CONSENT AND AMENDMENT TO INDENTURE
CONSENT
AND AMENDMENT TO INDENTURE
THIS
CONSENT AND AMENDMENT TO INDENTURE (this “Amendment”) is entered into as of July
___, 2007, by and among CHARYS HOLDING COMPANY, INC., a Delaware Corporation
(the “Company”), the GUARANTORS as defined herein (the “Guarantors”), THE BANK
OF NEW YORK CORPORATE TRUST COMPANY, N.A., a national banking association,
as
Trustee (the “Trustee”), and the HOLDERS of the 8.75% Senior Convertible Notes
due 2012 described below (the “Holders”).
WHEREAS,
the Company, the Guarantors and the Trustee are parties to that certain
Indenture dated February 16, 2007, pursuant to which the Company has issued
to
the Holders $175,000,000 principal amount of 8.75% Senior Convertible Notes
due
2012; and that certain Indenture dated March 8, 2007, pursuant to which the
Company has issued to the Holders $26,250,000 principal amount of 8.75% Senior
Convertible Notes due 2012 (both of such Indentures being collectively referred
to as the “Indenture”); and
WHEREAS,
the Indenture contains provisions restricting the amount of Indebtedness that
can be incurred by the Company and the Subsidiaries; and
WHEREAS,
the Indenture contains a definition of “Existing Secured Indebtedness”;
and
WHEREAS,
the Company has refinanced its Series D preferred stock in exchange for
Subordinated Unsecured Convertible Notes in an aggregate amount of $15,037,278,
pursuant to that certain Securities Exchange Agreement dated as of April 30,
2007, by and among the Company and the investors listed on the Schedule of
Investors attached thereto, all more fully described in a Form 8-K filed by
the
Company with the Securities and Exchange Commission on May 24, 2007 (the “Series
D Transaction”); and
WHEREAS,
all capitalized terms used herein shall have the same meanings ascribed to
those
terms as defined in the Indenture and the Series D Transaction, unless the
context requires otherwise; and
WHEREAS,
pursuant to the terms of the Indenture, the Series D Transaction and the
amendment described herein require the consent of the Trustee and the Holders;
and
WHEREAS,
the Trustee and the Holders are willing to grant such consent subject to the
terms and conditions of this Amendment;
NOW,
THEREFORE, for good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, the parties hereto do hereby
agree
as follows:
1. Amendment. The
definition of Existing Secured Indebtedness in Section 1.1 of the Indenture,
is
amended to read in its entirety as follows:
“Existing
Secured Indebtedness” means Secured Indebtedness existing as of the date hereof
and identified on Schedule A to this Indenture and such Secured
Indebtedness as may, following the Issue Date be obtained in order to refinance
or otherwise replace such identified Secured Indebtedness, in the same or lesser
amounts as the amounts identified in said schedule and outstanding as of the
Issue Date (or in the case of a revolving credit facility, the maximum principal
amount which may be borrowed from time to time under such facility) but, in
any
case, only to the extent the terms thereof expressly require subordination
of
the Securities.
2. Consent. Notwithstanding
anything contained to the contrary in the Indenture, the Trustee and the Holders
do hereby consent to the issuance by the Company of the Subordinated Unsecured
Convertible Notes described in the Series D Transaction. The Trustee
and the Holders do hereby agree that the Indenture shall be deemed to be amended
in all respects in order to permit the Series D Transaction.
3. Effect
of this Amendment. The parties hereto understand that in order
for this Amendment to become effective, only Holders of a majority of the
aggregate principal amount of the Notes currently outstanding ($201,250,000)
must execute this Amendment. If this Amendment becomes operative, all
Holders will be bound thereby notwithstanding the fact that all of the Holders
did not consent to this Amendment.
1
4. Ratification
and Republication. Except as amended by this Amendment, the
parties do hereby ratify and republish the Indenture which, as amended hereby,
remains in full force and effect.
5. Representations
and Warranties of the Parties. Each of the Company and the
Guarantors hereby represent and warrant that (a) it has all requisite power
and
authority to execute and deliver this Amendment, and (b) no Event of Default
exists under the Indenture or will exist after giving effect to the amendments
effected by this Amendment. The Company has delivered to the Trustee
an Officers’ Certificate and an Opinion of Counsel as required by Sections 13.4
and 13.5 of the Indenture.
6. Incorporation
by Reference. The attachment to this Amendment referred to or
included herein constitutes an integral part to this Amendment and is
incorporated into this Amendment by this reference.
7. Binding
Effect. This Amendment shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and
assigns.
8. Counterparts. This
Amendment may be executed in two or more counterparts (delivery of which may
occur via facsimile or as an attachment to an electronic mail message in “PDF”
or similar format), each of which shall be binding as of the date first written
above, and, when delivered, all of which shall constitute one and the same
instrument. This Agreement, to the extent signed and delivered by
means of a facsimile machine or as an attachment to an electronic mail message
in “PDF” or similar format, shall be treated in all manner and respects as an
original agreement or instrument and shall be considered to have the same
binding legal effect as if it were the original signed version thereof delivered
in person.
9. Governing
Law. This Amendment shall be governed by and construed and
enforced in accordance with the internal laws of the State of New York without
reference to New York choice of law rules.
[Signatures
Follow on Next Page]
2
IN
WITNESS WHEREOF, the Company, the Guarantors, the Trustee, and the Holders
have
caused this Amendment to be duly executed as of the date first written
above.
|
COMPANY:
|
TRUSTEE:
|
||||
|
CHARYS
HOLDING COMPANY, INC.
|
THE
BANK OF NEW YORK CORPORATE TRUST COMPANY, N.A.
|
||||
|
By
|
By
|
||||
|
Xxxxx
X. Xxx, Xx., Chief Executive Officer
|
|
, | |||
|
GUARANTORS:
|
||||
|
CROCHET
& BOREL SERVICES, INC.
|
COTTON
HOLDINGS 1, INC.
|
|||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
|||
|
C&B
HOLDINGS, INC.
|
COTTON
TELECOM, INC.
|
|||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
|||
|
COMPLETE
TOWER SOURCES INC.
|
XXXXXXXX
SITE ACQUISITION, INC.
|
|||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
|||
|
LFC,
INC.
|
VIASYS
NETWORK SERVICES, INC.
|
|||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
|||
3
|
VIASYS
SERVICES, INC.
|
AYIN
TOWER MANAGEMENT SERVICES, INC.
|
|||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
|||
|
COTTON
COMMERCIAL USA, L.P.
|
COTTON
RESTORATION OF CENTRAL
|
|||
|
By:
Cotton USA GP, LLC, its General Partner
|
TEXAS,
LP
|
|||
|
By: CCI-GP,
LLC, its General Partner
|
||||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
|||
|
HOLDERS:
|
||||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
|||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
|||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
4
|
HOLDERS:
|
||||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
|||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
|||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
|||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
|||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
Attachment:
Attachment
A – Existing Secured Indebtedness
5
Schedule
A
Existing
Secured Indebtedness
$35,000,000
Secured Revolving Credit Facility dated August 28, 2006 extended by New Stream
Commercial Finance, LLC to and allocated among Subsidiaries of the Company
initially as set forth below. The Company may amend the foregoing
$35,000,000 Secured Revolving Credit Facility to re allocate the amounts
applicable among the Subsidiaries set forth below as it deems in the best
interest of the Company and the Subsidiaries:
|
Subsidiary
|
Amount
|
|||
|
Cotton
Companies
|
$ |
25,000,000
|
||
|
Ayin
Tower Management Services Inc.
|
2,000,000
|
|||
|
Viasys
Services Inc. and/or Viasys Network Services, Inc.
|
3,000,000
|
|||
|
Digital
Communication Services Inc.
|
1,000,000
|
|||
|
Xxxxxxxx
Site Acquisition Services Inc.
|
3,000,000
|
|||
|
LFC,
Inc.
|
1,000,000
|
|||
|
Total
|
$ |
35,000,000
|
||
$14,000,000
Secured Revolving Credit Facility, dated November 8, 2006, extended by New
Stream to between Ayin Tower Management Services, Inc. (a
Subsidiary). The current outstanding balance under this credit
facility is approximately $6,400,000, which is payable on November 8,
2008.
4.74%
Promissory Note, in the principal amount of $77,932,514.15, made by the Company
in favor of Xxxx Crochet and payable on January 31, 2009. Following
the closing of the Units and the repayment of $19,000,000 of such indebtedness
from the proceeds of the sale of the Units, there will be $58,932,514.15 of
unpaid principal amount outstanding under the Promissory Note.
5%
Secured Promissory Note, in the principal amount of $5,250,000, made by the
Company to Rock Creek Equity Holdings, LLC and J. Xxxx Xxxx, payable January
31,
2007. The current outstanding balance under this credit facility is
approximately $950,000, which will be repaid from the proceeds of the sale
of
the Units.
Secured
Promissory Note, in the principal amount of up to $2,000,000, made by Method
IQ,
Inc. to CAPCO Financial Company (“CAPCO”), a division of Greater Bank
N.A.
Secured
Promissory Note, in the principal amount of up to $3,000,000, made by CCI
Telecom, Inc. to CAPCO.
Secured
Promissory Note, in the principal amount of up to $2,400,000, made by Complete
Tower Sources Inc. to the Whitney National Bank.
Secured
Promissory Note, in the principal amount of up to $1,000,000, made by Digital
Communications Services, Inc. to Wachovia National Bank.
10%
Subordinated Convertible Debenture, in the principal amount of $1,052,632,
made
by the Company to Imperium Partner Group.
