-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Qqd+U3lWgbYQZePIYygU76kPTvd9YJhY2t4RQAQZWtKT25NUehX6jK5p8FEkZLJL udsAA1RGuG0YWVEwFIFwyQ== 0000895345-07-000568.txt : 20071101 0000895345-07-000568.hdr.sgml : 20071101 20071101170707 ACCESSION NUMBER: 0000895345-07-000568 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20071101 DATE AS OF CHANGE: 20071101 GROUP MEMBERS: GOLDMAN, SACHS & CO. GROUP MEMBERS: GS DIRECT, L.L.C. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: WASTE INDUSTRIES USA INC CENTRAL INDEX KEY: 0001125845 STANDARD INDUSTRIAL CLASSIFICATION: REFUSE SYSTEMS [4953] IRS NUMBER: 560954929 STATE OF INCORPORATION: NC FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-78051 FILM NUMBER: 071207684 BUSINESS ADDRESS: STREET 1: 3301 BENSON DR STREET 2: STE 601 CITY: RALEIGH STATE: NC ZIP: 27609 BUSINESS PHONE: 9193254000 MAIL ADDRESS: STREET 1: 3301 BENSON DR STREET 2: STE 601 CITY: RALEIGH STATE: NC ZIP: 27609 FORMER COMPANY: FORMER CONFORMED NAME: WASTE HOLDINGS INC DATE OF NAME CHANGE: 20001004 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GOLDMAN SACHS GROUP INC/ CENTRAL INDEX KEY: 0000886982 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211] IRS NUMBER: 134019460 STATE OF INCORPORATION: DE FISCAL YEAR END: 1124 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 BUSINESS PHONE: 2129021000 MAIL ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 SC 13D 1 rs13d-waste_gsgroup.htm SCHEDULE 13D rs13d-waste_gsgroup.htm

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No.)*

Waste Industries USA, Inc.
(Name of Issuer)

Common Stock (No Par Value)
(Title of Class of Securities)
 
941057 10 1
(CUSIP Number)
 
Ben I. Adler, Esq.
Goldman, Sachs & Co.
One New York Plaza
New York, NY 10004
(212) 902−1000
 
(Name, Address and Telephone Number of Persons Authorized to Receive Notices and Communications)
 
Copy to:
Robert C. Schwenkel
Fried, Frank, Harris, Shriver & Jacobson LLP
One New York Plaza
New York, NY 10004
(212) 859-8000
October 22, 2007
(Date of Event which Requires Filing of this Statement)
 
If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box o.

*The remainder of this cover page will be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended (the "Act") or otherwise subject to the liabilities of that section of the Act but will be subject to all other provisions of the Act (however, see the Notes).
 

 
 
 
CUSIP No. 941057 10 1
SCHEDULE 13D
Page 2 of 55 Pages 
 
 
 

1
NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
 
The Goldman Sachs Group, Inc.
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP                                                                                                                                    (a) o
                                                   (b) x
 
3
SEC USE ONLY
 
 
4
SOURCE OF FUNDS
 
AF
 
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e)                                                                                                                                                                       ;                               o
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Delaware
 
NUMBER OF
 
SHARES
7
SOLE VOTING POWER
 
0
 
BENEFICIALLY
 
OWNED BY
8
SHARED VOTING POWER
 
33,737
 
EACH
 
REPORTING
9
SOLE DISPOSITIVE POWER
 
0
 
PERSON
 
WITH
10
SHARED DISPOSITIVE POWER
 
33,737
 
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
33,737
 
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES                                x1
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
0.2%2
 
14
TYPE OF REPORTING PERSON
 
HC-CO
 
 
 
       
 
1 This filing does not reflect any shares of Common Stock (as defined herein) that may be deemed to be beneficially owned by The Goldman Sachs Group, Inc. as a result of membership in a “group” within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended, and The Goldman Sachs Group, Inc. disclaims such membership.
 
2 Based on 14,109,670 shares of Common Stock outstanding on August 9, 2007, as reported in the Issuer’s Form 10-Q for the fiscal quarter ended June 30, 2007, filed with the Securities and Exchange Commission on August 9, 2007 (the “Reported Shares Outstanding”).
 

 

 
 
 
CUSIP No. 941057 10 1
SCHEDULE 13D
Page 3 of 55 Pages 
 
 
 

1
NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
 
Goldman, Sachs & Co.
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP                                                                                                                                    (a) o
                                                   (b) x
 
3
SEC USE ONLY
 
 
4
SOURCE OF FUNDS
 
AF; WC; OO
 
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e)                                                                                                                                                                     60;                               x
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
New York
 
NUMBER OF
 
SHARES
7
SOLE VOTING POWER
 
0
 
BENEFICIALLY
 
OWNED BY
8
SHARED VOTING POWER
 
33,737
 
EACH
 
REPORTING
9
SOLE DISPOSITIVE POWER
 
0
 
PERSON
 
WITH
10
SHARED DISPOSITIVE POWER
 
33,737
 
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
33,737
 
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES                                                                                                x3
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
0.2%4
 
14
TYPE OF REPORTING PERSON
 
BD-PN-IA
 
 
 
       
 
3 This filing does not reflect any shares of Common Stock (as defined herein) that may be deemed to be beneficially owned by Goldman, Sachs & Co. as a result of membership in a “group” within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended, and Goldman, Sachs & Co. disclaims such membership.
 
4 Based on the Reported Shares Outstanding.



 
 
 
CUSIP No. 941057 10 1
SCHEDULE 13D
Page 4 of 55 Pages 
 
 
 

1
NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
 
GS Direct, L.L.C.
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP                                                                                                                                    (a) o
                                                   (b) x
 
3
SEC USE ONLY
 
 
4
SOURCE OF FUNDS
 
OO
 
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e)                                                                                                                                                                    60;                                o
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Delaware
 
NUMBER OF
 
SHARES
7
SOLE VOTING POWER
 
0
 
BENEFICIALLY
 
OWNED BY
8
SHARED VOTING POWER
 
33,737
 
EACH
 
REPORTING
9
SOLE DISPOSITIVE POWER
 
0
 
PERSON
 
WITH
10
SHARED DISPOSITIVE POWER
 
33,737
 
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
33,737
 
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES                                                                                                x5
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
0.2%6
 
14
TYPE OF REPORTING PERSON
 
OO
 
 
 
       
 
5 This filing does not reflect any shares of Common Stock (as defined herein) that may be deemed to be beneficially owned by GS Direct, L.L.C. as a result of membership in a “group” within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended, and GS Direct, L.L.C. disclaims such membership.
 
6 Based on the Reported Shares Outstanding.



ITEM 1.                      Security and Issuer.

This statement on Schedule 13D (this “Schedule 13D”) relates to the common stock, no par value (“Common Stock”), of Waste Industries USA, Inc. (the “Issuer”).  The principal executive offices of the Issuer are located at 3301 Benson Drive, Suite 601, Raleigh, North Carolina 27609.

ITEM 2.                      Identity and Background.

This statement is being filed by The Goldman Sachs Group, Inc. (“GS Group”), Goldman, Sachs & Co. (“Goldman Sachs”), and GS Direct, L.L.C. (“GS Direct” and collectively with GS Group and Goldman Sachs, the “Reporting Persons”).7
 
GS Group is a Delaware corporation and holding company that (directly and indirectly through subsidiaries or affiliated companies or both) is a leading investment banking organization.  Goldman Sachs, a New York limited partnership, is an investment banking firm and a member of the New York Stock Exchange and other national exchanges. Goldman Sachs also serves as the manager for GS Direct.  Goldman Sachs is wholly-owned, directly and indirectly, by GS Group. GS Direct, a wholly-owned subsidiary of GS Group, is a Delaware limited liability company that invests capital primarily alongside corporate and sponsor clients in situations in which access to its or its affiliates’ capital, relationships, or advisory services can enhance the value of the investment.  The principal address of each Reporting Person is 85 Broad Street, New York, NY 10004.
 
The name, business address, present principal occupation or employment and citizenship of each director of GS Group are set forth in Schedule I hereto and are incorporated herein by reference. The name, business address, present principal occupation or employment and citizenship of each member of the Principal Investment Area GS Direct Investment Sub-Committee of Goldman Sachs, which is responsible for reviewing all material investing and harvesting transactions proposed to be entered into by GS Direct, are set forth in Schedule II-A hereto and are incorporated herein by reference.  The name, business address, present principal occupation or employment and citizenship of each officer of GS Direct are set forth in Schedule II-B hereto and are incorporated herein by reference.
 
During the last five years, none of the Reporting Persons nor, to the knowledge of each of the Reporting Persons, any of the person listed on Schedules I, II-A or II-B hereto, (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) except as set forth on Schedule III hereto, has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree, or final order enjoining future violations of, or prohibiting or mandating activities subject to federal or state securities laws or finding any violation with respect to such laws.
 
The Reporting Persons have entered into a Joint Filing Agreement, dated as of November 1, 2007, a copy of which is attached hereto as Exhibit 7.01.

       
 
7 Neither the present filing nor anything contained herein shall be construed as an admission that any Reporting Person constitutes a "person" for any purpose other than for compliance with Section 13(d) of the Securities Exchange Act of 1934, as amended.
 
 
ITEM 3.                      Source and Amount of Funds or Other Consideration.

Funds for the Common Stock acquired in ordinary course trading activities by Goldman Sachs or another wholly-owned broker or dealer subsidiary of GS Group and reported as beneficially owned came from the working capital of Goldman Sachs or other such subsidiary.  It is anticipated that funding for the Proposal (as defined in Item 4 below) will be in the form of (1) cash contributed to the acquisition vehicle formed by the Investors (as defined in Item 4 below) and (2) debt financing.  In addition, it is anticipated that a portion of the shares of Common Stock, currently held by Lonnie C. Poole Jr., the Chairman of the Board of Directors of the Issuer, certain Poole family members and entities (together with Mr. Poole, the “Poole Members”), and Jim W. Perry, President, Chief Executive Office, and Director of the Issuer, will be contributed to the acquisition vehicle.  The description of the Proposal set forth in Item 4 below is incorporated by reference in its entirety into this Item 3.

ITEM 4.                      Purpose of Transaction.

On October 22, 2007, Mr. Poole, Mr. Perry, GS Direct, and Macquarie Infrastructure Partners Inc. (“MIP” and collectively with the Poole Members, Mr. Perry, and GS Direct, the “Investors”) delivered a letter (the “Proposal Letter”) to the Special Committee of the Board of Directors of the Issuer in which it was proposed that the Investors would offer to acquire by merger, through a newly-formed entity, for a purchase price of $36.75 in cash per share, all of the outstanding shares of the Issuer’s Common Stock, other than any shares held by the acquisition vehicle, the Poole Members, Mr. Perry, and other members of the Issuer’s senior management team that are to be invested in the transaction (the “Proposal”). The Proposal Letter states that no binding obligation on the part of any person will arise with respect to the Proposal or any transaction until a mutually acceptable definitive merger agreement, for the acquisition of the outstanding Common Stock of the Issuer, is executed and delivered.  A copy of the Proposal Letter is filed as Exhibit 7.02 to this Schedule 13D, and is incorporated by reference into this Item 4.  No guarantees can be given that the proposed merger will be consummated.
 
In connection with the Proposal, the Investors entered into a Support Agreement, dated October 22, 2007, (the “Support Agreement”) whereby the Poole Members and Mr. Perry agreed to support and vote in favor of the Proposal and the transactions contemplated thereby, to vote against any action or agreement that would result in a breach of any representation, warranty, covenant, agreement or other obligation of the Issuer in the merger agreement, against any alternative proposal, and against any agreement (or amendment to any agreement in existence on the date hereof), amendment of the Issuer’s charter documents or other action that is intended or could reasonably be expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the merger. The Support Agreement is filed as Exhibit 7.03 to this Schedule 13D, and is incorporated by reference into this Item 4.
 
The Board of Directors has established a special committee of independent directors (the “Special Committee”) that has retained independent financial and legal advisors to consider the Proposal.  After delivery of the Proposal, the Investors presented the Special Committee with drafts of a merger agreement, forms of commitment letters from the Investors, and a debt commitment letter from Wachovia Bank, N.A., HSBC Securities (USA) Inc., and HSBC Bank, N.A. (the “Debt Commitment Letter”) to facilitate their consideration of the Proposal.  The Debt Commitment Letter is filed as Exhibit 7.04 to this Schedule 13D and is incorporated by reference into this Item 4.  The Investors reserved the right to withdraw the Proposal at any time.
 
The Proposal could result in one or more of the actions specified in clauses (a)-(j) of Item 4 of Schedule 13D, including the acquisition or disposition of additional securities of the Issuer, a merger or other extraordinary transaction involving the Issuer, a change to the present board of directors of the Issuer, a change to the present capitalization or dividend policy of the Issuer, the delisting of the Issuer’s securities from the NASDAQ National Market System, and the causing of a class of equity securities of the Issuer to become eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).  One or more of the Reporting Persons are expected to take actions in furtherance of the Proposal or any amendment thereof.

ITEM 5.                      Interests in Securities of the Issuer.
 
(a)  As of October 22, 2007, GS Group, Goldman Sachs, and GS Direct, or another wholly-owned broker or dealer subsidiary of GS Group, may be deemed to beneficially own 33,737 shares of Common Stock, which were acquired in ordinary course trading activities by Goldman Sachs or another wholly-owned subsidiary of GS Group.  Such 33,737 shares of Common Stock constitute 0.2% of the outstanding shares of Common Stock, based on the Reported Shares Outstanding.
 
The aggregate shares of Common Stock described above does not include shares of Common Stock beneficially owned by any other member of any “group” within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended, in which GS Group, Goldman Sachs, or GS Direct may be deemed a member.
 
As a  result of the matters described in Item 4 above, the Reporting Persons may be deemed to constitute a “group”, within the meaning of Section 13(d)(3) of the Exchange Act, with, among others, the Poole Members and Mr. Perry. The Reporting Persons do not have affirmative information about any shares that may be beneficially owned by such other persons, other than the 6,027,738 shares of Common Stock reported as beneficially owned by the Poole Members and the 1,376,864 shares of Common Stock reported as beneficially owned by Mr. Perry in the Issuer’s Schedule 14A, filed with the SEC on April 30, 2007.  Each Reporting Person hereby disclaims membership in any “group” with any person and disclaims beneficial ownership of any shares of Common Stock that may be or are beneficially owned by, among others, the Poole Members and Mr. Perry.
 
In accordance with Securities and Exchange Commission Release No. 34-395538 (January 12, 1998) (the “Release”), this filing reflects the securities beneficially owned by certain operating units (collectively, the “Goldman Sachs Reporting Units”) of GS Group and its subsidiaries and affiliates (collectively, “GSG”). This filing does not reflect securities, if any, beneficially owned by any operating units of GSG whose ownership of securities is disaggregated from that of the Goldman Sachs Reporting Units in accordance with the Release.  The Goldman Sachs Reporting Units disclaim beneficial ownership of the securities beneficially owned by (i) any client accounts with respect to which the Goldman Sachs Reporting Units or their employees have investment discretion, and (ii) certain investment entities of which the Goldman Sachs Reporting Units acts as the general partner, managing general partner or other manager, to the extent interests in such entities are held by persons other than the Goldman Sachs Reporting Units.

(b)  Each Reporting Person shares the power to vote or direct the vote and to dispose or direct the disposition of shares of Common Stock beneficially owned by such Reporting Person as indicated herein.

(c)  Schedule IV sets forth transactions in the Common Stock which were effected during the past sixty day period from August 23, 2007 through October 22, 2007, all of which were effected in the ordinary course of business of Goldman Sachs or another wholly-owned broker or dealer subsidiary of GS Group.  The transactions in the Common Stock described in Schedule IV were effected on the over-the-counter market.
  
Except as set forth in Schedule IV hereto, no transactions in the Common Stock were effected by the Reporting Persons or, to the knowledge of any of the Reporting Persons, any of the persons listed on Schedule I, Schedule II-A and Schedule II-B hereto, during the past sixty day period from August 23, 2007 through October 22, 2007.

(d)  No other person is known by any Reporting Person to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any shares of Common Stock.

(e)  Not applicable.
 
ITEM 6.       Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

The description of the Proposal set forth in Item 4 above is incorporated by reference in its entirety into this Item 6.

ITEM 7.                      Material to Be Filed as Exhibits.

EXHIBIT
DESCRIPTION
   
7.01
Joint Filing Agreement, dated as of November 1, 2007, by and among The Goldman Sachs Group, Inc., Goldman, Sachs & Co., and GS Direct, L.L.C.
   
7.02
Proposal Letter, dated October 22, 2007.
   
7.03
Support Agreement, dated October 22, 2007.
   
7.04     Debt Commitment Letter, dated October 22, 2007. 
   
7.05
Power of Attorney, dated November 7, 2005, relating to The Goldman Sachs Group, Inc. (incorporated by reference to Exhibit 8 to the Reporting Persons’ Schedule 13D filed in respect of HealthMarkets, Inc. on April 17, 2006).
   
7.06
Power of Attorney, dated November 7, 2005, relating to Goldman, Sachs & Co. (incorporated by reference to Exhibit 9 to the Reporting Persons’ Schedule 13D filed in respect of HealthMarkets, Inc. on April 17, 2006).
   
7.07
Power of Attorney, dated August 24, 2007, relating to GS Direct, L.L.C.


 

SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.


 
 
  November 1, 2007  

 
  THE GOLDMAN SACHS GROUP, INC.  
       
 
By:
 
/s/ Yvette Kosic
  
    Name:  Yvette Kosic   
    Title:    Attorney-in-fact  
       

 
  GOLDMAN, SACHS & CO.  
       
 
By:
 
/s/ Yvette Kosic
  
    Name:  Yvette Kosic   
    Title:    Attorney-in-fact   
       

 
  GS DIRECT, L.L.C.  
       
 
By:
 
/s/ Yvette Kosic
  
    Name:  Yvette Kosic    
    Title:    Attorney-in-fact    
       

 
 

SCHEDULE I
 
The name and present principal occupation of each director of The Goldman Sachs Group, Inc. is set forth below.
 
The business address of each person listed below is c/o Goldman, Sachs & Co., 85 Broad Street, New York, NY 10004.
 
Each person is a citizen of the United States of America except for Claes Dahlback, who is a citizen of Sweden.

NAME
PRESENT PRINCIPAL OCCUPATION
 
Lloyd C. Blankfein.
Chairman of the Board and Chief Executive Officer of The Goldman Sachs Group, Inc.
   
Gary D. Cohn
President and Co-Chief Operating Officer of The Goldman Sachs Group, Inc.
   
Jon Winkelreid
President and Co-Chief Operating Officer of The Goldman Sachs Group, Inc.
   
John H. Bryan
Retired Chairman and Chief Executive Officer of Sara Lee Corporation
   
Claes Dahlback
Senior Advisor to Investor AB and Executive Director of Thisbe AB
   
Stephen Friedman
Chairman of Stone Point Capital
   
William W. George
Professor of Management Practice at the Harvard Business School, Retired Chairman and Chief Executive Officer of Medtronic, Inc.
   
Rajat K. Gupta
Senior Partner of McKinsey & Company
   
James A. Johnson
Vice Chairman of Perseus, L.L.C.
   
Lois D. Juliber
Retired Vice Chairman of Colgate-Palmolive Company
   
Edward M. Liddy
Chairman of The Allstate Corporation
   
Ruth J. Simmons
President of Brown University
 
 
 

 
 
The name and present principal occupation of each member of the Principal Investment Area GS Direct Investment Sub-Committee of Goldman, Sachs & Co., which exercises the authority of Goldman, Sachs & Co. in reviewing all material investing and harvesting transactions proposed to be entered into by GS Direct, L.L.C., are set forth below.
 
The business address for each member listed below is c/o Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004, except as follows: The business address of Byron D. Trott and Muneer A. Satter is 71 South Wacker Drive, Chicago, IL 60606.
 
All members listed below are United States citizens, except as follows: Ravi Sinha is a citizen of India and the United States.

NAME
PRESENT PRINCIPAL OCCUPATION
   
Richard A. Friedman
Managing Director of Goldman, Sachs & Co.
   
Henry Cornell
Managing Director of Goldman, Sachs & Co.
   
Muneer A. Satter
Managing Director of Goldman, Sachs & Co.
   
Stephen M. Scherr
Managing Director of Goldman, Sachs & Co.
   
Ravi Sinha
Managing Director of Goldman, Sachs & Co.
   
Byron D. Trott
Managing Director of Goldman, Sachs & Co.
   
Gerald J. Cardinale
Managing Director of Goldman, Sachs & Co.

 
 

 
SCHEDULE II-B

The name, position, and present principal occupation of each executive officer of GS Direct, L.L.C. are set forth below.

The business address for all the executive officers listed below is c/o Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004, except as follows: The business address of Hughes B. Lepic, Robert R. Gheewalla, Michael M. Furth, Sanjay H. Patel, Steffen J. Kastner, Bjorn P. Killmer, Martin Hintze, Joanna Dzuibak Hislop, and Steven R. Sher is Peterborough Court, 133 Fleet Street, London EC4A 2BB, England.  The business address of Sang Gyun Ahn, Hsueh J. Sung, Stephanie M. Hui, and Andrew Wolff is Cheung Kong Center, 68th Floor, 2 Queens Road, Central, Hong Kong.  The business address of Joseph P. DiSabato is 555 California Street, San Franciso, CA 94104.  The business address of Muneer A. Satter is 71 South Wacker Drive, Chicago, IL 60606. The business address of Ankur A. Sahu is Roppongi Hills, Mori Tower, Level 43-48, 10-1, Roppongi 6-chome, Minato-ku, Tokyo, 106-6147, Japan.

All executive officers listed below are United States citizens, except as follows: Hughes B. Lepic is a citizen of France; Adrian M. Jones is a citizen of Ireland; Bjorn P. Killmer, Steffen J. Kastner, Martin Hintze, and Oliver Thym are citizens of Germany; Hsueh Sung is a citizen of Taiwan; Ankur A. Sahu and Sanjay H. Patel are citizens of India; Sang Gyun Ahn is a citizen of South Korea; Stephanie M. Hui is a citizen of Hong Kong; Steven R. Sher is a citizen of South Africa; Joanna Dzuibak Hislop, Sarah E. Smith, Stephanie M. Hui, and Steven R. Sher are citizens of the United Kingdom; and Michael M. Furth is a citizen of Ireland and the United States.

NAME
POSITION
PRESENT PRINCIPAL OCCUPATION
     
Richard A. Friedman
President
Managing Director of Goldman, Sachs & Co.
     
Ben I. Adler
Managing Director and Vice President
Managing Director of Goldman, Sachs & Co.
     
Sang Gyun Ahn
Managing Director and Vice President
Managing Director of Goldman Sachs (Asia) L.L.C.
     
John E. Bowman
Managing Director and Vice President
Managing Director of Goldman, Sachs & Co.
     
Gerald J. Cardinale
Managing Director and Vice President
Managing Director of Goldman, Sachs & Co.
     
Henry Cornell
Managing Director and Vice President
Managing Director of Goldman, Sachs & Co.
     
John F.X. Daly
Managing Director and Vice President
Managing Director of Goldman, Sachs & Co.
     
Joseph P. DiSabato
Managing Director and Vice President
Managing Director of Goldman, Sachs & Co.
     
Katherine B. Enquist
Managing Director, Vice President and Secretary
Managing Director of Goldman, Sachs & Co.
     
Michael M. Furth
Managing Director and Vice President
Managing Director of Goldman Sachs International
     
Robert R. Gheewalla
Managing Director and Vice President
Managing Director of Goldman Sachs International
     
Joseph H. Gleberman
Managing Director and Vice President
Managing Director of Goldman, Sachs & Co.
     
Philip W. Grovit
Managing Director and Vice President
Managing Director of Goldman, Sachs & Co.
     
Melina E. Higgins
Managing Director and Vice President
Managing Director of Goldman, Sachs & Co.
     
Martin Hintze
Managing Director and Vice President
Managing Director of Goldman Sachs International
     
Joanna Dzuibak Hislop
Managing Director and Vice President
Managing Director of Goldman Sachs International
     
Stephanie M. Hui
Managing Director and Vice President
Managing Director of Goldman Sachs (Asia) L.L.C.
     
Adrian M. Jones
Managing Director and Vice President
Managing Director of Goldman, Sachs & Co.
     
Steffen J. Kastner
Managing Director and Vice President
Managing Director of Goldman Sachs International
     
Stuart A. Katz
Managing Director and Vice President
Managing Director of Goldman, Sachs & Co.
     
Bjorn P. Killmer
Managing Director and Vice President
Managing Director of Goldman Sachs International
     
Michael E. Koester
Managing Director and Vice President
Managing Director of Goldman, Sachs & Co.
     
Hughes B. Lepic
Managing Director and Vice President
Managing Director of Goldman Sachs International
     
Sanjeev K. Mehra
Managing Director and Vice President
Managing Director of Goldman, Sachs & Co.
     
Sanjay H. Patel
Managing Director and Vice President
Managing Director of Goldman Sachs International
     
Kenneth A. Pontarelli
Managing Director and Vice President
Managing Director of Goldman, Sachs & Co.
     
Ankur A. Sahu
Managing Director and Vice President
Managing Director of Goldman Sachs (Japan) Ltd.
     
Muneer A. Satter
Managing Director and Vice President
Managing Director of Goldman, Sachs & Co.
     
Steven R. Sher
Managing Director and Vice President
Managing Director of Goldman Sachs International
     
Hsueh J. Sung
Managing Director and Vice President
Managing Director of Goldman Sachs (Asia) L.L.C.
     
Oliver Thym
Managing Director and Vice President
Managing Director of Goldman, Sachs & Co.
     
Andrew E. Wolff
Managing Director and Vice President
Managing Director of Goldman Sachs (Asia) L.L.C.
     
Christine Vollertsen
Vice President
Vice President
     
Mitchell S. Weiss
Vice President
Vice President of Goldman, Sachs & Co.
     
Elizabeth C. Fascitelli
Treasurer
Managing Director of Goldman, Sachs & Co.
     
Elizabeth E. Beshel
Assistant Treasurer
Managing Director of Goldman, Sachs & Co.
     
Steven M. Bunson
Assistant Treasurer
Managing Director of Goldman, Sachs & Co.
     
Sarah E. Smith
Assistant Treasurer
Assistant Treasurer
     
Julie Abraham
Assistant Secretary
Vice President and Assistant General Counsel of Goldman,
Sachs & Co.
     
Beverly O’Toole
Assistant Secretary
Vice President of Goldman, Sachs & Co.
     
Ken Josselyn
Assistant Secretary
Managing Director of Goldman, Sachs & Co.
     
Esta E. Stecher
Assistant Secretary
Managing Director of Goldman, Sachs & Co.
     
Matthew E. Tropp
Assistant Secretary
Vice President and Associate General Counsel of Goldman, Sachs & Co.
 
 
 
 
SCHEDULE III

In November 2002, the Securities and Exchange Commission ("SEC"), the National Association of Securities Dealers ("NASD") and the New York Stock Exchange, Inc. ("NYSE") alleged that five broker dealers, including Goldman Sachs, violated Section 17(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and Rule 17a-4 thereunder, NYSE Rules 440 and 342 and NASD Rules 3010 and 3110 by allegedly failing to preserve electronic mail communications for three years and/or to preserve electronic mail communications for the first two years in an accessible place, and by allegedly having inadequate supervisory systems and procedures in relation to the retention of electronic mail communications. Without admitting or denying the allegations, the five broker dealers, including Goldman Sachs, consented to censure by the SEC, NASD and NYSE and to the imposition of a cease-and-desist order by the SEC and Goldman Sachs paid a total fine of $1,650,000 ($550,000 each to the SEC, NASD and NYSE). Goldman Sachs also undertook to review its procedures regarding the preservation of electronic mail communications for compliance with the federal securities laws and regulations and the rules of the NASD and NYSE, and to confirm within a specified period of time that it has established systems and procedures reasonably designed to achieve compliance with those laws, regulations and rules.

On April 28, 2003, without admitting or denying liability, ten investment banking firms including Goldman Sachs, entered into global settlements with the SEC, the NYSE, the NASD and certain states to resolve the investigations relating to equity research analyst conflicts of interest. Goldman Sachs was charged with violating NYSE Rules 342, 401, 472 and 475, and NASD Conduct Rules 2110, 2210 and 3010. Goldman Sachs also agreed to a censure by the NYSE and the NASD and to pay a total of $110,000,000 and to adopt a set of industry-wide reforms of its research and investment banking businesses and to adopt certain restrictions on the allocations of "hot" IPO shares. The terms of the global settlement were entered in an order by a federal court in the Southern District of New York on October 31, 2003 (Civil Action Number 03CV2944).

On September 4, 2003, Goldman Sachs and the SEC settled administrative proceedings relating to certain trading in U.S. Treasury securities by Goldman Sachs on the morning of October 31, 2001. The Staff of the SEC alleged that Goldman Sachs violated (i) Section 15(c)(1) and Rule 15c1-2 of the Exchange Act as a result of certain trading in U.S. Treasury bonds over an eight minute period on October 31, 2001; and (ii) Section 15(f) of the Exchange Act by failing to maintain policies and procedures specifically addressed to the possible misuse of non-public information obtained from outside consultants. Under the Offer of Settlement submitted by Goldman Sachs and accepted by the SEC, without admitting or denying the SEC's allegations, Goldman Sachs consented to the entry of an Order that, among other things, (i) censured Goldman Sachs; (ii) directed Goldman Sachs to cease and desist from committing or causing any violations of Section 15(c)(1)(A) & (C) and 15(f) and Rule 15c1-2 of the Exchange Act; (iii) ordered Goldman Sachs to pay disgorgement and prejudgment interest in the amount of $1,742,642, and a civil monetary penalty of $5 million; and (iv) directed Goldman Sachs to conduct a review its policies and procedures and to adopt, implement and maintain policies and procedures consistent with the Order and that review. Goldman Sachs also undertook to pay $2,562,740 in disgorgement and interest relating to certain trading in U.S. Treasury bond futures during the same eight minute period.

On July 1, 2004, Goldman Sachs and the SEC settled administrative proceedings relating to communications from Goldman Sachs sales traders on its Asian Shares Sales Desk to certain institutional customers and news media concerning four international public securities offerings during the period between October 1999 and March 2000. The SEC alleged (i) that certain of these communications by Goldman Sachs employees were made after the registration statements pertaining to those offerings were filed, but not yet declared effective by the SEC, in violation of Section 5(b) of the Securities Act and (ii) that certain comments to the news media by Goldman Sachs with respect to one of the offerings constituted an offer to sell securities in violation of Section 5(c) of the Securities Act. The SEC also alleged that Goldman Sachs failed to adequately supervise the Asian Shares Sales Desk traders, as required by Section 15(b)(4)(E) of the Exchange Act. Under the Offer of Settlement submitted by Goldman Sachs and accepted by the SEC, without admitting or denying the SEC's allegations, Goldman Sachs consented to the entry of an Order that, among other things, directed Goldman Sachs to cease and desist from committing or causing any violations of Sections 5(b) and 5(c) of the Securities Act., and ordered Goldman Sachs to pay a civil monetary penalty of $2 million.

On January 24, 2005, the SEC filed an action in the U.S. District Court for the Southern District of New York alleging that Goldman Sachs violated Rule 101 of Regulation M under the Exchange Act by attempting to induce, or inducing certain investors to make, aftermarket purchases of certain initial public offerings underwritten by Goldman Sachs during 2000. On February 4, 2005, without admitting or denying the allegations of the complaint, a final judgment was entered against Goldman Sachs, with the consent of Goldman Sachs, under which Goldman Sachs was permanently restrained and enjoined from violating Rule 101 of Regulation M and required to pay a $40 million civil penalty, which was paid on March 31, 2005.

In May 2006, the SEC alleged that fourteen investment banking firms, including Goldman Sachs, violated Section 17(a)(2) of the Securities Act of 1933, by engaging in one or more practices relating to auctions of auction rate securities during the period from January 1, 2003 through June 30, 2004 as described in the cease-and-desist order entered by the SEC. Goldman Sachs has agreed to provide certain disclosures about its material auction practices and procedures to auction participants and to certify to the SEC that it has implemented certain procedures relating to the auction process. As part of a multi-firm settlement, Goldman Sachs submitted an Offer of Settlement which was accepted by the SEC on May 31, 2006. Without admitting or denying the allegations, Goldman Sachs consented to a censure and cease-and-desist order and payment of $1,500,000 civil money penalty.
 
 
 

SCHEDULE IV

Purchase (P) /
Sale (S)
SHARES
PRICE
TRADE DATE
SETTLEMENT
DATE
P
100
$33.4900
8/23/2007
8/28/2007
P
100
$33.4900
8/23/2007
8/28/2007
S
100
$33.4900
8/23/2007
8/28/2007
S
100
$33.4900
8/23/2007
8/28/2007
P
100
$33.4400
8/23/2007
8/28/2007
S
100
$33.4400
8/23/2007
8/28/2007
P
100
$33.2400
8/23/2007
8/28/2007
S
100
$33.2400
8/23/2007
8/28/2007
P
100
$33.2300
8/23/2007
8/28/2007
S
100
$33.2300
8/23/2007
8/28/2007
P
100
$33.1700
8/23/2007
8/28/2007
S
100
$33.1700
8/23/2007
8/28/2007
P
100
$33.1600
8/23/2007
8/28/2007
S
100
$33.1600
8/23/2007
8/28/2007
P
200
$33.1400
8/23/2007
8/28/2007
S
200
$33.1400
8/23/2007
8/28/2007
P
93
$33.1300
8/23/2007
8/28/2007
P
161
$33.1300
8/23/2007
8/28/2007
S
161
$33.1300
8/23/2007
8/28/2007
P
199
$33.1300
8/23/2007
8/28/2007
S
199
$33.1300
8/23/2007
8/28/2007
S
1
$33.0000
8/23/2007
8/28/2007
P
1
$33.0000
8/23/2007
8/28/2007
P
1
$33.0000
8/23/2007
8/28/2007
S
1
$33.0000
8/23/2007
8/28/2007
P
4
$32.8500
8/23/2007
8/28/2007
S
100
$32.7800
8/23/2007
8/28/2007
S
7
$32.7400
8/23/2007
8/28/2007
P
3
$32.5200
8/23/2007
8/28/2007
P
56
$32.0000
8/23/2007
8/28/2007
S
56
$32.0000
8/23/2007
8/28/2007
S
58
$32.0000
8/23/2007
8/28/2007
P
58
$32.0000
8/23/2007
8/28/2007
S
300
$31.9890
8/23/2007
8/28/2007
P
300
$31.9890
8/23/2007
8/28/2007
P
58
$31.9712
8/23/2007
8/28/2007
S
58
$31.9712
8/23/2007
8/28/2007
P
100
$31.9700
8/23/2007
8/28/2007
S
100
$31.9700
8/23/2007
8/28/2007
S
100
$31.6100
8/23/2007
8/28/2007
S
100
$31.5800
8/23/2007
8/28/2007
S
100
$32.5600
8/24/2007
8/29/2007
P
100
$32.5600
8/24/2007
8/29/2007
S
100
$32.3200
8/24/2007
8/29/2007
S
2
$32.2200
8/24/2007
8/29/2007
P
2
$32.2200
8/24/2007
8/29/2007
S
56
$32.1900
8/24/2007
8/29/2007
P
2
$31.9500
8/24/2007
8/29/2007
P
11
$31.9500
8/24/2007
8/29/2007
S
300
$31.9457
8/24/2007
8/29/2007
P
300
$31.9457
8/24/2007
8/29/2007
S
7
$31.9100
8/24/2007
8/29/2007
P
7
$31.9100
8/24/2007
8/29/2007
S
93
$31.9100
8/24/2007
8/29/2007
P
93
$31.9100
8/24/2007
8/29/2007
S
31
$31.8400
8/24/2007
8/29/2007
P
31
$31.8400
8/24/2007
8/29/2007
S
31
$31.8400
8/24/2007
8/29/2007
P
20
$31.8000
8/24/2007
8/29/2007
S
100
$31.7800
8/24/2007
8/29/2007
S
100
$31.7400
8/24/2007
8/29/2007
P
100
$31.6400
8/24/2007
8/29/2007
S
100
$31.6400
8/24/2007
8/29/2007
P
3
$31.9900
8/27/2007
8/30/2007
S
100
$31.7300
8/27/2007
8/30/2007
P
100
$31.7300
8/27/2007
8/30/2007
S
100
$31.7300
8/27/2007
8/30/2007
S
61
$31.6100
8/27/2007
8/30/2007
P
4
$31.4600
8/27/2007
8/30/2007
S
27
$31.4000
8/27/2007
8/30/2007
P
3
$31.3900
8/27/2007
8/30/2007
S
3
$31.3900
8/27/2007
8/30/2007
P
3
$31.3900
8/27/2007
8/30/2007
P
27
$31.3900
8/27/2007
8/30/2007
S
27
$31.3900
8/27/2007
8/30/2007
S
27
$31.3900
8/27/2007
8/30/2007
P
27
$31.3900
8/27/2007
8/30/2007
S
31
$31.3900
8/27/2007
8/30/2007
S
27
$31.4500
8/28/2007
8/31/2007
S
8
$31.3550
8/28/2007
8/31/2007
S
1
$31.2900
8/28/2007
8/31/2007
S
4
$31.2900
8/28/2007
8/31/2007
P
100
$31.1600
8/28/2007
8/31/2007
P
100
$30.9600
8/28/2007
8/31/2007
P
100
$30.9500
8/28/2007
8/31/2007
P
100
$30.9400
8/28/2007
8/31/2007
P
100
$30.8900
8/28/2007
8/31/2007
P
100
$30.8700
8/28/2007
8/31/2007
P
6
$30.8600
8/28/2007
8/31/2007
S
6
$30.8600
8/28/2007
8/31/2007
P
20
$30.8600
8/28/2007
8/31/2007
P
34
$30.8600
8/28/2007
8/31/2007
S
34
$30.8600
8/28/2007
8/31/2007
P
100
$30.8600
8/28/2007
8/31/2007
P
100
$30.8600
8/28/2007
8/31/2007
P
600
$30.8600
8/28/2007
8/31/2007
S
600
$30.8600
8/28/2007
8/31/2007
P
634
$30.8600
8/28/2007
8/31/2007
S
2,272
$30.8600
8/28/2007
8/31/2007
S
6
$30.8400
8/28/2007
8/31/2007
P
32
$30.7800
8/28/2007
8/31/2007
P
100
$30.7700
8/28/2007
8/31/2007
S
358
$30.5884
8/28/2007
8/31/2007
P
2
$31.5000
8/29/2007
9/4/2007
S
2
$31.5000
8/29/2007
9/4/2007
P
44
$31.5000
8/29/2007
9/4/2007
S
99
$31.5000
8/29/2007
9/4/2007
P
99
$31.5000
8/29/2007
9/4/2007
P
18
$31.4500
8/29/2007
9/4/2007
P
70
$31.4500
8/29/2007
9/4/2007
P
100
$31.2500
8/29/2007
9/4/2007
S
59
$31.2300
8/29/2007
9/4/2007
P
100
$31.2300
8/29/2007
9/4/2007
S
1,444
$31.2300
8/29/2007
9/4/2007
P
1,500
$31.2300
8/29/2007
9/4/2007
P
100
$31.2100
8/29/2007
9/4/2007
P
100
$31.2000
8/29/2007
9/4/2007
P
100
$31.1800
8/29/2007
9/4/2007
P
100
$31.1400
8/29/2007
9/4/2007
S
17
$31.0900
8/29/2007
9/4/2007
P
3
$31.0700
8/29/2007
9/4/2007
P
100
$31.0600
8/29/2007
9/4/2007
P
100
$31.0600
8/29/2007
9/4/2007
P
100
$31.0100
8/29/2007
9/4/2007
P
100
$31.0000
8/29/2007
9/4/2007
P
33
$30.9800
8/29/2007
9/4/2007
P
67
$30.9800
8/29/2007
9/4/2007
S
100
$30.9800
8/29/2007
9/4/2007
P
100
$30.9800
8/29/2007
9/4/2007
P
100
$30.9600
8/29/2007
9/4/2007
P
100
$30.9200
8/29/2007
9/4/2007
P
2
$30.9100
8/29/2007
9/4/2007
P
98
$30.9100
8/29/2007
9/4/2007
P
100
$30.8400
8/29/2007
9/4/2007
P
100
$30.8100
8/29/2007
9/4/2007
P
100
$30.7800
8/29/2007
9/4/2007
P
158
$30.6900
8/29/2007
9/4/2007
P
25
$30.5300
8/29/2007
9/4/2007
P
75
$30.5300
8/29/2007
9/4/2007
P
100
$30.5000
8/29/2007
9/4/2007
S
100
$32.4600
8/30/2007
9/5/2007
P
100
$32.4600
8/30/2007
9/5/2007
S
38
$32.4000
8/30/2007
9/5/2007
P
1
$32.2000
8/30/2007
9/5/2007
S
11
$32.1600
8/30/2007
9/5/2007
P
11
$32.1600
8/30/2007
9/5/2007
S
41
$32.1600
8/30/2007
9/5/2007
P
41
$32.1600
8/30/2007
9/5/2007
S
42
$32.1600
8/30/2007
9/5/2007
P
42
$32.1600
8/30/2007
9/5/2007
S
52
$32.1600
8/30/2007
9/5/2007
S
42
$32.1000
8/30/2007
9/5/2007
S
2
$32.0600
8/30/2007
9/5/2007
S
31
$32.0600
8/30/2007
9/5/2007
S
2
$31.5800
8/30/2007
9/5/2007
P
2
$31.4800
8/30/2007
9/5/2007
S
25
$32.9100
8/31/2007
9/6/2007
S
100
$32.9100
8/31/2007
9/6/2007
P
125
$32.9100
8/31/2007
9/6/2007
S
100
$32.4900
8/31/2007
9/6/2007
S
100
$32.4900
8/31/2007
9/6/2007
P
100
$32.4900
8/31/2007
9/6/2007
P
100
$32.4900
8/31/2007
9/6/2007
S
200
$32.4900
8/31/2007
9/6/2007
P
200
$32.4900
8/31/2007
9/6/2007
S
16
$32.4792
8/31/2007
9/6/2007
P
16
$32.4792
8/31/2007
9/6/2007
P
1
$32.4500
8/31/2007
9/6/2007
S
1
$32.4500
8/31/2007
9/6/2007
S
5
$32.4500
8/31/2007
9/6/2007
P
5
$32.4500
8/31/2007
9/6/2007
S
5
$32.4500
8/31/2007
9/6/2007
P
5
$32.4500
8/31/2007
9/6/2007
S
6
$32.4500
8/31/2007
9/6/2007
P
6
$32.4500
8/31/2007
9/6/2007
S
9
$32.4500
8/31/2007
9/6/2007
P
9
$32.4500
8/31/2007
9/6/2007
P
16
$32.4500
8/31/2007
9/6/2007
S
16
$32.4500
8/31/2007
9/6/2007
P
16
$32.4500
8/31/2007
9/6/2007
S
16
$32.4500
8/31/2007
9/6/2007
P
60
$32.4500
8/31/2007
9/6/2007
S
60
$32.4500
8/31/2007
9/6/2007
S
150
$32.4500
8/31/2007
9/6/2007
P
150
$32.4500
8/31/2007
9/6/2007
S
200
$32.4500
8/31/2007
9/6/2007
P
200
$32.4500
8/31/2007
9/4/2007
P
200
$32.4500
8/31/2007
9/6/2007
S
364
$32.4500
8/31/2007
9/6/2007
S
400
$32.4500
8/31/2007
9/6/2007
P
60
$32.4400
8/31/2007
9/6/2007
P
100
$32.2000
8/31/2007
9/6/2007
P
11
$32.1700
8/31/2007
9/6/2007
S
3
$32.1600
8/31/2007
9/6/2007
P
3
$32.1600
8/31/2007
9/6/2007
P
60
$32.1600
8/31/2007
9/6/2007
S
60
$32.1600
8/31/2007
9/6/2007
S
4
$32.4500
9/4/2007
9/7/2007
P
4
$32.4500
9/4/2007
9/7/2007
S
314
$32.4500
9/4/2007
9/7/2007
P
314
$32.4500
9/4/2007
9/7/2007
P
4
$32.4300
9/4/2007
9/7/2007
P
96
$32.4300
9/4/2007
9/7/2007
S
100
$32.4200
9/4/2007
9/7/2007
P
16
$32.4100
9/4/2007
9/7/2007
P
26
$32.3900
9/4/2007
9/7/2007
S
26
$32.3900
9/4/2007
9/7/2007
P
26
$32.3900
9/4/2007
9/7/2007
S
53
$32.3900
9/4/2007
9/7/2007
P
53
$32.3900
9/4/2007
9/7/2007
S
53
$32.3900
9/4/2007
9/7/2007
S
137
$32.3900
9/4/2007
9/7/2007
P
137
$32.3900
9/4/2007
9/7/2007
P
165
$32.3900
9/4/2007
9/7/2007
S
165
$32.3900
9/4/2007
9/7/2007
P
46
$32.3800
9/4/2007
9/7/2007
P
100
$32.3800
9/4/2007
9/7/2007
S
146
$32.3800
9/4/2007
9/7/2007
P
165
$32.3700
9/4/2007
9/7/2007
P
100
$32.3500
9/4/2007
9/7/2007
S
100
$32.3500
9/4/2007
9/7/2007
S
100
$32.3400
9/4/2007
9/7/2007
S
2
$32.3300
9/4/2007
9/7/2007
S
100
$32.3300
9/4/2007
9/7/2007
S
100
$32.2900
9/4/2007
9/7/2007
S
100
$32.2600
9/4/2007
9/7/2007
S
100
$32.2600
9/4/2007
9/7/2007
S
100
$32.2450
9/4/2007
9/7/2007
S
100
$32.2300
9/4/2007
9/7/2007
S
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100
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100
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100
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31
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51
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51
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100
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62
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100
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19
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2,400
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50
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39
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100
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54
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83
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86
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86
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100
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100
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182
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182
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465
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86
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193
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193
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100
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71
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29
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100
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107
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107
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107
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$27.2800
10/19/2007
10/24/2007
P
7
$27.2800
10/19/2007
10/24/2007
P
8
$27.2800
10/19/2007
10/24/2007
P
95
$27.2800
10/19/2007
10/24/2007
P
100
$27.2800
10/19/2007
10/24/2007
P
100
$27.2800
10/19/2007
10/24/2007
P
15
$27.2700
10/19/2007
10/24/2007
P
85
$27.2700
10/19/2007
10/24/2007
P
100
$27.2700
10/19/2007
10/24/2007
P
100
$27.2700
10/19/2007
10/24/2007
S
42
$27.2600
10/19/2007
10/24/2007
P
100
$27.2600
10/19/2007
10/24/2007
P
100
$27.2600
10/19/2007
10/24/2007
P
100
$27.2600
10/19/2007
10/24/2007
P
100
$27.2600
10/19/2007
10/24/2007
P
100
$27.2600
10/19/2007
10/24/2007
P
100
$27.2600
10/19/2007
10/24/2007
P
100
$27.2600
10/19/2007
10/24/2007
P
34
$27.2300
10/19/2007
10/24/2007
P
66
$27.2300
10/19/2007
10/24/2007
S
158
$27.2100
10/19/2007
10/24/2007
S
205
$27.1344
10/19/2007
10/24/2007
P
205
$27.1344
10/19/2007
10/24/2007
S
100
$27.1100
10/19/2007
10/24/2007
P
100
$27.1100
10/19/2007
10/24/2007
S
186
$27.1100
10/19/2007
10/24/2007
P
186
$27.1100
10/19/2007
10/24/2007
S
186
$27.1100
10/19/2007
10/24/2007
S
205
$27.1100
10/19/2007
10/24/2007
P
829
$27.1100
10/19/2007
10/24/2007
S
829
$27.1100
10/19/2007
10/24/2007
S
400
$27.1055
10/19/2007
10/24/2007
P
400
$27.1055
10/19/2007
10/24/2007
S
51
$27.1000
10/19/2007
10/24/2007
S
100
$27.1000
10/19/2007
10/24/2007
S
249
$27.1000
10/19/2007
10/24/2007
P
96
$27.0800
10/19/2007
10/24/2007
P
100
$27.0800
10/19/2007
10/24/2007
P
100
$27.0800
10/19/2007
10/24/2007
S
180
$27.0800
10/19/2007
10/24/2007
S
296
$27.0800
10/19/2007
10/24/2007
S
2
$27.0700
10/19/2007
10/24/2007
P
2
$27.0700
10/19/2007
10/24/2007
S
42
$28.4800
10/22/2007
10/25/2007
P
36
$28.4700
10/22/2007
10/25/2007
S
36
$28.4700
10/22/2007
10/25/2007
S
42
$28.4700
10/22/2007
10/25/2007
P
42
$28.4700
10/22/2007
10/25/2007
P
123
$28.4700
10/22/2007
10/25/2007
S
123
$28.4700
10/22/2007
10/25/2007
P
123
$28.4700
10/22/2007
10/25/2007
S
6
$28.3500
10/22/2007
10/25/2007
P
6
$28.3500
10/22/2007
10/25/2007
S
94
$28.3500
10/22/2007
10/25/2007
P
94
$28.3500
10/22/2007
10/25/2007
P
205
$27.4600
10/22/2007
10/25/2007
P
6
$27.3800
10/22/2007
10/25/2007
P
1
$27.3500
10/22/2007
10/25/2007
P
100
$27.2100
10/22/2007
10/25/2007
S
100
$27.2100
10/22/2007
10/25/2007
S
74
$26.9700
10/22/2007
10/25/2007

 

 EX-7.01 2 rsex7_01.htm JOINT FILING AGREEMENT rsex7_01.htm
EXHIBIT 7.01

JOINT FILING AGREEMENT

In accordance with Rule 13d-1(k)(1) promulgated under the Securities Exchange Act of 1934, the undersigned agree to the joint filing of a Statement on Schedule 13D (including any and all amendments thereto) with respect to the Common Stock, no par value, of WASTE INDUSTRIES USA, INC. and further agree to the filing of this agreement as an Exhibit thereto.  In addition, each party to this Agreement expressly authorizes each other party to this Agreement to file on its behalf any and all amendments to such Statement on Schedule 13D.


Dated: November 1, 2007

THE GOLDMAN SACHS GROUP, INC.
 
 
      
By:
 /s/ Yvette Kosic
  
Name:
Yvette Kosic
  
Title:
Attorney-in-fact
  


GOLDMAN, SACHS & CO.
 
 
      
By:
 /s/ Yvette Kosic
  
Name:
Yvette Kosic
  
Title:
Attorney-in-fact
  


GS DIRECT, L.L.C.
 
 
      
By:
 /s/ Yvette Kosic
  
Name:
Yvette Kosic
  
Title:
Attorney-in-fact
  

EX-7.02 3 rsex7_02.htm LETTER, POOLE rsex7_02.htm
 
EXHIBIT 7.02
 
 
Lonnie C. Poole, Jr.
P.O. Box 20105
Raleigh, NC 27609


HIGHLY CONFIDENTIAL


October 22, 2007


Special Committee of the Board of Directors
Waste Industries USA, Inc.
3301 Benson Drive, Suite 601
Raleigh, NC 27609

Gentlemen:

On behalf of myself, certain members of my family and certain Poole family entities (collectively, the “Poole Family”), Jim W. Perry (collectively with the Poole Family, the “Majority Shareholders”),  Macquarie Infrastructure Partners Inc. (“MIP”), and GS Direct, LLC (“Goldman Sachs” and collectively with the Majority Shareholders and MIP, the “Buyers”), I am pleased to submit this going private transaction proposal (the “Proposal”) to acquire 100% of the fully diluted common stock of Waste Industries, USA, Inc. (“Waste Industries” or the “Company) through an entity to be formed by the Buyers on the terms set forth in this letter (the “Transaction”).
 
Of the financial alternatives that our Board has considered in recent years, Jim Perry and I firmly believe that a going private transaction is the most attractive for the Company, its shareholders, employees, customers, vendors and the communities in which the Company operates.  Under the terms of the Transaction, I am pleased to commit to you, on behalf of the Buyers, that the Company will remain headquartered in Raleigh, North Carolina, will continue to operate under the Waste Industries name and will maintain the Company’s current practices with regard to support for local community programs and charitable activities.  In addition, the Buyers do not expect to make any major operational or staffing changes to the business going forward.  The Buyers enthusiastically look forward to working with the Company’s current management team (who will be invited and encouraged to participate in the Transaction) to continue growing the business while maintaining the excellent relationships that the Company has developed with its customers, vendors and other stakeholders.
 
As you know, over the past several months I have been exploring the feasibility and advisability of making a proposal to take the Company private.  In connection with this process, I have had extensive discussions with a number of leading private equity groups, several of which met with Jim Perry, certain members of the Company’s management and me in order to conduct preliminary analyses of the Company’s financial position, results of operations, plans, objectives, future performance and business.  As a result of these discussions and subsequent negotiations of prospective transaction terms, I determined that joining with MIP and Goldman Sachs, two of the world’s premier private equity groups (collectively, the “Sponsors”), to formulate an acquisition proposal for the Company would bring the greatest current value to the Company’s shareholders and represent the most attractive alternative for the Company and its many stakeholders.
 
 The Buyers believe that this Proposal allows the Company’s shareholders to immediately realize an exceptionally attractive value, in cash, for their investment and provides such shareholders certainty of value for their shares, especially when viewed against the costs and risks inherent in the Company’s business plan as a publicly-traded company.  Currently, as you know, the Company is constrained from growing more aggressively due to the intense focus by investment analysts and public shareholders on short-term quarterly earnings.  This intense focus creates an impediment to making long-term investments in the Company’s future that are necessary to sustain and enhance Waste Industries’ franchise for many years to come.  In addition, the small public float and limited  trading volume of the Company’s shares results in undesirable price volatility and restricts opportunities for the Company’s public shareholders, as well as the Majority Shareholders, to achieve liquidity with respect to their shares.  Finally, the significant regulatory costs and management resources expended to maintain the Company’s status as a modestly-sized public company create a negative impact on the Company’s profitability and capital resources.
 
The Majority Shareholders are unwilling at this time to entertain alternative bids for the Company  because the Majority Shareholders believe the Transaction is in the best interests of the Company, and any third-party acquisition would negatively impact the Company, its many stakeholders and the communities in which the Company operates.  As a result, concurrent with the submission of this Proposal, the Majority Shareholders have entered into a support agreement (the “Support Agreement”) with MIP and Goldman Sachs whereby we have agreed to support and vote in favor of the Transaction and to oppose any alternative proposals to acquire the Company for a period of 18 months.  A copy of the Support Agreement is attached hereto as Exhibit A.
 
MIP, Goldman Sachs and advisors to the Buyers, including Weil Gotshal & Manges LLP (legal), KPMG (accounting/financial), Bain (market analyses), SCS (environmental/engineering) and Marsh (insurance), have completed extensive due diligence.  The Buyers are confident that we can sign a definitive merger agreement promptly following your acceptance of our Proposal and consummate a closing of the Transaction on an accelerated basis. The Proposal is backed by full debt and equity financing commitments, and we do not anticipate any regulatory impediments that would delay the closing.  The Buyers have obtained all necessary internal approvals required to submit this Proposal and look forward to working with you to finalize the Transaction.
 
The general terms and merits of our Proposal are set forth below.
 
A. Purchase Price
 
We are prepared to acquire 100% of the equity interests of the Company (other than certain shares rolled over by the Majority Shareholders and certain members of management), and cash out all of the Company’s outstanding in-the-money options on a net basis, at a price of $36.75 per share (the “Transaction Price”), a price in excess of the Company’s all-time high, which would be fully payable in cash at closing.
 
The Transaction Price provides a substantial premium for the Company's shareholders based on current and historical market prices.  The Transaction Price represents:
 
·  
A 36% premium to the $27.11 closing price of Waste Industries stock on October 19, 2007;
 
·  
A 35% premium to the Company’s 5 year average historical trading multiple; and
 
·  
A 32% premium to the $27.90 average trading price over the preceding 1 month.
 
B. Overview of the Sponsors
 
Macquarie Infrastructure Partners is a $4 billion private investment fund managed by the Macquarie Group, making equity investments in North American essential services businesses. Since its inception in 2006, MIP has invested $2.2 billion in essential services businesses in the United States and Canada. Notable investments include:  Duquesne Light Holdings, Global Tower Partners, the Indiana Toll Road, the Chicago Skyway and the Aquarion Company. The Macquarie Group is one of the largest private sector investors in essential services and infrastructure businesses globally with approximately $49 billion of equity invested in 109 portfolio assets globally across its family of private and public investment funds.
 
Goldman Sachs, through its GS Capital Partners family of funds and other investment vehicles––including the recently established “GS Direct” on-balance-sheet investment initiative––is one of the foremost private equity investors in the world, having invested more than $36 billion in over 600 companies globally since 1986. GS Capital Partners invests opportunistically across a range of industries, including manufacturing/industrial, telecom, media & entertainment, financial institutions, energy/power, healthcare, construction and technology. Goldman Sachs’ investment philosophy is based on partnership and long-term value creation, and the firm seeks to provide access to the full capabilities of Goldman Sachs, including sophisticated financial structuring, industry expertise, execution experience and a global network.
 
C. Overview of the Proposal’s Structure and Financing
 
The Buyers will establish a new entity (“Holdco”) to enter into definitive documentation with the Company.  The Proposal’s sources of funds are as follows:
 
·  
The Majority Shareholders would rollover shares of common stock of the Company which they currently own having an aggregate value at the Transaction Price of $167.4 million and invest $24.0 million in cash;
 
·  
MIP would invest $126.3 million in cash;
 
·  
Goldman Sachs would invest $63.2 million in cash;
 
·  
The current Industrial Revenue Bonds of $40.4 million which the Company has outstanding would remain outstanding; and
 
·  
Wachovia Bank, N.A. (“Wachovia”) and HSBC Securities (USA) Inc. and HSBC Bank, N.A. (“HSBC”) would provide $269.6 million in new senior debt facilities, which would be used to repay the Company’s existing term loans and partially fund the Proposal.

Wachovia and HSBC (the “Lenders”) have provided commitment letters to fund 100% of the senior debt financing portion of the capital structure.  Shortly after submitting this Proposal, we will provide you with executed copies of these commitment letters.  The Lenders have performed extensive due diligence and have provided commitment letters with limited conditions, including no diligence conditions.  Each of the Buyers will enter into a binding commitment letter, and the funding thereunder will be subject to the funding of the debt financing and the satisfaction of the conditions contained in the definitive merger agreement.  Shortly after submitting this Proposal, we will provide you with forms of the commitment letters from the Buyers.
 
D. Merger Agreement
 
Shortly after submitting this Proposal, we will provide you with a draft merger agreement in a form that we are prepared to sign.  Key terms of the merger agreement include:

·  
The Company surviving the merger as a wholly owned subsidiary of Holdco
 
·  
Customary representations, warranties and interim covenants
 
·  
Limited closing conditions (which do not include a financing condition)
 
·  
Customary termination rights and break-up fees
 
·  
The opportunity for shareholders of the Company who dissent to receive appraisal rights under North Carolina law
 
We look forward to discussing the merger agreement with you at your earliest convenience.  The Buyers are confident that we, along with our respective advisors, will be able to negotiate and finalize the merger agreement and all other documentation required for the Transaction expeditiously.

E. Approvals; Transaction Timing
 
Subject to the terms and conditions contained in this letter, the Proposal has been approved by the Majority Shareholders and the Investment Committees of both MIP and Goldman Sachs.  As you know, the completion of the Transaction will require approval from the Company’s shareholders.  The Majority Shareholders have sufficient voting power to satisfy the applicable shareholder approval requirements of North Carolina law, and therefore, subject to the terms and conditions of the merger agreement, sufficient shareholder approval of the Transaction is assured.  In addition, other than notification under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR”), we do not anticipate any regulatory or other governmental approvals being required in connection with the completion of the Transaction.  We also do not anticipate any antitrust impediments relating to MIP, Goldman Sachs, the Majority Shareholders or any of our respective portfolio companies, or any material third party consents being required to complete the Transaction.  The Buyers will be in a position to make an HSR filing and any applicable foreign antitrust filings pertaining to the Transaction promptly following the execution of the merger agreement.  Therefore, we are confident that we can sign a definitive merger agreement promptly following your acceptance of our Proposal and consummate the Transaction on an accelerated basis.
 
F. Contact Information
 
Any questions relating to this Proposal should be directed to Bill Jacob or Gerry Cardinale of Goldman, Sachs & Co.  The contact information for Mr. Jacob and Mr. Cardinale, as well as for Chris Leslie and Matthew Lancaster of MIP, and our legal advisors, Weil, Gotshal & Manges LLP and Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., is attached hereto as Exhibit B.
 
G. Confidentiality
 
This letter has been provided to you on the basis that you will treat it as strictly private and confidential.  We expect that you will not disclose its content, either in its entirety or in part, to anyone other than the Company’s board of directors and senior management and the Company’s advisors, unless otherwise authorized in writing by us.  This letter does not constitute a binding obligation on the part of any person, it being understood that such binding obligation will arise only upon the execution of a mutually acceptable merger agreement for the acquisition of the outstanding common stock of the Company.  We reserve the right to withdraw this Proposal at any time.
 
H. Conclusion
 
I would like to express my personal appreciation to the members of the Special Committee for your cooperation as I conducted the exploratory phases of this going private transaction process and formulated the Proposal.  I want to reiterate the sincere desire of Jim Perry, the Sponsors and me to act, and have the Company’s Board act, in a manner that is substantively and procedurally fair to all shareholders of the Company.
 
The Buyers thank you for the opportunity to submit this Proposal to the Company and are confident that we can move forward quickly with a Transaction.  We are pleased to provide what we believe to be an exceptionally attractive Proposal and trust that this letter conveys the significant enthusiasm and commitment we have towards completing the Transaction.  We look forward to working closely with you and your advisors to finalize the terms and consummate the Transaction in an expeditious manner.
 


Very truly yours,
 
Lonnie C. Poole, Jr.


By: /s/ Lonnie C. Poole, Jr.
Lonnie C. Poole, Jr.
 

On behalf of the Poole Family


By: /s/ Lonnie C. Poole, Jr.
Lonnie C. Poole, Jr.
 
 
Jim W. Perry


By: /s/ Jim W. Perry
Jim W. Perry
 
 
Macquarie Infrastructure Partners Inc.


By: /s/ Chris Leslie
Chris Leslie, CEO Macquarie Infrastructure Partners Inc.
 
 
GS Direct, LLC


By: /s/ Gerald J. Cardinale
Gerald J. Cardinale
 


Exhibit A
Support Agreement



Exhibit B
Contact Information



 EX-7.03 4 rsex7_03.htm SUPPORT AGREEMENT rsex7_03.htm
 EXHIBIT 7.03
 
SUPPORT AGREEMENT
 

 
This SUPPORT AGREEMENT (this “Agreement”) dated October 22, 2007, is made and entered into by and among those persons identified as the existing majority shareholder parties on Schedule A, attached hereto and incorporated herein by reference (collectively the “Shareholder Parties”, and individually a “Shareholder Party”), Macquarie Infrastructure Partners International, L.P., Macquarie Infrastructure Partners Canada, L.P., Macquarie Infrastructure Partners A, L.P. (collectively, “MIP”), and GS Direct, LLC (“Goldman” and together with MIP and the Shareholder Parties, the “Parties”).
 
WHEREAS, concurrently with the execution of this Agreement, the Parties have made a proposal (the “Proposal”) to Waste Industries USA, Inc., a North Carolina corporation (the “Company”), pursuant to which, if the Proposal is accepted by the Company, a newly-formed Delaware limited liability company to be formed by the Parties (the “Parent”) and a newly-formed, wholly-owned subsidiary of Parent (“Merger Sub”) will enter into an agreement and plan of merger with the Company substantially in the form of the draft agreement and plan of merger submitted to the Company contemporaneously with the Proposal (as may be modified from time to time in a form agreed to by the Parties, the “Merger Agreement”);
 
WHEREAS, as of the date hereof, each Shareholder Party is the record owner of the number of shares of common stock, no par value per share (“Common Stock”), of the Company set forth opposite such Shareholder Party’s name on Schedule A hereto (such shares, together with any other shares of Common Stock acquired by any Shareholder Party after the date hereof, being collectively referred to herein as the “Party Shares”); and
 
WHEREAS, as a condition to each Party’s willingness to support the Proposal and cause Parent and Merger Sub to enter into the Merger Agreement, each Party has required that all of the other Parties enter into this Agreement and agree to support the Proposal, as more specifically set forth in this Agreement.
 
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, the Parties agree as follows:
 
1.  Defined Terms.  Capitalized terms used herein but not otherwise defined herein have the meanings assigned to such terms in the Merger Agreement.
 
2.  Agreements of Parties.
 
(a)  Voting.  Subject to the terms and conditions of this Agreement, from the date hereof until the Termination Date (as defined in Section 4 hereof), at any meeting of the stockholders of the Company however called or any adjournment thereof, each Shareholder Party agrees to vote all of his or its respective Party Shares (or cause them to be voted), (i) in favor of the adoption of the Merger Agreement and the approval of the transactions contemplated thereby (unless the Board of Directors of the Company withdraws, modifies, qualifies or amends, in a manner adverse to Parent or Merger Sub, the Recommendation in accordance with the terms of the Merger Agreement and such withdrawal, modification, qualification or amendment is effective at the time of such meeting or adjournment thereof), (ii) against any action or agreement that would result in a breach of any representation, warranty, covenant, agreement or other obligation of the Company in the Merger Agreement, (iii) against any Alternative Proposal and (iv) against any agreement (or any amendment to any agreement in existence on the date hereof), amendment of the Company Charter Documents or other action that is intended or could reasonably be expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the Merger.  Any such vote shall be cast by the Shareholder Parties in accordance with such procedures relating thereto so as to ensure that it is duly counted, including for purposes of determining that a quorum is present and for purposes of recording the results of such vote.  Notwithstanding the foregoing, in no event shall the obligations of each Shareholder Party set forth in this Section 2(a) or any Party elsewhere in this Agreement convey to any other Party or any other person voting power in the election of directors of the Company, sole or shared ownership of any Party Shares, or sole or shared power to vote any Party Shares or to direct the exercise of voting power of any Party Shares.
 
(b)  Restriction on Transfer; Proxies; Non-Interference; etc.  Other than a Permitted Transfer (as hereinafter defined), from the date hereof until the Termination Date, no Shareholder Party shall directly or indirectly (i) sell, transfer (including by operation of law), give, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding (collectively, a “Transfer”) with respect to the sale, transfer, gift, pledge, encumbrance, assignment or other disposition of, any Party Shares (or any right, title or interest thereto or therein), (ii) deposit any Party Shares into a voting trust or grant any proxies or enter into a voting agreement, power of attorney or voting trust with respect to any Party Shares (each, an “Assignment”), (iii) take any action that would make any representation or warranty of such Shareholder Party set forth in this Agreement untrue or incorrect in any material respect or have the effect of preventing, disabling or delaying such Shareholder Party from performing any of his or its obligations under this Agreement or (iv) agree (whether or not in writing) to take any of the actions referred to in the foregoing clauses (i), (ii) or (iii) of this Section 2(b).  Notwithstanding the foregoing, any Shareholder Party, (a) may Transfer any of the Party Shares, or execute an Assignment with respect to Party Shares, if such Transfer or Assignment is made to a family member or a controlled affiliate of such Shareholder Party or is made to a trust or similar vehicle in connection with estate planning purposes; provided that, in each case, the transferee, trustee, proxy holder, or beneficiary of the Party Shares resulting from such Transfer or Assignment executes a joinder agreement, reasonably acceptable to each of the MIP entities and Goldman, whereby such transferee, proxy holder or beneficiary would become a party to this Agreement and become subject to all of the rights and obligations hereunder, (b) at any time after the termination of the Merger Agreement, may sell no more than 25,000 Party Shares in the open market in any six-month period, (c) if the Merger Agreement is not entered into on or prior to December 31, 2007 and the Company and Parties are not actively negotiating a proposal to acquire the Company at such date, may sell no more than 25,000 Party Shares in the open market in any six-month period thereafter or (d) with the prior written consent of each of the MIP entities and Goldman (which consent may be withheld in their sole discretion), may Transfer any of the Party Shares, or execute an Assignment with respect to Party Shares, other than as contemplated in clauses (a), (b) and (c)  (each of the foregoing clauses (a) through (d), a “Permitted Transfer”).  Each Shareholder Party shall cause the Company to instruct the Company’s transfer agent to place appropriate restrictive legends with respect to such Shareholder Party’s Party Shares in order to reflect the transfer limitations and other provisions contained in this Agreement.
 
(c)  No Solicitation.  Subject to Section 5 hereunder, each Shareholder Party agrees it shall not nor shall it authorize or permit any of its Representatives to, directly or indirectly, (i) initiate, solicit, encourage (including by providing information) or facilitate any inquiries, proposals or offers with respect to, or the making or completion of, an Alternative Proposal, (ii) engage or participate in any negotiations concerning, or provide or cause to be provided any non-public information or data relating to, the Company or any of its Subsidiaries in connection with, or have any discussions with any person relating to, an actual or proposed Alternative Proposal, or otherwise knowingly encourage or facilitate any effort or attempt to make or implement an Alternative Proposal, (iii) adopt, endorse or recommend, or propose publicly to adopt, endorse or recommend, any Alternative Proposal, (iv) adopt, endorse or recommend, or propose to adopt, endorse or recommend, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement relating to any Alternative Proposal, (v) amend, terminate, waive or fail to enforce, or grant any consent under, any confidentiality, standstill or similar agreement, or (vi) resolve to propose or agree to do any of the foregoing.
 
3.  Representations and Warranties of the Parties.  Each Party hereby represents and warrants to each of the other Parties as follows:
 
(a)  Execution.  This Agreement has been duly executed and delivered by such Party and, assuming due and valid authorization, execution and delivery hereof by the other Parties hereto, constitutes a valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
 
(b)  Consents and Approvals; No Violations.  Except for the filing of a Schedule 13D with the Securities and Exchange Commission, no consents or approvals of, or filings, declarations or registrations with, any Governmental Entity are necessary for the performance by such Party of his or its obligations hereunder.  Neither the execution and delivery of this Agreement by such Party, nor the performance by such Party of his or its obligations hereunder, will (A) violate any Law, judgment, writ or injunction of any Governmental Entity applicable to such Party or any of his or its properties or assets or (B) violate, breach, conflict with or constitute a default under any of the terms, conditions or provisions of any agreement or other instrument or obligation to which such Party is a party, or by which it or any of his or its properties or assets may be bound or affected.
 
(c)  Ownership of Shares.  Such Party who is a Shareholder Party owns, of record, all of the Party Shares listed opposite his or its name on Schedule A hereto. Such Shareholder Party owns all such Party Shares free and clear of any proxy, voting restriction, adverse claim or other Lien that affects voting rights (except for such transfer restrictions of general applicability as may be provided under the Securities Act and the “blue sky” laws of the various states of the United States).  Without limiting the foregoing, except for such transfer restrictions of general applicability as may be provided under the Securities Act and the “blue sky” laws of the various states of the United States, such Shareholder Party has sole voting power and sole power of disposition with respect to all such Party Shares, with no restrictions on such Party’s rights of voting or disposition pertaining thereto, and no Person other than such Shareholder Party has any right to direct or approve the voting or disposition of any such Party Shares.  Such Shareholder Party does not own of record, any securities of the Company other than the Party Shares listed opposite his or its name on Schedule A hereto, which constitute all such Shareholder Party’s Party Shares.
 
(d)  Brokers.  Except for any fees paid to MIP and Goldman, no broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission that is payable by the Company or any of its subsidiaries in connection with the transactions contemplated by the Proposal, this Agreement or the Merger Agreement based upon arrangements made by or on behalf of any Party.
 
4.  Termination.  The obligations of each Shareholder Party under Section 2 of this Agreement shall terminate on the first to occur of (a) the Effective Time, (b) the date that is eighteen months after the date of this Agreement, (c) a termination of the Merger Agreement that results in a Parent Termination Fee becoming due and payable by Parent pursuant to Section 7.2(b) of the Merger Agreement or (d) if the Merger Agreement is not entered into on or prior to December 31, 2007, and the Company and Parties are not negotiating a proposal to acquire the Company at such date and no Alternative Proposal is made after the date hereof, June 30, 2008 (the first to occur of (a), (b), (c) and (d) being the “Termination Date”).  Any liability for failure to comply with the terms of this Agreement shall survive such termination.
 
5.  Action in Stockholder Capacity Only.  The parties acknowledge that this Agreement is entered into by each Shareholder Party in his or its capacity as owner of the applicable Party Shares and that nothing in this Agreement shall in any way restrict or limit any director or officer of the Company from taking any action in his or her capacity as a director or officer of the Company that is necessary for him or her to comply with his or her fiduciary duties as a director or officer of the Company, including, without limitation, furnishing information or participating in his or her capacity as a director or officer of the Company in any discussions or negotiations in accordance with Section 5.3 of the Merger Agreement.
 
6.  Expenses.  Each Party hereto shall pay its own fees and expenses (including fees and expenses of its agents, representatives and attorneys) incurred by or on behalf of it in connection with the negotiation, drafting, execution, delivery and performance of this Agreement and each other agreement, document and instrument contemplated by this Agreement and the performance of their respective obligations hereunder and thereunder.
 
7.  Additional Shares.  Until the Termination Date, each Shareholder Party shall promptly notify the other Parties of the number of shares of Common Stock, if any, as to which such Shareholder Party acquires record or beneficial ownership after the date hereof.  Any shares of Common Stock as to which any Shareholder Party acquires record or beneficial ownership after the date hereof and prior to the Termination Date shall be Party Shares for purposes of this Agreement.  Without limiting the foregoing, in the event of any stock split, stock dividend or other change in the capital structure of the Company affecting the Common Stock, the number of shares constituting Party Shares shall be adjusted appropriately and this Agreement and the obligations hereunder shall attach to any additional shares of Common Stock or other voting securities of the Company issued to Parties in connection therewith.
 
8.  Publicity.  Each Party consents to Parent and Merger Sub publishing and disclosing such Party’s identity and ownership of Common Stock by the Shareholder Parties and the nature of such Party’s commitments, arrangements and understandings under this Agreement.  No Party shall issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement or the transactions contemplated hereby or thereby without the prior written consent of the Requisite Parties, except as may be required by applicable Law. “Requisite Parties” means MIP, Goldman and Lonnie C. Poole, Jr.
 
9.  Further Assurances.  From time to time, at the request of any other Party and without further consideration, each Party shall execute and deliver such additional documents and take all such further action as may be necessary or appropriate to, in the most expeditious manner practicable, effect the purposes of this Agreement.
 
10.  Entire Agreement.  This Agreement constitutes the final agreement between the parties hereto and is the complete and exclusive expression of agreement of the parties hereto with respect to the subject matter hereof.  All prior and extemporaneous negotiations, communications, arrangements and agreements between the parties hereto on the subject matters contained in this Agreement, whether written or oral, are expressly merged into and superseded by this Agreement.
 
11.  Assignment; Binding Effect.  This Agreement is binding upon and inures to the benefit of the parties to this Agreement and their respective successors and permitted assigns.  No Party may assign any of his or its rights, or delegate any of his or its obligations or any performance, arising under or relating to this Agreement voluntarily or involuntarily, whether by operation of law, merger, consolidation, dissolution or any other manner, without the prior unanimous written consent of the other Parties.  Any purported assignment of rights or delegation of obligations or performance in violation of this Section 11 is void and of no force or effect.
 
12.  Amendments; Waiver.  The Parties hereto may not amend, modify or supplement this Agreement except pursuant to a written instrument making specific reference to this Agreement that identifies itself as an amendment, modification or supplement to this Agreement and that is signed by the Requisite Parties; provided that no provision of this Agreement may be amended or modified in a manner that disproportionately and materially adversely affects a Party without such Party’s consent.  No purported waiver of any provision of this Agreement will be effective unless effected pursuant to a written instrument signed by the Party or Parties hereto against whom enforcement of such waiver is sought.  The waiver by any party hereto of any provision of this Agreement is effective only in the instance and only for the purpose that it is given and does not operate and is not to be construed as a further or continuing waiver.  No failure on the part of any Party hereto to exercise, and no delay in exercising, any right, power or remedy under this Agreement operates as a waiver thereof.  This Agreement does not, and is not intended to, confer any rights or remedies upon any Person other than the Parties to this Agreement.
 
13.  Severability.  If any term or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other terms, provisions and conditions of this Agreement shall nevertheless remain in full force and effect.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.
 
14.  Counterparts.  The Parties hereto may execute this Agreement in one or more counterparts, each of which constitutes an original copy of this Agreement and all of which, collectively, constitute only one agreement.  The signatures of all the Parties hereto need not appear on the same counterpart.
 
15.  Descriptive Headings.  The division of this Agreement into Sections and other subdivisions and the insertion of headings are for convenience of reference only and do not alter the meaning of, or affect the construction or interpretation of, this Agreement.
 
16.  Notices.
 
(a)  All notices and other communications under this Agreement shall be in writing and shall be deemed given (i) when delivered personally by hand (with written confirmation of receipt), (ii) when sent by facsimile (with written confirmation of transmission) or (iii) one Business Day following the day sent by overnight courier (with written confirmation of receipt).  All communications hereunder shall be delivered to the respective Parties hereto at such Party’s address set forth on the signature pages herein; or, in each case, to such other address as the Person to whom notice is given may have previously furnished to the other parties hereto in writing in the manner set forth above.
 
17.  Drafting.  The Parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
 
18.  Governing Law; Enforcement; Jurisdiction; Waiver of Jury Trial; Specific Performance.
 
(a)  The laws of the State of Delaware (without giving effect to its conflicts of law principles) govern this Agreement and all matters arising out of or relating to this Agreement and any of the transactions contemplated hereby, including its negotiation, execution, validity, interpretation, construction, performance and enforcement.
 
(b)  The Parties hereto hereby irrevocably submit to the exclusive jurisdiction of any Federal court located in the State of New York, if a basis for federal court jurisdiction is present, and otherwise, in any court in the County and State of New York over any legal proceeding arising out of or relating to this Agreement or any of the transactions contemplated hereby and each Party hereto hereby irrevocably agrees that all claims in respect of such legal proceeding may be heard and determined in such courts.  The Parties hereto hereby irrevocably waive any objection which they may now or hereafter have to the laying of venue of such legal proceeding brought in such court or any claim that such legal proceeding brought in such court has been brought in an inconvenient forum.  Each of the Parties hereto agrees that a judgment in such legal proceeding may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.
 
(c)  Each of the Parties hereto hereby irrevocably consents to process being served by any Party to this Agreement in any legal proceeding by delivery of a copy thereof in accordance with the provisions of Section 16.
 
(d)  To the extent permitted by applicable Law, each Party hereto, knowingly, voluntarily and intentionally, irrevocably waives all right of trial by jury in any legal proceeding arising out of or relating to this Agreement, all documents, agreements and instruments executed in connection with this Agreement and the transactions contemplated hereby and thereby (whether in contract tort or otherwise) and whether occurring prior to or after the date of this Agreement.
 
(e)           The Parties to this Agreement agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Without prejudice to the rights and remedies otherwise available to each Party hereto, each Party hereto shall be entitled, without the requirement of a posting of a bond or other security to seek equitable relief, including an injunction or specific performance, in the event of any breach of the provisions of this Agreement.
 
 
[The remainder of this page is intentionally left blank.]
 


IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first above written.

 
       
 
 
 /s/ Lonnie C. Poole, Jr.  
    Name:  Lonnie C. Poole, Jr.  
    Address for Notices:     401 Ramblewood Drive  
     Raleigh, NC 27609  
 
 
       
 
 
 /s/ Lonnie C. Poole, III  
    Name:  Lonnie C. Poole, III  
    Address for Notices:     3301 Benson Drive  
     Suite 601  
     Raleigh, NC 27609              
 
 
       
 
 
 /s/ Scott J. Poole  
    Name:  Scott J. Poole  
    Address for Notices:     7901 Strickland Road  
       Suite 115  
       Raleigh, NC 27615              
 
 
       
 
 
 /s/ Jim W. Perry  
    Name:  Jim W. Perry  
    Address for Notices:     7215 Manor Oaks Drive  
       Raleigh, NC 27615              
 
 
  LONNIE C. POOLE, III IRREVOCABLE
TRUST (TAILWALKER TRUST)		  
       
 
By:
/s/ Scott J. Poole  
    Name:  Scott J. Poole  
    Title:    Trustee   
    Address for Notices:  7901 Strickland Road  
       Suite 115  
       Raleigh, NC 27615  
 
 
  LONNIE C. POOLE, III IRREVOCABLE
TRUST (TAILWALKER NON-GST TRUST)		  
       
 
By:
/s/ Scott J. Poole  
    Name:  Scott J. Poole  
    Title:    Trustee   
    Address for Notices:    7901 Strickland Road  
       Suite 115  
       Raleigh, NC 27615  
 
 
  LONNIE C. POOLE, JR. GRANTOR TRUST
DATED MAY 1, 1995		  
       
 
By:
/s/ Lonnie C. Poole, III  
    Name:  Lonnie C. Poole, III  
    Title:    Trustee   
    Address for Notices:    3301 Benson Drive  
       Suite 601  
       Raleigh, NC 27609  
 
 
       
 
 
 /s/ Scott J. Poole  
    Name:  Scott J. Poole  
    Address for Notices:     7901 Strickland Road  
       Suite 115  
       Raleigh, NC 27615              
 
 
  MACQUARIE INFRASTRUCTURE PARTNERS A L.P., BY ITS GENERAL PARTNER, MACQUARIE INFRASTRUCTURE PARTNERS U.S. GP LLC, BY ITS MANAGER AND ATTORNEY-IN-FACT, MACQUARIE INFRASTRUCTURE PARTNERS INC.  
       
 
By:
/s/ Chris Leslie  
    Name:  Chris Leslie  
    Title:  President  
       

     
       
 
By:
/s/ Mark Wong  
    Name:  Mark Wong   
    Title:  Treasurer  

   Address for Notices:   
     Macquarie Infrastructure Partners  
     125 West 55th Street, 9th Floor  
     New York, NY 10019  
       

  MACQUARIE INFRASTRUCTURE PARTNERS INTERNATIONAL L.P., BY ITS GENERAL PARTNER, MACQUARIE INFRASTRUCTURE PARTNERS U.S. GP LLC, BY ITS MANAGER AND ATTORNEY-IN-FACT, MACQUARIE INFRASTRUCTURE PARTNERS INC.  
       
 
By:
/s/ Chris Leslie  
    Name:  Chris Leslie   
    Title:  President   
       

     
       
 
By:
/s/ Mark Wong  
    Name:  Mark Wong   
    Title:  Treasurer  


   Address for Notices:   
     Macquarie Infrastructure Partners  
     125 West 55th Street, 9th Floor  
     New York, NY 10019  
     
 
 
  MACQUARIE INFRASTRUCTURE PARTNERS CANADA, L.P., BY ITS GENERAL PARTNER, MACQUARIE INFRASTRUCTURE PARTNERS CANADA GP LTD., BY ITS MANAGER AND ATTORNEY-IN-FACT, MACQUARIE INFRASTRUCTURE PARTNERS INC.  
       
 
By:
/s/ Chris Leslie  
    Name:  Chris Leslie  
    Title:  President  
       
 
     
       
 
By:
/s/ Mark Wong  
    Name:  Mark Wong   
    Title:  Treasurer  

  Address for Notices:   
         Macquarie Infrastructure Partners  
         125 West 55th Street, 9th Floor  
         New York, NY 10019  
       

 
  GS DIRECT, LLC  
       
 
By:
/s/ Gerald J. Cardinale  
    Name:  Gerald J. Cardinale   
    Title:  Managing Director  
    Address for Notices:  
         c/o Goldman Sachs  
            85 Broad Street  
            New York, NY 10004  
            Attention: Gerry Cardinale  

 


SCHEDULE A

SHAREHOLDER PARTY SHARES



SHAREHOLDER PARTY
SHARES OWNED
 
Lonnie C. Poole, Jr.
 
 2,239,468
 
Lonnie C. Poole, III
 
 767,226
 
Lonnie C. Poole, III Irrevocable Trust (Tailwalker Trust)
 
 25,736
 
Lonnie C. Poole, III Irrevocable Trust (Tailwalker Non-GST Trust)
 
 407,110
 
Scott J. Poole
 
 676,780
 
Lonnie C. Poole, Jr. Grantor Trust dated May 1, 1995
 
 1,741,729
 
Jim W. Perry
 
 1,366,057

EX-7.04 5 rsex7_04.htm DEBT COMMITMENT LETTER rsex7_04.htm EXHIBIT 7.04
 
                        As of October 22, 2007
 
GS Direct LLC
Macquarie Infrastructure Partners International, L.P.
Macquarie Infrastructure Partners Canada, L.P.
Macquarie Infrastructure Partners A, L.P.
125 West 55th Street, 22nd Floor
New York, NY 10019
Highly Confidential
 
Attn:       Chris Leslie
Gerald Cardinale



Project Marlin
$455 Million Senior Secured Credit Facilities
Commitment Letter
 
Ladies and Gentlemen:

Macquarie Infrastructure Partners International, L.P., Macquarie Infrastructure Partners Canada, L.P. and Macquarie Infrastructure Partners A, L.P (collectively,“MIP”) and GS Direct LLC (“Direct LLC” and together with MIP, “you”) have advised Wachovia Bank N.A., London Branch(“Wachovia”), HSBC Securities (USA) Inc. (“HSBC Securities”) and HSBC Bank USA, National Association. (“HSBC Bank” and together with HSBC Securities, “HSBC” and, together with Wachovia, the “Commitment Parties” or “we” or “us”) that MIP (together with any subsidiaries or affiliates of MIP (including,  Macquarie Bank Limited (“MBL”) and affiliates of MBL) and any fund or entity sponsored, managed or advised by MIP, MBL or any affiliate or subsidiary, the “Macquarie Investors”), and Direct LLC (together with any subsidiaries or affiliates of Direct LLC, (including, the Goldman Sachs Group, Inc. (“GS”) and affiliates of GS and any fund nor entity  sponsored, managed or advised by Direct LLC or GS or any affiliate or subsidiary, the “Goldman Investors”) and certain members of management of the Target (the “Management Investors” and together with the Macquarie Investors and the Goldman Investors, the “Investors”) are forming a corporation or limited liability company (“Bidco” or the “Borrower”) that, together with the ultimate parent company of Bidco (“Holdings”), intends to enter into a merger agreement (the “MergerAgreement”) pursuant to which Bidco will merge (the “Merger”) with and into to a North Carolina corporation, code-named Marlin, (the “Target”).  As used below, each of the terms “Bidco” and “Borrower” means, prior to the Merger, Bidco and, after giving effect to the Merger, Target as the survivor of the Merger.  Upon the effectiveness of the Merger, all of the issued and outstanding stock of Target, the survivor of the merger, will ultimately be owned by Holdings.
In addition, you have proposed to the Commitment Parties that, in connection with the consummation of the Merger, the Borrower will enter into senior secured credit facilities in an aggregate principal amount of up to $455 million (the “Facilities”) comprising a senior secured (i) term loan facility in an aggregate principal amount of up to $310 million (the “Term Loan Facility”), (ii) capital expansion facility in an aggregate principal amount of up to $75 million (the “Capital Expansion Facility”) and (iii) revolving credit facility in an aggregate principal amount of up to $70 million (the “Revolving Credit Facility”).
 
The Merger and the borrowings under the Facilities by the parties described herein, the contribution by the Investors of equity financing (the “Equity Financing”) of approximately $400 million (including approximately $175 million of “rollover” equity and shareholder loan from the Management Investors and approximately $225 million of equity and shareholder loans contributed by the Macquarie Investors and the Goldman Investors), the repayment of certain existing indebtedness of the Target and the payment of fees, commissions and expenses in connection with each of the foregoing are referred to collectively as the “Transaction”.
 
1.  Commitments.  In connection with the foregoing, (a) Wachovia (acting alone or through one of its affiliates selected by it) is pleased to advise you of its commitment to provide 50% of the Facilities, (b) HSBC Bank (acting alone or through one of its affiliates selected by it) is pleased to advise you of its commitment to provide 50% of the Facilities, (c) Wachovia and HSBC Securities are pleased to advise you of their willingness to act, and you hereby appoint and designate them as the joint lead arrangers and book running managers (collectively, the “Lead Arranger”) for the Facilities, to form a syndicate of financial institutions and other lenders (collectively, the “Lenders”) reasonably acceptable to us and in consultation with you for the Facilities and (d) certain other titles and roles, including administrative agent (the “Administrative Agent”) are set forth in the Summary of Terms and Conditions attached hereto as Exhibit A (the “Term Sheet”, and together with this letter, the “Commitment Letter”) and you hereby appoint and designate Wachovia (acting alone or through one of its affiliates selected by it) and/or HSBC (acting alone or through one of its affiliates selected by it) in the capacity and with the titles set forth in the Term Sheet and Wachovia and HSBC are each pleased to advise of its willingness to act in such capacities.
 
The Facilities will be on the terms and conditions set forth in the Term Sheet.  The date of the initial funding under the Facilities is referred to as the “Closing Date” and the consummation of the Transactions is referred to as the “Closing”.
 
2.  Syndication.  The Lead Arranger intends to commence syndication of the Facilities prior to Closing and promptly after your acceptance of the terms of this Commitment Letter and the confidential fee letter dated as of the date hereof related hereto among you and the Commitment Parties (the “Fee Letter”) (and reserve the right to syndicate subsequent to Closing).  The commitment of the Commitment Parties hereunder shall be reduced dollar-for-dollar as and when corresponding commitments on the terms of the Term Sheet or as otherwise agreed by you are received from the Lenders; it being understood that, notwithstanding such syndication and acceptance of such corresponding commitments, the Commitment Parties shall be obligated to make available the full amount of their respective initial commitments hereunder on the Closing Date, notwithstanding the failure of any other Lender to fund its commitment.  You agree to assist the Lead Arranger in achieving a syndication of the Facilities that is reasonably satisfactory to the Lead Arranger in consultation with you.  Such assistance shall include (a) your providing and causing your advisors to provide the Lead Arranger and the Lenders upon request with all information reasonably requested to complete such syndication, (b) at the request of the Lead Arranger, assisting (and using commercially reasonable efforts to cause the Target to assist) in the preparation of a confidential information memorandum, including for Public Lenders,(c) using your commercially reasonable efforts to ensure that the syndication efforts of the Lead Arranger benefit materially from your existing lending relationships and the existing lending relationships of the Target and (d) otherwise assisting the Lead Arranger in its syndication efforts, including by making your officers and advisors, and using your commercially reasonable efforts to make the officers and advisors of the Target, available from time to time to attend and make presentations regarding the business and prospects of Bidco and the Target, as appropriate, at one or more meetings of prospective Lenders (in each case, at reasonable times and locations to be mutually agreed upon). Without limiting your obligations to assist with syndication efforts as set forth above, the completion of such syndication is not a condition to the commitments hereunder.
 
It is understood and agreed that the Lead Arranger will manage and control, in consultation with you, all aspects of the syndication of the Facilities, including decisions as to the selection of prospective Lenders and any titles offered to proposed Lenders, when commitments will be accepted and the final allocations of the commitments among the Lenders, all in consultation with you.  It is understood that, unless otherwise agreed in writing by the Lead Arranger, no Lender will receive compensation from you in order to obtain its commitment, except on the terms contained in the Commitment Letter and Fee Letter.  It is also understood and agreed that the amount and distribution of the fees and titles among the Lenders will be at the sole discretion of the Lead Arranger, after consultation with you.
 
Your agreements in this Section 2 shall continue and survive until the earlier to occur of (a) the six month anniversary of the Closing, and (b) the date a Successful Syndication (as defined in the Fee Letter) has been achieved.
 
3.  Information Requirements.  You hereby represent and warrant that, to the best of your knowledge, (a) all written factual information, other than Financial Statements and Projections (each as defined below) and information of a general economic or industry nature, which has been or is hereafter made available to the Lead Arranger or any of the Lenders by you or any of your representatives (or on your or their behalf) in connection with any aspect of the Transaction (the “Information”), when taken as a whole, is, or will be, when furnished, complete and correct in all material respects and does not, or will not, when furnished and taken as a whole, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading; (b) all financial statements made available to the Lead Arranger or any of the Lenders by you or any of your representatives (or on your or their behalf) in connection with any aspect of the Transaction (the “Financial Statements”) present fairly in all material respects the financial condition of the entities covered thereby as of the date thereof and the results of such entities’ operations for the periods indicated therein in accordance with GAAP and (c) all financial projections concerning you or the Target that have been or are hereafter made available to the Lead Arranger or any of the Lenders by you or any of your representatives (or on your or their behalf) (the “Projections”) have been or will be prepared in good faith based upon assumptions believed by you to be reasonable at the time of preparation of such Projections; provided, however, although the Projections are (or will be) necessarily presented with numerical specificity, the actual results achieved during the periods presented may differ from the projected results (and such differences may be material); and no representation can be, is being or will be given with respect to whether Bidco will achieve the results set forth in the Projections.  You agree to furnish us with such Information and Projections and to supplement the Information, Financial Statements and the Projections from time to time until the Closing Date so that the representation and warranty in the immediately preceding sentence remains correct, taking into account any supplements to the Information and Projections delivered prior to the Closing Date.  In issuing this commitment and in arranging and syndicating each of the Facilities, you recognize and confirm that we (a) are and will be using and relying on the Information, Financial Statements and the Projections without independent verification thereof, and (b) do not assume responsibility for the accuracy or completeness of the Information, Financial Statements and the Projections.
 
You hereby acknowledge and agree that the Lead Arranger may make available some or all of the Information, Financial Statements, Projections and other marketing materials and presentations, including confidential information memoranda (collectively, the “Informational Materials”), to the potential Lenders by posting the Informational Materials on SyndTrak Online or Intralinks or by other similar electronic means (collectively, the “Electronic Means”).  You hereby further acknowledge and agree that (i) potential Lenders (the “Public Lenders”) may not wish to receive material non-public information with respect to the Borrower, Holdings, MidCo, the Target and their respective subsidiaries or any of their respective securities and (ii) you will identify and conspicuously mark any Informational Materials that consist solely of Public Information as “PUBLIC”, and (iii) you will identify and conspicuously mark any Informational Materials that include any information, data and materials that are not Public Information as “PRIVATE AND CONFIDENTIAL”.  As used herein, “Public Information” means data and materials that are either (A) publicly available or (B) not material with respect to the Borrower, Holdings, MidCo, the Target and their respective subsidiaries or any of their respective securities for purposes of United States federal and state securities laws.
 
4.           Fees and Indemnities.  You agree to reimburse us, from time to time on demand, for all reasonable properly documented or invoiced out-of-pocket fees and expenses (including, but not limited to, the reasonable fees and expenses of one lead counsel and of any other local counsel retained by or on behalf of the Lead Arranger (but limited to one such counsel in each applicable jurisdiction) incurred by the Lead Arranger in connection with this Commitment Letter, the Facilities, the syndication thereof, the preparation of definitive documentation for the Facilities (the “Finance Documents”) and the enforcement thereof, any amendment to or waiver of any provision of this Commitment Letter or the Finance Documents, and the other transactions contemplated hereby.
 
You, Holdings, MidCo and the Borrower also agree to jointly and severally indemnify and hold harmless each Commitment Party, each Lead Arranger, the Administrative Agent, the Collateral Agent, each Lender and each of our and their respective affiliates and each of their officers, directors, employees, partners, agents, advisors and other representatives and each of their heirs, successors and assigns (each an “Indemnified Party”) from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, the reasonable properly documented or invoiced out-of-pocket fees and disbursements of counsel) (“Claims”) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with any investigation, litigation or proceeding or preparation of a defense in connection therewith) (a) any aspect of this Commitment Letter, the Finance Documents and the Transaction or (b) the Facilities or any use made or proposed to be made with the proceeds thereof, except to the extent such Claims resulted from such Indemnified Party’s gross negligence, willful misconduct or bad faith.  In the case of an investigation, litigation or proceeding to which the indemnity in this paragraph applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by you, the Investors or creditors, an Indemnified Party or any third party, whether or not an Indemnified Party is otherwise a party thereto and whether or not any aspect of the Transaction is consummated; provided that such indemnity shall not apply to disputes solely between or among the Lenders (except that each of the Administrative Agent and Collateral Agent, acting in such capacity, shall be indemnified subject to the terms hereof) or to successful claims brought by you.  You also agree that no Indemnified Party shall have any liability (whether direct or indirect, in contract or tort or otherwise) to you or your subsidiaries or affiliates or to your or their respective equity holders or creditors arising out of, related to or in connection with any aspect of this Commitment Letter, the Transaction, the Finance Documents, the Facilities, or the transmission of Informational Materials by Electronic Means except only for direct (as opposed to special, indirect, consequential or punitive) damages determined by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence, willful misconduct or bad faith.  The foregoing provisions in this paragraph shall be superseded in each case by substantially equivalent applicable provisions contained in the Finance Documents upon execution thereof and thereafter shall have no further force and effect.
 
You, the Borrower, MidCo and Holdings shall not settle any Claim or action arising out of the Transactions without the prior written consent of each Indemnified Party affected thereby, which consent will not be unreasonably withheld, unless such settlement provides for a full and unconditional release of all liabilities arising out of such claim or action against such Indemnified Party and does not include any statement as to or an admission of fault, culpability or failure to act by or on behalf of any Indemnified Party.
 
4.  Conditions to Financing.  The commitments of the Commitment Parties in respect of the Facilities and their undertaking to provide the services described herein are subject to the satisfaction (or waiver) of the conditions set forth in Paragraph 29 of the Term Sheet and the following conditions precedent:  (a) our being reasonably satisfied that from date hereof until the date of Successful Syndication (as defined in the Fee Letter), there shall be no issuances of any debt security (including convertible securities) or commercial bank or other credit facilities by Holdings, MidCo, Bidco or, following the Closing Date, by the Target or any of their respective subsidiaries (and prior to the Closing Date, you agree to use your commercially reasonable efforts to cause Target and its subsidiaries not to do so) other than the Facilities and unsecured subordinated affiliate debt and other indebtedness that does not in the reasonable judgment of the Lead Arrangers materially interfere with the syndication of the Facilities without, in each case, the prior written consent of the Lead Arranger; (b) the preparation, execution and delivery of mutually agreeable definitive Loan Documents incorporating substantially the terms and conditions outlined in this Commitment Letter and (c) your compliance in all material respects with the terms of this Commitment Letter, including, without limitation, the payment in full of all fees, expenses and other amounts payable under this Commitment Letter and the Fee Letter.
 
Notwithstanding anything in this Commitment Letter, the Term Sheet, the Fee Letter, the Loan Documents or any other letter agreement or other undertaking concerning the financing of the transactions contemplated hereby to the contrary, (a) the only representations relating to Target and its subsidiaries that shall be required to be made as a condition to availability of the Facilities on the Financial Closing Date (as defined in the Term Sheet attached hereto) shall be (i) those representations made by or on behalf of Target and its subsidiaries set forth in the Merger Agreement that are material to the interest of the Lenders and the breach of which allows Bidco and HoldCo to terminate the Merger Agreement (without regard to whether any notice is required to be delivered) and (ii) the representations and warranties set forth in the Term Sheet relating to power and authority of the Borrower and the Guarantors to enter into the Loan Documents, the enforceability against the Borrower and the Guarantors of the Loan Documents, compliance by the Borrower and the Guarantors with margin regulations, no conflicts with respect to requirements of law, organizational and governing documents and material contracts of the Borrower prior to the Merger and MidCo, and the non-applicability of the Investment Company Act to the Borrower or the Guarantors.  The terms of the Loan Documents shall not impair the availability of the Facilities on the Closing Date if the conditions set forth herein and in the Term Sheet are satisfied (it being understood that, to the extent any guarantee or collateral (other than collateral in which a security interest is perfected by filing a UCC-1 or delivering possession) required to be provided in Exhibit A under “Guarantors” or “Collateral” is not provided on the Closing Date after your use of commercially reasonable efforts to do so, the delivery of such guarantee and/or collateral shall not constitute a condition precedent to the availability of the Facilities on the Closing Date but shall be required to be delivered after the Closing Date pursuant to arrangements to be mutually agreed).
 
5.  Confidentiality.  This Commitment Letter and the Fee Letter and the contents hereof and thereof are confidential and, except for the disclosure hereof or thereof on a confidential basis to the Investors, your and the Investors’ respective officers, employees, agents, accountants, attorneys and other professional advisors retained in connection with the Transaction, may not be disclosed in whole or in part to any person or entity without our prior written consent; provided, however, it is understood and agreed that you may disclose this Commitment Letter (including the Term Sheet) but not the Fee Letter (except as redacted to the reasonable satisfaction of the Lead Arranger and without redaction of the “market flex” terms) on a confidential basis to the board of directors, trustees, special committee and advisors of the Target in connection with the Transaction.  After your acceptance of this Commitment Letter and the Fee Letter, you may make any filings in any public record in that your counsel advises is required by law and you may make such disclosures in any legal, judicial or administrative proceedings or as otherwise required by applicable law or compulsory legal process or as required by any governmental authority or self regulatory body or the rules of any applicable stock exchange.
 
In connection with the services and transactions contemplated hereby, you agree that the Commitment Parties are permitted to access, use and share with any of their bank or non-bank affiliates, agents, advisors (legal or otherwise) or representatives, any information concerning you or the Target or any of your or their respective affiliates that is or may come into the possession of the Commitment Parties or any of their respective affiliates.  The Commitment Parties and their affiliates will treat confidential information relating to you or the Target and your and their respective affiliates with the same degree of care as it treats its own confidential information.
 
You should be aware that each Commitment Party and its affiliates may be providing financing or other services to parties whose interests may conflict with yours.  However, be assured that, consistent with our longstanding policy to hold in confidence the affairs of our customers, we will not furnish confidential information obtained from you to any of our other customers, except as may be required by applicable law or regulation or order.  By the same token, we will not make available to you confidential information that we have obtained or may obtain from any other customer.  You hereby acknowledge and agree that in connection with all aspects of each transaction contemplated by this Commitment Letter, you, on the one hand, and each Commitment Party and any affiliate through which each Commitment Party may be acting, on the other hand (each, a “Transaction Affiliate”), have an arm’s length business relationship that creates no fiduciary duty on the part of the Commitment Parties or any Transaction Affiliate and each expressly disclaims any fiduciary relationship.
 
As you know, each of HSBC and Wachovia is a full service securities firm engaged, either directly or through its affiliates in various activities, including securities trading, investment management, financing and brokerage activities and financial planning and benefits counseling for both companies and individuals.  In the ordinary course of these activities, HSBC and Wachovia and their respective affiliates may actively trade the debt and equity securities (or related derivative securities) which may be the subject of the arrangements contemplated by this letter for their own account and for the accounts of their customers and may at any time hold long and short positions in such securities.  HSBC and Wachovia or their respective affiliates may also co-invest with, make direct investments in, and invest or co-invest client monies in or with funds or other investment vehicles managed by other parties, and such funds or other investment vehicles may trade or make investments in securities of the Target or other companies which may be the subject of the arrangements contemplated by this letter.
 
6.  Survival of Obligations.  The provisions of numbered sections 3, 4 and 6 shall remain in full force and effect regardless of whether the Loan Documents are executed and delivered and notwithstanding the termination of this Commitment Letter or any commitment or undertaking of the Commitment Parties hereunder.  Notwithstanding the foregoing, your obligations (a) under section 3 of this letter and under the Fee Letter shall terminate at Closing and shall, following Financial Closing, be obligations solely of the Borrower and (b) with respect to indemnification under section 4 of this letter shall be superseded by the Loan Documents in accordance with the last sentence of section 4.
 
7.  Miscellaneous.  This Commitment Letter and the Fee Letter may be executed in counterparts which, taken together, shall constitute an original.  Delivery of an executed counterpart of this Commitment Letter or the Fee Letter by facsimile or other electronic transmission (i.e. “pdf” or “tiff”) shall be effective as delivery of a manually executed counterpart thereof.
 
THIS COMMITMENT LETTER AND THE FEE LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS COMMITMENT LETTER (INCLUDING, WITHOUT LIMITATION, THE TERM SHEET), THE FEE LETTER, THE TRANSACTION AND THE OTHER TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY OR THE ACTIONS OF THE COMMITMENT PARTIES IN THE NEGOTIATION, PERFORMANCE, ADMINISTRATION OR ENFORCEMENT HEREOF.  IN ADDITION, YOU HEREBY CONSENT TO THE SERVICE OF ANY AND ALL PROCESS WITH RESPECT TO ALL MATTERS RELATING TO THIS COMMITMENT LETTER, THE SUMMARY OF TERMS, THE FEE LETTER AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY, BY THE MAILING OF COPIES OF SUCH PROCESS TO IN THE CASE OF MIP, AT 125 WEST 55TH STREET, 22ND FLOOR, NEW YORK, NY 10019 AND IN THE CASE OF DIRECT LLC, AT 85 BROAD STREET, NEW YORK, NY 10004 OR IN ANY OTHER MANNER PERMITTED BY LAW.
 
This Commitment Letter, together with the Term Sheet and the Fee Letter, embody the entire agreement and understanding between the Commitment Parties and you and your affiliates with respect to the specific matters set forth above and supersede all prior agreements and understandings relating to the specific matters hereof.  No party has been authorized by the Commitment Parties to make any oral or written statements that are inconsistent with this Commitment Letter.
 
Each of HSBC and Wachovia hereby notifies you that pursuant to the requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (as the same may be extended and in effect from time to time, the “PATRIOT Act”), they and each Lender are required to obtain, verify and record information that identifies the Borrower, which information includes the name, address, tax identification number and other information regarding the Borrower that will allow each Lender to identify the Borrower in accordance with the PATRIOT Act.  This notice is given in accordance with the requirements of the PATRIOT Act and is effective as to HSBC and Wachovia and each Lender.
 
This Commitment Letter is not assignable by you without our prior written consent (and any purported assignment without such consent shall be void) and is intended to be solely for the benefit of the parties hereto, the Lenders and the Indemnified Parties and this Commitment Letter may not be amended or otherwise modified without the express written consent of each party hereto.  Nothing herein, express or implied, is intended to or shall confer upon any other third party any legal or equitable right, benefit, standing or remedy or any nature whatsoever under or by reason of this Commitment Letter.  Notwithstanding anything to the contrary contained in the foregoing, so long as you remain liable until the Termination Date for your obligations hereunder notwithstanding any such assignment, you shall be permitted to assign your rights and obligations hereunder and under the Fee Letter to Bidco (or another controlled affiliate of Investors) pursuant to, and upon execution and delivery to the Lead Arranger of, an assignment and assumption agreement in form and substance reasonably acceptable to the Lead Arranger.
 
All commitments and undertakings of the Commitment Parties under this Commitment Letter will expire at 5:00 p.m. (New York City time) on November 5, 2007 unless you execute this Commitment Letter as provided below and the Fee Letter as provided therein and return them to us prior to that time.  Thereafter, all commitments and undertakings of the Commitment Parties hereunder will expire on the earliest to occur (the “Termination Date”) of (a) the date that is the termination date of the Merger Agreement (as extended by agreement of the parties thereto), (b) your abandonment of the Merger or the closing of the Merger, (c) the Closing Date. (d) the “End Date” as defined in the Merger Agreement draft dated the date hereof and (e) March 31, 2008.
 
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
 


We are pleased to have the opportunity to work with you in connection with this important financing.
 
 
  Very truly yours,  
 
 
  Wachovia Bank N.A., London Branch  
       
 
By:
/s/ Thomas K. Barke  
    Name:  Thomas K. Barke   
    Title:  Managing Director of Structured Asset Finance - Europe  
       
 
  HSBC  Securities (USA) Inc.  
       
 
By:
/s/ Duncan Cairo  
    Name:  Dun Cairo   
    Title:  Managing Director  
       
 
  HSBC Bank USA, National Association  
       
 
By:
/s/ Michael Whalen  
    Name:  Michael Whalen  
    Title:  Managing Director  
       
 
 
 


Accepted and Agreed
as of the date first above written:
 
GS Direct LLC
  
 
 
By:
/s/ Gerald J. Cardinale
  
Name:
Gerald J. Cardinale
  
Title:
Managing Director
  


Macquarie Infrastructure Partners A L.P. by its General Partner, Macquarie Infrastructure Partners U.S. GP LLC, by its Manager and Attorney-in-Fact, Macquarie Infrastructure Partners Inc.
  

By:
/s/ Mark Wong
  
Name:
Mark Wong
  
Title:
Treasurer
  


By:
/s/ Chris Leslie
  
Name:
Chris Leslie
  
Title:
President
  
 
 
Macquarie Infrastructure Partners International L.P. by its General Partner, Macquarie Infrastructure Partners U.S. GP LLC, by its Manager and Attorney-in-Fact, Macquarie Infrastructure Partners Inc.
  
 
 
By:
/s/ Mark Wong
  
Name:
Mark Wong
  
Title:
Treasurer
  


By:
/s/ Chris Leslie
  
Name:
Chris Leslie
  
Title:
President
  



Macquarie Infrastructure Partners Canada, L.P. by its General Partner, Macquarie Infrastructure Partners Canada GP LTD., by its Manager and Attorney-in-Fact, Macquarie Infrastructure Partners Inc.
 
  

 
By:
/s/ Mark Wong
  
Name:
Mark Wong
  
Title:
Treasurer
  


By:
/s/ Chris Leslie
  
Name:
Chris Leslie
  
Title:
President
  


EX-7.07 6 rsex7_07.htm POWER OF ATTORNEY rsex7_07.htm
EXHIBIT 7.07
 
POWER OF ATTORNEY
 


KNOW ALL PERSONS BY THESE PRESENTS that GS Direct, L.L.C. (the “Company”) does hereby make, constitute and appoint each of Roger S. Begelman, Yvette Kosic, Andrea Louro DeMar, Felicia J. Rector, Michael T. Seeley and Kevin Treanor, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the “Act”), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present  by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.

THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates.

IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of  August 24, 2007.


GS DIRECT, L.L.C.

 

By:
/s/ Katherine B. Enquist
  
Name:
Katherine B. Enquist
  
Title:
Managing Director
  

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