Unassociated Document


    
      

    


    CHARYS
      HOLDING COMPANY, INC.

    1117
      Perimeter Center West, Suite N 415

    Atlanta,
      Georgia 3033

     

    Telephone
      (678) 443 2300

    Facsimile
      (678) 443 2320

     

    June
      25,
      2007

     

    DEPOSITARY
      AGREEMENT

     

    The
      Bank
      of New York Trust Company, N.A.

    100
      Ashford Center North, Suite 520

    Atlanta,
      Georgia 30338

    Attention:  Corporate
      Trust Administration

     

    Gentlemen:

     

    Charys
      Holding Company, Inc., a Delaware corporation (the “Company”), pursuant to that
      certain Consent Solicitation Statement (the “Statement”) with respect to
      Solicitation of Consents to Consent and Amendment to Indenture described in
      Attachment 1 hereto with respect to that certain Consent and Amendment
      attached thereto as Attachment A (the “Consents”), is soliciting consents
      from each holder (each a “Holder” and collectively the “Holders”) of those
      certain $175,000,000 principal amount of 8.75% Senior Convertible Notes due
      2012
      and $26,250,000 principal amount of 8.75% Senior Convertible Notes due 2012
      (such Senior Convertible Notes being hereinafter defined as the “Notes”) issued
      pursuant to those certain Indentures dated February 16, 2007 and March 8, 2007
      (both of such Indentures being collectively referred to as the
“Indenture”).  In addition to the Statement, there is an accompanying
      Consent and Letter of Transmittal (the “Consent and Letter of Transmittal”) as
      described in Attachment 2 hereto.  Capitalized terms used and
      not otherwise defined herein have the meanings given to them in the
      Statement.

     

    The
      Company hereby appoints The Bank of New York Trust Company, N.A. to act as
      Depositary (the “Depositary”) in connection with the Solicitation of
      Consents.  References hereinafter to “you” shall refer to The Bank of
      New York Trust Company, N.A.

     

    The
      Solicitation of Consents is expected to be commenced by the Company on June
      25,
      2007.  The Consent and Letter of Transmittal that accompanies the
      Solicitation of Consents is to be used by the Holders to accept the Consents,
      and contains instructions with respect to the delivery of the
      Consents.

     

    Subject
      to the terms and conditions of the Solicitation of Consents set forth in the
      Statement and the Indenture, as applicable, the Company expressly reserves
      the
      right to extend the Solicitation of Consents from time to time and may extend
      the Solicitation of Consents by giving oral (promptly confirmed in writing)
      or
      written notice to you before 9:00 a.m., New York City time, on the business
      day
      following the scheduled Consent Date, July 10, 2006.

     

    1.           You
      are to examine each of the Consents and Letters of Transmittal and any other
      documents delivered or mailed to you by or for Holders to ascertain whether:
      (a)
      the Consents and Letters of Transmittal and any such other documents are duly
      executed and properly completed in accordance with instructions set forth
      therein; and (b) the Consents have been properly delivered.  In each
      case where the Consent and Letter of Transmittal or any other document has
      been
      improperly completed or executed or some other irregularity in connection with
      the Solicitation of Consents or delivery of Consents exists, you will endeavor
      to inform the presenters of the need for fulfillment of all requirements and
      to
      take any other action as may be reasonably necessary or advisable to cause
      such
      irregularity to be corrected.

     

    
      
        
        

      

      
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    2.           With
      the approval of the Company (such approval, if given orally, to be promptly
      confirmed in writing), or any other party designated in writing by the Company,
      you are authorized to waive any irregularities in connection with any delivery
      pursuant to the Solicitation of Consents.

     

    3.           Delivery
      of Consents pursuant to the Solicitation of Consents may be made only as set
      forth in the Statement and shall be considered properly tendered to you only
      when:

     

    (a)           The
      Consents evidenced by a Consent and Letter of Transmittal have been delivered
      to
      you prior to the Consent Date; and

     

    (b)           The
      Consents shall not have been revoked prior to the Consent Date, and the adequacy
      of the Consents have been favorably passed upon as above provided.

     

    4.           You
      shall advise the Company with respect to any Consents received on or subsequent
      to the Consent Date.

     

    5.           You
      shall accept deliveries of Consents:

     

    (a)       In
      cases where the Notes are registered in two or more names only if signed by
      all
      named Holders;

     

    (b)       In
      cases where the signing person (as indicated on the Consent and Letter of
      Transmittal) is acting in a fiduciary or a representative capacity only when
      proper evidence of his authority so to act is submitted; and

     

    (c)       From
      persons other than the registered Holder, provided that customary transfer
      requirements, including payment of any applicable transfer taxes, are
      fulfilled.

     

    6.           Consents
      delivered pursuant to the Solicitation of Consents may be revoked, at any time
      prior to the Consent Date.  See the Statement for further
      details.

     

    7.           You
      are not authorized to pay or offer to pay any concessions, commissions or
      solicitation fees to any broker, dealer, bank or other persons or to engage
      or
      utilize any person to solicit Consents.

     

    8.           As
      Depositary hereunder you:

     

    (a)           Shall
      not be liable for any action or omission to act unless the same constitutes
      your
      own gross negligence, willful misconduct or bad faith, and in no event shall
      you
      be liable to a Holder, the Company or any third party for special, indirect
      or
      consequential damages, or lost profits, arising in connection with this
      Agreement;

     

    (b)           Shall
      have no duties or obligations other than those specifically set forth herein
      or
      as may be subsequently agreed to in writing between you and the
      Company;

     

    (c)           Will
      be regarded as making no representations and having no responsibilities as
      to
      the validity, sufficiency, value or genuineness of any of the Solicitation
      of
      Consents;

     

    (d)           Shall
      not be obligated to take any legal action hereunder which might in your judgment
      involve any expense or liability, unless you shall have been furnished with
      indemnity satisfactory to you;

     

    (e)           May
      conclusively rely on and shall be protected in acting in reliance upon any
      certificate, instrument, opinion, notice, letter, telegram or other document
      or
      security delivered to you and believed by you to be genuine and to have been
      signed or presented by the proper person or persons;

     

    
      
        
        

      

      
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    (f)           May
      act upon any statement, request, document, certificate, agreement or other
      instrument whatsoever not only as to its due execution and validity and
      effectiveness of its provisions, but also as to the truth and accuracy of any
      information contained therein, which you shall in good faith believe to be
      genuine or to have been signed or presented by the proper person or
      persons;

     

    (g)           May
      conclusively rely on and shall be protected in acting upon written or oral
      instructions from the Company;

     

    (h)           May
      consult with counsel of your selection with respect to any questions relating
      to
      your duties and responsibilities and the advice or opinion of such counsel
      shall
      be full and complete authorization and protection in respect of any action
      taken, suffered or omitted to be taken by you hereunder in good faith and in
      accordance with the advice or opinion of such counsel;

     

    (i)           Shall
      not be responsible or liable for special, indirect, or consequential loss or
      damage of any kind whatsoever (including, but not limited to, loss of profit)
      irrespective of whether you have been advised of the likelihood of such loss
      or
      damage and regardless of the form of action;

     

    (j)           Shall
      in no event be responsible or liable for any failure or delay in the performance
      of your obligations under this Agreement arising out of or caused by, directly
      or indirectly, forces beyond your reasonable control, including without
      limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil
      or military disturbances, nuclear or natural catastrophes or acts of God, and
      interruptions, loss or malfunctions of utilities, communications or computer
      (software or hardware) services; and

     

    (k)           Shall
      not advise any person delivering Consents pursuant to the Solicitation of
      Consents as to the wisdom of making such delivery or as to the market value
      or
      decline or appreciation in market value of any Note.

     

    9.           You
      shall take such action as may from time to time be requested by the Company
      (and
      such other action as you may deem appropriate) to furnish copies of the
      Statement and the Consent and Letter of Transmittal to all persons requesting
      such documents and to accept and comply with telephone requests for information
      relating to the Solicitation of Consents.  All other requests for
      information relating to the Consents shall be directed to the Company,
      Attention: Mr. Billy V. Ray, Jr., provided that such information shall relate
      only to the procedures for accepting (or withdrawing from) the Solicitation
      of
      Consents.  The Company will promptly furnish you with copies of such
      documents on your request.

     

    10.           You
      are authorized to cooperate with and to furnish information to any organization
      (and its representatives) designated from time to time by the Company, including
      its legal counsel, Glast, Phillips & Murray, P.C., in any manner reasonably
      requested by it in connection with the Solicitation of Consents and any
      deliveries thereunder.

     

    11.           You
      shall advise by facsimile transmission Mr. Billy V. Ray, Jr., Chief Executive
      Officer of the Company (at the facsimile number (678) 443-2320), and such other
      person or persons as Company may request, daily up to and including the Consent
      Date, as to the principal amount of Notes which have delivered Consents pursuant
      to the Solicitation of Consents, and the items received by you pursuant to
      this
      Agreement, separately reporting and giving cumulative totals as items properly
      received, items improperly received.  In addition, you will also
      inform, and cooperate in making available to, the aforementioned persons upon
      oral request made from time to time prior to the Consent Date such other
      information as they may reasonably request.  Such cooperation shall
      include, without limitation, the granting by you to the Company and such person
      as the Company may request, of access to those persons on your staff who are
      responsible for receiving deliveries of the Consents, in order to ensure that
      immediately prior to the Consent Date, the Company shall have received
      information in sufficient detail to enable it to decide whether to extend the
      Solicitation of Consents.  You shall prepare a final list of all
      persons whose Consents were accepted, the principal amount of Notes with respect
      to the Consents delivered and deliver such list to the Company.

     


    
      
        
        

      

      
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    12.           Consents
      and Letters of Transmittal shall be stamped by you as to the date, and, after
      the expiration of the Solicitation of Consents, the time, of receipt thereof
      and
      shall be preserved by you for a period of time at least equal to the period
      of
      time you preserve other records pertaining to the transfer of
      securities.  You shall dispose of unused Consents and Letters of
      Transmittal and other surplus materials by returning them to the
      Company.

     

    13.           For
      services rendered as Depositary hereunder, you shall be entitled to such
      compensation as shall be agreed in writing between the Company and
      you.  The provisions of this paragraph shall survive the termination
      of this Agreement.

     

    14.           You
      hereby acknowledge receipt of the Statement and the Consent and Letter of
      Transmittal.  Any inconsistency between this Agreement, on the one
      hand, and the Statement and the Consent and Letter of Transmittal (as they
      may
      be amended from time to time), on the other hand, shall be resolved in favor
      of
      the Statement and the Consent and Letter of Transmittal, except with respect
      to
      your duties, liabilities and indemnification as the Depositary.

     

    15.           The
      Company covenants and agrees to fully indemnify and hold you harmless against
      any and all loss, liability, cost or expense, including reasonable attorneys’
fees and expenses, incurred without gross negligence or willful misconduct
      on
      your part, arising out of or in connection with any act, omission, delay or
      refusal made by you in reliance upon any signature, endorsement, assignment,
      certificate, order, request, notice, instruction or other instrument or document
      believed by you to be valid, genuine and sufficient and in accepting any Consent
      believed by you in good faith to be authorized, and in delaying or refusing
      in
      good faith to accept any Consent.  In each case the Company shall be
      notified by you, by letter or facsimile transmission, of the written assertion
      of a claim against you or of any other action commenced against you, promptly
      after you shall have received any such written assertion or shall have been
      served with a summons in connection therewith.  The Company shall be
      entitled to participate at its own expense in the defense of any such claim
      or
      other action and, if the Company so elects, the Company shall assume the defense
      of any suit brought to enforce any such claim.  In the event that the
      Company shall assume the defense of any such suit, the Company shall not be
      liable for the fees and expenses of any additional counsel thereafter retained
      by you, so long as the Company shall retain counsel satisfactory to you to
      defend such suit, and so long as you have not determined, in your reasonable
      judgment, that a conflict of interest exists between you and the
      Company.  The provisions of this paragraph shall survive the
      termination of this Agreement.

     

    16.           This
      Agreement and your appointment as Depositary hereunder shall be construed and
      enforced in accordance with the laws of the State of New York applicable to
      agreements made and to be performed entirely within such state, and without
      regard to conflicts of laws principles, and shall inure to the benefit of,
      and
      the obligations created hereby shall be binding upon, the successors and assigns
      of each of the parties hereto.

     

    17.           This
      Agreement may be executed in two or more counterparts, each of which shall
      be
      deemed to be an original and all of which together shall constitute one and
      the
      same agreement.

     

    18.           In
      case any provision of this Agreement shall be invalid, illegal or unenforceable,
      the validity, legality and enforceability of the remaining provisions shall
      not
      in any way be affected or impaired thereby.

     

    19.           This
      Agreement shall not be deemed or construed to be modified, amended, rescinded,
      cancelled or waived, in whole or in part, except by a written instrument signed
      by a duly authorized representative of the party to be charged.  This
      Agreement may not be modified orally.

     

    20.           Unless
      otherwise provided herein, all notices, requests and other communications to
      any
      party hereunder shall be in writing (including facsimile or similar writing)
      and
      shall be given to such party, addressed to it, at its address or telecopy number
      set forth below:

     

    
      
        
        

      

      
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    If
      to the
      Company:

     

    Mr.
      Billy
      V. Ray, Jr.

    1117
      Perimeter Center West

    Suite
      N-415

    Atlanta,
      Georgia 30338

    Facsimile:
      678-443-2320

     

    If
      to the
      Depositary:

     

    The
      Bank
      of New York Trust Company, N.A.

    100
      Ashford Center North

    Suite
      520

    Atlanta,
      Goergia 30338

    Facsimile:
      (770) 698-5195

    Attention:   Corporate
      Trust
      Administration

     

    21.   Unless
      terminated
      earlier by the parties hereto, this Agreement shall terminate 90 days following
      the Consent Date.  Notwithstanding the foregoing, Paragraphs 14 and 16
      shall survive the termination of this Agreement.

     

    22.   This
      Agreement
      shall be binding and effective as of the date hereof.

     

    23.   Subject
      to
      Paragraph 15 hereof, any amendment to or extension of the Solicitation of
      Consents, as the Company shall from time to time determine, shall be effective
      upon oral notice to you from the Company given prior to the time the
      Solicitation of Consents would otherwise have expired, and shall be promptly
      confirmed by the Company in writing; provided that you may rely on and shall
      be
      authorized and protected in acting or failing to act upon any such notice even
      if such notice is not confirmed in writing or such confirmation conflicts with
      such notice. If at any time the Solicitation of Consents shall be terminated
      as
      permitted by the terms thereof, the Company shall promptly notify you of such
      termination.

     

    Please
      acknowledge receipt of this Agreement and confirm the arrangements herein
      provided by signing and returning the enclosed copy.

     

    
      	 	
              CHARYS
                HOLDING COMPANY, INC.

            
	 	 
	 	 	 
	 	
              By

            	 
	 	 	
              Billy
                V. Ray, Jr., Chief Executive
                Officer

            


    

    


     

    Accepted
      as of the date first

    above
      written:

     

    THE
      BANK OF NEW YORK TRUST COMPANY, N.A., as Depositary

     

     

    
      	
              By

            	 	 
	 	 	
              ,

            	 	 


    

    


    
      [Signature
        Page to Depositary Agreement]

       

    

    Attachments:

    Attachment
      1 - Solicitation of Consents to Consent and Amendment to Indenture

    Attachment
      2 - Consent and Letter of Transmittal

     

    
      
        
        

      

      
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    Attachment
      1

    Solicitation
      of Consents to Consent and Amendment to Indenture

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
 

    Attachment
      2

    Consent
      and Letter of Transmittal