AMENDMENT #4 TO AMENDED AND RESTATED SENIOR SECURED CONVERTIBLE NOTE
AMENDMENT
#4 TO
AMENDED
AND RESTATED SENIOR SECURED CONVERTIBLE NOTE
This
Amendment #4 to Amended and Restated Senior Secured Convertible Note (this
“Amendment”) is dated as of July 28, 2007 by and between Charys Holding
Company, Inc., a Delaware corporation (the “Company”), and Imperium
Master Fund, Ltd., (the “Investor”) and is made with reference to that
certain Amended and Restated Senior Secured Convertible Note issued by the
Company to the Investor as of April 5, 2007 (the
“Note”). Capitalized terms used herein without definition
shall have the same meanings herein as set forth in the Note.
WHEREAS,
pursuant to Section 3(b)(ii) of the
Note the Conversion Price of the Note shall on May 30, 2007 be
reduced to an amount equal to one-half of the then-existing Conversion
Price;
WHEREAS,
the Company has previously requested extensions of such date to July 28th, 2007 which
were
granted by Investor pursuant to Amendment #1 to Amended and Restated Senior
Secured Convertible Note, Amendment #2 to Amended and Restated Senior Secured
Convertible Note, and Amendment #3 to Amended and Restated Senior Secured
Convertible Note; and
WHEREAS,
the Company has requested an additional four-week extension of such date to
August 28th,
2007.
NOW
THEREFORE, for consideration, the adequacy of which is hereby
acknowledged by all parties, the parties hereto hereby agree to the
following:
1. Section
3(b)(ii) of the Note is hereby amended and restated in relevant part to read
as
follows:
“(ii) “Conversion Price” means, as of
the Amendment Date, $2.25 initially, which Conversion Price shall be subject
to
adjustment from time to time in accordance with the terms set forth herein
(including Section 7 hereof) and, on August 28, 2007, the Conversion Price
shall
be reduced to an amount equal to one-half of the then-existing Conversion
Price,
which reduced Conversion Price shall be subject to further adjustment from
time
to time in accordance with the terms set forth herein (including Section
7
hereof). The Conversion Price shall also be appropriately adjusted for any
stock
split, stock dividend, stock combination or other similar transaction that
proportionately decreases or increases the Common Stock.”
2. Entire
Agreement; Amendment. This Amendment contains the entire understanding
of the parties with respect to the matters covered hereby and, except as
specifically set forth herein, neither the Company nor the Investor makes
any
representation, warranty, covenant or undertaking with respect to such matters.
No provision of this Amendment may be waived or amended other than by a written
instrument signed by the party against whom enforcement of any such amendment
or
waiver is sought.
3. Governing
Law. This Amendment shall be governed by and construed and enforced in
accordance with the laws of the State of New York applicable to agreements
executed and to be performed entirely within such State.
4. Counterparts.
This Amendment may be executed in one or more counterparts, each of which shall
be deemed an original, and all of which together shall constitute one and the
same instrument.
5. Authorization. The
parties hereby represent and warrant to each other that the signatories hereto
have full power and authority to sign this Amendment for an on behalf of the
entities for which they purport to be signing and that their signatures hereto
shall be binding and enforceable upon the purported parties hereto.
All
other
terms and provisions of the Note shall remain the same and in full force and
effect.
[Signature
Page Follows]
2
In
Witness Whereof, the parties hereto have executed this Amendment #4 to Amended
and Restated Senior Secured Convertible Note as of the date set forth in the
first paragraph hereof.
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COMPANY:
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CHARYS
HOLDING COMPANY, INC.
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By:
________________________________
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Name:
______________________________
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Title:
_______________________________
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INVESTOR:
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IMPERIUM
MASTER FUND, LTD.
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By:
________________________________
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Name:
______________________________
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Title:
_______________________________
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