December 17, 2007 STRICTLY CONFIDENTIAL Marlin HoldCo LP Marlin MidCo Inc. c/o Macquarie Securities (USA) Inc.
Exhibit
7.03
December
17, 2007
STRICTLY
CONFIDENTIAL
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HoldCo ▇▇
▇▇▇▇▇▇
MidCo Inc.
c/o
Macquarie Securities (USA) Inc.
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▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Gentlemen:
Reference
is made to that certain Agreement and Plan of Merger, dated as of the date
hereof (the “Merger Agreement”; capitalized terms used but not defined
herein shall have the meanings given to such terms in the Merger Agreement),
by
and among ▇▇▇▇▇▇ HoldCo LP (“Parent”), ▇▇▇▇▇▇ MergeCo Inc. (“Merger
Sub”) and Waste Industries USA, Inc. (the “Company”).
The
undersigned (the “Investor”) hereby commits, subject to the conditions
set forth herein, to acquire equity interests of Parent in an amount set forth
in Schedule A hereto (the “Equity Funding Amount”), which shall be
issued to Investor in exchange for its contribution and delivery to Parent
of
the number of shares of Company Common Stock (the “Rollover Contribution
Shares”) set forth next to such Investor’s name on Schedule A hereto,
solely for the purpose of consummating the transactions contemplated by the
Merger Agreement. The value of each Rollover Contribution Share shall be equal
to the per share Merger Consideration.
In
addition to the Equity Funding Amount, the Investor hereby commits, subject
to
the conditions set forth herein, to purchase senior subordinated mezzanine
loan
notes (the “Notes”) issued by the wholly-owned subsidiary of Parent and
the direct parent of Merger Sub (“Midco”) on the terms described herein
and on Exhibit A hereto (the “Term Sheet”) for an aggregate
purchase price equal to the amount set forth on Schedule B hereto (the
“Note Funding Amount”), the proceeds of which shall be used solely for
the purpose of funding a portion of the consideration payable by Parent in
accordance with the Merger Agreement and related expenses. The
foregoing obligations of the undersigned to contribute the Rollover Contribution
Shares and the Notes are subject to the satisfaction or proper waiver in
accordance with the provisions of the Interim Investors Agreement, dated as
of
the date hereof, by and among Parent, Merger Sub and the other parties appearing
on the signature pages thereto of the conditions set forth in Article VI of
the
Merger Agreement and the substantially contemporaneous funding of the financing
contemplated by the Debt Commitment Letters and the consummation of the merger
(the “Merger”) in accordance with the terms of the Merger
Agreement.
The
obligations of the Investor hereunder will terminate automatically and
immediately upon the earliest to occur of (a) the Closing, (b) the termination
of the Merger Agreement and (c) the Company or any of its affiliates asserting
a
claim against the Investor or any affiliate thereof in connection with the
Merger Agreement or any of the transactions contemplated thereby.
No
(a)
direct or indirect holder of any equity interests or securities of any party
hereto (whether such holder is a partner (limited or general), member,
stockholder, or otherwise), (b) Affiliate of any party hereto, or (c) director,
officer, partner (limited or general), member, stockholder, employee,
representative, family member or agent of any party hereto, any of such party’s
respective Affiliates or any such direct or indirect holder of any equity
interests or securities of any such party (collectively, the “Party
Affiliates”) shall have any liability or obligation of any nature whatsoever
in connection with or under this letter or the transactions contemplated hereby,
and each party hereto hereby waives and releases all claims against such Party
Affiliates related to any such liability or obligation.
This
letter shall be binding on the undersigned solely for the benefit of the parties
hereto, and nothing set forth in this letter shall be construed to confer upon
or give to any Person other than the parties hereto any benefits, rights or
remedies under or by reason of, or any rights to enforce or cause Parent to
enforce, the Investor’s obligation to fund its Equity Funding Amount, Note
Funding Amount or any provisions of this letter. Parent’s creditors
shall have no right to enforce this letter or cause Parent to enforce this
letter.
No
modification of this letter shall be binding upon or enforceable against any
party hereto without the written approval of such party.
No
party
hereto may assign any of its rights and obligations hereunder to any Person
without the prior consent of Parent, and any attempted assignment in violation
of the foregoing shall be null and void.
This
letter, and all claims or causes of action (whether at law, in equity, in
contract, in tort or otherwise) that may be based upon, arise out of or relate
to this letter or the negotiation, execution or performance hereof, shall be
governed by and construed in accordance with the laws of the State of Delaware,
without giving effect to any choice or conflict of law provision or rule
(whether of the State of Delaware or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Delaware. Each of the parties hereto irrevocably agrees that any
legal action or proceeding that may be based upon, arise out of or relate to
this letter or the negotiation, execution or performance hereof (whether at
law,
in equity, in contract, in tort or otherwise), shall be brought and determined
exclusively in the Chancery Court of the State of Delaware (or other appropriate
state court in the State of Delaware), or in the event (but only in the event)
that such court does not have subject matter jurisdiction over such action
or
proceeding, in any federal court sitting in the State of
Delaware. Each of the parties hereto hereby irrevocably submits with
regard to any such action or proceeding for itself and in respect of its
property, generally and unconditionally, to the exclusive personal jurisdiction
of the aforesaid courts and agrees that it will not bring any such action in
any
court other than the aforesaid courts.
THE
PARTIES AGREE THAT IRREPARABLE DAMAGE WOULD OCCUR IN THE EVENT THAT ANY OF
THE
PROVISIONS OF THIS LETTER WERE NOT PERFORMED IN ACCORDANCE WITH THEIR SPECIFIC
TERMS OR WERE OTHERWISE BREACHED. IT IS ACCORDINGLY AGREED THAT EACH
PARTY HERETO SHALL BE ENTITLED TO AN INJUNCTION OR INJUNCTIONS TO PREVENT
BREACHES OF THIS LETTER AND TO ENFORCE SPECIFICALLY THE TERMS AND PROVISIONS
OF
THIS LETTER EXCLUSIVELY IN THE CHANCERY COURT OF THE STATE OF DELAWARE (OR
OTHER
APPROPRIATE STATE COURT IN THE STATE OF DELAWARE), OR IN THE EVENT (BUT ONLY
IN
THE EVENT) THAT SUCH COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION OVER SUCH
ACTION OR PROCEEDING, IN ANY FEDERAL COURT SITTING IN THE STATE OF DELAWARE,
WITHOUT BOND OR OTHER SECURITY BEING REQUIRED, THIS BEING IN ADDITION TO ANY
OTHER REMEDY WHICH THEY ARE ENTITLED AT LAW OR IN EQUITY. EACH OF THE
PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING THAT MAY BE BASED UPON, ARISE OUT OF OR RELATE TO THIS LETTER
OR THE NEGOTIATION, EXECUTION OR PERFORMANCE HEREOF.
[SIGNATURE
PAGES FOLLOW]
Very
truly yours,
| /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. | |
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. | |
Accepted
and agreed as of
the
date
first above written:
| ▇▇▇▇▇▇ HOLDCO LP, by its General Partner, ▇▇▇▇▇▇ HoldCo GP, LLC | ||
|
By:
|
/s/ ▇▇▇ ▇. ▇▇▇▇▇ | |
| Name: ▇▇▇ ▇. ▇▇▇▇▇ | ||
| Title: Vice President | ||
| ▇▇▇▇▇▇ MIDCO INC. | ||
|
By:
|
/s/ ▇▇▇ ▇. ▇▇▇▇▇ | |
| Name: ▇▇▇ ▇. ▇▇▇▇▇ | ||
| Title: Vice President | ||
SCHEDULE
A
Equity
Funding Amount
|
Investor
|
Number
of Rollover Contribution Shares
|
Equity
Funding Amount
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇, ▇▇.
|
1,100,000
|
$41,800,000.00
|
SCHEDULE
B
Note
Funding Amount
|
Investor
|
Note
Funding Amount
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇, ▇▇.
|
$24,000,000.00
|