Exhibit 10(bb)
AGREEMENT
This Agreement is made and entered into this 19th day of March,
1999, by and among MCNIC Pipeline & Processing Company, a
Michigan corporation ("MCNIC"), CRC ▇▇. ▇ ▇▇▇, ▇▇▇ ▇▇. ▇ ▇▇▇,
▇▇▇ ▇▇. ▇ LLC, CRC No. 4 LLC, CRC No. 5 LLC, and CRC No. 6 LLC,
each a Delaware limited liability company (individually and
collectively called the "CRC Entities"), ▇▇▇▇▇ Mining, L.L.C.,
an Oklahoma limited liability company ("BML"), The ▇▇▇▇▇
Company, an Oklahoma corporation ("TBC"), and ▇▇▇▇▇
Technologies, Inc., an Oklahoma corporation ("BTI").
Recitals
A. Pursuant to a Partial Assignment and Assumption
Agreement dated June 24, 1998 (the "Assumption Agreement"), the
CRC Entities assigned BML all right to receive and own, and BML
assumed the obligation to pay for, the "Benefication
Equipment," as that term is defined in the Assumption
Agreement.
B. Pursuant to a Loan Agreement dated June 24,1998, between
MCNIC and BML, MCN IC, on behalf of and as a loan to BML,
delivered all of the purchase price of the Beneficiation
Equipment to the seller of the Beneficiation Equipment (the
"Seller").
C. On or before June 30, 1998, the Seller delivered
possession and full ownership of the Beneficiation Equipment to
BML.
D. BML's obligations under the Loan Agreement are secured
by certain security interests and liens created pursuant to,
and as more particularly described in, a General Security
Agreement dated as of June 24, 1998 (the "Security Agreement"),
from BML to MCNIC;
E. BML's obligations under the Loan Agreement are also
secured by a Pledge and Security Agreement effective as of June
24, 1998 (the "Pledge Agreement"), made by BTI in favor of
MCNIC, wherein BTI pledged all its membership interest in BML
to secure payment of BML's obligations under the Loan
Agreement.
F. Pursuant to an Operation and Maintenance Agreement dated
as of June 24, 1998 (the "Operation Agreement"), among BTI and
the CRC Entities, BTI has operated, managed, and maintained
certain coal briquetting facilities in accordance with the
Operation Agreement for the CRC Entities.
G. Pursuant to a Coal Fines Extraction and Beneficiation
Agreement dated as of June 24, 1998 (the "Beneficiation
Agreement"), among BTI and the CRC Entities,and a License
Agreement dated June 24, 1998, between MCNIC and
BTI (the "License"), BTI has extracted, beneficiated, and
delivered coal fines in accordance with the Beneficiation
Agreement for the CRC Entities.
H. Pursuant to Section 8.1 of the Operation Agreement and
the Beneficiation Agreement, the CRC Entities notified BTI by
letters dated December 16, 1998, of their intention to
terminate the Operation Agreement and the Beneficiation
Agreement effective January 31, 1999. The terminations were
not for cause, were permitted under the Operation Agreement and
the Beneficiation Agreement, and are confirmed and accepted by
all parties to this Agreement.
I. Pursuant to a Lease Agreement entered into as of June
24, 1998 (the "Lease Agreement"), BML leased the Beneficiation
Equipment to BTI for a term ending upon the earlier of (i) the
"Maturity Date," as that term is defined in the Loan Agreement,
or (ii) the earlier of the effective date of the termination of
the Operation Agreement or the Beneficiation Agreement.
J. Prior to the effective date of the termination of the
Operation Agreement and the Beneficiation Agreement, the
monthly lease payments made by BTI to BML (the "Lease
Payments") were equal to the monthly payments due by BML to
MCNIC under the terms of the Loan Agreement. These Lease
Payments were authorized reimbursable expenses under the
Operation Agreement and the Beneficiation Agreement by the CRC
Entities to BTI.
K. Without the benefit of the Lease Payments, BML can not
satisfy the monthly payments due under the terms of the Loan
Agreement.
L. BTI is willing to convey, transfer, and assign all
ownership interest in BML to MCNIC for many reasons, including,
without limitation, the termination of any liabilities of BTI
or TBC under the "Loan Documents," as that term is defined in
the Loan Agreement, the releases provided in this Agreement,
and the avoidance of possibly prolonged and costly litigation,
and MCNIC is willing to obtain all ownership of BML from BTI
for many reasons, including, without limitation, the benefit
the CRC Entities receive by having MCNIC own BML, the releases
provided in this Agreement, the limited indemnity by TBC, and
the avoidance of possibly prolonged and costly litigation.
Agreement
In consideration of the foregoing recitals, and other good and
valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, MCNIC, BTI, BML, TBC, and the CRC
Entities agree as follows:
1. BTI hereby assigns, transfers and delivers to MCNIC 100%
of the membership interests in BML, free and clear of any
liens, security interests, adverse claims, and other charges,
except for the security interests, liens, charges, and adverse
claims created by the Pledge Agreement or any of the other Loan
Documents (the "BML Membership Interest").
2. BTI and TBC represent to MCNIC that prior to BTI's
delivery of the BML Membership Interest to MCNIC (i) BML has
not conveyed, transferred or assigned any right, title or
interest in the Beneficiation Equipment to any person or
entity, (ii) BML has not granted or created any lien, security
interest or other charge covering the Beneficiation Equipment,
except for the rights, titles, interests, liens, security
interests, and charges created by, under or pursuant to the
Loan Documents and/or the Lease Agreement, (iii) to the best of
their respective knowledge, upon termination of the Lease
Agreement, there will be no adverse claims, obligations,
litigation or liabilities, which are unresolved, outstanding,
pending or threatened against BML, except to or in favor of
MCNIC, and (iv) BML's only activities since its formation have
been to acquire, own, and hold the Beneficiation Equipment, and
to lease the Beneficiation Equipment to BTI under the Lease
Agreement, and, since its formation and organization, BML has
not entered into any agreement other than the Loan Documents
and the Lease Agreement, or conducted any other activities or
business, except in connection therewith.
3. (a) MCNIC hereby releases, discharges, and forgives any
and all rights, entitlements, benefits, causes of action,
claims, and choses in action, if any, that MCNIC has, may have
had, or will have against BTI and/or TBC, and their respective
officers, directors, shareholders, agents, and employees, which
are in any manner connected with, arising from or related to
any one or more of the Loan Documents; provided, however, that
any and all liens, security interests, and similar encumbrances
upon the Beneficiation Equipment and the BML Membership
Interest under the Loan Documents are not released or
discharged.
(b) BTI, BTI and TBC hereby release, discharge, and forgive
any and all rights, entitlements, benefits, causes of action,
claims, and choses in action, if any, that BTI or TBC have, may
have had, or will have against MCNIC or any of the CRC
Entities, and their respective officers, directors,
shareholders, agents, employees, members, and managers, which
are in any manner connected with, arising from or related to
any one or more of the Loan Documents.
(c) MCNIC represents and warrants to BTI and TBC that, to its
knowledge, MCNIC has satisfied, discharged, and fulfilled its
material obligations, covenants, undertakings, and agreements
under the Loan Documents.
(d) Notwithstanding any other provision to the contrary in
this Agreement, no party to this Agreement releases, discharges
or forgives any right, benefit, cause of action, chose of
action or claim arising from, related to, or in connection
with, the breach or inaccuracy of any representation, warranty,
covenant, or agreement made in this Agreement by any other
party or parties to this Agreement.
(e) Within 30 days after the date hereof, MCNIC shall change
the name of BML to delete therefrom any reference to the name
"▇▇▇▇▇."
4. The Operating Agreement, the License, and the Benefication
Agreement are hereby terminated in all respects, except for any
and all rights, benefits and obligations heretofore accrued or
incurred, and except for Section 8.9 and Articles VII (with
respect to accrued or earned compensation), X and XII of the
Operating Agreement and the Beneficiation Agreement. The Lease
Agreement is hereby terminated and shall be of no further force
or effect. The Guaranty Agreement dated as of June 24, 1998,
among the CRC Entities and TBC, and the Guaranty Agreement
dated as of June 24, 1998, between MCNIC and BTI, are hereby
terminated and shall be of no further force or effect, except
for any rights, benefits and obligations heretofore accrued or
incurred, and insofar as they cover any of the obligations that
survive the termination of the Operating Agreement, the License
and/or the Beneficiation Agreement, as provided in the first
sentence of this paragraph 4.
5. BML hereby releases, discharges, and forgives any and all
rights, entitlements, benefits, causes of action, claims, and
choses in action, if any, that BML has, may have had, or will
have against BTI and/or The ▇▇▇▇▇ Company, and their respective
officers, directors, shareholders, agents, and employees,
including, without limitation, any rights, entitlements,
benefits, causes of action, claims and choses in action that
are in any manner connected with, arising from or related to
the Lease Agreement or any Loan Document.
6. BTI and TBC hereby release, discharge and forgive any and
all rights, entitlements, benefits, causes of action, claims
and choses in action, if any, that BTI or TBC has, may have
had, or will have against BML and its members, managers,
agents, and employees, including, without limitation, any
rights, entitlements, benefits, causes of action, claims and
choses in action that are in any manner connected with, arising
from or related to the Lease Agreement or any Loan Document.
7. This Agreement supercedes all other agreements and
understandings between two or more of the parties hereto with
respect to the subject matter of this Agreement, but only to
the extent of any inconsistency or inconsistencies between the
prior agreements and understandings, and this Agreement. This
Agreement may not be altered or modified except by an
instrument in writing signed by all parties to this Agreement.
8. This Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan applicable to
contracts made and performed entirely therein.
9. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors
and assigns.
10. This Agreement may be executed in any number of
counterparts, which taken together shall constitute the same
instrument and each of which shall be considered an original
for all purposes. The parties may execute and deliver this
Agreement by facsimile.
11. If any provision of this Agreement is determined to be
invalid or unenforceable, then the remainder of this Agreement
shall not be affected thereby.
12. The prevailing party or parties in any proceeding
(including arbitration), lawsuit or litigation concerning the
construction or interpretation of this Agreement or the breach
by any other party or parties of any provision of this
Agreement shall be entitled to such prevailing party's or
parties' reasonable attorneys' fees and court costs.
13. No party's rights under this Agreement will be deemed
waived except by a writing signed by such party.
Executed as of the day first above written by the duly
authorized representative of each of the undersigned, but
effective for all purposes as of January 31, 1999.
"MCNIC"
MCNIC PIPELINE & PROCESSING COMPANY
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: President
"CRC ENTITIES"
CRC NO.1 LLC
CRC NO.2 LLC
CRC NO.3 LLC
CRC NO.4 LLC
CRC NO.5 LLC
CRC NO.6 LLC
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chairman
"BML"
▇▇▇▇▇ MINING, L.L.C.
By: ▇▇▇▇▇ TECHNOLOGIES, INC., ITS
MANAGER
By: ▇▇▇▇ ▇▇▇, ▇▇.
Name: ▇▇▇▇ ▇▇▇, ▇▇.
Title: Vice President
"BTI"
▇▇▇▇▇ TECHNOLOGIES, INC.
By: ▇▇▇▇ ▇▇▇, ▇▇.
Name: ▇▇▇▇ ▇▇▇, ▇▇.
Title: Vice President
"TBC"
THE ▇▇▇▇▇ COMPANY
By: ▇▇▇▇ ▇▇▇, ▇▇.
Name: ▇▇▇▇ ▇▇▇, ▇▇.
Title: President