Exhibit 10.5
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (this "AGREEMENT") is made as of the
23rd day of January, 2002, by and among Raytheon Company, a company
incorporated under the laws of the state of Delaware ("RAYTHEON"), Raytheon
Engineers & Constructors International, Inc., a company incorporated under
the laws of the state of Delaware ("RECI," and, together with Raytheon and
its wholly-owned or controlled subsidiaries and affiliates, the "RAYTHEON
PARTIES"), Washington Group International, Inc., a company incorporated under
the laws of the state of Delaware, a Debtor in the Bankruptcy Case (as
defined below), and effective on the date hereof, Reorganized WGI
(collectively, "WGI"), Washington Group International, Inc., a company
incorporated under the laws of the state of Ohio, both as a Debtor and
reorganized (collectively, "WGI OHIO," and together with WGI, and its
wholly-owned or controlled subsidiaries and affiliates, and including the
Reorganized Debtors, the "WGI PARTIES") and the Official Unsecured Creditors'
Committee, for so long as it is constituted and acting in the Bankruptcy Case
(each of the Raytheon Parties, the WGI Parties and the Committee being
referred to as a "PARTY" and collectively as "PARTIES"). Capitalized terms
not otherwise defined herein shall have the meanings ascribed to them in
APPENDIX I to this Agreement.
WHEREAS, WGI and certain other WGI Parties commenced cases under
Chapter 11 of the Bankruptcy Code on May 14, 2001 (the "BANKRUPTCY CASE"); and
WHEREAS, Raytheon, RECI and WGI are parties to a Stock Purchase
Agreement by and among Raytheon, RECI and WGI (f/k/a Xxxxxxxx Xxxxxxx
Corporation), dated as of April 14, 2000 (the "STOCK PURCHASE AGREEMENT"); and
WHEREAS, pursuant to certain orders of this Court, the Stock
Purchase Agreement and the various agreements executed and delivered pursuant
thereto, other than the Disaffiliation Tax Sharing Agreement, have been
rejected under section 365 of the Bankruptcy Code; and
WHEREAS, in connection with the Bankruptcy Case there are various
claims against one or more of the Debtors, as the term "claim" is defined in
section 101(5) of the Bankruptcy Code (the "ESTATE CLAIMS"); and
WHEREAS, Raytheon and certain other Raytheon Parties have
provided surety bonds, letters of credit, guarantees, or similar credit
support arrangements, including substitutions thereof or replacements
therefor (each a "SUPPORT AGREEMENT" and collectively the "SUPPORT
AGREEMENTS") in favor of third parties for the benefit of certain of the
companies transferred by RECI pursuant to the Stock Purchase Agreement; and
WHEREAS, various pending and potential disputes, claims,
controversies, adversary proceedings, and lawsuits by and among the Debtors,
the Non-Debtor Subsidiaries, and certain Raytheon Parties in the Bankruptcy
Case, and in other jurisdictions, have arisen or could potentially arise from
or in connection with the negotiation, disclosures, omissions, execution and
delivery, performance or non-performance of the Stock Purchase Agreement, the
Support Agreements, and the transactions and agreements that are the subject
thereof or are contemplated thereby (but expressly excluding the Excluded
Matters) (collectively, the "RAYTHEON DISPUTES"); and
WHEREAS, on the date hereof, the Debtor WGI, as a
debtor-in-possession in the Bankruptcy Case, is becoming Reorganized WGI, and
in this capacity has been duly authorized to enter into this Agreement under
the Plan and Confirmation Order; and
WHEREAS, the Parties hereto now desire to resolve all Raytheon
Disputes and the objection of certain Raytheon Parties to the Plan on the
terms and conditions set forth in this Agreement;
NOW, THEREFORE, for and in consideration of the mutual agreements
and covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency of all of which are hereby
acknowledged, the Parties, intending to be legally bound, agree as follows:
1. RAYTHEON ASSERTED CLAIMS
Section 1.1 ALLOWANCE AND DISCHARGE IN FULL. Under the Plan, the
Raytheon Asserted Claims shall be allowed as filed (without prejudice to
Estate Claims filed by other creditors) and shall be discharged in their
entirety. The Raytheon Parties, however, hereby waive and release to the
Estates any distribution under the Plan on account of the Raytheon Asserted
Claims.
Section 1.2 RETENTION OF RIGHTS BY RAYTHEON. Notwithstanding
Section 1.1, the following claims and rights of the Raytheon Parties are
specifically acknowledged, preserved, and not discharged under the Plan or
pursuant to the Confirmation Order:
(a) Administrative Claims under section 503 of the Bankruptcy
Code (net of post-petition claims for goods and services provided
pre-Effective Date by the Debtors to the Raytheon Parties) to the extent
agreed upon by the Raytheon Parties, the Debtors and the Committee, or as
allowed by the Bankruptcy Court;
(b) Rights of contribution, reimbursement and subrogation against
any of the WGI Parties under outstanding Support Agreements with respect to
assumed projects (and the Xxxxxx-Xxxxxx project) or contracts (collectively,
and including the Xxxxxx-Xxxxxx project, the "Assumed Projects," it being
understood that the Assumed Projects do not include those contracts being
assumed in connection with the Ilijan Project Completion Agreements or being
assumed and assigned in connection with the Ilijan or Red Oak Project
Completion Agreements, or that will be governed by any of such agreements);
(c) Rights under the Disaffiliation Tax Sharing Agreement,
which WGI has assumed under the Plan;
(d) Rights arising or expressly reserved pursuant to this
Agreement or the specific agreements described in and entered into in
connection with, or contemplated by, this Agreement; and
(e) Rights arising under the other agreements listed on Schedules
A1 or A2 to the form of Mutual Release attached to this Agreement as Exhibit
A.
Section 1.3 ASSIGNED CLAIMS. The Assigned Claims as defined and
described in APPENDIX I attached to this Agreement are not released, settled
or affected by this Agreement, and Raytheon may receive distributions as the
holder of a Class 7 Claim under the Plan with respect thereto. The Debtors
and the Committee reserve all rights to object to the Assigned Claims.
Section 1.4 EVIDENTIARY IMPACT. Nothing with respect to the
allowance or treatment of Raytheon's proofs of claim shall have res judicata
or collateral estoppel effect or be admissible in evidence, in each case with
respect to the rights of any third party, including but not limited to
Mitsubishi (as defined in Section 2.2 below), against, by or with respect to,
Raytheon or with respect to the
rights of Raytheon against, by or with respect to any third party, including
Mitsubishi.
2. RAYTHEON SUBROGATION CLAIMS
Section 2.1 RAYTHEON PARTIES' RIGHTS IN RESPECT OF SUPPORT
AGREEMENTS. The Confirmation Order provides, and the WGI Parties and the
Committee agree, that the discharge, release, and injunction provisions
contained in this Agreement do not affect the claims and rights of the
Raytheon Parties against or relating to third parties (but not the Debtors as
to pre-petition matters) as to any suretyship, subrogation, or other rights
in respect of any Support Agreement. Notwithstanding the foregoing, the
Raytheon Parties shall not receive or retain any distribution under the Plan
on account of subrogation to, or based upon an assignment of, a Class 7
Claim, and the Raytheon Parties hereby waive and release any distributions
under the Plan on account of the claims and rights of the Raytheon Parties,
whether known or unknown, based upon suretyship, subrogation, reimbursement,
contribution, or indemnity, except, in both cases, as provided in Sections
1.3 above or 2.2 below.
Section 2.2 RIGHTS UNDER SECTION 509 OF BANKRUPTCY CODE. The
rights, if any, of the Raytheon Parties under section 509 of the Bankruptcy
Code to be subrogated to rights of Mitsubishi Corporation, Mitsubishi Heavy
Industries of America, Inc., Mitsubishi Heavy Industries Ltd., or their
affiliates or subsidiaries (collectively, "MITSUBISHI") in respect of
payments made by the Raytheon Parties to Mitsubishi under a Support Agreement
are hereby preserved; PROVIDED, HOWEVER, that (a) the amount of Mitsubishi's
Estate Claim as to which the Raytheon Parties may be subrogated shall not
exceed or expand the amount of $217.5 million (the "MITSUBISHI ALLOWED
CLAIM"), (b) if any portion of the Mitsubishi Allowed Claim becomes an
Assigned Claim, the amount of such Assigned Claim shall be limited to $100
million, (c) the aggregate amount of Raytheon's subrogation rights with
respect to the Mitsubishi Allowed Claim, plus other amounts with respect to
which distributions under the Plan are made to Mitsubishi, shall not exceed
in the aggregate the Mitsubishi Allowed Claim (with any allocation to be as
may be agreed by Raytheon and Mitsubishi or, failing such agreement, as the
Bankruptcy Court may determine), and (d) the amount, extent and nature of the
Raytheon Parties' rights under section 509 of the Bankruptcy Code shall be as
agreed among Mitsubishi, Raytheon, the Committee and the Debtors, or failing
such agreement, as the Bankruptcy Court may determine.
3. FUTURE OBLIGATIONS UNDER ASSUMED PROJECTS SUPPORT AGREEMENTS.
Section 3.1 RIGHTS OF RAYTHEON PARTIES. The WGI Parties agree to
take, and to cause their subsidiaries and affiliates to take, reasonable and
necessary actions to protect the Raytheon Parties against possible future
exposure under the
Support Agreements relating to Assumed Projects (the "Assumed Projects
Support Agreements"). The Raytheon Parties shall have, and are hereby
granted, rights of contribution, reimbursement and subrogation against the
WGI Parties under outstanding Assumed Projects Support Agreements, and all
such rights are hereby expressly acknowledged and recognized and have been so
acknowledged and recognized under the Plan and the Confirmation Order.
Section 3.2 JOINT AND SEVERAL OBLIGATION; STANDBY LETTER OF
CREDIT. Each of the WGI Parties (excluding WILLC), jointly and severally,
hereby agrees to pay and satisfy their obligations to each of the Raytheon
Parties for any and all obligations, payments or liabilities of such Raytheon
Party under any of the Assumed Projects Support Agreements. Each of the
Assumed Projects Support Agreements, and all obligations arising thereunder
shall be, and hereby are agreed to constitute, the joint and several
obligation of each of the Reorganized Debtors (excluding WILLC) and the
obligations thereunder will be supported by an irrevocable standby letter of
credit to be provided by, and for the account of, the Debtors for the benefit
of the Raytheon Parties in the maximum drawing amount of $10,000,000 (the
"RAYTHEON LOC," the form of which is attached hereto as EXHIBIT B). The
Raytheon LOC will cover first dollar exposure for the Assumed Projects
Support Agreements, be drawable in accordance with the terms set forth on
EXHIBIT C hereto and remain in place and available for so long as, but only
to the extent that, any obligation under any Assumed Projects Support
Agreement is in effect.
4. PENDING LITIGATION
Section 4.1 SUSPENSION AND DISMISSAL WITH PREJUDICE. All pending
litigation pursued by one or more of the Parties against one or more of the
other Parties was suspended on November 8, 2001, and will be dismissed with
prejudice on the Effective Date. Such litigation includes (a) the Raytheon
Actions (including the Idaho Litigation, the purchase price adjustment
process and the American Arbitration Association arbitration matter), and (b)
the Debtors' pending fraudulent transfer adversary proceeding in the
Bankruptcy Case.
Section 4.2 CERTAIN RAYTHEON ACTIONS. The applicable Raytheon
Parties and WGI Parties agree jointly to withdraw, on or before the Effective
Date, the American Arbitration Association arbitration demand and any related
filings and dismiss those aspects of the Raytheon Actions, without any
further consideration except for the exchange of mutual releases, and each
such Party agrees to bear its own costs in connection with the foregoing.
Section 4.3 INDEPENDENT ACCOUNTING FIRM. The Independent
Accounting Firm appointed by the court in the Raytheon Actions has been
instructed by WGI and Raytheon to stop work in connection with the purchase
price adjustment, and Raytheon and WGI agree to share equally the costs for
the Independent Accounting Firm through the cessation of work and each such
Party to bear its own costs.
5. PROJECT SERVICES
Section 5.1 ASSUMED PROJECTS. (a) The WGI Parties agree to
provide the Raytheon Parties with (i) on a commercially reasonable efforts
basis, monthly project reports on each Assumed Project to the extent provided
to owners and other clients with respect to such Assumed Project, (ii) copies
of information actually provided to surety companies or WGI Parties' lenders,
and (iii) other mutually-agreed information (except to the extent the
provision of the items set forth in (i), (ii) and (iii) is limited by
contract or government regulation, in which event the WGI Parties and the
Raytheon Parties shall use commercially reasonable efforts to attempt to
satisfy any such limitation in order to enable the Raytheon Parties to obtain
such information). All information provided by the WGI Parties under this
Section 5.1 shall be subject to the confidentiality provisions set forth in
Section 7.4.
(b) In the event that any of the WGI Parties or Raytheon Parties
learns of a threatened or pending claim against an Assumed Projects Support
Agreement, WGI shall promptly notify Raytheon (if a WGI Party learns of it)
and Raytheon shall promptly notify WGI (if a Raytheon Party learns of it) and
WGI agrees to provide Raytheon with reasonable access to the WGI Parties'
books, records and personnel on the same basis as provided elsewhere in this
Section 5 and Section 8.13.
Section 5.2 PROJECTS WITH EXISTING SEPARATE AGREEMENTS. For the
Sithe Fore River, Sithe Mystic, Red Oak, Puerto Plata, and Ilijan projects
(collectively, the "SEPARATE PROJECTS"), any services to be provided by the
WGI Parties shall be in accordance with the Separate Agreements, which
already have been agreed to.
Section 5.3 SERVICES AGREEMENT FOR CERTAIN PROJECTS. The Saltend,
Damhead, Xxxxxx, Posven, Ratchaburi, Tallahassee, Acme, Ezhou, Egypt
Electric, UCH and NACIC projects, together with any and all other projects or
contracts (but excluding the Separate Projects) rejected by any of the WGI
Parties with respect to which any Raytheon Party has provided a Support
Agreement where there may need to be further physical work or other routine
project closeout activities, and the Clear Alaska project, shall be the
subject of the Services Agreement.
Section 5.4 THIRD PARTY LITIGATION AND CLAIMS SUPPORT FOR ALL
PROJECTS/CONTRACTS WITH RESPECT TO WHICH PROJECT CLAIMS AGAINST RAYTHEON ARE
THREATENED OR ASSERTED.
(a) APPLICATION. The Services Agreement shall govern the
provision of litigation and claim-related support that falls within the scope
of Completion Services. The Separate Agreements shall govern the provision of
litigation and claim-related support that falls within the scope of services
required to be provided pursuant to the Separate Agreements. Except to the
extent governed by the Services Agreement or Separate Agreements as described
above, this Section 5.4 shall describe, and shall apply to, litigation and
claims (collectively, the "PROJECT CLAIMS") that fall within one or more of
the following categories: (i) litigation or claims that relate to any
contract or project rejected by any of the Debtors in the Bankruptcy Case
pursuant to section 365 or 1123(b)(2) of the Bankruptcy Code (the "REJECTED
PROJECTS"); (ii) litigation or claims that relate to projects or contracts
neither rejected nor assumed by any WGI Party in the Bankruptcy Case and
where such litigation or claims are asserted against any Raytheon Party or
under or with respect to a Support Agreement; (iii) litigation or claims that
involve an Assumed Project as to which any WGI Party has breached and failed
to cure its payment or reimbursement obligations relating to the applicable
Support Agreement relating to such Assumed Project as required under Sections
3.1, 3.2 or 6.1(b) (a "BREACHED ASSUMED PROJECT"); or (iv) litigation or
claims that involve an Assumed Project as to which a claim is asserted
against a Raytheon Party, whether or not such claim is asserted under or with
respect to a Support Agreement or any of the contracts relating to such
Assumed Project assumed by the WGI Parties.
(b) GENERAL ASSISTANCE. (i) At Raytheon's request, the WGI
Parties shall provide the Raytheon Parties with support in asserting or
defending actual or threatened Project Claims or litigation or proceedings
(including arbitration) in any forum in which any Project Claim is being
asserted, defended, or resolved (collectively, the "PROJECT CLAIMS
LITIGATION") involving third parties arising (A) under any contract relating
to a Rejected Project, or (B) in respect of (I) Project Claims also asserted
or threatened to be asserted against any of the Raytheon Parties or under or
with respect to a Support Agreement, or (II) in connection with a Breached
Assumed Project, claims asserted or threatened against any of the Raytheon
Parties or under or with respect to a Support Agreement (the matters
described in the foregoing paragraphs (A) and (B) are collectively referred
to as "PROJECT CLAIM MATTERS"). The WGI Parties agree that they will
diligently and in good faith provide documentation, information, access, and
access to (but not use of) personnel reasonably requested by the Raytheon
Parties in connection with any Project Claim Matters, which information,
documentation and access also shall be
available to the Committee.
(ii) Without in any way limiting the generality of the
foregoing, it shall be deemed reasonable for Raytheon to request to meet with
witnesses who are WGI Party personnel in advance of any testimony they may be
asked or required to give at a deposition or hearing of any sort and to have
them travel to the location of any hearing; provided that WGI Party personnel
shall not be required to provide any in-country support or services in
Pakistan or any other foreign country in connection with any project unless
(A) WGI is reasonably satisfied regarding safety and security in Pakistan or
such other foreign country and (B) in the case of Pakistan only, WGI is
satisfied in its sole and absolute discretion regarding its exposure to legal
liability to judgments or other legal process. In the event that WGI is not
reasonably satisfied regarding safety or security in Pakistan or such other
foreign country, WGI shall notify Raytheon of such concerns and the WGI
Parties and the Raytheon Parties shall meet to discuss such concerns and,
acting in good faith, to enter into alternative arrangements.
(iii) Each of the WGI Parties hereby represents and
warrants that, other than in connection with settlements with Raytheon or
Mitsubishi or other settlements presented to and approved by the Bankruptcy
Court (after notice to Raytheon and the Committee), since November 8, 2001 to
the date of this Agreement, the WGI Parties have not compromised or settled
any Estate Claim, Project Claim, or Project Claim Litigation involving a
matter referred to in this Section 5.4 without obtaining, in addition to any
other required consent, the consent of Raytheon and the Committee.
(iv) Except in the case of a Breached Assumed Project,
Raytheon agrees to compensate the WGI Parties for the support provided
pursuant to this paragraph (b) on the same basis of Allowable Costs plus a
7.5% fee, as provided in the Services Agreement with respect to Completion
Services.
(c) NOTICE. If any of the WGI Parties receives any writing in
which a claim is asserted or threatened against any of the WGI Parties either
(i) in connection with any project with respect to which a Support Agreement
exists or (ii) with respect to which any of the Raytheon Parties is alleged
to have, or any WGI Party has a reasonable basis for knowing such Raytheon
Party has, financial exposure based upon the existence or terms of a Support
Agreement or any other agreement or legal theory ("POSSIBLE PROJECT CLAIM"),
the WGI Parties agree to provide Raytheon with prompt notice of the claim. If
a claim is asserted or threatened against any of the WGI Parties that
constitutes or relates to a Possible Project Claim or an Estate Claim, WGI
agrees to provide the Committee with prompt notice of such claim.
(d) ADDITIONAL OBLIGATIONS. In addition to the general assistance
obligations under paragraph (b) above and the notice obligations under
paragraph (c) above:
(i) with respect to (A) a Rejected Project Claim, (B) any
Project Claim Matter (other than a Rejected Project Claim) or any Possible
Project Claim or Project Claim Litigation, in each case as to which both WGI
and the Committee indicate that they do not have a material interest, or (C)
a claim arising in connection with a Breached Assumed Project (collectively,
"RAYTHEON CONTROLLABLE CLAIMS"), then in each such case, upon Raytheon's
written request, the applicable WGI Parties and the Committee agree to permit
Raytheon or the applicable Raytheon Party to direct the response to the claim
and any related litigation, including without limitation, asserting
counterclaims including those that preserve the WGI Parties' recoupment or
set-off rights, control the process and receive any resulting proceeds
(subject to the provisions of Section 5.5(b) below), provided that, in the
case of Raytheon Controllable Claims of the types described in paragraphs (A)
or (B) above, Raytheon pays all of the defense and other litigation costs in
connection therewith.
(ii) To the extent that Raytheon requests any of the WGI
Parties or the Committee, as applicable, to pursue any Rejected Project Claim
or any other affirmative claim of a WGI Party relating to a Project Claim in
one or more of the WGI Parties' own name, and the relevant WGI Parties
reasonably determine that the pursuit of such matter in its own name would
have a material adverse impact on an existing or potential customer,
supplier, subcontractor or other material business relationship, then,
subject to the following proviso, the WGI Parties shall not be required to
pursue such claim in their own name, but will assign such claim to Raytheon
or RECI or their designees; PROVIDED THAT (I) such an assignment would be
legally effective and (II) Raytheon determines that the assignment of such
claim or the failure of the WGI Parties to pursue the claim in their own name
will not adversely affect the pursuit of such claim or other matter related
in any way to that claim, including the defense of any claims or
counterclaims relating to the same project or expose any Raytheon Party to
liabilities or damages for which it is not otherwise exposed or liable. In
the event of any such assignment, the WGI Parties will provide documentation,
information, access and access to, and use of, personnel reasonably requested
by Raytheon to provide claim analysis and investigation and other background
support, and Raytheon otherwise will have the claim and litigation support
provided under this Agreement. In the event that any claim is not assigned
due to a failure to meet either of the conditions in the proviso in the
second preceding sentence, the relevant WGI Parties will pursue the
applicable matter in their own name, but, in the event that the condition
referred to in subclause II of such proviso is not met, the Raytheon Parties
and WGI Parties will use commercially
reasonable efforts to structure such pursuit in a manner that mitigates to
the extent reasonably possible any material adverse effect on the WGI
Parties' business relationships while not adversely affecting the pursuit or
defense of such claim.
(iii) For any Project Claim Matters not addressed in
Section 5.4(d)(i) or in the event that Raytheon makes a reasonable
determination that any Raytheon Party is or may be exposed to liability under
a Support Agreement or any other agreement or legal theory related to a
Project Claim Matter that is not a Raytheon Controllable Claim (collectively,
"JOINT DEFENSE CLAIMS"), upon Raytheon's reasonable request, the applicable
WGI Parties, and, if the exposure is related to an existing Estate Claim or
may give rise to an Estate Claim, the Committee, and Raytheon shall enter
into mutual defense arrangements, to be agreed upon in good faith. Those
arrangements shall be appropriate under the circumstances of the particular
Joint Defense Claim and, to the extent appropriate, each of the affected
Parties will agree to (A) provide each other with all pleadings and notices
in connection with such Joint Defense Claim, (B) provide each other with
access to all relevant or related records and documents, (C) recognize the
joint defense and common interest privilege between the affected Parties and
their affiliates, (D) confer with each other prior to filing dispositive
pleadings, making offers to settle or other major events, and (E) allow each
other privileged access to relevant defense counsel. The WGI Parties and the
Committee also acknowledge the right of Raytheon or another applicable
Raytheon Party to intervene in its own name. In the event that any such Joint
Defense Claim thereafter becomes a Raytheon Controllable Claim, the
provisions of Section 5.4(d)(i) shall apply.
(iv) Upon Raytheon's reasonable request, the WGI Parties
and the Committee agree to cooperate with Raytheon and provide reasonable
cooperation and support to Raytheon in responding to the Project Claims,
Project Claim Litigation, Project Claim Matters, and Possible Project Claims
to assist the Raytheon Parties in mitigating any exposure and risk they may
have; PROVIDED, HOWEVER, in no event shall any WGI Party or the Committee be
required to provide legal services to Raytheon. Raytheon shall be permitted
to use counsel previously involved in the matter, and all Parties agree to
waive any conflict.
(e) COSTS, BUDGETING, ETC. With respect to any provision of
Section 5.4(d) that provides that the WGI Parties will provide services,
except with respect to a Breached Support Agreement, Raytheon will reimburse
or otherwise be responsible for the WGI Parties' costs in providing support
pursuant to this Section 5.4(d) and such costs shall be based on Allowable
Costs, including Allowable Costs of in-house counsel and administrative
personnel, plus a fee of 7.5%. To the extent practicable, prior to the WGI
Parties incurring any costs, Raytheon and WGI will prepare and agree upon a
proposed scope description of the services to be provided and budget and
reconciliation, payment and audit procedures, similar to the procedures
contemplated by Section 2(d) of the Services Agreement.
(f) Without in any way limiting the generality or scope of
Section 8.10, nothing in this Section 5.4 is intended to, nor does it, in any
way (i) benefit or create any rights or benefits for any Person that is not a
signatory to this Agreement, or (ii) establish, or constitute an assumption
of, any liabilities, duties, or obligations to, any Person not a signatory to
this Agreement.
Section 5.5 RAYTHEON PARTIES' RIGHTS TO REJECTED PROJECT CLAIMS,
ETC. (a) The Raytheon Parties shall have the benefit of and be able to pursue
or settle rights and claims of the WGI Parties in connection with Rejected
Projects against customers, project owners, contractors, subcontractors,
vendors and other third parties ("REJECTED PROJECT CLAIMS"), subject to such
parties' rights and defenses, if any, to such Rejected Project Claims. In
addition, Raytheon or another applicable Raytheon Party may elect to control
the process in the same manner as provided in Section 5.4 with respect to
Raytheon Controllable Claims or may elect to control the process in the same
manner as provided in Section 5.6 with respect to Estate Claims, as
applicable, and receive any resulting proceeds, in each case with respect to
Rejected Projects, subject to the provisions of paragraph (b) below. The WGI
Parties and Raytheon agree that as part of the defense of any related
Raytheon Controllable Claims and pursuit of Rejected Project Claims, any
contract balances and affirmative claims of the WGI Parties, including
without limitation the rights in the equity of Posven C.A. (and the WGI
Parties agree within fifteen (15) days of a written request therefore, to
provide Raytheon or its designee with the stock certificate(s) or other
evidence of such equity), against project owners, customers, or others will
be used first in respect of each such defense or pursuit to compromise,
reduce or eliminate such Estate Claim or claim of a specific owner or any
other specific third party in connection with that specific Estate Claim or
claim asserted, respectively, against the WGI Parties or against the Raytheon
Parties. As part of the Rejected Project Claims, assets or proceeds from
whatever source claimed from third parties related to the Rejected Projects
shall belong and be paid over directly to Raytheon or another applicable
Raytheon Party, subject to the provisions of paragraph (b) below. Raytheon
shall endeavor in good faith to avoid prejudice to existing rights and
claims, if any, of the Reorganized Debtors with respect to such projects and
upon request shall give reasonable notice to WGI and the Committee of the
status and results of such legal action. With respect to any Rejected Project
Claims being pursued by Raytheon directly in the name of the WGI Parties,
Raytheon shall provide periodic updates to WGI and the Committee and, if WGI
provides notice to Raytheon and the Committee that WGI or the Committee has a
concern about specified Rejected Project Claims, (i) Raytheon shall provide
to WGI and the Committee reasonable periodic information regarding the case,
(ii) before deciding
to abandon the pursuit of the particular Rejected Project Claim, so advise
WGI and the Committee and permit WGI or the Committee, as appropriate, to
take over the Rejected Project Claim for its own account and (iii) Raytheon
will not obtain (or retain) an affirmative recovery for its own account (by
settlement or otherwise) if the opposing party in the case retains an Estate
Claim or an affirmative claim against the Reorganized Debtors.
(b) In addition, and notwithstanding the foregoing paragraph (a),
with respect to each of the Rejected Projects, other than the Designated
Projects and except as otherwise provided in the Ilijan Project Completion
Agreements and the Red Oak Project Completion Agreement, to the extent that
after first paying or discharging obligations due to and related costs
incurred by the Raytheon Parties under the related Support Agreement or the
Services Agreement and in pursuing Rejected Project Claims relating to that
Rejected Project, there remain Net Proceeds from Rejected Project Claims in
connection with that Rejected Project, Raytheon shall provide written notice
thereof to WGI and the Committee and shall pay over the amount of such excess
to WGI, which is entitled to such excess. With respect to the Designated
Projects, however, Raytheon or another applicable Raytheon Party shall be
entitled to all assets, claims and recoveries, if any.
(c) Without in any way limiting the generality or scope of
Section 8.10, nothing in this Section 5.5 is intended to, nor does it in any
way (i) benefit or create any rights or benefits for any Person that is not a
signatory to this Agreement, or (ii) establish, or constitute an assumption
of, any liabilities, duties, or obligations to, any Person not a signatory to
this Agreement.
Section 5.6 CLAIMS ALLOWANCE PROCESS. This Section 5.6 shall
apply to all Estate Claims being allowed, disputed, or resolved in whole or
in part in the Bankruptcy Court or in an alternative forum to which the
Bankruptcy Court has ceded jurisdiction by an order entered in the Bankruptcy
Case that was not sought by the Committee ("ALTERNATIVE FORUM") with respect
to matters involving or otherwise related to any Raytheon Party or any
Project Claim with respect to which any Raytheon Party (a) has any actual or
potential liability, (b) is entitled to pursue a recovery in respect of such
Project Claim in accordance with this Agreement or (c) otherwise has any
pecuniary interest in or with respect to such Estate Claim (a "RAYTHEON
RELATED ESTATE CLAIM").
(a) The Raytheon Parties, the WGI Parties and the Committee agree
to cooperate in the development and implementation of a process for the
resolution of Estate Claims generally and Raytheon Related Estate Claims in
particular in the Bankruptcy Case (the "CLAIMS ALLOWANCE PROCESS").
(b) The Raytheon Parties may initiate or seek to intervene or
otherwise participate as parties in a Claims Allowance Process matter with
respect to
particular Raytheon Related Estate Claims. The WGI Parties and the Committee
agree to support that participation, in a manner consistent with the terms
and conditions of this Agreement, so long as such intervention or
participation would not unduly delay the adjudication of the rights of the
original parties, and further agree to permit Raytheon to control the
litigation, arbitration or other determination of the Raytheon Related Estate
Claims, including, without limitation, the assertion of counterclaims or the
right of setoff or recoupment, as appropriate; PROVIDED HOWEVER that the
Committee, as provided in the Plan, may settle or compromise a Raytheon
Related Estate Claim as long as such settlement or compromise does not
determine or adversely affect the liability, if any, of the Raytheon Parties
with respect to such Raytheon Related Estate Claim and as long as such
settlement or compromise does not require any payment by a Raytheon Party. If
the Bankruptcy Court or the court or panel in such Alternative Forum permits
the Raytheon Parties to so intervene or otherwise participate as a party with
respect to a particular Raytheon Related Estate Claim, the Committee or
Raytheon may seek a determination from the Bankruptcy Court of the
obligations, if any, of the Raytheon Parties to a Person with respect to such
Raytheon Related Estate Claim that is based upon such party's rights under a
Support Agreement and the Raytheon Parties (i) may seek a ruling that their
obligations, if any, should not be so determined on any ground other than
lack of personal jurisdiction over the Raytheon Parties or improper venue,
and/or (ii) may oppose the relief sought on the merits.
(c) The Raytheon Parties, rather than seeking to intervene or
otherwise participate as a party, may request in a writing that refers to
this Section 5.6 that the WGI Parties and/or the Committee permit the
Raytheon Parties to direct their actions as to a particular Raytheon Related
Estate Claim (including with respect to settlement and allowance of the
Raytheon Related Estate Claim), including, without limitation, the assertion
of counterclaims or the right of setoff or recoupment, as appropriate,
provided that the Raytheon Parties agree to reimburse all reasonable fees,
costs, and expenses associated with their doing so. The WGI Parties and the
Committee agree to comply with such request and to follow such direction from
the Raytheon Parties; PROVIDED, HOWEVER, that the Committee, as provided in
the Plan, may settle or compromise a Raytheon Related Estate Claim as long as
such settlement or compromise does not determine or adversely affect the
liability, if any, of the Raytheon Parties with respect to such Raytheon
Related Estate Claim and as long as such settlement or compromise does not
require any payment by a Raytheon Party.
(d) Except as, but only to the extent, expressly provided herein,
the Estates and the Committee acting on behalf of the Estates reserve their
rights, if
any, under applicable law or procedural rules to seek an order joining one or
more Raytheon Parties in any matter, proceeding or other civil action
(including arbitration) in the Claims Allowance Process with respect to a
particular Raytheon Related Estate Claim and to request a determination by
the Bankruptcy Court of the obligations, if any, of the Raytheon Parties to
the Person or Persons asserting such Raytheon Related Estate Claim under a
Support Agreement or other agreement or legal theory. Except as, but only to
the extent, expressly provided herein, the Raytheon Parties reserve their
rights, if any, to oppose any such motion, request or action on any grounds
under applicable law or procedural rules. The Parties intend and agree that
nothing in this Agreement, including, without limitation, this Section 5.6,
is intended to, or does, suggest the existence or validity of any rights or
expand, restrict, or in any way affect or influence the nature, existence, or
validity of any of the rights, if any, reserved under this Section 5.6(d).
(e) In the event that in the Claims Allowance Process in the
Bankruptcy Court or an Alternative Forum, the Raytheon Parties (i) initiate,
intervene or participate as a party in the determination of a Raytheon
Related Estate Claim as provided in paragraph (b) above, or (ii) elect to
direct the litigation, arbitration or other determination of a Raytheon
Related Estate Claim as provided in paragraph (c) above, and (x) in each
case, the WGI Parties and the Committee have permitted the Raytheon Parties
to control the defense of the Raytheon Related Estate Claim, and (y) if, but
only if, the Bankruptcy Court or the Court or panel in that Alternative
Forum, after having afforded the Raytheon Parties a full and fair opportunity
to be heard, should determine in a Final Order that one or more Raytheon
Parties are liable under a Support Agreement to the Person asserting the
Raytheon Related Estate Claim, then the Raytheon Parties will pay or
otherwise resolve their liability to such Person, which payment shall
extinguish the liability of both the Estate for such Raytheon Related Estate
Claim and the Raytheon Parties for such Raytheon Related Estate Claim.
Subject to the provisos contained in paragraphs (b) and (c), no settlement of
any Raytheon Related Estate Claim that is referred to in paragraphs (i) or
(ii) above shall be agreed to or supported by the WGI Parties or the
Committee without the consent of Raytheon, if the settlement contemplates any
payment by, or could have an adverse economic consequence for, any Raytheon
Party.
(f) The WGI Parties agree that they will provide assistance in
the Claims Allowance Process to Raytheon if Raytheon initiates, intervenes or
otherwise participates as a party in a Claims Allowance Process matter,
including the furnishing of documentation, information, financial data,
reasonable access to personnel, and reasonable access to WGI's counsel and
other professionals, and,
upon the request of the Committee, with Raytheon's consent, the WGI Parties
will provide all such assistance to the Committee as well. The WGI Parties
shall also provide to the Committee, at the Committee's request with prior
notice to Raytheon, assistance, documentation, information, financial data,
reasonable access to personnel, and reasonable access to WGI counsel and
other professionals, but, without Raytheon's consent, shall not provide the
Committee with any such information, financial data, access to personnel, WGI
counsel and other professionals that the WGI Parties would not be obligated
to provide to a third party pursuant to discovery under the Federal Rules of
Bankruptcy Procedure. The Committee shall not voluntarily provide any
non-public information received pursuant to this Agreement to any third party
unless consented to by Raytheon and shall not use any assistance or
information provided to it by WGI in a manner that is inconsistent with the
terms of this Agreement. Raytheon consents to the WGI Parties providing such
information to the Committee and agrees that doing so will not constitute a
breach of the confidentiality provisions or other information request
provisions of this Agreement (subject to any applicable protective order) and
the Committee agrees to observe the confidentiality obligations as though it
were a WGI Party. Such assistance will be furnished to the Committee by
Reorganized WGI without charge. The reimbursement of expenses, fees, and
costs of the Committee are to be borne by Reorganized WGI pursuant to the
Plan. The Raytheon Parties will reimburse all accrued but unpaid reasonable
fees, costs and expenses incurred by the WGI Parties in providing the
Raytheon Parties with the assistance, but only to the extent such fees, costs
and expenses exceed the amounts required to provide assistance to the
Committee. Nothing contained in this Agreement shall affect or limit, or be
deemed to be a waiver of, the right, if any, of any Party to seek discovery,
including testimony and the production of documents in any matter, proceeding
or other civil action (including arbitration).
(g) The Parties agree that, without formally participating in the
resolution of a Raytheon Related Estate Claim as contemplated by paragraph
(b) or (c) above, and thereby making applicable the provisions of paragraph
(e) above, that (i) the Parties may consult with respect to any Raytheon
Related Estate Claim, Raytheon may be consulted respecting its views and
preferences and Raytheon may provide comments and suggestions with respect to
the resolution of any Raytheon Related Estate Claim, and (ii) the WGI Parties
and the Committee shall consult and confer with Raytheon with respect to any
Raytheon Related Estate Claim related in any way to a Project Claim.
(h) The determination of the amount of an Allowed Claim in the
Claims Allowance Process shall not expand, limit or alter the obligation of
the Raytheon Parties, if any, to make payments under a Support Agreement with
respect to such Raytheon Related Estate Claim. In no event, will the WGI
Parties or the Committee consent to the entry of an order fixing the amount
of an Allowed Class 7 Claim in an amount different from that with respect to
which distributions under the
Plan are to be made to the holder of such Allowed Class 7 Claim.
(i) Except as, but only to the extent, expressly provided herein
the Raytheon Parties, the WGI Parties and the Committee agree that each Party
reserves its rights under applicable law and procedural rules in connection
with any specific matter, proceeding, or civil action (including arbitration)
and that no Party has agreed to create or waive rights in respect of such law
or rules or in favor of third parties under this Section 5.6.
(j) Without in any way limiting the generality or scope of
Section 8.10, nothing in this Section 5.6 is intended to, nor does it in any
way (i) benefit or create any rights or benefits for any Person that is not a
signatory to this Agreement, or (ii) establish, or constitute an assumption
of, any liabilities, duties, or obligations to, any Person not a signatory to
this Agreement.
Section 5.7 PP9 PROJECT. Raytheon and WGI acknowledge that both
the "Consortium Agreement" and the project agreements for the so-called "PP9
PROJECT" are between certain WGI Parties and General Electric Company and its
affiliates and are being assumed by the WGI Parties as part of the Bankruptcy
Case, while the project agreements for the Ratchaburi project were also
between certain WGI Parties and General Electric Company and its affiliates
but were rejected by the WGI Parties as part of the Bankruptcy Case, and
agree that their respective interests in the Ratchaburi project and the PP9
Project will be independent from each other, with rights and obligations
remaining separate between the two projects, and benefits and burdens for
each project will remain with that project and the parties involved.
Accordingly, nothing in this Agreement shall be deemed to authorize Raytheon
to settle or compromise any claim relating to the PP9 Project or to receive
or retain any amounts payable by any third party with respect to such
project, and nothing in this Agreement shall be deemed to authorize any WGI
Party to settle or compromise any claim relating to the Ratchaburi project or
to receive or retain any amounts payable by any third party with respect to
the Ratchaburi project.
6. ADDITIONAL AGREEMENTS
Section 6.1 AGREEMENTS INVOLVING ASSUMED PROJECTS SUPPORT
AGREEMENTS.
(a) CERTAIN SUPPORT AGREEMENTS. The WGI Parties agree to use
commercially reasonable efforts (consistent with their capabilities and
circumstances) to identify and replace Assumed Projects Support Agreements of
relatively long duration and/or that involve relatively little risk. WGI
shall endeavor in good faith to terminate the Support Agreements in
connection with Pine Bluff. WGI may consult with Raytheon from time to time
concerning the progress made with respect to any such releases, and Raytheon
agrees to provide reasonable assistance in such process. For purposes of this
Section 6.1 only, Gulf Chemical shall be an "ASSUMED PROJECT."
(b) REIMBURSEMENT AND REPAYMENT. (i) With respect to Assumed
Projects Support Agreements, the WGI Parties agree to reimburse the
applicable Raytheon Party for all third-party premiums, payments and other
carrying costs of those Support Agreements, within fifteen (15) days after
receipt of invoices for these amounts. If a Raytheon Party is required to
reimburse a letter of credit issuer for any drawing under an Assumed Projects
Support Agreement, or is required to make any payment under an Assumed
Projects Support Agreement that is a guaranty or surety bond (other than
carrying costs as provided above or to reimburse the issuer of a surety bond
under an indemnity agreement or otherwise), then the WGI Parties agree to
reimburse such Raytheon Party within three (3) business days after receipt of
Raytheon's demand for payment.
(ii) The WGI Parties' payment and reimbursement obligations
under Sections 3.1 and 3.2 and this Section 6, as among each of the WGI
Parties (but excluding WILLC), is a joint and several obligation and shall
not be subject to any right of set-off or defense to payment that otherwise
might be available. Each of the WGI Parties (but excluding WILLC), jointly
and severally, hereby irrevocably and unconditionally accepts, not merely as
a surety but also as a co-debtor, joint and several liability with all other
WGI Parties, with respect to the payment and reimbursement obligations under
Sections 3.1 and 3.2 and this Section 6, it being the intention of the
Parties that all the obligations shall be the joint and several obligations
of each of the WGI Parties (but excluding WILLC) without preferences or
distinction among them. The first dollar exposure for any such amounts shall
be drawable by Raytheon under the Raytheon LOC, in accordance with the terms
set forth on Exhibit C hereto.
(c) REPORTING. Until a particular Assumed Projects Support
Agreement is completely released, the WGI Parties agree to provide Raytheon
with (i) on a commercially reasonable efforts basis, monthly project reports
on each Assumed Project to the extent provided to owners and other clients
with respect to such Assumed Project, (ii) copies of information actually
provided to surety companies or the WGI Parties' lenders, and (iii) other
mutually-agreed information (except to the extent the provision of the items
set forth in (i), (ii) or (iii) is limited by contract or government
regulation, in which event the WGI Parties and the Raytheon Parties shall use
commercially reasonable efforts to satisfy any such limitation in order to
enable the Raytheon Parties to obtain such information). All information
provided by the WGI Parties under this Section 6.1 shall be subject to
the confidentiality provisions set forth in Section 7.4. In connection with
Assumed Projects, Raytheon shall not have access to the WGI Parties' books,
records or personnel until any of the Raytheon Parties has reason to believe
or any of the WGI Parties has knowledge that third parties may have rights to
or have, or have threatened to assert, claims with respect to any Assumed
Projects Support Agreements. In that event, the WGI Parties agree to provide
diligently and in good faith all documentation, information, access, and
access to personnel requested by Raytheon, as though subject to the Services
Agreement and as provided in Section 8.13.
7. LITIGATION RELEASES AND THIRD PARTY ISSUES
Section 7.1 MUTUAL RELEASES; RESOLUTION OF CERTAIN CLAIMS. (a)
(i) Raytheon and WGI agree to execute and deliver, and to cause the
appropriate Raytheon Parties and WGI Parties, respectively, and the Persons
related thereto, to execute and deliver, duly authorized releases in the form
set forth in EXHIBIT A.
(ii) Raytheon and WGI shall not be obligated to obtain
releases from subsidiaries or other affiliates that are not wholly-owned
(referred to as a "NON-RELEASING ENTITY"), but Raytheon and WGI each agree to
indemnify the other party and all related parties that are the subject of the
releases against all claims and causes of action ever asserted now or in the
future by such Non-Releasing Entity that would have been covered had the
Non-Releasing Entity delivered a release as described above; provided,
however, that such indemnity shall not extend to contracts between any
Raytheon Parties and any WGI Parties entered into in the ordinary course.
(b) At Raytheon's request and expense, the WGI Parties, to the
extent permitted by the Bankruptcy Court, shall use commercially reasonable
efforts to use the post-confirmation jurisdiction of the Bankruptcy Court to
resolve disputed, contingent, or unliquidated claims being asserted by third
parties that Raytheon reasonably believes relate to property of the Estate
and will use commercially reasonable efforts in cooperating in other
jurisdictions to resolve disputed, contingent, or unliquidated claims and
claims based in any way on the Stock Purchase Agreement and the various
agreements executed and delivered pursuant thereto. Notwithstanding the
foregoing, to the extent the claim involved is an Estate Claim, the Estate
Claim shall be the subject of the Claims Allowance Process and shall be
governed by Section 5.6, and the resolution of any such Estate Claim shall be
through the Claims Allowance Process. When such claims involve Rejected
Projects involving outstanding Support Agreements that may be subject to such
claims, the use of the post-confirmation jurisdiction of the Bankruptcy Court
as described herein shall be subject to Raytheon's consent and right to
direct the response to the claim and any related litigation, to control the
process and to receive any resulting proceeds, in a manner consistent with
Sections 5.4, 5.5 and 5.6.
Section 7.2 SPA INFORMATION. (a) The Parties agree to keep
confidential (and to use their best efforts to cause their respective agents
and representatives to keep confidential) any "SPA INFORMATION"; PROVIDED
HOWEVER that the parties may utilize SPA Information on a non-confidential
basis as reasonably required in connection with conduct of their business or
otherwise in furtherance of WGI's business interests (including, without
limitation, existing or potential business arrangements, but excluding any
business interests or arrangements involving the pursuit of claims against
the Raytheon Parties). SPA Information, for purposes of this Section 7.2 and
Section 7.5 below means, collectively, (a) any information or documents
provided to Xxxxxxxx Xxxxxxx or the WGI Parties or their agents by the
Raytheon Parties or (b) any information or documents provided to the Raytheon
Parties or their agents by Xxxxxxxx Xxxxxxx or the WGI Parties, in each case
in connection with the negotiation or implementation of the Stock Purchase
Agreement or pursuant to the Confidentiality Agreement dated as of August 4,
1999 between Raytheon Company and Xxxxxxxx Xxxxxxx Corporation. This
obligation shall not apply with respect to any information that: (x) was
known by the WGI Parties or the Raytheon Parties prior to receipt from the
other party; (xi) was developed independently by the WGI Parties without the
use of SPA Information; (xii) is in the public domain or otherwise generally
available to the public; or (xiii) was received by the WGI Parties from third
parties under no known confidentiality obligation to the Raytheon Parties,
including those under this Agreement.
(b) Notwithstanding the foregoing, the WGI Parties and the
Raytheon Parties, respectively, may disclose SPA Information (i) to the
extent requested or required by any regulatory authority, government
authority, or examining authority or provided to such authority to the extent
such Party, in its discretion, has determined that it should do so to protect
or preserve its own legal, regulatory, or commercial interests, or (ii) to
the extent necessary for any Party to defend against a suit, action or
proceeding to which it or any of its officers or directors is a party.
(c) The Raytheon Parties and WGI Parties agree not to waive
intentionally or release any known privileges or protections with respect to
non-public SPA Information and the businesses sold pursuant thereto as it
relates to any third party litigation that may involve a Raytheon Party or
WGI Party without first giving reasonable notice to the other Party.
Section 7.3 DISCOVERY MATERIALS. (a) All documents, interrogatory
answers, deposition testimony, and deposition exhibits produced or obtained
in the
Bankruptcy Cases and the Idaho Litigation, all submissions made by Raytheon
and WGI in connection with the purchase price adjustment proceedings, and all
transcripts of proceedings before the Independent Accounting Firm
(collectively, "DISCOVERY MATERIALS") shall be governed by this Section 7.3
and Section 7.5 below. A Party's own documents in the hands of such Party
including, without limitation, documents it produced in connection with such
cases, shall not constitute Discovery Materials.
(b) The parties may retain Discovery Materials, except for the
116 documents believed by WGI to be privileged and previously identified to
Raytheon, which, to the extent held by Raytheon, shall be returned to, and
retained (i.e., not destroyed) by WGI. The Parties shall not disclose
Discovery Materials to any Person unless such Person has acknowledged in
writing that s/he has read the terms of this Section 7.3 and is personally
bound by it, and such Person is (i) a client representative of the Party
retaining possession of such Discovery Materials, (ii) an attorney,
accountant, financial advisor, expert, or other professional retained by such
client, or (iii) a Person to whom disclosure of the Discovery Materials has
been consented to by the Party who first provided the Discovery Materials.
(c) Notwithstanding and without limitation of the foregoing and
subject to the provisions of Section 7.5, a Party may disclose Discovery
Materials that have entered the public domain other than through an improper
disclosure by such Party.
Section 7.4 OTHER CONFIDENTIAL INFORMATION. (a) Subject to the
provisions of Section 7.5 below, the Parties agree to keep confidential (and
to use their best efforts to cause their respective agents and
representatives to keep confidential) the Confidential Information and all
copies thereof, extracts therefrom and analyses or other materials based
thereon. For the purposes of this Section 7.4 and Section 7.5 below,
"CONFIDENTIAL INFORMATION" shall mean any confidential information that
concerns the business and operations of any Party and that has been acquired
by any other Party pursuant to this Agreement. This obligation shall not
apply with respect to any information that: (i) was known by the WGI Parties
or the Raytheon Parties prior to receipt from the other party; or (ii) is in
the public domain.
(b) Notwithstanding the foregoing, and subject to Section 7.5
below, the WGI Parties and the Raytheon Parties, respectively, may disclose
Confidential Information (i) to such of their respective officers, directors,
employees, agents, consultants, advisors, affiliates and representatives as
need to know such Confidential Information in order to carry out their normal
business responsibilities,
(ii) to the extent requested or required by any regulatory authority or
examining authority, or (iii) in connection with any suit, action or
proceeding relating to the enforcement of its rights hereunder or under the
Services Agreement.
Section 7.5 COMPELLED DISCLOSURE. In the event that the WGI
Parties, on the one hand, or the Raytheon Parties, on the other hand, are
required (including but not limited to, by questions under oath,
interrogatories, requests for information or documents in legal proceedings,
governmental regulatory or self-regulatory organization requests for
information; or subpoena, civil demand, or other process) (collectively, a
"DOCUMENT REQUEST") requesting the production of Discovery Materials or
Confidential Information received from the other Party, the Party so served
will provide the other Party with prompt written notice of any such request
or requirement so that the other Party may seek a protective order or other
appropriate remedy and/or waive compliance with this Agreement. Nothing
herein shall require a Party served with a Document Request to violate its
legal obligations thereunder or (but, subject to the foregoing notice
requirements as related to Discovery Materials or Confidential Information)
to withhold information from any regulatory or governmental agency if the
Party reasonably determines that it is in its best interest to provide
requested information to such regulatory or governmental agency. No Party
shall be required to give the notice provided hereby if a regulatory or
governmental agency, on its own initiative, requests that it not provide such
notice to any Party. In addition, this Section 7.5 shall apply to SPA
Information requested or required in connection with any third-party
non-government or regulatory Document Request.
Section 7.6 AVOIDANCE OF FURTHER LITIGATION ACTIVITY. The
Raytheon Parties and the WGI Parties agree that they will not affirmatively
assist third parties in pursuing claims against the other Party arising out
of matters resolved under this Agreement.
8. OTHER MISCELLANEOUS MATTERS
Section 8.1 USE OF NAME. (a) Raytheon hereby terminates any
license, whether express or implied, the WGI Parties may have been granted,
or may otherwise have been assumed to exist, with respect to use of the
"Raytheon" name, whether alone or in combination with other words or designs.
The WGI Parties hereby acknowledge, agree and consent to the foregoing and
agree immediately to commence actions to terminate use of the Raytheon name.
In any and all events, the WGI Parties agree to cease use of all Raytheon
names on or before March 31, 2002.
(b) The WGI Parties hereby acknowledge that Raytheon is the owner
of all right, title and interest in and to the Raytheon Xxxx, whether alone
or in combination with other words or designs and that the WGI Parties shall
not have any right to use the Raytheon Xxxx except as expressly authorized by
this Agreement in paragraph (c) below. At the request of Raytheon, WGI will
cause all of the WGI Parties to enter into a separate agreement with Raytheon
covering the same matters set forth in paragraph (a) and this paragraph (b).
(c) Notwithstanding paragraph (a) above, Raytheon agrees to grant
WGI and REOL as defined herein a limited license to use the name
"Raytheon-Ebasco Overseas Ltd." ("REOL") on projects that are under contract
on the date hereof only. Unless Raytheon agrees otherwise in a writing that
specifically refers to this Section 8.1(c), the WGI Parties agree to make
clear that REOL is no longer affiliated with Raytheon by legends to that
effect on signage, stationery, directories and the like.
Section 8.2 DISAFFILIATION TAX SHARING AGREEMENT. The
Disaffiliation Tax Sharing Agreement shall be assumed by WGI and remain the
valid obligation of WGI, Raytheon and RECI. As contemplated by Article 3 of
the Disaffiliation Tax Sharing Agreement, (a) Raytheon and WGI will designate
appropriate representatives to meet and confer by not later than March 15,
2002, with respect to outstanding claims for Taxes (as defined in the
Disaffiliation Tax Sharing Agreement) and other items provided for under that
Agreement for which either Raytheon or WGI is or may be responsible under the
Disaffiliation Tax Sharing Agreement and refunds for Taxes that either of
them is entitled to under that Agreement, and amounts due shall be agreed
upon and paid by not later than May 31, 2002, and, if no agreement on amounts
can be reached, such amounts shall be determined and paid as ordered by a
court of competent jurisdiction, with all costs to be borne by the
non-prevailing party as determined by that court, (b) WGI will, within thirty
(30) days of the effective date of the Confirmation Order, notify Raytheon,
in the manner provided in the Disaffiliation Tax Sharing Agreement, of all
proofs of claim relating to Taxes and all Taxes listed in the schedules to
the Plan or filed in the Bankruptcy Case or for which WGI intends to assert
its indemnification rights under the Disaffiliation Tax Sharing Agreement,
(c) Raytheon will have the right to object to any or all of such claims in
the Bankruptcy Case or to direct WGI to make such objection, (d) Raytheon
will have the right to negotiate, compromise and settle any or all of such
claims (or to direct WGI to control the proceedings with respect to such
claims) as and to the extent provided in Article 3 of the Disaffiliation Tax
Sharing Agreement and (e) WGI's failure to perform its obligation under
subsection (b) of this Section 8.2, shall excuse Raytheon from its
indemnification obligations under the Disaffiliation Tax Sharing Agreement
with respect to the affected Taxes to the extent that such failure affects
the rights of Raytheon with respect to such Taxes. Except as specifically
modified or supplemented by this Section 8.2, the Disaffiliation Tax Sharing
Agreement shall remain in full force and
effect and shall exclusively govern all matters that are the subject thereof.
Section 8.3 INSURANCE CLAIMS. The WGI Parties agree to use
commercially reasonable efforts to use rights available under the Bankruptcy
Code to reduce the exposure of each or either of the WGI Parties or the
Raytheon Parties under various insurance arrangements. The WGI Parties and
the Raytheon Parties agree to work in good faith to resolve their respective
rights and obligations under various insurance policies. The Plan shall not
create rights in or to insurance coverage. Raytheon shall have all rights in
and to insurance proceeds and insurance generally, except that with respect
to CGL and professional liability policies procured by WGI under its
corporate program, Raytheon shall have only such rights with respect to
insurance as the Parties may mutually agree for projects and contracts that
involve Rejected Projects, subject to the first sentence of Section 5.5(b).
Section 8.4 WARRIOR RUN. With regard to the Warrior Run
Receivable, the WGI Parties agree to remit to Raytheon, from and upon the
release of the proceeds by the owner of the Warrior Run project to WGI, net
of actual out-of-pocket costs of collection from the date hereof, an amount
equal to 32% of the aggregate of the net amount released to WGI from its
share and any other recoveries obtained by WGI from CE/Alstom relating to the
Warrior Run project, provided that Raytheon's net share shall not exceed
$4,160,000 (i.e. capped at 32% of $13 million) of such recoveries. WGI will
keep Raytheon reasonably informed of the status of its litigation with
CE/Alstom and will permit Raytheon to monitor such litigation at its own
expense.
Section 8.5 NONDISPARAGEMENT. Press releases respecting the
resolution of their disputes and with respect to the settlement embodied in
this Agreement will be mutually agreed upon. The Raytheon Parties and the WGI
Parties agree not to (and agree to cause their respective senior officers,
directors and advisors not to) disparage the other party or its senior
officers, directors or advisors with or to the media.
Section 8.6 SCOPE OF AGREEMENT. Except with respect to Rejected
Projects, this Agreement does not extend to (a) matters in the insolvency
proceeding of Washington International B.V. that is now pending in The Hague,
Netherlands, except with respect to documents, insurance claim information
and other information, if any, under the care, custody, or control of the WGI
Parties, which shall be treated as if the projects involved were Rejected
Projects, or (b) WGI Parties that are not Debtors but that have obligations
supported by Support Agreements. The Parties acknowledge that WILLC is
subject to a winding up petition filed in the
United Kingdom and is deemed to be insolvent under English law, accordingly,
WGI will not be able to require it to provide support on its projects and WGI
agrees to provide support on Saltend and Damhead pursuant to the Services
Agreement through another entity.
Section 8.7 STATUS AND EFFECT OF STOCK PURCHASE AGREEMENT, ETC.
Upon the Effective Date of the Plan, the rejected Stock Purchase Agreement,
the rejected Receivables Termination Agreement and the rejected Project
Completion Agreements entered into pursuant to the Stock Purchase Agreement,
shall thereupon be terminated and have no further force or effect, right or
obligation, among the parties thereto or otherwise. All matters arising
therefrom as among the parties thereto, including but not limited to, the
Raytheon Claims, the Raytheon Asserted Claims, and the Debtors' fraudulent
transfer adversary action referred to herein, and any obligations,
entitlements, benefits or burdens thereunder, shall be governed, superseded,
or replaced, as the case may be, by this Agreement, the Plan, and the
Raytheon Settlement Provisions and Documents.
Section 8.8 ORDER REGARDING STIPULATED RAYTHEON ISSUES AND
STIPULATION AND ORDER REGARDING CONFIDENTIALITY. Upon the Effective Date, the
Order Regarding Stipulated Raytheon Issues and the Stipulation and Order
Regarding Confidentiality entered in the Bankruptcy Case shall be vacated.
Section 8.9 CERTAIN CONTRACT CHANGES. Unless consented to in
writing by Raytheon, the Debtors may not at any time after November 20, 2001,
assume and assign, reject, amend or modify any executory contract or
unexpired lease to which Raytheon is a party or with respect to which there
is a related Support Agreement, other than with respect to ordinary course
change orders or as set forth in the Plan or any Motion filed with the
Bankruptcy Court on or prior to November 20, 2001.
Section 8.10 NO THIRD PARTY BENEFICIARIES. Nothing in this
Agreement, express or implied, is intended to confer, nor does it confer,
upon any third party any rights, remedies, benefits, obligations, or
liabilities under or by reason of this Agreement, except as expressly
provided herein. For the avoidance of doubt, no Raytheon Party by virtue of
this Agreement is assuming or creating any obligations or duties to parties
not signatory hereto.
Section 8.11 ROCHE CAROLINA. With regard to the Roche Carolina
litigation, Raytheon and WGI agree that such litigation and all related
claims constitute both a Raytheon Controllable Claim and a Rejected Project
Claim and,
accordingly, Raytheon has the right to settle the case or pursue the current
appeal, in each case at Raytheon's cost, and Raytheon has the right to retain
any and all proceeds should the appeal be successful. In addition, Raytheon
agrees that it will pay on behalf of WGI any settlement or non-appealable
final judgment.
Section 8.12 NO ADMISSION OF LIABILITY. Each of the Parties
understands and agrees that this Agreement constitutes a compromise and
settlement of claims that at all times have been disputed and denied. Nothing
contained herein, or otherwise related to this compromise and settlement of
these disputed claims, shall ever constitute or be construed to be an
admission of liability or damages on the part of any Person or Persons
released hereunder. This settlement represents a compromise among the Parties
reflecting their mutual desire to terminate all disputes among them and to
avoid the substantial burden of continued litigation.
Section 8.13 ACCESS; RECORDS, ETC.. (a) RAYTHEON ACCESS. During
normal business hours and upon reasonable notice, the WGI Parties will permit
Raytheon to have reasonable access to and examine and make copies of all
records, contracts, subcontractor and vendor-related documentation, claims
evaluations, lists, payment records, project correspondence, bids and
documents relating to the Rejected Projects, receivables being collected by
Raytheon or litigation involving Support Agreements or other alleged
liability against the Raytheon Parties. Photocopying will, at Raytheon's
option, but after consultation with WGI and giving consideration to any undue
disruption to WGI's business, be conducted on-site at WGI's offices or
offsite using a third party vendor, in accordance with procedures reasonably
satisfactory to WGI. With regard to access to WGI's Princeton, New Jersey
offices, (i) access shall be given during normal business hours, and (ii)
Raytheon's personnel shall be subject to WGI's prior approval, such approval
not to be unreasonably withheld or delayed. In addition to those personnel
subject to the foregoing approval process, WGI expressly will pre-approve and
permit the persons listed on Schedule 1 hereto to have access to the
Princeton facilities. All requests for books, access, personnel or otherwise
will be made of the Person designated by WGI to receive such requests, who
shall be accessible and available.
(b) TURNOVER OF RECORDS. The WGI Parties will not destroy any files
or records related to matters of concern to Raytheon, and identified to WGI
within sixty (60) days after the date of this Agreement, without giving at least
thirty (30) days' prior notice to Raytheon. Upon receipt of notice, Raytheon may
require that the records involved be delivered to it (subject to attorney client
privileges or work product doctrines, which materials shall be retained and not
destroyed by the WGI Parties and otherwise shall be treated as provided in
Section 7.3), at its expense, or notify WGI that it will pay the cost of storing
and maintaining those books and records (including costs of moving the books and
records to a location under Raytheon's control), but Raytheon will be required
to pay such costs only to the extent that WGI is not required by applicable law
or its own internal policies or
practices to retain such files or records.
(c) PERSONNEL. Each of the WGI Parties will provide the Raytheon
Parties with reasonable access to their personnel, to the extent it still
employs them, necessary or helpful for matters with respect to which WGI is
obligated to assist Raytheon. Each of the WGI Parties also will cooperate
with Raytheon in locating personnel who are no longer employed by it.
(d) REIMBURSEMENT OF COSTS. Raytheon will reimburse WGI for its
Allowable Costs incurred and for the actual time spent by WGI's employees,
for the matters referred to in (a)-(c) above, including without limitation,
the reasonable Allowable Costs of inside counsel and administrative
personnel, plus a fee of 7.5% of such Allowable Costs (but without
duplication of other payments); PROVIDED, HOWEVER, in no event will WGI be
required to provide legal services to Raytheon. To the extent practicable
this support will be funded in advance against a budget pursuant to
procedures similar to those described in Section 5.4(e). To the extent
advance funding is not practicable, amounts shall be paid within thirty days
after submissions of monthly invoices in reasonable detail. To the extent
possible, the payment by Raytheon of any amounts shall not prejudice its
rights to contest the invoice amount against the ultimate third party payee.
Section 8.14 LEGAL ADVICE. Each of the Parties has received
independent legal advice from its attorneys with respect to this Agreement.
Each of the Parties agrees that it will never deny the validity of this
Agreement on the ground that it did not have the advice of counsel generally
or advice of counsel in the aforementioned litigation.
Section 8.15 AGREEMENT BINDING. (a) SIGNATORIES. Each of
Raytheon and RECI represents and warrants to the WGI Parties and each of WGI,
WGI Ohio and the other WGI Parties that are signatories hereto represents and
warrants to the Raytheon Parties as follows: the execution and delivery of
this Agreement have been duly and validly authorized by all necessary
corporate, partnership or similar action on behalf of such Party, and this
Agreement constitutes the legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with their terms, subject as to
enforcement to bankruptcy, insolvency or similar laws affecting creditors'
rights generally or by equitable principles relating to the availability of
remedies.
(b) RAYTHEON PARTIES. Raytheon represents and warrants that it is
duly authorized and empowered by each of the other Raytheon Parties (other than
RECI) to execute and deliver this Agreement on behalf of each such Raytheon
Party and that this Agreement constitutes the legal, valid, binding and
enforceable obligation of each such Raytheon Party to the same extent as if
such Raytheon Party executed and delivered this Agreement on its own behalf.
In the event of any breach of the foregoing representation and warranty,
Raytheon and RECI jointly and severally agree to indemnify and hold harmless
the WGI Parties from and against any and all liabilities, losses, damages and
expenses of every nature and character arising out such breach.
(c) WGI PARTIES. WGI represents and warrants that it is duly
authorized and empowered by each of the other WGI Parties (other than WGI
Ohio and the other WGI Parties that are signatories hereto) to execute and
deliver this Agreement on behalf of each such WGI Party and that this
Agreement constitutes the legal, valid, binding and enforceable obligation of
each such WGI Party to the same extent as if such WGI Party executed and
delivered this Agreement on its own behalf. In the event of any breach of the
foregoing representation and warranty, WGI and WGI Ohio jointly and severally
agree to indemnify and hold harmless the Raytheon Parties from and against
any and all liabilities, losses, damages and expenses of every nature and
character arising out such breach.
Section 8.16 GOVERNING LAW; JURISDICTION AND CONSENT TO SUIT.
(a) This Agreement shall be subject to and construed in accordance with the
laws of the State of New York notwithstanding any conflict of laws provision
in the State of New York or elsewhere that would dictate the application of
the law of any other jurisdiction.
(b) The Raytheon Parties, the WGI Parties, and the Committee
agree that the United States Bankruptcy Court for the District of Nevada
shall have exclusive jurisdiction over all disputes relating to the Plan and
the exhibits to the Plan to the fullest extent provided under applicable law,
including, without limitation, issues under this Agreement and the Raytheon
Settlement Provisions and Documents, until the closing of the Bankruptcy
Case, except that all disputes relating solely to the Services Agreement
shall be resolved as provided in Section 18 of the Services Agreement.
(c) To the extent that the United States Bankruptcy Court for the
District of Nevada no longer has jurisdiction over the Plan or any related
matter, the Parties agree that any proceeding to enforce this Agreement shall
be brought in the courts of the State of New York or any federal court
sitting therein.
(d) Each of the Parties hereby waives any present or future
objection to such venue, and irrevocably consents and submits unconditionally
to the exclusive jurisdiction for itself and in respect of any of its
property of any such court. Each of the Parties further irrevocably waives
any claim that such court is not a convenient forum for any such proceeding.
Each of the Parties agrees that any service of process, writ, judgment or
other notice of legal process shall be deemed and held in every respect to be
effectively served up on it if sent to such Party in the manner and at the
address specified in Section 8.19. Nothing herein shall affect the right of
any Party to serve process in any manner permitted by applicable law.
(e) EACH OF THE PARTIES HERETO HEREBY EXPRESSLY WAIVES ANY RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS UNDER THIS AGREEMENT OR UNDER ANY AMENDMENT, INSTRUMENT OR DOCUMENT
DELIVERED OR WHICH MAY BE IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH
OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT
AND AGREES THAT THE FINDER OF FACT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
THE TRIAL JUDGE AND NOT A JURY.
(f) Each Party hereby irrevocably and unconditionally waives, to
the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section 8.16
any special, exemplary, punitive or consequential damages.
Section 8.17 ENTIRE AGREEMENT. This Agreement, the Services
Agreement, the Mutual Release and other documents and agreements expressly
referred to herein represent the entire agreement between the Parties hereto
relating to the subject matter hereof, except to the extent express reference
is made herein to any other agreement or writing, and may be amended or
varied only in writing by duly authorized representatives of the Parties.
Notwithstanding the foregoing, except as modified by and to the extent
provided in Section 8.2, the Disaffiliation Tax Sharing Agreement shall
exclusively govern all matters that are the subject thereof. The Parties
expressly waive all provisions contained in any past agreement, including,
without limitation, the Stock Purchase Agreement, or correspondence that
negates, limits, modifies, supplements, extends or conflicts with the
provisions hereof. The language used in this Agreement will be deemed to be
the language chosen by the Parties to express their mutual intent, and no
rule of strict construction will be applied against any Party.
Section 8.18 ASSIGNMENT. Subject to Section 9-406 of the Uniform
Commercial Code (as revised), no Party shall be entitled to transfer or
assign its rights and liabilities provided for herein to any third Person
without the written approval from all other Parties, except that any Raytheon
Parties may assign to a
Support Agreement Surety some or all of its rights under this Agreement, the
Separate Agreements or the Services Agreement, as applicable, with respect to
a project covered by or subject to a Support Agreement.
Section 8.19 NOTICES. Any and all notices pursuant to this
Agreement can be validly given by (a) hand or courier, (b) telefax (with
confirming hard copy to be send by internationally recognized overnight or
expedited delivery service) or (c) internationally recognized overnight or
expedited delivery service that can produce evidence of delivery, in each
case to Parties at the addresses provided below or at any other address
specified by the Party involved. Alterations to any address must be conveyed
to the other Parties in writing to become effective.
If to RAYTHEON COMPANY or any other Raytheon Party, to:
General Counsel
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxxx, Esq.
Xxxxxxx Xxxx LLP
0000 00xx Xx., X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
If to WASHINGTON GROUP INTERNATIONAL, INC. or any other WGI Party, to:
Xxxxxxx X. Xxxxx, Esq.
Washington Group International, Inc.
Xxxxxxxx Xxxxxxx Xxxxx
000 Xxxx Xxxx.
Xxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxx, Esq.
Xxxxxxx X. Xxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
If to OFFICIAL UNSECURED CREDITORS' COMMITTEE, to:
Xxxxxxx X. Xxxxxx, Esq.
Xxxxx Xxxxxx, Esq.
Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
Section 8.20 HEADINGS AND CAPTIONS. The headings and captions of
the various Articles and Sections of this Agreement are for convenience of
reference only and shall not modify, define or limit any of the terms or
provisions thereof.
Section 8.21 COUNTERPARTS. This Agreement may be signed in
multiple originals and/or using counterpart signature pages. All such
multiple originals shall constitute but one and the same document.
IN WITNESS WHEREOF, the Parties hereto have caused their duly
authorized representatives to execute this Agreement on the day and year
first written above.
RAYTHEON COMPANY, a Delaware corporation, on its WASHINGTON GROUP
own behalf and on behalf of all Raytheon Parties INTERNATIONAL, INC., a Delaware corporation, on
(except RECI) its own behalf and on behalf of all WGI Parties
(to the extent they are not signatories hereto)
/s/ Xxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxx
By:_____________________________ By:________________________________
Name: Xxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxx
Title: Senior Vice Pres. Title: Senior Vice President
and General Counsel and General Counsel
RAYTHEON ENGINEERS & CONSTRUCTORS INTERNATIONAL, WASHINGTON GROUP
INC., a Delaware corporation INTERNATIONAL, INC., an Ohio corporation
/s/ Xxxxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxxxxx Xx. By:_______________________________________
By:___________________________________________ Name: Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxxxxx Xx. Title: Senior Vice President
Title: Senior Vice President, Secretary and General Counsel
and General Counsel
MIDDLE EAST HOLDINGS LIMITED (F/K/A RAYTHEON RAYTHEON ARCHITECTS, LTD.
ENGINEERS & CONSTRUCTORS MIDDLE EAST LIMITED)
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxx
By:__________________________________________ By:__________________________________________
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx
Title: Assistant Secretary Title: Assistant Secretary
RAYTHEON-EBASCO PAKISTAN LTD. RAYTHEON ENGINEERS & CONSTRUCTORS (IRELAND) LTD.
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxx
By:__________________________________________ By:__________________________________________
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx
Title: Vice President and Title: Vice President and
General Counsel General Counsel
XXXXXXX CATALYTIC CORPORATION WASHINGTON INTERNATIONAL LLC (F/K/A RAYTHEON
ENGINEERS & CONSTRUCTORS UK LTD.)
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxx
By:__________________________________________ By:__________________________________________
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx
Title: Vice President and Title: Vice President and
Assistant Secretary General Counsel
WASHINGTON-CATALYTIC, INC. WASHINGTON DEMILITARIZATION
(F/K/A RAYTHEON-CATALYTIC, COMPANY (F/K/A RAYTHEON
INC.) DEMILITARIZATION COMPANY
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxx
By:__________________________________________ By:__________________________________________
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx
Title: Vice President and Title: Assistant Secretary
Assistant Secretary
WASHINGTON ENGINEERING QUALITY SERVICES WASHINGTON QUALITY PROGRAMS COMPANY (F/K/A
CORPORATION (F/K/A RAYTHEON ENGINEERING QUALITY RAYTHEON QUALITY PROGRAMS COMPANY)
SERVICES CORPORATION
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxx
By:__________________________________________ By:__________________________________________
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx
Title: Vice President and Title: Vice President and
General Counsel General Counsel
WGCI, INC. (F/K/A RAYTHEON CONSTRUCTORS
INTERNATIONAL, INC.)
/s/ Xxxxxxx X. Xxxxx
By:________________________________
Name: Xxxxxxx X. Xxxxx
Title: Vice President and
General Counsel
SEEN AND CONSENTED TO AND
AGREED AS TO SECTIONS 1.3, 1.4, 2, 5, 7.1(b) AND 8.16(b):
OFFICIAL COMMITTEE OF UNSECURED CREDITORS
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Title: Counsel
--------------------------
LIST OF EXHIBITS AND SCHEDULES
EXHIBIT A Mutual Releases (see Sections 1.2(c), 7.1)
SCHEDULE A1 Exceptions to Release (see Exhibit A)
SCHEDULE A2 Outstanding Support Agreements (see Exhibit A)
EXHIBIT B Raytheon LOC (see Section 3.2)
EXHIBIT C Conditions to Draws under Letters of Credit (see Section 3.2)
EXHIBIT D Services Agreement (see definition of Services Agreement)
SCHEDULE 1 Client Parties with Access (see Section 8.13(a))
SCHEDULE 2 Assigned Claims (see definition of Assigned Claims)
SCHEDULE 3 Non-Debtor Subsidiaries (see definition of Non-Debtor Subsidiaries)
SCHEDULE 4 Subsidiary Debtors (see definition of Subsidiary Debtors)
APPENDIX I
DEFINITIONS
This is Appendix I to the
Settlement Agreement (the "AGREEMENT")
dated as of the 23rd day of January, 2002, by and among Raytheon Company, a
company incorporated under the laws of the state of Delaware ("RAYTHEON"),
Raytheon Engineers & Constructors International, Inc., a company incorporated
under the laws of the state of Delaware ("RECI," and, together with Raytheon and
its wholly-owned or controlled subsidiaries and affiliates, the "RAYTHEON
PARTIES"), Washington Group International, Inc., a company incorporated under
the laws of the state of Delaware, a debtor in the Bankruptcy Case, and
effective on the date hereof, the Reorganized WGI ("WGI"), Washington Group
International, Inc., a company incorporated under the laws of the state of Ohio
("WGI OHIO," and together with WGI, and its wholly-owned or controlled
subsidiaries and affiliates, and including the Reorganized Debtors, "THE WGI
PARTIES") and the Official Committee of Unsecured Creditors and the Plan
Committee, for so long as each is constituted and acting in the Bankruptcy Case
as defined below (the "COMMITTEE"). Unless otherwise indicated, all SECTION and
EXHIBIT References in this APPENDIX are to SECTIONS of and EXHIBITS to the
Agreement.
A. DEFINED TERMS. As used in the Agreement, various
projects are referred to using their common and conventional names
(usually an owner name or project location), and unless the context
requires a different meaning, the following terms have meanings
indicated below:
"ADMINISTRATIVE CLAIMS" means a Claim for payment of an administrative expense
of a kind specified section 503(b) or 1114(e)(2) of the Bankruptcy Code and
entitled to priority pursuant to section 507(a)(1) of the Bankruptcy Code,
including, but not limited to, (a) the actual, necessary costs and expenses,
incurred after the Petition Date, of preserving the Estates and operating the
businesses of the Debtors, including wages, salaries, or commissions for
services rendered after the commencement of the Bankruptcy Case, (b)
Professional Fee Claims, (c) all fees and charges assessed against the Estates
under 28 U.S.C. Section 1930 and (d) all Allowed Claims that are entitled to be
treated as Administrative Claims pursuant to a Final Order of the Bankruptcy
Court under section 546(c)(2)(A) of the Bankruptcy Code.
"ALLOWABLE COSTS" means any current Labor Costs, Out-of-Pocket Costs, and Taxes,
that are required to be paid to WGI under this Agreement for Reimbursable
Services.
"ALLOWED CLAIM" means an Estate Claim or any portion thereof (a) that has been
allowed by a Final Order, or (b) as to which, on or by the Effective Date, (i)
no proof of claim has been filed with the Bankruptcy Court and (ii) the
liquidated and noncontingent amount of which is scheduled, other than an Estate
Claim that is scheduled at zero, in an unknown amount, or as disputed, or (c)
for which a proof of claim in a liquidated amount has been timely filed with the
Bankruptcy Court pursuant to the Bankruptcy Code, any Final Order of the
Bankruptcy Court or other applicable bankruptcy law, and as to which either (i)
no objection to its allowance has been filed within the periods of limitation
fixed by the Plan, the Bankruptcy Code or by any order of the Bankruptcy Court
or (ii) any objection to its allowance has been settled or withdrawn, or has
been denied by a Final Order, or (d) that is expressly allowed in a liquidated
amount in the Plan.
"ALLOWED CLASS 7 CLAIM" means a Class 7 Claim that becomes, but only to the
extent that it is, an Allowed Claim.
"ASSIGNED CLAIMS" means those certain Estate Claims transferred or assigned to
any Raytheon Party by third parties as set forth on Schedule 2 hereto and any
Estate Claims acquired from Mitsubishi, provided that with respect to any such
Estate Claims acquired from Mitsubishi, Raytheon agrees to limit such Estate
Claims to $100 million.
"ASSUMED PROJECTS" has the meaning set forth in Section 1.2(b), and, for certain
limited purposes, in Section 6.1(a).
"ASSUMED PROJECTS SUPPORT AGREEMENTS" has the meaning set forth in Section 3.1.
"BANKRUPTCY CASE" means the jointly administered Chapter 11 cases of the Debtors
related to those certain voluntary bankruptcy petitions filed on May 14, 2001,
by WGI and certain of its affiliates in the Bankruptcy Court.
"BANKRUPTCY CODE" means the Bankruptcy Reform Act of 1978, as amended, codified
at 11 U.S.C. Sections 101-1330.
"BANKRUPTCY COURT" means the United States Bankruptcy Court for the District of
Nevada or such other court as may have jurisdiction over the Bankruptcy Case.
"CGL" means comprehensive general liability insurance policies.
"CE/ALSTOM" means ALSTOM Power, Inc., a corporation organized under the laws of
the state of Delaware, successor to Combustion Engineering, Inc.
"CLAIMS ALLOWANCE PROCESS" has the meaning set forth in Section 5.6(a).
"CLASS 7 CLAIM" means an Estate Claim classified under the Plan in Class 7.
"COMMITTEE" means the Official Unsecured Creditors' Committee and the Plan
Committee, as successor thereto (as provided under the Plan), for so long as
such committee is constituted and acting in the Bankruptcy Case.
"COMPLETION SERVICES" has the meaning set forth in the Services Agreement.
"CONFIDENTIAL INFORMATION" has the meaning set forth in Section 7.4(a).
"CONFIRMATION ORDER" means the order dated December 21, 2001, entered by the
Bankruptcy Court confirming the Plan.
"DEBTOR WGI" means WGI as debtor-in-possession in the Bankruptcy Case.
"DEBTORS" means, individually, Debtor WGI and each of the Subsidiary Debtors,
and collectively, Debtor WGI and the Subsidiary Debtors, including in their
capacity as debtors-in-possession pursuant to sections 1107 and 1108 of the
Bankruptcy Code, and as reorganized hereunder.
"DESIGNATED PROJECTS" means the Xxxxxx, Posven, Ratchaburi and Saltend projects
described in Annex A-1 to the Services Agreement.
"DISAFFILIATION TAX SHARING AGREEMENT" means the Disaffiliation Tax Sharing
Agreement, dated as of April 14, 2000, by and among Raytheon, RECI and WGI f/k/a
Xxxxxxxx Xxxxxxx Corp.
"DISCOVERY MATERIALS" has the meaning set forth in Section 7.3(a).
"EFFECTIVE DATE" means the business day on which all conditions to the
consummation of the Plan have been satisfied or waived as provided by the Plan
and is the effective date of the Plan.
"ESTATE(S)" means, individually, the estate of each Debtor in the Bankruptcy
Case, and, collectively, the estates of all Debtors in the Bankruptcy Case,
created pursuant to section 541 of the Bankruptcy Code.
"ESTATE CLAIM" has the meaning set forth in the preamble.
"EXCLUDED MATTERS" means matters arising under the Ilijan or Red Oak Project
Completion Agreements, the preceding interim arrangements for those projects,
the Sithe Services Agreement and the Puerto Plata Agreement.
"FINAL ORDER" means an order or judgment of the Bankruptcy Court, or other court
of competent jurisdiction, as entered on the docket in the Bankruptcy Case, the
operation or effect of which has not been stayed, reversed, or amended and as to
which order or judgment (or any revision, modification or amendment thereof) the
time to appeal or seek review or rehearing has expired and as to which no appeal
or petition for review or rehearing was filed or, if filed, remains pending.
"IDAHO LITIGATION" means any litigation pending in the state and federal courts
of the state of Idaho involving the Parties.
"ILIJAN PROJECT COMPLETION AGREEMENTS" means, collectively, the Project
Completion Agreement (Construction) dated as of November 16, 2001, by and among
Raytheon, Mitsubishi Corporation and REOL, and the Project Completion Agreement
(Supply) dated as of November 16, 2001, by and among Raytheon, Mitsubishi
Corporation and United Engineers International, Inc.
"INDEPENDENT ACCOUNTING FIRM" means Xxxxxxx X. Xxxxxx and
Associates.
"LABOR COSTS" means the labor costs, including general and administrative costs,
incurred by WGI with respect to any Reimbursable Services pursuant hereto, and
calculated in accordance with the rates and charges referred to in the Services
Agreement.
"LIEN" means a charge against or interest in property to secure payment of a
debt or performance of an obligation.
"MITSUBISHI" has the meaning set forth in Section 2.2.
"MUTUAL RELEASE" means the mutual release in the form attached hereto as Exhibit
A.
"NET PROCEEDS" means, with respect to any Rejected Project (other than a
Designated Project), proceeds remaining, if any, after the Raytheon Parties have
been reimbursed from any recoveries with respect to such Rejected Project for
(i) all costs incurred by the Raytheon Parties in defending or prosecuting
claims, including all costs paid by the Raytheon Parties to any of the WGI
Parties pursuant to this Agreement, the Services Agreement, or the Separate
Agreements, with respect to such Rejected Project, (ii) any amounts paid or
drawn under or in connection with Raytheon Support
Agreements, with respect to such Rejected Project, (iii) outside counsel and
consultant costs and other out of pocket expenses incurred with respect to
such Rejected Project, and (iv) reasonably allocated internal Raytheon costs
including, without limitation, the reasonable costs of inside counsel and
administrative personnel incurred with respect to such Rejected Project.
"NON-DEBTOR SUBSIDIARIES" means, collectively, the direct and indirect
subsidiaries of WGI listed on Schedule 3 hereto, which are not parties to the
Bankruptcy Case and thus are not Debtors.
"NON-RELEASING ENTITY" has the meaning set forth in Section 7.1(a).
"OUT-OF-POCKET COSTS" means the out-of-pocket costs, including payments to
vendors and subcontractors, incurred by WGI with respect to any Reimbursable
Services pursuant hereto, and calculated in accordance with the rates and
charges referred to in the Services Agreement, but excluding costs of vendors
and subcontractors that the Raytheon Parties will retain directly and pay
directly, as set forth in any agreement relating to scope, budget and related
matters as provided in Section 5.4(e).
"PERSON" means any individual, corporation, partnership, limited liability
company, association, joint-stock company, trust, unincorporated organization,
joint venture, government or political subdivision or agency thereof, or any
other entity.
"PETITION DATE" means May 14, 2001, the date on which the Debtors filed their
petitions for relief commencing the Bankruptcy Case.
"PLAN" means the Second Amended Joint Plan of Reorganization of
Washington Group International, Inc., et al., as amended and
modified, and having been confirmed under and in accordance with
the Confirmation Order, and all exhibits and schedules annexed
thereto or referenced therein.
"POSSIBLE PROJECT CLAIMS" has the meaning set forth in Section 5.4(c).
"PROJECT CLAIMS" has the meaning set forth in Section 5.4(a).
"PROJECT CLAIMS LITIGATION" has the meaning set forth in Section 5.4(b)(i).
"PROJECT CLAIMS MATTER" has the meaning set forth in Section 5.4(b)(i).
"PROFESSIONAL" means any professional employed in the Bankruptcy Case pursuant
to section 327 or 1103 of the Bankruptcy Code or otherwise and any professionals
seeking compensation or reimbursement of expenses in connection with the
Bankruptcy Case pursuant to section 503(b)(4) of the Bankruptcy Code.
"PROFESSIONAL FEE CLAIM" means a claim of a Professional for compensation or
reimbursement of costs and expenses relating to services incurred after the
Petition Date and prior to and including the Effective Date.
"PUERTO PLATA AGREEMENT" means that certain letter agreement, dated as of
January 9, 2001, among WGI, Raytheon and Lexington Insurance relating to the
Puerto Plata Project.
"RAYTHEON" has the meaning set forth in the PREAMBLE.
"RAYTHEON ACTIONS" means case xx. XX XX 0000000X brought in the
District Court of the Fourth Judicial District of the State of
Idaho, in and for the County of Ada, captioned Washington Group
International, Inc. v. Raytheon Company and Raytheon Engineers &
Constructors International, Inc.,
and any related actions, suits, countersuits or otherwise.
"RAYTHEON ASSERTED CLAIMS" means any Estate Claims arising out of the Raytheon
Actions, or otherwise, asserted by the Raytheon Parties against any of the
Debtors or any of the Subsidiary Debtors as reflected in the proofs of claim
filed by Raytheon, including, but not limited to, claims for contribution,
indemnification or subrogation. The term shall not include any Assigned Claims.
"RAYTHEON CLAIMS" means all claims or causes of action of the Debtors or the
Non-Debtor Subsidiaries against the Raytheon Parties, whether arising out of the
Raytheon Actions or otherwise, whether asserted directly or derivatively,
including any claims and causes of action arising under sections 542, 544, 547,
548, 550 or any other section of the Bankruptcy Code (including, without
limitation, the Debtors' pending fraudulent transfer adversary proceeding in the
Bankruptcy Case), except for any claims relating to asbestos liabilities.
"RAYTHEON DISPUTES" has the meaning set forth in the preamble.
"RAYTHEON LOC" has the meaning set forth in Section 3.2.
"RAYTHEON XXXX" means the name "Raytheon" and all tradename, trademark and/or
service xxxx rights therein.
"RAYTHEON PARTIES" has the meaning set forth in the PREAMBLE.
"RAYTHEON SETTLEMENT PROVISIONS AND DOCUMENTS" means this Agreement, the Mutual
Release, the form and issuer of the Raytheon LOC, the Services Agreement, and
the provisions of the Plan and Confirmation Order relating to this settlement.
"RECI" has the meaning set forth in the PREAMBLE.
"RED OAK PROJECT COMPLETION AGREEMENTS" means the Red Oak Project Completion
Agreement dated as of November 16, 2001, by and between Raytheon and WGI Ohio.
"REIMBURSABLE SERVICES" means any services provided by the WGI Parties pursuant
to Sections 5.4(b), 5.4(d) and 8.13.
"REJECTED PROJECTS" has the meaning set forth in Section 5.4(a).
"REJECTED PROJECT CLAIMS" has the meaning set forth in Section 5.5(a).
"REOL" means Raytheon-Ebasco Overseas Ltd., a company incorporated
under the laws of the state of Delaware.
"REORGANIZED DEBTORS" means, individually, Reorganized WGI and any Reorganized
Debtor, as defined in the Plan, and, collectively, all Reorganized Debtors, on
or after the Effective Date.
"REORGANIZED WGI" means reorganized WGI or its successor, on and after the
Effective Date.
"SEPARATE AGREEMENTS" means the Sithe Services Agreement, the Red Oak Project
Completion Agreement, the Ilijan Project Completion Agreements and the Puerto
Plata Agreement.
"SEPARATE PROJECTS" has the meaning set forth in Section 5.2.
"SERVICES AGREEMENT" means the Services Agreement for Consulting and
Professional Services attached hereto as Exhibit D.
"SITHE SERVICES AGREEMENT" means the Agreement for Consulting and Professional
Services, dated as of March 20, 2001, by and between, Raytheon and WGI Ohio.
"SPA INFORMATION" has the meaning set forth in Section 7.2(a).
"STOCK PURCHASE AGREEMENT" has the meaning set forth in the PREAMBLE.
"SUBSIDIARY DEBTORS" means the direct and indirect subsidiaries of WGI set forth
on Schedule 4 hereto, each of which is a Debtor.
"SUPPORT AGREEMENT" has the meaning set forth in the preamble.
"SUPPORT AGREEMENT SURETY" means any corporate surety that has issued a bond
that is a Support Agreement or any other Person providing support for, or to
which any Raytheon Party is liable under, a Support Agreement.
"TAXES" means any taxes estimated to be levied, collected, assessed or imposed
by any government or government agency in connection with WGI's performance of
the Reimbursable Services, including, without limitation, any VAT, levies,
imposts, duties, charges, fees, deductions or withholdings of whatever nature,
including, unless otherwise specified in any agreement regarding scope, budget
and related matters as provided in Section 5.4(d), the cost of tax equalization
of WGI's employees (but not including the income taxes of WGI or its employees)
payable by WGI in connection with the performance of Reimbursable Services
hereunder.
"WARRIOR RUN RECEIVABLE" means the accounts receivable from AES Warrior Run with
the meaning as set forth in Section 8.4.
"WGI" has the meaning set forth in the preamble.
"WGI OHIO" has the meaning set forth in the preamble.
"WGI PARTIES" has the meaning set forth in the preamble.
"WILLC" means Washington International LLC, a Delaware limited liability
company, which was the subject of a winding up proceeding under English law.
B. INTERPRETATION. In this Agreement, unless a clear
contrary intention appears:
(i) the singular number includes the plural
number and vice versa;
(ii) reference to any Person includes such Person's successors
and assigns, and reference to a Person in a particular capacity excludes such
Person in any other capacity or individually;
(iii) reference to any gender includes each other gender;
(iv) reference to any agreement, document or instrument means
such agreement, document or instrument as amended, supplemented or modified and
in effect from time to time in accordance with the terms thereof; and
(v) reference to any applicable law means such applicable law
as amended, modified, codified, replaced or reenacted, in whole or in part, and
in effect from time to time, including rules and regulations promulgated
thereunder and reference to any section or other provision of any applicable law
means that provision of such applicable law from time to time in effect and
constituting the substantive amendment, modification, codification, replacement
or reenactment of such section or other provision.
