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PROMISSORY NOTE
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(Fixed Rate)
$300,000.00 July 28, 2005
For value received, CHARYS HOLDING COMPANY, INC., a Delaware corporation, as
principal ("Borrower"), promises to pay to the order of THE FROST NATIONAL BANK,
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a national banking association ("Lender") at P.O. Box 1600, San Antonio, Texas
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78296, or at such other address as Lender shall from time to time specify in
writing, the principal sum of THREE HUNDRED THOUSAND AND NO/100 DOLLARS
($300,000.00), in legal and lawful money of the United States of America, with
interest on the outstanding principal from the date advanced until paid at the
rate set out below. Interest shall be computed on a per annum basis of a year of
360 days and for the actual number of days elapsed, unless such calculation
would result in a rate greater than the highest rate permitted by applicable
law, in which case interest shall be computed on a per annum basis of a year of
365 days or 366 days in a leap year, as the case may be.
1. Payment Terms.
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The entire amount hereof, principal and interest then remaining unpaid,
shall be then due and payable on August 28, 2006; interest being calculated on
the unpaid principal each day principal is outstanding and all payments made
credited to any collection costs and late charges, to the discharge of the
interest accrued and to the reduction of the principal, in such order as Lender
shall determine.
2. Late Charge. If a payment is made 10 days or more late, Borrower will
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be charged, in addition to interest, a delinquency charge of (i) 5% of the
unpaid portion of the regularly scheduled payment, or (ii) $250.00, whichever is
less. Additionally, upon maturity of this Note, if the outstanding principal
balance (plus all accrued but unpaid interest) is not paid within 10 days of the
maturity date, Borrower will be charged a delinquency charge of (i) 5% of the
sum of the outstanding principal balance (plus all accrued but unpaid interest),
or (ii) $250.00, whichever is less. Xxxxxxxx agrees with Lender that the charges
set forth herein are reasonable compensation to Lender for the handling of such
late payments.
3. Interest Rate. The unpaid principal balance of this Note shall bear
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interest prior to maturity (however such maturity is brought about) at a fixed
rate of twelve percent (12%) per annum.
4. Default Rate. Matured unpaid principal and interest shall bear
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interest from date of maturity until paid at (a) the highest rate permitted by
applicable law, or (b) if no such maximum rate is established by applicable law,
at the rate stated above plus five percent (5%) per annum.
5. Prepayment. Borrower reserves the right to prepay, prior to maturity,
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all or any part of the principal of this Note without penalty. Any prepayments
shall be applied first to accrued interest and then to principal. Borrower will
provide written notice to the holder of this Note of any such prepayment of all
or any part of the principal at the time thereof. All payments and prepayments
of principal or interest on this Note shall be made in lawful money of the
United States of America in immediately available funds, at the address of
Lender indicated above, or such other
place as the holder of this Note shall designate in writing to Borrower. All
partial prepayments of principal shall be applied to the last installments
payable in their inverse order of maturity.
6. Default. It is expressly provided that upon default in the punctual
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payment of this Note or any part hereof, principal or interest, as the same
shall become due and payable, or upon the occurrence of an event of default
specified in any of the other Loan Documents (as defined below), the holder of
this Note may, at its option, without further notice or demand, (i) declare the
outstanding principal balance of and accrued but unpaid interest on this Note at
once due and payable, (ii) refuse to advance any additional amounts under this
Note, (iii) foreclose all liens securing payment hereof, (iv) pursue any and all
other rights, remedies and recourses available to the holder hereof, including
but not limited to any such rights, remedies or recourses under the Loan
Documents, at law or in equity, or (v) pursue any combination of the foregoing;
and in the event default is made in the prompt payment of this Note when due or
declared due, and the same is placed in the hands of an attorney for collection,
or suit is brought on same, or the same is collected through probate, bankruptcy
or other judicial proceedings, then the Borrower agrees and promises to pay all
costs of collection, including reasonable attorney's fees.
7. Joint and Several Liability; Waiver. Each maker, signer, surety and
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endorser hereof, as well as all heirs, successors and legal representatives of
said parties, shall be directly and primarily, jointly and severally, liable for
the payment of all indebtedness hereunder. Lender may release or modify the
obligations of any of the foregoing persons or entities, or guarantors hereof,
in connection with this loan without affecting the obligations of the others.
All such persons or entities expressly waive presentment and demand for payment,
notice of default, notice of intent to accelerate maturity, notice of
acceleration of maturity, protest, notice of protest, notice of dishonor, and
all other notices and demands for which waiver is not prohibited by law, and
diligence in the collection hereof; and agree to all renewals, extensions,
indulgences, partial payments, releases or exchanges of collateral, or taking of
additional collateral, with or without notice, before or after maturity. No
delay or omission of Lender in exercising any right hereunder shall be a waiver
of such right or any other right under this Note.
8. No Usury Intended; Usury Savings Clause. In no event shall interest
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contracted for, charged or received hereunder, plus any other charges in
connection herewith which constitute interest, exceed the maximum interest
permitted by applicable law. The amounts of such interest or other charges
previously paid to the holder of the Note in excess of the amounts permitted by
applicable law shall be applied by the holder of the Note to reduce the
principal of the indebtedness evidenced by the Note, or, at the option of the
holder of the Note, be refunded. To the extent permitted by applicable law,
determination of the legal maximum amount of interest shall at all times be made
by amortizing, prorating, allocating and spreading in equal parts during the
period of the full stated term of the loan and indebtedness, all interest at any
time contracted for, charged or received from the Borrower hereof in connection
with the loan and indebtedness evidenced hereby, so that the actual rate of
interest on account of such indebtedness is uniform throughout the term hereof.
9. Security. This Note is secured by, inter alia, the following:
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(a) a separate Guaranty Agreement from each of Contemporary
Constructors, Inc., CCI Telecon, Inc., CCI Integrated Solutions, Inc.,
Berkshire Wireless, Inc. and Xxxxxxx X. Xxxxx.
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This Note and all other documents evidencing, securing, governing, guaranteeing
and/or pertaining to this Note, including but not limited to those documents
described above, are hereinafter collectively referred to as the "Loan
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Documents." The holder of this Note is entitled to the benefits and security
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provided in the Loan Documents.
10. Texas Finance Code. In no event shall Chapter 346 of the Texas
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Finance Code (which regulates certain revolving loan accounts and revolving
tri-party accounts) apply to this Note. To the extent that Chapter 303 of the
Texas Finance Code is applicable to this Note, the "weekly ceiling" specified in
such article is the applicable ceiling; provided that, if any applicable law
permits greater interest, the law permitting the greatest interest shall apply.
11. Governing Law, Venue. This Note is being executed and delivered, and
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is intended to be performed in the State of Texas. Except to the extent that
the laws of the United States may apply to the terms hereof, the substantive
laws of the State of Texas shall govern the validity, construction, enforcement
and interpretation of this Note. In the event of a dispute involving this Note
or any other instruments executed in connection herewith, the undersigned
irrevocably agrees that venue for such dispute shall lie in any court of
competent jurisdiction in Bexar County, Texas.
12. Purpose of Loan. Xxxxxxxx agrees that no advances under this Note
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shall be used for personal, family or household purposes, and that all advances
hereunder shall be used solely for business, commercial, investment, or other
similar purposes.
13. Captions. The captions in this Note are inserted for convenience only
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and are not to be used to limit the terms herein.
14. Financial Information. Borrower agrees to promptly furnish such
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financial information and statements, including financial statements in a format
acceptable to Lender, lists of assets and liabilities, agings of receivables and
payables, inventory schedules, budgets, forecasts, tax returns, and other
reports with respect to Borrower's financial condition and business operations
as Lender may request from time to time. This provision shall not alter the
obligation of Borrower to deliver to Lender any other financial statements or
reports pursuant to the terms of any other loan documents executed in connection
with this Note.
BORROWER:
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CHARYS HOLDING COMPANY, INC.,
a Delaware corporation
By:
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Xxxxx X. Xxx, Xx.
Chairman and Chief Executive Officer
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