EXHIBIT 5
SETTLEMENT AGREEMENT
This agreement is made and entered into effective this 21st
day of August, 1997, by and among BUCYRUS INTERNATIONAL, INC. ("BI") and XXXXXXX
NATIONAL LIFE INSURANCE COMPANY ("JNL").
WHEREAS, BI is the successor in interest to Bucyrus-Erie
Company ("Bucyrus") and B-E Holdings, Inc. ("Holdings" and, collectively with
Bucyrus, the "Debtors") under the Debtors' Second Amended Plan of Reorganization
(the "Plan") which was consummated on December 14, 1994 in proceedings captioned
In re B-E Holdings, Inc. and Bucyrus-Erie Company, Case Nos. 94-20786, 94-20787
(Bankr. E.D. Wis.) (RAE) (the "Bankruptcy Proceedings") in the United States
Bankruptcy Court for the Eastern District of Wisconsin (the "Bankruptcy Court");
WHEREAS, JNL made an application for reimbursement of its
professional fees and expenses incurred in the Bankruptcy Proceedings pursuant
to Section 503(b) of the Bankruptcy Code (the "503(b) Claim"), the Bankruptcy
Court allowed that application to the extent of $500, JNL appealed the
Bankruptcy Court's ruling to the United States District Court for the Eastern
District of Wisconsin and that court has now referred the 503(b) Claim back to
the Bankruptcy Court for further proceedings; and
WHEREAS, BI and JNL both wish to compromise and settle their
disagreements over the 503(b) Claim;
NOW, THEREFORE:
1. BI and JNL have agreed to settle and resolve the 503(b)
Claim for a cash payment to JNL of $200,000. JNL and BI also jointly agree to
petition the Bankruptcy Court to withdraw its June 6, 1996 ruling with respect
to the 503(b) Claim. The settlement of the 503(b) claim will be evidenced by a
Stipulation and Order of Dismissal in the form of Exhibit A attached. The
parties shall also execute and deliver a mutual release in the form of Exhibit B
attached.
2. It is expressly understood that this Agreement is subject
to and expressly contingent upon the entry of a final, non-appealable order of
the Bankruptcy Court in the Bankruptcy Proceedings.
3. Nothing in this Agreement shall be construed as an
admission by any person that any claim, defense or objection of any other person
has merit. This Agreement represents the entire agreement between the parties
and supersedes all prior negotiations, representations or agreements between the
parties, either written or oral, on the subject hereof. The parties warrant and
represent, each to the other, that they have been fully informed and have full
knowledge of the terms, conditions and legal effects of this Agreement, and that
each party is authorized to enter into this Agreement and related instruments.
No amendment, change or modification of any provision of this Agreement, or any
waiver thereof, shall be effective unless in writing signed by the party to be
charged. BI and JNL shall each bear their own costs and expenses incurred in
connection with the negotiation, execution and delivery of this Agreement. This
Agreement shall bind and inure to the benefit of the principals, agents,
representatives, successors, heirs and assigns of the parties hereto. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the date first written above.
By: /s/ X.X. XXXXXXXXXX
-------------------------------------
X.X. Xxxxxxxxxx
for Bucyrus International,
Inc., Bucyrus-Erie Company and
B-E Holdings, Inc.
By: /s/ F. XXXX XXXXX, III
-------------------------------------
F. Xxxx Xxxxx, III
PPM America, Inc., as
attorney-in-fact for Xxxxxxx
National Life Insurance
Company
