CHARYS HOLDING COMPANY, INC. Atlanta, Georgia 3033 Telephone (678) 443 2300 Facsimile (678) 443 2320 June 25, 2007 DEPOSITARY AGREEMENT
CHARYS
HOLDING COMPANY, INC.
0000
Xxxxxxxxx Xxxxxx Xxxx, Xxxxx X 000
Xxxxxxx,
Xxxxxxx 0000
Telephone
(000) 000 0000
Facsimile
(000) 000 0000
June
25,
0000
XXXXXXXXXX
XXXXXXXXX
Xxx
Xxxx
xx Xxx Xxxx Trust Company, N.A.
000
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000
Attention: Corporate
Trust Administration
Gentlemen:
Charys
Holding Company, Inc., a Delaware corporation (the “Company”), pursuant to that
certain Consent Solicitation Statement (the “Statement”) with respect to
Solicitation of Consents to Consent and Amendment to Indenture described in
Attachment 1 hereto with respect to that certain Consent and Amendment
attached thereto as Attachment A (the “Consents”), is soliciting consents
from each holder (each a “Holder” and collectively the “Holders”) of those
certain $175,000,000 principal amount of 8.75% Senior Convertible Notes due
2012
and $26,250,000 principal amount of 8.75% Senior Convertible Notes due 2012
(such Senior Convertible Notes being hereinafter defined as the “Notes”) issued
pursuant to those certain Indentures dated February 16, 2007 and March 8, 2007
(both of such Indentures being collectively referred to as the
“Indenture”). In addition to the Statement, there is an accompanying
Consent and Letter of Transmittal (the “Consent and Letter of Transmittal”) as
described in Attachment 2 hereto. Capitalized terms used and
not otherwise defined herein have the meanings given to them in the
Statement.
The
Company hereby appoints The Bank of New York Trust Company, N.A. to act as
Depositary (the “Depositary”) in connection with the Solicitation of
Consents. References hereinafter to “you” shall refer to The Bank of
New York Trust Company, N.A.
The
Solicitation of Consents is expected to be commenced by the Company on June
25,
2007. The Consent and Letter of Transmittal that accompanies the
Solicitation of Consents is to be used by the Holders to accept the Consents,
and contains instructions with respect to the delivery of the
Consents.
Subject
to the terms and conditions of the Solicitation of Consents set forth in the
Statement and the Indenture, as applicable, the Company expressly reserves
the
right to extend the Solicitation of Consents from time to time and may extend
the Solicitation of Consents by giving oral (promptly confirmed in writing)
or
written notice to you before 9:00 a.m., New York City time, on the business
day
following the scheduled Consent Date, July 10, 2006.
1. You
are to examine each of the Consents and Letters of Transmittal and any other
documents delivered or mailed to you by or for Holders to ascertain whether:
(a)
the Consents and Letters of Transmittal and any such other documents are duly
executed and properly completed in accordance with instructions set forth
therein; and (b) the Consents have been properly delivered. In each
case where the Consent and Letter of Transmittal or any other document has
been
improperly completed or executed or some other irregularity in connection with
the Solicitation of Consents or delivery of Consents exists, you will endeavor
to inform the presenters of the need for fulfillment of all requirements and
to
take any other action as may be reasonably necessary or advisable to cause
such
irregularity to be corrected.
1
2. With
the approval of the Company (such approval, if given orally, to be promptly
confirmed in writing), or any other party designated in writing by the Company,
you are authorized to waive any irregularities in connection with any delivery
pursuant to the Solicitation of Consents.
3. Delivery
of Consents pursuant to the Solicitation of Consents may be made only as set
forth in the Statement and shall be considered properly tendered to you only
when:
(a) The
Consents evidenced by a Consent and Letter of Transmittal have been delivered
to
you prior to the Consent Date; and
(b) The
Consents shall not have been revoked prior to the Consent Date, and the adequacy
of the Consents have been favorably passed upon as above provided.
4. You
shall advise the Company with respect to any Consents received on or subsequent
to the Consent Date.
5. You
shall accept deliveries of Consents:
(a) In
cases where the Notes are registered in two or more names only if signed by
all
named Holders;
(b) In
cases where the signing person (as indicated on the Consent and Letter of
Transmittal) is acting in a fiduciary or a representative capacity only when
proper evidence of his authority so to act is submitted; and
(c) From
persons other than the registered Holder, provided that customary transfer
requirements, including payment of any applicable transfer taxes, are
fulfilled.
6. Consents
delivered pursuant to the Solicitation of Consents may be revoked, at any time
prior to the Consent Date. See the Statement for further
details.
7. You
are not authorized to pay or offer to pay any concessions, commissions or
solicitation fees to any broker, dealer, bank or other persons or to engage
or
utilize any person to solicit Consents.
8. As
Depositary hereunder you:
(a) Shall
not be liable for any action or omission to act unless the same constitutes
your
own gross negligence, willful misconduct or bad faith, and in no event shall
you
be liable to a Holder, the Company or any third party for special, indirect
or
consequential damages, or lost profits, arising in connection with this
Agreement;
(b) Shall
have no duties or obligations other than those specifically set forth herein
or
as may be subsequently agreed to in writing between you and the
Company;
(c) Will
be regarded as making no representations and having no responsibilities as
to
the validity, sufficiency, value or genuineness of any of the Solicitation
of
Consents;
(d) Shall
not be obligated to take any legal action hereunder which might in your judgment
involve any expense or liability, unless you shall have been furnished with
indemnity satisfactory to you;
(e) May
conclusively rely on and shall be protected in acting in reliance upon any
certificate, instrument, opinion, notice, letter, telegram or other document
or
security delivered to you and believed by you to be genuine and to have been
signed or presented by the proper person or persons;
2
(f) May
act upon any statement, request, document, certificate, agreement or other
instrument whatsoever not only as to its due execution and validity and
effectiveness of its provisions, but also as to the truth and accuracy of any
information contained therein, which you shall in good faith believe to be
genuine or to have been signed or presented by the proper person or
persons;
(g) May
conclusively rely on and shall be protected in acting upon written or oral
instructions from the Company;
(h) May
consult with counsel of your selection with respect to any questions relating
to
your duties and responsibilities and the advice or opinion of such counsel
shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted to be taken by you hereunder in good faith and in
accordance with the advice or opinion of such counsel;
(i) Shall
not be responsible or liable for special, indirect, or consequential loss or
damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether you have been advised of the likelihood of such loss
or
damage and regardless of the form of action;
(j) Shall
in no event be responsible or liable for any failure or delay in the performance
of your obligations under this Agreement arising out of or caused by, directly
or indirectly, forces beyond your reasonable control, including without
limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil
or military disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer
(software or hardware) services; and
(k) Shall
not advise any person delivering Consents pursuant to the Solicitation of
Consents as to the wisdom of making such delivery or as to the market value
or
decline or appreciation in market value of any Note.
9. You
shall take such action as may from time to time be requested by the Company
(and
such other action as you may deem appropriate) to furnish copies of the
Statement and the Consent and Letter of Transmittal to all persons requesting
such documents and to accept and comply with telephone requests for information
relating to the Solicitation of Consents. All other requests for
information relating to the Consents shall be directed to the Company,
Attention: Xx. Xxxxx X. Xxx, Xx., provided that such information shall relate
only to the procedures for accepting (or withdrawing from) the Solicitation
of
Consents. The Company will promptly furnish you with copies of such
documents on your request.
10. You
are authorized to cooperate with and to furnish information to any organization
(and its representatives) designated from time to time by the Company, including
its legal counsel, Glast, Xxxxxxxx & Xxxxxx, P.C., in any manner reasonably
requested by it in connection with the Solicitation of Consents and any
deliveries thereunder.
11. You
shall advise by facsimile transmission Xx. Xxxxx X. Xxx, Xx., Chief Executive
Officer of the Company (at the facsimile number (000) 000-0000), and such other
person or persons as Company may request, daily up to and including the Consent
Date, as to the principal amount of Notes which have delivered Consents pursuant
to the Solicitation of Consents, and the items received by you pursuant to
this
Agreement, separately reporting and giving cumulative totals as items properly
received, items improperly received. In addition, you will also
inform, and cooperate in making available to, the aforementioned persons upon
oral request made from time to time prior to the Consent Date such other
information as they may reasonably request. Such cooperation shall
include, without limitation, the granting by you to the Company and such person
as the Company may request, of access to those persons on your staff who are
responsible for receiving deliveries of the Consents, in order to ensure that
immediately prior to the Consent Date, the Company shall have received
information in sufficient detail to enable it to decide whether to extend the
Solicitation of Consents. You shall prepare a final list of all
persons whose Consents were accepted, the principal amount of Notes with respect
to the Consents delivered and deliver such list to the Company.
3
12. Consents
and Letters of Transmittal shall be stamped by you as to the date, and, after
the expiration of the Solicitation of Consents, the time, of receipt thereof
and
shall be preserved by you for a period of time at least equal to the period
of
time you preserve other records pertaining to the transfer of
securities. You shall dispose of unused Consents and Letters of
Transmittal and other surplus materials by returning them to the
Company.
13. For
services rendered as Depositary hereunder, you shall be entitled to such
compensation as shall be agreed in writing between the Company and
you. The provisions of this paragraph shall survive the termination
of this Agreement.
14. You
hereby acknowledge receipt of the Statement and the Consent and Letter of
Transmittal. Any inconsistency between this Agreement, on the one
hand, and the Statement and the Consent and Letter of Transmittal (as they
may
be amended from time to time), on the other hand, shall be resolved in favor
of
the Statement and the Consent and Letter of Transmittal, except with respect
to
your duties, liabilities and indemnification as the Depositary.
15. The
Company covenants and agrees to fully indemnify and hold you harmless against
any and all loss, liability, cost or expense, including reasonable attorneys’
fees and expenses, incurred without gross negligence or willful misconduct
on
your part, arising out of or in connection with any act, omission, delay or
refusal made by you in reliance upon any signature, endorsement, assignment,
certificate, order, request, notice, instruction or other instrument or document
believed by you to be valid, genuine and sufficient and in accepting any Consent
believed by you in good faith to be authorized, and in delaying or refusing
in
good faith to accept any Consent. In each case the Company shall be
notified by you, by letter or facsimile transmission, of the written assertion
of a claim against you or of any other action commenced against you, promptly
after you shall have received any such written assertion or shall have been
served with a summons in connection therewith. The Company shall be
entitled to participate at its own expense in the defense of any such claim
or
other action and, if the Company so elects, the Company shall assume the defense
of any suit brought to enforce any such claim. In the event that the
Company shall assume the defense of any such suit, the Company shall not be
liable for the fees and expenses of any additional counsel thereafter retained
by you, so long as the Company shall retain counsel satisfactory to you to
defend such suit, and so long as you have not determined, in your reasonable
judgment, that a conflict of interest exists between you and the
Company. The provisions of this paragraph shall survive the
termination of this Agreement.
16. This
Agreement and your appointment as Depositary hereunder shall be construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such state, and without
regard to conflicts of laws principles, and shall inure to the benefit of,
and
the obligations created hereby shall be binding upon, the successors and assigns
of each of the parties hereto.
17. This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed to be an original and all of which together shall constitute one and
the
same agreement.
18. In
case any provision of this Agreement shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall
not
in any way be affected or impaired thereby.
19. This
Agreement shall not be deemed or construed to be modified, amended, rescinded,
cancelled or waived, in whole or in part, except by a written instrument signed
by a duly authorized representative of the party to be charged. This
Agreement may not be modified orally.
20. Unless
otherwise provided herein, all notices, requests and other communications to
any
party hereunder shall be in writing (including facsimile or similar writing)
and
shall be given to such party, addressed to it, at its address or telecopy number
set forth below:
4
If
to the
Company:
Xx.
Xxxxx
X. Xxx, Xx.
0000
Xxxxxxxxx Xxxxxx Xxxx
Xxxxx
X-000
Xxxxxxx,
Xxxxxxx 00000
Facsimile:
000-000-0000
If
to the
Depositary:
The
Bank
of New York Trust Company, N.A.
000
Xxxxxxx Xxxxxx Xxxxx
Xxxxx
000
Xxxxxxx,
Xxxxxxx 00000
Facsimile:
(000) 000-0000
Attention: Corporate
Trust
Administration
21. Unless
terminated
earlier by the parties hereto, this Agreement shall terminate 90 days following
the Consent Date. Notwithstanding the foregoing, Paragraphs 14 and 16
shall survive the termination of this Agreement.
22. This
Agreement
shall be binding and effective as of the date hereof.
23. Subject
to
Paragraph 15 hereof, any amendment to or extension of the Solicitation of
Consents, as the Company shall from time to time determine, shall be effective
upon oral notice to you from the Company given prior to the time the
Solicitation of Consents would otherwise have expired, and shall be promptly
confirmed by the Company in writing; provided that you may rely on and shall
be
authorized and protected in acting or failing to act upon any such notice even
if such notice is not confirmed in writing or such confirmation conflicts with
such notice. If at any time the Solicitation of Consents shall be terminated
as
permitted by the terms thereof, the Company shall promptly notify you of such
termination.
Please
acknowledge receipt of this Agreement and confirm the arrangements herein
provided by signing and returning the enclosed copy.
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CHARYS
HOLDING COMPANY, INC.
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By
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Xxxxx
X. Xxx, Xx., Chief Executive
Officer
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Accepted
as of the date first
above
written:
THE
BANK OF NEW YORK TRUST COMPANY, N.A., as Depositary
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By
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,
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[Signature
Page to Depositary Agreement]
Attachments:
Attachment
1 - Solicitation of Consents to Consent and Amendment to Indenture
Attachment
2 - Consent and Letter of Transmittal
5
Attachment
1
Solicitation
of Consents to Consent and Amendment to Indenture
Attachment
2
Consent
and Letter of Transmittal
