EXHIBIT 2.2
SETTLEMENT AGREEMENT
This Settlement Agreement (this "Agreement") is made as of the 30th day
of November, 2001, by and among ATNAM Enterprises, Inc., an Illinois corporation
("ATNAM"), Nextgen Communications Corporation (formerly U S Industrial Services,
Inc.), a Delaware corporation ("USIS", and together with ATNAM, the "USIS
Parties"), and ▇▇▇▇▇ Industrial Services, L.L.C., a Delaware limited liability
company ("▇▇▇▇▇").
WHEREAS, "USIS Parties" as used herein means each of ATNAM and USIS,
and all of each of their parents, subsidiaries, affiliates, and divisions, and
all of each of their principals, partners, investors, shareholders, owners,
employees, creditors, directors, joint venturers, executives and assigns, and
every person or entity that is in privity with ATNAM or USIS and every other
person, partnership, corporation, limited liability company or other entity that
has, ever has had, or ever could have, any interest in or claim to any aspect of
the operation or business of either of ATNAM or USIS, or the contractual
relationship between ATNAM or USIS and ▇▇▇▇▇, and all of the predecessors,
successors, assigns, present or former employees, agents, relatives and
representatives of the foregoing;
WHEREAS, "▇▇▇▇▇" as used herein means ▇▇▇▇▇ and all of its parents,
subsidiaries, affiliates, and divisions, and all of its principals, partners,
investors, shareholders, owners, employees, creditors, directors, joint
venturers, executives and assigns, and every person or entity that is in privity
with ▇▇▇▇▇ and every other person, partnership, corporation, limited liability
company or other entity that has, ever has had, or ever could have, any interest
in or claim to any aspect of the operation or business of ▇▇▇▇▇, or the
contractual relationship between ▇▇▇▇▇ and ATNAM or USIS, and all of the
predecessors, successors, assigns, present or former employees, agents,
relatives and representatives of the foregoing;
WHEREAS, whenever in this Agreement any party shall be referred to by
name, such designation shall have the same effect as if the words
"administrators, successors and assigns" had been inserted after each such
designation and all the terms, covenants and conditions herein contained shall
inure to the benefit of and shall bind the parties hereto, and their
administrators, successors and assigns, respectively;
WHEREAS, ATNAM, USIS and ▇▇▇▇▇ are parties to an Asset Purchase
Agreement, dated as of November 23, 1998 (the "Asset Agreement"), and to notes,
security agreements, subordination and other related agreements and arrangements
relating to the transactions provided for in the Asset Agreement (collectively,
the "Purchase Agreements");
WHEREAS, ATNAM's attorneys, by letter dated September 18, 2001, have
given ▇▇▇▇▇ notice of default (the "Default Notice") with respect to the
following notes included in the Purchase Agreements: (i) the Amended and
Restated Secured Note of ▇▇▇▇▇ Industrial Services, L.L.C. dated March 31, 2001
having an original principal
amount of $1,000,000, and (ii) the Amended and Restated Secured Note of ▇▇▇▇▇
Industrial Services, L.L.C. dated March 31, 2001 having an original principal
amount of $3,490,000 (the "Old Notes");
WHEREAS, it is Kenny's position that ATNAM has failed to perform
certain obligations set forth in the Consent, Acknowledgment and Waiver Under
Security Agreement, dated as of March 31, 2001, entered into by ATNAM and ▇▇▇▇▇
and included in the Purchase Agreements;
WHEREAS, the parties hereto have resolved the differences among them
and agreed to the terms of this Agreement and wish to provide for the release of
any and all claims each has against the other and to specify the terms of the
settlement of such claims, in connection with and concurrently with the closing
of the transaction described below;
WHEREAS, ▇▇▇▇▇ has agreed to issue its (i) Second Amended and Restated
Note in the name of ATNAM Enterprises, Inc. dated the date hereof in the
aggregate principal amount of $15,221.84, and (ii) Second Amended and Restated
Note in the name of ATNAM Enterprises, Inc. dated the date hereof in the
aggregate principal amount of $4,075,648.16 (together, the "Notes") in exchange
for the Old Notes as part of the settlement with the USIS Parties and the
transaction described below;
WHEREAS, Capital Resource Partners IV, L.P., a Delaware limited
partnership ("CRP"), and CRP Investment Partners IV, LLC, a Delaware limited
liability company ("CRP LLC") (together, "CRP") are acquiring the Notes from
ATNAM as of the date hereof (the "Note Purchase"), pursuant to a Note Purchase
Agreement by and among CRP, ATNAM and ▇▇▇▇▇ (the "Note Purchase Agreement"),
effective as of the date hereof; and
WHEREAS, ▇▇▇▇▇ has facilitated the Note Purchase, the closing of which
is mutually beneficial to ▇▇▇▇▇ and the USIS Parties, and the USIS Parties and
▇▇▇▇▇ are entering this Agreement in consideration for the execution of the Note
Purchase Agreement, and for other good and valuable consideration;
NOW, THEREFORE, in consideration of the promises and covenants made or
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and subject to the terms and
conditions set forth herein, the parties hereto agree, stipulate and release
each other as follows:
1. Release by USIS Parties. Upon the execution of the Note Purchase
Agreement and the USIS Parties' receipt of the consideration to be paid by CRP
in connection therewith, the USIS Parties hereby release and discharge ▇▇▇▇▇ of
and from liability for any and all claims, including but not limited to all
claims alleged, and also all other demands, actions, causes of action,
controversies, declaratory judgment actions, cross claims, counterclaims, debts,
liquidated damages,
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common law claims, statutory claims, costs, expenses, attorneys' fees,
compensatory and punitive damages, compensation, obligations, contract actions,
quasi-contract actions, tort actions, equitable actions, controversies, and
liabilities of any and every nature whatsoever in law or in equity (including
those arising under the laws or statutes of the United States or of any State,
or any Uniform Commercial Code) whether known or unknown, suspected or claimed,
matured or unmatured, and whether or not contingent, which the USIS Parties or
either of them ever had, now has, or which the USIS Parties or either of them
can, will or may have against ▇▇▇▇▇. Without limiting the general
comprehensiveness of the foregoing, each of the USIS Parties specifically agrees
to release and forever discharge ▇▇▇▇▇ from all claims, demands, causes of
action or disputes involving issues similar in any way to, or related in any
manner to those raised as a result of any Purchase Agreement, including the Old
Notes, and any other proposed or future causes of action arising out of the same
or similar incidents and concerning the same parties. THIS RELEASE IS A GENERAL
RELEASE AND THE PARTIES INTEND AND AGREE THAT IT SHALL BE INTERPRETED AND
ENFORCED AS SUCH.
2. Release by ▇▇▇▇▇. Upon the execution of the Note Purchase Agreement
and the USIS Parties' delivery of facsimile copies of the Notes to CRP with a
facsimile copy to ▇▇▇▇▇ in connection therewith, ▇▇▇▇▇ hereby releases and
discharges the USIS Parties of and from liability for any and all claims,
including but not limited to all claims alleged, and also all other demands,
actions, causes of action, controversies, declaratory judgment actions, cross
claims, counterclaims, debts, liquidated damages, common law claims, statutory
claims, costs, expenses, attorneys' fees, compensatory and punitive damages,
compensation, obligations, contract actions, quasi-contract actions, tort
actions, equitable actions, controversies, and liabilities of any and every
nature whatsoever in law or in equity (including those arising under the laws or
statutes of the United States or of any State, or any Uniform Commercial Code)
whether known or unknown, suspected or claimed, matured or unmatured, and
whether or not contingent, which ▇▇▇▇▇ ever had, now has, or which ▇▇▇▇▇ can,
will or may have against the USIS Parties. Without limiting the general
comprehensiveness of the foregoing, ▇▇▇▇▇ specifically agrees to release and
forever discharge the USIS Parties from all claims, demands, causes of action or
disputes involving issues similar in any way to, or related in any manner to
those raised as a result of any Purchase Agreement, and any other proposed or
future causes of action arising out of the same or similar incidents and
concerning the same parties. THIS RELEASE IS A GENERAL RELEASE AND THE PARTIES
INTEND AND AGREE THAT IT SHALL BE INTERPRETED AND ENFORCED AS SUCH.
3. Termination of Security Agreement. Upon the execution of the Note
Purchase Agreement and the USIS Parties' receipt of the consideration to be paid
by CRP in connection therewith, each of the (i) Security Agreement dated as of
November 30, 1998 between ▇▇▇▇▇ and ATNAM, as amended by the Amendment to
Security Agreement dated as of December 15, 1998, and by Amendment No. 2 to
Security Agreement dated as of March 31, 2001 (the "Security Agreement"), and
(ii) Subordinated Mortgage dated as of November 30, 1998 granted by ▇▇▇▇▇ to
ATNAM and relating to certain property located in Lake County, Indiana (the
"Mortgage"), is hereby terminated and the parties hereto agree that the Security
Agreement and the Mortgage shall be of no
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further force or effect from and after the date hereof. The USIS Parties agree
to do such other acts and things, and to execute such further documents,
including but not limited to UCC Termination Statements, including UCC
Termination Statements relating to the filings listed on Exhibit A hereto, as
▇▇▇▇▇ in its sole discretion shall deem necessary or desirable to evidence the
termination and release of any and all interests of the USIS Parties in any
collateral at any time securing the Notes.
4. USIS Parties' Agreement not to ▇▇▇. Each of ATNAM and USIS covenants
and agrees that it shall not ▇▇▇, institute, cause to be instituted, assist in
instituting, or permit to be instituted on its behalf any proceeding before any
court, tribunal or other body, or otherwise allege or assert any claim or matter
against ▇▇▇▇▇ that is covered by this Agreement.
5. ▇▇▇▇▇ Agreement not to ▇▇▇. ▇▇▇▇▇ covenants and agrees that it shall
not ▇▇▇, institute, cause to be instituted, assist in instituting, or permit to
be instituted on its behalf any proceeding before any court, tribunal or other
body, or otherwise allege or assert any claim or matter against either ATNAM or
USIS that is covered by this Agreement.
6. Conditions Precedent to Kenny's Performance. The USIS Parties agree
that only upon their signing of this Agreement, the execution and delivery of
the Note Purchase Agreement by the parties thereto, and the delivery of
facsimile copies of the Notes to CRP with a facsimile copy to ▇▇▇▇▇ in
connection with the Note Purchase Agreement, ▇▇▇▇ ▇▇▇▇▇ be obligated to perform
any requirement of this Agreement.
7. Conditions Precedent to the USIS Parties' Performance. ▇▇▇▇▇ agrees
that only upon its signing of this Agreement, the execution and delivery of the
Note Purchase Agreement by the parties thereto, and CRP's payment in full to the
USIS Parties of the purchase price required by the Note Purchase Agreement, will
the USIS Parties be obligated to perform any requirement of this Agreement.
8. Representations and Warranties. The USIS Parties on the one hand,
and ▇▇▇▇▇ on the other, specifically warrant to the other that they have
received independent legal advice with respect to the advisability of entering
into this Agreement and of making the covenants, representations, warranties and
promises provided for herein and signing this Agreement, that they have relied
solely upon their own independent judgment and that of their legal counsel
regarding the proper, complete and agreed upon consideration for and language of
this Agreement, that they have freely and independently bargained for this
Agreement at arms-length, that no special fiduciary, or confidential
relationship now exists or has ever existed between the USIS Parties and ▇▇▇▇▇,
and that no statements, representatives, promises, warranties, threats,
inducements, etc., made outside this Agreement by the USIS Parties or ▇▇▇▇▇,
have influenced or induced the USIS Parties or ▇▇▇▇▇ to execute this Agreement.
There are no representations upon which the parties rely apart from those
expressly set forth herein. The USIS Parties and ▇▇▇▇▇ have made
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such independent investigation of the facts pertaining to this Agreement as each
has deemed necessary.
9. Receipt of Consideration. Each of the USIS Parties agrees to and
acknowledges receipt of consideration that each agrees and represents is fair,
good, and sufficient for the giving of this Agreement. ▇▇▇▇▇ agrees to and
acknowledges receipt of consideration that ▇▇▇▇▇ agrees and represents is fair,
good, and sufficient for the giving of this Agreement.
10. Persons Bound by Agreement. The USIS Parties hereby warrant and
represent that they have full and legal power and authority to bind to all of
the terms of this Agreement every person, partnership, corporation or entity
included within the definition of "USIS Parties" as set forth above. The USIS
Parties agree to indemnify ▇▇▇▇▇, defend and hold ▇▇▇▇▇ harmless from any and
all claims, demands, disputes, and causes of action asserted against ▇▇▇▇▇ and
any and all losses, judgments, legal costs, attorneys' fees, expert fees and
expenses incurred by ▇▇▇▇▇ in violation of this Section 9. ▇▇▇▇▇ hereby warrants
and represents that it has full and legal power and authority to bind to all of
the terms of this Agreement every person, partnership, corporation or entity
included within the definition of "▇▇▇▇▇" as set forth above. ▇▇▇▇▇ agrees to
indemnify the USIS Parties, defend and hold the USIS Parties harmless from any
and all claims, demands, disputes, and causes of action asserted against the
USIS Parties and any and all losses, judgments, legal costs, attorneys' fees,
expert fees and expenses incurred by the USIS Parties in violation of this
Section 10.
11. No Admission of Liability; Agreement not to Contest. Nothing
contained herein shall be deemed an admission by any party of liability to any
other party. The USIS Parties and ▇▇▇▇▇ agree not to contest in any court or
other proceeding the validity of this Agreement, it being of the essence to this
Agreement that the parties have resolved the USIS Parties' claims against ▇▇▇▇▇
and Kenny's claims against the USIS Parties. It is the USIS Parties' and Kenny's
intention that this Agreement finally and permanently disposes of any and all
claims that the USIS Parties and ▇▇▇▇▇ asserted, could have asserted, or could
ever assert against the other with respect to the subject matter hereof.
12. Entire Agreement. This Agreement, along with the Note Purchase
Agreement, constitutes the entire agreement between the USIS Parties and ▇▇▇▇▇
concerning the subject matter hereof, and shall supersede all prior or
contemporaneous oral or written understandings, statements, representations or
promises with, to or between the USIS Parties and ▇▇▇▇▇. It is expressly
understood that this Agreement may not be altered, amended, modified or
otherwise changed by oral communication of any kind or character.
13. Authority. Each of the undersigned signing on behalf of the USIS
Parties and ▇▇▇▇▇ warrants that he or she is authorized to sign for and bind
such party and that this Agreement is given voluntarily and is not based upon
any representations or statements of any kind made by either party hereto (or
any representative or attorney for
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either party hereto) to the other party hereto concerning the merits, legal
liability or value of the claim or rights released hereunder.
14. Governing Law. This Agreement shall be governed by the law of the
State of Illinois.
15. Notices. All notices under this Agreement shall be delivered to the
parties at the addresses as set forth below:
USIS and ATNAM:
U.S. Industrial Services, Inc.
Attn.: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
▇▇▇▇▇:
▇▇▇▇▇ Industrial Services, L.L.C.
Attn.: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
16. Court Costs and Attorneys' Fees. If any action at law or in equity,
including an action for declaratory relief, is brought to enforce or interpret
the provisions of this Agreement, the prevailing party shall be entitled to
recover costs of court and reasonable attorneys' fees from the other party or
parties to such action, which fees may be set by the court in the trial of such
action or may be enforced in a separate action brought for that purpose, and
which fees shall be in addition to any other relief that may be awarded.
17. Waivers. No waiver of any provision or condition of this Agreement
shall be valid unless executed in writing and signed by the party to be bound
thereby, and then only to the extent specified in such waiver. No waiver of any
provision or condition of this Agreement shall be construed as a waiver of any
other provision or condition of this Agreement, and no present waiver of any
provision or condition of this Agreement shall be construed as a future waiver
of such provision or condition.
18. Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, including by facsimile signature, any of which need not
contain the
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signatures of more than one party, but which taken together shall constitute one
and the same Agreement.
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IN WITNESS WHEREOF, the parties have set their signatures as of the
date above written.
Witness: NEXTGEN COMMUNICATIONS
CORPORATION
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Signature Signature
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Print Name Print Name
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Title Title
Witness: ATNAM ENTERPRISES, INC.
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Signature Signature
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Print Name Print Name
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Title Title
Witness: ▇▇▇▇▇ INDUSTRIAL SERVICES, L.L.C.
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Signature Signature
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Print Name Print Name
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Title Title
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