EXHIBIT 2.1
NOTE PURCHASE AGREEMENT
This Note Purchase Agreement (this "Agreement"), dated as of November
30, 2001, by and among Capital Resource Partners IV, L.P., a Delaware limited
partnership ("CRP IV"), CRP Investment Partners IV, LLC, a Delaware limited
liability company ("CRP IP", and collectively with CRP IV, "Buyers"), ATNAM
Enterprises, Inc., an Illinois corporation ("Seller"), and Xxxxx Industrial
Services, L.L.C., a Delaware limited liability company ("Issuer").
ARTICLE I
PURCHASE AND SALE OF NOTES
1.1 Purchase and Sale of Notes. On the terms and subject to the
conditions set forth in this Agreement, Buyers shall purchase from Seller, and
Seller shall sell, convey, assign, transfer and deliver to Buyers upon the
execution hereof, all of Seller's right, title and interest in (i) the Second
Amended and Restated Note of Issuer, dated as of the date hereof, having an
original principal amount of $15,221.84, and (ii) the Amended and Restated Note
of Issuer, dated as of the date hereof, having an original principal amount of
$4,075,648.16 (together the "Notes"). Copies of the Notes are attached hereto as
Exhibit A.
1.2 Payments. Buyers shall pay Seller $2,500,000 in the aggregate as
the purchase price for the Notes (the "Purchase Price"), by wire transfer of
immediately available funds pursuant to Seller's wiring instructions attached
hereto as Exhibit B. Upon execution of this Agreement, Issuer shall deliver by
overnight mail its check for $252,672.98 (the "Outstanding Amount"), such amount
being the payment due with respect to November 30, 2001.
1.3 Closing Process; Further Assurances. Upon execution of this
Agreement by all of the parties hereto, Buyers shall wire the Purchase Price to
Seller. Upon Seller's confirmation from its bank of the receipt of the Purchase
Price, Seller shall fax a copy of the Notes to Buyers. Buyers shall then
surrender the Notes to Issuer for cancellation and re-issuance in the form
attached hereto as Exhibit C (the "New Notes"). The Issuer shall then fax the
New Notes to Buyers, followed by overnight delivery of the New Notes. The
parties hereto agree to take such further actions and execute and deliver such
further instruments as another party may reasonably request in order to carry
out this closing process, and the provisions and intent of this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyers as follows:
2.1 Organization and Standing. Seller is a corporation, validly
existing and in good standing under the laws of the State of Illinois and has
all requisite corporate power and authority to own, lease and operate its
properties and to carry on the business in which it is engaged.
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2.2 Corporate Authorization. Seller has full corporate power and
authority to execute, deliver and perform this Agreement and has taken all
corporate action necessary to authorize the execution, delivery and performance
of this Agreement.
2.3 Binding Obligation. This Agreement is the valid and binding
obligation of Seller, enforceable against Seller in accordance with its terms
(except to the extent that enforceability may be limited by bankruptcy or
insolvency laws or other laws generally relating to creditors' rights, or by
general equitable principles), and the transfer and sale to Buyers of the Notes
will not conflict with or violate the terms of any agreement to which Seller is
a party.
2.4 Title to Notes; No Liens. Seller has good and marketable title to,
and the transfer and sale to Buyers contemplated herein will vest Buyers with
good and marketable title to, the Notes, free and clear of all liens, charges,
claims, restrictions or other encumbrances, other than restrictions imposed by
that certain Subordination and Intercreditor Agreement by and between American
National Bank and Trust Company of Chicago and Seller, dated December 15, 1998.
2.5 No Violations. The transfer and sale by Seller of the Notes will
not violate the certificate of incorporation or bylaws of Seller or, to the best
of Seller's knowledge, any law, ordinance or governmental rule or regulation
applicable to Seller. There is no order of any court, governmental body or
arbitration board or tribunal to which Seller is subject that would prohibit the
consummation of the transactions contemplated hereby.
2.6 No Brokers or Finders. No person, firm or corporation has or will
have, as a result of any act or omission of Buyers, any right, interest or valid
claim against Seller for any commission, fee or other compensation as a finder
or broker in connection with the transactions contemplated by this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyers severally, and not jointly, represent and warrant to Seller as
follows:
3.1 Organization and Standing. CRP IV is a limited partnership and CRP
IP is a limited liability company, each validly existing and in good standing
under the laws of the State of Delaware.
3.2 Corporate Authorization. Each of the Buyers has full partnership or
limited liability company (as applicable) power and authority to execute,
deliver and perform this Agreement and has taken all partnership or limited
liability company (as applicable) action necessary to authorize the execution,
delivery and performance of this Agreement.
3.3 Binding Obligation. This Agreement is the valid and binding
obligation of Buyers, enforceable against Buyers in accordance with its terms
(except to the extent that enforceability may be limited by bankruptcy or
insolvency laws or other laws generally relating to creditors' rights, or by
general equitable principles).
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3.4 No Brokers or Finders. No person, firm or corporation has or will
have, as a result of any act or omission of Buyers, any right, interest or valid
claim against Seller for any commission, fee or other compensation as a finder
or broker in connection with the transactions contemplated by this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ISSUER
Issuer represents and warrants to Buyers as follows:
4.1 Organization and Standing. Issuer is a limited liability company,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite limited liability company power and authority to own,
lease and operate its properties and to carry on the business in which it is
engaged.
4.2 Corporate Authorization. Issuer has full limited liability company
power and authority to execute, deliver and perform this Agreement and has taken
all limited liability company action necessary to authorize the execution,
delivery and performance of this Agreement.
4.3 Binding Obligation. This Agreement and each of the Notes are, and
the New Notes when issued will be, a valid and binding obligation of Issuer,
enforceable against Issuer in accordance with its terms (except to the extent
that enforceability may be limited by bankruptcy or insolvency laws or other
laws generally relating to creditors' rights, or by general equitable
principles), and the transactions contemplated pursuant to this Agreement will
not conflict with or violate the terms of any agreement to which the Issuer is a
party.
4.4 No Brokers or Finders. No person, firm or corporation has or will
have, as a result of any act or omission of Buyers, any right, interest or valid
claim against Issuer for any commission, fee or other compensation as a finder
or broker in connection with the transactions contemplated by this Agreement.
ARTICLE V
MISCELLANEOUS
5.1 Notices. Any notice or communication given pursuant hereto by any
party to the other parties hereto will be in writing and will be delivered or
mailed by registered mail, postage prepaid or sent by Federal Express or other
comparable nationally recognized courier service, or by telecopy, as follows:
If to Issuer: Xxxxx Industrial Services, L.L.C.
000 X. Xxxxxxx Xxx., Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
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If to Seller: ATNAM Enterprises, Inc.
c/o Nextgen Communications Corporation
00000 Xxxxx Xxxx
Xxxxxxx, XX 00000
Attn.: Xxxxx X. Xxxxxxxx
Telecopier: (000) 000-0000
If to Buyers: Capital Resource Partners
00 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Telecopier: (000) 000-0000
or to such other address or telecopy number as will hereinafter be furnished in
writing by any party hereto to the other party hereto.
5.2 Expenses. Each of the parties hereto will bear its own expenses
incurred in connection with the transactions contemplated hereby.
Notwithstanding the foregoing, as between the Issuer and the Buyers the
provisions of Section 10.04 of that certain Amended and Restated Senior
Subordinated Note and Interest Purchase Agreement, dated as of November 30,
2001, by and among the Issuer, the Buyers and the other parties set forth on the
signature pages thereto shall govern the allocation and reimbursement of
expenses.
5.3 Entire Agreement. This Agreement and the Schedules and Exhibits
attached hereto (which are herein incorporated by reference) set forth the
entire agreement among Buyers and Seller relating to the purchase and sale of
the Notes and supersede all prior agreements or understandings among such
parties. This Agreement may be amended or modified only by a written instrument
signed by Buyers and Seller.
5.4 Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Delaware.
5.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
5.6 Binding Effect; Assignment. This Agreement will be binding upon and
inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns; provided, however, that Seller shall
not have the right to assign this Agreement without the prior written consent of
Buyers, which consent may be withheld by Buyers in their sole and absolute
discretion.
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5.7 Headings. The headings in this Agreement are for reference purposes
only and will not affect the meaning or interpretation of this Agreement.
5.8 Remedies. If any one or more of the covenants and/or agreements set
forth in this Agreement will have been breached by Seller or Buyers, the other
party may proceed to protect and enforce its rights either by suit in equity
and/or by action at law, including, without limitation, an action for damages as
a result of any such breach and/or an action for specific performance of any
such covenant or agreement set forth in this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
CAPITAL RESOURCE PARTNERS IV, L.P.
By: CRP Partners IV, LLC
Its General Partner
By:
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Name:
Title: Member
CRP INVESTMENT PARTNERS IV, LLC
By:
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Name:
Title: Member
ATNAM ENTERPRISES, INC.
By:
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Name:
Title:
XXXXX INDUSTRIAL SERVICES, L.L.C.
By:
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Name:
Title:
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