LOAN AGREEMENT
$24,000,000 LOAN
FROM
MCNIC PIPELINE & PROCESSING COMPANY
TO
XXXXX MINING, L.L.C.
June 24, 1998
LOAN AGREEMENT
THIS LOAN AGREEMENT ("Agreement"), dated as of this 24th
day of June, 1998 is between MCNIC PIPELINE & PROCESSING COMPANY,
a Michigan corporation ("Lender"), and XXXXX MINING, L.L.C., an
Oklahoma limited liability company ("Borrower").
For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Lender and Borrower
agree as follows:
ARTICLE I
DEFINITIONS
In addition to all other definitions set forth herein
the following terms shall have the meanings set forth below:
Beneficiation Equipment. All equipment (as such term is
defined in the Uniform Commercial Code as enacted in the state
where the equipment is located) acquired by Borrower with the
proceeds of the Loan for dredging, extracting, and receiving Mine
Waste from the Impoundments and processing, beneficiating,
washing and drying Mine Waste to produce coal fines for further
processing to produce Briquettes pursuant to the O&M Agreement,
including the equipment described on Schedule 1.1 attached hereto
and made a part hereof.
Briquettes. Briquettes, pellets, extrudates, and other
agglomerates produced from coal fines by the coal briquetting
facilities owned by the CRC LLCs.
Business Day. A day that banks are not required or
authorized to close in New York City, New York or Detroit,
Michigan. A "Business Day" shall not include Saturday.
Coal Fines Extraction and Beneficiation Agreement. That
certain Coal Fines Extraction and Beneficiation Agreement dated
as of June 24, 1998 among each of the CRC LLCs, individually, and
Borrower.
Collateral. The Beneficiation Equipment, all of
Borrower's rights, powers and privileges under the Contracts, and
all proceeds of the foregoing.
Contracts. The contracts and agreements listed in
Schedule 1.2 attached hereto and made a part hereof and all other
contracts and agreements to which Borrower is a party or
beneficiary and all other contractual rights of Borrower that
relate to Borrower's performance of its obligations under the
Coal Fines Extraction and Beneficiation Agreement, including,
without limitation, all rights under manufacturer and vendor
warranties and service obligations relating to the Beneficiation
Equipment.
CRC LLCs. CRC Xx. 0 XXX, XXX Xx. 0 XXX, XXX Xx. 0 LLC,
CRC No. 4 LLC, CRC No. 5 LLC and CRC No. 6 LLC, each a Delaware
limited liability company.
Financial Statements. The financial statements of
Borrower previously delivered to Lender, together with all
financial statements and other financial information delivered to
Lender pursuant to Article IV below.
Impoundments. The coal slurry impoundments of Mine
Waste located on the Pond Sites.
Loan. As defined in Section 2.1.
Loan Documents. This Agreement, the Note, the Security
Agreement, the Pledge and Security Agreement and any and all
other documents, instruments or agreements evidencing, governing
or securing the Loan, as such documents have been and may be
amended, restated or modified from time to time.
Loan Expenses. All reasonable charges, costs, fees and
expenses of any nature whatsoever of or incurred by Lender at any
time in connection with the enforcement of the Loan or the Loan
Documents, including, but not limited to, fees and disbursements
of Lender's attorneys and their staff. "Loan Expenses" shall not
include any charges, costs, fees or expenses incurred by Lender
in the preparation, closing or filing of the Loan Documents.
Maturity Date. The first to occur of the following:
(i) July 1, 1999; (ii) as to that portion of the Loan advanced
for Beneficiation Equipment located at a Pond Site, and all
interest accrued thereon, the termination of the Coal Fines
Extraction and Beneficiation Agreement relating to such Pond
Site; (iii) as to that portion of the Loan advanced for
Beneficiation Equipment located at a Pond Site, and all interest
accrued thereon, the closing date of any equipment financing or
substitute or replacement financing entered into by Borrower with
respect to such Beneficiation Equipment that replaces or
supersedes this Agreement, and (iv) the acceleration of the Loan.
Mine Waste. All coal, coal slurry, coal fines, coarse
coal and other coal materials, and all other minerals of
whatsoever nature mixed with or contained in the foregoing that
have been mined and deposited in the Impoundments.
Note. The Promissory Note, in the aggregate principal
amount of $24,000,000, dated June 24, 1998, as such Note may be
amended, restated, modified, renewed or extended at any time and
from time to time by agreement between Borrower and the holder of
the Note.
Obligations. All obligations of any nature whatsoever
of Borrower to Lender under the Loan Documents, whether now
existing or hereafter arising.
O&M Agreement. That certain Operation and Maintenance
Agreement dated as of June 24, 1998 among each of the CRC LLCs,
individually, and Borrower.
Person. An individual, natural person, corporation,
joint venture, partnership, limited partnership, limited
liability company, trust, estate, business trust, association,
governmental authority, or any other entity.
Pledge and Security Agreement. That certain Pledge and
Security Agreement of even date herewith from Xxxxx Technologies,
Inc., an Oklahoma corporation, as pledgor, to Lender, as pledgee.
Pond Sites. The areas depicted and described on
Schedules 1.3(a), 1.3(b), 1.3(c), 1.3(d), 1.3(e) and 1.3(f)
attached hereto, on which the Impoundments are located and the
Beneficiation Equipment is to be located.
Security Agreement. That certain General Security
Agreement (Purchase Money Security Interest) of even date
herewith from Borrower, as debtor, to Lender, as secured party.
ARTICLE II
THE LOAN AND LOAN TERMS
2.1 The Loan. Pursuant to the terms of this Agreement
and the other Loan Documents, Lender may, in its sole discretion,
as and when requested by Borrower advance loans from time to time
to Borrower in the aggregate principal amount of up to
$24,000,000 (the "Loan"), the proceeds of which may be used
solely for the purposes set forth in Section 2.2 below;
provided, that Lender shall make such advances to Borrower at
such time and from time to time and in such amounts that Borrower
is contractually required to deliver as payment of the purchase
price for Beneficiation Equipment for a Pond Site if the
acquisition of such Beneficiation Equipment has been approved in
writing by Lender. At the sole discretion of Lender, the Loan
may be made in one or more advances (each an "Advance") on one or
more dates. The Loan is subject to the terms, conditions and
limitations set forth in this Agreement and, to the extent not
inconsistent with this Agreement, the other Loan Documents.
2.2 Purpose and Disbursement. The proceeds of the Loan
are to be used solely for the purpose of acquiring the
Beneficiation Equipment for use at the Pond Sites. In
furtherance of such purpose, all Loan proceeds shall be disbursed
by Lender from time to time and at such times as provided in
Section 2.1 directly to Xxxxx & Root, Inc., a Delaware
corporation, on behalf of Borrower as payment of the purchase
price for the Beneficiation Equipment by Xxxxx & Root, Inc., or
to any other third party vendors of the Beneficiation Equipment
that are approved by Lender.
2.3 Loan Terms.
(a) Maturity. The Loan shall mature and be due
and payable in full on the Maturity Date. Interest shall be
payable in accordance with the terms of the Note.
(b) Principal Payments. The Borrower shall repay
the principal amount of the Loan in equal monthly installments
due and payable on the first Business Day of each calendar month
commencing August 1, 1998 and ending and including the calendar
month in which the Maturity Date occurs. The amount of each
monthly installment shall be the dollar amount that would be
necessary for Maker to pay the principal amount of each Advance,
together with interest thereon from the date of such Advance, to
Payee in 120 equal monthly installments commencing August 1,
1998. The entire outstanding principal amount of the Loan and
accrued interest shall be due and payable on the Maturity Date.
ARTICLE III
CONDITIONS PRECEDENT TO LENDER'S
OBLIGATION TO MAKE THE LOAN
The Lender's obligation to fund the Loan shall be
subject to performance and satisfaction of all of the following
conditions at or before such funding (all documents must be
acceptable in form and substance to Lender):
3.1 Execution and Delivery of Loan Documents. Borrower
shall have duly executed and delivered or caused to be executed
and delivered this Agreement, the Note and each of the other Loan
Documents.
3.2 Representations and Warranties. All of the
representations and warranties of Borrower contained in this
Agreement and each of the other Loan Documents shall be true and
correct as of the date of such funding.
3.3 Collateral. Lender shall have a valid and
perfected first priority lien on the Beneficiation Equipment.
3.4 Approval of Beneficiation Equipment. Lender shall
be satisfied in its sole discretion that the Beneficiation
Equipment to be purchased with the advance is necessary for
Borrower to perform its obligations under the Coal Fines
Extraction and Beneficiation Agreement and that such equipment
will be adequate for the purposes for which it is to be used.
3.5 Opinions. Lender shall have received an opinion of
counsel to Borrower in the form of Exhibit A attached hereto.
3.6 Other Conditions. Borrower shall have complied
with all of the terms and conditions governing such funding under
this Agreement.
ARTICLE IV
REPORTING REQUIREMENTS
Borrower shall provide and deliver, or cause to be
provided and delivered, to Lender (all of which must be
reasonably acceptable to Lender) such information as Lender may
reasonably request to determine whether Borrower is complying
with its obligations under this Agreement and the other Loan
Documents, or to determine the financial condition of Borrower or
the value of any Collateral. Lender shall bear the cost incurred
by Borrower in processing, generating or obtaining any such
information that is not in a form kept by Borrower in the
ordinary course of business or otherwise readily available or
reasonably capable of generation by Borrower.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BORROWER
Borrower represents and warrants to Lender as follows,
all of which representations and warranties are material and each
of which is made to induce Lender to make the Loan, each of which
is being relied on by Lender in making the Loan, and all of which
are true as of the date hereof and shall continue to be true and
correct until the Loan is repaid in full:
5.1 Authority and Enforceability. Borrower has full
power to enter into and perform its obligations under this
Agreement, the Note, the Security Agreement, all other Loan
Documents and any other document or instrument contemplated
hereby or executed or delivered pursuant hereto. This Agreement,
the Note, the Security Agreement and all other Loan Documents
constitute, and any other agreement required hereby will
constitute, when executed and delivered by Borrower to the
Lender, valid and binding obligations of Borrower enforceable in
accordance with their terms.
5.2 No Conflict. The execution and delivery of this
Agreement, the Note, the Security Agreement and all other Loan
Documents and consummation of all the transactions contemplated
hereby and thereby, do not and will not conflict with, or be in
contravention of, any law, order, rule or regulation applicable
to Borrower or any document, agreement or instrument to which
Borrower is a party or by which the Collateral is bound or
affected (except for conflicts or contraventions that could not
reasonably be expected to (i) materially impair the ability of
the Borrower to perform under any Loan Document and avoid any
Event of Default, or (ii) have a material adverse effect upon the
legality, validity, binding effect or enforceability of any Loan
Document or the perfection or priority of any lien granted to
Lender under the Security Agreement), and will not result in the
creation of any lien, charge or encumbrance of any nature upon
the Collateral other than the liens, charges and encumbrances
contemplated hereby or otherwise in favor of Lender or the CRC
LLCs..
5.3 Financial Condition.
(a) The Financial Statements of Borrower
heretofore delivered to Lender are accurate and complete in all
material respects and fairly represent the financial condition of
Borrower at the date thereof. Borrower does not know of any
material contingent liabilities affecting Borrower that are not
disclosed in such Financial Statements.
(b) Except as otherwise disclosed in writing to
Lender by Borrower, since the date of the most recent Financial
Statements there has been no material adverse change in
Borrower's financial condition, assets, liabilities or business
nor has any other event or condition of any character occurred or
arisen that materially and adversely affects or that could
materially and adversely affect the business or prospects of
Borrower. No additional material obligations have been entered
into by Borrower since the date of Borrower's most recent
Financial Statements, other than as disclosed to Lender in
writing.
(c) Borrower is now solvent; and no bankruptcy or
insolvency proceedings are pending or contemplated by Borrower
or, to the best of Borrower's knowledge, against Borrower.
5.4 Litigation. As of the date of this Agreement there
is no action, suit or proceeding pending against, or to
Borrower's knowledge threatened against or affecting, Borrower or
the Collateral before any court, any arbiter, or any governmental
department, agency, official or instrumentality.
5.5 Taxes. Borrower has filed all federal, state and
local tax returns that are required to be filed by Borrower and
has paid all taxes shown on such returns and on all assessments
received by Borrower to the extent that such taxes and
assessments have become due. All federal and state income taxes
and all other taxes and assessments of any nature with respect to
which Borrower is obligated have been paid when due.
5.6 Information Correct. To the best of Borrower's
knowledge, all information furnished in any document required to
be furnished by Borrower under or in connection with this
Agreement is accurate and complete in all material respects as of
the date or for the periods covered thereby.
ARTICLE VI
AFFIRMATIVE COVENANTS OF BORROWER
Until payment or performance in full of all the
Obligations, Borrower shall:
6.1 Pay Note. Duly and promptly pay or cause to be
paid each and every installment of the principal and of interest
on the Note as the same become due, without notice or demand.
6.2 Performance of Other Obligations. Perform and
comply with all other terms, conditions, covenants and
prohibitions applicable to Borrower and required by and in
accordance with the terms of any of the Loan Documents.
6.3 Compliance with Laws. Comply promptly with all
laws applicable to (a) the Collateral, (b) the use of the
Collateral, or (c) the conduct and operation of Borrower's
business; except such laws as are being diligently contested in
good faith and by proper proceedings and, such non-compliance
that could not reasonably be expected to have a material adverse
effect upon the operations, business, properties or condition
(financial or otherwise) of Borrower or upon the Collateral or
Borrower's title thereto.
6.4 Notifications. Promptly notify Lender in writing
of the occurrence of (i) any Event of Default or any event that
is reasonably likely to become an Event of Default upon notice or
the passage of time or both, (ii) any material adverse change in
the business, property, assets, value, operations or condition,
financial or otherwise, of Borrower or the Collateral and
(iii) the pendency or threat of any material litigation or
arbitration and of any material tax deficiency or other material
proceeding before any governmental body or official materially
adversely affecting Borrower or the Collateral.
6.5 Payment of Taxes and Other Obligations. Duly and
punctually pay and discharge all state and federal income taxes
and all other taxes, assessments and other charges against
Borrower or the Collateral as same become due; except such taxes,
assessments and charges as are being diligently contested in good
faith and by proper proceedings and for which adequate reserves
are being maintained by Borrower.
6.6 Payment of Loan Expenses. Immediately upon demand,
but in any event within five Business Days after notification
from Lender, pay or reimburse Lender for all Loan Expenses
incurred by Lender at any time and from time to time.
6.7 Further Assurances. From time to time within five
Business Days after request by Lender, record, register and file
all such notices, statements and other documents and take such
other steps, including, without limitation, effecting the
amendment of any Loan Document, as may be necessary or advisable
to render fully valid and enforceable under all applicable laws
the rights, liens and priorities of Lender with respect to the
Collateral from time to time furnished under this Agreement or
required to be furnished by any of the Loan Documents, in each
case in such form and at such times as shall be satisfactory to
Lender.
6.8 Indemnity. Borrower shall indemnify Lender against
and shall reimburse and pay Lender for all reasonable fees, costs
and expenses (including, without limitation, attorneys' fees,
court costs and legal expenses and consultants' and experts' fees
and expenses), incurred or expended by Lender in connection with
(i) the breach by Borrower of any representation or warranty
contained in any of the Loan Documents, (ii) the failure by
Borrower to perform any agreement, covenant, condition, indemnity
or obligation contained in any of the Loan Documents,
(iii) Lender's exercise of any of its rights and remedies under
any of the Loan Documents, or (iv) the protection of the
Collateral and the liens thereon and security interests therein
(except for filing fees incurred by Lender for the filing of
Uniform Commercial Code financing statements).
6.9 Scope of Business. Borrower shall not engage in
any business activities other than those necessary or incidental
to Borrower's ownership of the Beneficiation Equipment.
ARTICLE VII
NEGATIVE COVENANTS OF BORROWER
Until payment or performance in full of all of the
Obligations, Borrower shall not, without Lender's written
consent:
7.1 Liens. Create, assume, incur or suffer to exist
any mortgage, pledge, security interest, lien or other
encumbrance upon the Collateral except the security interests
created or contemplated hereunder and other obligations to Lender
and the CRC LLCs, and except that Borrower may lease the
Beneficiation Equipment to Xxxxx Technologies, Inc., an Oklahoma
corporation, but only if such lease (i) is expressly subject to
any security interest, lien or other encumbrance in favor of
Lender, (ii) provides for monthly payments by Xxxxx Technologies
to Borrower in an amount equal to, but not exceeding, the amount
of the scheduled monthly payments of principal and interest on
the Loan pursuant to the Note, and (iii) is otherwise in form and
substance reasonably satisfactory to Lender.
7.2 Assignment. Assign or attempt to assign any of its
rights or delegate any of its duties hereunder or under the other
Loan Documents.
7.3 Use of Funds. Use funds advanced under this
Agreement for any purpose other than those permitted pursuant to
this Agreement.
ARTICLE VIII
EVENTS OF DEFAULT
The occurrence of any one or more of the following
events or existence of one or more of the following conditions
shall constitute an Event of Default under this Agreement and all
other Loan Documents:
8.1 Failure to Pay Note. Borrower shall fail to pay,
when due, the principal of or interest on the Note, or any
installment thereof (whether due on the date provided for therein
or by acceleration or otherwise).
8.2 Misrepresentation. Any representation or warranty
made by Borrower to Lender herein or in any of the other Loan
Documents, or in any certificate, statement or report made
pursuant to this Agreement or the other Loan Documents is false,
misleading or erroneous in any material respect;
8.3 Covenant Default. The failure of Borrower to
properly perform or observe any obligation contained in Sections
6.3 through 6.8 above.
8.4 Other Obligations. The failure of Borrower to
properly perform or observe any obligation contained herein
(other than the obligations to make payments under the Note or
the other Loan Documents or the obligations set forth in
Section 8.3 above), which failure is not cured within 10 Business
Days after receipt of written notice from Lender, or, if such
failure is not reasonably susceptible of cure within such 10-day
period, the failure of Borrower to commence within such 10-day
period and continue reasonably diligent efforts satisfactory to
Lender to effect such cure.
8.5 Default Under Loan Documents. The occurrence of
any default by Borrower, or the occurrence of any event or
circumstance defined as an event of default, under any of the
Loan Documents other than this Agreement, not cured within the
applicable cure period, if any, set forth therein.
8.6 Bankruptcy. Borrower shall make a general
assignment for the benefit of creditors; file a petition in
bankruptcy; be adjudicated insolvent or bankrupt or admit in
writing the inability to pay debts as they mature; petition or
apply to any tribunal for the appointment of a receiver or any
trustee or similar officer for Borrower, for a substantial part
of the assets of Borrower; or shall commence any proceeding under
any bankruptcy, reorganization, arrangement, readjustment of
debt, dissolution or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect; or if there
shall have been filed any such petition or application, or any
such proceeding shall have been commenced against Borrower that
remains undismissed for a period of 90 days or more; or Borrower,
by any act or omission shall indicate his consent to, approval of
or acquiescence in any such petition, application or proceeding,
or the appointment of a receiver of or any trustee or similar
officer for Borrower, or any substantial part of any of the
properties of Borrower, or shall suffer any such receivership or
trusteeship to continue undischarged for a period of 90 days or
more;
8.7 Judgment. Any judgment which, if enforced, would
have a material adverse effect upon the operations, business,
properties or condition (financial or otherwise) of Borrower,
shall be entered against Borrower, unless Borrower is diligently
appealing such judgment by appropriate proceedings.
8.8 Loan Documents. This Agreement or any other Loan
Document shall at any time for any reason cease to be in full
force and effect, except where such cessation is the result of
repayment, reconveyance, release, reassignment or other discharge
or termination in accordance with the terms of such Loan
Document, and such Loan Document is not reinstated in all
material respects within 10 days after the Borrower first knew or
should have known of such cessation.
ARTICLE IX
REMEDIES
9.1 Right to Accelerate. Upon the occurrence of any
Event of Default and at any time thereafter, the Loan, with all
accrued interest and other amounts payable hereunder, shall, at
the option of Lender, become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of
which are expressly waived by Borrower. Lender may declare a
default under all other Loan Documents, and Lender may proceed
with every remedy available at law or in equity with respect to
such Event of Default or provided for herein or in any document
executed in connection herewith, and all reasonable expenses
incurred by Lender in connection with any remedy shall be deemed
indebtedness of Borrower to Lender and a part of the Obligations.
Lender may apply the proceeds from any Collateral for the Loan or
from any other source against any of the Obligations as and in
any order it sees fit.
9.2 Other Remedies. Without limiting the foregoing,
upon the occurrence of an Event of Default hereunder Lender shall
have the right to take possession of the Collateral and exercise
all rights provided under the Loan Documents or any applicable
law.
9.3 No Effect of Delay. No delay or failure of Lender
in the exercise of any right or remedy provided for hereunder
shall be deemed a waiver of the right by Lender, and no exercise
or partial exercise or waiver of any right or remedy shall be
deemed a waiver of any further exercise of such right or remedy
or of any other right or remedy that Lender may have. The
enforcement of any rights of Lender as to any security for the
Loan shall not affect the rights of Lender to enforce payment of
the Loan and to recover judgment for any portion thereof
remaining unpaid. The rights and remedies herein expressed are
cumulative and not exclusive of any right or remedy that Lender
shall otherwise have.
ARTICLE X
RIGHTS AND DUTIES OF LENDER
10.1 Right to Assign. Lender may assign to one or more
lenders or other entities all or a portion of its rights under
the Loan. In the event of an assignment of all of its rights,
the Lender may transfer the Loan and all of the Loan Documents to
the assignee. After any such assignment or transfer, provided
that the assignee(s) agree in writing to assume and be bound by
the Loan Documents, the Lender shall be forever relieved and
fully discharged from any liability or responsibility in the
matter, and the Lender shall retain all rights and powers hereby
given with respect to property not so transferred. The Lender
may sell participations to one or more lenders or other entities
in or to all or a portion of its rights under this Loan.
10.2 Reliance Upon Attorneys. Lender may rely upon
advice received from time to time from reputable attorneys, and
any action taken by Lender in accordance with any such advice
shall be deemed to be reasonable.
10.3 Acceptance and Consent by Lender. The phrases
"acceptable to Lender" and "as Lender may require" as used in
this Agreement, shall, unless otherwise qualified, mean
acceptable to Lender in Lender's sole and absolute discretion and
as Lender may require in Lender's sole and absolute discretion.
In addition, any consent by or other action required by Lender
hereunder or under any other Loan Document or any discretion to
be rendered by Lender hereunder or under any other Loan Document
shall be in Lender's sole and absolute discretion unless
otherwise indicated.
ARTICLE XI
MISCELLANEOUS
11.1 Amendments. No provision or term of this Agreement
may be amended, modified, revoked, supplemented, waived or
otherwise changed except by a written instrument duly executed by
Borrower and Lender and designated as an amendment, supplement or
waiver.
11.2 Counting of Days. If any time period ends on other
than a Business Day, the period shall be deemed to end on the
next succeeding Business Day.
11.3 Notices. Except as otherwise expressly set forth
herein, any notice required to be given to any party pursuant to
any provision of this Agreement shall be in writing, shall be
(i) hand delivered, (ii) sent by registered or certified mail,
return receipt requested, postage prepaid, or (iii) sent by
Federal Express or other nationally-recognized overnight courier
service and, if hand delivered shall be deemed received when
delivered, if mailed shall be deemed received two Business Days
after having been deposited in the United States mail, postage
prepaid, and if sent by Federal Express or other nationally-
recognized overnight courier service shall be deemed received one
Business Day after having been deposited with Federal Express or
other nationally-recognized overnight courier service if
designated for next day delivery addressed as follows:
If to Borrower:
Xxxxx Mining, L.L.C.
0000 Xxxxx Xxx Xxxxxx
Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxx Xxx, Xx.
Facsimile Number: (000)-000-0000
If to Lender:
MCNIC Pipeline & Processing Company
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Facsimile Number: (000) 000-0000
Either party may change its address for the giving of notice by
providing notice hereunder.
11.4 Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an
original and all of which together shall constitute one
instrument.
11.5 Captions and Pronouns. The captions and headings
of the various sections of this Agreement are for convenience
only, and are not to be construed as confining or limiting in any
way the scope or intent of the provisions hereof.
11.6 Entire Agreement. This Agreement, the Note and the
Security Agreement and the other Loan Documents executed in
connection herewith constitute and incorporate the entire
agreement between Lender and Borrower concerning the subject
matter of this Agreement and supersede any prior agreements
between Lender and Borrower concerning the subject matter
thereof.
11.7 Conflict. If any term of the Loan Documents shall
conflict with this Agreement, this Agreement shall govern to the
extent of the conflict.
11.8 Use of Terms. As used herein words in any gender
shall be deemed to include the other genders and the singular
shall be deemed to include the plural, and vice versa.
11.9 Rights Cumulative. Each right, power and remedy of
Lender under this Agreement and the other Loan Documents is
cumulative and in addition to every other right, power or remedy,
existing or implied, given now or hereafter existing, at law or
in equity, and each and every right, power and remedy set forth
herein or otherwise so existing may be exercised from time to
time as often and in such order as may be deemed expedient by
Lender, and the exercise or the beginning of the exercise of one
right, power or remedy shall not be a waiver of the right to
exercise at the same time or thereafter any other right, power or
remedy; and no delay or omission of Lender in the exercise of any
right, power or remedy accruing hereunder or arising otherwise
shall impair any such right, power or remedy, or be construed to
be a waiver of any default or acquiescence therein.
11.10 Waiver. Lender shall not be deemed to have
waived any provision of this Agreement or any Loan Document
unless such waiver is in writing and is signed by Lender.
Without limiting the generality of the foregoing, neither
Lender's acceptance of any payment with knowledge of a default by
Borrower, nor any failure by Lender to exercise any remedy
following a default by waiver by Lender of any particular default
on the part of Borrower shall be deemed a waiver of any other
default or of any similar default in the future.
11.11 No Third-Party Beneficiaries. No person shall
be a third-party beneficiary of or be entitled to assert any
rights in connection with any provision of any of the Loan
Documents; all provisions of the Loan Documents are intended
solely for the benefit of Borrower and Lender.
11.12 Provisions Several/Illegality. The
unenforceability or invalidity of any provision or provisions
hereof shall not render any other provision or provisions herein
contained unenforceable or invalid, and in lieu of each such
illegal, invalid or unenforceable provision there shall be added
automatically as a part of this Agreement a provision as similar
in terms to such illegal, invalid, or unenforceable provision as
may be possible and be legal, valid, and enforceable.
11.13 Governing Law. This Agreement, the Note, and
Loan Documents shall be governed by and construed in accordance
with the laws of the State of New York, and Borrower and Lender
each choose New York law to govern this Agreement pursuant to
N.Y. Gen. Oblig. Law Section 5-1401 (Consol. 1995).
11.14 Jurisdiction. Borrower agrees to submit to
personal jurisdiction in the State of Michigan in any action or
proceeding arising out of this Agreement and, in furtherance of
such agreement, Borrower hereby agrees and consents that without
limiting other methods of obtaining jurisdiction, personal
jurisdiction over Borrower in any such action or proceeding may
be obtained within or without the jurisdiction of any court
located in Michigan and that any process or notice of motion or
other application to any such court in connection with any such
action or proceeding may be served upon Borrower by registered or
certified mail to or by personal service at the address set forth
in Section 11.3 (unless such address is changed pursuant to the
notice provision set forth in Section 11.3), whether such address
be within or without the jurisdiction of any such court.
11.15 Waiver of Jury Trial. Borrower hereby waives
any right to jury trial of any claim, cross-claim or counterclaim
relating to or arising out of or in connection with this
Agreement or any of the other Loan Documents.
11.16 Computation of Time Periods. In this
Agreement in the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but
excluding."
11.17 Accounting Terms. All accounting terms not
specifically defined herein shall be construed in a manner
consistent with the manner in which they were construed in the
preparation of the Financial Statements.
11.18 Time of the Essence. Time is of the essence
hereof with respect to the dates, terms and conditions of this
Agreement, the Note and the Security Agreement.
11.19 Future Discussions. Promptly after the date
hereof and in any event prior to August 1, 1998, Lender and
Borrower shall commence and diligently continue good faith
discussions concerning mutually acceptable alternatives for
replacing the Loan with permanent financing or replacing Lender
with a third-party lender or other financing arrangement.
11.20 Release. For good and valuable
considerations, Lender hereby releases and discharges Xxxxx
Technologies, Inc. and/or The Xxxxx Company, each an Oklahoma
corporation, and/or their respective officers, directors,
shareholders, employees, agents and attorneys (hereinafter
individually and collectively referred to as the "Released
Parties") and covenants not to xxx any one or more of the
Released Parties in connection with, arising from or in any
manner related to the inaccuracy or breach of, or failure to
perform or satisfy, any representation, warranty, condition,
obligation, covenant, or other agreement made by Borrower in any
Loan Document, including, but not limited to, Borrower's failure
to properly pay when due any amounts owing under the Note or any
other Loan Document, except as otherwise provided in the Pledge
and Security Agreement dated June 24, 1998 between Xxxxx
Technologies, Inc. and Lender, and except with respect to claims
against any Released Party arising from or attributable to the
fraudulent or other willful misconduct of a Released Party.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the day first above written.
BORROWER:
XXXXX MINING L.L.C.,
an Oklahoma limited liability company
By: Xxxxx Technologies, Inc., an
Oklahoma corporation, Member and
Manager
By: XXXX XXX, XX.
Name: Xxxx Xxx, Xx.
Title: Vice President
LENDER:
MCNIC PIPELINE & PROCESSING COMPANY,
a Michigan corporation
By: XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: President
