject to the
foregoing, customary for agreements of such type and a
covenant on the part of (i) the Investors to vote any
shares of Common Stock,
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Preferred Stock and Junior Preferred Stock beneficially
owned by them, or their affiliates, entitled to vote with
respect to the Stockholder Approval for such proposal and
(ii) the Company to provide Rule 144A(d) informa tion.
Those matters that are not covered or made clear by the
Commitment Letter or this term sheet are subject to
approval by the Investors (it being understood that the
terms and conditions of the definitive documents shall not
be inconsistent with the provisions of this term sheet or
the Commitment Letter).
Other
Agreements........ The Investors and the Company will also enter into the
Stockholders Agreement contemplated by the Letter
Agreement. The Investors will enter into an amendment of
the existing Investment Agreement which will, among other
things, add the new Investors as parties, provide that
each party thereto will vote in accordance with the terms
thereof, and provide certain restrictions on the transfer
of shares of the Investors other than Apollo and
Blackstone to the effect that such Investors shall not
transfer any shares, beneficially owned by them, of the
Company in a manner not available to affiliates under the
Federal securities laws.
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Exhibit C
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CONDITIONS
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Each Investor's several commitment pursuant to the Commitment Letter,
dated March 7, 1999 (the "Commitment Letter"), is subject to the satisfaction of
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the following conditions (capitalized terms used but not defined herein shall,
unless otherwise specified, have the meanings assigned to such terms in the
Commitment Letter):
(i) the preparation, execution and delivery of definitive documents
relating to the purchase and sale of the Shares reasonably satisfactory to
each of the Investors;
(ii) the Acquisition and each of the other Transactions (other than
the purchase by such Investor of the Shares to be purchased by it) shall
have been consummated or shall be consummated simultaneously with the other
Transac tions, without any waiver by the Company of the conditions thereto
without the prior written consent of the Investors affiliated with Apollo
and Blackstone, which may be given or withheld in their sole discretion;
and the Bank Financing shall be consummated on terms that in all material
respects are as favorable to the Company and the Investors as those set
forth in the Bank Commitment Letter;
(ii) the termination or expiration of all applicable waiting periods
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1975, as amended,
and the rules promulgated thereunder (the "HSR Act"), provided, that with
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respect to the purchase of the Shares such Investor has used its reasonable
best efforts to obtain clearance under the HSR Act prior to satisfaction of
the conditions to the Agreement and the Bank Financing (other than the
purchase of the Shares).
