EXHIBIT 1
AGREEMENT
This Agreement is entered into as of November 30, 2001, by and
among Deere Park Capital, L.L.C., an Illinois limited liability company ("DEERE
PARK"), Xxxxx X. Xxxxxxxx (the "DEBTOR"), and Nextgen Communications
Corporation, a Delaware corporation formerly known as U S Industrial Services,
Inc. ("NEXTGEN").
RECITALS:
A. For valued received, the Debtor issued to Deere Park that
certain Secured Promissory Note (the "NOTE") dated as of March 23, 2001 in the
original principal amount of Three Hundred Fifty Thousand Dollars ($350,000).
B. To secure the Debtor's obligations under the Note, the
Debtor and Deere Park entered in to that certain Hypothecation Agreement dated
as of March 23, 2001 (the "HYPOTHECATION AGREEMENT"), pursuant to which the
Debtor pledged to Deere Park 500,000 shares of the Common Stock of Nextgen
represented by stock certificate #188 (the "SHARES"), together with a duly
endorsed stock power (the "STOCK POWER" and together with the Shares, the
"COLLATERAL").
C. The Debtor is currently in default under the Note and the
Hypothecation Agreement.
D. Deere Park and the Debtor desire that Deere Park accept the
Collateral in full satisfaction of the Debtor's obligations under the Note.
NOW, THEREFORE, in consideration of the above premises and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. The Debtor hereby represents and warrants to Deere
Park that:
(a) Pursuant to the terms of the Note, the
Debtor is indebted to Deere Park for unpaid
principal and accrued interest through the
date of this Agreement in the total amount
of $369,804.17, in addition to attorneys'
fees and other costs of collection (the
"DEBT");
(b) The Debtor does not have any defense, setoff
or counterclaim of any kind to its
obligations to Deere Park;
(c) The Debtor is in default on his obligations
to Deere Park under the Note and the
Hypothecation Agreement;
(d) Deere Park has a valid first priority
security interest in and lien on the
Collateral;
(e) The Debtor owns the Shares free and clear of
any lien, pledge charge, encumbrance or
restriction of any kind or nature except (i)
pursuant to the Hypothecation Agreement or
(ii) restrictions on transfer under
applicable state and federal securities
laws;
(f) The Note and the Hypothecation Agreement are
valid and enforceable in accordance with
their terms and in full force and effect;
(g) The acceptance of the Collateral in full
satisfaction of the Debt is fair
consideration and reasonably equivalent
value for the Collateral;
(h) After giving effect to the transactions
contemplated by this Agreement, the sum of
the Debtor's assets, at a fair valuation, is
greater than the sum of all of the Debtor's
debts including contingent liabilities;
(i) The Debtor is not engaged, nor is the Debtor
about to engage, in a business or
transaction for which the remaining assets
of the Debtor would be unreasonably small in
relation to such business or transaction;
(j) The Debtor has not incurred, and does not
intend to incur, debts or liabilities beyond
the Debtor's ability to pay as they become
due;
(k) The Debtor is not entering into this
transaction with the actual intent to
hinder, delay or defraud any creditor;
(l) No consent, waiver or approval of any third
party is necessary for the execution,
delivery and performance of this Agreement
(m) The execution, delivery and performance of
this Agreement will not result in a breach
of or constitute a default under, or result
in the imposition of any lien, charge or
encumbrance upon any property of the Debtor
pursuant to, any agreement or instrument
under which the Debtor is a party or by
which his properties may be bound or
affected; and
(n) This Agreement constitutes, and each of the
documents required hereunder, when executed
and delivered, will constitute the legal,
valid and binding obligation of the Debtor
enforceable in accordance with its terms.
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2. The Debtor hereby consents to the acceptance by Deere Park
of the Collateral in full satisfaction of the Debt and waives any rights that
Debtor may have in the Collateral, including, but not limited to, any rights the
Debtor may have to redeem the Collateral.
3. The Debtor acknowledges that his consent hereunder is
voluntary and has not been induced by coercion of any kind.
4. The Debtor and Nextgen hereby agree to execute any other
documents and take any actions reasonably deemed necessary by Deere Park to
evidence the transactions contemplated by this Agreement or to evidence Debtor's
ownership and title to the Collateral, and to fully cooperate with Deere Park
with respect to the transfer of the Shares by Deere Park at such time as such
transfer is legally permissible under Rule 144, as promulgated under the
Securities Act of 1933, as amended, or any successor provision. Without limiting
the generality of the foregoing, at such time as such transfer is legally
permissible under Rule 144, upon the written request of Deere Park, the Debtor,
in the event that he continues to be a director and officer of Nextgen at such
time, and Nextgen, agree to direct Nextgen's counsel to issue an opinion letter
to Deere Park in order to facilitate the removal of the restrictive legend from
the Shares and the transfer of the Shares, in accordance with Rule 144. The
provisions of this Paragraph 4 shall survive the execution hereof, and remain in
full force and effect so long as Deere Park holds the Collateral.
5. Deere Park represents, warrants and covenants that: (a) it
is the sole owner of the Note, and has not transferred or assigned any interest
in the Note to a third party; (b) it is in possession of the Note; (c) it is
accepting the Collateral hereunder as payment in full on the Note; (d) upon
execution hereof, Deere Park releases the Debtor from any liability under the
Note (provided, however, that such release does not apply with respect to the
Debtor's obligations under Paragraph 4 hereof); and (e) upon execution hereof,
Deere Park shall return the original Note to the Debtor, marked "Paid in Full."
Simultaneously with the execution of this Agreement, Deere Park shall execute an
Investor Representation Statement in the form attached hereto as Exhibit A. In
addition, the Debtor and Deere Park hereby release each other from any liability
in connection with the transaction evidenced by the Note.
6. Each party hereto shall be responsible for preparation of
any regulatory filings required in connection with the subject matter hereof,
including, without limitation, filings with the Securities and Exchange
Commission.
7. No provision of this Agreement may be waived or modified
(including this paragraph) except by the written consent of Deere Park. The
validity, interpretation and enforcement of this Agreement shall be governed by
the internal laws of the Sate of Illinois. Deere Park and the Debtor hereby
consent to the exclusive personal jurisdiction of any state or federal court
situated in Xxxx County, Illinois, regarding any actions or claims relating to
this Agreement, transactions related thereto or the Collateral. Deere Park and
the Debtor hereby waive any objection based upon forum non conveniens, and waive
any trial by jury.
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8. This Agreement may be executed in counterparts, each of which shall be deemed
an original, and all of which together shall constitute one and the same
instrument. Facsimile copies hereof shall be deemed originals. Facsimile copies
hereof shall be deemed originals.
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Xxxxx X. Xxxxxxxx
DEERE PARK CAPITAL, L.L.C.
By:
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Name:
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Title:
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NEXTGEN COMMUNICATIONS
CORPORATION
By:
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Name:
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Title:
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