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UNITED ROAD SERVICES, INC.
Shares of Series C
Participating Convertible Preferred Stock
EXCHANGE AGREEMENT
Dated as of June 17, 2003
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EXCHANGE AGREEMENT
AGREEMENT made as of the 17th day of June, 2003 (this "AGREEMENT"),
by and among United Road Services, Inc., a Delaware corporation (the "COMPANY"),
and Charter URS LLC, a Delaware limited liability company (the "INVESTOR").
W I T N E S S E T H:
WHEREAS, on July 20, 2000 the Company issued to the Investor certain
amended and restated 8% Convertible Subordinated Debentures due 2008 (the
"DEBENTURES"), pursuant to that certain Amended and Restated Purchase Agreement
dated as of April 14, 2000, as amended;
WHEREAS, in consideration of all of the Debentures owned by the
Investor and its affiliates and for other consideration set forth herein, the
Company wishes to issue and sell to the Investor, and the Investor wishes to
purchase from the Company, 25,000 shares of the Company's authorized but
unissued shares of Series C Participating Convertible Preferred Stock, par value
$.001 per share ("SERIES C PREFERRED STOCK"), having the rights and preferences
set forth in the Certificate of Powers, Designations, Preferences and Rights
(the "CERTIFICATE OF DESIGNATION") relating to the Series C Preferred Stock,
upon the terms and subject to the conditions set forth herein;
WHEREAS, simultaneously with the execution of this Agreement, the
Company, KPS Management, LLC ("KPS MANAGEMENT") and Blue Truck Acquisition, LLC
("BLUE TRUCK") have entered into an agreement (the "BLUE TRUCK EXCHANGE
AGREEMENT") pursuant to which, among other things, Blue Truck is to surrender to
the Company all shares of the Company's Series A Preferred Stock, par value
$.001 per share ("SERIES A PREFERRED STOCK"), owned (beneficially or of record)
by Blue Truck and its affiliates in exchange for 2,572.017 shares of the
Company's authorized but unissued shares of Series B Preferred Stock, par value
$.001 per share ("SERIES B PREFERRED STOCK"), having the rights and preferences
set forth in the Certificate of Designation relating thereto; and
WHEREAS, simultaneously with the execution of this Agreement, the
Company and CFE, Inc. ("CFE") have entered into an agreement (the "CFE EXCHANGE
AGREEMENT" and together with the Blue Truck Exchange Agreement, the "OTHER
EXCHANGE AGREEMENTS") pursuant to which, among other things, CFE is to surrender
to the Company all shares of Series A Preferred Stock owned (beneficially or of
record) by CFE and its affiliates in exchange for 205.761 shares of authorized
but unissued shares of Series B Preferred Stock.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
Investor and the Company hereby agree as follows:
1
SECTION 1
TERMS OF PURCHASE AND ISSUANCE
1.1 SALE AND PURCHASE. On the Closing Date, the Company shall issue to the
Investor, and the Investor shall purchase from the Company, 25,000 shares of
Series C Preferred Stock, initially convertible into 2,500,000,000 share(s) of
common stock, par value $0.001 per share, of the Company ("COMMON STOCK"), such
conversion being subject to the terms and conditions set forth in the
Certificate of Designation relating to the Series C Preferred Stock in the form
annexed hereto as EXHIBIT A. The shares of Series C Preferred Stock to be issued
to the Investor hereunder would, if the Conversion Trigger Date (as defined in
the Certificate of Designation relating to such stock) had occurred, be
convertible on the date hereof into not less than 89.9% of the Common Stock on a
fully diluted basis (without giving effect to the options being granted to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the Investor under the Option Agreements referred to in
Section 2.2(f)).
1.2 PURCHASE PRICE. On the Closing Date, as full consideration for the issuance
of the shares to be issued to the Investor pursuant to Section 1.1 of this
Agreement, the Investor shall surrender to the Company the Debentures (which
constitute all the Debentures owned by the Investor and its affiliates) for
cancellation.
SECTION 2
CLOSING
2.1 CLOSING. The closing (the "CLOSING") of the sale and purchase of the Series
C Preferred Stock to be issued under this Agreement shall occur at the offices
of Proskauer Rose LLP on this date (the "CLOSING DATE").
2.2 CLOSING TRANSACTIONS. At the Closing, the following shall occur:
(a) the Investor shall deliver to the Company the Debentures to be
surrendered by it under this Agreement, or a lost note affidavit in form and
substance reasonably acceptable to the Company;
(b) the Company shall deliver to the Investor the Series C Preferred Stock
to be issued by it under this Agreement in the form of a stock certificate
issued in the Investor's name;
(c) the Company shall deliver to the Investor evidence reasonably
satisfactory to the Investor to the effect that (i) the Certificate of
Designation relating to the Series C Preferred Stock has been accepted for
filing by the Secretary of State for the State of Delaware, (ii) the exchanges
contemplated by the Other Exchange Agreements have been consummated, (iii) each
director entitled to be designated by the Investor pursuant to the Certificate
of Designation relating to the Series C Preferred Stock has, if named by the
Investor, been duly elected to the Board of Directors of the Company, and (iv)
the Management Services Agreement, dated as of July 20, 2000, between KPS
Management and the Company has been terminated in full and is of no further
force and effect;
2
(d) the Investor and the Company shall execute and deliver the Investors'
Agreement in the form annexed to this Agreement as EXHIBIT B, the Registration
Rights Agreement in the form annexed hereto as EXHIBIT C, and the Termination
Agreement in the form annexed hereto as EXHIBIT D;
(e) the Company and General Electric Capital Corporation shall enter into
an amendment to the Company's Credit Agreement, dated as of July 20, 2000, in
the form annexed hereto as EXHIBIT E; and
(f) the Company and each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and the Investor shall enter
into a Credit Enhancement Agreement in the form annexed hereto as EXHIBIT F and
an Option Agreement in the form annexed hereto as EXHIBIT G.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Investor effective as of
the date hereof and as of the Closing Date:
3.1 ORGANIZATION. The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has the
requisite corporate power and authority to carry on its business as it is now
being conducted.
3.2 POWER AND AUTHORITY. The Company has all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement and all agreements and other documents
executed and delivered in connection herewith, including, without limitation,
those agreements referred to in Section 2.2 to be executed by the Investor (the
"ANCILLARY DOCUMENTS"), by the Company and the transactions contemplated hereby
and thereby have been approved by the Board of Directors of the Company. No
other corporate proceedings on the part of the Company are necessary to
authorize the execution and delivery of this Agreement and the Ancillary
Documents or the consummation by the Company of the transactions contemplated
hereby and thereby, other than the approval of the stockholders contemplated by
Section 5.4 with respect to the transactions contemplated thereby.
3.3 DUE EXECUTION; ENFORCEABILITY. This Agreement and the Ancillary Documents
have been duly executed and delivered by the Company, and assuming the due
authorization, execution
3
and delivery by the other parties thereto, this Agreement and the Ancillary
Documents constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
except as such enforcement may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting or
relating to the enforcement of creditors' rights generally and (ii) general
equitable principles, regardless of whether such enforceability is considered in
a proceeding at law or in equity.
3.4 BROKERS AND FINDERS. The Company is not a party to or bound by any contract,
arrangement or understanding with any person or firm which may result in the
obligation of the Company to pay any finder's fees, brokerage or agent
commissions or other like payments in connection with the transactions
contemplated hereby and there is no claim for payment by the Company of any
investment banking fees, finder's fees, brokerage or agent commissions or other
like payments in connection with the negotiations leading to this Agreement or
the consummation of the transactions contemplated hereby.
3.5 ISSUANCE OF SHARES. Upon consummation of the Closing as contemplated by this
Agreement, including receipt by the Company of the Debentures to be surrendered
by the Investor under this Agreement, the Series C Preferred Stock to be issued
to the Investor under this Agreement will be validly issued, fully paid and
nonassessable, and any shares of capital stock issued upon the conversion
thereof in accordance with the terms thereof shall be validly issued, fully paid
and nonassessable.
The parties acknowledge that, except as set forth in this Section 3,
the Company has not made any representation of warranty to the Investor and the
Investor is not relying on any representation of warranty of the Company other
than those set forth in this Section 3.
SECTION 4
INVESTOR REPRESENTATIONS
The Investor represents and warrants to the Company effective as of
the date hereof and as of the Closing Date:
4.1 ORGANIZATION. It is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
the requisite limited liability company power and authority to carry on its
business as it is now being conducted.
4.2 POWER AND AUTHORITY. It has all requisite limited liability company power
and authority to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement and all Ancillary Documents to which it is a
party and the transactions contemplated hereby and thereby have been approved by
its members or, if it is managed by its managers, by its managers. No other
proceedings on its part are necessary to authorize the execution and delivery of
this Agreement and the Ancillary Documents to which it is a party or the
consummation by it of the transactions contemplated hereby and thereby.
4
4.3 DUE EXECUTION; ENFORCEABILITY. This Agreement and the Ancillary Documents to
which it is a party have been duly executed and delivered by it, and assuming
the due authorization, execution and delivery by the other parties thereto, this
Agreement and the Ancillary Documents to which it is a party constitute its
valid and legally binding obligations, enforceable against it in accordance with
their respective terms, except as such enforcement may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting or relating to the enforcement of creditors' rights generally and
(ii) general equitable principles, regardless of whether such enforceability is
considered in a proceeding at law or in equity.
4.4 BROKERS AND FINDERS. It is not a party to or bound by any contract,
arrangement or understanding with any person or firm which may result in its
obligation to pay any finder's fees, brokerage or agent commissions or other
like payments in connection with the transactions contemplated hereby and there
is no claim for payment by it of any investment banking fees, finder's fees,
brokerage or agent commissions or other like payments in connection with the
negotiations leading to this Agreement or the consummation of the transactions
contemplated hereby.
4.5 OWNERSHIP OF SHARES AND RIGHTS.
(a) The Investor is the owner of the Debentures to be surrendered by it to
the Company pursuant to this Agreement, free and clear of any and all liens,
claims and encumbrances of any nature whatsoever, and no other person or entity
has any right, title or interest in or to the Debentures.
(b) The Investor has not assigned or otherwise transferred to any person or
entity any right, title or interest in or to any of the agreements or other
arrangements listed on SCHEDULE 4.5 to this Agreement to which it is a party or
as to which it has any rights (the "CHARTER RIGHTS") or any claim arising out of
or in connection therewith, including, without limitation, with respect to any
fees or rights of reimbursement, together with any accrued and unpaid management
or other fees, accrued and unpaid dividends, or other sums owing to the
Investor.
(c) The Charter Rights constitute all claims, debts, liabilities,
obligations, covenants, contracts, agreements or promises, of or against the
Company or any of its subsidiaries that are nominally or beneficially possessed
or claimed by the Investor or any of its affiliates (excluding the Company and
affiliates that are subsidiaries of the Company) other than the Investor's
rights under this Agreement and the Ancillary Documents.
4.6 INVESTMENT INTENT.
(a) The Investor is acquiring Series C Preferred Stock for its own account,
for investment, and not with a view to any "distribution" thereof within the
meaning of the Securities Act of 1933, as amended (the "SECURITIES ACT").
(b) The Investor understands that because the Series C Preferred Stock has
not been registered under the Securities Act, it cannot dispose of any or all of
the Series C Preferred Stock
5
unless such securities are subsequently registered under the Securities Act or
exemptions from such registration are available. The Investor understands that
each certificate representing the Series C Preferred Stock will bear the
following legends:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A
VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH
SECURITIES UNDER THE ACT OR THE AVAILABILITY OF AN EXEMPTION FROM
SUCH REGISTRATION REQUIREMENTS.
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO
SO REQUESTS THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE AND THE QUALIFICATIONS, LIMITATIONS
OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS.
THE SHARES REPRESENTED BY THE CERTIFICATE ARE SUBJECT TO THE RIGHTS
AND RESTRICTIONS CONTAINED IN THE INVESTORS' AGREEMENT DATED AS OF
JUNE 17, 2003, AS SUCH AGREEMENT MAY BE AMENDED, SUPPLEMENTED,
RESTATED OR OTHERWISE MODIFIED FROM TIME TO TIME (A COPY OF WHICH IS
ON FILE WITH THE SECRETARY OF THE CORPORATION).
(c) The Investor is sufficiently knowledgeable and experienced in the
making of special situation investments so as to be able to evaluate the risks
and merits of its investment in the Company, and is able to bear the economic
risk of loss of its investment in the Company. The Investor is an "accredited
investor" (as defined in Regulation D promulgated under the Securities Act).
(d) The Investor has been advised that none of the Series C Preferred Stock
has been registered under the Securities Act or under the "blue sky" laws of any
jurisdiction and that the Company, in issuing the Series C Preferred Stock is
relying upon, among other things, the representations and warranties of the
Investor contained in this Section.
6
SECTION 5
COVENANTS
5.1 TERMINATION OF CERTAIN AGREEMENTS. The Company and the Investor hereby agree
that the agreements described on SCHEDULE 4.5, including, without limitation,
the Charter Rights, together with any accrued and unpaid fees or other sums
owing to the Investor or any of its affiliates thereunder, are hereby terminated
in full and are of no further force and effect, and that no party shall have any
right, entitlement, duty, liability or obligation thereunder, whether or not
accrued or otherwise payable on or prior to this date.
5.2 EXPENSES. Promptly following the Closing (but no more than 30 days
thereafter), the Company shall pay the actual reasonable fees and expenses
incurred by the Investor in connection with the negotiation, execution, delivery
and performance of this Agreement and the agreements, documents and instruments
contemplated hereby or executed pursuant hereto (including the reasonable fees
and expenses of counsel, accountants and other representatives engaged by the
Investor in connection with such transactions).
5.3 PUBLIC ANNOUNCEMENTS. The initial press release relating to this Agreement
shall be a joint press release the text of which has been agreed to by each of
the Investor and the Company. Thereafter, each of the Investor and the Company
shall consult with the other before issuing any press release with respect to
this Agreement or any of the transactions contemplated hereby.
5.4 COMPANY STOCKHOLDERS' MEETING. Each of the Company and the Investor shall
use its best efforts to take all actions necessary or advisable and permitted by
applicable law to hold a stockholders' meeting as promptly as practicable, but
in no event prior to August 13, 2003, for the purpose of approving an amendment
to the Company's certificate of incorporation in the form annexed hereto as
EXHIBIT H to, among other things, (i) effect a 1,000-to-1 reverse stock split
relating to the Common Stock, (ii) adjusting the number of authorized shares of
Common Stock to 4,000,000.
SECTION 6
INDEMNIFICATION
Each party shall indemnify, defend, and hold the other party harmless
against all liability, losses, claims, charges, actions, suits, proceedings,
penalties, fines, settlements, judgments or damages, together with all
reasonable costs and expenses related thereto (including reasonable legal and
accounting fees and expenses), arising from the breach of any of its
representations, warranties, covenants or agreements contained in this
Agreement.
7
SECTION 7
GENERAL
7.1 ENTIRE AGREEMENT. This Agreement and the Ancillary Documents contain all of
the agreements, covenants, terms, conditions and representations and warranties
agreed upon by the parties relating to the subject matter of this Agreement and
supersede all prior and contemporaneous agreements, negotiations,
correspondence, undertakings, representations, warranties and communications of
any kind of or between the parties and their representatives, whether oral or
written, respecting such subject matter.
7.2 WAIVERS. Waiver by any party of any breach of or failure to comply with any
provision of this Agreement by another party shall not be construed as, or
constitute, a continuing waiver of such provision, or a waiver of any other
breach of, or failure to comply with, any other provision of this Agreement. No
waiver of any such breach or failure or of any term of this Agreement shall be
effective unless in a written notice signed by the waiving party and delivered,
in the manner required for notices generally, to the affected party.
7.3 COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same document.
7.4 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflict of laws rules thereof.
7.5 BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon, inure to
the benefit of, and be enforceable by, the parties hereto and their respective
legal representatives, successors and assigns. No assignment of this Agreement
or any right or duty hereunder shall relieve the assignor of any duty hereunder.
7.6 HEADINGS; REFERENCES. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. All references in this Agreement to a section
number shall, unless otherwise indicated, be to sections in this Agreement.
7.7 NOTICES. All notices required to be given to any of the parties to this
Agreement shall be in writing, shall be made to each of the parties identified
below and shall be deemed to have been sufficiently given, subject to the
further provisions of this Section, for all purposes (and shall constitute valid
legal service) when presented personally to such party or sent by certified or
registered mail, return receipt requested, with proper postage prepaid, or any
national overnight delivery service, with proper charges prepaid, or by
facsimile (together with an electronically generated confirmation of receipt) to
such party at its address set forth below:
8
If to the Investor:
c/o Charterhouse Group International, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Proskauer Rose LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company:
United Road Services, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Proskauer Rose LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
c/o KPS Special Situations Fund, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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General Electric Capital Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Winston & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Such notice shall be deemed to be received when delivered if delivered
personally, the next business day after the date sent if sent by a national
overnight delivery service, three (3) business days after the date mailed if
mailed by certified or registered mail, or when received if sent by facsimile.
Any party may change its address for purposes of this Agreement, and notice of
any change in such address shall also be given in the manner set forth above.
Whenever the giving of notice is required, the giving of such notice may be
waived in writing by the party entitled to receive such notice. Failure to give
notice to any party will not invalidate notice given to any other party pursuant
to this Section 7.7.
7.8 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS, ASSIGNABILITY OF
RIGHTS. All representations, warranties and covenants made herein shall survive
the delivery of the Series C Preferred Stock.
7.9 JURISDICTION. Each party hereby irrevocably submits to the exclusive
jurisdiction of the courts of the State of New York and the federal courts of
the United States of America located in such state solely in respect of any
claim relating to the interpretation and enforcement of the provisions of this
Agreement and of the documents referred to in this Agreement, or otherwise in
respect of the transactions contemplated hereby and thereby, and hereby waives,
and agrees not to assert, as a defense in any action, suit or proceeding in
which any such claim is made that it is not subject thereto or that such action,
suit or proceeding may not be brought or is not maintainable in such courts or
that the venue thereof may not be appropriate or that this Agreement or any such
document may not be enforced in or by such courts, including with respect to
notice of claim provided that such notice is given pursuant to Section 7.7
hereof.
7.10 WAIVER OF JURY TRIAL. Each party acknowledges and agrees that any
controversy which may arise under this Agreement is likely to involve
complicated and difficult issues, and therefore each party hereby irrevocably
and unconditionally waives any right such party may have to a trial by jury.
Each party certifies and acknowledges that (i) no representative, agent or
attorney of any other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to enforce the foregoing
waiver, (ii) such party understands and has considered the implications of this
waiver, (iii) such party makes this waiver voluntarily, and (iv) such party has
been induced to enter into this Agreement by, among other things, the mutual
waivers, agreements and certifications in this section.
10
7.11 THIRD-PARTY BENEFICIARY. Nothing expressed or implied in this Agreement is
intended or shall be construed to confer upon or give any person other than the
parties hereto any rights or remedies under or by reason of this Agreement or
any transaction contemplated hereby.
[Signature page follows]
11
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
a sealed instrument as of the day and year first above written.
UNITED ROAD SERVICES, INC.
By: --------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and Chief Executive
Officer
CHARTER URS LLC
By: -------------------------------
Name:
Title:
12
SCHEDULE 4.5
1. Notes issued to Charter by the Company, as follows:
-------------------------------------------------
NO. DATED AMOUNT
--- ----- ------
-------------------------------------------------
A-1 July 20, 2000 $ 84,517,783.49
-------------------------------------------------
11 September 30, 2000 $ 1,333,503.00
-------------------------------------------------
12 December 31, 2000 $ 1,717,260.00
-------------------------------------------------
13 March 31, 2001 $ 1,751,366.00
-------------------------------------------------
14 June 30, 2001 $ 1,786,394.00
-------------------------------------------------
15 September 30, 2001 $ 1,822,121.00
-------------------------------------------------
16 December 31, 2001 $ 1,858,564.00
-------------------------------------------------
17 March 31, 2002 $ 1,895,735.00
-------------------------------------------------
18 June 30, 2002 $ 1,933,650.00
-------------------------------------------------
19 September 30, 2002 $ 1,972,323.00
-------------------------------------------------
20 December 30, 2002 $ 2,011,769.00
-------------------------------------------------
21 March 31, 2003 $ 2,052,005.00
-------------------------------------------------
2. Acknowledgment by the Company and Charter, dated July 20, 2000, with
respect to the aggregate principal amount of the 1998 Debentures (defined
with reference to the Charter Purchase Agreement (see below)).
3. Acknowledgment, dated July 20, 2000, by the Company, Blue Truck and CFE
with respect to price, number of shares and conversion price of the Series
A Participating Convertible Preferred Stock of the Company.
4. Agreement, dated as of July 20, 2000, between the Company and Charter to
amend and restate the 1998 Purchase Agreement (defined therein).
5. Amended and Restated Investors Agreement, dated as of April 14, 2000,
between the Company and Charter (the "AMENDED AND RESTATED INVESTORS
AGREEMENT").
6. Amended and Restated Purchase Agreement, dated as of April 14, 2000,
between the Company and Charter (the "CHARTER PURCHASE AGREEMENT").
7. Amended and Restated Registration Rights Agreement, dated as of April 14,
2000, between the Company and Charter (the "CHARTER REGISTRATION RIGHTS
AGREEMENT").
8. Amendment No. 1 to the Blue Truck Purchase Agreement, dated as of May 26,
2000, by and among the Company and Blue Truck.
9. Amendment to the Charter Purchase Agreement and to the Amended and Restated
Investors Agreement, dated May 26, 2000, between the Company and Charter.
10. Amendment to the Charter Purchase Agreement and to the Charter Registration
Rights Agreement, dated July 20, 2000, between the Company and Charter.
11. Assignment Agreement, dated as of July 20, 2000, by and among Blue Truck,
KPS Special Situations Fund, L.P., and the Company.
12. Investors' Agreement, dated as of July 20, 2000, between the Company and
Blue Truck.
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13. Letter, dated July 20, 2000, from Blue Truck and CFE to Charter and the
Company regarding the subordination of dividend payments to Blue Truck and
CFE.
14. Management Services Agreement, dated as of July 20, 2000, between KPS
Management and the Company.
15. Registration Rights Agreement, dated as of July 20, 2000, between the
Company, Blue Truck and CFE.
16. Side Letter, dated April 14, 2000, from Charter to the Company with respect
to non-exercise of rights under the 1998 Purchase Agreement.
17. Side Letter, dated April 14, 2000, from Charter to the Company with respect
to subordination as contemplated by the Charter Purchase Agreement.
18. Stock Purchase Agreement, dated as of April 14, 2000, by and among the
Company and Blue Truck (the "BLUE TRUCK PURCHASE AGREEMENT").
19. Subordinated Subsidiary Guaranty, dated as of July 20, 2000, by direct and
indirect subsidiaries of the Company in favor of Charter.
20. Tag-Along Side Letter, dated July 20, 2000, from Blue Truck to CFE.
21. Waiver of Condition, dated as of April 14, 2000, by the Company with
respect to Section 4 of the Blue Truck Purchase Agreement.
14
EXHIBIT A
SERIES C CERTIFICATE OF DESIGNATION
15
EXHIBIT B
INVESTORS' AGREEMENT
16
EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
EXHIBIT D
TERMINATION AGREEMENT
EXHIBIT E
AMENDMENT TO CREDIT AGREEMENT
EXHIBIT F
CREDIT ENHANCEMENT AGREEMENT
EXHIBIT G
OPTION AGREEMENTS
EXHIBIT H
FORM OF AMENDED CERTIFICATE OF INCORPORATION