\nSCHEDULE A — INFORMATION RELATING TO PURCHASERS<\/p>\nSCHEDULE B — DEFINED TERMS<\/p>\n
SCHEDULE 4.16 — Changes in Corporate Structure<\/p>\n
SCHEDULE 5.4 — Subsidiaries of the Company and Ownership of Subsidiary Stock<\/p>\n
SCHEDULE 5.5 — Financial Statements<\/p>\n
SCHEDULE 5.11 — Licenses, Permits, Etc.<\/p>\n
SCHEDULE 5.15 — Existing Debt<\/p>\n
SCHEDULE 10.5 — Existing Liens<\/p>\n
EXHIBIT 1(a) — Form of 8.46% Series 2000-A Senior Secured Note, Tranche 1, due March 1, 2005<\/p>\n
EXHIBIT 1(b) — Form of 8.55% Series 2000-A Senior Secured Note, Tranche 2, Due March 1, 2007<\/p>\n
EXHIBIT 1(c) — Form of 8.61% Series 2000-A Senior Secured Note, Tranche 3, Due March 1, 2010<\/p>\n
EXHIBIT 2 — Form of Guaranty Agreement<\/p>\n
EXHIBIT 3 — Form of Intercreditor Agreement<\/p>\n
EXHIBIT 4.11(a) — Form of Opinion of General Counsel for the Company<\/p>\n
EXHIBIT 4.11(b) — Form of Opinion of Special Counsel for the Company<\/p>\n
EXHIBIT 4.11(c) — Form of Opinion of Special Counsel for the Purchasers
\n<\/c><\/s><\/table>\n
-v-
\n 7<\/p>\n
QUANTA SERVICES, INC.
\n 1360 POST OAK BOULEVARD, SUITE 2100
\n HOUSTON, TEXAS 77056-3023<\/p>\n
8.46% SERIES 2000-A SENIOR SECURED NOTES, TRANCHE 1, DUE MARCH 1, 2005
\n AND
\n 8.55% SERIES 2000-A SENIOR SECURED NOTES, TRANCHE 2, DUE MARCH 1, 2007
\n AND
\n 8.61% SERIES 2000-A SENIOR SECURED NOTES, TRANCHE 3, DUE MARCH 1, 2010<\/p>\n
Dated as of
\n March 1, 2000<\/p>\n
TO THE PURCHASERS LISTED IN
\n THE ATTACHED SCHEDULE A:<\/p>\n
Ladies and Gentlemen:<\/p>\n
QUANTA SERVICES, INC., a Delaware corporation (the “Company”), agrees
\nwith the Purchasers listed in the attached Schedule A (the “Purchasers”) to this
\nNote Purchase Agreement (this “Agreement”) as follows:<\/p>\n
SECTION 1. AUTHORIZATION OF NOTES.<\/p>\n
The Company will authorize the issue and sale of (i) $73,000,000
\naggregate principal amount of its 8.46% Series 2000-A Senior Secured Notes,
\nTranche 1, due March 1, 2005 (the “Tranche 1 Notes”), (ii) $41,500,000 aggregate
\nprincipal amount of its 8.55% Series 2000-A Senior Secured Notes, Tranche 2, due
\nMarch 1, 2007 (the “Tranche 2 Notes”), and (iii) $35,500,000 aggregate principal
\namount of its 8.61% Series 2000-A Senior Secured Notes, Tranche 3, due March 1,
\n2010 (the “Tranche 3 Notes”; the Tranche 1 Notes, the Tranche 2 Notes and the
\nTranche 3 Notes are collectively referred to herein as the “Series 2000-A
\nNotes”). The Series 2000-A Notes together with each Series of Additional Notes
\nwhich may from time to time be issued pursuant to the provisions of Section 2.4
\nare collectively referred to as the “Notes” (such term shall also include any
\nsuch notes issued in substitution therefor pursuant to Section 13 of this
\nAgreement). The Series 2000-A Notes shall be substantially in the forms set out
\nin Exhibit 1(a), Exhibit 1(b) and Exhibit 1(c), respectively, with such changes
\ntherefrom, if any, as may be approved by the Purchasers and the Company. Certain
\ncapitalized terms used in this Agreement are defined in Schedule B; references
\nto a “Schedule” or an “Exhibit” are, unless otherwise specified, to a Schedule
\nor an Exhibit attached to this Agreement.<\/p>\n
8<\/p>\n
SECTION 2. SALE AND PURCHASE OF NOTES.<\/p>\n
Section 2.1. Series 2000-A Notes. Subject to the terms and conditions
\nof this Agreement, the Company will issue and sell to each Purchaser and each
\nPurchaser will purchase from the Company, at the Closing provided for in Section
\n3, Series 2000-A Notes in the principal amount specified opposite such
\nPurchaser’s name in Schedule A at the purchase price of 100% of the principal
\namount thereof. The obligations of each Purchaser hereunder are several and not
\njoint obligations and each Purchaser shall have no obligation and no liability
\nto any Person for the performance or nonperformance by any other Purchaser
\nhereunder.<\/p>\n
Section 2.2. Guaranty Agreement. The payment by the Company of all
\namounts due with respect to the Notes and the performance by the Company of its
\nobligations under this Agreement will be unconditionally guaranteed by all
\nDomestic Subsidiaries of the Company (the “Guarantors”) under the Guaranty
\nAgreement dated as of March 1, 2000 (the “Guaranty Agreement”) which shall be in
\nsubstantially the form attached hereto as Exhibit 2.<\/p>\n
If at any time one or more Subsidiaries which has guaranteed the Notes
\nand the Debt outstanding under the Bank Credit Agreement shall have been
\nreleased from its obligations under the Guaranty relating to the Bank Credit
\nAgreement, then upon delivery to the holders of the Notes of evidence of such
\nrelease (which evidence shall be reasonably satisfactory to the Required
\nHolders) and provided that no Default or Event of Default shall exist, the
\nRequired Holders shall execute and deliver a release of such Subsidiary from its
\nobligations under the Guaranty Agreement (referred to as a “Guaranty Release
\nEvent”).<\/p>\n
Section 2.3. Security for the Notes. The Notes will be secured by
\ncertain property of the Company and the Guarantors pursuant to the Security
\nDocuments heretofore entered into by the Company and the Guarantors with Bank of
\nAmerica, N.A. as collateral agent (together with any successor collateral agent,
\nthe “Collateral Agent”) for the benefit of the holders of Notes and the Bank
\nLenders.<\/p>\n
The Lien and security interest granted by the Company and the
\nGuarantors pursuant to the Security Documents shall rank pari passu with other
\nexisting Liens that secure the outstanding Debt of the Company and the
\nGuarantors under the Bank Credit Agreement without preference, priority or
\ndistinction by virtue of the time of filing any financing statement or
\nregistration or the difference in time of incurrence of such Debt, and the
\nenforcement of the rights and benefits in respect of such Security Documents
\nwill be subject to an Intercreditor Agreement dated as of March 1, 2000 (the
\n“Intercreditor Agreement”) among the Collateral Agent, for itself and as agent
\non behalf of all Bank Lenders, the Purchasers and the Additional Purchasers.<\/p>\n
If at any time the Collateral Agent shall have received the written
\ndirection from the requisite percentage of Bank Lenders to release the Liens of
\nthe Security Documents which secure the Debt outstanding under the Bank Credit
\nAgreement, then upon delivery to the holders of the Notes of evidence of such
\ndirection (which evidence shall be reasonably satisfactory to the Required
\nHolders) and provided that no Default or Event of Default shall exist, the
\nCollateral Agent shall release the Liens created by the Security Documents
\n(herein referred to as a “Collateral Release Event”). If requested by the
\nCollateral Agent and so long as no Default or <\/p>\n
A-2
\n 9<\/p>\n
Event of Default shall exist, each Purchaser, each Additional Purchaser and each
\nholder by its acceptance of a Note agrees that it shall concur in the Collateral
\nRelease Event.<\/p>\n
Section 2.4. Additional Series of Notes. The Company may, from time to
\ntime, in its sole discretion but subject to the terms hereof, issue and sell one
\nor more additional Series of its secured promissory notes under the provisions
\nof this Agreement pursuant to a supplement (a “Supplement”) substantially in the
\nform of Exhibit S. Each additional Series of Notes (the “Additional Notes”)
\nissued pursuant to a Supplement shall be subject to the following terms and
\nconditions:<\/p>\n
(i) each Series of Additional Notes, when so issued, shall be
\n differentiated from all previous Series by sequential alphabetical
\n designation inscribed thereon;<\/p>\n
(ii) Additional Notes of the same Series may consist of more
\n than one different and separate tranches and may differ with respect to
\n outstanding principal amounts, maturity dates, interest rates and
\n premiums, if any, and price and terms of redemption or payment prior to
\n maturity, but all such different and separate tranches of the same
\n Series shall vote as a single class and constitute one Series;<\/p>\n
(iii) each Series of Additional Notes shall be dated the date
\n of issue, bear interest at such rate or rates, mature on such date or
\n dates, be subject to such mandatory and optional prepayment on the
\n dates and at the premiums, if any, have such additional or different
\n conditions precedent to closing, such representations and warranties
\n and such additional covenants as shall be specified in the Supplement
\n under which such Additional Notes are issued and upon execution of any
\n such Supplement, this Agreement shall be amended (a) to reflect such
\n additional covenants without further action on the part of the holders
\n of the Notes outstanding under this Agreement, provided, that any such
\n additional covenants shall inure to the benefit of all holders of Notes
\n so long as any Additional Notes issued pursuant to such Supplement
\n remain outstanding, and (b) to reflect such representations and
\n warranties as are contained in such Supplement for the benefit of the
\n holders of such Additional Notes in accordance with the provisions of
\n Section 16;<\/p>\n
(iv) each Series of Additional Notes issued under this
\n Agreement shall be in substantially the form of Exhibit 1 to Exhibit S
\n hereto with such variations, omissions and insertions as are necessary
\n or permitted hereunder;<\/p>\n
(v) the minimum principal amount of any Note issued under a
\n Supplement shall be $100,000, except as may be necessary to evidence
\n the outstanding amount of any Note originally issued in a denomination
\n of $100,000 or more;<\/p>\n
(vi) all Additional Notes shall constitute Senior Debt of the
\n Company and shall rank pari passu with all other outstanding Notes,
\n provided that if the Security Documents and the Intercreditor Agreement
\n are in full force and effect, the Company shall have obtained the
\n written consent of the necessary parties to the Intercreditor Agreement
\n as provided for therein; and<\/p>\n
A-3
\n 10<\/p>\n
(vii) no Additional Notes shall be issued hereunder if at the
\n time of issuance thereof and after giving effect to the application of
\n the proceeds thereof, any Default or Event of Default shall have
\n occurred and be continuing.<\/p>\n
SECTION 3. CLOSING.<\/p>\n
The sale and purchase of the Series 2000-A Notes to be purchased by
\neach Purchaser shall occur at the offices of Chapman and Cutler, 111 West Monroe
\nStreet, Chicago, Illinois 60603 at 10:00 a.m. Chicago time, at a closing (the
\n“Closing”) on March 22, 2000 or on such other Business Day thereafter on or
\nprior to March 24, 2000 as may be agreed upon by the Company and the Purchasers.
\nAt the Closing the Company will deliver to each Purchaser the Series 2000-A
\nNotes to be purchased by such Purchaser in the form of a single Series 2000-A
\nNote (or such greater number of Series 2000-A Notes in denominations of at least
\n$100,000 as such Purchaser may request) dated the date of the Closing and
\nregistered in such Purchaser’s name (or in the name of such Purchaser’s
\nnominee), against delivery by such Purchaser to the Company or its order of
\nimmediately available funds in the amount of the purchase price therefor by wire
\ntransfer of immediately available funds for the account of the Company to
\naccount number 001390029677, account name Quanta Services, Inc., at Bank of
\nAmerica, Dallas, Texas, ABA Number 111000025. If at the Closing the Company
\nshall fail to tender such Notes to any Purchaser as provided above in this
\nSection 3, or any of the conditions specified in Section 4 shall not have been
\nfulfilled to any Purchaser’s satisfaction, such Purchaser shall, at such
\nPurchaser’s election, be relieved of all further obligations under this
\nAgreement, without thereby waiving any rights such Purchaser may have by reason
\nof such failure or such nonfulfillment.<\/p>\n
SECTION 4. CONDITIONS TO CLOSING.<\/p>\n
The obligation of each Purchaser to purchase and pay for the Series
\n2000-A Notes to be sold to such Purchaser at the Closing is subject to the
\nfulfillment to such Purchaser’s satisfaction, prior to or at the Closing, of the
\nfollowing conditions:<\/p>\n
Section 4.1. Representations and Warranties of the Company. The
\nrepresentations and warranties of the Company in this Agreement shall be correct
\nwhen made and at the time of Closing.<\/p>\n
Section 4.2. Representations and Warranties of the Guarantors. The
\nrepresentations and warranties of the Guarantors in the Guaranty Agreement shall
\nbe correct when made and at the time of the Closing.<\/p>\n
Section 4.3. Performance; No Default. The Company and the Guarantors
\nshall have performed and complied with all agreements and conditions contained
\nin this Agreement required to be performed or complied with by the Company and
\nthe Guarantors prior to or at the Closing, and after giving effect to the issue
\nand sale of the Series 2000-A Notes (and the application of the proceeds thereof
\nas contemplated by Section 5.14), no Default or Event of Default shall have
\noccurred and be continuing. Neither the Company nor any Subsidiary shall <\/p>\n
A-4
\n 11<\/p>\n
have entered into any transaction since the date of the Memorandum that would
\nhave been prohibited by Section 10 hereof had such Sections applied since such
\ndate.<\/p>\n
Section 4.4. Compliance Certificates.<\/p>\n
(a) Officer’s Certificate of the Company. The Company shall
\n have delivered to such Purchaser an Officer’s Certificate, dated the
\n date of the Closing, certifying that the conditions specified in
\n Sections 4.1, 4.3 and 4.16 have been fulfilled.<\/p>\n
(b) Secretary’s Certificate of the Company. The Company shall
\n have delivered to such Purchaser a certificate certifying as to the
\n resolutions attached thereto and other corporate proceedings relating
\n to the authorization, execution and delivery of the Series 2000-A Notes
\n and this Agreement.<\/p>\n
(c) Officer’s Certificate of the Guarantors. Each Guarantor
\n shall have delivered to such Purchaser an Officer’s Certificate, dated
\n the date of the Closing, certifying that the conditions specified in
\n Sections 4.2 and 4.3 have been fulfilled.<\/p>\n
(d) Secretary’s Certificate of the Guarantors. Each Guarantor
\n shall have delivered to such Purchaser a certificate certifying as to
\n the resolutions attached thereto and other corporate proceedings
\n relating to the authorization, execution and delivery of the Guaranty
\n Agreement.<\/p>\n
Section 4.5. Guaranty Agreement. The Guaranty Agreement shall have been
\nduly authorized, executed and delivered by the Guarantors, shall constitute the
\nlegal, valid and binding contract and agreement enforceable against the
\nrespective Guarantors in accordance with its terms and such Purchaser shall have
\nreceived a true, correct and complete copy thereof.<\/p>\n
Section 4.6. Security Documents, Etc. The Security Documents shall have
\nbeen duly authorized, executed and delivered by the respective parties thereto,
\nshall constitute legal, valid and binding contracts and agreements enforceable
\nagainst the respective parties in accordance with their terms and such Purchaser
\nshall have received true, correct and complete copies of each thereof.<\/p>\n
Section 4.7. Filing. The Security Documents (together with any
\nfinancing statements) shall have been duly filed in such public offices as may
\nbe deemed necessary or appropriate by such Purchaser or such Purchaser’s special
\ncounsel in order to perfect the Liens granted or conveyed thereby.<\/p>\n
Section 4.8. Intercreditor Agreement. The Intercreditor Agreement
\nsubstantially in the form of Exhibit 3 attached hereto shall have been executed
\nand delivered by the respective parties thereto and shall be in full force and
\neffect and such Purchaser shall have received a true, correct and complete copy
\nthereof.<\/p>\n
A-5
\n 12<\/p>\n
Section 4.9. Insurance. Certificates of insurance evidencing the
\ninsurance policies required to be delivered pursuant to the Security Documents
\nshall be satisfactory in scope and form to such Purchaser and shall have been
\ndelivered to the Collateral Agent and such Purchaser.<\/p>\n
Section 4.10. Pledged Stock. The certificates representing the Pledged
\nStock (together with duly executed undated stock powers endorsed in blank) shall
\nhave been delivered to the Collateral Agent.<\/p>\n
Section 4.11. Opinions of Counsel. Such Purchaser shall have received
\nopinions in form and substance satisfactory to such Purchaser, dated the date of
\nthe Closing (a) from Brad Eastman, Esq., General Counsel of the Company,
\ncovering the matters set forth in Exhibit 4.11(a) and covering such other
\nmatters incident to the transactions contemplated hereby as such Purchaser or
\nsuch Purchaser’s counsel may reasonably request (and the Company hereby
\ninstructs its counsel to deliver such opinion to such Purchaser), (b) from Akin,
\nGump, Strauss, Hauer & Feld, L.L.P., Special Counsel of the Company, covering
\nthe matters set forth in Exhibit 4.11(b) and covering such other matters
\nincident to the transactions contemplated hereby as such Purchaser or such
\nPurchaser’s counsel may reasonably request (and the Company hereby instructs its
\ncounsel to deliver such opinion to such Purchaser), and (c) from Chapman and
\nCutler, the Purchasers’ special counsel in connection with such transactions,
\nsubstantially in the form set forth in Exhibit 4.11(c) and covering such other
\nmatters incident to such transactions as such Purchaser may reasonably request.<\/p>\n
Section 4.12. Purchase Permitted by Applicable Law, Etc. On the date of
\nClosing each purchase of Series 2000-A Notes shall (a) be permitted by the laws
\nand regulations of each jurisdiction to which each Purchaser is subject, without
\nrecourse to provisions (such as Section 1405(a)(8) of the New York Insurance
\nLaw) permitting limited investments by insurance companies without restriction
\nas to the character of the particular investment, (b) not violate any applicable
\nlaw or regulation (including, without limitation, Regulation T, U or X of the
\nBoard of Governors of the Federal Reserve System) and (c) not subject any
\nPurchaser to any tax, penalty or liability under or pursuant to any applicable
\nlaw or regulation, which law or regulation was not in effect on the date hereof.
\nIf requested by any Purchaser, such Purchaser shall have received an Officer’s
\nCertificate certifying as to such matters of fact as such Purchaser may
\nreasonably specify to enable such Purchaser to determine whether such purchase
\nis so permitted.<\/p>\n
Section 4.13. Related Transactions. The Company shall have consummated
\nthe sale of the entire principal amount of the Series 2000-A Notes scheduled to
\nbe sold on the date of Closing pursuant to this Agreement.<\/p>\n
Section 4.14. Payment of Special Counsel Fees. Without limiting the
\nprovisions of Section 15.1, the Company shall have paid on or before the
\nClosing, the reasonable fees, reasonable charges and reasonable disbursements of
\nthe Purchasers’ special counsel referred to in Section 4.11 to the extent
\nreflected in a statement of such counsel rendered to the Company at least one
\nBusiness Day prior to the Closing.<\/p>\n
Section 4.15. Private Placement Number. A Private Placement Number
\nissued by Standard & Poor’s CUSIP Service Bureau (in cooperation with the
\nSecurities Valuation Office of <\/p>\n
A-6
\n 13<\/p>\n
the National Association of Insurance Commissioners) shall have been obtained
\nfor each tranche of the Series 2000 Notes.<\/p>\n
Section 4.16. Changes in Corporate Structure. The Company shall not
\nhave changed its jurisdiction of incorporation or, except as reflected in
\nSchedule 4.16, been a party to any merger or consolidation and shall not have
\nsucceeded to all or any substantial part of the liabilities of any other entity,
\nat any time following the date of the most recent financial statements referred
\nto in Schedule 5.5.<\/p>\n
Section 4.17. Proceedings and Documents. All corporate and other
\nproceedings in connection with the transactions contemplated by this Agreement
\nand all documents and instruments incident to such transactions shall be
\nsatisfactory to such Purchaser and such Purchaser’s special counsel, and such
\nPurchaser and such Purchaser’s special counsel shall have received all such
\ncounterpart originals or certified or other copies of such documents as such
\nPurchaser or such Purchaser’s special counsel may reasonably request.<\/p>\n
Section 4.18. Conditions to Issuance of Additional Notes. The
\nobligations of the Additional Purchasers to purchase any Additional Notes shall
\nbe subject to the following conditions precedent, in addition to the conditions
\nspecified in the Supplement pursuant to which such Additional Notes may be
\nissued:<\/p>\n
(a) Compliance Certificate. A duly authorized Senior Financial
\n Officer shall execute and deliver to each Additional Purchaser and each
\n holder of Notes an Officer’s Certificate dated the date of issue of
\n such Series of Additional Notes stating that such officer has reviewed
\n the provisions of this Agreement (including any Supplements hereto) and
\n setting forth the information and computations (in sufficient detail)
\n required in order to establish whether the Company is in compliance
\n with the requirements of Section 10.2 on such date (based upon the
\n financial statements for the most recent fiscal quarter ended prior to
\n the date of such certificate).<\/p>\n
(b) Execution and Delivery of Supplement. The Company and
\n each such Additional Purchaser shall execute and deliver a Supplement
\n substantially in the form of Exhibit S hereto.<\/p>\n
(c) Representations of Additional Purchasers. Each Additional
\n Purchaser shall have confirmed in the Supplement that the
\n representations set forth in Section 6 are true with respect to such
\n Additional Purchaser on and as of the date of issue of the Additional
\n Notes.<\/p>\n
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.<\/p>\n
The Company represents and warrants to each Purchaser that:<\/p>\n
Section 5.1. Organization; Power and Authority. The Company is a
\ncorporation duly organized, validly existing and in good standing under the laws
\nof its jurisdiction of incorporation, and is duly qualified as a foreign
\ncorporation and is in good standing in each <\/p>\n
A-7
\n 14<\/p>\n
jurisdiction in which such qualification is required by law, other than those
\njurisdictions as to which the failure to be so qualified or in good standing
\ncould not, individually or in the aggregate, reasonably be expected to have a
\nMaterial Adverse Effect. The Company has the corporate power and authority to
\nown or hold under lease the properties it purports to own or hold under lease,
\nto transact the business it transacts and proposes to transact, to execute and
\ndeliver this Agreement, the Security Documents and the Notes and to perform the
\nprovisions hereof and thereof.<\/p>\n
Section 5.2. Authorization, Etc. This Agreement, the Security Documents
\nand the Notes have been duly authorized by all necessary corporate action on the
\npart of the Company, and this Agreement and the Security Documents constitute,
\nand upon execution and delivery thereof each Note will constitute, a legal,
\nvalid and binding obligation of the Company enforceable against the Company in
\naccordance with its terms, except as such enforceability may be limited by (i)
\napplicable bankruptcy, insolvency, reorganization, fraudulent conveyance,
\nmoratorium or other similar laws affecting the enforcement of creditors’ rights
\ngenerally and (ii) general principles of equity (regardless of whether such
\nenforceability is considered in a proceeding in equity or at law).<\/p>\n
Section 5.3. Disclosure. The Company, through its agents, Banc of
\nAmerica Securities LLC and Morgan Stanley Dean Witter, has delivered to each
\nPurchaser a copy of a Private Placement Memorandum, dated January, 2000 (the
\n“Memorandum”), relating to the transactions contemplated hereby. The Memorandum
\nfairly describes, in all material respects, the general nature of the business
\nand principal properties of the Company and its Subsidiaries. Except for any
\nresearch reports (if any) prepared by Banc of America Securities LLC and Morgan
\nStanley Dean Witter which may have been provided separately from the Memorandum
\nfor which no representation or warranty is being made by the Company, this
\nAgreement, the Security Documents, the Memorandum, the documents, certificates
\nor other writings delivered to the Purchasers by or on behalf of the Company in
\nconnection with the transactions contemplated hereby and the financial
\nstatements listed in Schedule 5.5, taken as a whole, do not contain any untrue
\nstatement of a material fact or omit to state any material fact necessary to
\nmake the statements therein not misleading in light of the circumstances under
\nwhich they were made. Since September 30, 1999, there has been no change in the
\nfinancial condition, operations, business or properties of the Company or any of
\nits Subsidiaries except changes that individually or in the aggregate could not
\nreasonably be expected to have a Material Adverse Effect. There is no fact known
\nto the Company that could reasonably be expected to have a Material Adverse
\nEffect that has not been set forth herein or in the Memorandum or in the other
\ndocuments, certificates and other writings delivered to each Purchaser by or on
\nbehalf of the Company specifically for use in connection with the transactions
\ncontemplated hereby.<\/p>\n
Section 5.4. Organization and Ownership of Shares of Subsidiaries;
\nAffiliates. (a) Schedule 5.4 contains (except as noted therein) complete and
\ncorrect lists of (i) the Company’s Subsidiaries, showing, as to each Subsidiary,
\nthe correct name thereof, the jurisdiction of its organization, and the
\npercentage of shares of each class of its capital stock or similar equity
\ninterests outstanding owned by the Company and each other Subsidiary, and all
\nother Investments of the Company and its Subsidiaries, and (ii) the Company’s
\ndirectors and senior officers.<\/p>\n
A-8
\n 15<\/p>\n
(b) All of the outstanding shares of capital stock or similar equity
\ninterests of each Subsidiary shown in Schedule 5.4 as being owned by the Company
\nand its Subsidiaries have been validly issued, are fully paid and nonassessable
\nand are owned by the Company or another Subsidiary free and clear of any Lien,
\nexcept for the Liens created by the Security Documents and as otherwise
\ndisclosed in Schedule 5.4.<\/p>\n
(c) Each Subsidiary identified in Schedule 5.4 is a corporation or
\nother legal entity duly organized, validly existing and in good standing under
\nthe laws of its jurisdiction of organization, and is duly qualified as a foreign
\ncorporation or other legal entity and is in good standing in each jurisdiction
\nin which such qualification is required by law, other than those jurisdictions
\nas to which the failure to be so qualified or in good standing could not,
\nindividually or in the aggregate, reasonably be expected to have a Material
\nAdverse Effect. Each such Subsidiary has the corporate or other power and
\nauthority to own or hold under lease the properties it purports to own or hold
\nunder lease and to transact the business it transacts and proposes to transact.<\/p>\n
(d) No Subsidiary is a party to, or otherwise subject to, any legal
\nrestriction or any agreement (other than this Agreement, the agreements listed
\non Schedule 5.4 and customary limitations imposed by corporate law statutes)
\nrestricting the ability of such Subsidiary to pay dividends out of profits or
\nmake any other similar distributions of profits to the Company or any of its
\nSubsidiaries that owns outstanding shares of capital stock or similar equity
\ninterests of such Subsidiary.<\/p>\n
Section 5.5. Financial Statements. The Company has delivered to each
\nPurchaser copies of the financial statements of the Company and its Subsidiaries
\nlisted on Schedule 5.5. All of said financial statements (including in each case
\nthe related schedules and notes) fairly present in all material respects the
\nconsolidated financial position of the Company and its Subsidiaries as of the
\nrespective dates specified in such financial statements and the consolidated
\nresults of their operations and cash flows for the respective periods so
\nspecified and have been prepared in accordance with GAAP consistently applied
\nthroughout the periods involved except as set forth in the notes thereto
\n(subject, in the case of any interim financial statements, to normal year-end
\nadjustments).<\/p>\n
Section 5.6. Compliance with Laws, Other Instruments, Etc. The
\nexecution, delivery and performance by the Company of this Agreement, the
\nSecurity Documents and the Notes will not (a) contravene, result in any breach
\nof, or constitute a default under, or result in the creation of any Lien not
\npermitted by Section 10.5 in respect of any property of the Company or any
\nSubsidiary under, any indenture, mortgage, deed of trust, loan, purchase or
\ncredit agreement, lease, corporate charter or by-laws, or any other agreement or
\ninstrument to which the Company or any Subsidiary is bound or by which the
\nCompany or any Subsidiary or any of their respective properties may be bound or
\naffected, (b) conflict with or result in a breach of any of the terms,
\nconditions or provisions of any order, judgment, decree, or ruling of any court,
\narbitrator or Governmental Authority applicable to the Company or any
\nSubsidiary, or (c) violate any provision of any statute or other rule or
\nregulation of any Governmental Authority applicable to the Company or any
\nSubsidiary, except for any such default, breach, contravention or violation
\nwhich could not reasonably be expected to have a Material Adverse Effect.<\/p>\n
A-9
\n 16<\/p>\n
Section 5.7. Governmental Authorizations, Etc. No consent, approval or
\nauthorization of, or registration, filing or declaration with, any Governmental
\nAuthority is required in connection with the execution, delivery or performance
\nby the Company of this Agreement, the Security Documents or the Notes, except
\nfor such filings as may be necessary to perfect or maintain the perfection of
\nthe Liens created by the Security Documents, certain other customary filing
\nrelated to future performance and routine governmental filings made in
\ncompliance with any applicable securities laws.<\/p>\n
Section 5.8. Litigation; Observance of Statutes and Orders. (a) There
\nare no actions, suits or proceedings pending or, to the knowledge of the
\nCompany, threatened against or affecting the Company or any Subsidiary or any
\nproperty of the Company or any Subsidiary in any court or before any arbitrator
\nor before or by any Governmental Authority that in any such case, individually
\nor in the aggregate, could reasonably be expected to have a Material Adverse
\nEffect.<\/p>\n
(b) Neither the Company nor any Subsidiary is in default under any term
\nof any agreement or instrument to which it is a party or by which it is bound,
\nor any order, judgment, decree or ruling of any court, arbitrator or
\nGovernmental Authority or is in violation of any applicable law, ordinance, rule
\nor regulation (including without limitation Environmental Laws) of any
\nGovernmental Authority, which default or violation, individually or in the
\naggregate, could reasonably be expected to have a Material Adverse Effect.<\/p>\n
Section 5.9. Taxes. The Company and its Subsidiaries have filed all
\nMaterial tax returns that are required to have been filed in any jurisdiction,
\nand have paid all taxes shown to be due and payable on such returns and all
\nother taxes and assessments levied upon them or their properties, assets, income
\nor franchises, to the extent such taxes and assessments have become due and
\npayable and before they have become delinquent, except for any taxes and
\nassessments (a) the amount of which is not individually or in the aggregate
\nMaterial or (b) the amount, applicability or validity of which is currently
\nbeing contested in good faith by appropriate proceedings and with respect to
\nwhich the Company or a Subsidiary, as the case may be, has established adequate
\nreserves in accordance with GAAP. The Company knows of no basis for any other
\ntax or assessment that could reasonably be expected to have a Material Adverse
\nEffect. The charges, accruals and reserves on the books of the Company and its
\nSubsidiaries in respect of federal, state or other taxes for all fiscal periods
\nare adequate, as calculated in accordance with GAAP.<\/p>\n
Section 5.10. Title to Property Leases. The Company and its
\nSubsidiaries have good and sufficient title to their respective properties which
\nthe Company and its Subsidiaries own or purport to own, including all such
\nproperties reflected in the most recent audited balance sheet referred to in
\nSection 5.5 or purported to have been acquired by the Company or any Subsidiary
\nafter said date (except as sold or otherwise disposed of in the ordinary course
\nof business), in each case free and clear of Liens prohibited by this Agreement.
\nAll leases that individually or in the aggregate are Material are valid and
\nsubsisting and are in full force and effect in all material respects.<\/p>\n
A-10
\n 17<\/p>\n
Section 5.11. Licenses, Permits, Etc. Except as disclosed in Schedule
\n5.11,<\/p>\n
(a) the Company and its Subsidiaries own or possess all
\n licenses, permits, franchises, authorizations, patents, copyrights,
\n service marks, trademarks and trade names, or rights thereto, that
\n individually or in the aggregate are Material, without known conflict
\n with the rights of others except for those conflicts, that,
\n individually or in the aggregate, would not have a Material Adverse
\n Effect;<\/p>\n
(b) to the best knowledge of the Company, no product of the
\n Company or any of its Subsidiaries infringes in any material respect
\n any license, permit, franchise, authorization, patent, copyright,
\n service mark, trademark, trade name or other right owned by any other
\n Person; and<\/p>\n
(c) to the best knowledge of the Company, there is no Material
\n violation by any Person of any right of the Company or any of its
\n Subsidiaries with respect to any patent, copyright, service mark,
\n trademark, trade name or other right owned or used by the Company or
\n any of its Subsidiaries.<\/p>\n
Section 5.12. Compliance with ERISA. (a) The Company and each ERISA
\nAffiliate have operated and administered each Plan in compliance with all
\napplicable laws except for such instances of noncompliance as have not resulted
\nin and could not reasonably be expected to result in a Material Adverse Effect.
\nNeither the Company nor any ERISA Affiliate has incurred any liability pursuant
\nto Title I or IV of ERISA or the penalty or excise tax provisions of the Code
\nrelating to employee benefit plans (as defined in Section 3 of ERISA), and no
\nevent, transaction or condition has occurred or exists that could reasonably be
\nexpected to result in the incurrence of any such liability by the Company or any
\nERISA Affiliate, or in the imposition of any Lien on any of the rights,
\nproperties or assets of the Company or any ERISA Affiliate, in either case
\npursuant to Title I or IV of ERISA or to such penalty or excise tax provisions
\nor to Section 401(a)(29) or 412 of the Code, other than such liabilities or
\nLiens as would not be individually or in the aggregate Material.<\/p>\n
(b) The present value of the aggregate benefit liabilities under each
\nof the Plans (other than Multiemployer Plans), determined as of the end of such
\nPlan’s most recently ended plan year on the basis of the actuarial assumptions
\nspecified for funding purposes in such Plan’s most recent actuarial valuation
\nreport, did not exceed the aggregate current value of the assets of such Plan
\nallocable to such benefit liabilities. The term “benefit liabilities” has the
\nmeaning specified in Section 4001 of ERISA and the terms “current value” and
\n“present value” have the meanings specified in Section 3 of ERISA.<\/p>\n
(c) The Company and its ERISA Affiliates have not incurred withdrawal
\nliabilities (and are not subject to contingent withdrawal liabilities) under
\nSection 4201 or 4204 of ERISA in respect of Multiemployer Plans that
\nindividually or in the aggregate are Material.<\/p>\n
(d) The expected post-retirement benefit obligation (determined as of
\nthe last day of the Company’s most recently ended fiscal year in accordance with
\nFinancial Accounting Standards Board Statement No. 106, without regard to
\nliabilities attributable to continuation coverage <\/p>\n
A-11
\n 18<\/p>\n
mandated by Section 4980B of the Code), if any, of the Company and its
\nSubsidiaries under any employee welfare benefit plan (as defined in Section 3 of
\nERISA), is not Material or has otherwise been disclosed in the most recent
\naudited consolidated financial statements of the Company and its Subsidiaries.<\/p>\n
(e) The execution and delivery of this Agreement and the Security
\nDocuments and the issuance and sale of the Notes hereunder will not involve any
\ntransaction that is subject to the prohibitions of Section 406 of ERISA or in
\nconnection with which a tax could be imposed pursuant to Section
\n4975(c)(1)(A)-(D) of the Code which in either event, could reasonably be
\nexpected to result in a Material Adverse Effect. The representation by the
\nCompany in the first sentence of this Section 5.12(e) is made in reliance upon
\nand subject to the accuracy of each Purchaser’s representation in Section 6.2 as
\nto the sources of the funds to be used to pay the purchase price of the Notes to
\nbe purchased by such Purchaser.<\/p>\n
Section 5.13. Private Offering by the Company. Neither the Company nor
\nanyone acting on its behalf has offered the Series 2000-A Notes or any similar
\nsecurities for sale to, or solicited any offer to buy any of the same from, or
\notherwise approached or negotiated in respect thereof with, any Person other
\nthan the Purchasers and not more than 65 other Institutional Investors, each of
\nwhich has been offered the Series 2000-A Notes in connection with a private
\nplacement for investment. Neither the Company nor anyone acting on its behalf
\nhas taken, or will take, any action that would subject the issuance or sale of
\nthe Series 2000-A Notes to the registration requirements of Section 5 of the
\nSecurities Act.<\/p>\n
Section 5.14. Use of Proceeds; Margin Regulations. The Company will
\napply the proceeds of the sale of the Series 2000-A Notes for general corporate
\npurposes of the Company and its Subsidiaries (including the repayment of Debt of
\nthe Company and its Subsidiaries and for acquisitions). No part of the proceeds
\nfrom the sale of the Series 2000-A Notes hereunder will be used, directly or
\nindirectly, for the purpose of buying or carrying any margin stock within the
\nmeaning of Regulation U of the Board of Governors of the Federal Reserve System
\n(12 CFR 221), or for the purpose of buying or carrying or trading in any
\nsecurities under such circumstances as to involve the Company in a violation of
\nRegulation X of said Board (12 CFR 224) or to involve any broker or dealer in a
\nviolation of Regulation T of said Board (12 CFR 220). Margin stock does not
\nconstitute more than 2% of the value of the consolidated assets of the Company
\nand its Subsidiaries and the Company does not have any present intention that
\nmargin stock will constitute more than 2% of the value of such assets. As used
\nin this Section, the terms “margin stock” and “purpose of buying or carrying”
\nshall have the meanings assigned to them in said Regulation U.<\/p>\n
Section 5.15. Existing Debt; Future Liens. (a) Except as described
\ntherein, Schedule 5.15 sets forth a complete and correct list of all outstanding
\nDebt of the Company and its Subsidiaries as of December 31, 1999, since which
\ndate there has been no Material change in the amounts, interest rates, sinking
\nfunds, installment payments or maturities of the Debt of the Company or its
\nSubsidiaries. Neither the Company nor any Subsidiary is in default and no waiver
\nof default is currently in effect, in the payment of any principal or interest
\non any Debt of the Company or such Subsidiary in an unpaid amount of $1,000,000
\nor more and no event or condition exists with respect to any Debt of the Company
\nor any Subsidiary in an unpaid amount of $1,000,000 or <\/p>\n
A-12
\n 19<\/p>\n
more that would permit (or that with notice or the lapse of time, or both, would
\npermit) one or more Persons to cause such Debt to become due and payable before
\nits stated maturity or before its regularly scheduled dates of payment.<\/p>\n
(b) Except as disclosed in Schedule 5.15, neither the Company nor any
\nSubsidiary has agreed or consented to cause or permit in the future (upon the
\nhappening of a contingency or otherwise) any of its property, whether now owned
\nor hereafter acquired, to be subject to a Lien not permitted by Section 10.5.<\/p>\n
Section 5.16. Foreign Assets Control Regulations, Etc. Neither the sale
\nof the Notes by the Company hereunder nor its use of the proceeds thereof will
\nviolate the Trading with the Enemy Act, as amended, or any of the foreign assets
\ncontrol regulations of the United States Treasury Department (31 CFR, Subtitle
\nB, Chapter V, as amended) or any enabling legislation or executive order
\nrelating thereto.<\/p>\n
Section 5.17. Status under Certain Statutes. Neither the Company nor
\nany Subsidiary is an “investment company” registered or required to be
\nregistered under the Investment Company Act of 1940, as amended, or is subject
\nto regulation under the Public Utility Holding Company Act of 1935, as amended,
\nthe ICC Termination Act of 1995, as amended, or the Federal Power Act, as
\namended.<\/p>\n
Section 5.18. Environmental Matters. Neither the Company nor any
\nSubsidiary has knowledge of any liability or has received any notice of any
\nliability, and no proceeding has been instituted against the Company or any of
\nits Subsidiaries or any of their respective real properties now or formerly
\nowned, leased or operated by any of them, alleging any violation of any
\nEnvironmental Laws, except, in each case, such as could not reasonably be
\nexpected to result in a Material Adverse Effect. Except as otherwise disclosed
\nto each Purchaser in writing:<\/p>\n
(a) neither the Company nor any Subsidiary has knowledge of
\n any facts which would give rise to any liability, public or private,
\n for violation of Environmental Laws or damage to the environment
\n emanating from, occurring on or in any way related to real properties
\n or to other assets now or formerly owned, leased or operated by any of
\n them or their use, except, in each case, such as could not reasonably
\n be expected to result in a Material Adverse Effect;<\/p>\n
(b) neither the Company nor any of its Subsidiaries has stored
\n any Hazardous Materials on real properties now or formerly owned,
\n leased or operated by any of them or has disposed of any Hazardous
\n Materials in each case in a manner contrary to any Environmental Laws
\n and in any manner that could reasonably be expected to result in a
\n Material Adverse Effect; and<\/p>\n
(c) to the knowledge of the Company and its Subsidiaries, all
\n buildings on all real properties now owned, leased or operated by the
\n Company or any of its Subsidiaries are in compliance with applicable
\n Environmental Laws, except where failure to comply could not reasonably
\n be expected to result in a Material Adverse Effect.<\/p>\n
A-13
\n 20<\/p>\n
Section 5.19. Filing and Recordation. On the date of Closing, all UCC
\nfinancing statements and all Security Documents have been duly filed in all
\npublic offices wherein such filings were made to perfect the Lien of the
\nsecurity agreement securing the Debt outstanding under the Bank Credit
\nAgreement. The Security Documents create a valid Lien in the collateral
\ndescribed therein.<\/p>\n
Section 5.20. Other Representations and Warranties. The representations
\nand warranties of the Company set forth in the Security Documents are true and
\ncorrect as of the date of Closing and are incorporated herein by reference with
\nthe same force and effect as though set forth herein in full.<\/p>\n
SECTION 6. REPRESENTATIONS OF THE PURCHASER.<\/p>\n
Section 6.1. Purchase for Investment. Each Purchaser represents that it
\nis purchasing the Series 2000-A Notes for its own account or for one or more
\nseparate accounts maintained by it or for the account of one or more pension or
\ntrust funds and not with a view to the distribution thereof, provided that the
\ndisposition of such Purchaser’s or such pension or trust funds’ property shall
\nat all times be within such Purchaser’s or such pension or trust funds’ control.
\nEach Purchaser understands that the Series 2000-A Notes have not been registered
\nunder the Securities Act and may be resold only if registered pursuant to the
\nprovisions of the Securities Act or if an exemption from registration is
\navailable, except under circumstances where neither such registration nor such
\nan exemption is required by law, and that the Company is not required to
\nregister the Series 2000-A Notes.<\/p>\n
Section 6.2. Source of Funds. Each Purchaser represents that at least
\none of the following statements is an accurate representation as to each source
\nof funds (a “Source”) to be used by it to pay the purchase price of the Series
\n2000-A Notes to be purchased by it hereunder:<\/p>\n
(a) the Source is an “insurance company general account”
\n within the meaning of Department of Labor Prohibited Transaction
\n Exemption (“PTE”) 95-60 (issued July 12, 1995) and there is no employee
\n benefit plan, treating as a single plan all plans maintained by the
\n same employer or employee organization, with respect to which the
\n amount of the general account reserves and liabilities for all
\n contracts held by or on behalf of such plan, exceeds ten percent (10%)
\n of the total reserves and liabilities of such general account
\n (exclusive of separate account liabilities) plus surplus, as set forth
\n in the NAIC Annual Statement for such Purchaser most recently filed
\n with such Purchaser’s state of domicile; or<\/p>\n
(b) the Source is either (i) an insurance company pooled
\n separate account, within the meaning of PTE 90-1 (issued January 29,
\n 1990), or (ii) a bank collective investment fund, within the meaning of
\n the PTE 91-38 (issued July 12, 1991) and, except as such Purchaser
\n prior to the execution and delivery of this Agreement has disclosed to
\n the Company in writing pursuant to this paragraph (b), no employee
\n benefit plan or group of plans maintained by the same employer or
\n employee organization beneficially owns more than 10% of all assets
\n allocated to such pooled separate account or collective investment
\n fund; or<\/p>\n
A-14
\n 21<\/p>\n
(c) the Source constitutes assets of an “investment fund”
\n (within the meaning of Part V of the QPAM Exemption) managed by a
\n “qualified professional asset manager” or “QPAM” (within the meaning of
\n Part V of the QPAM Exemption), no employee benefit plan’s assets that
\n are included in such investment fund, when combined with the assets of
\n all other employee benefit plans established or maintained by the same
\n employer or by an affiliate (within the meaning of Section V(c)(1) of
\n the QPAM Exemption) of such employer or by the same employee
\n organization and managed by such QPAM, exceed 20% of the total client
\n assets managed by such QPAM, the conditions of Part I(c) and (g) of the
\n QPAM Exemption are satisfied, neither the QPAM nor a person controlling
\n or controlled by the QPAM (applying the definition of “control” in
\n Section V(e) of the QPAM Exemption) owns a 5% or more interest in the
\n Company and (i) the identity of such QPAM and (ii) the names of all
\n employee benefit plans whose assets are included in such investment
\n fund have been disclosed to the Company in writing pursuant to this
\n paragraph (c) prior to the execution and delivery of this Agreement; or<\/p>\n
(d) the Source is a governmental plan; or<\/p>\n
(e) the Source is one or more employee benefit plans, or a
\n separate account or trust fund comprised of one or more employee
\n benefit plans, each of which prior to the execution and delivery of
\n this Agreement has been identified to the Company in writing pursuant
\n to this paragraph (e); or<\/p>\n
(f) the Source does not include assets of any employee benefit
\n plan, other than a plan exempt from the coverage of ERISA; or<\/p>\n
(g) the Source is an insurance company separate account
\n maintained solely in connection with the fixed contractual obligations
\n of the insurance company under which the amounts payable, or credited,
\n to any employee benefit plan (or its related trust) and to any
\n participant or beneficiary of such plan (including any annuitant) are
\n not affected in any manner by the investment performance of the
\n separate account.<\/p>\n
If any Purchaser or any Additional Purchaser or any subsequent transferee of the
\nNotes indicates that such Purchaser or any Additional Purchaser or such
\ntransferee is relying on any representation contained in paragraph (b), (c) or
\n(e) above, the Company shall deliver on the date of issuance of such Notes and
\non the date of any applicable transfer a certificate, which shall either state
\nthat (i) it is neither a party in interest nor a “disqualified person” (as
\ndefined in Section 4975(e)(2) of the Code), with respect to any plan identified
\npursuant to paragraphs (b) or (e) above, or (ii) with respect to any plan,
\nidentified pursuant to paragraph (c) above, neither it nor any “affiliate” (as
\ndefined in Section V(c) of the QPAM Exemption) has at such time, and during the
\nimmediately preceding one year, exercised the authority to appoint or terminate
\nsaid QPAM as manager of any plan identified in writing pursuant to paragraph (c)
\nabove or to negotiate the terms of said QPAM’s management agreement on behalf of
\nany such identified plan. As used in this Section 6.2, the terms “employee
\nbenefit plan”, “governmental plan”, “party in interest” and “separate account”
\nshall have the respective meanings assigned to such terms in Section 3 of ERISA.<\/p>\n
A-15
\n 22<\/p>\n
Section 6.3. Disclosure of Information. Each Purchaser has received all
\nthe information it considers necessary or appropriate for deciding whether to
\npurchase the Series 2000-A Notes. Each Purchaser further represents that it has
\nhad an opportunity to ask questions and receive answers from the Company
\nregarding the terms and conditions of the offering of the Series 2000-A Notes
\nand the business, properties, prospects and financial condition of the Company.
\nThe foregoing, however, does not limit or modify the representations and
\nwarranties of the Company in Section 5 of this Agreement or the rights of the
\nPurchasers to rely thereon.<\/p>\n
Section 6.4. Investment Experience. Each Purchaser acknowledges that it
\nis able to fend for itself, can bear the risk of its investment, and has such
\nknowledge and experience in financial or business matters that it is capable of
\nevaluating the merits and risks of the investment in the Series 2000-A Notes.<\/p>\n
Section 6.5. Accredited Investor. Each Purchaser represents that it is
\nan “accredited investor” within the meaning of the Securities and Exchange
\nCommission Rule 501 of Regulation D, as presently in effect.<\/p>\n
SECTION 7. INFORMATION AS TO COMPANY.<\/p>\n
Section 7.1. Financial and Business Information. The Company shall
\ndeliver to each holder of Notes that is an Institutional Investor (other than a
\nCompetitor of the Company or any Subsidiary so long as no Event of Default shall
\nhave occurred and be continuing):<\/p>\n
(a) Quarterly Statements — within 60 days after the end of
\n each quarterly fiscal period in each fiscal year of the Company (other
\n than the last quarterly fiscal period of each such fiscal year),
\n duplicate copies of,<\/p>\n
(i) a consolidated balance sheet of the Company and
\n its Subsidiaries as at the end of such quarter, and<\/p>\n
(ii) consolidated statements of income, changes in
\n shareholders’ equity and cash flows of the Company and its
\n Subsidiaries, for such quarter and (in the case of the second
\n and third quarters) for the portion of the fiscal year ending
\n with such quarter,<\/p>\n
setting forth in each case in comparative form the figures for the
\n corresponding periods in the previous fiscal year, all in reasonable
\n detail, prepared in accordance with GAAP applicable to quarterly
\n financial statements generally, and certified by a Senior Financial
\n Officer as fairly presenting, in all material respects, the financial
\n position of the companies being reported on and their results of
\n operations and cash flows, subject to changes resulting from normal,
\n recurring year-end adjustments, provided that delivery within the time
\n period specified above of copies of the Company’s Quarterly Report on
\n Form 10-Q prepared in compliance with the requirements therefor and
\n filed with the Securities and Exchange Commission shall be deemed to
\n satisfy the requirements of this Section 7.1(a);<\/p>\n
A-16
\n 23<\/p>\n
(b) Annual Statements — within 120 days after the end of each
\n fiscal year of the Company, duplicate copies of,<\/p>\n
(i) a consolidated balance sheet of the Company and
\n its Subsidiaries, as at the end of such year, and<\/p>\n
(ii) consolidated statements of income, changes in
\n shareholders’ equity and cash flows of the Company and its
\n Subsidiaries, for such year,<\/p>\n
setting forth in each case in comparative form the figures for the
\n previous fiscal year, all in reasonable detail, prepared in accordance
\n with GAAP, and accompanied by an opinion thereon of independent
\n certified public accountants of recognized national standing, which
\n opinion shall state that such financial statements present fairly, in
\n all material respects, the financial position of the companies being
\n reported upon and their results of operations and cash flows and have
\n been prepared in conformity with GAAP, and that the examination of such
\n accountants in connection with such financial statements has been made
\n in accordance with generally accepted auditing standards, and that such
\n audit provides a reasonable basis for such opinion in the
\n circumstances, provided that the delivery within the time period
\n specified above of the Company’s Annual Report on Form 10-K for such
\n fiscal year (together with the Company’s annual report to shareholders,
\n if any, prepared pursuant to Rule 14a-3 under the Exchange Act)
\n prepared in accordance with the requirements therefor and filed with
\n the Securities and Exchange Commission shall be deemed to satisfy the
\n requirements of this Section 7.1(b);<\/p>\n
(c) SEC and Other Reports — promptly upon their becoming
\n available, one copy of (i) each financial statement, report, notice or
\n proxy statement sent by the Company or any Subsidiary to public
\n securities holders generally, and (ii) each regular or periodic report,
\n each registration statement (without exhibits except as expressly
\n requested by such holder), and each prospectus and all amendments
\n thereto filed by the Company or any Subsidiary with the Securities and
\n Exchange Commission containing information of a financial nature and of
\n all press releases and other statements made available generally by the
\n Company or any Subsidiary to the public concerning developments that
\n are Material;<\/p>\n
(d) Notice of Default or Event of Default — promptly, and in
\n any event within ten Business Days after a Responsible Officer becomes
\n aware of the existence of any Default or Event of Default or that any
\n Person has given any notice or taken any action with respect to a
\n claimed default hereunder or that any Person has given any notice or
\n taken any action with respect to a claimed default of the type referred
\n to in Section 11(h), a written notice specifying the nature and period
\n of existence thereof and what action the Company is taking or proposes
\n to take with respect thereto;<\/p>\n
(e) ERISA Matters — promptly, and in any event within ten
\n Business Days after a Responsible Officer becomes aware of any of the
\n following, a written notice setting forth the nature thereof and the
\n action, if any, that the Company or an ERISA Affiliate proposes to take
\n with respect thereto:<\/p>\n
A-17
\n 24<\/p>\n
(i) with respect to any Plan, any reportable event,
\n as defined in Section 4043(b) of ERISA and the regulations
\n thereunder, for which notice thereof has not been waived
\n pursuant to such regulations as in effect on the date thereof;
\n or<\/p>\n
(ii) the taking by the PBGC of steps to institute, or
\n the threatening by the PBGC of the institution of, proceedings
\n under Section 4042 of ERISA for the termination of, or the
\n appointment of a trustee to administer, any Plan, or the
\n receipt by the Company or any ERISA Affiliate of a notice from
\n a Multiemployer Plan that such action has been taken by the
\n PBGC with respect to such Multiemployer Plan; or<\/p>\n
(iii) the incurrence of any liability by the Company
\n or any ERISA Affiliate pursuant to Title I or IV of ERISA or
\n the imposition of a penalty or excise tax under the provisions
\n of the Code relating to employee benefit plans, or the
\n imposition of any Lien on any of the rights, properties or
\n assets of the Company or any ERISA Affiliate pursuant to Title
\n I or IV of ERISA or such penalty or excise tax provisions, if
\n such liability or Lien, taken together with any other such
\n liabilities or Liens then existing, could reasonably be
\n expected to have a Material Adverse Effect;<\/p>\n
(f) Notices from Governmental Authority — promptly, and in
\n any event within 30 days of receipt thereof, copies of any notice to
\n the Company or any Subsidiary from any federal or state Governmental
\n Authority relating to any order, ruling, statute or other law or
\n regulation that could reasonably be expected to have a Material Adverse
\n Effect;<\/p>\n
(g) Supplements — promptly and in any event within 10
\n Business Days after the execution and delivery of any Supplement, a
\n copy thereof;<\/p>\n
(h) Bank Credit Agreement — so long as any Event of Default
\n shall exist under the Bank Credit Agreement, the Company shall furnish
\n copies of any written notices or certificates furnished by the Company
\n or any Subsidiary to the Bank Lenders not more than 5 Business Days
\n following delivery to the Bank Lenders; and<\/p>\n
(i) Requested Information — with reasonable promptness, such
\n other data and information relating to the business, operations,
\n affairs, financial condition, assets or properties of the Company or
\n any of its Subsidiaries or relating to the ability of the Company to
\n perform its obligations hereunder and under the Notes as from time to
\n time may be reasonably requested by any such holder of Notes.<\/p>\n
Section 7.2. Officer’s Certificate. Each set of financial statements
\ndelivered to a holder of Notes pursuant to Section 7.1(a) or Section 7.1(b)
\nhereof shall be accompanied by a certificate of a Senior Financial Officer
\nsetting forth:<\/p>\n
A-18
\n 25<\/p>\n
(a) Covenant Compliance — the information (including detailed
\n calculations) required in order to establish whether the Company was in
\n compliance with the requirements of Section 10.1 through Section 10.4,
\n Section 10.5(l) and Section 10.7 hereof, inclusive, during the
\n quarterly or annual period covered by the statements then being
\n furnished (including with respect to each such Section, where
\n applicable, the calculations of the maximum or minimum amount, ratio or
\n percentage, as the case may be, permissible under the terms of such
\n Sections, and the calculation of the amount, ratio or percentage then
\n in existence, including, without limitation, a reasonably detailed
\n calculation of Consolidated Proforma Operating Cash Flow for such
\n period); and<\/p>\n
(b) Event of Default — a statement that such officer has
\n reviewed the relevant terms hereof and has made, or caused to be made,
\n under his or her supervision, a review of the transactions and
\n conditions of the Company and its Subsidiaries from the beginning of
\n the quarterly or annual period covered by the statements then being
\n furnished to the date of the certificate and that such review shall not
\n have disclosed the existence during such period of any condition or
\n event that constitutes a Default or an Event of Default or, if any such
\n condition or event existed or exists (including, without limitation,
\n any such event or condition resulting from the failure of the Company
\n or any Subsidiary to comply with any Environmental Law), specifying the
\n nature and period of existence thereof and what action the Company
\n shall have taken or proposes to take with respect thereto.<\/p>\n
Section 7.3. Inspection. The Company shall permit the representatives
\nof each holder of Notes that is an Institutional Investor (other than a
\nCompetitor of the Company or any Subsidiary so long as no Event of Default shall
\nhave occurred and be continuing):<\/p>\n
(a) No Default — if no Default or Event of Default then
\n exists, at the expense of such holder and upon reasonable prior notice
\n to the Company, to visit the principal executive office of the Company,
\n to discuss the affairs, finances and accounts of the Company and its
\n Subsidiaries with the Company’s officers, and (with the consent of the
\n Company, which consent will not be unreasonably withheld) its
\n independent public accountants, and (with the consent of the Company,
\n which consent will not be unreasonably withheld) to visit the other
\n offices and properties of the Company and each Subsidiary, all at such
\n reasonable times during business hours and as often as may be
\n reasonably requested in writing; and<\/p>\n
(b) Default — if a Default or Event of Default then exists,
\n at the expense of the Company and upon reasonable prior notice, to
\n visit and inspect any of the offices or properties of the Company or
\n any Subsidiary, to examine all their respective books of account,
\n records, reports and other papers, to make copies and extracts
\n therefrom, and to discuss their respective affairs, finances and
\n accounts with their respective officers and independent public
\n accountants (and by this provision the Company authorizes said
\n accountants to discuss the affairs, finances and accounts of the
\n Company and its Subsidiaries), all at such reasonable times during
\n business hours and as often as may be reasonably requested.<\/p>\n
A-19
\n 26<\/p>\n
SECTION 8. PREPAYMENT OF THE NOTES.<\/p>\n
Section 8.1. Required Prepayments. (a) The entire principal amount of
\nthe Tranche 1 Notes shall become due and payable on March 1, 2005.<\/p>\n
(b) The entire principal amount of the Tranche 2 Notes shall become due
\nand payable on March 1, 2007.<\/p>\n
(c) The entire principal amount of the Tranche 3 Notes shall become due
\nand payable on March 1, 2010.<\/p>\n
Section 8.2. Optional Prepayments with Make-Whole Amount. The Company
\nmay, at its option, upon notice as provided below, prepay at any time all, or
\nfrom time to time any part of, the Notes of any Series, in an amount not less
\nthan 10% of the aggregate principal amount of the Notes of such Series then
\noutstanding in the case of a partial prepayment, at 100% of the principal amount
\nso prepaid, together with interest accrued thereon to the date of such
\nprepayment, plus the Make-Whole Amount determined for the prepayment date with
\nrespect to such principal amount of each Note of the applicable Series then
\noutstanding. The Company will give each holder of Notes of the Series to be
\nprepaid written notice of each optional prepayment under this Section 8.2 not
\nless than 30 days and not more than 60 days prior to the date fixed for such
\nprepayment. Each such notice shall specify such date, the aggregate principal
\namount of the Notes and each Series of Notes to be prepaid on such date, the
\nprincipal amount of each Note held by such holder to be prepaid (determined in
\naccordance with Section 8.3), and the interest to be paid on the prepayment date
\nwith respect to such principal amount being prepaid, and shall be accompanied by
\na certificate of a Senior Financial Officer as to the estimated Make-Whole
\nAmount due in connection with such prepayment (calculated as if the date of such
\nnotice were the date of the prepayment), setting forth the details of such
\ncomputation. Two Business Days prior to such prepayment, the Company shall
\ndeliver to each holder of Notes of the Series to be prepaid a certificate of a
\nSenior Financial Officer specifying the calculation of such Make-Whole Amount as
\nof the specified prepayment date.<\/p>\n
Section 8.3. Allocation of Partial Prepayments. In the case of each
\npartial prepayment of the Notes pursuant to the provisions of Section 8.2, the
\nprincipal amount of the Notes of the Series to be prepaid shall be allocated
\namong all of the Notes of such Series at the time outstanding in proportion, as
\nnearly as practicable, to the respective unpaid principal amounts thereof. All
\nregularly scheduled partial prepayments made with respect to any Additional
\nSeries of Notes pursuant to any Supplement shall be allocated as provided
\ntherein.<\/p>\n
Section 8.4. Maturity; Surrender, Etc. In the case of each prepayment
\nof Notes pursuant to this Section 8, the principal amount of each Note to be
\nprepaid shall mature and become due and payable on the date fixed for such
\nprepayment, together with interest on such principal amount accrued to such date
\nand the applicable Make-Whole Amount, if any. From and after such date, unless
\nthe Company shall fail to pay such principal amount when so due and payable,
\ntogether with the interest and Make-Whole Amount, if any, as aforesaid, interest
\non such principal amount shall cease to accrue. Any Note paid or prepaid in full
\nshall be surrendered to<\/p>\n
A-20
\n 27<\/p>\n
the Company and cancelled and shall not be reissued, and no Note shall be issued
\nin lieu of any prepaid principal amount of any Note.<\/p>\n
Section 8.5. Purchase of Notes. The Company will not and will use
\nreasonable commercial efforts to not permit any Affiliate to purchase, redeem,
\nprepay or otherwise acquire, directly or indirectly, any of the outstanding
\nNotes except upon the payment or prepayment of the Notes in accordance with the
\nterms of this Agreement (including any Supplement hereto) and the Notes. The
\nCompany will promptly cancel all Notes acquired by it or any Subsidiary pursuant
\nto any payment, prepayment or purchase of Notes pursuant to any provision of
\nthis Agreement and no Notes may be issued in substitution or exchange for any
\nsuch Notes.<\/p>\n
Section 8.6. Make-Whole Amount for Series 2000-A Notes. The term
\n“Make-Whole Amount” means, with respect to a Series 2000-A Note of any Tranche,
\nan amount equal to the excess, if any, of the Discounted Value of the Remaining
\nScheduled Payments with respect to the Called Principal of the Series 2000-A
\nNote of such Tranche over the amount of such Called Principal, provided that the
\nMake-Whole Amount may in no event be less than zero. For the purposes of
\ndetermining the Make-Whole Amount, the following terms have the following
\nmeanings:<\/p>\n
“Called Principal” means, with respect to a Series 2000-A Note
\n of any Tranche, the principal of the Series 2000-A Note of such Tranche
\n that is to be prepaid pursuant to Section 8.2 or has become or is
\n declared to be immediately due and payable pursuant to Section 12.1, as
\n the context requires.<\/p>\n
“Discounted Value” means, with respect to the Called Principal
\n of a Series 2000-A Note of any Tranche, the amount obtained by
\n discounting all Remaining Scheduled Payments with respect to such
\n Called Principal from their respective scheduled due dates to the
\n Settlement Date with respect to such Called Principal, in accordance
\n with accepted financial practice and at a discount factor (applied on
\n the same periodic basis as that on which interest on the Series 2000-A
\n Note of such Tranche is payable) equal to the Reinvestment Yield with
\n respect to such Called Principal.<\/p>\n
“Reinvestment Yield” means, with respect to the Called
\n Principal of a Series 2000-A Note of any Tranche, 0.50% plus the yield
\n to maturity implied by (i) the yields reported, as of 10:00 A.M. (New
\n York City time) on the second Business Day preceding the Settlement
\n Date with respect to such Called Principal, on the display designated
\n as “PX-1” on the Bloomberg Financial Market Screen (or such other
\n display as may replace “PX-1” on the Bloomberg Financial Market Screen)
\n for actively traded U.S. Treasury securities having a maturity equal to
\n the Remaining Average Life of such Called Principal as of such
\n Settlement Date, or (ii) if such yields are not reported as of such
\n time or the yields reported as of such time are not ascertainable, the
\n Treasury Constant Maturity Series Yields reported, for the latest day
\n for which such yields have been so reported as of the second Business
\n Day preceding the Settlement Date with respect to such Called
\n Principal, in Federal Reserve Statistical Release H.15 (519) (or any
\n comparable successor publication) for actively traded U.S. Treasury
\n securities having a constant maturity equal to the Remaining Average
\n Life of such Called Principal as of<\/p>\n
A-21
\n 28<\/p>\n
such Settlement Date. Such implied yield will be determined, if
\n necessary, by (a) converting U.S. Treasury bill quotations to
\n bond-equivalent yields in accordance with accepted financial practice
\n and (b) interpolating linearly on a straight line basis between (1) the
\n actively traded U.S. Treasury security with the maturity closest to and
\n greater than the Remaining Average Life and (2) the actively traded
\n U.S. Treasury security with the maturity closest to and less than the
\n Remaining Average Life.<\/p>\n
“Remaining Average Life” means, with respect to any Called
\n Principal, the number of years (calculated to the nearest one-twelfth
\n year) obtained by dividing (i) such Called Principal into (ii) the sum
\n of the products obtained by multiplying (a) the principal component of
\n each Remaining Scheduled Payment with respect to such Called Principal
\n by (b) the number of years (calculated to the nearest one-twelfth year)
\n that will elapse between the Settlement Date with respect to such
\n Called Principal and the scheduled due date of such Remaining Scheduled
\n Payment.<\/p>\n
“Remaining Scheduled Payments” means, with respect to the
\n Called Principal of a Series 2000-A Note of any Tranche, all payments
\n of such Called Principal and interest thereon that would be due after
\n the Settlement Date with respect to such Called Principal if no payment
\n of such Called Principal were made prior to its scheduled due date,
\n provided that if such Settlement Date is not a date on which interest
\n payments are due to be made under the terms of the Series 2000-A Note
\n of such Tranche, then the amount of the next succeeding scheduled
\n interest payment will be reduced by the amount of interest accrued to
\n such Settlement Date and required to be paid on such Settlement Date
\n pursuant to Section 8.2 or 12.1.<\/p>\n
“Settlement Date” means, with respect to the Called Principal
\n of a Series 2000-A Note of any Tranche, the date on which such Called
\n Principal is to be prepaid pursuant to Section 8.2 or has become or is
\n declared to be immediately due and payable pursuant to Section 12.1, as
\n the context requires.<\/p>\n
Section 8.7. Change in Control.<\/p>\n
(a) Notice of Change in Control or Control Event. The Company will,
\nwithin fifteen Business Days after any Responsible Officer has knowledge of the
\noccurrence of any Change in Control or Control Event (subject in the case of any
\nControl Event to contractual limitations on disclosure and disclosure
\nlimitations imposed by applicable securities laws), give written notice of such
\nChange in Control or Control Event to each holder of Notes unless notice in
\nrespect of such Change in Control (or the Change in Control contemplated by such
\nControl Event) shall have been given pursuant to subparagraph (b) of this
\nSection 8.7. If a Change in Control has occurred, such notice shall contain and
\nconstitute an offer to prepay Notes as described in subparagraph (c) of this
\nSection 8.7 and shall be accompanied by the certificate described in
\nsubparagraph (g) of this Section 8.7.<\/p>\n
(b) Condition to Company Action. The Company will not take any action
\nthat consummates or finalizes a Change in Control unless (i) to the extent the
\ngiving of such advance notice is reasonably within its control, at least 30 days
\nprior to such action it shall have given to<\/p>\n
A-22
\n 29<\/p>\n
each holder of Notes written notice containing and constituting an offer to
\nprepay Notes as described in subparagraph (c) of this Section 8.7, accompanied
\nby the certificate described in subparagraph (g) of this Section 8.7, and (ii)
\ncontemporaneously with such action, it prepays all Notes required to be prepaid
\nin accordance with this Section 8.7.<\/p>\n
(c) Offer to Prepay Notes. The offer to prepay Notes contemplated by
\nsubparagraphs (a) and (b) of this Section 8.7 shall be an offer to prepay, in
\naccordance with and subject to this Section 8.7, all, but not less than all, the
\nNotes held by each holder (in this case only, “holder” in respect of any Note
\nregistered in the name of a nominee for a disclosed beneficial owner shall mean
\nsuch beneficial owner) on a date specified in such offer (the “Proposed
\nPrepayment Date”). If such Proposed Prepayment Date is in connection with an
\noffer contemplated by subparagraph (a) of this Section 8.7, such date shall be
\nnot less than 30 days and not more than 60 days after the date of such offer (if
\nthe Proposed Prepayment Date shall not be specified in such offer, the Proposed
\nPrepayment Date shall be the 30th day after the date of such offer).<\/p>\n
(d) Acceptance. A holder of Notes may accept the offer to prepay made
\npursuant to this Section 8.7 by causing a notice of such acceptance to be
\ndelivered to the Company at least 15 days prior to the Proposed Prepayment Date.
\nA failure by a holder of Notes to respond to an offer to prepay made pursuant to
\nthis Section 8.7 shall be deemed to constitute a rejection of such offer by such
\nholder.<\/p>\n
(e) Prepayment. Prepayment of the Notes to be prepaid pursuant to this
\nSection 8.7 shall be at 100% of the principal amount of such Notes together with
\ninterest on such Notes accrued to the date of prepayment. The prepayment shall
\nbe made on the Proposed Prepayment Date except as provided in subparagraph (f)
\nof this Section 8.7.<\/p>\n
(f) Deferral Pending Change in Control. The obligation of the Company
\nto prepay Notes pursuant to the offers required by subparagraph (b) and accepted
\nin accordance with subparagraph (d) of this Section 8.7 is subject to the
\noccurrence of the Change in Control in respect of which such offers and
\nacceptances shall have been made. In the event that such Change in Control does
\nnot occur on the Proposed Prepayment Date in respect thereof, the prepayment
\nshall be deferred until, and shall be made on the date on which, such Change in
\nControl occurs. The Company shall keep each holder of Notes reasonably and
\ntimely informed of (i) any such deferral of the date of prepayment, (ii) the
\ndate on which such Change in Control and the prepayment are expected to occur,
\nand (iii) any determination by the Company that efforts to effect such Change in
\nControl have ceased or been abandoned (in which case the offers and acceptances
\nmade pursuant to this Section 8.7 in respect of such Change in Control shall be
\ndeemed rescinded).<\/p>\n
(g) Officer’s Certificate. Each offer to prepay the Notes pursuant to
\nthis Section 8.7 shall be accompanied by a certificate, executed by a Senior
\nFinancial Officer of the Company and dated the date of such offer, specifying:
\n(i) the Proposed Prepayment Date; (ii) that such offer is made pursuant to this
\nSection 8.7; (iii) the principal amount of each Note offered to be prepaid; (iv)
\nthe interest that would be due on each Note offered to be prepaid, accrued to
\nthe Proposed <\/p>\n
A-23
\n 30<\/p>\n
Prepayment Date; (v) that the conditions of this Section 8.7 have been
\nfulfilled; and (vi) in reasonable detail, the nature and date or proposed date
\nof the Change in Control.<\/p>\n
(h) “Change in Control” Defined. “Change in Control” means each and
\nevery issue, sale or other disposition of shares of stock of the Company which
\nresults in any person (as such term is used in Section 13(d) and Section
\n14(d)(2) of the Exchange Act) or related persons constituting a group (as such
\nterm is used in Rule 13d-5 under the Exchange Act) (herein, an “Acquiring
\nPerson”) becoming the “beneficial owners” (as such term is used in Rule 13d-3
\nunder the Exchange Act as in effect on the date of the Closing), directly or
\nindirectly, of more than 50% (by total voting power) of the issued and
\noutstanding capital stock of the Company which is entitled to vote in the
\nelection of the members of the Company’s board of directors.<\/p>\n
(i) “Control Event” Defined. “Control Event” means:<\/p>\n
(i) the execution by the Company or any of its Subsidiaries or
\n Affiliates of any agreement or letter of intent with respect to any
\n proposed transaction or event or series of transactions or events
\n which, individually or in the aggregate, may reasonably be expected to
\n result in a Change in Control,<\/p>\n
(ii) the execution of any written agreement which, when fully
\n performed by the parties thereto, would result in a Change in Control,
\n or<\/p>\n
(iii) at any time after a public offering of equity securities
\n of the Company, the making of any written offer by any Acquiring Person
\n to the holders of the common stock of the Company, which offer, if
\n accepted by the requisite number of holders, would result in a Change
\n in Control.<\/p>\n
SECTION 9. AFFIRMATIVE COVENANTS.<\/p>\n
The Company covenants that so long as any of the Notes are outstanding:<\/p>\n
Section 9.1. Compliance with Law. The Company will, and will cause each
\nof its Subsidiaries to, comply with all laws, ordinances or governmental rules
\nor regulations to which each of them is subject, including, without limitation,
\nEnvironmental Laws, and will obtain and maintain in effect all licenses,
\ncertificates, permits, franchises and other governmental authorizations
\nnecessary to the ownership of their respective properties or to the conduct of
\ntheir respective businesses, in each case to the extent necessary to ensure that
\nnon-compliance with such laws, ordinances or governmental rules or regulations
\nor failures to obtain or maintain in effect such licenses, certificates,
\npermits, franchises and other governmental authorizations could not,
\nindividually or in the aggregate, reasonably be expected to have a Material
\nAdverse Effect.<\/p>\n
Section 9.2. Insurance. The Company will, and will cause each of its
\nSubsidiaries to, maintain, with financially sound and reputable insurers,
\ninsurance with respect to their respective properties and businesses against
\nsuch casualties and contingencies, of such types, on such terms and in such
\namounts (including deductibles, co-insurance and self-insurance, if adequate
\nreserves <\/p>\n
A-24
\n 31<\/p>\n
are maintained with respect thereto) as is customary in the case of entities of
\nestablished reputations engaged in the same or a similar business and similarly
\nsituated.<\/p>\n
Section 9.3. Maintenance of Properties. The Company will, and will
\ncause each of its Subsidiaries to, maintain and keep, or cause to be maintained
\nand kept, their respective properties in good repair, working order and
\ncondition (other than ordinary wear and tear), so that the business carried on
\nin connection therewith may be properly conducted at all times, provided that
\nthis Section shall not prevent the Company or any Subsidiary from discontinuing
\nthe operation and the maintenance of any of its properties if such
\ndiscontinuance is desirable in the conduct of its business and the Company has
\nconcluded that such discontinuance could not, individually or in the aggregate,
\nreasonably be expected to have a Material Adverse Effect.<\/p>\n
Section 9.4. Payment of Taxes and Claims. The Company will, and will
\ncause each of its Subsidiaries to, file all tax returns required to be filed in
\nany jurisdiction and to pay and discharge all taxes shown to be due and payable
\non such returns and all other taxes, assessments, governmental charges, or
\nlevies imposed on them or any of their properties, assets, income or franchises,
\nto the extent such taxes and assessments have become due and payable and before
\nthey have become delinquent and all claims for which sums have become due and
\npayable that have or might become a Lien on properties or assets of the Company
\nor any Subsidiary not permitted by Section 10.4, provided that neither the
\nCompany nor any Subsidiary need pay any such tax or assessment or claims if (i)
\nthe amount, applicability or validity thereof is contested by the Company or
\nsuch Subsidiary on a timely basis in good faith and in appropriate proceedings,
\nand the Company or a Subsidiary has established adequate reserves therefor in
\naccordance with GAAP on the books of the Company or such Subsidiary or (ii) the
\nnon-filing or nonpayment, as the case may be, of all such taxes and assessments
\nin the aggregate could not reasonably be expected to have a Material Adverse
\nEffect.<\/p>\n
Section 9.5. Corporate Existence, Etc. Subject to Sections 10.5 and
\n10.6, the Company will at all times preserve and keep in full force and effect
\nits corporate existence, and will at all times preserve and keep in full force
\nand effect the corporate existence of each of its Subsidiaries (unless merged
\ninto the Company or a Wholly-Owned Subsidiary) and all rights and franchises of
\nthe Company and its Subsidiaries unless, in the good faith judgment of the
\nCompany, the termination of or failure to preserve and keep in full force and
\neffect such corporate existence, right or franchise could not, individually or
\nin the aggregate, reasonably be expected to have a Material Adverse Effect.<\/p>\n
Section 9.6. Guaranty by Subsidiaries. So long as the Guaranty
\nAgreement shall remain in effect, the Company will cause any Person which
\nbecomes a Domestic Subsidiary after the Closing to enter into the Guaranty
\nAgreement, together with any security agreement necessary to cause the Guaranty
\nAgreement to rank pari passu with the Debt owing to the Bank Lenders, and to
\ndeliver within five Business Days thereafter to each of the holders of the
\nNotes, a joinder agreement in respect of the Guaranty Agreement and any security
\nagreement similar to any that have been executed and delivered in favor of the
\nBank Lenders.<\/p>\n
A-25
\n 32<\/p>\n
SECTION 10. NEGATIVE COVENANTS.<\/p>\n
The Company covenants that so long as any of the Notes are outstanding:<\/p>\n
Section 10.1. Consolidated Net Worth. The Company will not, at any
\ntime, permit Consolidated Net Worth to be less than the sum of (a) $600,000,000,
\nplus (b) an aggregate amount equal to 50% of its Consolidated Net Income (but,
\nin each case, only if a positive number) for each completed fiscal quarter
\nbeginning with the fiscal quarter ended March 31, 2000.<\/p>\n
Section 10.2. Limitation on Consolidated Debt. The Company will not, at
\nany time, permit the Consolidated Debt Ratio to be greater than 3.50 to 1.00.<\/p>\n
Section 10.3. Limitation on Priority Debt. The Company will not, at any
\ntime, permit Priority Debt to exceed 20% of Consolidated Net Worth (determined
\nas of the then most recently ended fiscal quarter of the Company).<\/p>\n
Section 10.4. Interest Charges Coverage Ratio. The Company will not, at
\nany time, permit the Interest Charges Coverage Ratio to be less than 2.00 to
\n1.00.<\/p>\n
Section 10.5. Limitation on Liens. The Company will not, and will not
\npermit any of its Subsidiaries to, directly or indirectly create, incur, assume
\nor permit to exist (upon the happening of a contingency or otherwise), any Lien
\non or with respect to any property or asset (including, without limitation, any
\ndocument or instrument in respect of goods or accounts receivable) of the
\nCompany or any such Subsidiary, whether now owned or held or hereafter acquired,
\nor any income or profits therefrom, or assign or otherwise convey any right to
\nreceive income or profits, provided that this Section 10.5 shall not limit the
\nCompany’s ability to pay dividends on its capital stock if and when declared by
\nthe board of directors of the Company (unless it makes, or causes to be made,
\neffective provision whereby the Notes will be equally and ratably secured with
\nany and all other obligations thereby secured, such security to be pursuant to a
\nwritten agreement satisfactory to the Required Holders and, in any such case,
\nthe Notes shall have the benefit, to the fullest extent that, and with such
\npriority as, the holders of the Notes may be entitled under applicable law, of
\nan equitable Lien on such property) except:<\/p>\n
(a) Liens for taxes, assessments or other governmental charges
\n which are not yet due and payable or the payment of which is not at the
\n time required by Section 9.4;<\/p>\n
(b) any attachment or judgment Lien, unless the judgment it
\n secures shall not, within 60 days after the entry thereof, have been
\n discharged or execution thereof stayed pending appeal, or shall not
\n have been discharged within 60 days after the expiration of any such
\n stay;<\/p>\n
(c) Liens incidental to the conduct of business or the
\n ownership of properties and assets (including landlords’, carriers’,
\n warehousemen’s, mechanics’, materialmen’s and other similar Liens) and
\n Liens to secure the performance of bids, tenders, leases, or trade
\n contracts, or to secure statutory obligations (including obligations
\n under workers <\/p>\n
A-26
\n 33<\/p>\n
compensation, unemployment insurance and other social security
\n legislation), surety or appeal bonds or other Liens incurred in the
\n ordinary course of business and not in connection with the borrowing of
\n money;<\/p>\n
(d) leases or subleases entered into by the Company or its
\n Subsidiaries as either lessors or sublessors, easements, rights-of-way,
\n restrictions and other similar charges or encumbrances (including
\n zoning restrictions), in each case incidental to the ownership of
\n property or assets or the ordinary conduct of the business of the
\n Company or any of its Subsidiaries, provided that such Liens do not, in
\n the aggregate, detract from the value of such property in any material
\n way;<\/p>\n
(e) Liens incidental to minor survey exceptions and similar
\n Liens, provided that such Liens do not, in the aggregate, materially
\n detract from the value of such property;<\/p>\n
(f) Liens on property or assets of Subsidiaries securing Debt
\n owing to the Company or to another Subsidiary;<\/p>\n
(g) Liens existing on the date of Closing described in
\n Schedule 10.5 which secure outstanding Debt of the Company and its
\n Subsidiaries referred to in Schedule 5.15 hereto;<\/p>\n
(h) any Lien existing on property of a Person immediately
\n prior to its being consolidated with or merged into the Company or a
\n Subsidiary or its becoming a Subsidiary, or any Lien existing on any
\n property acquired by the Company or any Subsidiary at the time such
\n property is so acquired (whether or not the Debt secured thereby shall
\n have been assumed), provided that (i) no such Lien shall have been
\n created or assumed in contemplation of such consolidation or merger or
\n such Person’s becoming a Subsidiary or such acquisition of property,
\n (ii) each such Lien shall extend solely to the item or items of
\n property so acquired, and (iii) the aggregate principal amount of all
\n Debt secured by any such Lien shall be permitted by the limitations set
\n forth in Section 10.2;<\/p>\n
(i) Liens given to secure the payment of the purchase price
\n incurred in connection with the acquisition, lease (including any
\n Capital Lease) or construction of property (other than accounts
\n receivable or inventory) useful and intended to be used in carrying on
\n the business of the Company or a Subsidiary, including Liens existing
\n on such property at the time of acquisition, lease or construction
\n thereof or improvements thereon, or Liens incurred within 180 days of
\n such acquisition or the completion of such construction, provided that
\n (i) the Lien shall attach solely to the property acquired, purchased,
\n leased, constructed or improved, (ii) at the time of acquisition or
\n construction of such property, the aggregate amount remaining unpaid on
\n all Debt secured by Liens on such property, whether or not assumed by
\n the Company or a Subsidiary, shall not exceed an amount equal to the
\n lesser of the total purchase price or Fair Market Value at the time of
\n acquisition or construction of such property (as determined in good
\n faith by one or more officers of the Company or such Subsidiary, as the
\n case may be, to whom authority to enter into the transaction has been
\n delegated by the board of directors of the Company<\/p>\n
A-27
\n 34<\/p>\n
or such Subsidiary, as the case may be), and (iii) the aggregate
\n principal amount of all Debt secured by such Liens shall be permitted
\n by the limitations set forth in Section 10.2;<\/p>\n
(j) Liens created by the Security Documents and similar
\n security documents securing Debt outstanding under this Agreement, the
\n Guaranty Agreement and the Bank Credit Agreement and any related
\n Guaranty of the Bank Credit Agreement provided that in the case of any
\n successor Bank Credit Agreement, the Bank Lenders and the holders of
\n the Notes shall continue to be parties to the Intercreditor Agreement;<\/p>\n
(k) any extensions, renewals or replacements of any Lien
\n permitted by the preceding subparagraphs of this Section 10.5, provided
\n that (i) no additional property shall be encumbered by such Liens, (ii)
\n the unpaid principal amount of the Debt secured thereby shall not be
\n increased prior to or on or after the date of any extension, renewal or
\n replacement, (iii) the weighted average life to maturity of the Debt
\n secured by such Liens shall not be reduced, and (iv) at such time and
\n immediately after giving effect thereto, no Default or Event of Default
\n would exist; and<\/p>\n
(l) in addition to the Liens permitted by the preceding
\n subparagraphs (a) through (k), inclusive, of this Section 10.5, Liens
\n securing Debt of the Company, provided that the aggregate principal
\n amount of such Debt shall not at any time exceed 10% of Consolidated
\n Net Worth (determined as of the then most recently ended fiscal quarter
\n of the Company).<\/p>\n
Section 10.6. Merger, Consolidation. The Company will not, and will not
\npermit any Subsidiary to, consolidate with or be a party to a merger with any
\nother Person; provided, however, that:<\/p>\n
(1) any Subsidiary may merge or consolidate with or into the
\n Company, so long as in any merger or consolidation involving the
\n Company, the Company shall be the surviving entity;<\/p>\n
(2) any Subsidiary may merge or consolidate with or into any
\n other Person if either (x) the Subsidiary shall be the surviving
\n entity, or (y) if the Subsidiary is not the surviving entity, such
\n transaction is permitted by Section 10.7; and<\/p>\n
(3) the Company may consolidate or merge with any other Person
\n if (i) either (x) the Company shall be the surviving entity, or (y) if
\n the surviving entity is other than the Company, (A) such entity is
\n organized under the laws of the United States or any jurisdiction
\n thereof, (B) such entity expressly assumes, by written agreement
\n satisfactory in scope and form to the Required Holders, all obligations
\n of the Company under the Notes, this Agreement and each Security
\n Document to which the Company is a party, (C) such entity shall cause
\n to be delivered to each holder of Notes an opinion of independent
\n counsel to the effect that all agreements or instruments effecting such
\n assumption are enforceable in accordance with their terms and comply
\n with the provisions of this Section 10.6 and otherwise satisfactory in
\n scope and form to the Required Holders, and <\/p>\n
A-28
\n 35<\/p>\n
(ii) at the time of such consolidation or merger and after giving
\n effect thereto, no Default or Event of Default shall have occurred and
\n be continuing.<\/p>\n
Section 10.7. Sales of Assets. (a) The Company will not, and will not
\npermit any Subsidiary to, sell, lease or otherwise dispose of any substantial
\npart (as defined below) of the assets of the Company and its Subsidiaries;
\nprovided, however, that the Company or any Subsidiary may sell lease or
\notherwise dispose of assets constituting a substantial part of the assets of the
\nCompany and its Subsidiaries if such assets are sold for Fair Market Value and,
\nat such time and after giving effect thereto, no Default or Event of Default
\nshall have occurred and be continuing, and an amount equal to the proceeds
\nreceived from such sale, lease or other disposition during such fiscal year
\nwhich shall be in excess of 10% of the book value of Consolidated Total Assets,
\ndetermined as of the end of the fiscal year immediately preceding such sale,
\nlease or other disposition, shall be used within 180 days of such disposition:<\/p>\n
(1) to acquire property, plant and equipment or any business
\n entity (including the capital stock thereof) used or useful in carrying
\n on the business of the Company and its Subsidiaries and having a Fair
\n Market Value at least equal to the Fair Market Value of such assets
\n sold, leased or otherwise disposed of; or<\/p>\n
(2) to prepay or retire Senior Debt of the Company and\/or its
\n Subsidiaries, provided that if any Notes are prepaid pursuant to the
\n terms of this Section 10.7, such Notes shall also be prepaid in
\n accordance with the terms of Section 8.2 of this Agreement.<\/p>\n
As used in this Section 10.7, a sale, lease or other disposition of
\nassets shall be deemed to be a “substantial part” of the assets of the Company
\nand its Subsidiaries if the book value of such assets, when added to the book
\nvalue of all other assets sold, leased or otherwise disposed of by the Company
\nand its Subsidiaries (other than in transactions (i) in the ordinary course of
\nbusiness, (ii) in which the purchaser is the Company or a Subsidiary, or (iii)
\nwhich are Excluded Sale and Leaseback Transactions) during such fiscal year,
\nexceeds 10% of the book value of Consolidated Total Assets, determined as of the
\nend of the fiscal quarter immediately preceding such sale, lease or other
\ndisposition.<\/p>\n
Section 10.8. Nature of Business. Neither the Company nor any
\nSubsidiary will engage in any business if, as a result, the general nature of
\nthe business, taken on a consolidated basis, which would then be engaged in by
\nthe Company and its Subsidiaries would be substantially changed from the general
\nnature of the business engaged in by the Company and its Subsidiaries on the
\ndate of this Agreement.<\/p>\n
Section 10.9. Transactions with Affiliates. The Company will not and
\nwill not permit any Subsidiary to enter into directly or indirectly any Material
\ntransaction or Material group of related transactions (including without
\nlimitation the purchase, lease, sale or exchange of properties of any kind or
\nthe rendering of any service) with any Affiliate (other than the Company or
\nanother Subsidiary), except upon fair and reasonable terms no less favorable to
\nthe Company or such Subsidiary than would be obtainable in a comparable
\narm’s-length transaction with a Person not an Affiliate.<\/p>\n
A-29
\n 36<\/p>\n
Section 10.10. Further Assurances. So long as any Security Document and
\nthe Guaranty Agreement shall remain in effect, if the Collateral Agent shall
\nresign or be removed or the Intercreditor Agreement shall no longer be in full
\nforce and effect, the Company will, and will cause each Guarantor to, execute
\nand deliver to each holder of a Note such additional documents (including
\namendments to the Security Documents) as the holders of the Notes shall
\nreasonably request so that there shall continue to be a Collateral Agent under
\nthe Security Documents and to insure that the Lien of the Security Documents
\nshall continue to be in full force and effect.<\/p>\n
So long as any Security Document shall remain in effect, the Company
\nalso agrees at its own expense to cause or use its reasonable commercial efforts
\nto cause the Security Documents and all supplements and amendments thereto and
\nall financing and continuation statements and similar notices required by
\napplicable law at all times to be kept, recorded and filed in such manner and in
\nsuch places to maintain the effectiveness of any original or supplemental
\nfilings under the Uniform Commercial Code or comparable law in any relevant
\njurisdiction to maintain, in full force and effect, the Lien and security
\ninterest granted by the Company and the Guarantors to the holders of the Notes
\nor the Collateral Agent for the benefit of the holders of the Notes pursuant to
\nthe Security Documents.<\/p>\n
SECTION 11. EVENTS OF DEFAULT.<\/p>\n
An “Event of Default” shall exist if any of the following conditions or
\nevents shall occur and be continuing:<\/p>\n
(a) the Company defaults in the payment of any principal or
\n Make-Whole Amount, if any, on any Note when the same becomes due and
\n payable, whether at maturity or at a date fixed for prepayment or by
\n declaration or otherwise; or<\/p>\n
(b) the Company defaults in the payment of any interest on any
\n Note for more than five Business Days after the same becomes due and
\n payable; or<\/p>\n
(c) the Company defaults in the performance of or compliance
\n with any term contained in Section 10.4, Section 10.6 or Section 10.7
\n and such default is not remedied within five (5) Business Days of the
\n occurrence thereof; or<\/p>\n
(d) the Company defaults in the performance of or compliance
\n with any term contained herein or in any Supplement (other than those
\n referred to in paragraphs (a), (b) and (c) of this Section 11) and such
\n default is not remedied within 30 days after the earlier of (i) a
\n Responsible Officer obtaining actual knowledge of such default and (ii)
\n the Company receiving written notice of such default from any holder of
\n a Note (any such written notice to be identified as a “notice of
\n default” and to refer specifically to this paragraph (d) of Section
\n 11); or<\/p>\n
(e) prior to the release of any Guarantor from the Guaranty
\n Agreement upon the occurrence of a Guaranty Release Event, a default
\n shall occur in the observance or performance of any covenant or
\n agreement contained in the Guaranty Agreement by such Guarantor and
\n such default shall continue beyond the period of grace, if any, allowed<\/p>\n
A-30
\n 37<\/p>\n
with respect thereto or the Guaranty Agreement shall cease to be in
\n full force and effect for any reason whatsoever, including, without
\n limitation, a determination by any governmental body or court that such
\n agreement is invalid, void or unenforceable against such Guarantor or
\n such Guarantor shall contest or deny in writing the validity or
\n enforceability of any of its obligations under the Guaranty Agreement;
\n or<\/p>\n
(f) prior to the release of any Security Document upon the
\n occurrence of a Collateral Release Event, a default shall occur in the
\n observance or performance of any covenant or agreement contained in
\n such Security Document and such default shall continue beyond the
\n period of grace, if any, allowed with respect thereto or such Security
\n Document creating or granting a Lien on any Collateral shall cease to
\n be in full force and effect or the Company or any Guarantor shall deny
\n or disaffirm the validity of any such Lien;<\/p>\n
(g) any representation or warranty made in writing by or on
\n behalf of the Company or any Guarantor or by any officer of the Company
\n or any Guarantor in this Agreement, any Security Document or the
\n Guaranty Agreement or in any writing furnished in connection with the
\n transactions contemplated hereby or thereby proves to have been false
\n or incorrect in any material respect on the date as of which made; or<\/p>\n
(h) (i) the Company or any Significant Subsidiary is in
\n default (as principal or as guarantor or other surety) in the payment
\n of any principal of or premium or make-whole amount or interest on Debt
\n other than the Notes (individually or in the aggregate) that is
\n outstanding in an aggregate principal amount of 5% or more of
\n Consolidated Net Worth beyond any period of grace provided with respect
\n thereto, or (ii) the Company or any Significant Subsidiary is in
\n default in the performance of or compliance with any term of any
\n instrument, mortgage, indenture or other agreement relating to any Debt
\n other than the Notes (individually or in the aggregate) in an aggregate
\n principal amount of 5% or more of Consolidated Net Worth or any other
\n condition exists, and as a consequence of such default or condition
\n such Debt has become, or has been declared, due and payable before its
\n stated maturity or before its regularly scheduled dates of payment, or
\n (iii) as a consequence of the occurrence or continuation of any event
\n or condition (other than the passage of time or the right of the holder
\n of Debt to convert such Debt into equity interests), the Company or any
\n Significant Subsidiary has become obligated to purchase or repay Debt
\n other than the Notes before its regular maturity or before its
\n regularly scheduled dates of payment in an aggregate outstanding
\n principal amount of 5% or more of Consolidated Net Worth; or<\/p>\n
(i) the Company or any Significant Subsidiary (i) is generally
\n not paying, or admits in writing its inability to pay, its debts as
\n they become due, (ii) files, or consents by answer or otherwise to the
\n filing against it of, a petition for relief or reorganization or
\n arrangement or any other petition in bankruptcy, for liquidation or to
\n take advantage of any bankruptcy, insolvency, reorganization,
\n moratorium or other similar law of any jurisdiction, (iii) makes an
\n assignment for the benefit of its creditors, (iv) consents to the
\n appointment of a custodian, receiver, trustee or other officer with
\n similar powers with respect to it or with respect to any substantial
\n part of its property, (v) is adjudicated as<\/p>\n
A-31
\n 38<\/p>\n
insolvent or to be liquidated, or (vi) takes corporate action for the
\n purpose of any of the foregoing; or<\/p>\n
(j) a court or governmental authority of competent
\n jurisdiction enters an order appointing, without consent by the Company
\n or any of its Significant Subsidiaries, a custodian, receiver, trustee
\n or other officer with similar powers with respect to it or with respect
\n to any substantial part of its property, or constituting an order for
\n relief or approving a petition for relief or reorganization or any
\n other petition in bankruptcy or for liquidation or to take advantage of
\n any bankruptcy or insolvency law of any jurisdiction, or ordering the
\n dissolution, winding-up or liquidation of the Company or any of its
\n Significant Subsidiaries, or any such petition shall be filed against
\n the Company or any of its Significant Subsidiaries and such petition
\n shall not be dismissed within 60 days; or<\/p>\n
(k) a final judgment or judgments at any one time outstanding
\n for the payment of money aggregating an amount equal to 5% or more of
\n Consolidated Net Worth are rendered against one or more of the Company
\n and its Significant Subsidiaries and which judgments are not, within 60
\n days after entry thereof, bonded, discharged or stayed pending appeal,
\n or are not discharged within 60 days after the expiration of such stay;
\n or<\/p>\n
(l) If (i) any Plan shall fail to satisfy the minimum funding
\n standards of ERISA or the Code for any plan year or part thereof or a
\n waiver of such standards or extension of any amortization period is
\n sought or granted under Section 412 of the Code, (ii) a notice of
\n intent to terminate any Plan shall have been or is reasonably expected
\n to be filed with the PBGC or the PBGC shall have instituted proceedings
\n under Section 4042 of ERISA to terminate or appoint a trustee to
\n administer any Plan or the PBGC shall have notified the Company or any
\n ERISA Affiliate that a Plan may become a subject of any such
\n proceedings, (iii) the aggregate “amount of unfunded benefit
\n liabilities” (within the meaning of Section 4001(a)(18) of ERISA) under
\n all Plans, determined in accordance with Title IV of ERISA, shall
\n exceed an amount equal to 5% or more of Consolidated Net Worth, (iv)
\n the Company or any ERISA Affiliate shall have incurred or is reasonably
\n expected to incur any liability pursuant to Title I or IV of ERISA or
\n the penalty or excise tax provisions of the Code relating to employee
\n benefit plans, (v) the Company or any ERISA Affiliate withdraws from
\n any Multiemployer Plan, or (vi) the Company or any Subsidiary
\n establishes or amends any employee welfare benefit plan that provides
\n post-employment welfare benefits in a manner that would increase the
\n liability of the Company or any Subsidiary thereunder; and any such
\n event or events described in clauses (i) through (vi) above, either
\n individually or together with any other such event or events, could
\n reasonably be expected to have a Material Adverse Effect.<\/p>\n
As used in Section 11(l), the terms “employee benefit plan” and “employee
\nwelfare benefit plan” shall have the respective meanings assigned to such terms
\nin Section 3 of ERISA.<\/p>\n
SECTION 12. REMEDIES ON DEFAULT, ETC.<\/p>\n
Section 12.1. Acceleration. (a) If an Event of Default with respect to
\nthe Company described in paragraph (i) or (j) of Section 11 (other than an Event
\nof Default described in clause <\/p>\n
A-32
\n 39<\/p>\n
(i) of paragraph (i) or described in clause (vi) of paragraph (i) by virtue of
\nthe fact that such clause encompasses clause (i) of paragraph (i)) has occurred,
\nall the Notes of every Series then outstanding shall automatically become
\nimmediately due and payable.<\/p>\n
(b) If any other Event of Default has occurred and is continuing, any
\nholder or holders of more than 50% in aggregate principal amount of each Series
\nof the Notes at the time outstanding may at any time at its or their option, by
\nnotice or notices to the Company, declare all the Notes of such Series then
\noutstanding to be immediately due and payable.<\/p>\n
(c) If any Event of Default described in paragraph (a) or (b) of
\nSection 11 has occurred and is continuing with respect to any Series of Notes,
\nany holder or holders of Notes at the time outstanding affected by such Event of
\nDefault may at any time, at its or their option, by notice or notices to the
\nCompany, declare all the Notes held by such holder or holders to be immediately
\ndue and payable.<\/p>\n
Upon any Note’s becoming due and payable under this Section 12.1,
\nwhether automatically or by declaration, such Note will forthwith mature and the
\nentire unpaid principal amount of such Note, plus (i) all accrued and unpaid
\ninterest thereon and (ii) the Make-Whole Amount determined in respect of such
\nprincipal amount (to the full extent permitted by applicable law), shall all be
\nimmediately due and payable, in each and every case without presentment, demand,
\nprotest or further notice, all of which are hereby waived. The Company
\nacknowledges, and the parties hereto agree, that each holder of a Note has the
\nright to maintain its investment in the Notes free from repayment by the Company
\n(except as herein specifically provided for) and that the provision for payment
\nof a Make-Whole Amount by the Company in the event that the Notes are prepaid or
\nare accelerated as a result of an Event of Default, is intended to provide
\ncompensation for the deprivation of such right under such circumstances.<\/p>\n
Section 12.2. Other Remedies. If any Default or Event of Default has
\noccurred and is continuing, and irrespective of whether any Notes have become or
\nhave been declared immediately due and payable under Section 12.1, the Required
\nHolders at the time outstanding may proceed to protect and enforce the rights of
\nthe holders by an action at law, suit in equity or other appropriate proceeding,
\nwhether for the specific performance of any agreement contained herein or in any
\nNote, or for an injunction against a violation of any of the terms hereof or
\nthereof, or in aid of the exercise of any power granted hereby or thereby or by
\nlaw or otherwise.<\/p>\n
Section 12.3. Rescission. At any time after any Notes of any Series
\nhave been declared due and payable pursuant to clause (b) or (c) of Section
\n12.1, the holders of not less than 50% in principal amount of the Notes of such
\nSeries, taken individually, then outstanding, by written notice to the Company,
\nmay rescind and annul any such declaration and its consequences if (a) the
\nCompany has paid all overdue interest on the Notes of such Series, all principal
\nof and Make-Whole Amount, if any, on any Notes of such Series that are due and
\npayable and are unpaid other than by reason of such declaration, and all
\ninterest on such overdue principal and Make-Whole Amount, if any, and (to the
\nextent permitted by applicable law) any overdue interest in respect of the Notes
\nof such Series, at the Default Rate, (b) all Events of Default and Defaults,
\nother than non-payment of amounts that have become due solely by reason of such
\ndeclaration, have been cured or have been waived pursuant to Section 17, and (c)
\nno judgment or<\/p>\n
A-33
\n 40<\/p>\n
decree has been entered for the payment of any monies due pursuant hereto or to
\nany Notes. No rescission and annulment under this Section 12.3 will extend to or
\naffect any subsequent Event of Default or Default or impair any right consequent
\nthereon.<\/p>\n
Section 12.4. No Waivers or Election of Remedies, Expenses, Etc. No
\ncourse of dealing and no delay on the part of any holder of any Note in
\nexercising any right, power or remedy shall operate as a waiver thereof or
\notherwise prejudice such holder’s rights, powers or remedies. No right, power or
\nremedy conferred by this Agreement or by any Note upon any holder thereof shall
\nbe exclusive of any other right, power or remedy referred to herein or therein
\nor now or hereafter available at law, in equity, by statute or otherwise.
\nWithout limiting the obligations of the Company under Section 15, the Company
\nwill pay to the holder of each Note on demand such further amount as shall be
\nsufficient to cover all costs and expenses of such holder incurred in any
\nenforcement or collection under this Section 12, including, without limitation,
\nthe reasonable attorneys’ fees, expenses and disbursements for the holders as
\nset forth in Section 15.<\/p>\n
SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.<\/p>\n
Section 13.1. Registration of Notes. The Company shall keep at its
\nprincipal executive office a register for the registration and registration of
\ntransfers of Notes. The name and address of each holder of one or more Notes,
\neach transfer thereof and the name and address of each transferee of one or more
\nNotes shall be registered in such register. Prior to due presentment for
\nregistration of transfer, the Person in whose name any Note shall be registered
\nshall be deemed and treated as the owner and holder thereof for all purposes
\nhereof, and the Company shall not be affected by any notice or knowledge to the
\ncontrary. The Company shall give to any holder of a Note that is an
\nInstitutional Investor promptly upon request therefor, a complete and correct
\ncopy of the names and addresses of all registered holders of Notes.<\/p>\n
Section 13.2. Transfer and Exchange of Notes. Upon surrender of any
\nNote at the principal executive office of the Company for registration of
\ntransfer or exchange (and in the case of a surrender for registration of
\ntransfer, duly endorsed or accompanied by a written instrument of transfer duly
\nexecuted by the registered holder of such Note or its attorney duly authorized
\nin writing and accompanied by the address for notices of each transferee of such
\nNote or part thereof), the Company shall execute and deliver not more than 5
\nBusiness Days following surrender of such Note, at the Company’s expense (except
\nas provided below), one or more new Notes (as requested by the holder thereof)
\nof the same Series (and of the same tranche if such Series has separate
\ntranches) in exchange therefor, in an aggregate principal amount equal to the
\nunpaid principal amount of the surrendered Note. Each such new Note shall be
\npayable to such Person as such holder may request and shall be substantially in
\nthe form of the Note of such Series originally issued hereunder or pursuant to
\nany Supplement. Each such new Note shall be dated and bear interest from the
\ndate to which interest shall have been paid on the surrendered Note or dated the
\ndate of the surrendered Note if no interest shall have been paid thereon. The
\nCompany may require payment of a sum sufficient to cover any stamp tax or
\ngovernmental charge imposed in respect of any such transfer of Notes. Notes
\nshall not be transferred in denominations of less than $100,000, provided that
\nif necessary to enable the registration of transfer by a holder of its entire
\nholding of Notes, one Note may be in a denomination of less than $100,000. Any
\ntransferee, by its acceptance of a Note registered in its name (or the name of<\/p>\n
A-34
\n 41<\/p>\n
its nominee), shall be deemed to have made the representation set forth in
\nSection 6.2, provided that such holder may (in reliance upon information
\nprovided by the Company, which shall not be unreasonably withheld) make a
\nrepresentation to the effect that the purchase by such holder of any Note will
\nnot constitute a non-exempt prohibited transaction under Section 406(a) of
\nERISA.<\/p>\n
The Notes have not been registered under the Securities Act or under
\nthe securities laws of any state and may not be transferred or resold unless
\nregistered under the Securities Act and all applicable state securities laws or
\nunless an exemption from the requirement for such registration is available.<\/p>\n
Section 13.3. Replacement of Notes. Upon receipt by the Company of
\nevidence reasonably satisfactory to it of the ownership of and the loss, theft,
\ndestruction or mutilation of any Note (which evidence shall be, in the case of
\nan Institutional Investor, notice from such Institutional Investor of such
\nownership and such loss, theft, destruction or mutilation), and<\/p>\n
(a) in the case of loss, theft or destruction, of indemnity
\n reasonably satisfactory to it (provided that if the holder of such Note
\n is, or is a nominee for, an original Purchaser or another holder of a
\n Note with a minimum net worth of at least $50,000,000, such Person’s
\n own unsecured agreement of indemnity shall be deemed to be
\n satisfactory), or<\/p>\n
(b) in the case of mutilation, upon surrender and cancellation
\n thereof,<\/p>\n
the Company at its own expense shall execute and deliver not more than five
\nBusiness Days following satisfaction of such conditions, in lieu thereof, a new
\nNote of the same Series (and of the same tranche if such Series has separate
\ntranches), dated and bearing interest from the date to which interest shall have
\nbeen paid on such lost, stolen, destroyed or mutilated Note or dated the date of
\nsuch lost, stolen, destroyed or mutilated Note if no interest shall have been
\npaid thereon.<\/p>\n
SECTION 14. PAYMENTS ON NOTES.<\/p>\n
Section 14.1. Place of Payment. Subject to Section 14.2, payments of
\nprincipal, Make-Whole Amount, if any, and interest becoming due and payable on
\nthe Notes shall be made in New York, New York at the principal office of Bank of
\nAmerica, N.A. in such jurisdiction. The Company may at any time, by notice to
\neach holder of a Note, change the place of payment of the Notes so long as such
\nplace of payment shall be either the principal office of the Company in such
\njurisdiction or the principal office of a bank or trust company in such
\njurisdiction.<\/p>\n
Section 14.2. Home Office Payment. So long as any Purchaser or such
\nPurchaser’s nominee shall be the holder of any Note, and notwithstanding
\nanything contained in Section 14.1 or in such Note to the contrary, the Company
\nwill pay all sums becoming due on such Note for principal, Make-Whole Amount, if
\nany, and interest by the method and at the address specified for such purpose
\nfor such Purchaser on Schedule A hereto or, in the case of any Additional
\nPurchaser, Schedule A attached to any Supplement pursuant to which such
\nAdditional Purchaser is a party, or by such other method or at such other
\naddress as such Purchaser or Additional Purchaser shall have from time to time
\nspecified to the Company in writing for such purpose,<\/p>\n
A-35
\n 42<\/p>\n
without the presentation or surrender of such Note or the making of any notation
\nthereon, except that upon written request of the Company made concurrently with
\nor reasonably promptly after payment or prepayment in full of any Note, such
\nPurchaser or Additional Purchaser shall surrender such Note for cancellation,
\nreasonably promptly after any such request, to the Company at its principal
\nexecutive office or at the place of payment most recently designated by the
\nCompany pursuant to Section 14.1. Prior to any sale or other disposition of any
\nNote held by any Purchaser or Additional Purchaser or such Person’s nominee,
\nsuch Person will, at its election, either endorse thereon the amount of
\nprincipal paid thereon and the last date to which interest has been paid thereon
\nor surrender such Note to the Company in exchange for a new Note or Notes
\npursuant to Section 13.2. The Company will afford the benefits of this Section
\n14.2 to any Institutional Investor that is the direct or indirect transferee of
\nany Note.<\/p>\n
SECTION 15. EXPENSES, ETC.<\/p>\n
Section 15.1. Transaction Expenses. Whether or not the transactions
\ncontemplated hereby are consummated, the Company will pay all reasonable costs
\nand expenses (including reasonable attorneys’ fees of one special counsel and,
\nif reasonably required, local or other counsel) incurred by the Purchasers and
\nthe holders of Notes in connection with such transactions and in connection with
\nany amendments, waivers or consents under or in respect of this Agreement
\n(including any Supplement), the Security Documents, the Guaranty Agreement, the
\nIntercreditor Agreement or the Notes (whether or not such amendment, waiver or
\nconsent becomes effective), including, without limitation: (a) the reasonable
\ncosts and expenses incurred in enforcing or defending (or determining whether or
\nhow to enforce or defend) any rights under this Agreement (including any
\nSupplement), the Security Documents, the Guaranty Agreement, the Intercreditor
\nAgreement or the Notes or in responding to any subpoena or other legal process
\nor informal investigative demand by any Governmental Authority issued in
\nconnection with this Agreement (including any Supplement), the Security
\nDocuments, the Guaranty Agreement, the Intercreditor Agreement or the Notes, or
\nby reason of being a holder of any Note, and (b) the reasonable costs and
\nexpenses, including financial advisors’ fees, incurred in connection with the
\ninsolvency or bankruptcy of the Company or any Subsidiary or in connection with
\nany work-out or restructuring of the transactions contemplated hereby and by the
\nNotes. The Company will pay, and will save each Purchaser and each other holder
\nof a Note harmless from, all claims in respect of any reasonable fees, costs or
\nexpenses if any, of brokers and finders (other than those retained by the
\nPurchasers).<\/p>\n
Section 15.2. Survival. The obligations of the Company under this
\nSection 15 will survive the payment or transfer of any Note, the enforcement,
\namendment or waiver of any provision of this Agreement, any Supplement or the
\nNotes, and the termination of this Agreement or any Supplement.<\/p>\n
SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.<\/p>\n
All representations and warranties contained herein or in any
\nSupplement shall survive the execution and delivery of this Agreement or such
\nSupplement and the related Notes, the purchase or transfer by any Purchaser or
\nany Additional Purchaser of any such Note or portion<\/p>\n
A-36
\n 43<\/p>\n
thereof or interest therein and may be relied upon by any subsequent holder of
\nany such Note, regardless of any investigation made at any time by or on behalf
\nof any Purchaser or any Additional Purchaser or any other holder of any such
\nNote. All statements contained in any certificate or other instrument delivered
\nby or on behalf of the Company pursuant to this Agreement or any Supplement
\nshall be deemed representations and warranties of the Company under this
\nAgreement; provided, that the representations and warranties contained in any
\nSupplement shall only be made for the benefit of the Additional Purchasers which
\nare party to such Supplement and the holders, including subsequent holders of
\nany Note issued pursuant to such Supplement, and shall not require the consent
\nof the holders of existing Notes. Subject to the preceding sentence, this
\nAgreement (including every Supplement), the Security Documents, the
\nIntercreditor Agreement, the Guaranty Agreement and the Notes embody the entire
\nagreement and understanding between the Purchasers and the Additional Purchasers
\nand the Company and supersede all prior agreements and understandings relating
\nto the subject matter hereof.<\/p>\n
SECTION 17. AMENDMENT AND WAIVER.<\/p>\n
Section 17.1. Requirements. (a) This Agreement (including any
\nSupplement) and the Notes may be amended, and the observance of any term hereof
\nor of the Notes may be waived (either retroactively or prospectively), with (and
\nonly with) the written consent of the Company and the holders of Notes holding
\nmore than 50% in aggregate principal amount of the Notes of each Series at the
\ntime outstanding, except that (a) no amendment or waiver of any of the
\nprovisions of Section 1, 2, 3, 4, 5, 6 or 21 hereof or the corresponding
\nprovision of any Supplement, or any defined term (as it is used in any such
\nSection or such corresponding provision of any Supplement), will be effective as
\nto any holder of Notes unless consented to by such holder of Notes in writing,
\nand (b) no such amendment or waiver may, without the written consent of all of
\nthe holders of Notes at the time outstanding affected thereby, (i) subject to
\nthe provisions of Section 12 relating to acceleration or rescission, change the
\namount or time of any prepayment or payment of principal of, or reduce the rate
\nor change the time of payment or method of computation of interest or of the
\nMake-Whole Amount on, the Notes, (ii) change the percentage of the principal
\namount of the Notes the holders of which are required to consent to any such
\namendment or waiver, or (iii) amend any of Sections 8, 11(a), 11(b), 12, 17 or
\n20.<\/p>\n
(b) Supplements. Notwithstanding anything to the contrary contained
\nherein, the Company may enter into any Supplement providing for the issuance of
\none or more Series of Additional Notes consistent with Sections 2.4 and 4.18
\nhereof without obtaining the consent of any holder of any other Series of Notes.<\/p>\n
Section 17.2. Solicitation of Holders of Notes.<\/p>\n
(a) Solicitation. The Company will provide each holder of the Notes
\n(irrespective of the amount of Notes then owned by it) with sufficient
\ninformation, sufficiently far in advance of the date a decision is required, to
\nenable such holder to make an informed and considered decision with respect to
\nany proposed amendment, waiver or consent in respect of any of the provisions
\nhereof, any Supplement or of the Notes. The Company will deliver executed or
\ntrue and correct copies of each amendment, waiver or consent effected pursuant
\nto the provisions of<\/p>\n
A-37
\n 44<\/p>\n
this Section 17 to each holder of outstanding Notes promptly following the date
\non which it is executed and delivered by, or receives the consent or approval
\nof, the requisite holders of Notes.<\/p>\n
(b) Payment. The Company will not directly or indirectly pay or cause
\nto be paid any remuneration, whether by way of supplemental or additional
\ninterest, fee or otherwise, or grant any security, to any holder of Notes as
\nconsideration for or as an inducement to the entering into by any holder of
\nNotes of any waiver or amendment of any of the terms and provisions hereof or
\nany Supplement unless such remuneration is concurrently paid, or security is
\nconcurrently granted, on the same terms, ratably to each holder of Notes then
\noutstanding even if such holder did not consent to such waiver or amendment.<\/p>\n
Section 17.3. Binding Effect, Etc. Any amendment or waiver consented to
\nas provided in this Section 17 applies equally to all holders of Notes and is
\nbinding upon them and upon each future holder of any Note and upon the Company
\nwithout regard to whether such Note has been marked to indicate such amendment
\nor waiver. No such amendment or waiver will extend to or affect any obligation,
\ncovenant, agreement, Default or Event of Default not expressly amended or waived
\nor impair any right consequent thereon. No course of dealing between the Company
\nand the holder of any Note nor any delay in exercising any rights hereunder or
\nunder any Note shall operate as a waiver of any rights of any holder of such
\nNote. As used herein, the term “this Agreement” and references thereto shall
\nmean this Agreement as it may from time to time be amended or supplemented.<\/p>\n
Section 17.4. Notes Held by Company, Etc. Solely for the purpose of
\ndetermining whether the holders of the requisite percentage of the aggregate
\nprincipal amount of Notes then outstanding approved or consented to any
\namendment, waiver or consent to be given under this Agreement or the Notes, or
\nhave directed the taking of any action provided herein or in the Notes to be
\ntaken upon the direction of the holders of a specified percentage of the
\naggregate principal amount of Notes then outstanding, Notes directly or
\nindirectly owned by the Company or any of its Affiliates shall be deemed not to
\nbe outstanding.<\/p>\n
SECTION 18. NOTICES.<\/p>\n
All notices and communications provided for hereunder shall be in
\nwriting and sent (a) by telefacsimile if the sender on the same day sends a
\nconfirming copy of such notice by a recognized overnight delivery service
\n(charges prepaid), or (b) by registered or certified mail with return receipt
\nrequested (postage prepaid), or (c) by a recognized overnight delivery service
\n(with charges prepaid). Any such notice must be sent:<\/p>\n
(i) if to a Purchaser or such Purchaser’s nominee, to such
\n Purchaser or such Purchaser’s nominee at the address specified for such
\n communications in Schedule A to this Agreement, or at such other
\n address as such Purchaser or such Purchaser’s nominee shall have
\n specified to the Company in writing pursuant to this Section 18,<\/p>\n
(ii) if to an Additional Purchaser or such Additional
\n Purchaser’s nominee, to such Additional Purchaser or such Additional
\n Purchaser’s nominee at the address specified for such communications in
\n Schedule A to any Supplement, or at such other<\/p>\n
A-38
\n 45<\/p>\n
address as such Additional Purchaser or such Additional Purchaser’s
\n nominee shall have specified to the Company in writing,<\/p>\n
(iii) if to any other holder of any Note, to such holder at
\n such address as such other holder shall have specified to the Company
\n in writing pursuant to this Section 18, or<\/p>\n
(iv) if to the Company, to the Company at its address set
\n forth at the beginning hereof to the attention of Chief Financial
\n Officer, with a copy to the General Counsel, or at such other address
\n as the Company shall have specified to the holder of each Note in
\n writing.<\/p>\n
Notices under this Section 18 will be deemed given only when actually received.<\/p>\n
SECTION 19. REPRODUCTION OF DOCUMENTS.<\/p>\n
This Agreement and all documents relating thereto, including, without
\nlimitation, (a) consents, waivers and modifications that may hereafter be
\nexecuted, (b) documents received by each Purchaser at the Closing (except the
\nNotes themselves), and (c) financial statements, certificates and other
\ninformation previously or hereafter furnished to each Purchaser, may be
\nreproduced by such Purchaser by any photographic, photostatic, microfilm,
\nmicrocard, miniature photographic or other similar process and such Purchaser
\nmay destroy any original document so reproduced. The Company agrees and
\nstipulates that, to the extent permitted by applicable law, any such
\nreproduction shall be admissible in evidence as the original itself in any
\njudicial or administrative proceeding (whether or not the original is in
\nexistence and whether or not such reproduction was made by such Purchaser in the
\nregular course of business) and any enlargement, facsimile or further
\nreproduction of such reproduction shall likewise be admissible in evidence. This
\nSection 19 shall not prohibit the Company or any other holder of Notes from
\ncontesting any such reproduction to the same extent that it could contest the
\noriginal, or from introducing evidence to demonstrate the inaccuracy of any such
\nreproduction.<\/p>\n
SECTION 20. CONFIDENTIAL INFORMATION.<\/p>\n
For the purposes of this Section 20, “Confidential Information” means
\ninformation delivered to any Purchaser by or on behalf of the Company or any
\nSubsidiary in connection with the transactions contemplated by or otherwise
\npursuant to this Agreement that is proprietary in nature and that was clearly
\nmarked or labeled or otherwise adequately identified when received by such
\nPurchaser as being confidential information of the Company or such Subsidiary,
\nprovided that such term does not include information that (a) was publicly known
\nor otherwise known to such Purchaser prior to the time of such disclosure, (b)
\nsubsequently becomes publicly known through no act or omission by such Purchaser
\nor any Person acting on such Purchaser’s behalf, (c) otherwise becomes known to
\nsuch Purchaser other than through disclosure by the Company or any Subsidiary or
\n(d) constitutes financial statements delivered to such Purchaser under Section
\n7.1 that are otherwise publicly available. Each Purchaser will maintain the
\nconfidentiality of such Confidential Information in accordance with procedures
\nadopted by such Purchaser in good faith to protect confidential information of
\nthird parties delivered to such<\/p>\n
A-39
\n 46<\/p>\n
Purchaser, provided that such Purchaser may deliver or disclose Confidential
\nInformation to (i) such Purchaser’s directors, trustees, officers, employees,
\nagents, attorneys and affiliates (to the extent such disclosure reasonably
\nrelates to the administration of the investment represented by such Purchaser’s
\nNotes), (ii) such Purchaser’s financial advisors and other professional advisors
\nwho agree to hold confidential the Confidential Information substantially in
\naccordance with the terms of this Section 20, (iii) any other holder of any
\nNote, (iv) any Institutional Investor to which such Purchaser sells or offers to
\nsell such Note or any part thereof or any participation therein (if such Person
\nhas agreed in writing prior to its receipt of such Confidential Information to
\nbe bound by the provisions of this Section 20), (v) any Person from which such
\nPurchaser offers to purchase any security of the Company (if such Person has
\nagreed in writing prior to its receipt of such Confidential Information to be
\nbound by the provisions of this Section 20), (vi) any federal or state
\nregulatory authority having jurisdiction over such Purchaser, (vii) the National
\nAssociation of Insurance Commissioners or any similar organization, or any
\nnationally recognized rating agency that requires access to information about
\nsuch Purchaser’s investment portfolio, or (viii) any other Person to which such
\ndelivery or disclosure may be necessary or appropriate (w) to effect compliance
\nwith any law, Rule, regulation or order applicable to such Purchaser, (x) in
\nresponse to any subpoena or other legal process, provided that, to the extent
\npermitted by law, each holder will use reasonable efforts to notify the Company
\nof any request to disclose Confidential Information requested pursuant to any
\nsubpoena or other legal process, provided further that the failure to notify the
\nCompany of any such request shall not result in any liability to such holder,
\n(y) in connection with any litigation to which such Purchaser is a party or (z)
\nif an Event of Default has occurred and is continuing, to the extent such
\nPurchaser may reasonably determine such delivery and disclosure to be necessary
\nor appropriate in the enforcement or for the protection of the rights and
\nremedies under such Purchaser’s Notes and this Agreement. Each holder of a Note,
\nby its acceptance of a Note, will be deemed to have agreed to be bound by and to
\nbe entitled to the benefits of this Section 20 as though it were a party to this
\nAgreement. On reasonable request by the Company in connection with the delivery
\nto any holder of a Note of information required to be delivered to such holder
\nunder this Agreement or requested by such holder (other than a holder that is a
\nparty to this Agreement or its nominee), such holder will enter into an
\nagreement with the Company embodying the provisions of this Section 20.<\/p>\n
SECTION 21. SUBSTITUTION OF PURCHASER.<\/p>\n
Each Purchaser shall have the right to substitute any one of such
\nPurchaser’s Affiliates as the purchaser of the Notes that such Purchaser has
\nagreed to purchase hereunder, by written notice to the Company, which notice
\nshall be signed by both such Purchaser and such Purchaser’s Affiliate, shall
\ncontain such Affiliate’s agreement to be bound by this Agreement and shall
\ncontain a confirmation by such Affiliate of the accuracy with respect to it of
\nthe representations set forth in Section 6. Upon receipt of such notice,
\nwherever the word “Purchaser” is used in this Agreement (other than in this
\nSection 21), such word shall be deemed to refer to such Affiliate in lieu of
\nsuch Purchaser. In the event that such Affiliate is so substituted as a
\npurchaser hereunder and such Affiliate thereafter transfers to such Purchaser
\nall of the Notes then held by such Affiliate, upon receipt by the Company of
\nnotice of such transfer, wherever the word “Purchaser” is used in this Agreement
\n(other than in this Section 21), such<\/p>\n
A-40
\n 47<\/p>\n
word shall no longer be deemed to refer to such Affiliate, but shall refer to
\nsuch Purchaser, and such Purchaser shall have all the rights of an original
\nholder of the Notes under this Agreement.<\/p>\n
SECTION 22. MISCELLANEOUS.<\/p>\n
Section 22.1. Successors and Assigns. All covenants and other
\nagreements contained in this Agreement (including all covenants and other
\nagreements contained in any Supplement) by or on behalf of any of the parties
\nhereto bind and inure to the benefit of their respective successors and assigns
\n(including, without limitation, any subsequent holder of a Note) whether so
\nexpressed or not.<\/p>\n
Section 22.2. Payments Due on Non-Business Days. Anything in this
\nAgreement or the Notes to the contrary notwithstanding, any payment of principal
\nof or Make-Whole Amount or interest on any Note that is due on a date other than
\na Business Day shall be made on the next succeeding Business Day without
\nincluding the additional days elapsed in the computation of the interest payable
\non such next succeeding Business Day.<\/p>\n
Section 22.3. Severability. Any provision of this Agreement that is
\nprohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
\nbe ineffective to the extent of such prohibition or unenforceability without
\ninvalidating the remaining provisions hereof, and any such prohibition or
\nunenforceability in any jurisdiction shall (to the full extent permitted by law)
\nnot invalidate or render unenforceable such provision in any other jurisdiction.<\/p>\n
Section 22.4. Construction. Each covenant contained herein shall be
\nconstrued (absent express provision to the contrary) as being independent of
\neach other covenant contained herein, so that compliance with any one covenant
\nshall not (absent such an express contrary provision) be deemed to excuse
\ncompliance with any other covenant. Where any provision herein refers to action
\nto be taken by any Person, or which such Person is prohibited from taking, such
\nprovision shall be applicable whether such action is taken directly or
\nindirectly by such Person.<\/p>\n
Section 22.5. Counterparts. This Agreement may be executed in any
\nnumber of counterparts, each of which shall be an original but all of which
\ntogether shall constitute one instrument. Each counterpart may consist of a
\nnumber of copies hereof, each signed by less than all, but together signed by
\nall, of the parties hereto.<\/p>\n
Section 22.6. Governing Law. This Agreement shall be construed and
\nenforced in accordance with, and the rights of the parties shall be governed by,
\nthe law of the State of New York excluding choice-of-law principles of the law
\nof such State that would require the application of the laws of a jurisdiction
\nother than such State.<\/p>\n
Section 22.7. Legal Rate of Interest. Regardless of any provision
\ncontained in this Agreement or in any Guaranty Agreement or the Security
\nDocuments, the rate of interest borne by the Notes shall not exceed the maximum
\namount of nonusurious interest that may be contracted for, taken, reserved,
\ncharged or received under any applicable law; any interest in excess of that
\nmaximum amount shall be credited on the principal of the Notes of the applicable
\nSeries or, if that has been paid, refunded. On any acceleration or required or
\npermitted <\/p>\n
A-41
\n 48<\/p>\n
prepayment, any such excess shall be canceled automatically as of the
\nacceleration or prepayment or, if already paid, credited on the principal of the
\nNotes of the applicable Series or, if the principal of the Notes of such Series
\nhas been paid, refunded. In determining whether or not the interest paid or
\npayable, under any specific contingency, exceeds the maximum amount of
\nnonusurious interest, the Company and holders of the Notes shall, to the maximum
\nextent permitted under applicable law, (a) characterize any nonprincipal payment
\nas an expense, fee or premium rather than as interest, (b) exclude voluntary
\nprepayments and the effects thereof, and (c) spread the total amount of interest
\nthroughout the entire contemplated term of the Notes of the applicable Series.<\/p>\n
Section 22.8. Submission to Process. THE COMPANY HEREBY AGREES THAT ANY
\nLEGAL ACTION OR PROCEEDING AGAINST THE COMPANY WITH RESPECT TO THIS AGREEMENT,
\nANY SECURITY DOCUMENT OR THE NOTES MAY BE BROUGHT IN THE COURTS OF THE STATE OF
\nNEW YORK OR (TO THE EXTENT THEY HAVE SUBJECT MATTER JURISDICTION) OF THE UNITED
\nSTATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AS THE HOLDERS OF 51% IN
\nPRINCIPAL AMOUNT OF THE NOTES MAY ELECT, AND, BY EXECUTION AND DELIVERY HEREOF,
\nTHE COMPANY ACCEPTS AND CONSENTS, FOR ITSELF AND IN RESPECT TO ITS PROPERTY,
\nGENERALLY AND UNCONDITIONALLY, TO THE JURISDICTION OF THE AFORESAID COURTS AND
\nAGREES THAT SUCH JURISDICTION SHALL BE EXCLUSIVE, UNLESS WAIVED BY THE HOLDERS
\nOF 51% IN PRINCIPAL AMOUNT OF THE NOTES IN WRITING, WITH RESPECT TO ANY ACTION
\nOR PROCEEDING BROUGHT BY THE COMPANY AGAINST THE HOLDERS AND ANY QUESTIONS
\nRELATING TO USURY. THE COMPANY WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE
\nLAW) ANY RIGHT TO STAY OR TO DISMISS ANY ACTION OR PROCEEDING BROUGHT BEFORE
\nSAID COURTS ON THE BASIS OF FORUM NON CONVENIENS. IN FURTHERANCE OF THE
\nFOREGOING, THE COMPANY HEREBY IRREVOCABLY DESIGNATES AND APPOINTS CAPITOL
\nSERVICES INC., AS AGENT OF THE COMPANY TO RECEIVE SERVICE OF ALL PROCESS BROUGHT
\nAGAINST THE COMPANY EACH WITH RESPECT TO ANY SUCH PROCEEDING IN ANY SUCH COURT
\nIN NEW YORK, SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY THE COMPANY TO BE
\nEFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. COPIES OF ANY SUCH PROCESS SO
\nSERVED SHALL ALSO, IF PERMITTED BY LAW, BE SENT BY REGISTERED MAIL TO THE
\nCOMPANY IN ACCORDANCE WITH SECTION 18 BUT THE FAILURE OF THE COMPANY TO RECEIVE
\nSUCH COPIES SHALL NOT AFFECT IN ANY WAY THE SERVICE OF SUCH PROCESS AS
\nAFORESAID. THE COMPANY SHALL FURNISH TO THE HOLDERS A CONSENT OF CAPITOL
\nSERVICES INC. AGREEING TO ACT HEREUNDER PRIOR TO THE DATE OF CLOSING. NOTHING
\nHEREIN SHALL AFFECT THE RIGHT OF THE HOLDERS TO SERVE PROCESS IN ANY OTHER
\nMANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE HOLDERS TO BRING
\nPROCEEDINGS AGAINST THE COMPANY IN THE COURTS OF ANY OTHER JURISDICTION. IF FOR
\nANY REASON CAPITOL SERVICES INC. SHALL RESIGN OR OTHERWISE CEASE TO ACT AS
\nAGENT, THE COMPANY HEREBY IRREVOCABLY AGREES TO (A) IMMEDIATELY DESIGNATE AND
\nAPPOINT A NEW AGENT ACCEPTABLE TO THE HOLDERS OF 51% IN PRINCIPAL AMOUNT OF THE
\nNOTES TO SERVE IN SUCH CAPACITY AND, IN SUCH EVENT, SUCH NEW AGENT SHALL BE
\nDEEMED TO BE SUBSTITUTED FOR CAPITOL SERVICES INC. FOR ALL PURPOSES HEREOF AND
\n(B) PROMPTLY DELIVER TO THE HOLDERS THE WRITTEN CONSENT (IN FORM AND SUBSTANCE
\nSATISFACTORY TO THE HOLDERS OF 51% IN PRINCIPAL AMOUNT OF THE NOTES) OF SUCH NEW
\nAGENT AGREEING TO SERVE IN SUCH CAPACITY.<\/p>\n
A-42
\n 49<\/p>\n
Section 22.9. Waivers by the Company. THE COMPANY WAIVES (A) THE RIGHT
\nTO TRIAL BY JURY (WHICH EACH HOLDER OF NOTES HEREBY ALSO WAIVES) IN ANY ACTION,
\nSUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED TO THIS
\nAGREEMENT, ANY SECURITY DOCUMENT OR THE NOTES; (B) PRESENTMENT, DEMAND AND
\nPROTEST AND NOTICE OF PRESENTMENT, PROTEST, DEFAULT, NON-PAYMENT, INTENT TO
\nACCELERATE, ACCELERATION, MATURITY, RELEASE, COMPROMISE, SETTLEMENT, EXTENSION
\nOR RENEWAL OF ANY OR ALL DOCUMENTS, INSTRUMENTS, AND GUARANTIES AT ANY TIME HELD
\nBY THE HOLDERS OF NOTES (OR ANY AGENT THEREFOR) ON WHICH THE COMPANY MAY IN ANY
\nWAY BE LIABLE AND HEREBY RATIFIES AND CONFIRMS WHATEVER THE HOLDERS OF NOTES MAY
\nDO IN THIS REGARD; AND (C) NOTICE OF ACCEPTANCE HEREOF. THE COMPANY ACKNOWLEDGES
\nTHAT THE FOREGOING WAIVERS ARE A MATERIAL INDUCEMENT TO THE HOLDERS’ ENTERING
\nINTO THIS AGREEMENT AND THAT THE HOLDERS ARE RELYING UPON THE FOREGOING WAIVERS
\nIN THEIR FUTURE DEALINGS WITH THE COMPANY. THE COMPANY WARRANTS AND REPRESENTS
\nTHAT IT HAS REVIEWED THE FOREGOING WAIVERS WITH ITS LEGAL COUNSEL AND HAS
\nKNOWINGLY AND VOLUNTARILY WAIVED ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION
\nWITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A
\nWRITTEN CONSENT TO A TRIAL BY THE COURT.<\/p>\n
* * * * *<\/p>\n
A-43
\n 50<\/p>\n
The execution hereof by the Purchasers shall constitute a contract
\namong the Company and the Purchasers for the uses and purposes hereinabove set
\nforth. This Agreement may be executed in any number of counterparts, each
\nexecuted counterpart constituting an original but all together only one
\nagreement.<\/p>\n
Very truly yours,<\/p>\n
QUANTA SERVICES, INC.<\/p>\n
By<\/p>\n
Name:
\n ——————————-
\n Title:
\n ——————————<\/p>\n
A-44
\n 51<\/p>\n
Accepted as of the first date written above.<\/p>\n
[VARIATION]<\/p>\n
By<\/p>\n
Name:
\n ——————————-
\n Title:
\n ——————————<\/p>\n
A-45
\n 52<\/p>\n
DEFINED TERMS<\/p>\n
As used herein, the following terms have the respective meanings set
\nforth below or set forth in the Section hereof following such term:<\/p>\n
“Additional Notes” is defined in Section 2.4.<\/p>\n
“Additional Purchasers” means purchasers of Additional Notes.<\/p>\n
“Affiliate” means, at any time, and with respect to any Person, (a) any
\nother Person that at such time directly or indirectly through one or more
\nintermediaries Controls, or is Controlled by, or is under common Control with,
\nsuch first Person, and (b) any Person beneficially owning or holding, directly
\nor indirectly, 10% or more of any class of equity interests of the Company or
\nany Subsidiary or any corporation of which the Company and its Subsidiaries
\nbeneficially own or hold, in the aggregate, directly or indirectly, 10% or more
\nof any class of equity interests. As used in this definition, “Control” means
\nthe possession, directly or indirectly, of the power to direct or cause the
\ndirection of the management and policies of a Person, whether through the
\nownership of voting securities, by contract or otherwise. Unless the context
\notherwise clearly requires, any reference to an “Affiliate” is a reference to an
\nAffiliate of the Company, provided, however, that Enron Capital & Trade
\nResources Corp., Joint Energy Development Investment II Limited Partnership and
\nUtilicorp United, Inc. and their respective Affiliates shall not be deemed to be
\nAffiliates of the Company. The ownership of Designated Subordinated Debt shall
\nnot be considered for purposes of determining whether any Person is an Affiliate
\nfor purposes of this Agreement.<\/p>\n
“Bank Credit Agreement” means the Third Amended and Restated Secured
\nCredit Agreement between the Company and its Bank Lenders, dated as of June 14,
\n1999, as amended, restated, refinanced, replaced, increased or reduced from time
\nto time, and any successor bank credit agreement.<\/p>\n
“Bank Lenders” means the banks or other lenders which are from time to
\ntime party to the Bank Credit Agreement.<\/p>\n
“Business Day” means (a) for the purposes of Section 8.6 only, any day
\nother than a Saturday, a Sunday or a day on which commercial banks in New York
\nCity are required or authorized to be closed, and (b) for the purposes of any
\nother provision of this Agreement, any day other than a Saturday, a Sunday or a
\nday on which commercial banks in Houston, Texas or New York, New York are
\nrequired or authorized to be closed.<\/p>\n
“Capital Lease” means, at any time, a lease with respect to which the
\nlessee is required concurrently to recognize the acquisition of an asset and the
\nincurrence of a liability in accordance with GAAP.<\/p>\n
“Capital Lease Obligation” means, with respect to any Person and a
\nCapital Lease, the amount of the obligation of such Person as the lessee under
\nsuch Capital Lease which would, in accordance with GAAP, appear as a liability
\non a balance sheet of such Person.<\/p>\n
SCHEDULE B
\n (to Note Purchase Agreement)
\n 53<\/p>\n
“Change in Control” has the meaning set forth in Section 8.7.<\/p>\n
“Closing” is defined in Section 3.<\/p>\n
“Code” means the Internal Revenue Code of 1986, as amended from time to
\ntime, and the rules and regulations promulgated thereunder from time to time.<\/p>\n
“Collateral” means the personal property of the Company and the
\nGuarantors described in the Security Documents.<\/p>\n
“Collateral Agent” means NationsBank, N.A. d\/b\/a Bank of America, N.A.,
\nand any successor collateral agent appointed in accordance with the terms of the
\nSecurity Documents.<\/p>\n
“Collateral Release Event” shall have the meaning assigned thereto in
\nSection 2.3.<\/p>\n
“Company” means Quanta Services, Inc., a Delaware corporation.<\/p>\n
“Competitor” means any Person (including any subsidiary or affiliate
\nthereof) primarily engaged in contracting and maintenance services relating to
\nelectric, utility, telecommunications or cable television infrastructure in
\nNorth America provided, however, that the term “Competitor” shall exclude any
\nPerson which is an Institutional Investor and which, but for this provision
\nwould fall within the definition of “Competitor” solely through holding passive
\ninvestments in a Competitor.<\/p>\n
“Confidential Information” is defined in Section 20.<\/p>\n
“Consolidated Debt” means, as of any date of determination, the total
\nof all Debt of the Company and its Subsidiaries outstanding on such date, after
\neliminating all offsetting debits and credits between the Company and its
\nSubsidiaries and all other items required to be eliminated in the course of the
\npreparation of consolidated financial statements of the Company and its
\nSubsidiaries in accordance with GAAP.<\/p>\n
“Consolidated Debt Ratio” means, as of any date of determination, the
\nratio of (a) Consolidated Debt as of such date of determination to (b)
\nConsolidated Proforma Operating Cash Flow for the period of four consecutive
\nfiscal quarters ending immediately preceding such date of determination. For
\npurposes of determining the Consolidated Debt Ratio, Consolidated Proforma
\nOperating Cash Flow shall include the historical financial results of any
\n“business”, as defined in Regulation S-X (17 CFR 210), acquired during such
\nperiod of four consecutive fiscal quarters, calculated as if such business
\nentity had been acquired on the first day of such four quarter fiscal period (to
\nthe extent such results are not already reflected in the consolidated financial
\nresults of the Company and its Subsidiaries), and shall also give effect, on a
\npro forma basis, to the incurrence of Debt in connection with the acquisition of
\na business and the application of the proceeds thereof, including retirement of
\nany Debt of such business.<\/p>\n
“Consolidated Income Available for Interest Charges” means, with
\nrespect to any period, Consolidated Net Income for such period plus all amounts
\ndeducted in the computation thereof <\/p>\n
B-2
\n 54<\/p>\n
on account of (a) all Interest Charges during such period, (b) all taxes imposed
\non or measured by income or excess profits during such period, and (c) the total
\namount of Management Fees expensed during such period.<\/p>\n
“Consolidated Net Income” means, with reference to any period, the net
\nincome (or loss) of the Company and its Subsidiaries for such period (taken as a
\ncumulative whole), as determined in accordance with GAAP, after eliminating all
\noffsetting debits and credits between the Company and its Subsidiaries and all
\nother items required to be eliminated in the course of the preparation of
\nconsolidated financial statements of the Company and its Subsidiaries in
\naccordance with GAAP.<\/p>\n
“Consolidated Net Worth” means the consolidated stockholders’ equity of
\nthe Company and its Subsidiaries, as determined in accordance with GAAP, less
\nthe sum of (i) to the extent included in consolidated stockholders’ equity, all
\namounts properly attributable to minority interests, if any, and (ii) the
\naggregate amount of all Restricted Investments in excess of 10% of such
\nconsolidated stockholders’ equity.<\/p>\n
“Consolidated Proforma Operating Cash Flow” means, in respect of any
\nperiod, the sum of (a) Consolidated Net Income for such period, plus (b) to the
\nextent deducted in the determination of Consolidated Net Income for such period,
\n(x) all Interest Charges during such period, (y) the total amount of expenses
\nfor depreciation, amortization, income taxes, deferred items and other non-cash
\nexpenses of the Company and its Subsidiaries during such period, and (z) the
\ntotal amount of Management Fees expensed during such period.<\/p>\n
“Consolidated Total Assets” means, as of any date of determination, the
\ntotal amount of all assets of the Company and its Subsidiaries, determined on a
\nconsolidated basis in accordance with GAAP.<\/p>\n
“Debt” means, with respect to any Person, without duplication,<\/p>\n
(a) its liabilities for borrowed money and its redemption
\n obligations in respect of mandatorily redeemable Preferred Stock which
\n is redeemable prior to the maturity of any Note;<\/p>\n
(b) its liabilities for the deferred purchase price of
\n property acquired by such Person (excluding accounts payable and other
\n accrued liabilities arising in the ordinary course of business but
\n including, without limitation, all liabilities created or arising under
\n any conditional sale or other title retention agreement with respect to
\n any such property);<\/p>\n
(c) its Capital Lease Obligations;<\/p>\n
(d) all liabilities for borrowed money secured by any Lien
\n with respect to any property owned by such Person (whether or not it
\n has assumed or otherwise become liable for such liabilities); and<\/p>\n
B-3
\n 55<\/p>\n
(e) Guarantees of such Person with respect to liabilities of a
\n type described in any of clauses (a) through (d) hereof.<\/p>\n
Debt of any Person shall include all obligations of such Person of the
\ncharacter described in clauses (a) through (e) to the extent such Person remains
\nlegally liable in respect thereof notwithstanding that any such obligation is
\ndeemed to be extinguished under GAAP.<\/p>\n
“Default” means an event or condition the occurrence or existence of
\nwhich would, with the lapse of time or the giving of notice or both, become an
\nEvent of Default.<\/p>\n
“Default Rate” means for any Note that rate of interest that is the
\ngreater of (i) 2% per annum above the rate of interest stated in clause (a) of
\nthe first paragraph of such Note or (ii) 2% over the rate of interest publicly
\nannounced by Bank of America, N.A. in New York, New York as its “base” or
\n“prime” rate.<\/p>\n
“Designated Subordinated Debt” shall mean the Enron Subordinated Debt
\nand any other Subordinated Debt of the Company or any Subsidiary which has been
\ndesignated as “Designated Subordinated Debt” in writing by at least 51% of the
\noutstanding Notes of each Series (voting as separate classes).<\/p>\n
“Domestic Subsidiary” means any Subsidiary organized under the laws of
\nthe United States or any jurisdiction thereof.<\/p>\n
“Enron Subordinated Debt” shall mean the Convertible Subordinated Notes
\nissued by the Company pursuant to the Securities Purchase Agreement dated as of
\nSeptember 29, 1998, among the Company, Enron Capital & Trade Resources Corp. and
\nJoint Energy Development Investments II Limited Partnership, as amended from
\ntime to time.<\/p>\n
“Environmental Laws” means any and all federal, state, local, and
\nforeign statutes, laws, regulations, ordinances, rules, judgments, orders,
\ndecrees, permits, concessions, grants, franchises, licenses, agreements or
\ngovernmental restrictions relating to pollution and the protection of the
\nenvironment or the release of any materials into the environment, including but
\nnot limited to those related to hazardous substances or wastes, air emissions
\nand discharges to waste or public systems.<\/p>\n
“ERISA” means the Employee Retirement Income Security Act of 1974, as
\namended from time to time, and the rules and regulations promulgated thereunder
\nfrom time to time in effect.<\/p>\n
“ERISA Affiliate” means any trade or business (whether or not
\nincorporated) that is treated as a single employer together with the Company
\nunder Section 414 of the Code.<\/p>\n
“Event of Default” is defined in Section 11.<\/p>\n
“Exchange Act” means the Securities Exchange Act of 1934, as amended.<\/p>\n
B-4
\n 56<\/p>\n
“Excluded Sale and Leaseback Transaction” shall mean any sale or
\ntransfer of property acquired by the Company or any Subsidiary after the date of
\nthis Agreement to any Person within 180 days following the acquisition or
\nconstruction of such property by the Company or any Subsidiary if the Company or
\na Subsidiary shall concurrently with such sale or transfer, lease such property,
\nas lessee.<\/p>\n
“Excluded Subsidiary Obligations” means (a) the Guaranty Agreement and
\nany other Guaranty of Debt of the Company by a Guarantor which shall be a party
\nto the Guaranty Agreement and (b) obligations of Guarantors as co-obligors with,
\nor guarantors of, the Company on Debt; provided that each creditor which is a
\nbeneficiary of an Excluded Subsidiary Obligation shall have become a party to
\neither (i) the Intercreditor Agreement or (ii) an intercreditor agreement
\nbetween such beneficiary and the holders of Notes pursuant to which the parties
\nhave agreed to be treated on a pari passu basis with respect to any recovery on
\nsuch obligation.<\/p>\n
“Fair Market Value” means, at any time and with respect to any
\nproperty, the sale value of such property that would be realized in an
\narm’s-length sale at such time between an informed and willing buyer and an
\ninformed and willing seller (neither being under a compulsion to buy or sell),
\nas reasonably determined in the good faith opinion of the Company’s board of
\ndirectors.<\/p>\n
“GAAP” means generally accepted accounting principles as in effect from
\ntime to time in the United States of America.<\/p>\n
“Governmental Authority” means<\/p>\n
(a) the government of<\/p>\n
(i) the United States of America or any state or
\n other political subdivision thereof, or<\/p>\n
(ii) any jurisdiction in which the Company or any
\n Subsidiary conducts all or any part of its business, or which
\n has jurisdiction over any properties of the Company or any
\n Subsidiary, or<\/p>\n
(b) any entity exercising executive, legislative, judicial,
\n regulatory or administrative functions of, or pertaining to, any such
\n government.<\/p>\n
“Guarantor” shall mean those certain Subsidiaries of the Company which
\nshall be a party to a Guaranty Agreement.<\/p>\n
“Guaranty” means, with respect to any Person, any obligation (except
\nthe endorsement in the ordinary course of business of negotiable instruments for
\ndeposit or collection) of such Person guaranteeing or in effect guaranteeing any
\nDebt, dividend or other obligation of any other Person in any manner, whether
\ndirectly or indirectly, including (without limitation) obligations incurred
\nthrough an agreement, contingent or otherwise, by such Person:<\/p>\n
B-5
\n 57<\/p>\n
(a) to purchase such Debt or obligation or any property
\n constituting security therefor primarily for the purpose of assuring
\n the owner of such Debt or obligation of the ability of any other Person
\n to make payment of the Debt or obligation;<\/p>\n
(b) to advance or supply funds (i) for the purchase or payment
\n of such Debt or obligation, or (ii) to maintain any working capital or
\n other balance sheet condition or any income statement condition of any
\n other Person or otherwise to advance or make available funds for the
\n purchase or payment of such Debt or obligation;<\/p>\n
(c) to lease properties or to purchase properties or services
\n primarily for the purpose of assuring the owner of such Debt or
\n obligation of the ability of any other Person to make payment of the
\n Debt or obligation; or<\/p>\n
(d) otherwise to assure the owner of such Debt or obligation
\n against loss in respect thereof.<\/p>\n
In any computation of the Debt or other liabilities of the obligor under any
\nGuaranty, the Debt or other obligations that are the subject of such Guaranty
\nshall be assumed to be direct obligations of such obligor, provided that the
\namount of such Debt outstanding for purposes of this Agreement shall not be
\nexceed the maximum amount of Debt that is the subject of such Guaranty.<\/p>\n
“Guaranty Agreement” is defined in Section 2.2.<\/p>\n
“Guaranty Release Event” shall have the meaning assigned thereto in
\nSection 2.2.<\/p>\n
“Hazardous Material” means any and all pollutants, toxic or hazardous
\nwastes or any other substances that might pose a hazard to health or safety, the
\nremoval of which may be required or the generation, manufacture, refining,
\nproduction, processing, treatment, storage, handling, transportation, transfer,
\nuse, disposal, release, discharge, spillage, seepage, or filtration of which is
\nor shall be restricted, prohibited or penalized by any applicable law
\n(including, without limitation, asbestos, urea formaldehyde foam insulation and
\npolychlorinated biphenyls).<\/p>\n
“holder” means, with respect to any Note, the Person in whose name such
\nNote is registered in the register maintained by the Company pursuant to Section
\n13.1.<\/p>\n
“Institutional Investor” means (a) any original purchaser of a Note,
\n(b) any holder of more than $2,000,000 of the aggregate principal amount of the
\nNotes then outstanding, and (c) any bank, trust company, savings and loan
\nassociation or other financial institution, any pension plan, any investment
\ncompany, any insurance company, any broker or dealer, or any other similar
\nfinancial institution or entity, regardless of legal form.<\/p>\n
“Intercreditor Agreement” is defined in Section 2.3.<\/p>\n
“Interest Charges” means, with respect to any period, the sum (without
\nduplication) of the following (in each case, eliminating all offsetting debits
\nand credits between the Company<\/p>\n
B-6
\n 58<\/p>\n
and its Subsidiaries and all other items required to be eliminated in the course
\nof the preparation of consolidated financial statements of the Company and its
\nSubsidiaries in accordance with GAAP): (a) all interest in respect of Debt of
\nthe Company and its Subsidiaries (including imputed interest on Capital Lease
\nObligations) deducted in determining Consolidated Net Income for such period,
\nand (b) all debt discount and expense amortized or required to be amortized in
\nthe determination of Consolidated Net Income for such period.<\/p>\n
“Interest Charges Coverage Ratio” means, at any time, the ratio of (a)
\nConsolidated Income Available for Interest Charges for the period of four
\nconsecutive fiscal quarters ending on, or most recently ended prior to, such
\ntime to (b) the sum of (i) all Interest Charges during such period, (ii) the
\ntotal amount of the Management Fees paid during such period, and (iii) the total
\namount of any dividends or distributions paid or scheduled to be paid in respect
\nof the Utilicorp Preferred Stock during such period.<\/p>\n
“Investments” shall mean all investments, in cash or by delivery of
\nproperty made, directly or indirectly in any Person, whether by acquisition of
\nshares of capital stock, indebtedness or other obligations or securities or by
\nloan, advance, capital contribution or otherwise.<\/p>\n
“Lien” means, with respect to any Person, any mortgage, lien, pledge,
\ncharge, security interest or other encumbrance, or any interest or title of any
\nvendor, lessor, lender or other secured party to or of such Person under any
\nconditional sale or other title retention agreement or Capital Lease, upon or
\nwith respect to any property or asset of such Person.<\/p>\n
“Make-Whole Amount” shall have the meaning (i) set forth in Section 8.6
\nwith respect to any Series 2000-A Note and (ii) set forth in the applicable
\nSupplement with respect to any other Series of Notes.<\/p>\n
“Management Fee” means the management fee due from the Company to
\nUtilicorp under the terms of the management services agreement between the
\nCompany and Utilicorp under which Utilicorp will provide to the Company advice
\nregarding (a) corporate and strategic planning, (b) development, evaluation and
\nmarketing of the Company’s products and services, (c) potential acquisition
\ncandidates and business opportunities and (d) other similar and related
\nservices.<\/p>\n
“Material” means material in relation to the business, operations,
\naffairs, financial condition, assets or properties of the Company and its
\nSubsidiaries taken as a whole.<\/p>\n
“Material Adverse Effect” means a material adverse effect on (a) the
\nbusiness, operations, affairs, financial condition, assets or properties of the
\nCompany and its Subsidiaries taken as a whole, or (b) the ability of the Company
\nto perform its obligations under this Agreement (including any Supplement) and
\nthe Notes, or (c) the validity or enforceability of this Agreement (including
\nany Supplement) or the Notes.<\/p>\n
“Memorandum” is defined in Section 5.3.<\/p>\n
B-7
\n 59<\/p>\n
“Multiemployer Plan” means any Plan that is a “multiemployer plan” (as
\nsuch term is defined in Section 4001(a)(3) of ERISA).<\/p>\n
“Notes” is defined in Section 1.<\/p>\n
“Officer’s Certificate” means a certificate of a Senior Financial
\nOfficer or of any other officer of the Company whose responsibilities extend to
\nthe subject matter of such certificate.<\/p>\n
“PBGC” means the Pension Benefit Guaranty Corporation referred to and
\ndefined in ERISA or any successor thereto.<\/p>\n
“Person” means an individual, partnership, corporation, limited
\nliability company, association, trust, unincorporated organization, or a
\ngovernment or agency or political subdivision thereof.<\/p>\n
“Plan” means an “employee benefit plan” (as defined in Section 3(3) of
\nERISA) that is or, within the preceding five years, has been established or
\nmaintained, or to which contributions are or, within the preceding five years,
\nhave been made or required to be made, by the Company or any ERISA Affiliate or
\nwith respect to which the Company or any ERISA Affiliate may have any liability.<\/p>\n
“Pledged Stock” means the capital stock of the Subsidiaries of the
\nCompany pledged pursuant to the Security Documents.<\/p>\n
“Preferred Stock” means any class of capital stock of a corporation
\nthat is preferred over any other class of capital stock of such corporation as
\nto the payment of dividends or the payment of any amount upon liquidation or
\ndissolution of such corporation.<\/p>\n
“Priority Debt” means, without duplication, the sum of (a) all Debt of
\nthe Company or its Subsidiaries secured by a Lien other than Liens permitted by
\nparagraphs (a) through (k) of Section 10.5 and (b) all unsecured Debt of
\nSubsidiaries other than (i) Debt owed to the Company or any other Subsidiary and
\n(ii) unsecured Debt of a Subsidiary existing on the date hereof and listed on
\nSchedule 5.15 and (iii) Excluded Subsidiary Obligations.<\/p>\n
“property” or “properties” means, unless otherwise specifically
\nlimited, real or personal property of any kind, tangible or intangible, choate
\nor inchoate.<\/p>\n
“Purchasers” means the purchasers of the Series 2000-A Notes named in
\nSchedule A hereto.<\/p>\n
“QPAM Exemption” means Prohibited Transaction Class Exemption 84-14
\nissued by the United States Department of Labor.<\/p>\n
“Required Holders” means, at any time, the holders of at least 51% in
\nprincipal amount of the Notes at the time outstanding (exclusive of Notes then
\nowned by the Company or any of its Affiliates).<\/p>\n
B-8
\n 60<\/p>\n
“Responsible Officer” means any Senior Financial Officer and any other
\nofficer of the Company with responsibility for the administration of the
\nrelevant portion of this Agreement.<\/p>\n
“Restricted Investments” shall mean all Investments except any of the
\nfollowing: (i) property to be used in the ordinary course of business; (ii)
\nassets arising from the sale of goods and services in the ordinary course of
\nbusiness; (iii) Investments in one or more Subsidiaries or any Person that
\nbecomes a Subsidiary; (iv) Investments existing at the date of Closing and
\nreflected in Schedule 5.4; (v) Investments in obligations, maturing within one
\nyear, issued by or guaranteed by the United Sates of America, or an agency
\nthereof, or Canada, or any province thereof; (vi) Investments in tax-exempt
\nobligations, maturing within one year, which are rated in one of the top two
\nrating classifications by at least one national rating agency; (vii) Investments
\nin bank deposits, certificates of deposit or banker’s acceptances maturing
\nwithin one year issued by a commercial bank which is rated in one of the top two
\nrating classifications by at least one national rating agency; (viii)
\nInvestments in commercial paper, maturing within 270 days, rated in one of the
\ntop two rating classifications by at least one national rating agency; (ix)
\nInvestments in repurchase agreements; (x) treasury stock; (xi) Investments in
\nmoney market instrument programs which are classified as current assets in
\naccordance with GAAP; (xii) Investments constituting loans and advances to
\nemployees in the ordinary course of business not exceeding $5,000,000 in the
\naggregate; (xiii) Investments received in settlement of litigation or
\nbankruptcy; (xiv) swap agreements, cap agreements, collar agreements, forward
\ncontracts, options and other similar hedging agreements and arrangements
\ndesigned to protect against fluctuations in interest rate and currency exchange
\nrates which are entered into by the Company and its Subsidiaries in the ordinary
\ncourse of business and not as a speculative investment; (xv) prepaid expenses in
\nthe ordinary course of business; and (xvi) deposits for leases, utility services
\nand workers compensation and similar deposits made in the ordinary course of
\nbusiness.<\/p>\n
“Securities Act” means the Securities Act of 1933, as amended from time
\nto time.<\/p>\n
“Security Documents” means (i) the separate security agreements among
\nthe Collateral Agent and the Company and the Guarantors, (ii) the separate
\npledge agreements among the Collateral Agent and the Company and certain
\nGuarantors, and (iii) the patent collateral assignment between the Collateral
\nAgent and a Guarantor, whether in existence on the date hereof or hereafter
\nentered into, in each case as supplemented, amended, modified, renewed and
\nreplaced.<\/p>\n
“Senior Financial Officer” means the chief financial officer, principal
\naccounting officer, treasurer or comptroller of the Company.<\/p>\n
“Senior Debt” means, as of the date of any determination thereof, all
\nConsolidated Debt, other than Subordinated Debt.<\/p>\n
“Series” means any series of Notes issued pursuant to this Agreement or
\nany Supplement hereto.<\/p>\n
B-9
\n 61<\/p>\n
“Significant Subsidiary” means, at any time, any Subsidiary that
\naccounts for more than (i) 5% of the consolidated assets of the Company and its
\nSubsidiaries or (ii) 5% of consolidated revenue of the Company and its
\nSubsidiaries.<\/p>\n
“Significant Subsidiary” shall also mean any two or more Subsidiaries
\nwhich in the aggregate account for more than (i) 5% of the consolidated assets
\nof the Company and its Subsidiaries or (ii) 5% of consolidated revenue of the
\nCompany and its Subsidiaries.<\/p>\n
“Subordinated Debt” means, as of the date of any determination thereof,
\nthe Enron Subordinated Debt and all other unsecured Debt of the Company which
\nshall contain or have applicable thereto subordination provisions providing for
\nthe subordination thereof to other Debt of the Company (including, without
\nlimitation, the Notes).<\/p>\n
“Subsidiary” means, as to any Person, any corporation, association or
\nother business entity in which such Person or one or more of its Subsidiaries or
\nsuch Person and one or more of its Subsidiaries owns sufficient equity or voting
\ninterests to enable it or them (as a group) ordinarily, in the absence of
\ncontingencies, to elect a majority of the directors (or Persons performing
\nsimilar functions) of such entity, and any partnership or joint venture if more
\nthan a 50% interest in the profits or capital thereof is owned by such Person or
\none or more of its Subsidiaries or such Person and one or more of its
\nSubsidiaries (unless such partnership can and does ordinarily take major
\nbusiness actions without the prior approval of such Person or one or more of its
\nSubsidiaries). Unless the context otherwise clearly requires, any reference to a
\n“Subsidiary” is a reference to a Subsidiary of the Company.<\/p>\n
“Supplement” shall have the meaning assigned thereto in Section 2.4.<\/p>\n
“Utilicorp” means Utilicorp United, Inc., a Delaware corporation.<\/p>\n
“Utilicorp Preferred Stock” means the perpetual preferred stock issued
\nby the Company to Utilicorp which (a) has a dividend at a 0.5% annual coupon
\nrate payable for six (6) years after the date of issuance, (b) is convertible
\ninto common stock of the Company at the option of Utilicorp at a conversion
\nprice which is fixed (or the method of its determination is fixed) on the date
\nissued, (c) is not subject to voluntary redemption by the Company or mandatory
\nredemption by the Company at the request of Utilicorp, (d) participates with the
\nCompany’s common stock in permitted distributions, (e) has voting rights equal
\nto the number of shares into which it could be converted as of the applicable
\nrecord date, (f) has preemptive rights to maintain its proportionate equity
\nownership in the Company, and (g) gives the Company the option to pay, defer, or
\npay in kind any scheduled dividend.<\/p>\n
“Wholly-Owned Subsidiary” means, at any time, any Subsidiary one
\nhundred percent (100%) of all of the equity interests (except directors’
\nqualifying shares) and voting interests of which are owned by any one or more of
\nthe Company and the Company’s other Wholly-Owned Subsidiaries at such time.<\/p>\n
B-10
\n 62<\/p>\n
[FORM OF TRANCHE 1 NOTE]<\/p>\n
QUANTA SERVICES, INC.<\/p>\n
8.46% SERIES 2000-A SENIOR SECURED NOTE, TRANCHE 1, DUE MARCH 1, 2005<\/p>\n
No. [______] [Date]
\n$[__________] PPN [_________]<\/p>\n
FOR VALUE RECEIVED, the undersigned, QUANTA SERVICES, INC. (herein
\ncalled the “Company”), a corporation organized and existing under the laws of
\nthe State of Delaware, hereby promises to pay to [_____________________] or
\nregistered assigns, the principal sum of [______________] DOLLARS on March 1,
\n2005 with interest (computed on the basis of a 360-day year of twelve 30-day
\nmonths) (a) on the unpaid balance thereof at the rate of 8.46% per annum from
\nthe date hereof, payable semi-annually, on the fifteenth day of January and July
\nin each year and at maturity, commencing with the January or July next
\nsucceeding the date hereof, until the principal hereof shall have become due and
\npayable, and (b) to the extent permitted by law on any overdue payment
\n(including any overdue prepayment) of principal, any overdue payment of interest
\nand any overdue payment of any Make-Whole Amount (as defined in the Note
\nPurchase Agreement referred to below), payable semi-annually as aforesaid (or,
\nat the option of the registered holder hereof, on demand), at a rate per annum
\nfrom time to time equal to the greater of (i) 10.46% or (ii) 2% over the rate of
\ninterest publicly announced by Bank of America, N.A. from time to time in New
\nYork, New York as its “base” or “prime” rate.<\/p>\n
Payments of principal of, interest on and any Make-Whole Amount with
\nrespect to this Note are to be made in lawful money of the United States of
\nAmerica at the principal office of Bank of America, N.A. in New York, New York
\nor at such other place as the Company shall have designated by written notice to
\nthe holder of this Note as provided in the Note Purchase Agreement referred to
\nbelow.<\/p>\n
This Note is one of a series of Senior Secured Notes (herein called the
\n“Notes”) issued pursuant to the Note Purchase Agreement, dated as of March 1,
\n2000 (as from time to time amended, supplemented or modified, the “Note Purchase
\nAgreement”), between the Company and the respective Purchasers named therein and
\nis entitled to the benefits thereof. Each holder of this Note will be deemed, by
\nits acceptance hereof, (i) to have agreed to the confidentiality provisions set
\nforth in Section 20 of the Note Purchase Agreement and (ii) to have made the
\nrepresentation set forth in Section 6.2 of the Note Purchase Agreement.<\/p>\n
This Note is a registered Note and, as provided in the Note Purchase
\nAgreement, upon surrender of this Note for registration of transfer, duly
\nendorsed, or accompanied by a written instrument of transfer duly executed, by
\nthe registered holder hereof or such holder’s attorney duly authorized in
\nwriting, a new Note for a like principal amount will be issued to, and
\nregistered in the name of, the transferee. Prior to due presentment for
\nregistration of transfer, the Company may treat the person in whose name this
\nNote is registered as the owner hereof for the purpose of receiving payment and
\nfor all other purposes, and the Company will not be affected by any notice to
\nthe contrary.<\/p>\n
EXHIBIT 1(a)<\/p>\n
(to Note Purchase Agreement)<\/p>\n
63<\/p>\n
The Company will make required prepayments of principal on the dates
\nand in the amounts specified in the Note Purchase Agreement. This Note is also
\nsubject to optional prepayment, in whole or from time to time in part, at the
\ntimes and on the terms specified in the Note Purchase Agreement, but not
\notherwise.<\/p>\n
If an Event of Default, as defined in the Note Purchase Agreement,
\noccurs and is continuing, the principal of this Note may be declared or
\notherwise become due and payable in the manner, at the price (including any
\napplicable Make-Whole Amount) and with the effect provided in the Note Purchase
\nAgreement.<\/p>\n
Pursuant to the Guaranty Agreement dated as of March 1, 2000, certain
\nsubsidiaries of the Company have absolutely and unconditionally guaranteed
\npayment in full of the principal of, Make-Whole Amount if any, and interest on
\nthis Note and the performance by the Company of all of its obligations contained
\nin the Note Purchase Agreement all as more fully set forth in said Guaranty
\nAgreement.<\/p>\n
This Note shall be construed and enforced in accordance with, and the
\nrights of the issuer and holder hereof shall be governed by, the law of the
\nState of New York excluding choice-of-law principles of the law of such State
\nthat would require the application of the laws of a jurisdiction other than such
\nState.<\/p>\n
QUANTA SERVICES, INC.<\/p>\n
By
\n Name:
\n ——————————-
\n Title:
\n ——————————-<\/p>\n
E-1(a)-2<\/p>\n
64<\/p>\n
[FORM OF TRANCHE 2 NOTE]<\/p>\n
QUANTA SERVICES, INC.<\/p>\n
8.55% SERIES 2000-A SENIOR SECURED NOTE, TRANCHE 2, DUE MARCH 1, 2007<\/p>\n
No. [______] [Date]
\n$[__________] PPN [_________]<\/p>\n
FOR VALUE RECEIVED, the undersigned, QUANTA SERVICES, INC. (herein
\ncalled the “Company”), a corporation organized and existing under the laws of
\nthe State of Delaware, hereby promises to pay to [_____________________] or
\nregistered assigns, the principal sum of [______________] DOLLARS on March 1,
\n2007 with interest (computed on the basis of a 360-day year of twelve 30-day
\nmonths) (a) on the unpaid balance thereof at the rate of 8.55% per annum from
\nthe date hereof, payable semi-annually, on the fifteenth day of January and July
\nin each year and at maturity, commencing with the January or July next
\nsucceeding the date hereof, until the principal hereof shall have become due and
\npayable, and (b) to the extent permitted by law on any overdue payment
\n(including any overdue prepayment) of principal, any overdue payment of interest
\nand any overdue payment of any Make-Whole Amount (as defined in the Note
\nPurchase Agreement referred to below), payable semi-annually as aforesaid (or,
\nat the option of the registered holder hereof, on demand), at a rate per annum
\nfrom time to time equal to the greater of (i) 10.55% or (ii) 2% over the rate of
\ninterest publicly announced by Bank of America, N.A. from time to time in New
\nYork, New York as its “base” or “prime” rate.<\/p>\n
Payments of principal of, interest on and any Make-Whole Amount with
\nrespect to this Note are to be made in lawful money of the United States of
\nAmerica at the principal office of Bank of America, N.A. in New York, New York
\nor at such other place as the Company shall have designated by written notice to
\nthe holder of this Note as provided in the Note Purchase Agreement referred to
\nbelow.<\/p>\n
This Note is one of a series of Senior Secured Notes (herein called the
\n“Notes”) issued pursuant to the Note Purchase Agreement, dated as of March 1,
\n2000 (as from time to time amended, supplemented or modified, the “Note Purchase
\nAgreement”), between the Company and the respective Purchasers named therein and
\nis entitled to the benefits thereof. Each holder of this Note will be deemed, by
\nits acceptance hereof, (i) to have agreed to the confidentiality provisions set
\nforth in Section 20 of the Note Purchase Agreement and (ii) to have made the
\nrepresentation set forth in Section 6.2 of the Note Purchase Agreement.<\/p>\n
This Note is a registered Note and, as provided in the Note Purchase
\nAgreement, upon surrender of this Note for registration of transfer, duly
\nendorsed, or accompanied by a written instrument of transfer duly executed, by
\nthe registered holder hereof or such holder’s attorney duly authorized in
\nwriting, a new Note for a like principal amount will be issued to, and
\nregistered in the name of, the transferee. Prior to due presentment for
\nregistration of transfer, the Company may treat the person in whose name this
\nNote is registered as the owner hereof for the purpose of receiving payment and
\nfor all other purposes, and the Company will not be affected by any notice to
\nthe contrary.<\/p>\n
EXHIBIT 1(b)
\n (to Note Purchase Agreement)<\/p>\n
65<\/p>\n
The Company will make required prepayments of principal on the dates
\nand in the amounts specified in the Note Purchase Agreement. This Note is also
\nsubject to optional prepayment, in whole or from time to time in part, at the
\ntimes and on the terms specified in the Note Purchase Agreement, but not
\notherwise.<\/p>\n
If an Event of Default, as defined in the Note Purchase Agreement,
\noccurs and is continuing, the principal of this Note may be declared or
\notherwise become due and payable in the manner, at the price (including any
\napplicable Make-Whole Amount) and with the effect provided in the Note Purchase
\nAgreement.<\/p>\n
Pursuant to the Guaranty Agreement dated as of March 1, 2000, certain
\nsubsidiaries of the Company have absolutely and unconditionally guaranteed
\npayment in full of the principal of, Make-Whole Amount if any, and interest on
\nthis Note and the performance by the Company of all of its obligations contained
\nin the Note Purchase Agreement all as more fully set forth in said Guaranty
\nAgreement.<\/p>\n
This Note shall be construed and enforced in accordance with, and the
\nrights of the issuer and holder hereof shall be governed by, the law of the
\nState of New York excluding choice-of-law principles of the law of such State
\nthat would require the application of the laws of a jurisdiction other than such
\nState.<\/p>\n
QUANTA SERVICES, INC.<\/p>\n
By
\n Name:
\n ——————————-
\n Title:
\n ——————————-<\/p>\n
E-1(b)-2<\/p>\n
66<\/p>\n
[FORM OF TRANCHE 3 NOTE]<\/p>\n
QUANTA SERVICES, INC.<\/p>\n
8.61% SERIES 2000-A SENIOR SECURED NOTE, TRANCHE 3, DUE MARCH 1, 2010<\/p>\n
No. [______] [Date]
\n$[__________] PPN [_________]<\/p>\n
FOR VALUE RECEIVED, the undersigned, QUANTA SERVICES, INC. (herein
\ncalled the “Company”), a corporation organized and existing under the laws of
\nthe State of Delaware, hereby promises to pay to [_____________________] or
\nregistered assigns, the principal sum of [______________] DOLLARS on March 1,
\n2010 with interest (computed on the basis of a 360-day year of twelve 30-day
\nmonths) (a) on the unpaid balance thereof at the rate of 8.61% per annum from
\nthe date hereof, payable semi-annually, on the fifteenth day of January and July
\nin each year and at maturity, commencing with the January or July next
\nsucceeding the date hereof, until the principal hereof shall have become due and
\npayable, and (b) to the extent permitted by law on any overdue payment
\n(including any overdue prepayment) of principal, any overdue payment of interest
\nand any overdue payment of any Make-Whole Amount (as defined in the Note
\nPurchase Agreement referred to below), payable semi-annually as aforesaid (or,
\nat the option of the registered holder hereof, on demand), at a rate per annum
\nfrom time to time equal to the greater of (i) 10.61% or (ii) 2% over the rate of
\ninterest publicly announced by Bank of America, N.A. from time to time in New
\nYork, New York as its “base” or “prime” rate.<\/p>\n
Payments of principal of, interest on and any Make-Whole Amount with
\nrespect to this Note are to be made in lawful money of the United States of
\nAmerica at the principal office of Bank of America, N.A. in New York, New York
\nor at such other place as the Company shall have designated by written notice to
\nthe holder of this Note as provided in the Note Purchase Agreement referred to
\nbelow.<\/p>\n
This Note is one of a series of Senior Secured Notes (herein called the
\n“Notes”) issued pursuant to the Note Purchase Agreement, dated as of March 1,
\n2000 (as from time to time amended, supplemented or modified, the “Note Purchase
\nAgreement”), between the Company and the respective Purchasers named therein and
\nis entitled to the benefits thereof. Each holder of this Note will be deemed, by
\nits acceptance hereof, (i) to have agreed to the confidentiality provisions set
\nforth in Section 20 of the Note Purchase Agreement and (ii) to have made the
\nrepresentation set forth in Section 6.2 of the Note Purchase Agreement.<\/p>\n
This Note is a registered Note and, as provided in the Note Purchase
\nAgreement, upon surrender of this Note for registration of transfer, duly
\nendorsed, or accompanied by a written instrument of transfer duly executed, by
\nthe registered holder hereof or such holder’s attorney duly authorized in
\nwriting, a new Note for a like principal amount will be issued to, and
\nregistered in the name of, the transferee. Prior to due presentment for
\nregistration of transfer, the Company may treat the person in whose name this
\nNote is registered as the owner hereof for the purpose of receiving payment and
\nfor all other purposes, and the Company will not be affected by any notice to
\nthe contrary.<\/p>\n
EXHIBIT 1(c)
\n (to Note Purchase Agreement)
\n 67<\/p>\n
The Company will make required prepayments of principal on the dates
\nand in the amounts specified in the Note Purchase Agreement. This Note is also
\nsubject to optional prepayment, in whole or from time to time in part, at the
\ntimes and on the terms specified in the Note Purchase Agreement, but not
\notherwise.<\/p>\n
If an Event of Default, as defined in the Note Purchase Agreement,
\noccurs and is continuing, the principal of this Note may be declared or
\notherwise become due and payable in the manner, at the price (including any
\napplicable Make-Whole Amount) and with the effect provided in the Note Purchase
\nAgreement.<\/p>\n
Pursuant to the Guaranty Agreement dated as of March 1, 2000, certain
\nsubsidiaries of the Company have absolutely and unconditionally guaranteed
\npayment in full of the principal of, Make-Whole Amount if any, and interest on
\nthis Note and the performance by the Company of all of its obligations contained
\nin the Note Purchase Agreement all as more fully set forth in said Guaranty
\nAgreement.<\/p>\n
This Note shall be construed and enforced in accordance with, and the
\nrights of the issuer and holder hereof shall be governed by, the law of the
\nState of New York excluding choice-of-law principles of the law of such State
\nthat would require the application of the laws of a jurisdiction other than such
\nState.<\/p>\n
QUANTA SERVICES, INC.<\/p>\n
By
\n Name:
\n ——————————-
\n Title:
\n ——————————-<\/p>\n
E-1(c)-2<\/p>\n
68<\/p>\n
FORM OF OPINION OF GENERAL COUNSEL<\/p>\n
TO THE COMPANY<\/p>\n
The closing opinion of Brad Eastman, General Counsel to the Company,
\nwhich is called for by Section 4.11 of the Note Purchase Agreement, shall be
\ndated the date of Closing and addressed to the Purchasers, shall be satisfactory
\nin scope and form to each Purchaser and shall be to the effect that:<\/p>\n
1. The Company is a corporation, duly incorporated, validly existing
\nand in good standing under the laws of its jurisdiction of incorporation, has
\nthe corporate power and the corporate authority to execute and perform the Note
\nPurchase Agreement and the Security Documents to which the Company is a party
\nand to issue the Notes and has the full corporate power and the corporate
\nauthority to conduct the activities in which it is now engaged and is duly
\nlicensed or qualified and is in good standing as a foreign corporation in each
\njurisdiction in which the character of the properties owned or leased by it or
\nthe nature of the business transacted by it makes such licensing or
\nqualification necessary except in jurisdictions where the failure to be so
\nqualified or licensed would not have a material adverse effect on the business
\nof the Company.<\/p>\n
2. Each Subsidiary is a corporation duly organized, validly existing
\nand in good standing under the laws of its jurisdiction of incorporation, has
\nthe corporate power and the corporate authority to execute and perform the
\nGuaranty Agreement and the Security Documents to which such Subsidiary is a
\nparty and is duly licensed or qualified and is in good standing in each
\njurisdiction in which the character of the properties owned or leased by it or
\nthe nature of the business transacted by it makes such licensing or
\nqualification necessary except in jurisdictions where the failure to be so
\nqualified or licensed would not have a material adverse effect on the business
\nof such Subsidiary. All of the issued and outstanding shares of capital stock of
\neach such Subsidiary have been duly issued, are fully paid and non-assessable
\nand are owned by the Company, by one or more Subsidiaries, or by the Company and
\none or more Subsidiaries. All such outstanding shares have been duly pledged to
\nthe Collateral Agent as security for the Notes under the Pledge Agreements.<\/p>\n
3. The Note Purchase Agreement has been duly authorized by all
\nnecessary corporate action on the part of the Company, has been duly executed
\nand delivered by the Company and constitutes the legal, valid and binding
\ncontract of the Company enforceable in accordance with its terms, subject to
\nbankruptcy, insolvency, fraudulent conveyance and similar laws affecting
\ncreditors’ rights generally, and general principles of equity (regardless of
\nwhether the application of such principles is considered in a proceeding in
\nequity or at law).<\/p>\n
4. The Series 2000-A Notes have been duly authorized by all necessary
\ncorporate action on the part of the Company, have been duly executed and
\ndelivered by the Company and constitute the legal, valid and binding obligations
\nof the Company enforceable in accordance with their terms, subject to
\nbankruptcy, insolvency, fraudulent conveyance and similar laws affecting
\ncreditors’ rights generally, and general principles of equity (regardless of
\nwhether the application of such principles is considered in a proceeding in
\nequity or at law).<\/p>\n
EXHIBIT 4.11(a)
\n (to Note Purchase Agreement)<\/p>\n
69<\/p>\n
5. The Guaranty Agreement has been duly authorized by all necessary
\ncorporate action on the part of the Guarantors, has been duly executed and
\ndelivered by the Guarantors and constitutes the legal, valid and binding
\ncontract of the Guarantors enforceable in accordance with its terms, subject to
\nbankruptcy, insolvency, fraudulent conveyance and similar laws affecting
\ncreditors’ rights generally, and general principles of equity (regardless of
\nwhether the application of such principles is considered in a proceeding in
\nequity or at law).<\/p>\n
6. Each of the Security Documents has been duly authorized by all
\nnecessary corporate action on the part of the respective obligor thereunder, has
\nbeen duly executed and delivered by the respective obligor thereunder and
\nconstitutes the legal, valid and binding contract of the respective obligor
\nthereunder enforceable in accordance with its terms, subject to bankruptcy,
\ninsolvency, fraudulent conveyance and similar laws affecting creditors’ rights
\ngenerally, and general principles of equity (regardless of whether the
\napplication of such principles is considered in a proceeding in equity or at
\nlaw).<\/p>\n
7. The issuance and sale of the Series 2000-A Notes and the execution,
\ndelivery and performance by the Company of the Note Purchase Agreement and the
\nSecurity Documents to which it is a party do not violate any provision of any
\nlaw or other rule or regulation of any Governmental Authority applicable to the
\nCompany or conflict with or result in any breach of any of the provisions of or
\nconstitute a default under or result in the creation or imposition of any Lien
\nupon any of the property of the Company pursuant to the provisions of the
\nArticles of Incorporation or By-laws of the Company or any agreement or other
\ninstrument known to such counsel to which the Company is a party or by which the
\nCompany may be bound.<\/p>\n
8. The execution, delivery and performance by each of the Guarantors of
\nthe Guaranty Agreement and the Security Documents to which such Guarantor is a
\nparty do not violate any provision of any law or other rule or regulation of any
\nGovernmental Authority applicable to the Company or conflict with or result in
\nany breach of any of the provisions of or constitute a default under or result
\nin the creation or imposition of any Lien upon any of the property of such
\nGuarantor pursuant to the provisions of the Articles of Incorporation or By-laws
\nof such Guarantor or any agreement or other instrument known to such counsel to
\nwhich such Guarantor is a party or by which such Guarantor may be bound.<\/p>\n
9. There are no actions, suits or proceedings pending or, to the
\nknowledge of such counsel after due inquiry, threatened against or affecting the
\nCompany or any Subsidiary in any court or before any governmental authority or
\narbitration board or tribunal which, if adversely determined, would have a
\nmaterially adverse effect on the properties, business, prospects, profits or
\ncondition, (financial or otherwise) of the Company and its Subsidiaries or the
\nability of the Company to perform its obligations under the Note Purchase
\nAgreement, the Series 2000-A Notes and the Security Documents or on the
\nlegality, validity or enforceability of the Company’s obligations under the Note
\nPurchase Agreement, the Series 2000-A Notes, or the Security Documents. To the
\nknowledge of such counsel, neither the Company nor any Subsidiary is in default
\nwith respect to any court or governmental authority, or arbitration board or
\ntribunal. The opinion of Brad Eastman, Esq., shall cover such other matters
\nrelating to the sale of the Series 2000-A Notes as each Purchaser may reasonably
\nrequest. With respect to matters of fact on which such opinion is based, such
\ncounsel shall be entitled to rely on appropriate certificates of public
\nofficials and other officers of the Company.<\/p>\n
EXHIBIT 4.11(a)-2<\/p>\n
70<\/p>\n
FORM OF OPINION OF SPECIAL COUNSEL<\/p>\n
TO THE COMPANY<\/p>\n
The closing opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.,
\nSpecial Counsel to the Company, which is called for by Section 4.11 of the Note
\nPurchase Agreement, shall be dated the date of Closing and addressed to the
\nPurchasers, shall be satisfactory in scope and form to each Purchaser and shall
\nbe to the effect that:<\/p>\n
1. The Company is a corporation, duly incorporated, validly existing
\nand in good standing under the laws of its jurisdiction of incorporation, has
\nthe corporate power and the corporate authority to execute and perform the Note
\nPurchase Agreement and to issue the Notes and has the full corporate power and
\nthe corporate authority to conduct the activities in which it is now engaged.<\/p>\n
2. The Note Purchase Agreement constitutes the legal, valid and binding
\ncontract of the Company enforceable in accordance with its terms, subject to
\nbankruptcy, insolvency, fraudulent conveyance and similar laws affecting
\ncreditors’ rights generally, and general principles of equity (regardless of
\nwhether the application of such principles is considered in a proceeding in
\nequity or at law).<\/p>\n
3. The Series 2000-A Notes constitute the legal, valid and binding
\nobligations of the Company enforceable in accordance with their terms, subject
\nto bankruptcy, insolvency, fraudulent conveyance and similar laws affecting
\ncreditors’ rights generally, and general principles of equity (regardless of
\nwhether the application of such principles is considered in a proceeding in
\nequity or at law).<\/p>\n
4. The Guaranty Agreement constitutes the legal, valid and binding
\ncontract of the Guarantors enforceable in accordance with its terms, subject to
\nbankruptcy, insolvency, fraudulent conveyance and similar laws affecting
\ncreditors’ rights generally, and general principles of equity (regardless of
\nwhether the application of such principles is considered in a proceeding in
\nequity or at law).<\/p>\n
5. Each of the Security Documents constitutes the legal, valid and
\nbinding contract of the respective obligor thereunder enforceable in accordance
\nwith its terms, subject to bankruptcy, insolvency, fraudulent conveyance and
\nsimilar laws affecting creditors’ rights generally, and general principles of
\nequity (regardless of whether the application of such principles is considered
\nin a proceeding in equity or at law).<\/p>\n
6. Other than financing statements which have been filed, no approval,
\nconsent or withholding of objection on the part of, or filing, registration or
\nqualification with, any governmental body, Federal or state, is necessary in
\nconnection with the execution and delivery of the Note Purchase Agreement, the
\nSeries 2000-A Notes, the Security Documents or the Guaranty Agreement.<\/p>\n
EXHIBIT 4.11(b)
\n (to Note Purchase Agreement)
\n 71<\/p>\n
7. The issuance, sale and delivery of the Series 2000-A Notes and the
\nexecution and delivery of the Security Documents and the Guaranty Agreement
\nunder the circumstances contemplated by the Note Purchase Agreement do not,
\nunder existing law, require the registration of the Series 2000-A Notes, the
\nSecurity Documents or the Guaranty Agreement under the Securities Act of 1933,
\nas amended, or the qualification of an indenture under the Trust Indenture Act
\nof 1939, as amended.<\/p>\n
8. Neither the issuance of the Series 2000-A Notes nor the application
\nof the proceeds of the sale of the Notes will violate or result in a violation
\nof Section 7 of the Securities Exchange Act of 1934, as amended, or any
\nregulation issued pursuant thereto, including, without limitation, Regulation T,
\nU or X of the Board of Governors of the Federal Reserve System.<\/p>\n
9. The Company is not an “investment company” or a company “controlled”
\nby an “investment company”, within the meaning of the Investment Company Act of
\n1940, as amended.<\/p>\n
The opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., shall cover
\nsuch other matters relating to the sale of the Series 2000-A Notes as each
\nPurchaser may reasonably request. With respect to matters of fact on which such
\nopinion is based, such counsel shall be entitled to rely on appropriate
\ncertificates of public officials and other officers of the Company.<\/p>\n
EXHIBIT 4.11(b)-2
\n 72<\/p>\n
FORM OF OPINION OF SPECIAL COUNSEL<\/p>\n
TO THE PURCHASERS<\/p>\n
The closing opinion of Chapman and Cutler, special counsel to the
\nPurchasers, called for by Section 4.11 of the Note Purchase Agreement, shall be
\ndated the date of Closing and addressed to each Purchaser, shall be satisfactory
\nin form and substance to each Purchaser and shall be to the effect that:<\/p>\n
1. The Company is a corporation, validly existing and in good standing
\nunder the laws of its jurisdiction of incorporation and has the corporate power
\nand the corporate authority to execute and deliver the Note Purchase Agreement
\nand to issue the Series 2000-A Notes.<\/p>\n
2. The Note Purchase Agreement has been duly authorized by all
\nnecessary corporate action on the part of the Company, has been duly executed
\nand delivered by the Company and constitutes the legal, valid and binding
\ncontract of the Company enforceable in accordance with its terms, subject to
\nbankruptcy, insolvency, fraudulent conveyance and similar laws affecting
\ncreditors’ rights generally, and general principles of equity (regardless of
\nwhether the application of such principles is considered in a proceeding in
\nequity or at law).<\/p>\n
3. The Series 2000-A Notes have been duly authorized by all necessary
\ncorporate action on the part of the Company, and the Notes being delivered on
\nthe date hereof have been duly executed and delivered by the Company and
\nconstitute the legal, valid and binding obligations of the Company enforceable
\nin accordance with their terms, subject to bankruptcy, insolvency, fraudulent
\nconveyance and similar laws affecting creditors’ rights generally, and general
\nprinciples of equity (regardless of whether the application of such principles
\nis considered in a proceeding in equity or at law).<\/p>\n
4. The issuance, sale and delivery of the Series 2000-A Notes under the
\ncircumstances contemplated by the Note Purchase Agreement do not, under existing
\nlaw, require the registration of the Series 2000-A Notes under the Securities
\nAct of 1933, as amended, or the qualification of an indenture under the Trust
\nIndenture Act of 1939, as amended.<\/p>\n
The opinion of Chapman and Cutler shall also state that the opinions of
\nBrad Eastman, Esq., general counsel to the Company, and Akin, Gump, Strauss,
\nHauer & Field, LLP, special Counsel to the Company, are satisfactory in scope
\nand form to Chapman and Cutler and that, in their opinion, the Purchasers are
\njustified in relying thereon. With respect to matters of fact upon which such
\nopinion is based, Chapman and Cutler may rely on appropriate certificates of
\npublic officials and officers of the Company and upon representations of the
\nCompany and the Purchasers delivered in connection with the issuance and sale of
\nthe Series 2000-A Notes.<\/p>\n
EXHIBIT 4.11(c)-1<\/p>\n
73<\/p>\n
In rendering the opinion set forth in paragraph 1 above, Chapman and
\nCutler may rely, as to matters referred to in paragraph 1, solely upon an
\nexamination of the Articles of Incorporation certified by, and a certificate of
\ngood standing of the Company from, the Secretary of State of the State of
\nDelaware, the Bylaws of the Company and the general business corporation law of
\nthe State of Delaware. The opinion of Chapman and Cutler is limited to the laws
\nof the State of New York, the general business corporation law of the State of
\nDelaware and the Federal laws of the United States.<\/p>\n
EXHIBIT 4.11(c)-2<\/p>\n
74<\/p>\n
================================================================================<\/p>\n
QUANTA SERVICES, INC.<\/p>\n
[NUMBER] SUPPLEMENT TO NOTE PURCHASE AGREEMENT<\/p>\n
Dated as of ______________________<\/p>\n
Re: $____________ _____% Series _______ Senior Secured Notes
\n DUE _____________________<\/p>\n
================================================================================<\/p>\n
EXHIBIT S
\n (to Note Purchase Agreement)<\/p>\n
75<\/p>\n
QUANTA SERVICES, INC.
\n 1360 Post Oak Boulevard, Suite 2100
\n Houston, Texas 77056-3023<\/p>\n
Dated as of ___________, 20__<\/p>\n
To the Purchaser(s) named in
\nSchedule A hereto<\/p>\n
Ladies and Gentlemen:<\/p>\n
This [Number] Supplement to Note Purchase Agreement (the “Supplement”)
\nis between QUANTA SERVICES, INC., a Delaware (the “Company”), and the
\ninstitutional investors named on Schedule A attached hereto (the “Purchasers”).<\/p>\n
Reference is hereby made to that certain Note Purchase Agreement dated
\nas of March 1, 2000 (the “Note Purchase Agreement”) between the Company and the
\npurchasers listed on Schedule A thereto. All capitalized terms not otherwise
\ndefined herein shall have the same meaning as specified in the Note Purchase
\nAgreement. Reference is further made to Section 4.18 of the Note Purchase
\nAgreement which requires that, prior to the delivery of any Additional Notes,
\nthe Company and each Additional Purchaser shall execute and deliver a
\nSupplement.<\/p>\n
The Company hereby agrees with the Purchaser(s) as follows:<\/p>\n
1. The Company has authorized the issue and sale of $__________
\naggregate principal amount of its _____% Series ______ Senior Secured Notes due
\n_________, ____ (the “Series ______ Notes”). The Series ____ Notes, together
\nwith the Series 2000-A Notes [and the Series ____ Notes] initially issued
\npursuant to the Note Purchase Agreement and each series of Additional Notes
\nwhich may from time to time hereafter be issued pursuant to the provisions of
\nSection 2.4 of the Note Purchase Agreement, are collectively referred to as the
\n“Notes” (such term shall also include any such notes issued in substitution
\ntherefor pursuant to Section 13 of the Note Purchase Agreement). The Series
\n_____ Notes shall be substantially in the form set out in Exhibit 1 hereto with
\nsuch changes therefrom, if any, as may be approved by the Purchaser(s) and the
\nCompany.<\/p>\n
2. Subject to the terms and conditions hereof and as set forth in the
\nNote Purchase Agreement and on the basis of the representations and warranties
\nhereinafter set forth, the Company agrees to issue and sell to each Purchaser,
\nand each Purchaser agrees to purchase from the Company, Series _____ Notes in
\nthe principal amount set forth opposite such Purchaser’s name on Schedule A
\nhereto at a price of 100% of the principal amount thereof on the closing date
\nhereafter mentioned.<\/p>\n
76<\/p>\n
3. The sale and purchase of the Series ______ Notes to be purchased by
\neach Purchaser shall occur at the offices of [Chapman and Cutler, 111 West
\nMonroe Street, Chicago, Illinois 60603,] at 10:00 A.M. Chicago time, at a
\nclosing (the “Closing”) on ______, ____ or on such other Business Day thereafter
\non or prior to _______, ____ as may be agreed upon by the Company and the
\nPurchasers. At the Closing, the Company will deliver to each Purchaser the
\nSeries ______ Notes to be purchased by such Purchaser in the form of a single
\nSeries ______ Note (or such greater number of Series ______ Notes in
\ndenominations of at least $100,000 as such Purchaser may request) dated the date
\nof the Closing and registered in such Purchaser’s name (or in the name of such
\nPurchaser’s nominee), against delivery by such Purchaser to the Company or its
\norder of immediately available funds in the amount of the purchase price
\ntherefor by wire transfer of immediately available funds for the account of the
\nCompany to account number [__________________________] at ____________ Bank,
\n[Insert Bank address, ABA number for wire transfers, and any other relevant wire
\ntransfer information]. If, at the Closing, the Company shall fail to tender such
\nSeries ______ Notes to any Purchaser as provided above in this Section 3, or any
\nof the conditions specified in Section 4 shall not have been fulfilled to any
\nPurchaser’s satisfaction, such Purchaser shall, at such Purchaser’s election, be
\nrelieved of all further obligations under this Agreement, without thereby
\nwaiving any rights such Purchaser may have by reason of such failure or such
\nnonfulfillment.<\/p>\n
4. The obligation of each Purchaser to purchase and pay for the Series
\n______ Notes to be sold to such Purchaser at the Closing is subject to the
\nfulfillment to such Purchaser’s satisfaction, prior to the Closing, of the
\nconditions set forth in Section 4 of the Note Purchase Agreement with respect to
\nthe Series ______ Notes to be purchased at the Closing, and to the following
\nadditional conditions:<\/p>\n
(a) Except as supplemented, amended or superceded by the
\n representations and warranties set forth in Exhibit A hereto, each of
\n the representations and warranties of the Company set forth in Section
\n 5 of the Note Purchase Agreement shall be correct as of the date of
\n Closing and the Company shall have delivered to each Purchaser an
\n Officer’s Certificate, dated the date of the Closing certifying that
\n such condition has been fulfilled.<\/p>\n
(b) Contemporaneously with the Closing, the Company shall sell
\n to each Purchaser, and each Purchaser shall purchase, the Series ______
\n Notes to be purchased by such Purchaser at the Closing as specified in
\n Schedule A.<\/p>\n
5. [Here insert special provisions for Series 2000-A Notes including
\nprepayment provisions applicable to Series ______ Notes (including Make-Whole
\nAmount) and closing conditions applicable to Series ______ Notes].<\/p>\n
6. Each Purchaser represents and warrants that the representations and
\nwarranties set forth in Section 6 of the Note Purchase Agreement are true and
\ncorrect on the date hereof with respect to the purchase of the Series ______
\nNotes by such Purchaser.<\/p>\n
7. The Company and each Purchaser agree to be bound by and comply with
\nthe terms and provisions of the Note Purchase Agreement as fully and completely
\nas if such Purchaser were an original signatory to the Note Purchase Agreement.<\/p>\n
-2-
\n 77<\/p>\n
The execution hereof shall constitute a contract between the Company
\nand the Purchaser(s) for the uses and purposes hereinabove set forth, and this
\nagreement may be executed in any number of counterparts, each executed
\ncounterpart constituting an original but all together only one agreement.<\/p>\n
QUANTA SERVICES, INC.<\/p>\n
By
\n ————————————
\n Name:
\n ——————————-
\n Title:
\n ——————————-<\/p>\n
Accepted as of __________, _____<\/p>\n
[VARIATION]<\/p>\n
By
\n ————————————
\n Name:
\n ——————————-
\n Title:
\n ——————————-<\/p>\n
-3-
\n 78<\/p>\n
INFORMATION RELATING TO PURCHASERS<\/p>\n
\n\n PRINCIPAL
\nNAME AND ADDRESS OF PURCHASER AMOUNT OF SERIES
\n ______ NOTES TO
\n[NAME OF PURCHASER] BE PURCHASED $
\n
\n(1) All payments by wire transfer of
\n immediately available funds to:<\/p>\n with sufficient information to identify the
\n source and application of such funds.<\/p>\n
(2) All notices of payments and written
\n confirmations of such wire transfers:<\/p>\n
(3) All other communications:
\n<\/c><\/s><\/caption>\n<\/table>\n
SCHEDULE A
\n (to Supplement)<\/p>\n
79<\/p>\n
SUPPLEMENTAL REPRESENTATIONS<\/p>\n
The Company represents and warrants to each Purchaser that except as
\nhereinafter set forth in this Exhibit A, each of the representations and
\nwarranties set forth in Section 5 of the Note Purchase Agreement is true and
\ncorrect as of the date hereof with respect to the Series ______ Notes with the
\nsame force and effect as if each reference to “Series 2000-A Notes” set forth
\ntherein was modified to refer the “Series ______ Notes” and each reference to
\n“this Agreement” therein was modified to refer to the Note Purchase Agreement as
\nsupplemented by the _______ Supplement. The Section references hereinafter set
\nforth correspond to the similar sections of the Note Purchase Agreement which
\nare supplemented hereby:<\/p>\n
Section 5.3. Disclosure. The Company, through its agent, Banc of
\nAmerica Securities LLC, has delivered to each Purchaser a copy of a Private
\nPlacement Memorandum, dated ____________ (the “Memorandum”), relating to the
\ntransactions contemplated by the ______ Supplement. The Note Purchase Agreement,
\nthe Memorandum, the documents, certificates or other writings delivered to each
\nPurchaser by or on behalf of the Company in connection with the transactions
\ncontemplated by the Note Purchase Agreement and the _______ Supplement and the
\nfinancial statements listed in Schedule 5.5 to the _____ Supplement, taken as a
\nwhole, do not contain any untrue statement of a material fact or omit to state
\nany material fact necessary to make the statements therein not misleading in
\nlight of the circumstances under which they were made. Since ____________, there
\nhas been no change in the financial condition, operations, business, properties
\nor prospects of the Company or any Subsidiary except changes that individually
\nor in the aggregate could not reasonably be expected to have a Material Adverse
\nEffect.<\/p>\n
Section 5.4. Organization and Ownership of Shares of Subsidiaries. (a)
\nSchedule 5.4 to the ______ Supplement contains (except as noted therein)
\ncomplete and correct lists of the Company’s Subsidiaries, and showing, as to
\neach Subsidiary, the correct name thereof, the jurisdiction of its organization,
\nand the percentage of shares of each class of its capital stock or similar
\nequity interests outstanding owned by the Company and each other Subsidiary.<\/p>\n
Section 5.13. Private Offering by the Company. Neither the Company nor
\nanyone acting on its behalf has offered the Series A Notes or any similar
\nsecurities for sale to, or solicited any offer to buy any of the same from, or
\notherwise approached or negotiated in respect thereof with, any Person other
\nthan the Purchasers and not more than [_] other Institutional Investors, each of
\nwhich has been offered the Series ______ Notes at a private sale for investment.
\nNeither the Company nor anyone acting on its behalf has taken, or will take, any
\naction that would subject the issuance or sale of the Notes to the registration
\nrequirements of Section 5 of the Securities Act.<\/p>\n
Section 5.14. Use of Proceeds; Margin Regulations. The Company will
\napply the proceeds of the sale of the Series ______ Notes to
\n______________________________ and for general corporate purposes. No part of
\nthe proceeds from the sale of the Series ______ Notes pursuant to the _____
\nSupplement will be used, directly or indirectly, for the purpose of buying or
\ncarrying any margin stock within the meaning of Regulation U of the Board of
\nGovernors of <\/p>\n
EXHIBIT A
\n (to Supplement)<\/p>\n
80<\/p>\n
the Federal Reserve System (12 CFR 222), or for the purpose of buying or
\ncarrying or trading in any securities under such circumstances as to involve the
\nCompany in a violation of Regulation X of said Board (12 CFR 224) or to involve
\nany broker or dealer in a violation of Regulation T of said Board (12 CFR 220).
\nAs used in this Section, the terms “margin stock” and “purpose of buying or
\ncarrying” shall have the meanings assigned to them in said Regulation U.<\/p>\n
Section 5.15. Existing Debt; Future Liens. (a) Schedule 5.15 to the
\n_________ Supplement sets forth a complete and correct list of all outstanding
\nDebt of the Company and its Subsidiaries as of _____________, since which date
\nthere has been no Material change in the amounts, interest rates, sinking funds,
\ninstallment payments or maturities of the Debt of the Company or its
\nSubsidiaries. Neither the Company nor any Subsidiary is in default and no waiver
\nof default is currently in effect, in the payment of any principal or interest
\non any Debt of the Company or such Subsidiary and no event or condition exists
\nwith respect to any Debt of the Company or any Subsidiary that would permit (or
\nthat with notice or the lapse of time, or both, would permit) one or more
\nPersons to cause such Debt to become due and payable before its stated maturity
\nor before its regularly scheduled dates of payment.<\/p>\n
[Add any additional Sections as appropriate at the time the Series
\n______ Notes are issued]<\/p>\n
-2-
\n 81<\/p>\n
[FORM OF SERIES ______ NOTE]<\/p>\n
QUANTA SERVICES, INC.<\/p>\n
___% SERIES ______ SENIOR NOTE DUE ______________<\/p>\n
No. [_________] [Date]
\n$[____________] PPN [____________]<\/p>\n
FOR VALUE RECEIVED, the undersigned, QUANTA SERVICES, INC. (herein
\ncalled the “Company”), a corporation organized and existing under the laws of
\nthe State of ____________, hereby promises to pay to [________________], or
\nregistered assigns, the principal sum of [________________] DOLLARS on
\n_______________, with interest (computed on the basis of a 360-day year of
\ntwelve 30-day months) (a) on the unpaid balance thereof at the rate of ____% per
\nannum from the date hereof, payable semiannually, on the _____ day of ______ and
\n______ in each year, commencing on the first of such dates after the date
\nhereof, until the principal hereof shall have become due and payable, and (b) to
\nthe extent permitted by law on any overdue payment (including any overdue
\nprepayment) of principal, any overdue payment of interest and any overdue
\npayment of any Make-Whole Amount (as defined in the Note Purchase Agreement
\nreferred to below), payable semiannually as aforesaid (or, at the option of the
\nregistered holder hereof, on demand), at a rate per annum from time to time
\nequal to the greater of (i) [coupon + 2%]% or (ii) 2% over the rate of interest
\npublicly announced by _________________ from time to time in
\n____________________ as its “base” or “prime” rate.<\/p>\n
Payments of principal of, interest on and any Make-Whole Amount with
\nrespect to this Note are to be made in lawful money of the United States of
\nAmerica at ______________________, in ______________________, or at such other
\nplace as the Company shall have designated by written notice to the holder of
\nthis Note as provided in the Note Purchase Agreement referred to below.<\/p>\n
This Note is one of a series of Senior Notes (the “Notes”) issued
\npursuant to a Supplement to the Note Purchase Agreement dated as of March 1,
\n2000 (as from time to time amended, supplemented or modified, the “Note Purchase
\nAgreement”), between the Company, the Purchasers named therein and Additional
\nPurchasers of Notes from time to time issued pursuant to any Supplement to the
\nNote Purchase Agreement. This Note and the holder hereof are entitled equally
\nand ratably with the holders of all other Notes of all series from time to time
\noutstanding under the Note Purchase Agreement to all the benefits provided for
\nthereby or referred to therein. Each holder of this Note will be deemed, by its
\nacceptance hereof, to have made the representation set forth in Section 6.2 of
\nthe Note Purchase Agreement, provided that such holder may (in reliance upon
\ninformation provided by the Company, which shall not be unreasonably withheld)
\nmake a representation to the effect that the purchase by such holder of any Note
\nwill not constitute a non-exempt prohibited transaction under Section 406(a) of
\nERISA.<\/p>\n
-1-
\n 82<\/p>\n
This Note is registered with the Company and, as provided in the Note
\nPurchase Agreement, upon surrender of this Note for registration of transfer,
\nduly endorsed, or accompanied by a written instrument of transfer duly executed,
\nby the registered holder hereof or such holder’s attorney duly authorized in
\nwriting, a new Note of the same series for a like principal amount will be
\nissued to, and registered in the name of, the transferee. Prior to due
\npresentment for registration of transfer, the Company may treat the person in
\nwhose name this Note is registered as the owner hereof for the purpose of
\nreceiving payment and for all other purposes, and the Company will not be
\naffected by any notice to the contrary.<\/p>\n
[The Company will make required prepayments of principal on the dates
\nand in the amounts specified in the Note Purchase Agreement.] [This Note is not
\nsubject to regularly scheduled prepayments of principal.] This Note is [also]
\nsubject to optional prepayment, in whole or from time to time in part, at the
\ntimes and on the terms specified in the Note Purchase Agreement, but not
\notherwise.<\/p>\n
If an Event of Default, as defined in the Note Purchase Agreement,
\noccurs and is continuing, the principal of this Note may be declared or
\notherwise become due and payable in the manner, at the price (including any
\napplicable Make-Whole Amount) and with the effect provided in the Note Purchase
\nAgreement.<\/p>\n
This Note shall be construed and enforced in accordance with, and the
\nrights of the parties shall be governed by, the law of the State of __________
\nexcluding choice-of-law principles of the law of such State that would require
\nthe application of the laws of a jurisdiction other than such State.<\/p>\n
QUANTA SERVICES, INC.<\/p>\n
By
\n Name:
\n ——————————-
\n Title:
\n ——————————-<\/p>\n
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