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ARBITRATION AND NOTICE OF FINAL AGREEMENT
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To: Charys Holding Company, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx X000
Xxxxxxx, Xxxxxxx 00000
(collectively, whether one or more, "Borrower")
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As of the effective date of this Notice, Borrower and THE FROST NATIONAL BANK, a
national banking association ("Lender") have consummated a transaction pursuant
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to which Xxxxxx has agreed to make a loan or loans to Borrower, and/or to
otherwise extend credit or make financial accommodations to or for the benefit
of Borrower, in an aggregate amount up to $300,000.00 (collectively, whether one
or more, the "Loan").
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ARBITRATION
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Upon written request of either Lender or Borrower, any controversy or claim
between or among the parties hereto including but not limited to those arising
out of or relating to the Loan, any of the loan documents or any related
agreements or instruments executed in connection with the Loan (the "Loan
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Documents"), including any claim based on or arising from an alleged tort, shall
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be determined by binding arbitration in accordance with the Federal Arbitration
Act (or if not applicable, the applicable state law), the Commercial Arbitration
Rules of the American Arbitration Association, and the "Special Rules" set forth
below unless both Lender and Borrower, in their respective sole discretion,
agree in writing to mediate the dispute prior to submitting to binding
arbitration. In the event of any inconsistency, the Special Rules shall control.
Judgment upon any arbitration award may be entered in any court having
jurisdiction. Any party to this Agreement may bring an action, including a
summary or expedited proceeding, to compel arbitration of any controversy or
claim to which this agreement applies in any court having jurisdiction over such
action. The party that requests arbitration has the burden to initiate the
arbitration proceedings pursuant to and by complying with the Commercial
Arbitration Rules of the American Arbitration Association and shall pay all
associated administrative and filing fees.
The arbitration shall be conducted in the City of San Antonio, Bexar County,
Texas and administered by the American Arbitration Association. All arbitration
hearings will be commenced within sixty (60) days of the written request for
arbitration, and if the arbitration hearing is not commenced within the sixty
(60) days, the party that requested arbitration shall have waived its election
to arbitrate. Nothing in this Agreement shall be deemed to (i) limit the
applicability of any otherwise applicable statutes of limitation or repose and
any waivers contained in this Agreement; or (ii) be a waiver by Lender of the
protection afforded to it by 12 U.S.C. Sec. 91 or any substantially equivalent
state law; or (iii) limit the right of Lender hereto (A) to exercise self help
remedies such as (but not limited to) setoff, or (B) to foreclose against any
real or personal property collateral in accordance with applicable law, or (C)
to obtain from a court provisional or ancillary remedies such as (but not
limited to) injunctive relief or the appointment of a receiver in accordance
with applicable law. Lender may exercise such self help remedies, foreclose
upon such property, or obtain such provisional or ancillary remedies before,
during or after the pendency of any arbitration proceeding brought pursuant to
this Agreement or any other Loan Document. At Lender's option, foreclosure
under a deed of trust or mortgage
may be accomplished by any of the following: the exercise of a power of sale
under the deed of trust or mortgage, or by judicial sale under the deed of trust
or mortgage, or by judicial foreclosure. Neither this exercise of self help
remedies nor the institution or maintenance of an action for foreclosure or
provisional or ancillary remedies shall constitute a waiver of the right of any
party, including the claimant in any such action, to arbitrate the merits of the
controversy or claim occasioning resort to such remedies.
FACSIMILE DOCUMENTS AND SIGNATURES
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For purposes of negotiating and finalizing the Written Loan Agreement (as
hereinafter defined), if this document or any document executed in connection
with the Loan is transmitted by facsimile machine ("fax"), it shall be treated
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for all purposes as an original document. Additionally, the signature of any
party on this document transmitted by way of a facsimile machine shall be
considered for all purposes as an original signature. Any such faxed document
shall be considered to have the same binding legal effect as an original
document. At the request of any party, any faxed document shall be re-executed
by each signatory party in an original form.
WAIVER OF RIGHT TO TRIAL BY JURY
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THE PARTIES TO THIS AGREEMENT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE
OTHER TO ENFORCE THIS AGREEMENT, TO COLLECT DAMAGES FOR THE BREACH OF THIS
AGREEMENT, OR WHICH IN ANY OTHER WAY ARISE OUT OF, ARE CONNECTED TO OR ARE
RELATED TO THIS AGREEMENT OR THE SUBJECT MATTER OF THIS AGREEMENT. ANY SUCH
ACTION SHALL BE TRIED BY THE JUDGE WITHOUT A JURY.
NOTICE OF FINAL AGREEMENT
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In connection with the Loan, Borrower and Lender and the undersigned guarantors
and other obligors, if any (collectively, whether one or more, "Other Obligors")
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have executed and delivered and may hereafter execute and deliver certain
agreements, instruments and documents (collectively hereinafter referred to as
the "Written Loan Agreement").
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It is the intention of Borrower, Lender and Other Obligors that this Notice be
incorporated by reference into each of the written agreements, instruments and
documents comprising the Written Loan Agreement. Borrower, Lender and Other
Obligors each warrants and represents that the entire agreement made and
existing by or among Borrower, Lender and Other Obligors with respect to the
Loan is and shall be contained within the Written Loan Agreement, as amended and
supplemented hereby, and that no agreements or promises exist or shall exist by
or among, Borrower, Lender and Other Obligors that are not reflected in the
Written Loan Agreement.
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THE WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Executed as of July 28, 2005.
THE FROST NATIONAL BANK, a
national banking association
By:
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Name:
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Title:
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ACKNOWLEDGED AND AGREED:
BORROWER:
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Charys Holding Company, Inc.,
a Delaware corporation
By:
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Xxxxx X. Xxx, Xx.
Chief Executive Officer
Contemporary Constructors, Inc.,
a Texas corporation
By:
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Xxxxxxx X. Xxxxx
President
CCI Telecom, Inc.,
a Nevada corporation
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By:
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Xxxxxxx X. Xxxxx
President
CCI Integrated Solutions, Inc.,
a Texas corporation
By:
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Xxxxxxx X. Xxxxx
President
Berkshire Wireless, Inc.,
a Massachusetts corporation
By:
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Xxxxxxx X. Xxxxx
President
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Xxxxxxx X. Xxxxx
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