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Confidential
Exhibit 10.22
March 7, 1999
Allied Waste Industries, Inc.
00000 Xxxxx Xxxxxxxx-Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Equity Commitment Letter
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
"Target") pursuant to which you will acquire (the "Acquisition") all of the
outstanding capital stock of the Target. References to the "Company" mean you
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
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
forth in the bank commitment letter, dated the date hereof (the "Bank Commitment
Letter"), and (ii) the issuance and sale by you of 1,000,000 shares (the
"Shares") of a newly created series of preferred stock having the terms set
forth on Exhibit B hereto, at an aggregate purchase price of $1.0 billion
(together with the Bank Financing, the "Financing"). The Acquisition, the
Financing and the other transactions contemplated hereby are collectively
referred to herein as the "Transactions."
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,
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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"),
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 person"), from and against (and to reimburse each indemnified
person as the same are incurred) any and all losses, claims, damages,
liabilities, costs and expenses (collectively, "Losses") to which any
indemnified person may become 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 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
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or the amendment, modification or waiver thereof. No indemnified person shall be
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
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
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
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as delivery of a manually executed counterpart hereof. This Commitment Letter is
the 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 COMMITMENT 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 unconditionally 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,
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
0
XXXXXXXXX XXXXXX XXXXXXX XXXXXXXX XX, X.X.
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
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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
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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
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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
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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:
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Exhibit A
Sources and Uses of Funds on the Merger Date
(in million of dollars)
For Consolidated Entity
Use of Funds Sources of Funds
------------ ----------------
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
--------
Financing Fees 258.7 Total Sources $9,000.0
-------- ========
Total Uses $9,000.0
========
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EXHIBIT B
$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
outstanding 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.
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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 Preference 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 Issue Date, 12% of the Liquidation
Preference per annum; and
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(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 Company (the "Junior Preferred Stock"),
determined pursuant to the preceding paragraph.
Depositary share arrangements will be put in place to
the extent necessary due to 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
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to, ranking no less than pari passu with the Common
Stock as to dividends and any other distributions
declared on the Common Stock and payment upon
liquidation). 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 applicable stock exchange or other
trading market, be convertible 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
anniversary 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 redemption 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. Any such redemption shall be effected no
earlier than thirty days after the Investors receive
such notice of redemption.
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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 incorporation, by merger or otherwise,
that adversely affect the rights of each such class
of stock.
STOCKHOLDER
APPROVAL.............. To comply with the requirements of the New York Stock
Exchange, the Company shall use its reasonable best
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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 (together, 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
Company 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 designation attached thereto).
Such stock purchase agreement shall contain (a)
representations and warranties substantially 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, 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
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and (ii) the Company to provide Rule 144A(d)
information. 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
CONDITIONS
Each Investor's several commitment pursuant to the Commitment
Letter, dated March 7, 1999 (the "Commitment Letter"), is subject to the
satisfaction of 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):
(1) the preparation, execution and delivery of definitive
documents relating to the purchase and sale of the Shares reasonably
satisfactory to each of the Investors;
(2) 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 Transactions, 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;
(3) 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 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).
