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VNG Acquisition Inc., et al. – ‘SC 13D’ on 11/20/06 re: Valley National Gases Inc – EX-4

On:  Monday, 11/20/06, at 5:10pm ET   ·   Accession #:  1193125-6-239370   ·   File #:  5-53069

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

11/20/06  VNG Acquisition Inc.              SC 13D                 4:390K Valley National Gases Inc         RR Donnelley/FA
          Frederick J. Iseman
          Golconda Holdings, Inc.
          VNG Acquisition LLC
          VNG Holdings LLC

Document/Exhibit                   Description                      Pages   Size 

 1: SC 13D      General Statement of Beneficial Ownership           HTML     90K 
 2: EX-1        Joint Filing Agreement                              HTML     10K 
 3: EX-3        Voting Agreement, Dated November 13, 2006           HTML    109K 
 4: EX-4        Commitment Letter, Dated November 13, 2006          HTML    147K 

Exhibit 4

CONFIDENTIAL

November 13, 2006

VNG Acquisition LLC

c/o Caxton-Iseman Capital, Inc.

500 Park Avenue

New York, NY 10022

Attention: Joost F. Thesseling

Project Eagle

$215,000,000 First Lien Senior Secured Credit Facilities

$75,000,000 Second Lien Senior Secured Term Loan Facility

Commitment Letter

Ladies and Gentlemen:

You have advised Credit Suisse (“CS”) and Credit Suisse Securities (USA) LLC (“CS Securities” and, together with CS and their respective affiliates, “Credit Suisse”, “we” or “us”) that you intend to acquire (the “Acquisition”) all the equity interests of Valley National Gases Incorporated, a Pennsylvania corporation (the “Company”), from the shareholders of the Company (collectively, the “Seller”), and to consummate the other Transactions (such term and each other capitalized term used but not defined herein having the meaning assigned to such term in the Summary of Principal Terms and Conditions attached hereto as Exhibit A (the “First Lien Term Sheet”) or in the Summary of Principal Terms and Conditions attached hereto as Exhibit B (the “Second Lien Term Sheet” and, together with the First Lien Term Sheet, the “Term Sheets”)).

You have further advised us that, in connection therewith, (a) the Borrower will obtain the first priority senior secured credit facilities (the “First Lien Facilities”) described in the First Lien Term Sheet, in an aggregate principal amount of up to $215,000,000 and (b) the Borrower will obtain the second priority senior secured term loan facility (the “Second Lien Facility” and, together with the First Lien Facilities, the “Facilities”) described in the Second Lien Term Sheet, in an aggregate principal amount of up to $75,000,000.

In connection with the foregoing, CS is pleased to advise you of its commitment to provide the entire principal amount of the Facilities, upon the terms and subject to the conditions set forth or

referred to in this commitment letter (including the Term Sheets and other attachments hereto, this “Commitment Letter”).

You hereby appoint (a) CS Securities to act, and CS Securities hereby agrees to act, as sole bookrunner and sole lead arranger for the Facilities, and (b) CS to act, and CS hereby agrees to act, as sole administrative agent and sole collateral agent for the Facilities, in each case upon the terms and subject to the conditions set forth or referred to in this Commitment Letter. Each of CS Securities and CS, in such capacities, will perform the duties and exercise the authority customarily performed and exercised by it in such roles. You may appoint additional financial institutions (the “Additional Banks”) having the title of syndication agent and documentation agent, and such Additional Banks may share in up to 40% of the economics with respect to the Facilities; provided that any such Additional Banks shall assume a corresponding share of the rights and obligations of CS hereunder in respect of CS’s commitment in accordance with documentation reasonably acceptable to CS. CS’s commitment hereunder shall be reduced by the aggregate amount of commitments so provided by the Additional Banks. In the event that any such Additional Banks shall be appointed, you agree that each of CS Securities and CS will continue to act in the respective capacities described in the first sentence of this Section 2 and, in such capacities, Credit Suisse shall have “left” placement in any and all marketing materials or other documentation used in connection with the Facilities. You agree that no other titles will be awarded and no compensation (other than that expressly contemplated by this Commitment Letter and the Fee Letter referred to below) will be paid in connection with the Facilities unless you and we shall so agree.

CS Securities reserves the right, prior to and/or after the execution of definitive documentation for the Facilities, to syndicate all or a portion of CS’s commitments with respect to the Facilities to a group of banks, financial institutions and other institutional lenders (together with CS, the “Lenders”) identified by us in consultation with you, and you agree to provide CS Securities with a period of at least 21 consecutive days following the launch of the general syndication of the Facilities and immediately prior to the Closing Date to syndicate the Facilities (provided that such period shall not include any day from and including December 18, 2006 through and including January 2, 2007). We intend to commence syndication efforts promptly upon the execution of this Commitment Letter, and you agree actively to assist us in completing a satisfactory syndication. Such assistance shall include (a) your using commercially reasonable efforts to ensure that any syndication efforts benefit materially from your existing lending and investment banking relationships and the existing lending and investment banking relationships of Caxton-Iseman Capital, Inc. (the “Sponsor”) and the Company, (b) direct contact between senior management, representatives and advisors of you and the Borrower (and your using commercially reasonable efforts to cause direct contact between senior management, representatives and advisors of the Sponsor and the Company) and the proposed Lenders, (c) assistance by you and the Borrower (and your using commercially reasonable efforts to cause the assistance by the Sponsor and the Company) in the preparation of a Confidential Information Memorandum for each of the Facilities and other marketing materials to be used in connection with the syndication, (d) your providing or causing to be provided a detailed business plan or projections of Holdings and its subsidiaries for the fiscal years ending June 30, 2007 through June 30, 2014 and for the eight fiscal quarters beginning with the fiscal quarter ended September 30,

2006, in form and substance satisfactory to Credit Suisse (it being understood that Credit Suisse is satisfied with the draft annual projections of Holdings and its subsidiaries received by Credit Suisse on or prior to November 13, 2006 and shall be satisfied with quarterly projections in form and substance consistent therewith), (c) prior to the launch of the syndications, using commercially reasonable efforts to obtain a corporate rating for the Borrower from Standard & Poor’s Ratings Service (“S&P”) and a corporate family rating from Moody’s Investors Service, Inc. (“Moody’s”) (such corporate and corporate family ratings being referred to herein as “Corporate Ratings”), together with ratings for each of the Facilities from each of S&P and Moody’s and (f) the hosting, with CS Securities, of one or more meetings of prospective Lenders. You agree, at the request of CS Securities, to assist in the preparation of a version of the Confidential Information Memorandum and other marketing materials and presentations to be used in connection with the syndication of the Facilities, consisting exclusively of information and documentation that is either (i) publicly available or (ii) not material with respect to Holdings, the Borrower, the Company or their respective subsidiaries or any of their respective securities for purposes of foreign, United States Federal and state securities laws (all such information and documentation being “Public Lender Information”). Any information and documentation that is not Public Lender Information is referred to herein as “Private Lender Information”. You further agree that each document to be disseminated by CS Securities to any Lender in connection with the Facilities will, at the request of CS Securities, be identified by you as either (i) containing Private Lender Information or (ii) containing solely Public Lender Information. You acknowledge that the following documents (to the extent that you have been provided with an opportunity to review the same and remove or redact any material you reasonably deem Private Lender Information) contain solely Public Lender Information (unless you notify us promptly that any such document contains Private Lender Information): (a) drafts and final definitive documentation with respect to the Facilities; (b) administrative materials prepared by Credit Suisse for prospective Lenders (such as a lender meeting invitation, bank allocation, if any, and funding and closing memoranda); and (c) notification of changes in the terms of the Facilities.

CS Securities will manage all aspects of any syndication in consultation with you, including decisions as to the selection of institutions to be approached and when they will be approached, when their commitments will be accepted, which institutions will participate, the allocation of the commitments among the Lenders, any naming rights and the amount and distribution of fees among the Lenders, in each case, subject to the provisions of Section 2 above with respect to the titles and economics to be provided to (and commitments to be provided by) any Additional Banks. To assist CS Securities in its syndication efforts, you agree promptly to prepare and provide (and to use commercially reasonable efforts to cause the Sponsor and the Company to provide) to CS Securities all information with respect to Holdings, the Borrower, the Company and their respective subsidiaries, the Transactions and the other transactions contemplated hereby, including all financial information and projections (the “Projections”), as CS Securities may reasonably request.

You hereby represent and covenant (and it shall be a condition to CS’s commitment hereunder and our agreements to perform the services described herein) that to the best of your knowledge (a) all information other than the Projections (the “Information”) that has been or will be made available to Credit Suisse by you or on behalf of you or the Sponsor or any of your or its representatives is or will be, when furnished, complete and correct in all material respects and

does not or will not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made and (b) the Projections that have been or will be made available to Credit Suisse by or on behalf of you or the Sponsor or any of your or its representatives have been or will be prepared in good faith based upon assumptions that are reasonable at the time made and at the time the related Projections are made available to Credit Suisse. You agree that if at any time prior to the closing of the Facilities any of the representations in the preceding sentence would be incorrect if the Information and Projections were being furnished, and such representations were being made, at such time, then you will promptly supplement the Information and the Projections so that such representations will be correct under those circumstances. In arranging and syndicating the Facilities, we will be entitled to use and rely primarily on the Information and the Projections without responsibility for independent verification thereof.

As consideration for CS’s commitment hereunder and our agreements to perform the services described herein, you agree to pay (or to cause the Borrower to pay) to CS Securities and CS the fees set forth in this Commitment Letter and in the fee letter dated the date hereof and delivered herewith with respect to the Facilities (the “Fee Letter”).

CS’s commitment hereunder and our agreements to perform the services described herein are subject to (a) there not having occurred any material adverse change, event, circumstance or development since June 30, 2006 (the date of the most recent audited financial statements of the Company delivered to Credit Suisse as of the date hereof) with respect to, or, that would have a material adverse effect on, the business, condition (financial or otherwise), operations, assets or results of operations of the Company and its subsidiaries, taken as a whole; provided, however, that none of the following shall constitute, or shall be considered in determining whether there has occurred, a Material Adverse Effect: (i) changes that are the result of economic or political factors affecting the national, regional or world economy or acts of war or terrorism; (ii) changes that are the result of factors generally affecting the industries or markets in which the Company operates unless there is a disproportionate impact on the Company; (iii) any adverse change, effect or circumstance arising out of or resulting from actions contemplated by the parties in connection with the Purchase Agreement or the pendency or announcement of the transactions contemplated by the Purchase Agreement; (iv) changes in law, rule or regulations or generally accepted accounting principles or the interpretation thereof; (v) any action taken pursuant to or in accordance with the Purchase Agreement (including Section 6.5 thereof); (vi) any fees or expenses incurred in connection with the transactions contemplated by the Purchase Agreement; and (vii) any then pending shareholder litigation arising from or relating to the Merger (as defined in the Purchase Agreement), (b) our satisfaction that, prior to and during the syndication of the Facilities, there shall be no other issues of debt securities or commercial bank or other credit facilities of Holdings, the Borrower, the Company or their respective subsidiaries being announced, offered, placed or arranged, (c) the negotiation, execution and delivery of definitive documentation with respect to the Facilities satisfactory to Credit Suisse, its counsel and you, (d) your compliance with the material terms of this Commitment Letter and the terms of the Fee Letter, and (e) the other conditions set forth or referred to in the Term Sheets and the other exhibits hereto.

You agree (a) to indemnify and hold harmless Credit Suisse and its officers, directors, employees, agents, advisors, controlling persons, members and successors and assigns (each, an “Indemnified Person”) from and against any and all losses, claims, damages, liabilities and expenses, joint or several, to which any such Indemnified Person may become subject arising out of or in connection with this Commitment Letter, the Fee Letter, the Transactions, the Facilities or any related transaction or any claim, litigation, investigation or proceeding relating to any of the foregoing, regardless of whether any such Indemnified Person is a party thereto (and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower, the Company or any of their respective affiliates), and to reimburse each such Indemnified Person upon demand for any reasonable legal or other expenses incurred in connection with investigating or defending any of the foregoing, provided that the foregoing indemnity will not, as to any Indemnified Person, apply to losses, claims, damages, liabilities or related expenses to the extent they are found in a final, non-appealable judgment of a court of competent jurisdiction to have resulted primarily from the willful misconduct or gross negligence of such Indemnified Person, and (b) to reimburse Credit Suisse on the Closing Date, upon presentation of a summary statement, for all reasonable out-of-pocket expenses (including but not limited to expenses of Credit Suisse’s due diligence investigation, fees of consultants engaged with your approval (which approval shall not be unreasonably withheld or delayed), syndication expenses, travel expenses and fees, disbursements and other charges of counsel), in each case incurred in connection with the Facilities and the preparation, negotiation and enforcement of this Commitment Letter, the Fee Letter, the definitive documentation for the Facilities and any ancillary documents and security arrangements in connection therewith. Notwithstanding any other provision of this Commitment Letter, no Indemnified Person shall be liable for any indirect, special, punitive or consequential damages in connection with its activities related to the Facilities.

You acknowledge that Credit Suisse may be providing debt financing, equity capital or other services (including financial advisory services) to other companies in respect of which you may have conflicting interests regarding the transactions described herein or otherwise. In particular. CS Securities is acting as financial advisor to the Seller in connection with the proposed Acquisition. We will not furnish confidential information obtained from you by virtue of the transactions contemplated by this Commitment Letter or our other relationships with you to other companies. You also acknowledge that we do not have any obligation to use in connection with the transactions contemplated by this Commitment Letter, or to furnish to you, confidential information obtained by us from other companies, and that we shall not be imputed to have knowledge of confidential information provided to or obtained by CS Securities in its capacity as financial advisor to the Seller.

You further acknowledge and agree that (a) no fiduciary, advisory or agency relationship between you and Credit Suisse is intended to be or has been created in respect of any of the transactions contemplated by this Commitment Letter, irrespective of whether Credit Suisse has advised or is advising you on other matters, (b) Credit Suisse, on the one hand, and you, on the other hand, have an arms-length business relationship that does not directly or indirectly give rise to, nor do you rely on, any fiduciary duty on the part of Credit Suisse, (c) you are capable of evaluating and understanding, and you understand and accept, the terms, risks and conditions of

the transactions contemplated by this Commitment Letter, (d) you have been advised that Credit Suisse is engaged in a broad range of transactions that may involve interests that differ from your interests and that Credit Suisse has no obligation to disclose such interests and transactions to you by virtue of any fiduciary, advisory or agency relationship, and (c) you waive, to the fullest extent permitted by law, any claims you may have against Credit Suisse for breach of fiduciary duty or alleged breach of fiduciary duty and agree that Credit Suisse shall have no liability (whether direct or indirect) to you in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of you, including your stockholders, employees or creditors.

You further acknowledge that Credit Suisse is a full service securities firm engaged in securities trading and brokerage activities as well as providing investment banking and other financial services. In the ordinary course of business, Credit Suisse may provide investment banking and other financial services to, and/or acquire, hold or sell, for its own accounts and the accounts of customers, equity, debt and other securities and financial instruments (including bank loans and other obligations) of, you, the Borrower, the Company and other companies with which you, the Borrower, the Sponsor or the Company may have commercial or other relationships. With respect to any securities and/or financial instruments so held by Credit Suisse or any of its customers, all rights in respect of such securities and financial instruments, including any voting rights, will be exercised by the holder of the rights, in its sole discretion.

This Commitment Letter shall not be assignable by you without the prior written consent of CS and CS Securities (and any attempted assignment without such consent shall be null and void), is intended to be solely for the benefit of the parties hereto (and Indemnified Persons), and is not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto (and Indemnified Persons). CS may assign its commitment hereunder to one or more prospective Lenders; provided that notwithstanding anything contained herein, the commitment of CS hereunder with respect to the Facilities shall not be reduced, released or subject to novation prior to the occurrence of the Closing Date as a result of the acceptance of any commitment from any other prospective Lender (other than the Additional Banks) to provide all or any portion of any of the Facilities, until the Closing Date has occurred. Any and all obligations of, and services to be provided by, CS Securities or CS hereunder (including, without limitation, CS’s commitment) may be performed and any and all rights of CS Securities or CS hereunder may be exercised by or through any of their respective affiliates or branches. This Commitment Letter may not be amended or any provision hereof waived or modified except by an instrument in writing signed by CS Securities, CS and you. This Commitment Letter may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together, shall constitute one agreement. Delivery of an executed counterpart of a signature page of this Commitment Letter by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof. Section headings used herein are for convenience of reference only, are not part of this Commitment Letter and are not to affect the construction of, or to be taken into consideration in interpreting, this Commitment Letter. You acknowledge that information and documents relating to the Facilities may be transmitted through SyndTrak, Intralinks, the internet, e-mail, or similar electronic transmission systems, and that Credit Suisse shall not be liable for any damages arising from the unauthorized use by others of information or documents transmitted in such manner. Credit Suisse may, with your consent (which consent shall not be unreasonably withheld or delayed), place advertisements in financial and other

newspapers and periodicals or on a home page or similar place for dissemination of information on the Internet or worldwide web as it may choose, and circulate similar promotional materials, after the closing of the Transactions in the form of a “tombstone” or otherwise describing the names of you, the Sponsor, the Borrower and your affiliates (or any of them), and the amount, type and closing date of such Transactions, all at Credit Suisse’s expense. This Commitment Letter and the Fee Letter supersede all prior understandings, whether written or oral, between us with respect to the Facilities. THIS COMMITMENT LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

Each of the parties hereto hereby irrevocably and unconditionally (a) submits, for itself and its property, to the exclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Commitment Letter, the Fee Letter or the transactions contemplated hereby or thereby, and agrees that all claims in respect of any such action or proceeding may be heard and determined only in such New York State court or, to the extent permitted by law, in such Federal court, (b) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Commitment Letter, the Fee Letter or the transactions contemplated hereby or thereby in any New York State court or in any such Federal court (c) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court, and (d) agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Service of any process, summons, notice or document by registered mail addressed to you at the address above shall be effective service of process against you for any suit, action or proceeding brought in any such court.

EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF THIS COMMITMENT LETTER, THE FEE LETTER OR THE PERFORMANCE OF SERVICES HEREUNDER OR THEREUNDER.

This Commitment Letter is delivered to you on the understanding that neither this Commitment Letter nor the Fee Letter nor any of their terms or substance, nor the activities of Credit Suisse pursuant hereto, shall be disclosed, directly or indirectly, to any other person except (a) to the Sponsor and your and the Sponsor’s officers, directors, employees, attorneys, accountants and advisors on a confidential and need-to-know basis or (b) as required by applicable law or compulsory legal process (in which case you agree to inform us promptly thereof prior to such disclosure to the extent not prohibited by law); provided that you may disclose this Commitment Letter and the contents hereof (but not the Fee Letter or the contents

thereof) to the Company and the Seller and their respective officers, directors, employees, attorneys, accountants and advisors on a confidential and need-to-know basis.

Notwithstanding anything herein to the contrary, the Borrower (and any employee, representative or other agent of the Borrower) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the transactions contemplated by this Commitment Letter and the Fee Letter and all materials of any kind (including opinions or other tax analyses) that are provided to it relating to such tax treatment and tax structure, except that (i) tax treatment and tax structure shall not include the identity of any existing or future party (or any affiliate of such party) to this Commitment Letter or the Fee Letter, and (ii) the Borrower shall not disclose any information relating to such tax treatment and tax structure to the extent nondisclosure is reasonably necessary in order to comply with applicable securities laws. For this purpose, the tax treatment of the transactions contemplated by this Commitment Letter and the Fee Letter is the purported or claimed U.S. Federal income tax treatment of such transactions and the tax structure of such transactions is any fact that may be relevant to understanding the purported or claimed U.S. Federal income tax treatment of such transactions.

The compensation, reimbursement, indemnification, confidentiality, syndication, jurisdiction, governing law and waiver of jury trial provisions contained herein and in the Fee Letter shall remain in full force and effect regardless of whether definitive financing documentation shall be executed and delivered and (other than in the case of the syndication provisions) notwithstanding the termination of this Commitment Letter or CS’s commitment hereunder and our agreements to perform the services described herein.

Credit Suisse 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) (the “PATRIOT Act”), Credit Suisse and each Lender is 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 Credit Suisse or such 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 Credit Suisse and each Lender.

If the foregoing correctly sets forth our agreement with you, please indicate your acceptance of the terms of this Commitment Letter and of the Fee Letter by returning to us executed counterparts hereof and of the Fee Letter not later than 5:00 p.m., New York City time, on November 15, 2006. CS’s offer hereunder and our agreements to perform the services described herein will expire automatically and without further action or notice and without further obligation to you at such time in the event that Credit Suisse has not received such executed counterparts in accordance with the immediately preceding sentence. This Commitment Letter will become a binding commitment on CS only after it has been duly executed and delivered by you in accordance with the first sentence of this Section 15. In the event that the Closing Date does not occur on or before 5:00 p.m. New York City time on April 30, 2007, then this Commitment Letter and CS’s commitment hereunder, and our agreements to perform the services described herein, shall automatically terminate without further action or notice and without further obligation to you, unless Credit Suisse shall, in its discretion, agree to an extension.

Credit Suisse is pleased to have been given the opportunity to assist you in connection with the financing for the Acquisition.

Project Eagle

$215,000,000 First Lien Senior Secured Credit Facilities

Summary of Principal Terms and Conditions

2

3

4

5

6

7

8

9

10

11

ANNEX I

2

EXHIBIT B

Project Eagle

$75,000,000 Second Lien Senior Secured Term Loan Facility

Summary of Principal Terms and Conditions²

2

3

4

5

6

7

ANNEX I

EXHIBIT C

Project Eagle

$215,000,000 First Lien Senior Secured Credit Facilities

$75,000,000 Second Lien Senior Secured Term Loan Facility

Summary of Additional Conditions Precedent

Except as otherwise set forth below, the initial borrowing under each of the Facilities shall be subject to the following additional conditions precedent:

1. The Acquisition and the other Transactions shall be consummated simultaneously with the closing under the Facilities in all material respects (x) in accordance with all material requirements of law and (y) on the terms described in the Term Sheets and in the Purchase Agreement; the Purchase Agreement and all other related documentation shall be satisfactory to the Agent (without any amendment, waiver, supplement or any other modification thereof that is adverse to the Lenders in any material respect without the consent of the Agent); and the Equity Contribution shall have been made. The Agent hereby acknowledges that the Purchase Agreement dated as of November 13, 2006 is satisfactory to it.

2. After giving effect to the Transactions and the other transactions contemplated hereby, Holdings and its subsidiaries shall have outstanding no indebtedness or preferred stock other than (a) the loans and other extensions of credit under the Facilities and (b) other limited indebtedness to be agreed upon.

3. The Agent shall have received (a) U.S. GAAP audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Company for the fiscal years ended June 30, 2004, June 30, 2005 and June 30, 2006 fiscal and (b) U.S. GAAP unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended 45 days before the Closing Date, which financial statements shall not be materially inconsistent in form with the financial statements or forecasts previously provided to the Agent.

4. The Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statements of income and cash flows of the Borrower as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period for which financial statements have been delivered pursuant to paragraph 5 above, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements), which financial statements shall not be materially inconsistent in form with the financial statements or forecasts previously provided to the Agent.

ANNEX I

5. The Agent shall be satisfied that the ratio of Total Debt (to be defined) of the Borrower and its consolidated subsidiaries on the Closing Date to the Borrower’s consolidated pro forma EB1TDA for the four-fiscal quarter period most recently ended prior to the Closing Date for which financial statements have been delivered pursuant to paragraph 5 above (prepared in accordance with Regulation S-X under the Securities Act of 1933, as amended, and with such further adjustments in form and substance satisfactory to the Agent, in each case, to give pro forma effect to the Transactions as if they had occurred at the beginning of such four-fiscal quarter period) (such consolidated pro forma EB1TDA, “Pro Forma EBITDA”) shall be no more than 5.75 to 1.0.

6. The Agent shall have received a certificate from the chief financial officer of Holdings certifying that Holdings and its subsidiaries, on a consolidated basis after giving effect to the Transactions and the other transactions contemplated hereby, are solvent.

7. The Agent shall have received, at least five business days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.

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Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘SC 13D’ Filing		Date		Other Filings
		6/30/14
		6/30/07
		4/30/07
		1/2/07
		12/18/06
Filed on:		11/20/06		3
		11/15/06
		11/13/06		10-Q,  3,  8-K
		9/30/06		10-Q
		6/30/06		10-K
		6/30/05		10-K
		6/30/04		10-K,  4
		10/26/01
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