GUARANTEE
Execution
Copy
THIS
GUARANTEE (this
“Guarantee”), dated as of April 5, 2007, made by each
of the undersigned guarantors (together with any other entity that may become
an
additional guarantor hereunder, the “Guarantors”), in
favor of the Holders (the “Holders”) of Senior Secured
Convertible Notes of Charys Holding Company, Inc., a Delaware corporation (the
“Company”), which notes have been amended and restated
as of the date hereof (such notes, as amended and restated, the
“Notes”), and Imperium Advisers, LLC, as the
Collateral Agent (the “Collateral
Agent”). Capitalized terms used herein and not
otherwise defined shall have the respective meanings specified in the Amendment
Agreement (as defined below).
W
I T N E
S S E T H:
WHEREAS,
pursuant to that certain
Amendment Agreement, dated as of the date hereof, by and between the Company
and
the holders named therein (the “Amendment Agreement”),
it is a condition precedent to the performance by the holders named therein
of
their obligations under the Amendment Agreement that the Guarantors execute
and
deliver this Guarantee; and
WHEREAS,
each Guarantor, as a
subsidiary of the Company, will directly or indirectly benefit from the
extension of credit to the Company represented by the Notes.
NOW,
THEREFORE, in consideration of the agreements herein contained and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. GUARANTEE.
1.1 Guarantee
of Obligations.
(a) Each
Guarantor hereby, jointly and severally, unconditionally and irrevocably,
guarantees to each Holder and its lawful successors, endorsees, transferees
and
assigns, the prompt and complete payment and performance by the Company when
due
(whether at the stated maturity, by acceleration or otherwise) of all
obligations and undertakings of the Company of whatever nature, monetary or
otherwise, under the Securities Purchase Agreement, and the Notes, the Amendment
Agreement, the Imperium Warrants, the Registration Rights Agreement, the
Security Agreement and the other Transaction Documents, together with all
reasonable attorneys’ fees, disbursements and all other costs and expenses of
collection incurred by Holders in enforcing any of such Obligations and/or
this
Guarantee (collectively, the
“Obligations”). This Guarantee shall remain
in full force and effect until all the Obligations and the obligations of each
Guarantor under this Guarantee shall have been satisfied by payment and
performance in full. Each Guarantor shall be regarded, and shall be
in the same position, as principal debtor with respect to the
Obligations.
(b) Anything
herein or in any other Transaction Document to the contrary notwithstanding,
the
maximum liability of each Guarantor hereunder and under the other Transaction
Documents shall in no event exceed the amount which can be guaranteed by such
Guarantor under applicable federal and state laws, including laws relating
to
the insolvency of debtors, fraudulent conveyance or transfer or laws affecting
the rights of creditors generally (after giving effect to the right of
contribution established in Section 1.3 of this
Guarantee).
1.2 Guarantee
Absolute and Unconditional. Each Guarantor understands and agrees
that this Guarantee shall be construed as a continuing, absolute and
unconditional guarantee of payment and performance without regard to (a) the
validity or enforceability of the Amendment Agreement or any other Transaction
Document, any of the Obligations or any other collateral security therefor
or
guarantee or right of offset with respect thereto at any time or from time
to
time held by the Holders, (b) any defense, set-off or counterclaim (other than
a
defense of payment or performance or fraud or misconduct by Holders) which
may
at any time be available to or be asserted by the Company or any other Person
against the Holders, or (c) any other circumstance whatsoever (with or without
notice to or knowledge of the Company or such Guarantor) which constitutes,
or
might be construed to constitute, an equitable or legal discharge of the Company
for the Obligations, or of such Guarantor under this Guarantee, in bankruptcy
or
in any other instance.
1.3 Right
of Contribution. Each Guarantor hereby agrees that to the extent that a
Guarantor shall have paid more than its proportionate share of any payment
made
hereunder, such Guarantor shall be entitled to seek and receive contribution
from and against any other Guarantor hereunder which has not paid its
proportionate share of such payment. Each Guarantor’s right of
contribution shall be subject to the terms and conditions of Section
1.4 of this Guarantee. The provisions of this Section
1.3 shall in no respect limit the obligations and liabilities of
any Guarantor to the Holders, and each Guarantor shall remain liable to the
Holders for the full amount guaranteed by such Guarantor hereunder.
1.4 No
Subrogation. Notwithstanding any payment made by any Guarantor
hereunder or any set-off or application of funds of any Guarantor by the
Holders, no Guarantor shall be entitled to be subrogated to any of the rights
of
the Holders against the Company or any other Guarantor or any collateral
security or guarantee or right of offset held by the Holders for the payment
of
the Obligations, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from the Company or any other Guarantor in respect
of payments made by such Guarantor hereunder, until all amounts owing to the
Holders by the Company on account of the Obligations are paid in full. If any
amount shall be paid to any Guarantor on account of such subrogation rights
at
any time when all of the Obligations shall not have been paid in full, such
amount shall be held by such Guarantor in trust for the benefit of the Holders,
segregated from other funds of such Guarantor, and shall, forthwith upon receipt
by such Guarantor, be turned over to the Holders in the exact form received
by
such Guarantor (duly indorsed by such Guarantor to the Holders, if required),
to
be applied against the Obligations, whether matured or unmatured, in such order
as the Holders may determine.
1.5 Modification
of Guaranteed Obligations. Each Guarantor shall remain obligated hereunder
notwithstanding that, without any reservation of rights against any Guarantor
and without notice to or further assent by any Guarantor, any demand for payment
of any of the Obligations made by the Holders may be rescinded by the Holders
and any of the Obligations continued, and the Obligations, or the liability
of
any other Person upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time
to
time, in whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the Holders, and the Amendment
Agreement and the other Transaction Documents and any other documents executed
and delivered in connection therewith may be amended, modified, supplemented
or
terminated, in whole or in part, as the Holders may deem advisable from time
to
time, and any collateral security, guarantee or right of offset at any time
held
by the Holders for the payment of the Obligations may be sold, exchanged,
waived, surrendered or released. The Holders shall have no obligation
to protect, secure, perfect or insure any Lien at any time held by them as
security for the Obligations or for this Guarantee or any property subject
thereto.
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1.6 Waiver. Each
Guarantor waives any and all notice of the creation, renewal, extension or
accrual of any of the Obligations and notice of or proof of reliance by the
Holders upon the guarantees contained in this Section
1 or acceptance of the guarantees contained in this
Section 1. The Obligations shall
conclusively be deemed to have been created, contracted or incurred, or renewed,
extended, amended or waived, in reliance upon the guarantees contained in this
Section 1. All dealings between the Company
and any of the Guarantors, on the one hand, and the Holders, on the other hand,
shall be conclusively presumed to have been had or consummated in reliance
upon
the guarantees contained in this Section
1. Each Guarantor waives to the extent permitted by law
diligence, presentment, protest, demand for payment and notice of default or
nonpayment to or upon the Company or any of the Guarantors with respect to
the
Obligations.
1.7 Enforcement
of Guarantee.
(a) When
making any demand hereunder or otherwise pursuing its rights and remedies
hereunder against any Guarantor, the Collateral Agent, acting on behalf of
each
Holder, may, but shall be under no obligation to, make a similar demand on
or
otherwise pursue such rights and remedies as the Collateral Agent, acting on
behalf of the Holders, may have against the Company, any other Guarantor or
any
other Person or against any collateral security or guarantee for the Obligations
or any right of offset with respect thereto, and any failure by the Collateral
Agent, acting on behalf of the Holders, to make any such demand, to pursue
such
other rights or remedies or to collect any payments from the Company, any other
Guarantor or any other Person or to realize upon any such collateral security
or
guarantee or to exercise any such right of offset, or any release of the
Company, any other Guarantor or any other Person or any such collateral
security, guarantee or right of offset, shall not relieve any Guarantor of
any
obligation or liability hereunder, and shall not impair or affect the rights
and
remedies, whether express, implied or available as a matter of law, of the
Holders against any Guarantor. For the purposes hereof,
“demand” shall include the commencement and
continuance of any legal proceedings.
(b) Expenses;
Indemnification.
(i) Each
Guarantor agrees to pay, or reimburse the Collateral Agent, acting on behalf
of
the Holders, all of the Collateral Agent’s costs and expenses incurred in
collecting against such Guarantor under this Guarantee or otherwise enforcing
or
preserving any rights under this Guarantee and the other Transaction Documents
to which such Guarantor is a party, including, without limitation, the
reasonable fees and disbursements of counsel to the Collateral
Agent.
-3-
(ii) Each
Guarantor agrees to pay, and to save the Holders harmless from, any and all
liabilities with respect to, or resulting from any delay in paying, any and
all
stamp, excise, sales or other taxes which may be payable or determined to be
payable in connection with any of the transactions contemplated by this
Guarantee.
(iii) Each
Guarantor agrees to pay, and to save the Holders harmless from, any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of
this
Guarantee to the extent the Company would be required to do so pursuant to
the
Amendment Agreement.
(iv) Notwithstanding
anything to the contrary in this Guarantee, with respect to any defaulted
non-monetary Obligations the specific performance of which by the Guarantors
is
not reasonably possible (e.g., the issuance of the Company’s Common Stock), the
Guarantors shall only be liable for making the Holders whole on a monetary
basis
for the Company’s failure to perform such Obligations in accordance with the
Transaction Documents.
1.8 Right
to Set-Off. Each Guarantor hereby irrevocably authorizes the
Collateral Agent, acting on behalf of the Holders, at any time and from time
to
time while an Event of Default (as defined in the Notes) under any of the
Transaction Documents shall have occurred and be continuing, without notice
to
such Guarantor or any other Guarantor, any such notice being expressly waived
by
each Guarantor, to set-off and appropriate and apply any and all deposits,
credits, indebtedness or claims, in any currency, in each case whether direct
or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by a Holder to or for the credit or the account of such Guarantor, or
any
part thereof in such amounts as the Collateral Agent may elect, against and
on
account of the obligations and liabilities of such Guarantor to the Holders
hereunder in any currency arising hereunder or under the Security Agreement
as
the Collateral Agent may elect, whether or not a Holder has made any demand
for
payment and although such obligations, liabilities and claims may be contingent
or unmatured. The Collateral Agent shall notify such Guarantor
promptly of any such set-off and the application made by the Collateral Agent
of
the proceeds thereof, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
each Holder under this Section 1.8 are in addition to
other rights and remedies (including, without limitation, other rights of
set-off) which the Collateral Agent, acting on behalf of the Holders, may
have.
1.9 Payments. In
addition to the terms of the Guaranty set forth in Section
1.1 of this Guarantee, and in no manner imposing any limitation
on
such terms, it is expressly understood and agreed that, if, at any time, any
of
the Obligations are declared to be immediately due and payable by a Guarantor,
then the Guarantors shall, upon ten (10) Business Days’ notice, pay to the
Collateral Agent, acting on behalf of the Holders, the entire amount of such
Obligations as has been declared due and payable to the
Holders. Payment by the Guarantors shall be made to the Collateral
Agent in immediately available Federal funds to an account designated by the
Collateral Agent or at the address set forth herein for the giving of notice
to
the Collateral Agent or at any other address that may be specified in writing
from time to time by the Collateral Agent, and shall be credited and applied
to
the Obligations.
-4-
1.10 Release.
Subject to Section 2 of this Guarantee, each Guarantor
will be released from all liability hereunder concurrently with the repayment
and performance in full of all amounts owed under the Amendment Agreement,
the
Notes and the other Transaction Documents, and all other
Obligations. No payment made by the Company, any of the Guarantors,
any other guarantor or any other Person or received or collected by the Holders
or the Collateral Agent from the Company, any of the Guarantors, any other
guarantor or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of any Guarantor hereunder which
shall, notwithstanding any such payment (other than any payment made by such
Guarantor in respect of the Obligations or any payment received or collected
from such Guarantor in respect of the Obligations), remain liable for the
Obligations up to the maximum liability of such Guarantor hereunder until the
Obligations are paid and performed in full.
2. REINSTATEMENT.
The
guarantees contained in Section 1 of this Guarantee
shall continue to be effective, or be reinstated, as the case may be, if at
any
time payment, or any part thereof, of any of the Obligations is rescinded or
must otherwise be restored or returned by the Holders or the Collateral Agent
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization
of
the Company or any Guarantor, or upon or as a result of the appointment of
a
receiver, intervenor or conservator of, or trustee or similar officer for,
the
Company or any Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made.
3. REPRESENTATIONS
AND WARRANTIES.
Each
Guarantor hereby represents and warrants to the Collateral Agent and Holders
as
follows:
3.1 Organization
and Qualification. Each Guarantor is duly organized, validly existing and in
good standing under the laws of its formation, with the requisite power and
authority to own and use its properties and assets and to carry on its business
as currently conducted. Each Guarantor is duly qualified to do
business and is in good standing as a foreign corporation in each jurisdiction
in which the nature of the business conducted or property owned by it makes
such
qualification necessary, except where the failure to be so qualified or in
good
standing, as the case may be, could not, individually or in the aggregate,
(x)
adversely affect the legality, validity or enforceability of any of this
Guarantee in any material respect, (y) have a material adverse effect on the
results of operations, assets, prospects, or financial condition of the
Guarantor or (z) adversely impair in any material respect the Guarantor’s
ability to perform fully on a timely basis its obligations under this Guarantee
(a “Material Adverse Effect”).
-5-
3.2 Authorization;
Enforcement. Each Guarantor has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by
this
Guarantee, and otherwise to carry out its obligations hereunder. The execution
and delivery of this Guarantee by each Guarantor and the consummation by it
of
the transactions contemplated hereby have been duly authorized by all requisite
corporate action on the part of the Guarantor, and no further consent or
authorization of the Guarantor, its board of directors, shareholders, or to
its
knowledge, any governmental authority or organization, or any other person
or
entity is required in connection therewith. This Guarantee has been duly
executed and delivered by each Guarantor and constitutes the valid and binding
obligation of such Guarantor enforceable against such Guarantor in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar
laws
relating to, or affecting generally the enforcement of, creditors’ rights and
remedies or by other equitable principles of general application.
3.3 No
Conflicts. The execution, delivery and performance of this Guarantee by each
Guarantor and the consummation by each Guarantor of the transactions
contemplated thereby do not and will not (i) conflict with or violate any
provision of its certificate of incorporation, by-laws or any other governing
document or (ii) conflict with, constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, any
agreement, indenture or instrument to which such Guarantor is a party or by
which it or any of its asset or properties are bound or affected, or (iii)
result in a violation of any law, rule, regulation, order, judgment, injunction,
decree or other restriction of any court or governmental authority to which
such
Guarantor is subject (including Federal and state securities laws and
regulations), or by which any of its properties or assets are bound or affected.
The business of each Guarantor is not being conducted in violation of any law,
ordinance or regulation of any governmental authority, except for violations
which, individually or in the aggregate, do not have a Material Adverse
Effect.
3.4 Amendment
Agreement. The representations and warranties of the Company set forth in
the Amendment Agreement as they relate to each Guarantor, each of which is
hereby incorporated herein by reference, are true and correct as of each time
such representations are deemed to be made pursuant to such Amendment Agreement,
and the Holders shall be entitled to rely on each of them as if they were fully
set forth herein, provided, that each reference in each such
representation and warranty to the Company’s knowledge shall, for the purposes
of this Section 3.4, be deemed to be a reference to
such Guarantor’s knowledge.
3.5 Independence
of Parties. The Holders have no fiduciary relationship with or
duty to any Guarantor arising out of or in connection with this Guarantee or
any
of the other Transaction Documents; the relationship between the Guarantors,
on
the one hand, and the Holders, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and no joint venture is created
hereby or by the other Transaction Documents or otherwise exists by virtue
of
the transactions contemplated hereby among the Guarantors and the
Holders.
3.6 Counsel. Each
Guarantor has been advised by counsel in the negotiation, execution and delivery
of this Guarantee and the other Transaction Documents to which it is a
party.
-6-
4. FURTHER
ASSURANCES.
Each
Guarantor covenants and agrees with the Collateral Agent, on behalf of each
Holder, that, from and after the date of this Guarantee until the Obligations
shall have been paid in full, such Guarantor shall (i) take, and/or shall
refrain from taking, as the case may be, such commercially reasonable action
(including complying with all of the obligations in Section 2 of the Notes,
which obligations are incorporated by reference herein and shall be binding
on
each Guarantor) that is necessary to be taken or not taken, as the case may
be,
so that no Event of Default (as defined in the Notes) is caused by the failure
to take such action or to refrain from taking such action by such Guarantor
and
(ii) execute and deliver to the Collateral Agent, from time to time, any
additional instruments or documents which are reasonably necessary to cause
this
Guarantee to be, become or remain valid and effective in accordance with its
terms.
5. MISCELLANEOUS.
5.1 Notices,
Etc. All notices and other communications provided for hereunder
shall be in writing and shall be mailed (by certified mail, postage prepaid
and
return receipt requested), telecopied, e-mailed or delivered to the addressee
at
its address specified in the signature pages below; or as to any such
Person, at such other address as shall be designated by such Person in a written
notice to all other parties hereto complying as to delivery with the terms
of
this Section 5.1. All such notices and
other communications shall be effective (a) if sent by certified mail, return
receipt requested, when received or three days after deposited in the mails,
whichever occurs first, (b) if telecopied or e-mailed, when transmitted (during
normal business hours) and confirmation is received, and otherwise, the day
after the notice or communication was transmitted and confirmation is received,
or (c) if delivered in person, upon delivery.
5.2 Amendments;
Waivers. No amendment of any provision of this Guarantee shall be
effective unless it is in writing and signed by each Guarantor, the Required
Holders (as defined in the Note) and the Collateral Agent, and no waiver of
any
provision of this Guarantee, and no consent to any departure by each Guarantor
therefrom, shall be effective unless it is in writing and signed by each
Guarantor and the Collateral Agent, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
5.3 No
Implied Waivers. No failure on the part of the Collateral Agent
to exercise, and no delay in exercising, any right hereunder or under any of
the
other Transaction Documents shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The rights and
remedies of the Collateral Agent or any Holder provided herein and in the other
Transaction Documents are cumulative and are in addition to, and not exclusive
of, any rights or remedies provided by law. The rights of the
Collateral Agent or any Holder under any of the other Transaction Documents
against any party thereto are not conditional or contingent on any attempt
by
such Person to exercise any of its rights under any of the other Transaction
Documents against such party or against any other Person, including but not
limited to, any Guarantor.
-7-
5.4 Severability. Any
provision of this Guarantee that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining portions
hereof or thereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
5.5 GOVERNING
LAW. THIS GUARANTEE SHALL BE GOVERNED BY, CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO
CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN THE STATE OF NEW
YORK.
5.6 JURISDICTION. ANY
LEGAL ACTION, SUIT OR PROCEEDING WITH RESPECT TO THIS GUARANTEE OR ANY DOCUMENT
RELATED HERETO MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX IN THE
COUNTY OF NEW YORK OR THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT
OF
NEW YORK, AND APPELLATE COURTS THEREOF, AND, BY EXECUTION AND DELIVERY OF THIS
GUARANTEE, EACH GUARANTOR HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS. EACH GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUMNONCONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE BRINGING OF ANY SUCH ACTION, SUIT OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF
AS
IS DEEMED APPROPRIATE BY THE COURT.
5.7 WAIVER
OF JURY TRIAL. EACH GUARANTOR AND (BY ITS ACCEPTANCE OF THE
BENEFITS OF THIS GUARANTEE) THE COLLATERAL AGENT WAIVES ANY RIGHT IT MAY HAVE
TO
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, ARISING OUT OF, UNDER
OR IN
CONNECTION WITH THIS GUARANTEE OR ANY OF THE OTHER TRANSACTION DOCUMENTS, OR
ANY
COURSE OF CONDUCT, COURSE OF DEALING, ORAL OR WRITTEN STATEMENT OR OTHER ACTION
OF THE PARTIES HERETO.
5.8 SERVICE
OF PROCESS. EACH GUARANTOR IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFORESAID COURTS IN ANY SUCH ACTION, SUIT OR PROCEEDING
BY
THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY
SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ANY GUARANTOR AT ITS
ADDRESS PROVIDED HEREIN, SUCH SERVICE TO BECOME EFFECTIVE 10 DAYS AFTER SUCH
MAILING. NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT OF THE
COLLATERAL AGENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY GUARANTOR OR ANY
PROPERTY OF ANY GUARANTOR IN ANY OTHER JURISDICTION.
-8-
5.9 Section
Headings. Section headings herein are included for convenience of
reference only and shall not constitute a part of this Guarantee for any other
purpose.
5.10 Counterparts. This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which shall be deemed to be an
original, but all of which taken together constitute one in the same
Agreement.
5.11 Conflicts. In
the event of any conflict between the terms of this Guarantee, the Amendment
Agreement, or any of the other Transaction Documents or exhibits referred to
herein or therein, the terms of the Amendment Agreement shall
control.
5.12 Successors
and Assigns. The terms and conditions of this Guarantee shall
inure to the benefit of and be binding upon the respective successors and
permitted assigns of the parties. Nothing in this Guarantee, express
or implied, is intended to confer upon any party other than the parties hereto
or their respective successors and permitted assigns any rights, remedies,
obligations or liabilities under or by reason of this Guarantee, except as
expressly provided in this Guarantee. A Holder may assign its rights
hereunder in connection with any valid private sale or transfer of its Notes
as
permitted under the Amendment Agreement and/or the Notes, in which case the
term
“Holder” shall be deemed to refer to such transferee as though such transferee
were an original beneficiary hereof. No Guarantor may assign its
rights or obligations under this Guarantee.
5.13 Additional
Guarantors. If a Guarantor creates or acquires any new
subsidiary, then such Guarantor shall cause such new subsidiary to become party
to (i) this Guarantee for all purposes of this Guarantee by executing and
delivering an Assumption Agreement in the form of Annex 1 hereto and (ii) the
Security Agreement in accordance with the terms of the Security
Agreement.
5.14 Controlling
Agreement. In the event of any conflict between the terms of this
Guarantee, the Amendment Agreement, or any of the other Transaction Documents
or
exhibits referred to herein or therein, the terms of the Amendment Agreement
shall control.
[SIGNATURE
PAGE FOLLOWS]
-9-
IN
WITNESS WHEREOF, the undersigned has
caused this Guarantee to be duly executed and delivered as of the date first
above written.
PERSONNEL
RESOURCES OF GEORGIA,
INC.
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By:
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Xxxxx X. Xxx,
Xx.
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Title:
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Address:
000 Xxxxx Xxxxxxxxxxxx Xxxxx, Xxxxx 0X, Xxxxxxxxxx, Xxxxx Xxxxxxxx
00000
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Telephone:
000-000-0000
|
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Facsimile:
000-000-0000
|
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CCI
TELECOM, INC.
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By:
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Xxxxx X. Xxx,
Xx.
|
||
Title:
|
||
Address:
00000 Xxx Xxxx Xxxx, Xxx Xxxxxxx, Xxxxx 00000
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Telephone:
000-000-0000
|
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Facsimile:
000-000-0000
|
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METHOD
IQ, INC.
|
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By:
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Xxxxx X. Xxx,
Xx.
|
||
Title:
|
||
Address:
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx
00000
|
||
Telephone:
000-000-0000
|
||
Facsimile:
000-000-0000
|
VIASYS
SERVICES, INC.
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By:
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Xxxxx X. Xxx,
Xx.
|
||
Title:
|
||
Address:
00 Xxxx Xxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000
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||
Telephone:
000-000-0000
|
||
Facsimile:
000-000-0000
|
||
VIASYS
NETWORK SERVICES, INC.
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By:
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Xxxxx X. Xxx,
Xx.
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Title:
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||
Address:
00 Xxxx Xxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000
|
||
Telephone:
000-000-0000
|
||
Facsimile:
000-000-0000
|
||
VSI
REAL ESTATE HOLDING, INC.
|
||
By:
|
||
Xxxxx X. Xxx,
Xx.
|
||
Title:
|
||
Address:
00 Xxxx Xxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000
|
||
Telephone:
000-000-0000
|
||
Facsimile:
000-000-0000
|
||
DIGITAL
COMMUNICATION SERVICES, INC.
|
||
By:
|
||
Xxxxx X. Xxx,
Xx.
|
||
Title:
|
||
Address:
00 Xxxxx 0xx Xxxxxx, Xxxxxx Xxxxx, Xxxxxxx
00000
|
THIS
GUARANTEE ACCEPTED BY:
|
||
IMPERIUM
ADVISERS, LLC
|
||
as
Collateral Agent
|
||
By:
|
||
Name:
|
Xxxxxxx
Xxxxxxx
|
|
Title:
|
General
Counsel
|
|
Address:
|
000
Xxxx 00xx Xxxxxx
|
|
00xx
Xxxxx
|
||
Xxx
Xxxx, XX 00000
|
||
Telephone:
|
(000)
000-0000
|
|
Facsimile:
|
(000)
000-0000
|
Annex
1
to
GUARANTEE
ASSUMPTION
AGREEMENT, dated as of _________, _____ made by __________________, a __________
corporation (the “Additional Guarantor”), in favor of the Holders pursuant to
the Amendment Agreement referred to below. All capitalized terms not defined
herein shall have the meaning ascribed to them in such Amendment
Agreement.
W
I T N E
S S E T H :
WHEREAS,
Charys Holding Company, Inc.,
a Delaware corporation (the “Company”), and the Holders have entered into a
Amendment Agreement, dated as of April 5, 2007 (as amended, supplemented or
otherwise modified from time to time, the “Amendment Agreement”);
WHEREAS,
in connection with the
Amendment Agreement, the Company’s subsidiaries (other than the Additional
Guarantor) have entered into the Guarantee, dated as of the date of the
Amendment Agreement (as amended, supplemented or otherwise modified from time
to
time, the “Guarantee”) in favor of the Holders;
WHEREAS,
the Amendment Agreement
requires the Additional Guarantor to become a party to the Guarantee;
and
WHEREAS,
the Additional Guarantor has
agreed to execute and deliver this Assumption Agreement in order to become
a
party to the Guarantee;
NOW,
THEREFORE, IT IS AGREED:
1. Guarantee. By
executing and delivering this Assumption Agreement, the Additional Guarantor,
as
provided in Section 5.13 of the Guarantee, hereby becomes a party to the
Guarantee as a Guarantor thereunder with the same force and effect as if
originally named therein as a Guarantor and, without limiting the generality
of
the foregoing, hereby expressly assumes all obligations and liabilities of
a
Guarantor thereunder. The Additional Guarantor hereby represents and
warrants that each of the representations and warranties contained in Section
3
of the Guarantee is true and correct on and as the date hereof as to such
Additional Guarantor (after giving effect to this Assumption Agreement) as
if
made on and as of such date.
2. Governing
Law. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE
TO
CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN THE STATE OF NEW
YORK.
3. Controlling
Agreement. In the event of any conflict between the terms of this
Assumption Agreement, the Amendment Agreement, or any of the other Transaction
Documents or exhibits referred to herein or therein, the terms of the Amendment
Agreement shall control.
IN
WITNESS WHEREOF, the undersigned has
caused this Assumption Agreement to be duly executed and delivered as of the
date first above written.
[ADDITIONAL
GUARANTOR]
|
||
By:
|
||
Name:
|
||
Title:
|