exv10w3



 





EXHIBIT 10.3




CONFIDENTIAL




December 20, 2007




Hypercom Corporation

2851 West Kathleen Road

Phoenix, Arizona 85053




	 	 	 
	Attention:

	 	Daniel D. Diethelm
	 

	 	Chairman of the Board of Directors
	 
	 	 
	Re:	 	Acquisition of Thales’ E-Transactions Business






     Ladies and Gentlemen:



     You have advised us that Hypercom Corporation, a Delaware corporation (the “Company”) intends
to acquire all of the outstanding shares (the “Acquisition”) of Thales E-Transactions SA, a societe
anonyme incorporated and operating under the laws of the Republic of France, Thales E-Transactions
Espana, a SA incorporated and operating under the laws of Spain, Thales E-Transactions GmbH, a
Gesellschaft mit beschraenkter Haftung incorporated and operating under the laws of Germany, and
Thales UK., a company incorporated and operating under the laws of England and Wales (collectively,
the “Targets”). You have also advised us that in connection with such transaction related fees
and expenses (the “Fee and Expense Payments”) will be paid. The Acquisition, Fee and Expense
Payments and other related transactions are collectively referred to herein as the “Transaction”.
The approximate amounts to be expended in connection with the Transaction are set forth in the
Sources and Uses Table attached as Schedule I to the Summary of Terms, Senior Credit Facility (the
“Senior Term Sheet”) attached hereto as Annex A.



     We understand that the total cash proceeds required to consummate the Transaction will be
approximately $130 million, which will be provided by the proceeds of the following: (i) the $60
million Senior Credit Facility described in the Senior Term Sheet (the “Senior Credit Facility”)
and (ii) cash on hand of the Company. The approximate amounts of the Senior Credit Facility and
such cash on hand are set forth in Schedule I attached to the Senior Term Sheet.



     Francisco Partners II, L.P. and/or certain of its affiliates (“Francisco Partners”) is pleased
to inform you that it hereby commits to provide the entire principal amount of the Senior Credit
Facility and to act as the sole and exclusive administrative agent (the “Administrative Agent”) for
the lenders (each such lender, including Francisco Partners, being a “Lender” and, collectively,
the “Lenders”) from time to time party to the Senior Credit Facility.



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     The foregoing commitment and all undertakings and agreements hereunder are expressly subject
to (i) no material adverse change in the business, assets, condition (financial or otherwise),
operations, liabilities (whether contractual, environmental or otherwise) or properties, of Company
and its subsidiaries since the date hereof or in the material facts and information as represented
to date, (ii) no “Material Adverse Effect” (as defined in that certain Share Purchase Agreement to
be executed by the Company to purchase all of the shares of each of the Targets ( such agreement,
together with all schedules and exhibits thereto, being the “Share Purchase Agreement”)) has
occurred as of the date such Share Purchase Agreement is executed or since the date hereof, (iii)
the satisfaction of the terms and conditions of this letter, the Senior Term Sheet and the other
annexes and schedules attached hereto (together, this “Commitment Letter”) in a manner reasonably
acceptable to us, (iv) the absence of any competing offering, placement or arrangement for any debt
security or bank financing by or on behalf of the Company (it being understood that the Company’s
negotiation of a $50 million facility for working capital purposes shall not be deemed a competing
proposal), and (v) the execution and delivery no later than February 28, 2008 of the Share Purchase
Agreement. Notwithstanding anything in this Commitment Letter or any other letter agreement or
other undertaking concerning the financing of the Transaction to the contrary, (i) the only
representations relating to the Targets, their subsidiaries and their businesses the making of
which shall be a condition to availability of the Senior Credit Facility shall be (a) such of the
representations made by the Targets in the Share Purchase Agreement as are material to the
interests of the Lenders, but only to the extent that you have the right to terminate your
obligations under the Share Purchase Agreement as a result of a breach of such representations in
the Share Purchase Agreement and (b) the Specified Representations (as defined below) and (ii) the
terms of the documentation for the Senior Credit Facility shall be in a form such that they do not
impair availability of the Senior Credit Facility if the conditions set forth herein are satisfied.
For purposes hereof, “Specified Representations” means the representations and warranties of the
Targets and/or the sellers set forth in the Senior Term Sheet relating to corporate power and
authority, due authorization, execution and delivery, the enforceability of the documentation
relating to the Senior Credit Facility, the inapplicability of the Investment Company Act and
status of the Senior Credit Facility as senior debt.



     You agree that no agents, co-agents or arrangers will be appointed, no other titles will be
awarded and no compensation other than as expressly set forth in the Senior Term Sheet will be paid
to any Lender with respect to the Senior Credit Facility unless you and we shall so agree.



     You hereby acknowledge that all information which has been or is hereafter made available to
us or any other Lender by you, any of your subsidiaries, any of the Targets or any of their
subsidiaries or any of your or their affiliates or representatives in connection with the
transactions contemplated hereby (the “Information”) has been reviewed and analyzed by you in
connection with the performance of your own due diligence and that the Senior Credit Facility will
contain a condition to funding that the Information is then complete and correct in all material
respects and does not or will not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements contained therein not materially misleading in
light of the circumstances under which such statements were or are made. You agree to supplement
the Information from time to time until the closing date so that the foregoing is correct on the
closing date. In arranging the Senior Credit Facility, the Administrative Agent will be using and
relying on the Information and any projections you provide without



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independent verification thereof. This paragraph shall remain effective until the initial
funding under a definitive financing agreement.



     You hereby agree to pay our reasonable costs and expenses (including the reasonable fees and
expenses of counsel, reasonable professional fees of consultants and other experts and reasonable
out-of-pocket expenses) incurred before or after the date of this Commitment Letter arising in
connection with this Commitment Letter, the definitive financing agreement, the arrangement of the
Senior Credit Facility and the other transactions contemplated hereby in an aggregate amount not to
exceed $250,000. You hereby further agree to indemnify and hold harmless the Administrative Agent
and each Lender (including Francisco Partners) and their respective affiliates and each director,
officer, employee, agent, attorney and affiliate thereof (each such person, an “indemnified
person”) from and against any losses, claims, damages, liabilities or other expenses to which an
indemnified person may become subject, insofar as such losses, claims, damages, liabilities (or
actions or other proceedings commenced or threatened in respect thereof) or other expenses arise
out of or in any way relate to or result from the Transaction and the other transactions
contemplated by this Commitment Letter, the extension of the financing contemplated hereby, the
Senior Credit Facility or any use or intended use of the proceeds of any of the loans and other
extensions of credit contemplated hereby, and to reimburse each indemnified person for any
reasonable legal or other expenses incurred in connection with investigating, defending or
participating in any such investigation, litigation or other proceeding (whether or not any such
investigation, litigation or other proceeding involves claims made between you, any of your
subsidiaries, any of the Targets or any of their subsidiaries or any third party and any such
indemnified person, and whether or not any such indemnified person is a party to any investigation,
litigation or proceeding out of which any such expenses arise); provided, however,
that the indemnity contained herein shall not apply to the extent that it is determined in a final
nonappealable judgment by a court of competent jurisdiction that such losses, claims, damages,
liabilities or other expenses result from the gross negligence or willful misconduct of such
indemnified person; and provided, further, that if such indemnified person is
indemnified by a controlling person who is required to indemnify such indemnified person, then the
reference to such indemnified person immediately prior to the preceding proviso shall be to “an”
indemnified person. The obligations to indemnify each indemnified person and to pay such legal and
other expenses shall remain effective until the initial funding under a definitive financing
agreement and thereafter the indemnification and expense reimbursement obligations contained herein
shall be superseded by those contained in such definitive financing agreement. No indemnified
person shall be responsible or liable to any other party or any other person for any damages other
than direct damages. The foregoing provisions of this paragraph shall be in addition to any rights
that any indemnified person may have at common law or otherwise.



     You acknowledge and agree that in connection with all elements of each transaction
contemplated under this Commitment Letter (i) neither Francisco Partners nor any of its affiliates
has assumed any advisory responsibility or any other obligation in favor of you, any of your
subsidiaries, any of the Targets or any of their subsidiaries except the obligations expressly
provided for under this Commitment Letter and (ii) Francisco Partners and its affiliates, on the
one hand, and you, your subsidiaries, and the Targets and their subsidiaries, on the other hand,
have an arms-length business relationship that does not directly or indirectly give rise to, nor do
you, any of your subsidiaries, any of the Targets or any of their subsidiaries rely on, any



3









 







fiduciary duty on the part of Francisco Partners or any of its affiliates; provided, that the
foregoing shall not be deemed to apply to any individual that may hereafter be a director of the
Company.



     This Commitment Letter is intended solely for your benefit and nothing in this Commitment
Letter, express or implied, shall give any person other than the parties hereto, any beneficial or
legal right, remedy or claim hereunder. This Commitment Letter is not assignable by you and may
not be relied upon by any other person or entity. This Commitment Letter is confidential and shall
not be disclosed by any of the parties hereto to any person other than such party’s accountants,
attorneys and other advisors, and, in the case of Francisco Partners, its affiliates and
prospective Lenders, purchasers and assignees, and then only on a confidential basis and in
connection with the Transaction and the related transactions contemplated herein. Any disclosure
to an advisor may be made for the sole purpose of evaluating and advising on the offer of financing
made in this Commitment Letter and may not be used by such advisor in formulating any offer of
financing by such advisor or an affiliate. Additionally, any of the parties hereto may make such
disclosures of this Commitment Letter (but not the schedules hereto) as are required by regulatory
authority, law or judicial process or as may be required or appropriate in response to any summons
or subpoena or in connection with any litigation; provided that such party will use its
commercially reasonable efforts to notify the other parties hereto of any such disclosure prior to
making such disclosure. We hereby consent to your disclosure of this Commitment Letter on a
confidential basis to the Targets and their financial and legal advisors on a confidential basis
and solely for their use in connection with their evaluation of your proposal for the Transaction.
If this Commitment Letter is not accepted by you as provided for below, you are to immediately
return this Commitment Letter (and any copies hereof) to the undersigned or confirm to the
undersigned that it has been destroyed.



     Our offer will terminate on the earlier of December 21, 2007 or the date that you execute and
submit the Offer (as defined below), unless on or before that date you sign and return an enclosed
counterpart of this Commitment Letter to Francisco Partners II, L.P., One Letterman Drive, Building
C — Suite 410, San Francisco, California 94129, attention: Keith Geeslin. The commitments herein
provided for will also expire at the earliest of (i) the consummation of the Acquisition without
the funding of the Senior Credit Facility; (ii) the rejection, modification, termination or
withdrawal of that certain offer made, or to be made, by the Company to Thales SA, on or before
December 24, 2007 in the form of the offer previously submitted and approved by the Administrative
Agent (the “Offer”) prior to the date hereof or (iii) the close of business on April 15, 2008, 2008
if the Acquisition has not been consummated by such time; provided, however, that
any term or provision hereof to the contrary notwithstanding all of your obligations hereunder in
respect of indemnification, confidentiality and fee and expense reimbursement shall survive any
termination of the commitments pursuant to this paragraph.



     THIS COMMITMENT LETTER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF NEW YORK. Each of the undersigned parties hereby knowingly, voluntarily and
intentionally waives any rights it may have to a trial by jury in respect of any litigation based
hereon, or arising out of or in connection with, this Commitment Letter and any course of conduct,
course of dealing, statements (whether oral or written) or actions of any of the undersigned
parties in connection herewith. The parties hereto submit to the nonexclusive jurisdiction of the
Federal and New York State courts located



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in the City of New York in connection with any dispute related to this Commitment Letter or
any of the matters contemplated hereby. This Commitment Letter constitutes the entire
understanding among the parties hereto with respect to the subject matter hereof and replaces and
supersedes all prior agreements and understandings, both written and oral, between the parties
hereto with respect to the subject matter hereof. This Commitment Letter may not be amended or
waived except by an instrument in writing signed by each party hereto. This Commitment Letter may
be executed in any number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.



     We appreciate having been given the opportunity by you to be involved in this transaction.



	 	 	 	 	 
	 	Very truly yours,



FRANCISCO PARTNERS II, L.P.

 	 
	 	By:  	/s/ Keith B. Geeslin
 	 
	 	 	Title: Partner 	 
	 	 	 	 
	 



AGREED AND ACCEPTED

this 20th day of December, 2007




	 	 	 	 	 
	HYPERCOM CORPORATION

 	 	 
	By:  	/s/ Daniel D. Diethelm
 	 	 
	 	Title: Chairman 	 	 
	 	 	 	 



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ANNEX A




SUMMARY OF TERMS

SENIOR CREDIT FACILITY





The following summarizes selected terms of an unsecured senior credit facility (the “Senior Credit
Facility”) to be utilized in connection with the proposed acquisition of all of the outstanding
shares (the “Acquisition”) of Thales E-Transactions SA, a societe anonyme incorporated and
operating under the laws of the Republic of France, Thales E-Transactions Espana, a SA incorporated
and operating under the laws of Spain, Thales E-Transactions GmbH, a Gesellschaft mit beschraenkter
Haftung incorporated and operating under the laws of Germany, and Thales UK, a company incorporated
and operating under the laws of England and Wales (collectively, the “Targets”) by Hypercom
Corporation, a Delaware corporation (the “Company”).



This Summary of Terms is intended merely as an outline of certain of the material terms of the
Senior Credit Facility. It does not include descriptions of all of the terms, conditions and other
provisions that are to be contained in the definitive documentation relating to the Senior Credit
Facility and it is not intended to limit the scope of discussion and negotiation of any matters not
inconsistent with the specific matters set forth herein. All terms defined in the commitment
letter (the “Commitment Letter”) to which this Summary of Terms is attached and not otherwise
defined herein shall have the same meanings when used herein.



	 	 	 
	Borrower:

	 	The Company.
	 
	 	 
	Administrative Agent for the
Lenders:

	 	Francisco Partners II, L.P. or any of
its affiliates (the “Administrative
Agent”).
	 
	 	 
	Lenders:

	 	Francisco Partners and any other
lenders from time to time party to
the Senior Credit Facility (the
“Lenders”).
	 
	 	 
	Closing Date:

	 	The date the Acquisition is
consummated (not later than April 15,
2008).
	 
	 	 
	Type and Amount:

	 	The Senior Credit Facility will be
made available in a single borrowing
on the Closing Date. Once repaid,
the term loans made under the Senior
Credit Facility may not be
reborrowed. Such term loans will
have a final maturity date of four
years after the Closing Date and be
in an original principal amount of up
to $60 million.
	 
	Purpose:

	 	A description of the sources and uses
of the funds used to consummate the
Transaction is set forth in the
Sources and Uses Table attached as
Schedule I hereto. As used herein,
“Transaction” shall refer to the
Acquisition and fee and expense
payments, each as described in such
Schedule I and to the other
transactions






A-1









 






	 	 	 
	 

	 	contemplated hereby.
	 
	 	 
	Interest Rates:

	 	All amounts outstanding under the
Senior Credit Facility shall bear
interest at a fixed rate of 10% per
annum. After the occurrence and
during the continuation of an event
of default, interest shall accrue at
a rate equal to a fixed rate of 10%
per annum plus an additional 2% per
annum, and shall be payable on
demand.
	 
	 	 
	Interest Payments:

	 	Quarterly; and upon prepayment, in
each case payable in arrears and
computed on the basis of a 360-day
year; provided that, so long as no
event of default has occurred and is
continuing, quarterly interest
payments may be paid in kind (e.g.
accrete and be added to the
principal, such payments in kind,
being “PIK Interest”), and the amount
of such PIK Interest will be added to
the principal amount of the loan.
	 
	 	 
	Voluntary Prepayments:

	 	The Senior Credit Facility may be
prepaid in whole or in part without
premium or penalty upon five business
days’ notice and in minimum
increments of $5 million. Voluntary
prepayments of the term loans
outstanding under the Senior Credit
Facility shall be applied first to
accrued but unpaid interest, second
to the PIK interest component and
thereafter to the outstanding
principal amount of the term loans
outstanding under the Senior Credit
Facility.
	 
	 	 
	Representations and Warranties:

	 	Subject to paragraph 4 of the
Commitment Letter, customary and
appropriate for financings of this
type, including without limitation
corporate power and authority, due
authorization, execution and
delivery, the enforceability of the
documentation relating to the Senior
Credit Facility, financial condition,
no material adverse changes, title to
properties, no liens, no litigation,
payment of taxes, compliance with
laws and regulations, no employee
benefit liabilities, no environmental
liabilities, inapplicability of
Investment Company Act, full
disclosure (i.e., an SEC Rule 10b-5
representation), status of the Senior
Credit Facility as senior debt, and
the accuracy of all representations
and warranties in the definitive
documents related to the Transaction.
	 
	Covenants:

	 	Customary and appropriate affirmative
and negative covenants for financings
of this type, including without
limitation covenants applicable to
the Company and its subsidiaries
limiting other indebtedness and the
declaration and payment of dividends
(including the issuance of (i) any
indebtedness senior to or pari passu
with the Senior Credit Facility,
subject to a basket for indebtedness
of the Company in an aggregate
principal amount of $50 million;
provided that such indebtedness may
be secured to the extent it is used
for working capital purposes;
provided further that the Company and
the






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	 	Administrative Agent agree to
discuss in good faith increases in
the foregoing $50 million incurrence
basket based upon the achievement in
the future of improved leverage
ratios and/or other similar credit
metrics), and (ii) unless the
subordination terms are satisfactory
to the Lenders and the maturity date
of such indebtedness is later than
the maturity date of the Senior
Credit Facility, any subordinated
indebtedness), liens, investments,
guaranties (including guaranties by
any existing and future subsidiary of
the Company of any indebtedness of
any person), restricted junior
payments (dividends, redemptions and
payments on subordinated debt),
mergers and acquisitions, sales of
assets, capital expenditures, leases,
transactions with affiliates and
conduct of business, subject to
exceptions and baskets to be mutually
agreed upon. In addition, the
Company shall not have more than
eight members of its board of
directors, and so long as Francisco
Partners (i) holds at least 50% of
the original principal amount of the
Senior Credit Facility, Francisco
Partners shall be entitled to appoint
two representatives to the Company’s
board of directors, and (ii) holds at
least 25% of the original principal
amount of the Senior Credit Facility,
Francisco Partners shall be entitled
to appoint one representative to the
Company’s board of directors.
	 
	 	 
	Events of Default:

	 	Customary and appropriate for
financings of this type (subject to
customary and appropriate grace
periods), including without
limitation failure to make payments
when due, defaults under other
agreements or instruments of
indebtedness, noncompliance with
covenants, breaches of
representations and warranties,
bankruptcy, judgments in excess of
specified amounts, Changes of Control
(to be defined as a sale of all or
substantially all of the assets of
the Company or an acquisition of the
Company by another person or entity
by any transaction or series of
transactions (including any
reorganization, merger, consolidation
or share transfer) pursuant to which
the shareholders of the Company
immediately preceding such
transaction or series of transactions
own, following such transaction, less
than 50% of the voting securities of
the Company), and termination or
amendment, supplement, waiver or
other modification of the Share
Purchase Agreement without the prior
written consent of the Administrative
Agent.
	 
	 	 
	Conditions to Closing:

	 	The Company shall have satisfied the
conditions set forth in Annex B
attached to the Commitment Letter.
	 
	 	 
	Indemnification:

	 	The Company shall indemnify the
Administrative Agent, each Lender
(including Francisco Partners) and
each of their respective affiliates,
directors, officers, agents,
attorneys and employees from and
against any losses, claims, damages,
liabilities and other expenses in a
manner






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	 	customary for financings of this type.
	 
	 	 
	Assignments/ Participations:

	 	The Lenders may assign or grant
participations in all or any part of
their obligations under and interests
in the Senior Credit Facility to any
other person; provided that, no such
assignments shall be made, and no
such participations shall be granted,
to any competitor of the Company
without the Company’s consent.
	 
	 	 
	Waivers and Amendments:

	 	Amendments and waivers will require
the approval of the Lenders holding
in the aggregate more than 50% of the
loans and commitments under the
Senior Credit Facility provided that
the consent of each Lender directly
affected thereby shall be required
for (i) increases in the commitment
of such Lender, (ii) reductions of
principal, interest or fees, and
(iii) extensions of final and interim
scheduled maturities or times for
payment of interest or fees.
	 
	 	 
	Taxes, Reserve Requirements and
Indemnities:

	 	All payments are to be made free and
clear of any present or future taxes
(other than franchise taxes and taxes
on overall net income), imposts,
assessments, withholdings, or other
deductions whatsoever. Foreign
Lenders shall furnish to the
Administrative Agent (for delivery to
the Company) appropriate certificates
or other evidence of exemption from
U.S. federal income tax withholding.
The Company shall indemnify the
Lenders against all increased costs
of capital resulting from reserve
requirements or otherwise imposed, in
each case subject to customary
increased costs, capital adequacy and
similar provisions.
	 
	 	 
	Governing Law and Jurisdiction:

	 	The Company will submit to the
non-exclusive jurisdiction and venue
of the federal and state courts of
the State of New York and will waive
any right to trial by jury. New York
law shall govern the definitive loan
documents.
	 
	 	 
	Administrative Agent’s Counsel:

	 	O’Melveny & Myers LLP.






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SCHEDULE I




SOURCES AND USES TABLE

($ in Millions)




	 	 	 	 	 
	Sources
	 	 	 	 
	Senior Credit Facility
	 	$	60,000,000.00	 
	Cash on Hand
	 	$	70,000,000.00	 
	 
	 	 	 	 
	 
	 	 	 
	Total Sources
	 	$	130,000,000.00	 
	 
	 	 	 	 
	Uses
	 	 	 	 
	Purchase Price
	 	$	120,000,000.00	 
	Fees and Expenses
	 	$	10,000,000.00	 
	 
	 	 	 	 
	 
	 	 	 
	Total Uses
	 	$	130,000,000.00	 






S-1









 






ANNEX B


INITIAL CONDITIONS PRECEDENT




     Any obligation to make loans under the Senior Credit Facility is subject to the satisfaction of the
following conditions precedent (all terms defined in the Senior Term Sheet or in the Commitment
Letter to which this Annex B is attached and not otherwise defined herein having the same meanings
when used herein):



	 	 	 
	 
	 	 
	Transaction Structure and
Documentation:

	 	The structure to be utilized to
consummate the Transaction and the
definitive documentation relating
thereto (the “Definitive
Transaction Documents”) shall be in
form and substance reasonably
satisfactory to the Administrative
Agent. The Administrative Agent
confirms that the Stock Purchase
Agreement in the form attached to
the Offer satisfies this criteria.
The Share Purchase Agreement in the
form attached to the Offer, and the
Share Purchase Agreement in the
form executed, shall not have been
amended, modified, supplemented or
otherwise altered, or any condition
thereto waived, without the prior
written consent of the
Administrative Agent. The Share
Purchase Agreement and any other
applicable Definitive Transaction
Documents shall be in full force
and effect and in compliance in all
material respects with applicable
laws and regulations.
	 
	 	 
	Senior Credit Facility 

Documentation:

	 	The definitive documentation
evidencing the Senior Credit
Facility (the “Definitive Senior
Financing Documents”) shall be
prepared by counsel to the
Administrative Agent, shall be in
customary form and in substance
satisfactory to the Administrative
Agent and the Lenders and shall
have been executed and delivered by
the Company. Such Definitive
Senior Financing Documents shall
include customary closing
documentation, including without
limitation legal opinions,
officers’ certificates, solvency
certificates, resolutions,
corporate and public records and
the like.






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	Issuance of Warrants:

	 	The Company shall have issued
five-year warrants to purchase
10.544 million shares of the
Company’s common stock at a strike
price of $5 per share to Francisco
Partners and shall have entered
into a registration rights
agreement with regard to the shares
underlying such warrants, such
warrants and such registration
rights agreement to be in form and
substance satisfactory to the
Administrative Agent.
	 
	 	 
	Existing Debt:

	 	All existing debt (excluding
accounts payable and other current
liabilities included in the working
capital adjustment mechanism
contained in the Stock Purchase
Agreement) of the Targets shall
have been repaid in full and all
commitments relating thereto shall
have been terminated; and all liens
or security interests related
thereto shall have been terminated
or released, in each case on terms
reasonably satisfactory to the
Administrative Agent.
	 
	 	 
	Certain Approvals and
Agreements:

	 	All governmental, shareholder and
third party approvals necessary, or
customarily obtained in connection
with transactions similar, to the
Transaction, the financings
contemplated hereby and the
continuing operations of the
business of the Company and its
subsidiaries and the Targets and
their subsidiaries shall have been
obtained and be in full force and
effect, and all applicable waiting
periods shall have expired without
any action being taken or
threatened by any competent
authority which would restrain,
prevent or otherwise impose
material adverse conditions on the
Transaction, or adverse conditions
on the financing thereof, and no
law or regulation shall be
applicable which could reasonably
be expected to have such effect.
	 
	 	 
	Fees and Expenses:

	 	All fees and expenses (subject to
the limitations set forth in the
Commitment Letter) to be paid on or
prior to the Closing Date to the
Administrative Agent shall have
been paid in full.
	 
	Financial Statements:

	 	The Administrative Agent shall have
received (i) the financial
statements specified in Section 3.5
of the Stock Purchase Agreement,
(ii) projected financial statements
(including balance sheets, income
and cash flow statements) of the
Company and its subsidiaries
(including the Targets and their
subsidiaries) for the three-year
period after the Closing Date, and
(iii) a pro forma balance sheet of
the Company and its subsidiaries
(including the Targets and their
subsidiaries) as of the Closing
Date after giving effect to the
Transaction and the financings
contemplated hereby. The financial
statements referred to in clause
(i) shall not differ in any
material respect from those
delivered to the Administrative






B-1









 






	 	 	 
	 

	 	Agent prior to the date hereof.
	 
	 	 
	Litigation:

	 	There shall not be pending or
threatened any action, suit,
investigation, litigation or
proceeding in any court or before
any arbitrator or governmental
instrumentality that could
reasonably be expected to have a
material adverse effect on the
Transaction, the Company, the
Senior Credit Facility or any of
the other transactions contemplated
hereby, or a Material Adverse
Effect (as defined in the Stock
Purchase Agreement) on the Target
or its subsidiaries.







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