EXHIBIT 3
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UNITED ROAD SERVICES, INC.
Shares of Series B
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"),
Blue Truck Acquisition, LLC, a Delaware limited liability company (the
"INVESTOR"), and, for the limited purposes set forth in Sections 4, 5.1, 6 and
7, KPS Management, LLC, a Delaware limited liability company ("KPS MANAGEMENT").
W I T N E S S E T H:
WHEREAS, on July 20, 2000 the Company issued and sold to the Investor,
and the Investor purchased from the Company, 613,073.27 shares of the Company's
Series A Participating Convertible Preferred Stock, par value $.001 per share
(the "SERIES A PREFERRED STOCK"), pursuant to that certain Stock Purchase
Agreement dated as of April 14, 2000, as amended;
WHEREAS, in consideration of all of the shares of Series A Preferred
Stock owned (beneficially or of record) by the Investor and its affiliates, the
Company wishes to issue and sell to the Investor, and the Investor wishes to
purchase from the Company, 2,572.017 shares of the Company's authorized but
unissued shares of Series B Participating Convertible Preferred Stock, par value
$.001 per share ("SERIES B 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 B Preferred Stock,
upon the terms and subject to the conditions set forth herein;
WHEREAS, simultaneously with the execution of this Agreement, the
Company and CFE, Inc. ("CFE") have entered into an agreement (the "CFE EXCHANGE
AGREEMENT") 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 the Company's
authorized but unissued shares of Series B Preferred Stock; and
WHEREAS, simultaneously with the execution of this Agreement, the
Company and Charter URS LLC ("CHARTER") have entered into an agreement (the
"CHARTER EXCHANGE AGREEMENT" and together with the CFE Exchange Agreement, the
"OTHER EXCHANGE AGREEMENTS") pursuant to which, among other things, Charter is
to surrender to the Company all of the 8% Convertible Subordinated Debentures
due 2008 issued by the Company and owned (beneficially or of record) by Charter
and its affiliates, in exchange for 25,000 shares of the Company's authorized
but unissued shares of Series C Participating Convertible Preferred Stock, par
value $.001 per share, having the rights and preferences set forth in the
Certificate of Designation relating thereto.
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, the Company and, for the limited purposes set forth in Sections 4,
5.1, 6 and 7, KPS Management hereby agree as follows:
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, 2,572.017 shares of
Series B Preferred Stock, initially convertible into 257,201,700 shares 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 B Preferred Stock in the form
annexed hereto as EXHIBIT A. The shares of Series B 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 9.2% of the Common Stock on a
fully diluted basis (without giving effect to the options being granted to ▇▇.
▇▇▇▇▇▇▇ and Charter under the Option Agreements referred to in Section 2.2(g)).
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 613,073.27 shares of
Series A Preferred Stock (which constitute all the shares of Series A Preferred
Stock owned (beneficially or of record) 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 B 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 stock
certificate(s) evidencing the shares of Series A Preferred Stock to be
surrendered by it under this Agreement, in each case together with stock powers
duly endorsed in blank or a lost stock affidavit in form and substance
reasonably acceptable to the Company;
(b) the Company shall deliver to the Investor the Series B
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 B 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, and (iii)
each director entitled to be designated by the Investor pursuant to the
Certificate of
2
Designation relating to the Series B Preferred Stock has, if named by the
Investor, been duly elected to the Board of Directors of the Company;
(d) the Investor and the Company shall execute and deliver the
Investors' Agreement in the form annexed to this Agreement as EXHIBIT B and the
Registration Rights Agreement in the form annexed hereto as EXHIBIT C;
(e) KPS Management, the Investor and the Company shall execute and
deliver the Termination Agreement in the form annexed hereto as EXHIBIT D;
(f) 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
(g) the Company and each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and Charter 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 (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 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
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 Series A Preferred Stock
to be surrendered by the Investor under this Agreement, the Series B 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
Each of KPS Management and the Investor, severally and not
jointly, 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.
4.3 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
4.4 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 record and beneficial owner of the shares
of Series A Preferred Stock 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 any of those shares.
(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 "BLUE TRUCK 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) KPS Management 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 "KPS MANAGEMENT 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 KPS Management.
(d) The Blue Truck Rights and the KPS Management 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 KPS Management, the Investor
or any of their respective affiliates (excluding the Company and affiliates that
are subsidiaries of the Company) other than their rights under this Agreement
and the Ancillary Documents. With respect to Excluded Claims (as defined in
Section 2(a) of the Termination Agreement), the representation set forth in this
Section 4.5(d) is made to the knowledge of the Investor and KPS Management.
4.6 INVESTMENT INTENT.
(a) The Investor is acquiring Series B 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 B Preferred
Stock has not been registered under the Securities Act, it cannot dispose of any
or all of the Series B 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 B 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 B
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 B
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, KPS Management and the
Investor hereby agree that the agreements described on SCHEDULE 4.5, including,
without limitation, the KPS Management Rights and the Blue Truck Rights,
together with any accrued and unpaid fees or other sums owing to the Investor,
KPS or any of their 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, Charter 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.
5.5 TRANSACTIONS WITH AFFILIATES. Without the prior written consent of the
Investor, the Company shall not enter into or be a party to any transaction or
series of transactions with Charter or any of its affiliates involving payment
for services rendered or to be rendered, unless such transaction(s) are on terms
that are no less favorable to the Company than would be available in arm's
length transaction(s) with unaffiliated parties; PROVIDED, HOWEVER, that this
Section shall be of no more effect either (i) from and after the time that Blue
Truck or its affiliates shall no longer have the right to appoint a director to
the Board of Directors of the Company under the Certificate of Designation
relating to the Series B Preferred Stock or (ii) from and after the time that
Charter shall no longer have the right to appoint a majority of the Board of
Directors of the Company under the Certificate of Designation relating to the
Series C Preferred Stock, whichever shall first occur.
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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.
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
8
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:
If to the Investor or KPS Management:
c/o KPS Special Situations Fund, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company:
United Road Services, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Proskauer Rose LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
General Electric Capital Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Winston & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
9
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
c/o Charterhouse Group International, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Proskauer Rose LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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 B 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,
10
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.
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]
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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: /s/
---------------------------------------
Name:
Title:
BLUE TRUCK ACQUISITION, LLC
By: /s/
---------------------------------------
Name:
Title:
FOR THE LIMITED PURPOSES
SET FORTH IN SECTIONS 4, 5.1, 6
AND 7:
KPS MANAGEMENT, LLC
By: /s/
-----------------------------
Name:
Title:
SCHEDULE 4.5
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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.
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.
