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EXHIBIT 10
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.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first written above.
By: /s/ X. X. XXXXXXXXXX
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X. X. Xxxxxxxxxx
for Bucyrus International, Inc.,
Bucyrus-Erie Company
and B-E Holdings, Inc.
By: /s/ F. XXXX XXXXX III
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F. Xxxx Xxxxx III
PPM America, Inc., as attorney-in-fact
for
Xxxxxxx National Life Insurance
Company
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