PROMISSORY NOTE
$13,412,500 Atlanta, Georgia
August 15, 2006
FOR VALUE RECEIVED, the undersigned, Charys Holding Company, Inc., a
Delaware corporation, and Ayin Holding Company Inc., a Delaware corporation and
a wholly owned subsidiary of Charys Holding Company, Inc. (collectively the
"Maker"), hereby promises to pay to the order of XXXXXXX X. XXXXXXXX, an
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individual resident of the State of Louisiana ("Seller"), at Lafayette,
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Louisiana, or such other place as Seller shall designate in writing, in lawful
money of the United States of America, the principal sum of Thirteen Million
Four Hundred Twelve Thousand Five Hundred Dollars ($13,412,500) subject to the
terms hereof, together with interest thereon, at the rate hereinafter set forth
below, with such principal sum and interest being payable as set forth below.
This promissory note ("Note") is being delivered in connection with that certain
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letter agreement, of even date herewith, by and among Complete Tower Sources,
Inc., Xxxxxxxx Site Acq., Inc. and The Tower Company of Louisiana, LLC, the
respective equityowners thereof, Maker, and Ayin Holding Company, Inc. (the
"Letter Agreement"), and is subject in all respects to the terms and conditions
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thereof. Terms not otherwise defined in this Note shall have the meaning set
forth in the Letter Agreement.
Section I. Rate of Interest
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From and after the date hereof, simple interest shall accrue on the
outstanding principal balance of this Note at a rate equal to nine percent (9%)
per annum, calculated on the basis of 365 days per year and actual days elapsed.
Section II. Payment of Principal and Interest
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The principal amount evidenced by this Note, plus accrued interest,
shall be payable by Maker on September 30, 2006, or such later date as to which
maturity shall have been extended pursuant to Section II(2) of the Letter
Agreement (any such date, the "Maturity Date"). Maker shall have the right to
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prepay the indebtedness evidenced by this Note, in full or in part, at any time,
without penalty, fee or charge. All prepayments shall be applied first to
interest accrued hereunder, then to principal.
Section III. Events of Default
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For purposes of this Note, the occurrence of any of the following
events or conditions shall constitute an event of default hereunder:
(a) Maker shall fail to pay in full any amount under this Note
upon the Maturity Date; or
(b) Maker shall: (i) file a voluntary petition or assignment in
bankruptcy or a voluntary petition or assignment or answer seeking liquidation,
reorganization, arrangement, readjustment of its debts, or any other relief
under the Bankruptcy Reform Act of 1978, as
amended (the "Bankruptcy Code"), or under any other act or law pertaining to
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insolvency or debtor relief, whether State, Federal, or foreign, now or
hereafter existing; (ii) enter into any agreement indicating consent to,
approval of, or acquiescence in, any such petition or proceeding; (iii) apply
for or permit the appointment, by consent or acquiescence, of a receiver,
custodian or trustee of all or a substantial part of its property; (iv) make an
assignment for the benefit of creditors; (v) be unable or shall fail to pay its
debts generally as such debts become due, or (vi) admit in writing its inability
or failure to pay its debts generally as such debts become due; and
(c) There occurs (i) a filing or issuance against Maker of an
involuntary petition in bankruptcy or seeking liquidation, reorganization,
arrangement, readjustment of its debts or any other relief under the Bankruptcy
Code, or under any other act or law pertaining to insolvency or debtor relief,
whether State, Federal or foreign, now or hereafter existing; (ii) the
involuntary appointment of a receiver, liquidator, custodian or trustee of Maker
or for all or a substantial part of its property; or (iii) the issuance of a
warrant of attachment, execution or similar process against all or any
substantial part of the property of Maker and such shall not have been
discharged (or provision shall not have been made for such discharge), or stay
of execution thereof shall not have been procured, within fifteen (15) days from
the date of entry thereof.
Upon any such event of default, the total outstanding principal and
accrued, unpaid interest shall become immediately due and payable, and the
entire unpaid principal of this Note shall bear interest until paid at a rate of
interest equal to twelve percent (12%), computed on the basis of 365 days per
year for the actual number of days elapsed. Forbearance by Seller to exercise
its rights with respect to any failure or breach of Maker shall not constitute a
waiver of the right as to any subsequent failure or breach.
Section IV. Security for Obligations
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Payment of this Note is secured by a pledge of the collateral
described in the Pledge Agreement, dated of even date herewith, attached hereto
as Exhibit A (the "Pledge Agreement"). In the event Maker fails to make payment
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under this Note upon the Maturity Date, Seller shall have available to it the
remedies set forth under the Pledge Agreement.
Section V. General Provisions
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In no event shall the amount of interest due or payable hereunder
exceed the maximum rate of interest allowed by applicable law, and in the event
any such payment is inadvertently paid by Maker or inadvertently received by
Seller, then such excess sum shall be credited as a payment of principal, unless
Maker shall notify Seller, in writing, that Maker elects to have such excess sum
returned to it forthwith. It is the express intent hereof that Maker not pay
and Seller not receive, directly or indirectly in any manner whatsoever,
interest in excess of that which may be legally paid by Maker under applicable
law.
Time is of the essence of this Note and, in case this Note is
collected by law or through an attorney at law, or under advice herefrom, Maker
agrees to pay all costs of collection, including reasonable attorneys' fees and
expenses.
THIS NOTE, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER,
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
DELAWARE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS).
(THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK)
IN WITNESS WHEREOF, the undersigned Maker has hereunto executed and
sealed this instrument as of the day and year first above written.
MAKER:
CHARYS HOLDING COMPANY, INC.
By:
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Xxxxx X. Xxx, Xx.
Chief Executive Officer
AYIN HOLDING COMPANY INC.
By:
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Xxxxx X. Xxxxxx
President
AGREED AND ACKNOWLEDGED BY:
SELLER:
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Xxxxxxx X. Xxxxxxxx
(Signature Page to Promissory Note)
ASSIGNMENT SEPARATE FROM CERTIFICATE
STOCK POWER
FOR VALUE RECEIVED, AYIN HOLDING COMPANY INC., a Delaware corporation, Assignor
herein, hereby sells, assigns and transfers unto , 100 shares
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of the common stock, no par value per share, of Xxxxxxxx Site Acq., Inc., a
Louisiana corporation (the "Corporation"), standing in the assignor's name on
the books of said Corporation represented by Certificate No. , and does
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hereby irrevo-cably constitute and appoint the Secretary of the Corporation
attorney to transfer the said stock on the books of said Corporation with full
power of substitution in the premises.
Dated: August 15, 2006.
Ayin Holding Company Inc.
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Name:
Title:
In presence of:
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