EXHIBIT 10.40
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
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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.
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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
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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.
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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
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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
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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
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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)
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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
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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,
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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
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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.
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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.
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(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
14
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
15
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
16
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.
17
(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
18
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
19
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
20
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
21
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
22
the date hereof only. Unless Raytheon agrees otherwise in a writing that
specifically refers to this Section 8.1(c), the WG1 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
23
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
24
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
25
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.
26
(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
27
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
28
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
29
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
30
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.
31
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 WASHINGTON GROUP
corporation, on its own behalf and on INTERNATIONAL, INC., a Delaware corporation,
behalf of all Raytheon Parties (except RECI) on its own behalf and on behalf of all WGI Parties
(to the extent they are not signatories hereto)
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------- ---------------------------------------------
Name: Xxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxx
Title: Senior Vice Pres. Title: Senior Vice President
& General Counsel and General Counsel
RAYTHEON ENGINEERS & CONSTRUCTORS WASHINGTON GROUP
INTERNATIONAL, INC., INTERNATIONAL, INC., an Ohio
a Delaware corporation corporation
By: /s/ Xxxxxxx X. Xxxxxxxx Xx. By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------- --------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx Xx. Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President, Title: Senior Vice President
Secretary and General Counsel and General Counsel
MIDDLE EAST HOLDINGS LIMITED RAYTHEON ARCHITECTS, LTD.
(F/K/A RAYTHEON ENGINEERS & CONSTRUCTORS
MIDDLE EAST LIMITED)
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------- --------------------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx
Title: Assistant Secretary Title: Assistant Secretary
RAYTHEON-EBASCO PAKISTAN LTD. RAYTHEON ENGINEERS & CONSTRUCTORS
(IRELAND) LTD.
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------- --------------------------------------------
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.)
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------- --------------------------------------------
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
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------- --------------------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx
Title: Vice President and Title: Assistant Secretary
Assistant Secretary
WASHINGTON ENGINEERING QUALITY WASHINGTON QUALITY PROGRAMS
SERVICES CORPORATION (F/K/A COMPANY (F/K/A RAYTHEON
RAYTHEON ENGINEERING QUALITY QUALITY PROGRAMS COMPANY)
SERVICES CORPORATION
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------- --------------------------------------------
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.)
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and
General Counsel
34
SEEN AND CONSENTED TO AND
AGREED AS TO SECTIONS 1.3, 1.4, 2, 5, 7.l(b) and 8.16(b):
OFFICIAL UNSECURED CREDITORS' COMMITTEE
By: /s/ [ILLEGIBLE]
--------------------------------------------
Title: COUNSEL
LIST OF EXHIBITS AND SCHEDULES
EXHIBIT A Mutual Releases (see Sections 1.2(c), 7.1)
Schedule Al 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)
36
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.
2
"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.
3
"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.
4
"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).
5
"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.
6
"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.
7
EXHIBIT A
MUTUAL RELEASES/1/
A. THE DEBTORS' RELEASE
1. For good and adequate consideration, the receipt of
which is hereby acknowledged, except as provided below in subparagraphs 2 and 3,
the Debtors and the Reorganized Debtors and each of their undersigned
subsidiaries (but expressly excluding any non-Debtor entity whose obligations
are supported by a Support Agreement), affiliates, officers and directors (the
"Debtor Releasing Parties"), on behalf of themselves, the Estates, and any other
person or entity that could assert a claim through them or a claim that is in
any way derivative of their interests, hereby release and forever discharge
Raytheon Company and each of its subsidiaries and affiliated entities
(collectively, "Raytheon"), together with each of their present and former
officers, directors, employees, agents, and professionals (collectively, the
"Raytheon Releasees") from any and all claims, demands, obligations, damages,
controversies, suits, liabilities, actions, causes of action, judgments,
executions, garnishments, or debts of any kind whatsoever, whether known or
unknown, accrued or not accrued, direct or indirect, liquidated or unliquidated,
in law or in equity, which any Debtor Releasing Party had, now has or can have
based upon any act or omission occurring prior to the Effective Date
(collectively "Claims"), including without limitation those Claims described in
the Raytheon Actions and in the adversary proceeding bearing Docket No. 01-3084
in the United States Bankruptcy Court for the District of Nevada. Without
limiting the foregoing in any way, this Release includes any and all a) Claims
or claims that have been or could be or could have been asserted by or
----------
/1/ Terms not defined herein have the meaning given to them in the
Settlement Agreement dated as of January 23, 2002, among Raytheon
Company, Washington Group International, Inc., the Official Unsecured
Creditors' Committee, and the other Parties as defined therein.
on behalf of the Debtor Releasing Parties or by or on behalf of any Estate or
that are in any way derivative of their interests and b) Claims that are the
property of any Estate.
2. This Release does not in any way impair or apply to any
Claims or claims that have arisen or may arise in the future under the
agreements listed in Schedule Al./2/
3. This Release does not in any way impair or apply to any
past, current or future claims of the Debtor Releasing Parties against parties
other than the Raytheon Releasees.
4. Each of the Debtor Releasing Parties, for, and on behalf
of, itself, himself or herself (as applicable), represents and warrants that (i)
no promise or inducement not expressed herein has been made, (ii) this Release
is executed without reliance upon any statement or representation of any party
released hereunder or anyone acting on its or their behalf, not expressed herein
and (iii) the Release is duly authorized and the Releasing Party accepts full
responsibility therefor.
B. RAYTHEON RELEASE
1. For good and adequate consideration, the receipt of
which is hereby acknowledged, except as provided in subparagraphs 2 and 3,
Raytheon Company ("Raytheon") and each of the undersigned subsidiaries,
affiliates, officers and directors (the "Raytheon Releasing Parties"), on behalf
of themselves and any other person or entity that could assert a claim through
them or in any way derivative of their interests, hereby release and forever
discharge the Debtors and the Reorganized Debtors together with each of their
subsidiaries and affiliated entities (but expressly excluding any non-Debtor
entity whose obligations are supported by a Support Agreement), and each of
their present or former officers, directors, employees, agents, and
professionals (collectively, the
----------
/2/ This Schedule is intended only to list Separate Agreements, Tax
Agreement, Settlement Agreement, Services Agreement and any commercial
arrangements currently in place unrelated to the Stock Purchase
Agreement that are not being rejected by WGI.
1
"Debtor Releasees") from any and all claims, demands, obligations, damages,
controversies, suits, liabilities, actions, causes of action, judgments,
executions, garnishments, or debts of any kind whatsoever, whether known or
unknown, direct or indirect, accrued or not accrued, liquidated or unliquidated,
in law or in equity, which any Raytheon Releasing Party had, now has or can have
based upon any act or omission occurring prior to the Effective Date.
2. This Release does not in any way impair or apply to a)
any Claims or claims that have arisen or may arise in the future under the
agreements listed on Schedule A1 and b) rights of contribution, reimbursement,
subrogation against the Reorganized Debtors under outstanding Assumed Projects
Support Agreements, listed for the convenience of the Parties on Schedule A2, or
any letters of credit, bonds or guarantees provided by Raytheon or its
subsidiaries in substitution for such Assumed Projects Support Agreements.
3. This Release does not in any way impair or apply to any
past, current or future claims of the Raytheon Releasing Parties against parties
other than the Debtor Releasees.
4. Each of the Raytheon Releasing Parties for, and on
behalf of, itself, himself or herself (as applicable), represents and warrants
that (i) no promise or inducement not expressed herein has been made, (ii) this
Release is executed without reliance upon any statement or representation of any
party released hereunder or anyone acting on its or their behalf, not expressed
herein and (iii) the Release is duly authorized and the Releasing Party accepts
full responsibility therefor.
This Release shall be construed and enforced in accordance with
the laws of the State of New York.
WHEREFORE, the undersigned parties or, in the case of
corporations, their duly authorized representatives, have executed this Mutual
Release on this the ______ day of _____________, 2001.
2
[signature pages]
3
Agreement Regarding
Releases From Individuals
Set forth below for each of WGI and Raytheon are lists of
individuals that are or were officers or directors of such respective entities
or their affiliates (WGI's officers, directors or employees being referred to as
"WGI Persons" and Raytheon officers, directors or employees being referred to as
"Raytheon Persons") that will execute releases coextensive with the company
releases to be granted; provided that the WGI Persons' and Raytheon Persons'
releases shall explicitly exclude non-derivative claims they may have against
any present or former professionals of WGI or Raytheon, respectively; provided
further that such claims against such professionals may only be pursued if the
WGI Person or Raytheon Person is pursuing such claims in response to a suit
brought against him or her by a third party. In addition, set forth below are
lists of persons that Raytheon and WGI, respectively, shall use reasonable best
efforts to have become Raytheon Persons and WGI Persons, respectively.
Notwithstanding anything herein to the contrary, WGI Persons Xx. Xxxxx, Xx.
Xxxxxxx and Xx. Xxxxxx shall not be required to release any claims arising out
of their employment by Raytheon or its affiliates in such capacity, including
arising under their retention/severance agreements with Raytheon, and the
releases granted by Raytheon pursuant to the Settlement Agreement shall exclude
any defenses or counterclaims with respect to such claims.
WGI Persons Raytheon Persons
Xxxxxxx X. Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx X. Xxxxx Xxxxx Xxxxx
Xxxxx X. X'Xxxxxxx Xxxx Xxxxxxx
Xxxx X. Xxxxxxxx Xx Xxxxxx
Xxxxx X. Xxxxxxxxx Xxxx Xxxxxx
Xxxxxx X. Xxxxxx Xxx Xxxxx
Xxxxxx Xxxxxxxxxx Xxxxxxx Xxxxxxxx
Xxxxx Xxxxxxxxxx Xxxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxx Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx Xxx Xxxxxxx
Xxxxxxx Xxxxxxx Xxxx Xxxxxx
Xxxx X'Xxxxx
Xxxxx Xxxxxxx
Xxxx Xxxxx
Persons that WGI should use Persons that Raytheon should use
reasonable Best Efforts to become reasonable Best Efforts to become
WGI Persons Raytheon Persons
Xxxxxxx Xxxxxxx Xxx Xxxx
Xxxxx Xxxxxxx
4
Both WGI and Raytheon hereby agree that any disputes related to
the subject matter hereof that cannot be resolved by the parties shall be
resolved by the Bankruptcy Court and may be heard on an expedited basis, such
that the WGI Plan Effective Date shall not be delayed, and both parties shall
abide by the Bankruptcy Court's determination of the appropriate resolution of
any such dispute.
5
SCHEDULE A1
EXCEPTIONS TO RELEASE
I. Settlement Documents
1. Settlement Agreement, dated as of January 23, 2002, by and among
Raytheon Company ("Raytheon"), Raytheon Engineers & Constructors
International, Inc. ("RECI"), Washington Group International, Inc., a
Delaware corporation ("WGI-Delaware"), Washington Group International,
Inc., an Ohio corporation ("WGI-Ohio") and the Committee (as such term
is defined therein).
2. Agreement for Consulting and Professional Services, dated as of January
23, 2002, by and among Raytheon, RECI and WGI-Ohio.
3. Mutual Release
4. Disaffiliation Tax Sharing Agreement
II. WGI Executory Contracts with Raytheon Company (As listed In Schedule G
to WGI Plan) that Are Being Assumed
-------------------------------------------------------------------------------------
CONTRACT PARTY CONTRACT DATE
-------------------------------------------------------------------------------------
RAYTHEON COMPANY EGYPTIAL SPARROW SUPPORT 10/26/1998
-------------------------------------------------------------------------------------
RAYTHEON COMPANY FRD PREPARATION - X BAND RADAR (XBR) 10/5/1998
PROGRAM
-------------------------------------------------------------------------------------
RAYTHEON COMPANY CONTRACT NO. 23298 GIST BROCADES NOBLA
PHARMACEUTICAL PLANT
-------------------------------------------------------------------------------------
RAYTHEON COMPANY CONTRACT NO. 23550 23550 XXXXXX &
NARVER/RAYTHEON JV
-------------------------------------------------------------------------------------
RAYTHEON SERVICE COMPANY XXXXXX-O&M SUPPORT SERVICES SECONDED
SERVICES
-------------------------------------------------------------------------------------
RAYTHEON SUPPORT ENVIRONMENTAL SUPPORT FOR TSSC PROGRAM 10/19/1998
SERVICES COMPANY
-------------------------------------------------------------------------------------
RAYTHEON SYSTEMS COMPANY SITE SURVEY LOGISTICS SUPT FACIL 4/10/2000
RUSSIAN SRDP
-------------------------------------------------------------------------------------
RAYTHEON SYSTEMS COMPANY UEWR - PROPOSAL EFFORT 3/8/1999
-------------------------------------------------------------------------------------
RAYTHEON SYSTEMS COMPANY TACTICAL WEATHER RADAR SITE SURVEY 2/7/2000
-------------------------------------------------------------------------------------
6
--------------------------------------------------------------------------------
RAYTHEON SYSTEMS COMPANY RTSC POLAR SERVICES
--------------------------------------------------------------------------------
III. PROJECT COMPLETION RELATED AGREEMENT THAT ARE NOT BEING RELEASED
Red OaK:
1. Red Oak Interim Payment Agreement dated as of June 20, 2001, by and
among Raytheon, WGI-Ohio, and AES Red Oak, LLC, as amended [Last
amendment, Amendment No. 13 dated as of November 9, 2001]
2. Red Oak Project Completion Agreement dated as of November 16, 2001, by
and among Raytheon and WGI-Ohio
3. WGI-Delaware Guaranty - Guaranty dated as of November 16, 2001, made by
WGI-Delaware in favor of Raytheon.
Ilijan:
1. Ilijan - Letter Agreement (Construction) dated as of May 22, 2001, by
and among Raytheon, Mitsubishi Corporation ("Mitsubishi"), Raytheon
Ebasco Overseas, Ltd. ("Contractor") and WGI-Ohio. [Last amendment,
Amendment No. 14 dated as of November 9, 2001]
2. Ilijan - Letter Agreement (Supply) dated as of May 22, 2001, by and
among Raytheon, Mitsubishi, United Engineers International, Inc.
("Supplier") and WGI-Ohio. [Last amendment, Amendment No. 14 dated as of
November 9, 2001]
3. Ilijan - Letter Agreement (Supplemental) dated as of May 22, 2001, by
and among Raytheon, Mitsubishi, Contractor and WGI-Ohio.
4. Ilijan - Project Completion Agreement (Construction) dated as of
November 16, 2001, by and among Raytheon, Mitsubishi and Contractor.
5. WGI-Delaware Guaranty - Guaranty dated as of November 16, 2001, made by
WGI-Delaware in favor of Raytheon and Mitsubishi.
6. WGI - Ohio Guaranty - Guaranty dated as of November 16, 2001, made by
WGI-Delaware in favor of Raytheon, Mitsubishi.
7. Ilijan - Project Completion Agreement (Supply) dated as of November 16,
2001, by and among Raytheon, Mitsubishi and Supplier.
8. WGI-Delaware Guaranty - Guaranty dated as of November 16, 2001, made by
WGI-Delaware in favor of Raytheon and Mitsubishi.
9. WGI-Ohio Guaranty - Guaranty dated as of November 16, 2001, made by
WGI-Delaware in favor of Raytheon and Mitsubishi.
10. Daelim Agreement, dated as of November 16, 2001, by and among, Raytheon,
Mitsubishi, Contractor and Daelim Philippines, Inc.
Sithe Fore River/Mystic
1. Agreement for Consulting and Professional Services, dated as of March
20, 2001, by and between, Raytheon and WGI-Ohio.
Puerta Plata
1. Letter agreement, dated January 9, 2001 among WGI-Delaware, Raytheon and
Lexington Insurance Company.
7
8
SCHEDULE A2
OUTSTANDING PROJECT SUPPORT AGREEMENTS*
-------------------------------------------------------------------------------------------------------------
PROJECT TYPE SUPPORT AGREEMENT BENEFICIARY/OBLIGEE NOTES
-------------------------------------------------------------------------------------------------------------
AMPCO Guarantee RECI-117 Atlantic Methanol Production Assumed
Company LLLC
-------------------------------------------------------------------------------------------------------------
AMPCO L/C Bank of Atlantic Methanol Production Assumed
America-970839 Company LLLC
-------------------------------------------------------------------------------------------------------------
AMPCO L/C Bank of Atlantic Methanol Production Assumed
America-970840 Company LLLC
-------------------------------------------------------------------------------------------------------------
DTE Sparrows Point Guarantee RECI-122-I DTE Sparrows Point, LLC Assumed
-------------------------------------------------------------------------------------------------------------
AES Warrior Run Guarantee RTN-1516 AES Warrior Run, Inc. Assumed
-------------------------------------------------------------------------------------------------------------
AES Warrior Run Guarantee RTN-1518 Combustion Engineering Inc. Assumed
-------------------------------------------------------------------------------------------------------------
SAN XXXXX Guarantee RTN-2260 San Xxxxx Power Corporation Assumed
-------------------------------------------------------------------------------------------------------------
SAN XXXXX L/C Commerzbank-00000000 San Xxxxx Power Corporation Assumed; In
the process
of being
replaced
-------------------------------------------------------------------------------------------------------------
SAN XXXXX L/C Commerzbank-00000000 San Xxxxx Power Corporation Assumed; In
the process
of being
replaced
-------------------------------------------------------------------------------------------------------------
XXXX XXXXX Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
UMATILLA Guarantee XXX-0000 Xxxxx xx Xxxxxx Assumed
-------------------------------------------------------------------------------------------------------------
UMATILLA Surety Xxxx Xxxxxxx-000-000-000 Xxxxxx Xxxxxx xx Xxxxxxx Assumed
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
F.E. XXXXXX XXX Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
XXXX XXXXX Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
XXXX XXXXXXX Xxxxxx Xxxx Xxxxxxx-000000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
XXXX XXXXX XX Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
FT. XXX XXXXXXX Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
VICKSBURG DO 0000 Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
VICKSBURG DO 0000 Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
VICKSBURG DO 0000 Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
VICKSBURG DO 0000 Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
XXXXXXXX XXX Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
ANNISTAN, XXX Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
XXXXXXXX XXXXX Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
CABARRUS XXX Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
9
-------------------------------------------------------------------------------------------------------------
PROJECT TYPE SUPPORT AGREEMENT BENEFICIARY/OBLIGEE NOTES
-------------------------------------------------------------------------------------------------------------
XXXX XXXXX Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
FORT XXXXX DO 0000 Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
FORT XXXXXXX XXXX Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
FT. XXXXX KANSAS Surety Bond Liberty?- United States of America Assumed
T002573940203
-------------------------------------------------------------------------------------------------------------
LOUISVILLE, XX Xxxxxx Xxxx Xxxxxxx?-0000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
XXXXXXXX-XXX Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
VICKSBURG DO 000 Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
VICKSBURG DO 000 Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
VICKSBURG DO 000 Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
VICKSBURG DO 000 Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
VICKSBURG DO 000 Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
VICKSBURG DO 000 Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
VICKSBURG DO 0000 Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
VICKSBURG DO 0000 Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
VICKSBURG DO 0000 Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
VICKSBURG DO 0000 Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
VICKSBURG DO 0000 Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
VICKSBURG DO 0000 Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
VICKSBURG DO 0000 Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
VICKSBURG DO 0000 Xxxxxx Xxxx Xxxxxxx-00000000 Xxxxxx Xxxxxx of America Assumed
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
ADECCO XXXXXX XXXXX L/C Nat'l Adecco Xxxxxx Xxxxx Limited Assumed?
Westminster-207722
-------------------------------------------------------------------------------------------------------------
Princeton, NJ Leases Guarantee XXX-0000 Xxxxxxxx 506 Associates, Carnegie Assumed in
508 Associates and Carnegie 510 part,
Associates LLC rejected in
part
-------------------------------------------------------------------------------------------------------------
10
-------------------------------------------------------------------------------------------------------------
PROJECT TYPE SUPPORT AGREEMENT BENEFICIARY/OBLIGEE NOTES
-------------------------------------------------------------------------------------------------------------
BIRMINGHAM SUBLEASE Guarantee RECI-108 Rust International Inc. Assumed in
part,
rejected
in part
-------------------------------------------------------------------------------------------------------------
XXXXXXX XXXXXX Guarantee RECI-111-I ITOCHU International Inc., ITOCHU Non-debtor
IOS/NCS Rail Car Incorporated and contract
Kinkisharyo (USA) Inc. being
treated as
assumed
-------------------------------------------------------------------------------------------------------------
XXXXXX BERGEN Guarantee RTN-2041A New Jersey Transit Corporation Non-debtor
IOS/NCS contract
being
treated as
assumed
-------------------------------------------------------------------------------------------------------------
XXXXXXX XXXXXX Guarantee RTN-2042 New Jersey Transit Corporation Non-debtor
IOS/NCS contract
being
treated as
assumed
-------------------------------------------------------------------------------------------------------------
XXXXXXX XXXXXX Surety Bond Liberty-12001901 New Jersey Transit Corporation Non-debtor
IOS/NCS contract
being
treated as
assumed
-------------------------------------------------------------------------------------------------------------
XXXXXX BERGEN Surety Bond Liberty-12001902 New Jersey Transit Corporation Non-debtor
IOS/NCS contract
being
treated as
assumed
-------------------------------------------------------------------------------------------------------------
XXXXXXX XXXXXX O&M Guarantee RTN-2409 New Jersey Transit Corporation Non-debtor
contract
being
treated as
assumed
-------------------------------------------------------------------------------------------------------------
ALABAMA Surety Bond Liberty (RE&C)- State of Alabama Notary bond
12003219
-------------------------------------------------------------------------------------------------------------
ALABAMA - Xxxxxx Surety Bond Liberty (Rust)- State of Alabama Notary xxxx
Xxxxx 12003746
-------------------------------------------------------------------------------------------------------------
XXXXXXXX XXXXX AL Surety Bond Liberty (RE&C)- State of Alabama Notary bond
12001869
-------------------------------------------------------------------------------------------------------------
XXXXXX XXXX-XXXX Surety Bond Liberty(RE&C)- State of Washington Notary bond
12003180
-------------------------------------------------------------------------------------------------------------
State of Utah Guaraniee RTN-2399 State of Utah Rust contractors
guar-xxxxx
-------------------------------------------------------------------------------------------------------------
WYOMING Surety Bond CAN Reclamation- State of Wyoming, Wyoming no
5233734 Department of longer requires
Environmental Quality surety. However.
CAN still
waiting for
confirmation
from State
- open
-------------------------------------------------------------------------------------------------------------
JOB XXXXXX Surety Bond Liberty - 12003769 Xxx Xxxxxxx Litigation-
related appeal
bond.
-------------------------------------------------------------------------------------------------------------
CHAMPION INTL Surety Bond Liberty (Rust)- May no longer
12001768 1 be active Bond
in lieu of
retainage.
-------------------------------------------------------------------------------------------------------------
COCA COLA Surety Bond Liberty - 12002477 May no longer
FEMSA be active
Performance
bond
-------------------------------------------------------------------------------------------------------------
11
-----------------------------------------------------------------------------------------------------
PROJECT TYPE SUPPORT AGREEMENT BENEFICIARY/OBLIGEE NOTES
-----------------------------------------------------------------------------------------------------
COCA COLA FEMSA Surety Bond Liberty-12002478 May no longer
be active
Advance
payment bond
----------------------------------------------------------------------------------------------------
COCA COLA FEMSA Surety Bond Liberty-12002479 May no
longer be
active Social
Sec bond
----------------------------------------------------------------------------------------------------
PETROQUIMICA-MEX Surety Bond Liberty-(RE&C)- May no longer
000-000-000 be active
Warranty bond
----------------------------------------------------------------------------------------------------
WESTINGHOUSE ELEC Surety Bond Liberty May no longer
(RE&C)-12001845 be active
Performance
and payment
bond
----------------------------------------------------------------------------------------------------
*This schedule lists certain guarantees, letters of credit and surely bonds
previously issued or obtained by Raytheon Company ("Raytheon") or Raytheon
Engineers & Constructors International, Inc. ("RECI"). Nothing on this schedule
constitutes an acknowledgement or admission by Raytheon or RECI that it is
obligated under any of the listed support agreements. This schedule also may not
list all of the applicable support agreements. A support agreement's absence
from this schedule does not constitute an acknowledgment or admission by
Raytheon or RECI that such support agreement should not be treated in the same
manner as the other items included herein. In addition, WGI to confirm that
surety bonds and guarantees relate to an Assumed Project. If not, to be deleted
from schedule. The two letters of credit associated with the San Xxxxx Project
are currently in the process of being replaced with letters of credit from a
different financial institution.
12
EXHIBIT C
CONDITIONS TO DRAWS UNDER LETTERS OF CREDIT
(a) Raytheon shall not submit a draw under the Raytheon
LOC in connection with its making a payment unless and until:
1. Raytheon or RECI shall have made payment under, for the
reimbursement of or in connection with an Assumed Project Support Agreement;
2. Raytheon shall have made commercially reasonable efforts
to provide WGI with notice of such payment (in advance of any payment, if
practicable) and, unless in Raytheon's judgment doing so could in any way
prejudice Raytheon or RECI, permit WGI a period of three(3) business days to
reimburse Raytheon in full for such payment, however, that its failure to comply
with this paragraph 2 shall not constitute a basis for preventing a drawing
under the Raytheon LOC; and
3. Raytheon or RECI shall not have received payment, in
full, for such payment, from WGI.
Notwithstanding the foregoing conditions, Raytheon may make draws under the
Raytheon LOC if, as and when WGI, (i) fails to pay its debts generally as they
come due, (ii) files a voluntary petition in bankruptcy or has an involuntary
petition in bankruptcy filed against it (not withdrawn or dismissed with thirty
(30) days) under the U.S. Bankruptcy Code or any similar provision of foreign
law, (iii) undertakes an assignment for the benefit of creditors or (iv) fails
to extend the expiry date of the Raytheon LOC for not less than six (6) months
by the twentieth (20th) day prior to its scheduled expiry date.
(b) In addition, Raytheon shall be permitted to draw
under the Raytheon LOC for amounts paid by it or RECI for the fees and expenses
related to maintaining an Assumed Project Support Agreement, provided, however,
that Raytheon shall have provided WGI with an invoice setting forth in
reasonable detail the amounts to be paid and WGI shall not have reimbursed
Raytheon for such amount within fifteen (15) days of receipt of such invoice.
EXHIBIT D
SERVICES AGREEMENT
AGREEMENT FOR CONSULTING AND
PROFESSIONAL SERVICES
AMONG
RAYTHEON COMPANY,
RAYTHEON ENGINEERS & CONSTRUCTORS
INTERNATIONAL, INC.
AND
WASHINGTON GROUP INTERNATIONAL, INC.
THIS AGREEMENT ("Agreement") for Consulting and Professional Services
(together with the Attachments hereto) is dated and effective as of January 23,
2002 (the "Effective Date"), and is hereby made and entered into by and among
Raytheon Company, a Delaware corporation ("Raytheon"), Raytheon Engineers &
Constructors International, INC., a Delaware corporation ("RECI" and
collectively with Raytheon, "Client"), each having a place of business located
at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000, and Washington Group
International, INC., an Ohio corporation (hereinafter "Consultant" or
"Washington") having a place of business located at 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxxxx 00000.
WHEREAS, on May 14, 2001, Consultant and its ultimate corporate parent,
Washington Group International, Inc., a Delaware corporation ("WGI Delaware"),
filed voluntary bankruptcy petitions (the "Bankruptcy Filing") in the United
States Bankruptcy Court (the "Bankruptcy Court") for the District of Nevada;
WHEREAS, Client and WGI Delaware and certain of their subsidiaries have
entered into that certain Settlement Agreement dated as a January 23, 2002 (the
"Settlement Agreement"), pursuant to which the parties thereto have agreed to
resolve certain outstanding claims;
WHEREAS, pursuant to the Settlement Agreement, the parties hereto agreed
to enter into this Agreement;
WHEREAS, pursuant to that certain Agreement For Consulting And
Professional Services between Raytheon and Consultant, dated as of March 20,
2001 (as amended to date, the "Sithe Services Agreement"), Raytheon and
Consultant entered into certain arrangements with respect to which Consultant
has provided and will continue to provide certain services relating to two
projects located in Massachusetts, known as the "Sithe Mystic" and Sithe Fore
River" projects;
WHEREAS, pursuant to that certain Project Completion Agreement, dated as
of November 16, 2001 (the "Red Oak PCA"), between Raytheon and the Consultant,
Consultant agreed to provide certain services in connection with the Red Oak
project located in Red Oak, New Jersey;
WHEREAS, pursuant to (i) that certain Project Completion Agreement,
dated as of November 16, 2001 (the "Ilijan Supply PCA", between Raytheon,
Mitsubishi Corporation and a subsidiary of Consultant, United Engineers
International, Inc. ("UEI"), and (ii) that certain Project Completion Agreement,
dated as of November 16, 2001 (the "Ilijan Construction PCA" and together with
the Ilijan Supply PCA, the "Ilijan PCAs"), between Raytheon, Mitsubishi
Corporation and a subsidiary of Consultant, Raytheon Ebasco Overseas Limited
("REOL"), UEI and REOL agreed to provide certain services to Raytheon in
connection with the Ilijan project located in the Philippines;
-1-
WHEREAS, pursuant to a letter agreement, dated January 9, 2001 ("Puerto
Plata Agreement"), among WGI Delaware, Raytheon and Lexington Insurance relating
to the Puerto Plato project, WGI Delaware and certain of its Affiliates are
performing certain work relating to the SD boiler;
WHEREAS, Client or its affiliates have provided letters of credit,
corporate guarantees, or surety bonds (collectively, "Support Agreements") in
connection with a number of projects, including the Saltend, Damhead, Xxxxxx,
Posven, Ratchaburi, Tallahassee, Acme, Ezhou, Egypt Electric, NACIC and Clear
Alaska projects described in Annex A-1; these projects and any other project
with respect to which (i) Client has provided Support Agreements and (ii)
Consultant or WGI Delaware or another one of their respective subsidiaries
(collectively referred to as "Affiliates" of Consultant) has rejected contracts
as part of the Bankruptcy Filing, is referred to herein as a "Project"; however,
the term "Project" as used in this Agreement does not include the Ilijan, Red
Oak, Sithe Mystic, Sithe Fore River or Puerto Plata projects, as those are the
subject of separate arrangements between Consultant and its Affiliates and
Client, and does not include any project that was being performed by Washington
International B.V., including those described in Annex A-2 hereto;
WHEREAS, Client wishes to retain Consultant to perform certain services
from time to time as requested by Client;
WHEREAS, Washington is willing to undertake the performance of such
services only as provided for in the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein set forth, the parties agree as follows:
1. DEFINED TERMS
Capitalized terms used without definition in this Agreement have the
meanings given to such terms in the Settlement Agreement.
In addition, as used in this Agreement, the following terms have the
following meanings:
"Accrued Costs" means any Labor Costs, Out-of-Pocket Costs or Taxes
payable to Consultant pursuant hereto which have not been paid by Client.
"Allowable Costs" means any current Labor Costs, Out-of-Pocket Costs,
and Taxes, and any Accrued Costs, that are required to be paid to Consultant
hereunder. Unless otherwise specified in any applicable Work Order, for purposes
of determining Allowable Costs, any personnel assigned to overseas Projects will
charge for all of their time spent during their overseas deployment to the
applicable Project, unless they actually work on the matters not subject to this
Agreement.
"Labor Costs" means the labor costs including general and administrative
costs, incurred by Consultant with respect to any Completion Services pursuant
hereto, and calculated in accordance with the rates and charges referred to in
Section 12(a).
"Out-of-Pocket Costs" means the out-of-pocket costs, including payments
to vendors and subcontractors, incurred by Consultant with respect to any
Completion Services pursuant hereto, and calculated in accordance with the rates
and charges referred to in Section 12(a), but excluding costs of
2
vendors and subcontractors that Client will retain directly and pay directly, as
set forth in the applicable Work Order.
"Parties" means the Client and the Consultant.
"Raytheon Parties" means the Client and their subsidiaries and
affiliates.
"Separate Agreements" means the Sithe Services Agreement, the Red Oak
PCA, the Ilijan PCAs and the Puerto Plata Agreement.
"Separate Projects" means the Sithe Mystic, Sithe Fore River, Red Oak,
Ilijan and Puerto Plata projects.
"Tax Agreement" means the Disaffiliation Tax Sharing Agreement, dated as
of April 14, 2000, between Raytheon and WGI Delaware.
"Taxes" means any taxes estimated to be levied, collected, assessed or
imposed by any government or government agency in connection with Consultant's
performance of the Completion Services, including, without limitation, any gross
receipts, franchise, sales, use, registration, excise, stamp, occupation,
license and other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings of whatever nature (including, interest, penalties, or additions to
tax in respect of the foregoing, where (i) Client has failed to pay any of the
foregoing or (ii) Client has failed to timely provide advance funding requested
by Consultant, and Consultant is required to pay the foregoing, in accordance
with the terms of this Agreement), and including, unless otherwise specified in
an applicable Work Order, the cost of tax equalization of Consultant's employees
(but not including the income taxes of Consultant or its employees) payable by
Consultant in connection with the performance of its obligations hereunder.
"WGI Parties" means the Consultant and its subsidiaries and affiliates.
"Work Order" has the meaning set forth in Section 2(d) of this
Agreement.
In addition, the following terms as used in this Agreement are defined
elsewhere in this Agreement in the sections noted below:
Defined Terms Section Where Defined
AAA 18(b)(i)
Affiliates Preamble
Bankruptcy Court Preamble
Bankruptcy Filing Preamble
Client Preamble
Completion Services 2(a)
Consultant Preamble
Effective Date Preamble
Fee 12(a)
Ilijan Construction PCA Preamble
Ilijan PCAs Preamble
Ilijan Supply PCAs Preamble
Indemnitees 6(b)
Losses 4(a)
3
Partial Termination 15(c)
Project Preamble
Project Agreements 2(a)
Project Liaisons 17(a)
Puerto Plata Agreement Preamble
Raytheon Preamble
RECI Preamble
Red Oak PCA Preamble
REOL Preamble
Replacement Contractor 2(g)
Routine Close-Out Services 2(a)
Settlement Agreement Preamble
Sithe Services Agreement Preamble
Specified Obligations 3(a)
Support Agreements Preamble
UEI Preamble
Washington Preamble
WGI Delaware Preamble
WGI Guaranty 19
Work Order 2(d)
Work Order Liaisons 2(d)
2. SERVICES TO BE RENDERED
a) Consultant agrees to provide personnel under the direction of
Client to undertake and perform certain services as and to the
extent requested by Client from time to time in accordance with
the terms and conditions herein. The services will generally
include services to complete all or some of the former
obligations of Consultant and its Affiliates to third parties
under the rejected contracts relating to the Projects
("Completion Services"), including (i) completion of physical
work required and (ii) any routine project close-out activities
such as obtaining final payments, resolving commercial issues
and disputes with clients, subcontractors and vendors,
confirming warranty completion, closing out contracts and
subcontracts and obtaining final releases, and making foreign
statutory filings, but excluding providing any support in
connection with any litigation or arbitration except as provided
in Section 4(b) (with the Completion Services referred to in
clause (ii) sometimes referred to as "Routine Close-Out
Services"). For the avoidance of doubt, Consultant shall not be
responsible under this Agreement for any performance guarantees,
emissions guarantees, schedule guarantees, and any other
guarantee or warranty set forth in the engineering, procurement
and/or construction or other agreements relating to the
applicable Project (the "Project Agreements").
b) The Completion Services to be performed shall be generally as
described in Schedule 2(b) attached hereto. From time to time,
Client and Consultant may modify or expand the Completion
Services by a mutually agreed upon written amendment to this
Agreement. Consultant will perform the Completion Services under
Client's direction and control as more fully described in a Work
Order (defined below) for each Project.
c) The Completion Services will be performed by the employees of
Consultant and its Affiliates selected by Consultant and
approved by Client in advance. To the extent commercially
4
practicable Consultant will furnish employees to provide
Completion Services that have prior experience and knowledge
with respect to the applicable Project. Notwithstanding the
provisions of this Section 2, Consultant personnel shall not be
required to provide any Completion Services in Pakistan or other
foreign country in connection with any Project unless (i)
Consultant is reasonably satisfied regarding safety and security
in Pakistan or such other foreign country, and (ii) in the case
of Pakistan only, Consultant is satisfied, in its sole and
absolute discretion, regarding its exposure to legal liability
to judgments or other legal process. In the event that
Consultant is not reasonably satisfied regarding safety and
security in Pakistan or such other foreign country, Consultant
shall notify Client of such concerns, and the parties shall meet
to discuss such concerns, and to, in good faith, enter into an
alternative arrangements.
d) In the event that Client requests Consultant to provide
Completion Services with respect to a Project, Client will
notify Consultant of the initial scope of Completion Services
requested and the parties will meet (either in person or by
conference call) to discuss the Completion Services to be
provided and the appropriate staffing for the Completion
Services. Within one week after such meeting, Client and
Consultant will prepare and agree upon a work order that refers
to this Agreement and describes the initial scope of Completion
Services to be provided with respect to the Project and the
initial staffing (a "Work Order"). The Work Order for any
Project will also designate the principal contacts for either
party with respect to such Project (the "Work Order Liaisons").
Unless otherwise agreed by the Client and the Consultant, each
Work Order shall generally be in the form of Schedule 2(d). On
any Project the applicable Work Order shall set forth all budget
requirements (including the requirement for any periodic
estimates), staffing plans, schedule estimates, payment terms,
funding mechanics and reconciliation procedures to be applied on
such Project, in the event the budget, payment and
reconciliation procedures will be different from those set forth
in Section 12(b). In the case of any conflict between the terms
of any Work Order and the general terms contained herein, the
terms of any Work Order shall control.
e) The Completion Services also shall include provision of craft
labor for each Project from time to time as requested by Client
and as agreed to by the Parties in a Work Order. Such craft
labor is excluded from the requirements of Section 2(c) above
but any hiring of craft labor is subject to the prior approval
of Client. Craft labor will be reimbursed at cost including all
applicable fringe benefits, payroll taxes and insurance.
f) Notwithstanding anything else to the contrary in this Agreement,
Consultant shall recommend to Client, and the applicable Work
Order shall reflect, the employees and number and type of craft
labor necessary to perform Completion Services. Client shall be
solely responsible for determining such level of effort
necessary to perform the Completion Services in accordance with
the related Work Order.
g) In the event that Client terminates Consultant's services with
respect to any Project, Client shall not solicit for employment
any of the employees identified in the applicable Work Order as
providing Completion Services for such Project, and Client shall
use commercially reasonable efforts to cause any proposed
contractor retained to replace Consultant (a "Replacement
Contractor") to similarly not solicit such employees for the
period beginning upon the date of this Agreement and, (i) in the
case of a termination where such termination follows
Consultant's receipt of a notice of and failure to timely cure
or commence and continue reasonable efforts to timely cure any
condition or event which in the reasonable
5
judgment of Client is likely to cause a material delay in the
applicable Project schedule or cause any category of costs in
the applicable Project budget to be materially exceeded or
materially adversely affect the execution of the Completion
Services, ending upon the date five (5) days from such notice,
and (ii) in the case of any other termination, ending upon the
date 120 days from the notice of such termination.
h) In the event that because a particular Project had been
previously performed by an Affiliate of Consultant or for any
other reason, in order to effectuate the intent of this
Agreement performance of any obligations of Consultant under
this Agreement are required to be performed by any of
Consultant's Affiliates, the Consultant will cause such
Affiliate to perform the applicable obligations under this
Agreement, and the Client will accept performance by such
Affiliate. The Parties will describe in the applicable Work
Order whether or not performance by an Affiliate of Consultant
is anticipated to be required.
3. RESPONSIBILITY FOR COMPLETION SERVICES
a) Consultant warrants to perform the Completion Services in
accordance with that degree of care and skill ordinarily
exercised by members of the engineering and construction
profession existing as of the date this Agreement became
effective and in accordance with the performance standards that
previously applied to the performance by Consultant and its
Affiliates of their obligations under the applicable Project
Agreements, which shall be set forth in each Work Order (in each
case the "Specified Obligations"); provided, however, that the
only remedy hereunder and Consultant's only liability, unless
Consultant or one of its Affiliates has performed with willful
misconduct or gross negligence, for the failure by Consultant or
one of its Affiliates to perform in accordance with the
Specified Obligations shall be, at Client's option, (i)
termination pursuant to this Agreement or (ii) Consultant or one
of its Affiliates shall re-perform all non-complying work on a
cost-reimbursable basis, in accordance with the terms and
conditions hereof; provided, however, no Fee or profit of any
kind shall be payable by Client with respect to such
re-performance work. Notwithstanding the foregoing, Consultant
or one of its Affiliates shall not be responsible under this
Agreement for any performance guarantees, emissions guarantees,
schedule guarantees, and any other guarantee or warranty set
forth in any Project Agreements.
b) Because Consultant and its Affiliates and their employees are
under Client's direction and control, Consultant and its
directors, officers, employees, agents and Affiliates shall have
no liability to Client or to third parties for injuries or
alleged injuries to persons (including death), or for damages or
alleged damages to property, including Client's property and any
Project owner's property, arising out of or in connection with
these Completion Services, except to the extent arising out of
Consultant's or one of its Affiliate's gross negligence or
willful misconduct.
4. CONSULTANT'S ADDITIONAL OBLIGATIONS.
a) Consultant's Indemnity. In performing its obligations under this
Agreement, Consultant shall be responsible for, and shall
indemnify, defend and hold Client and its subsidiaries and all
directors, officers, employees and/or agents of the foregoing
harmless against, any and all claims, liabilities, expenses,
damages, losses, costs, judgments, demands and suits (including
reasonable attorneys' fees) ("Losses") arising from the gross
negligence or willful misconduct of Consultant or its Affiliates
in the performance or nonperformance of
6
Consultant's obligations under this Agreement; provided,
however, that in any case in which Consultant uses commercially
reasonable efforts to perform and comply with its obligations
hereunder and takes all reasonable steps to abide by the
directions of Client and the terms of this Agreement, Consultant
and its Affiliates shall be deemed not to have breached such
obligations.
b) Claims Support. To the extent requested by Client for a
particular Project, as part of the Completion Services,
Consultant shall use commercially reasonable efforts to
diligently pursue, settle, investigate, negotiate (or, as
necessary, defend) change orders and claims for equitable
adjustment and other claims relating to the performance of
Completion Services pursuant to this Agreement with respect to
that Project, including any claims for warranty or for
non-complying work or delivery, against the Project owner,
customers, suppliers, subcontractors, vendors and non-contract
parties (collectively, "Project Completion Claims"), other than
those Project Completion Claims that Consultant reasonably
believes are not commercially reasonable (and in the case of
defending Project Completion Claims, that Consultant reasonably
believes are not commercially reasonable to defend); provided
that Consultant shall not be required to litigate, arbitrate or
assume the defense of any Project Completion Claim in its own
name, although the Consultant acknowledges that it may be sued
in its own name and will be required to litigate such claim, in
its own name, subject to Client's obligations to indemnify
Consultant as provided in Section 6 hereof. For the avoidance of
doubt, the Consultant and Client acknowledge that any claims
relating to the Projects but not relating to the performance of
Completion Services pursuant to this Agreement or not
constituting part of the Routine Close-Out Services, including
without limitation the resolution in the Bankruptcy Court of
claims asserted by third parties as unsecured claims in
connection with the Bankruptcy Filing, shall not be pursued or
defended pursuant to the terms of this Agreement, but shall be
subject to the terms set forth in the Settlement Agreement.
Consultant's pursuit or defense, if any, of Project Completion
Claims shall be at the direction and under the control of
Client. Consultant shall use commercially reasonable efforts to
assist Client in pursuing, litigating, arbitrating or defending
against any Project Completion Claims, and Client shall take the
lead role in such process. In the event that Consultant
reasonably believes such Project Completion Claims are not
commercially reasonable, or that the defense of such Project
Completion Claims is not commercially reasonable, and Client
wishes to pursue or defend such Project Completion Claim,
Consultant agrees to provide, diligently and in good faith, all
documentation, information, access, and access to (but not use
of) personnel requested by Client. Without limiting the
generality of the foregoing, it shall be deemed reasonable for
Client to request to meet with witnesses in advance of any
testimony they may be asked or required to give at a deposition
or hearing of any sort relating to Project Completion Claims and
to have the witnesses furnished by Consultant travel to the
location of any hearing
c) Good Standing. Consultant shall maintain its existence and good
standing and the existence and good standing of any Affiliate
performing Completion Services, until performance is completed.
d) Permits and Licenses. Consultant shall maintain the existence
and effectiveness of all permits necessary for performance by
Consultant or its Affiliates of any Completion Services
hereunder, and such maintenance shall constitute part of the
Completion Services to be performed by Consultant under this
Agreement.
7
5. WARRANTY EXCLUSION
a) Consultant's sole liability to Client for any Completion
Services that fail to meet the standard set forth in Section
3(a) or set forth in any Work Order and that do not constitute
gross negligence or willful misconduct, shall be to reperform
the non-conforming Completion Services, written notice of which
must be promptly given after discovery by Client to Consultant.
Consultant's obligation for reperformance of non-conforming
Completion Services shall begin at Work Order completion, and
extend for a term of one (1) year thereafter. Any costs of
reperformance will be an Allowable Cost under this Agreement,
but Consultant will not be entitled to any Fee for such
reperformance. The Consultant's liability for gross negligence
or willful misconduct is set forth in Section 4(a).
b) The only warranties made by Consultant are those expressly
enumerated in Section 3 above. Any other statements of fact or
descriptions expressed in this Agreement or any attachments
hereto shall not be deemed to constitute a warranty of the
Completion Services or any part thereof. THE WARRANTIES SET
FORTH IN SECTION 3 A) above ARE EXCLUSIVE AND IN LIEU OF ANY AND
ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED
(INCLUDING BUT NOT LIMITED TO ANY AND ALL WARRANTIES OF
MERCHANTABILITY AND/OR FITNESS FOR ANY PARTICULAR PURPOSE(S) AND
ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND/OR
USAGE OF TRADE). The remedies provided in Section 5(a) above are
Client's sole and exclusive remedies for any failure of
Consultant to comply with the warranties in Section (3a) and are
expressly in lieu of any and all other warranties of any kind
whatsoever, as stated above. Except as provided in Section 4(a)
with respect to gross negligence or willful misconduct,
correction of any nonconformity in Completion Services in the
manner and for the period of time provided above shall
constitute complete fulfillment of all the liabilities and
warranties of Consultant for any and all defective or
nonconforming Completion Services whether the claims of Client
are based upon contract, tort (including but not limited to
negligence and strict liability), errors or omissions,
warranties, indemnity or otherwise with respect to or arising
out of any Completion Services performed hereunder.
6. QUALITY ASSURANCE; INDEMNITY BY CLIENT
a) Performance by Consultant of any quality assurance, vendor
assurance, project management, construction management, or other
third party oversight or advisory services shall in no way
constitute an assumption by Consultant, or by any of its
suppliers or subcontractors of any tier, of, or relieve a Client
or its consultants or suppliers from, any responsibility for
delivery of any services, materials, equipment and documentation
in strict accordance with the requirements of the consultant,
manufacturer, or supplier/Client contract.
b) Client agrees to indemnify, defend and hold harmless Consultant
and its Affiliates and any and all directors, officers,
employees and/or agents of the foregoing (collectively, the
"Indemnitees") from and against any and all Losses of any kind
and nature whatsoever, arising from the Consultant's performance
of this Agreement.
c) Notwithstanding paragraph (b) above, or any provision to the
contrary contained herein, Client shall not indemnify, hold
harmless, or defend the Indemnitees with regard to Losses of any
kind or nature whatsoever to the proportionate extent that such
Losses:
8
(i) arise from any Indemnitee's breach of this Agreement,
other than any breach of the Specified Obligations or
other failure to perform any Completion Services in the
manner required by this Agreement that does not arise
from any Indemnitee's gross negligence or willful
misconduct;
(ii) arise from any Indemnitee's gross negligence or willful
misconduct;
(iii) are covered by the collected proceeds of any insurance
policy covering the applicable Project, to the extent of
such proceeds;
(iv) are the responsibility of WGI Delaware under the WGI
Guaranty; or
(v) arise under or relate to the prior performance of any of
the Project Agreements or any other subcontract, vendor
contract or other contract relating to any Project that
were rejected by Consultant or any Affiliates and that
was asserted or could have been asserted as a claim (as
defined in Section 101(5) of the Bankruptcy Code)
against the Debtors, or any of them, as part of the
Bankruptcy Case.
d) Solely with respect to the Ratchaburi project, the Client shall
also indemnify Consultant and its affiliates for valid claims of
General Electric Company and its affiliates (collectively, "GE")
for payments made and liabilities incurred to vendors and
subcontractors of Consultant and its affiliates after May 14,
2001 and prior to the date of this Agreement as a result of the
non-performance by Consultant and its affiliates during this
period.
7. FORCE MAJEURE
Any delay or failure of Consultant in performing its required
obligations hereunder shall be excused if and to the extent it is caused
by a Force Majeure event. A "Force Majeure" event shall mean an event
due to any cause or causes beyond the reasonable control of Consultant
and shall include, but not be limited to, acts or orders of any
governmental body or changes in laws or government regulations or
interpretations or application thereof, acts or omissions of Client or
its other consultants, acts of God, war, riot, fire, flood, explosion,
hurricane, tornado, epidemic, earthquake, transportation accidents,
terrorism, sabotage or strikes. In such event, the time for performance
hereunder shall be extended for a period of time sufficient to overcome
the effects of such delay, and Consultant's compensation shall be
equitably adjusted to reflect any increased costs of performance of the
Completion Services.
8. INSURANCE
a) Upon Client's written request, Consultant shall effect and
maintain insurance with the following limits:
(i) Workers' compensation for statutory limits in compliance
with the applicable state and federal laws and
employers' liability with a limit of $2,000,000.
(ii) Comprehensive general liability including
products/completed operations, contractual coverage for
the indemnification provisions set forth in Section 4(a)
and
9
broad form property damage with the limits of $5,000,000
any occurrence and in the aggregate, combined for bodily
and personal injury and property damage.
(iii) Automobile liability including owned, non-owned, and
leased automobiles with the limits of $5,000,000 any one
occurrence and in the aggregate, combined single limit
for bodily injury and property damage.
(iv) Professional liability with a limit of $10,000,000 and a
deductible or self insured retention of $2,000,000 for
any one occurrence and in the aggregate.
b) If requested by Client, Consultant shall furnish to Client
certificates of insurance signed by the insurers, indicating
that policies with respect to the aforementioned insurance have
been issued and that such policies contain provisions regarding
prior notification of cancellation.
c) Consultant and Client each waive all rights of recovery against
a loss occurring to property of the other, to the extent that
such waivers do not invalidate the property insurance of either.
d) In the event Client makes a claim against Consultant covered by
the professional liability insurance coverage, Client shall
receive any proceeds resulting from such claim net of the
deductible or self insured retention by Consultant or its
Affiliates.
e) To the extent permitted under the applicable Project Agreements,
Client and Consultant agree that any insurance coverage provided
by the project owners under the Project Agreements shall be
primary, and that insurance provided by Consultant shall be
excess and non-contributory.
f) Client and Consultant also agree to review any insurance
coverage provided by project owners under the applicable Project
Agreements so that the coverages required to be maintained in
Section 8(a) may be reduced and the resultant cost can be
reduced, each at the mutual agreement of Client and Consultant.
9. WAIVER OF CONSEQUENTIAL DAMAGES
As it relates to performance of Completion Services under this
Agreement, neither Consultant nor Client nor their respective employees,
officers, directors, affiliates, consultants, agents and subcontractors
or suppliers of any tier, if any, shall be liable for any special,
indirect, punitive, exemplary, incidental, or consequential damages of
any nature, including, without limitation, any loss of actual or
anticipated profits or revenues, loss by reason of shutdown, operation,
non-operation, or increased expense of operation, loss of use, cost of
capital, cost of replacement power and any other loss due to power
outages, damage to or loss of property or equipment of Client or project
owners, or claims of customers of Client or project owners, regardless
of whether due to or based upon delay, contract, warranty, tort,
negligence, strict liability, error or omission, indemnity or otherwise.
10. HAZARDOUS SUBSTANCE
a) Consultant shall not be liable or responsible for any hazardous
waste, toxic substance, pollution or contamination that (i)
Consultant does not introduce into or onto a Project site in a
manner that violates this Agreement or the applicable Work
Order; and (ii) that is not used,
10
generated, treated or handled by Consultant, at any time, on the
Project site(s) in a manner that violates this Agreement or the
applicable Work Order.
b) Consultant shall not introduce any hazardous waste, toxic
substance, pollution or contamination into any Project site
without the prior authorization of Client, other than materials,
fuels or substances used in the ordinary course of performing
Client's obligations under this Agreement and the applicable
Work Order.
c) Client shall indemnify Consultant for any direct loss or
liability sustained by Consultant to the proportionate extent
such loss or liability is associated with any such hazardous
waste, toxic substance, pollution or contamination that does not
fall within the scope of (a)(i) or (a)(ii) above.
11. CHANGES
Client may from time to time seek to modify, extend or enlarge the
Completion Services being performed with respect to a particular Project
by written instructions to Consultant to perform additional Completion
Services, modify the schedule or direct the omission of work previously
ordered. In the event Client requests that Consultant perform additional
Completion Services, or make other modifications to the Completion
Services, the existing Work Order will be revised to reflect such
changes. In no event, however, shall Consultant be obligated to perform
such additional services or modify or extend such services without prior
written amendment to an existing Work Order signed by Client and
accepted in writing by Consultant. In addition, Client may from time to
time direct Consultant to cease performing one or more of the Completion
Services that Consultant had been previously performing. Costs
associated with the Completion Services contemplated prior to the change
that had been incurred prior to the time the change could reasonably
take effect, any field demobilization costs required as a result of the
termination of work or change in scope, and any additional Completion
Services requested by Client to be performed in connection with such
termination of work or change in scope, shall all constitute Allowable
Costs hereunder to the extent incurred in accordance with the rates and
charges referred to in Schedule 12(a).
12. PAYMENT TERMS
a) Work Orders. All payment terms shall be as specified in the
applicable Work Order for any Project. In general, and unless
specifically set forth and agreed by Client and Consultant to
the contrary in this Agreement or such Work Order, Consultant
shall be paid, in advance, for all Allowable Costs, plus a fee
in the amount of 7.50% of such Allowable Costs (the "Fee").
Unless otherwise provided in the applicable Work Order,
Allowable Costs will be calculated in accordance with the terms
and conditions set forth on Schedule 12(a).
b) Default Budget; Funding; Reconciliation. Unless otherwise agreed
to by the Parties in a Work Order, for any Project for which
Consultant shall perform any Completion Services:
(i) Consultant shall prepare a budget, and semi-monthly
updates, containing Consultant's reasonable estimate of the
anticipated costs of performing such services through completion
of such services, broken down by cost element;
(ii) Consultant shall notify Client no less than
fourteen (14) days in advance of the start of any two week
period in which services are to be performed of the anticipated
Allowable Costs to be expended by Consultant for such two week
period, and at the request
11
of Client, Consultant shall meet and confer with Client
regarding the amounts to be funded thereby;
(iii) no less than (3) business days in advance of such
two-week period, Client shall wire funds to Consultant for such
two week period, in an amount not less than the amount requested
by Client, or the amount agreed to by the Parties after having
met and conferred, taking into account any credits or debits
from any prior period; and
(iv) Consultant shall provide a monthly reconciliation
to Client, no later than twenty one (21) days following the end
of any month in which services were performed, of the costs
actually incurred during such month, and the Parties shall make
such debits or credits as are appropriate.
c) In House Costs. Consultant may include as Labor Costs the costs
of in-house counsel and other administrative personnel
performing any of the Completion Services, provided the costs of
such personnel are incurred in connection with, and budgeted or
otherwise approved in compliance with, the applicable Work Order
and provided further that any use of in-house tax personnel must
be approved in advance by Client.
d) No Prior Amounts. No amounts spent by Consultant or its
Affiliates on a Project that were spent prior to, or not in
connection with this Agreement, shall constitute an Allowable
Cost (or an Accrued Cost), unless such amounts are approved by
Client, in writing, in a Work Order for such Project pursuant to
the terms hereof. Client has previously approved the Allowable
Costs relating to certain Projects listed on Schedule 12(c)
hereto, and such Allowable Costs shall be paid within five (5)
business days after the date of this Agreement. Certain other
costs listed on Schedule 12(c) are subject to review and mutual
agreement as described in Schedule 12(c).
e) No Duplication. No amount payable by Client under this
Agreement, for Allowable Costs, for indemnity, or otherwise,
shall be payable, or paid, to Consultant more than once.
Consultant shall not include any item in any request for payment
or reimbursement for which Consultant has already been paid by
Client under any other agreement or arrangement with respect to
the Project.
f) Audit Rights. Client shall have reasonable access during normal
business hours to Consultant's books and records as necessary to
verify the number of manhours actually charged in a given work
week, all Out-of-Pocket costs, including subcontractor and
vendor payments, any Taxes, and the application of the
appropriate rates and multipliers to the man- hours charged.
Client shall not have audit rights with respect to the agreed
upon multiplier rates set forth in Schedule 12(a) for Labor
Costs and certain Out-of-Pocket Costs.
g) Tax Cooperation. Consultant shall cooperate with Client, prior
to or following the expiration or earlier termination of this
Agreement, to obtain Tax refunds from any applicable taxing
authorities for the benefit of Client, for any Taxes paid by
Client, or reimbursed to Consultant, pursuant to this Agreement,
or any other prior arrangement between the Parties. Client shall
compensate Consultant (at rates and fees substantially similar
to the rates and fees for work or services performed hereunder)
for any work performed under this paragraph (f) following the
termination or expiration of this Agreement. The parties shall
endeavor to minimize Taxes payable in connection with the
Completion Services, to the extent permitted
12
by law. Any refunds for Taxes that are governed by the Tax
Agreement will be pursued and remitted as provided in the Tax
Agreement.
h) Set off. Client agrees to fund its obligations to make payments
pursuant to the applicable Work Order notwithstanding any right
of set-off or recoupment that Client may have or allege against
any sums due under this Agreement.
13. INDEPENDENT CONSULTANT
Consultant is an independent contractor. Neither Consultant, nor any of
its employees, are or shall be deemed to be agents or employees of
Client. Notwithstanding anything else to the contrary in this Agreement,
Consultant may at its sole discretion, discharge any of its employees
for cause.
14. OWNERSHIP OF DOCUMENTS
All right, title and interest in all (without limitation) data,
analyses, drafts, reports, drawings, prints, records, notebooks,
manuals, computer printouts or intellectual property delivered to Client
under this Agreement or generated solely in the performance of the
Completion Services shall become the property of Client and such
documents shall be delivered to Client upon Client's full and complete
payment for such Completion Services. Client agrees to hold harmless and
indemnify Consultant against any and all damages, claims, causes of
action, expenses, liabilities, costs and losses, including, but not
limited to, defense costs and attorneys' fees, arising out of any reuse
by Client or others of the materials, data, or reports for any other
projects or matters unrelated to the Projects without the written
authorization of Consultant. Client expressly agrees that it shall not
and is not authorized to so use any such documents without such
authorization. Client hereby grants to Consultant the unrestricted,
royalty free right to retain copies of these materials and to use these
materials and the information contained therein, on a world wide basis,
in the normal course of Consultant's business for any and all lawful
purposes subject to the confidentiality provisions hereof.
In the course of performance of its Completion Services Consultant may
rely upon information supplied by Client or Client's partners,
contractors, or consultants, or information available from generally
accepted reputable sources without independent verification. Consultant
shall have no liability for defects in its Completion Services
attributable to Consultant's reliance upon or use of data, design
criteria, drawings, specifications or other information furnished by
Client.
15. TERMINATION AND SUSPENSION
a) Client shall have the right to terminate this Agreement prior to
completion of the Completion Services after delivery of ten (10)
days written notice to Consultant, in which event Client shall
pay Consultant all amounts due up to the effective date of
termination plus all Allowable Costs incurred in connection with
field demobilization required as a result of such termination.
To the extent that Client requests that Consultant perform
services post-termination, Consultant shall be paid its actual
costs, based upon Allowable Costs, plus Fees.
b) Consultant may suspend performance on a Work Order for
non-payment of amounts due on a Work Order after five (5) days
notice. In addition, Consultant may terminate performance under
such Work Order after thirty (30) days cumulative suspension for
non-payment.
13
c) In the event that Client or Consultant terminates the Completion
Services with respect to a particular Work Order (a "Partial
Termination") or this Agreement is terminated pursuant to
paragraph a) above, any and all amounts previously paid to
Consultant and not disbursed to pay Allowable Costs or Fee
pursuant to the applicable Work Order, in the case of a Partial
Termination only insofar as it relates to the applicable Work
Order, shall be immediately disbursed to Client, inclusive of
all interest thereon or credits owing thereto, without any
set-off or deduction of any kind other than Allowable Costs to
be reimbursed pursuant to this Agreement, including Consultant's
field demobilization costs that are reimbursable pursuant to
this Agreement, plus the portion of any Fee earned prior to the
date of termination. Consultant will also remit directly back to
Client any and all amounts received under this Agreement that
remain unspent as of the termination date, in the case if a
Partial Termination only insofar as it relates to the applicable
Project.
16. TERM
Unless otherwise specified, the term of this Agreement shall be no more
than five (5) years from the Effective Date, subject to earlier
termination as herein provided. In addition, provided that Consultant
provides ninety (90) days' prior written notice, Consultant will not be
required to provide Completion Services after the second anniversary of
the date of this Agreement and at any time thereafter, Consultant shall
be permitted to terminate this Agreement or any Work Order, insofar as
it relates to any Completion Services, upon ninety (90) days written
notice to Client. Consultant and Client may mutually agree upon an
extension of this Agreement. Such extension must be in writing and
signed by both Consultant and Client.
17. CLIENT ACCESS
a) For purposes of the overall administration of this Agreement,
Client and Consultant shall each appoint a single representative
(the "Project Liaisons"), who shall coordinate all matters
relating to this Agreement. If and to the extent that the
Consultant's Project Liaison performs services for Consultant
that are related to this Agreement, the costs related to such
services shall constitute Allowable Costs related to this
Agreement.
b) Work Order Liaisons. As noted in Section 2, the applicable Work
Order will designate the "Work Order Liaisons" for the Projects.
For purposes of administering this Agreement each party shall be
entitled to rely upon the direction of the other party's Work
Order Liaison.
c) Client Access. Client will be entitled to place a reasonable
number of employees, consultants or representatives on-site at
the applicable Project and, during regular business hours, at
the Consultant's Princeton offices to observe and supervise the
performance by the Consultant of its obligations under this
Agreement, and Client and its representatives, including any
third party consultant retained by Client, will be permitted to
have access to and examine and take copies of any documents,
books, records, materials and other information, whether in
tangible or electronic form, relating to the applicable Project,
including any and all engineering, procurement and construction
documents, purchase orders, invoices, specifications, progress
reports, plans and designs. With regards to access to
Consultant's Princeton, New Jersey, offices, (i) access shall be
given during normal business hours, and (ii) Client's personnel
shall be subject to Consultant's prior approval, such approval
not to be unreasonably withheld or delayed. In addition to those
personnel subject to the foregoing approval process, Consultant
expressly will pre-approve and permit
14
the persons listed on Schedule 17 to have access to the
Princeton facilities. The Consultant shall provide Client with
copies of all internal and external project reports and
correspondence as generated or received relating to the
applicable Project. The Project Liaisons will conduct periodic
Project reviews and progress meetings as requested by Client.
The Consultant shall not designate a replacement Project Liaison
without the consent of Client, which consent shall not be
unreasonably withheld or delayed. Consultant's costs in
complying with the obligations contained in this Section 17
shall constitute Allowable Costs.
18. DISPUTE RESOLUTION
a) All disputes or claims arising in respect of a particular
Project shall be referred to the Project Liaisons for
settlement. In the event no settlement can be reached pursuant
to the preceding sentence within one (1) week, then senior
management of Client and Consultant shall attempt to resolve
such dispute or claim within ten (10) business days. In the
event the senior management cannot settle such disputes or
claims, such disputes or claims shall be settled pursuant to the
arbitration procedures set forth in Section 18(b) hereof.
b) (i) Subject to the other provisions of this Section 18, any
party hereto may commence arbitration in conformity with
and under the rules of the American Arbitration
Association ("AAA"), and, notwithstanding anything to
the contrary contained herein, such arbitration shall be
governed by and construed in accordance with the laws of
the State of New York, USA.
(ii) The arbitral tribunal shall consist of three
arbitrators. Each party hereto shall appoint one
arbitrator with, in the case of a dispute of a technical
nature, knowledge and experience in such technical
matters. The two arbitrators so appointed shall appoint
the third arbitrator who shall serve as the chairman of
the arbitral tribunal. If a party fails to appoint its
arbitrator within a period of ten (10) days after
receiving notice of the arbitration, or if the two
arbitrators appointed cannot agree on the third
arbitrator within a period of ten (10) days after
appointment of the second arbitrator, then such third
arbitrator shall be appointed pursuant to the procedures
of the AAA Rules.
(iii) In the event an arbitrator is appointed pursuant to the
last sentence of the foregoing subsection (ii), such
arbitrator shall be a person with experience in
commercial agreements and, in particular, the
implementation and interpretation of contracts relating
to the design, engineering, construction, operation and
maintenance of international electrical power generating
facilities which have been financed on a limited
recourse basis (and if the dispute concerns a technical
issue, a person who has knowledge and experience in
technical matters). No arbitrator shall be a present or
former employee or agent of, or consultant or counsel
to, either party hereto or any affiliate thereof.
(iv) The arbitration shall be conducted in New York, New
York, U.S.A., and shall apply English as the language of
the arbitration proceedings. All documents or evidence
presented at such arbitration in a language other than
in English shall be accompanied by a certified English
translation thereof. The arbitrators shall apply, and
shall be bound by, the applicable rules of law and the
terms of this Agreement. Unless the Parties hereto agree
otherwise in writing, the arbitrators shall be permitted
to order the parties to an arbitration to engage in
discovery (including the
15
taking of depositions). The arbitrators shall decide the
dispute by majority of the arbitral tribunal and shall
state in writing the reasons for its decision. Any
monetary award of the arbitral tribunal shall be
denominated in U.S. dollars and shall be paid by the
earlier of (i) the time period specified by the arbitral
tribunal and (ii) thirty (30) days after the arbitral
tribunal notifies the parties of receiving such award.
The parties agree to direct the arbitral tribunal to
complete the arbitration proceeding, and issue a
decision, within sixty (60) days after the submission of
the request for arbitration.
(v) The parties hereby waive any rights to appeal or to
review such award by any court or tribunal, and such
award shall be final and binding. The parties hereto
further undertake to carry out without delay the
provisions of any arbitral award or order, and each
agrees that any such award or order shall be conclusive
and may be enforced in any jurisdiction (and the parties
shall submit to any such jurisdiction) by suit on the
arbitral award or by any other manner provided by law. A
party may disclose the contents of an award of the
arbitral tribunal on to affiliates, governmental
authorities or other persons as required by applicable
law.
(vi) The costs of such arbitration shall be determined by and
allocated between the parties by the arbitral tribunal
in its award.
(vii) Unless the parties hereto otherwise agree, no dispute,
controversy or claim hereunder shall be consolidated
with any other arbitrable proceeding involving any third
party.
19. GUARANTEES
a) WGI Guaranty. WGI Delaware shall unconditionally and irrevocably
guaranty to Client and its designees hereunder, the due and
prompt performance and payment when due of each and every
obligation, responsibility, undertaking, representation,
warranty, covenant and agreement of Consultant under this
Agreement, in the form of Schedule 19 attached hereto (the "WGI
Guaranty").
20. GENERAL
a) Client and Consultant each represent and warrant that this
Agreement has been duly authorized, executed and delivered and
constitutes its binding agreement enforceable against it subject
to the application of bankruptcy and other laws affecting
creditor's rights and to the application of equitable
principles.
b) This Agreement (including all Work Orders) together with the
Settlement Agreement supersedes all prior written and/or oral
contracts and agreements that may have been made or entered into
between Client and Consultant regarding the subject matter
hereof, including but not limited to any and all proposals, oral
or written, and all communications between the parties relating
to this Agreement, and constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof. No
amendment to this Agreement shall be enforceable unless in
writing and signed by both parties hereto. 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.
16
c) Subject to Section 9.406 of the Uniform Commercial Code (as
revised), this Agreement may not be assigned by Consultant or
Client in any way, including by operation of law, unless
mutually agreed to in writing.
d) All notices, demands and other communications hereunder
regarding any breach, consent, waiver, termination,
indemnification, or any proposed amendment to, or modification
of, this Agreement, shall be in writing or by facsimile, and
shall be deemed to have been duly given, (i) on the day such
notice is delivered personally, (ii) on the business day such
notice is sent by facsimile, provided such notice is sent during
the normal business hours of the recipient (and if sent after
such hours, on the following business day), with a confirmation
copy sent by overnight courier or certified mail, (iii) one
business day after being sent by overnight courier, or (iv) four
business days after being mailed by certified mail, return
receipt requested, postage prepaid, as follows:
If to Client, to:
Raytheon Company
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Raytheon Engineers & Constructors
International, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy sent contemporaneously to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Washington to:
000 Xxxx Xxxxxxxxx
Xxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
17
With a copy sent contemporaneously to:
Xxxxx X. Xxxxx
Vice President - Contracts
Washington Group International, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
e) This Agreement shall not provide for and Consultant will not be
considered to have rendered any legal or financial opinions
regarding the feasibility for generating or selling electrical
power or thermal energy.
f) Governing Law; Exclusive Venue: Jurisdiction. This Agreement
shall be governed by and construed in accordance with the laws
of the State of New York, United States of America, without
regard to the conflict of law rules thereof other than Section
5-1401 of the General Obligations Law of the State of New York.
Any action or other proceeding brought under or in connection
with this Agreement and the transactions contemplated hereby
shall be brought and heard only in an appropriate state or
federal court located in the State of New York, U.S.A. Each of
Consultant and Client acknowledge and agree that such courts
shall have exclusive jurisdiction to interpret and enforce the
provisions of this Agreement, and each of them hereby waives any
and all objections that they might have as to personal
jurisdiction or venue in any of the above courts. Nothing
contained in this Section 20(f) is intended to limit the
applicability of Section 18 hereof. In the event of any conflict
between the second and third sentences of this Section 20(f) and
the terms and provisions of Section 18, the terms of Section 18
shall control.
g) Headings. The headings in this Agreement are for convenience
only, and shall not affect the interpretation hereof.
h) No Third Party Beneficiaries. Nothing in this Agreement, express
or implied, is intended to confer upon any third party any
rights, remedies, 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 obligation or duties to
parties not signatory hereto.
i) Waiver of Jury Trial. Each party hereto waives its rights to a
jury trial with respect to any action or claim arising out of
any dispute in connection with this Agreement or other document
or subcontract executed in connection with performance of the
services under this Agreement.
j) Public Statements. Any press release or other public statement
regarding the subject matter of this Agreement shall be subject
to the prior review and approval of the other party hereto, with
such approval not to be unreasonably withheld or delayed.
k) Survival. The provisions of Sections 1, 2(g), 2(h), 3, 4(a),
4(b), 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19 and 20
and any other provisions of this Agreement providing for
limitation
18
of or protection against liabilities between the parties hereto
shall survive termination of the Agreement and/or completion of
the Completion Services hereunder.
1) Counterparts. This Agreement may be executed by Client and
Consultant each on separate counterparts and by facsimile, each
of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute but one and
the same document.
[Signature Page to Follow]
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement for
Consulting and Professional Services to be duly executed by their duly
authorized representatives as of the day and year first above mentioned.
RAYTHEON COMPANY
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President and
General Counsel
RAYTHEON ENGINEERS & CONSTRUCTORS
INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx Xx.
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx Xx.
Title: Senior Vice President, Secretary
and General Counsel
WASHINGTON GROUP INTERNATIONAL,
INC.,
an Ohio corporation
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
and General Counsel
SEEN AND CONSENTED TO:
OFFICIAL UNSECURED CREDITORS'
COMMITTEE
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Name: XXXXXXX X. XXXXXX
Title: COUNSEL
ANNEX A-1
DESCRIPTION OF CERTAIN PROJECTS
Saltend: 1,200 MW combined cycle power plant in Hull, England.
Damhead: 800 MW combined cycle power plant in Kingsnorth, England.
Xxxxxx: 2 x 130 MW thermal power plant in Toranagallu, India.
Posven: Hot briquetted iron facility in Venezuela.
Ratchaburi: 2,100 MW combined cycle power plant in Thailand.
Tallahassee: 225 MW power plant in Tallahassee, Florida.
Acme: Mini-mill in Riverdale, IL.
Ezhou: 600 MW anthracite coal power plant project located in Ezhou,
near Wuhan, Hubei Province, China.
Egypt Electric: 1,200 MW thermal plant in El Kureimat, Egypt
NACIC: Sulfur derivatives plant in Bahrain.
Clear Alaska: Radar upgrade project in Alaska.
ANNEX A-2
DESCRIPTION OF CERTAIN WASHINGTON INTERNATIONAL B.V. PROJECTS
In addition to the Ilijan, Red Oak, Sithe Mystic, Sithe Fore River and
Puerto Plata projects, all projects that are or were being performed by
Washington International B.V., including the following projects, are not
considered "Projects" for purposes of this Agreement:
1. Norsk Hydro - Oslo, Norway
2. Anwill
3. National Industrial Comp. (NIC) - Riyadh
4. Alex. Min. Oil Co. (AMCO)
5. BASF Antwerpen
6. BASF Ludwigshafen
7. Statoil
8. HCG Industriesservice
9. Start Emloyab Ser.
10. Ciech Stomil
11. Borsodchem
SCHEDULE 2(b)
Consultant agrees to provide personnel to assist Client in the performance of
the following services:
I. Home Office Services
H.O. Engineering and Design Services
H.O. Project Management Services/Construction Management Services
H.O. Project Control Services
H.O. Procurement of Components, Equipment, Materials and Services
H.O. Contract Services
H.O. Tax Services/1/
II. Field Services
Field Project Management Services/Construction Management Services
Field Project Control Services
Field Procurement of Components, Equipment, Materials and Services
Provision and Direction of Craft Labor
Management of Suppliers and Subcontractors
Start-up and Testing Services
Obtain/Maintain Necessary Licenses and Permits
Safety and Medical Services
Quality Assurance and Testing Services
----------
/1/ To the extent that any tax related services or other obligations are
required under the Tax Agreement, such services or other obligations shall be
provided thereunder and not this Agreement.
SCHEDULE 2(d)
FORM OF WORK ORDER
This is a Work Order delivered pursuant to the Agreement For Consulting
And Professional Services between Raytheon Company, Raytheon Engineers &
Constructors International, Inc. and Washington Group International, Inc. (the
"Services Agreement"). Defined terms used in this Work Order without definition
have the meanings given them in the Services Agreement.
Work Order Number:
Project Name:
Principal Project Agreements:
Scope of Services to be Provided:
Applicable Performance Standard (pursuant to Section 3(a) of the Services
Agreement):
Schedule for Services to be Performed:
Personnel Authorized to Perform Services:
Staffing Plans:
Not to Exceed Funding Authorization for Services:
Budgeting, Estimating, Approval, Funding, Payment and Reconciliation Procedure:
Payment Procedures:
Staffing:
Work Order Liaison for Consultant:
Work Order Liaison for Client:
SCHEDULE 12(a)
RATES AND CHARGES
Rates and Charges for Calculating Labor Costs and Out-of-Pocket Costs
For Domestic U.S. Project Costs:
ENGINEERING AND HOME OFFICE SERVICES
.. Home Office Overhead Multiplier at 1.88 applied against W-2 wages of
employees, contract services and consultants, including all overtime and
overtime premiums.(1)
.. 2D CADD at $10.10 applied against all 2D CADD hours.
.. 3D CADD at $15.10 applied against all 3D CADD hours.
.. ODC surcharge for casual copying and prints, postage, phone long
distance, and courier at $2.00 applied against all Engineering & Home
Office labor hours. Large volume in-house copying/printing charges to be
addressed in specific work order.
.. Travel and all other expenses and costs will be reimbursed at cost.
.. Insurance charge at current rate times total invoice value including G&A
and Fee (current rate is $1.214/100 valid through 10/01/02).
.. G&A at 5.5% applied against total invoice value less G&A and Fee.(2)
.. Fee at 7.50% total invoice value of costs including G&A.
Note: Above rates for Engineering and Home Office services are also applicable
for Offshore - Non-U.S. Domestic projects.
FIELD CONSTRUCTION OFFICE SERVICES
.. Field Office Multiplier at 1.49 applied against W-2 wages of employees,
contract services and consultants, including all overtime and overtime
premiums.(3)
.. Travel, per diem, and relocation costs per current policy and reimbursed
at cost.
.. Craft labor will be reimbursed at cost including all applicable fringe
benefits, payroll taxes and insurances.
.. All subcontractors, vendors and any and all other costs and expenses
will be reimbursed at cost
.. Insurance charge at current rate times total invoice value including G&A
and Fee (current rate is $1.214/100 valid through 10/01/02).
.. G&A at 5.5% applied against total invoice value of costs less G&A and
Fee.(4)
.. Fee at 7.50% total invoice value of costs including G&A.
Note: Short term field assignments by Engineering & Home Office personnel are
considered Engineering and Home Office Services.
Notes (1) (2) (3) and (4): As of the effective date of this Agreement, the rates
specified above reflect Washington's estimate of its actual costs to be
submitted in order to establish U.S. Government provisional rates and are to be
applied until the U.S. Government provisional rates are approved. Upon the
approval of provisional rates by the U.S. Government, the rates specified above
will be adjusted to reflect the
Government approved provisional rate and the adjusted approved provisional rates
will be applied prospectively.
Rates and Charges for Calculating Labor Costs and Out-of-Pocket Costs
For Offshore - Non-U.S. Domestic Project Costs:
FIELD CONSTRUCTION OFFICE SERVICES
.. Field Office Overhead Multiplier at 1.49 applied against W-2 wages
including uplifts and service bonus for employees, local hires, and
Third Country Nationals (TCNs) including all overtime and overtime
premiums. Overtime shall be applied in accordance with corporate
procedures and U.S. labor law for U.S. expatriates and TCNs. Overtime
shall be applied in accordance with local labor law for local hires.(1)
.. Foreign income and any excess US income taxes for expatriates as a
result of tax equalization shall be reimbursed at cost.
.. Travel, per diem, relocation, home and emergency leave, and repatriation
costs shall be per current project policy and reimbursed at cost.
.. Local housing costs and assignment benefits will be applied in
accordance with site policy. These costs shall be reimbursed at cost.
.. Invoices from subcontracts, consultants, and purchased or rented
equipment/materials/supplies/services shall be reimbursed at cost.
.. Contractor company owned equipment/supplies/tools shall be reimbursed at
agreed to or established rates.
.. Bank charges and currency exchange variance expenses shall be reimbursed
at cost.
.. Costs to receive, unload, and transship imported equipment including
customs fees, duties, taxes, penalties, storage and handling costs and
freight forwarding costs shall be reimbursed at cost.
.. Costs associated with obtaining permits, licenses, and building permits
including legal fees shall be reimbursed at cost.
.. Costs associated with community relations, security, client-approved
ceremonies, waste disposal, facilities, utilities and furniture
(including those furnished to other organizations by Contractor) shall
be reimbursed at cost.
.. VAT will be applied to the total invoiced value for equipment and
material invoices and corporate withholding will also be applied to
these invoices if applicable. Corporate withholding will also be applied
to services invoices. VAT and corporate withholding will be reimbursed
at actual cost.
.. All permanent plant equipment and material purchased under this contract
shall remain the property of the Project owner. Any Project owner
purchased permanent plant equipment that is not installed (i.e. spares
or overages) will be returned to the Project owner for storage or
salvage at the end of its use in completing the project.
.. Any and all other expenses and costs (e.g. mail, courier, telephone,
vehicle maintenance, fuel, etc.) shall be reimbursed at cost.
.. Insurance charge at current rate times total invoice value including G&A
and Fee (current rate is $1.214/100 valid through 10/01/02).
.. G&A at 5.5% applied against total invoice value of costs less G&A and
Fee.(2)
.. Fee at 7.50% total invoice value of costs including G&A.
Note: Short term international field assignments less than 30 days by
Engineering and Home Office personnel are considered domestic services and will
be invoiced per the Engineering and Home Office Service rates for domestic
projects.
Notes (1) (2): As of the effective date of this Agreement, the rates specified
above reflect Washington's estimate of its actual costs to be submitted in order
to establish U.S. Government provisional rates and are to be applied until the
U.S. Government provisional rates are approved. Upon the approval of provisional
rates by the U.S. Government, the rates specified above will be adjusted to
reflect the Government approved provisional rate and the adjusted approved
provisional rates will be applied prospectively.
Raytheon Services Agreement
Outstanding Costs
Ratchaburi
Invoice Invoice Amount
Number Date Invoiced
00-000-00 01/09/02 82,249.36
00-000-00 01/09/02 44,291.22
00-000-00 01/16/02 88,347.57
00-000-00 01/16/02 158,301.28
Subtotal 373,189.43
Xxxxxx
Invoice Invoice Amount
Number Date Invoiced
00-000-00 11/21/01 134,042.05
00-000-00 12/12/01 13,058.41
00-000-00 1/9/02 9,249.98
00-000-00 1/9/02 4,096.24
00-000-00 1/9/02 14,520.76
00-000-00 1/16/02 10,201.15
Subtotal 185,168.59
Posven
Note: The following invoices have been presented to Raytheon for payment.
Raytheon has not yet agreed to pay such amounts. WGI and Raytheon will meet (in
person or by phone) to review these invoices and mutually agree within 45 days
which invoices should be paid by Raytheon.
Invoice Invoice Amount
Number Date Invoiced
00-000-00 10/17/01 233,045.26
00-000-00 10/17/01 13,235.68
00-000-00 10/17/01 76,758.22
00-000-00 10/24/01 74,702.42
00-000-00 10/24/01 16,704.10
00-000-00 10/24/01 786.79
00-000-00 10/31/01 (23,979.68)
00-000-00 10/31/01 43,284.10
00-000-00 10/31/01 12,629.23
00-000-00 11/7/01 4,630.17
00-000-00 11/7/01 18,620.93
00-000-00 11/14/01 8,751.89
00-000-00 11/21/01 13,434.70
00-000-00 11/28/01 5,749.95
00-000-00 11/28/01 40,650.08
00-000-00 12/12/01 224,655.84
00-000-00 12/12/01 25,171.72
00-000-00 12/26/01 3,979.42
00-000-00 12/26/01 18,317.41
00-000-00 1/7/02 5,804.06
00-000-00 1/7/02 165,246.13
00-000-00 1/3/02 6,480.69
00-000-00 1/16/02 19,516.03
00-000-00 1/16/02 53,862.63
Subtotal 1,062,037.77
SALTEND US$
Invoice Invoice Amount
Number Date Invoiced
00-000-00 1/9/02 95,893.21
00-000-00 1/9/02 9,176.90
00-000-00 1/17/02 4,978.92
00-000-00 1/21/02 30,491.40
Subtotal 140,540.43
Xxxxxx Xxxxx
0000000 30,241.25
Damhead 67,339.00
For continuing warranty work
Invoice to be prepared and parties will then review and mutually agree
Total US$ 1,858,516.47
Saltend Pound Sterling
Invoice Invoice Amount
Number Date Invoiced
22819-0039 1/8/02 96,657.66
22819-0040 1/8/02 61,910.12
22819-0041 1/8/02 24,528.70
22819-0042 1/8/02 16,542.30
22819-0043 1/8/02 61,597.96
Total Pound Sterling 261,236.74
Xxxxxx Xxxxxxxx - Kmart Info Page 1
From: Xxxxxx Xxxxxxxx
To: Xxxx, Xxxxxxx; Xxxxxx, Van; Xxxxxxx, X. Xxxxx; Xxxxx, Xxxxxxx;
XxXxxxxxx, Xxxx; Xxxxxx, Xxxxxxxx; Xxxxxx, Xxxxx; Xxxxxx, Xxxxxxx X.;
Xxxxxxxx, Xxxxx; Xxxxx, Xxxx; Xxxxxxx, Xxxxxx
Subject: Kmart Info
The attachments contain pdf versions of all of the first day motions and orders
filed with the court. Tab 1 is the agenda. If it is necessary to forward a
filing to someone, please use these pdfs and not the WordPerfect files on the
system as they may differ. These pdfs will be loaded onto DocsOpen in the near
future.
If someone contacts you asking simply for a copy of the filings, direct them to
Landmark Document Services at 312-845-1000.
If someone contacts you regarding a general Kmart inquiry, the company has set
up the following 800 number: ccccccccccccccc
Finally, for your reference, the general number for legal inquiries that has
been set up at Skadden is 000-000-0000.
Xxxxxx
SCHEDULE 17
CLIENT PARTIES WITH ACCESS
X. Xxxxxxxx
X. Xxxxxxxxxx
X. Xxxxxxx
X. Xxxxxx
X. Xxxxx
X. Xxxxx
X. Xxxxx
X. Xxxxxxx
X. Xxxxxxxx
X. Xxxxx
X. Xxxxxxxx
Xxxxx & Xxxxx and S&W Representative(s) to be named
SCHEDULE 19
FORM OF WGI (DELAWARE) GUARANTY
AGREEMENT FOR CONSULTING
AND PROFESSIONAL SERVICES
WGI GUARANTY
This GUARANTY (this "Guaranty") is made as of January___________, 2002,
by Washington Group International, Inc, a corporation organized and existing
under the laws of Delaware, U.S.A. (the "Guarantor"), in favor of Raytheon
Engineers & Constructors International, Inc., a corporation organized and
existing under the laws of Delaware, U.S.A. ("RECI"), and Raytheon Company, a
corporation organized and existing under the laws of Delaware, U.S.A. ("Parent",
and together with RECI, "Raytheon").
WITNESSETH:
WHEREAS, Washington Group International, Inc., a corporation organized
and existing under the laws of Ohio, U.S.A. ("Consultant") and Raytheon entered
into that certain Agreement for Consulting and Professional Services dated as of
January_______, 2002 (the "Services Agreement") whereby Consultant agreed to
provide certain services and personnel to assist Raytheon in performing its
obligations under the Support Agreements (as that term is defined in the
Services Agreement);
WHEREAS, on May 14, 2001, Consultant and Guarantor each filed voluntary
bankruptcy petitions (the "Original Bankruptcy Filing") in the United States
Bankruptcy Court (the "Bankruptcy Court") for the District of Nevada;
WHEREAS, Consultant is a wholly-owned subsidiary of the Guarantor; and
WHEREAS, pursuant to Section 19(a) of the Services Agreement, Guarantor
is required to unconditionally and irrevocably guaranty to Raytheon and its
designees, the due and prompt performance and payment when due of each and every
obligation, responsibility, undertaking, representation, warranty, covenant and
agreement of Consultant under the Services Agreement;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Guarantor hereby agrees as follows:
ARTICLE I
DEFINITIONS
All capitalized terms not defined herein shall have the meanings
ascribed to them in the Services Agreement.
ARTICLE II
GUARANTY
Section 2.1 Guaranty
(a) The Guarantor hereby unconditionally and irrevocably guarantees,
as primary obligor, to Raytheon, the due and punctual payment and performance as
and when due of the obligations, responsibilities, undertakings,
representations, warranties, payment covenants, obligations and agreements of
Consultant under the Services Agreement, including, without limitation, all
damages provided for in the Services Agreement (other than damages expressly
excluded therein) payable as a result of a default thereunder by Consultant. The
Guarantor agrees, as the principal obligor and not as a guarantor only, to pay
Raytheon, on demand, all costs and expenses (including court costs and
reasonable attorneys' fees) incurred by Raytheon in the enforcement of any of
its rights under this Guaranty, without setoff, counterclaim, recoupment or any
other item of reduction.
(b) If, for any reason, Consultant shall fail duly and punctually to
pay any such sum, or perform any such obligation, as provided in the Services
Agreement, the Guarantor, subject to the terms of this Guaranty, shall (i) pay
any such sum together with interest thereon, if any, as provided in the Services
Agreement, and (ii) commence performance of such obligations as provided
therein, in each case not later than five (5) days after the date of written
notice from Raytheon, and thereafter diligently pursue completion of the same.
In the event that the Consultant rejects or otherwise abandons its obligations
under the Services Agreement, at the election of Raytheon, in its sole and
absolute discretion, Guarantor shall, in performance of its obligations under
this Guaranty, assume, and become primarily liable for all of Consultant's
obligations under, the Services Agreement.
(c) This Guaranty shall be binding upon and enforceable against the
Guarantor without regard to the genuineness, validity or enforceability of the
Services Agreement or any term thereof or lack of power or authority of any
party to enter into the Services Agreement or any amendments thereto, including
any assignment or termination. This Guaranty is not, and shall not in any way
be, conditioned or contingent upon any attempt to collect payment from or
proceed against Consultant, any security held by or for the benefit of Raytheon
in respect of Consultant or any other event or contingency.
Section 2.2 Court Approval.
Guarantor hereby represents and warrants, that it has obtained an order
of the Bankruptcy Court authorizing Guarantor to enter into, deliver and perform
this Guaranty and each and every obligation hereunder, including without
limitation, each and every obligation of Consultant under the Services
Agreement.
Section 2.3 Bankruptcy or Insolvency.
In the event that the Services Agreement shall be terminated as a result
of the rejection or disaffirmance thereof by any trustee, receiver or
liquidating agency of Consultant, or in the event of any rejection of any
properties of Consultant in any assignment for the benefit of creditors or
2
any bankruptcy, insolvency, reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar proceeding (each, an
"Insolvency Event"), the Guarantor's obligations hereunder shall continue to the
same extent as if the Services Agreement had not been so rejected or
disaffirmed. The Guarantor shall, and does hereby, waive all rights and benefits
which might relieve, in whole or in part, the Guarantor from the performance of
its duties and obligations hereunder by reason of any such proceeding, and the
Guarantor agrees that it shall be liable for all sums, including all damages
owed by Consultant under the Services Agreement, and all obligations guaranteed
by this Guaranty irrespective of, and without regard to, any modification,
limitation or discharge of the liability of Consultant that may result from any
such proceeding.
ARTICLE III
ACKNOWLEDGMENT AND AGREEMENTS
Section 3.1 Obligations of Guarantor Absolute, etc.
(a) The obligations of the Guarantor hereunder shall be primary,
original, absolute, unconditional, continuing and irrevocable, and shall not be
subject to any counterclaim, setoff, deduction, abatement or defense based upon
any claim the Guarantor may have against Consultant.
(b) The obligations of the Guarantor hereunder shall not be waived,
modified or deemed to be excused or satisfied as the result of Guarantor's
inability to perform its obligations hereunder due to any physical or legal
impediments whatsoever. Without limiting the generality of the foregoing,
Guarantor's obligations hereunder shall not be waived, modified, or deemed
excused or satisfied, other than to the extent that Consultant's corresponding
obligations are waived, modified, or deemed excused or satisfied, as the result
of (i) force majeures, acts of god, or claims of impossibility or
impracticality, (ii) the inability of Guarantor to obtain or maintain any
necessary permits, licenses or qualifications, or (iii) the existence of any
applicable law, ruling, judgment, decree or order which would otherwise prohibit
or prevent Guarantor from performing its obligations hereunder. In the event
that Guarantor does not perform any or all of its obligations under this
Guaranty (and the Services Agreement), the Guarantor shall indemnify Raytheon
for all costs and expenses (including reasonable attorneys' fees) arising from
or in connection with such non-performance.
(c) The obligations of the Guarantor hereunder shall remain in full
force and effect without regard to, and shall not be released, discharged or in
any way impaired or affected by, any circumstance or condition (whether or not
the Guarantor shall have any knowledge or notice thereof), including but not
limited to:
(i) any amendment or modification of or supplement to the
Services Agreement or any part thereof, or any assignment of transfer of any
part thereof, or any furnishing or acceptance of additional security, or any
release of any security or any failure or inability to perfect any security;
(ii) any failure on the part of Consultant to perform or
comply with any term of the Services Agreement;
3
(iii) the occurrence or continuance of any default by
Consultant under the Services Agreement;
(iv) any waiver, consent, change, extension, indulgence,
release or other action or inaction under or in respect of the Services
Agreement or any exercise or nonexercise of any right, remedy, power or
privilege under or in respect thereof;
(v) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or similar proceeding with respect to
Consultant, any affiliate thereof, or any of its respective properties or
creditors, or any action taken by any court, trustee, receiver or liquidating
agent in any such proceeding, including, without limitation, any termination or
rejection of the Services Agreement, or any assignment thereof by any court,
trustee, receiver or liquidating agent of Consultant or the Guarantor or of any
of their respective properties in any such proceeding or any other Insolvency
Event;
(vi) any act, omission, misrepresentation or breach on the
part of Consultant under the Services Agreement; or
(vii) any change in the direct or indirect ownership of
Consultant or any other party to the Services Agreement or any change, whether
direct or indirect, in the Guarantor's relationship to Consultant, including,
without limitation, any change by reason of any merger or any sale, transfer,
issuance, or other disposition of any stock of Consultant, the Guarantor or any
other entity;
provided that the Guarantor shall be entitled to assert as a defense to
performance under this Guaranty, to the extent Consultant would have the right
to assert such defense under the Services Agreement, any defense which is
available to Consultant under the Services Agreement, other than any defenses
arising out of the matters described in clause (v) above, and it being
understood, however, that the Guarantor shall be entitled to the benefits of any
waiver by Raytheon with respect to, or any consent by Raytheon to departure
from, the Services Agreement by Consultant.
Section 3.2 Waiver
With respect to the obligations of the Guarantor under this Guaranty,
the Guarantor irrevocably and unconditionally waives:
(a) Other than the notice required under Section 2.l(b) hereof, all
notices which may be required by statute, rule of law or otherwise to preserve
any rights against the Guarantor hereunder, including, without limitation, any
demand, protest, presentment, proof of notice of non-payment of all sums,
including damages, payable under the Services Agreement or any notice to the
Guarantor of any failure on the part of Consultant to perform or comply with any
covenant, term or obligation of the Services Agreement;
(b) any requirement for the enforcement, assertion or exercise of
any right, remedy, power or privilege under or in respect of the Services
Agreement;
(c) any requirement that Consultant be joined as a party to any
proceedings for the enforcement of any provision of this Guaranty;
4
(d) any other common law or statutory defense of a secondary
obligor, guarantor or surety, including, without limitation, any defense based
upon the impairment of any collateral securing any of Consultant's obligations
under the Services Agreement; and
(e) any and all rights of subrogation to any of the rights of
Raytheon or any other party, of any kind or nature whatsoever, arising from or
in connection with the Services Agreement or this Guaranty.
Section 3.3 Currency and Manner of Payment
All payments of collection and enforcement expenses owed under Section
2.1 above by the Guarantor under this Guaranty shall be made in U.S. dollars by
wire transfer in immediately available funds to such accounts as Raytheon shall
designate in writing.
Section 3.4 Obligations Not Expanded
Except as specifically set forth in this Guaranty, the Guarantor shall
under no circumstances whatsoever have any greater liability, obligation or duty
under this Guaranty than if the Guarantor had been originally named as the
Consultant under the Services Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Guarantor hereby represents and warrants as follows:
Section 4.1 Authority
The Guarantor is a corporation duly organized and validly existing under
the laws of the State of Delaware, U.S.A., and has all requisite power and
authority to execute, deliver and perform this Guaranty in accordance with the
terms hereof, to own and operate its properties and to carry on its business.
All necessary actions to authorize the Guarantor's execution, delivery, and
performance of this Guaranty have been taken. This Guaranty has been duly
executed and delivered by the Guarantor and constitutes its legal, valid, and
binding obligation enforceable against it in accordance with the terms hereof,
except as the enforceability hereof may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of creditors'
rights generally or general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
Section 4.2 No Consent
All authorizations, licenses, permits and other governmental approvals
that are necessary for the execution and delivery by the Guarantor of this
Guaranty and the performance of its obligations hereunder have been duly
obtained and are in full force and effect.
5
Section 4.3 No Violation or Conflict
The execution, delivery, and performance by the Guarantor of this
Guaranty do not require the consent or approval of any of its creditors and will
not conflict with or constitute a breach or default under or violate any
provision of the charter documents of the Guarantor or constitute a material
breach or default under any agreement to which the Guarantor is a party.
ARTICLE V
MISCELLANEOUS
Section 5.1 Benefit of Guaranty
Nothing in this Guaranty, or implied herein, shall give or be construed
to give to any person other than Raytheon, and its successors and permitted
assigns hereunder, any legal or equitable right, remedy or claim under this
Guaranty, or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of Raytheon.
Section 5.2 Successors or Assigns
(a) This Guaranty shall bind the successors and assigns of the Guarantor
and shall inure to the benefit of Raytheon and its successors and assigns.
(b) The Guarantor hereby consents to any assignment of this Guaranty
in whole or in part by Raytheon, after Guarantor receives reasonable written
notice thereof. No assignment of this Guaranty, nor any delegation of
Guarantor's duties hereunder, may be made by the Guarantor without the prior
written consent of Raytheon.
Section 5.3 Notices
Each notice, demand, report, or communication relating to this Guaranty
shall be in writing, shall be hand-delivered or sent by registered mail (postage
prepaid, return receipt requested) or by facsimile transmission (with a copy
sent by registered mail, postage prepaid, return receipt requested, which copy
shall not be required to effect notice), and shall be deemed duly given when
sent to the following addresses, or to such other address or number as each
party shall have last specified by notice to the other parties.
If to Raytheon, to:
Raytheon Engineers & Constructors International, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy sent contemporaneously to Raytheon's counsel at:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
6
Attention: Xxxx X. Xxxxxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Guarantor, to:
Washington Group International
Attn: Xxxxx X. Xxxxx
Executive Vice President
000 Xxxxxxxx Xxxxxx Xxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Section 5.4 Counterparts
This Guaranty may be executed in separate counterparts, each of which
when so executed and delivered, shall be deemed an original and shall together
constitute but one and the same instrument.
Section 5.5 Governing Law
This Guaranty shall be governed by and construed in accordance with the
laws of the State of New York, United States of America, without regard to the
conflict of law rules thereof other than Section 5-1401 of the General
Obligations Law of the State of New York. Any action or other proceeding brought
under or in connection with this Guaranty and the transactions contemplated
hereby shall be brought and heard only in an appropriate state or federal court
located in the State of New York, U.S.A. Each of Guarantor and Raytheon
acknowledges and agrees that such courts shall have exclusive jurisdiction to
interpret and enforce the provisions of this Guaranty, and each of them hereby
waives any and all objections that they might have as to personal jurisdiction
or venue in any of the above courts.
Section 5.6 Termination
The obligations of the Guarantor hereunder shall terminate upon the
date on which all of the obligations of Consultant under the Services Agreement
have been discharged; provided that this Guaranty shall be reinstated if at any
time any payment made prior to termination of this Guaranty in accordance with
its terms is rescinded or must otherwise be returned upon the bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation
or similar proceeding with respect to Consultant or its properties, all as
though such payment had not been made.
Section 5.7 Entire Agreement
This Guaranty constitutes the entire agreement between the Guarantor and
Raytheon with respect to the subject matter hereof and supersedes all prior
agreements, whether written or oral, with respect to the subject matter
contained in this Guaranty.
7
Section 5.8 Amendments
No amendment or modification of all or any part of this Guaranty shall
be effective unless in writing and signed by the Guarantor and Raytheon.
Section 5.9 Severability
If any provision of this Guaranty is prohibited or held to be invalid,
illegal or unenforceable in any jurisdiction, the parties hereto agree to the
fullest extent permitted by law that the validity, legality and enforceability
of the other provisions in such jurisdiction shall not be affected or impaired
thereby.
[Signature Page to Follow]
8
IN WITNESS WHEREOF, the Guarantor has executed this WGI Dealware
Guaranty (Services Agreement) and each of RECI and Parent acknowledged and
accepted the same as of the day and year first set forth above.
GUARANTOR
Washington Group International, Inc.,
a Delaware Corporation
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Sr. Vice President & General
Counsel
Acknowledged and Accepted:
Raytheon Company,
a Delaware Corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------
Name : Xxxx X. Xxxxxxx
Title: Sr. Vice President and General Counsel
Raytheon Engineers & Constructions
International, Inc.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
------------------------------
Name : Xxxxxxx X. Xxxxxxxx, Xx.
Title: Sr. Vice President, Secretary and General Counsel
SCHEDULE 1
CLIENT PARTIES WITH ACCESS
X.Xxxxxxxx
X.Xxxxxxxxxxx
X.Xxxxxxx
X.Xxxxxx
X.Xxxxx
X.Xxxxx
X.Xxxxx
X.Xxxxxxx
X.Xxxxxxxx
X.Xxxxx
X.Xxxxxxxx
E&Y and S&W Representative(s) to be named
Schedule 2
Assigned Claims
CLAIMS FILED BY RAYTHEON COMPANY AS ASSIGNEEE OF CLAIMS
-----------------------------------------------------------------------------------------------
NO. CREDITOR ASSIGNOR DEBTOR NAME CASE NO. AMOUNT
(ASSIGNEE)
-----------------------------------------------------------------------------------------------
1. Raytheon Company X. Xxxxxxxxxxx Badger Energy, BK-N-01-31639 $ 3,726.00
& Co. Inc.
-----------------------------------------------------------------------------------------------
2. Raytheon Company Xxxxxx Xxxx & Xxxxxx Energy, BK-N-01-31639 $ 151,116.14
Priest LLP Inc.
-----------------------------------------------------------------------------------------------
3. Raytheon Company Xxxxx & Co. Badger Energy, BK-N-01-31639 $ 83,813.75
Inc.
-----------------------------------------------------------------------------------------------
4. Raytheon Company Xxxxx & XxXxxxxx Energy Overseas BK-N-01-31645 $ 151,840.48
International,
Inc.
-----------------------------------------------------------------------------------------------
5. Raytheon Company Xxxxxx Xxxx & Energy Overseas BK-N-01-31645 See #s 2,9 and 14
Priest LLP International,
Inc.
-----------------------------------------------------------------------------------------------
6. Raytheon Company Bendinger, Xxxxxxx-Xxxxxxx, XX-N-01-31663 $ 8,337.27
Xxxxxxxx, Inc.
Xxxxxxxxx &
Xxxxx, A
Professional
Corporation
-----------------------------------------------------------------------------------------------
7. Raytheon Company Xxxxxx Xxxxxxxx XxXxxxx-Xxxxxxxx XX-X-00-00000 $ 2,404.60
Xxxxxx & & Associates,
Pulman, A Inc.
Professional
Corporation
-----------------------------------------------------------------------------------------------
8. Raytheon Company Xxxxx Xxxxxxxx Raytheon-Ebasco BK-N-01-31665 $ 74,603.00
& Flexner LLP Overseas, Ltd.
-----------------------------------------------------------------------------------------------
9. Raytheon Company Xxxxxx Xxxx & Raytheon-Ebasco BK-N-01-31665 See#2
Priest LLP Overseas, Ltd.
-----------------------------------------------------------------------------------------------
10. Raytheon Company Xxxxx & Co. Raytheon-Ebasco BK-N-01-31665 See#3
Overseas, Ltd.
-----------------------------------------------------------------------------------------------
11. Raytheon Company X. Xxxxxxxxxxx Raytheon-Ebasco BK-N-01-31665 See#1
Overseas, Ltd.
-----------------------------------------------------------------------------------------------
12. Raytheon Company Xxxxx & XxXxxxxx United BK-N-01-31681 See#4
Engineers
International,
Inc.
-----------------------------------------------------------------------------------------------
13. Raytheon Company Xxxxxx Xxxxxx Xxxxxx XX-X-00-00000 $ 25,422.00
LLP Engineers
International,
Inc.
-----------------------------------------------------------------------------------------------
14. Raytheon Company Xxxxxx Xxxx & United BK-N-01-31681 $ 202,874.44
Priest LLP Engineers
International,
Inc.
-----------------------------------------------------------------------------------------------
15. Raytheon Company Law Firm of United BK-N-01-31682 $ 5,398.00
Salah Al Mid-East, Inc.
Hejailan
-----------------------------------------------------------------------------------------------
16. Raytheon Company Xxxxxx Xxxx & United BK-N-01-31682 $ 172.00
Priest LLP Mid-East, Inc.
-----------------------------------------------------------------------------------------------
17. Raytheon Company Xxxxxxx Xxxx Xxxxxxxxxx XX-X-00-00000 $ 262,810.69
LLP Catalytic Inc.
-----------------------------------------------------------------------------------------------
18. Raytheon Company X'Xxxxx Xxxxxxxxxx XX-N-01-31660 $ 23,685.69
Xxxxxxxxx Catalytic Inc.
Xxxxxxx &
Xxxxx-Xxxxx,
P.S.C.
-----------------------------------------------------------------------------------------------
19. Raytheon Company Xxxxxxx Xxxxx & Xxxxxxxxxx XX-N-01-31628 $ 196.60
Xxxxx Group
International,
Inc. (Ohio)
-----------------------------------------------------------------------------------------------
20. Raytheon Company Xxxxxx & Xxxxxxxxxx XX-X-00-00000 $ 60,922.89
Mrowriec Group
International,
Inc. (Ohio)
-----------------------------------------------------------------------------------------------
21. Raytheon Company Xxxxxxxx Xxxxxxxxxx XX-X-00-00000 $ 4,081.07
Engineers Inc. Group
International,
Inc. (Ohio)
-----------------------------------------------------------------------------------------------
22. Raytheon Company Xxxxxx Xxxxxx Xxxxxxxxxx XX-X-00-00000 See#13
LLP Group
International,
Inc. (Ohio)
-----------------------------------------------------------------------------------------------
23. Raytheon Company Xxxxx Xxxxxxx Xxxxxxxxxx XX-X-00-00000 $ 160,947.11
XxXxxxxxx & Group
Xxxxx, P.L.C. International,
Inc. (Ohio)
-----------------------------------------------------------------------------------------------
24. Raytheon Company Xxxxxx Xxxx & Xxxxxxxxxx XX-N-01-31628 $ 46,516.05
Priest LLP Group
International,
Inc. (Ohio)
-----------------------------------------------------------------------------------------------
25. Raytheon Company Xxxxxx Xxxx Xxxxxxxxxx XX-X-00-00000 $ 4,158.00
Group
International,
Inc. (Ohio)
-----------------------------------------------------------------------------------------------
26. Raytheon Company Venable, Xxxxxxxxxx XX-N-01-31628 $ 1,860.00
Baetjer and Group
Xxxxxx, LLP International,
Inc. (Ohio)
-----------------------------------------------------------------------------------------------
27. Raytheon Company Xxxxxx & Xxxxxxxxxx XX-N-01-31628 $ 1,260.00
Associates Group
International,
Inc. (Ohio)
-----------------------------------------------------------------------------------------------
28. Raytheon Company HDH Xxxxxxxxxxxx Xxxxxxxxxx XX-X-00-00000 $ 138,923.22
Consultants, International
Inc. Inc.
-----------------------------------------------------------------------------------------------
29. Raytheon Company Arent Fox Washing Group BK-N-01-31628 $ 96,458.99
Xxxxxxx Xxxxxxx International,
& Xxxx PLLC Inc. (Ohio)
-----------------------------------------------------------------------------------------------
30. Raytheon Company Arent Fox United BK-N-01-31681 See 329
Xxxxxxx Xxxxxxx Engineers
& Xxxx PLLC International,
Inc.
-----------------------------------------------------------------------------------------------
Subtotal: $ 1,511,528.22
-----------------------------------------------------------------------------------------------
18
CLAIMS FILED BY FIRMS; THEN ASSIGNED; RAYTHEON TO FILE TRANSFER NOTICES
--------------------------------------------------------------------------------
NO. FIRM DEBTOR CASE NO. AMOUNT
--------------------------------------------------------------------------------
31. Xxxxx Xxxx Washington Group BK-N-01-31627 $ 7,460.53
Xxxxxxxx and International,
Xxxxxxx LLP Inc. (Del)
--------------------------------------------------------------------------------
32. Xxxxx & Geddes, Washington Group BK-N-01-31627 $ 8,588.59
P.A. International
Inc. (Del)
--------------------------------------------------------------------------------
33. Watt, Tieder, Washington Group BK-N-01-31627 $ 4,971.54
Hoffar & International
Xxxxxxxxxx, Inc. (Del)
L.L.P.
--------------------------------------------------------------------------------
34. Watt, Tieder, Washington Group BK-N-01-31627 $ 642,879.37
Hoffar & International
Xxxxxxxxxx, Inc. (Del)
L.L.P.
--------------------------------------------------------------------------------
35. Seyfarth Xxxx Washington Group BK-N-01-31627 $ 105,709.46
International
Inc. (Del)
--------------------------------------------------------------------------------
36. Seyfarth Xxxx Washington Group BK-N-01-31627 $ 14,471.46
International
Inc. (Del)
--------------------------------------------------------------------------------
Subtotal: $ 784,080.95
--------------------------------------------------------------------------------
Total: $ 2,295,609.17
--------------------------------------------------------------------------------
CLAIMS ASSERTED IN PROCEEDINGS IN THE HAGUE (WBV)
----------------------------------------------------------------
NO. FIRM AMOUNT
----------------------------------------------------------------
37. Xxxxxxx, Xxxxxxx and Xxxxxx LLP $ 17,422.32
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38. Xxxxxxx Van der Laan $ 36,299.75 EURO
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39. Bieten -no response-
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40. Xxxxx Consulting -no response-
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19
SCHEDULE 3
NON-DEBTOR SUBSIDIARIES
.. Albany Cogeneration Associates, L.P.
.. Badger-SMAS Ltd.
.. Broadway Insurance Company, Ltd.
.. Canadian Badger Company, Ltd.
.. Catalytic Servicios, C.A.
.. Constructora MK de Mexico, S.A. de C.V.
.. Cosa-United, C.A.
.. data-Cache Corporation
.. Denver West Remediation & Construction, LLC
.. DISA-Raytheon Ingeniera y Construction, S. de X.X. de V.V.
.. Dulles Transit Partners, LLC
.. Emkay Canada Natural Resources, Ltd.
.. FD/MK Limited Liability Company
.. Gibsin Engineers, Ltd.
.. Gramatages & Associates
.. Grupo Internacional Coahuila, S.A. de C.V.
.. Hampton Roads Public/Private Development, LLC
.. Honeychild Direct Limited
.. International Refinery Contractors (IRC) B.V.
.. International Refinery Contractors C.V.
.. International Refinery Contractors C.V.
.. Xxxxxxx Controls Northern New Mexico, LLC
.. Jordan Rail W.L.L.
.. Meralco Industrial Engineering Services Corporation
.. Mibrag B.V.
.. Xxxxxxx Maraycasa, S.A.
.. Mitteldeutsche Braunkohlengesellschaft GmbH
.. MK Engineers and Contractors, S.A. de C.V.
.. MK/BNFL Commercial Nuclear Services LLC
.. MKF Facilities Managements, Ltd.
.. MKF Leasing L.P.
.. Xxxxxxxx Xxxxxxx B.V.
.. Xxxxxxxx Xxxxxxx Deutschland GmbH
.. Xxxxxxxx Xxxxxxx do Brasil Ltda.
.. Xxxxxxxx Xxxxxxx Engenharia, S.A.
.. Xxxxxxxx-Xxxxxxx Engineering Consulting (Shanghai) Company, Ltd.
.. Xxxxxxxx Xxxxxxx Fort Xxxx Project Ltd., L.L.C.
.. Xxxxxxxx Xxxxxxx Industrial GmbH
.. Xxxxxxxx Xxxxxxx International Trading (Shanghai) Company, Ltd.
.. Xxxxxxxx Xxxxxxx Leasing Corporation
.. Xxxxxxxx Xxxxxxx MISR LLC
.. Xxxxxxxx Xxxxxxx Overseas PTE Ltd.
.. Xxxxxxxx Xxxxxxx Peru Services, S.A.
.. Xxxxxxxx Xxxxxxx Peru Sociedad de Responsabilidad Limitada
.. Xxxxxxxx Xxxxxxx Polska Sp.zo.o
.. Xxxxxxxx Xxxxxxx Thailand Limited
.. Xxxxxxxx Xxxxxxx Umvelt GmbH
.. Xxxxxxxx Xxxxxxx Venezuela S.A.
.. XXX Xxxxxx SNC
.. Northern Construction Company, Ltd.
.. Oak Ridge Site Maintenance Services, LLC
.. Platte River Constructors, Ltd. LLC
.. Posven C.A.
.. PT Xxxxxxxx Xxxxxxx Indonesia
.. PT Power Jawa Barat
.. Raytheon Constructors do Brasil, Ltd.
.. Raytheon Engineers & Constructors (Bermuda) Ltd.
.. Raytheon Engineers & Constructors (Canada) Ltd.
.. Raytheon Engineers & Constructors France S.a.r.l.
.. Raytheon Engineers & Constructors Germany GmbhH
.. Raytheon Engineers & Constructors Italy S.r.l.
.. Raytheon Engineers & Constructors Mauritius, Ltd.
.. Raytheon Engineers & Constructors Pty, Ltd.
.. Raytheon Infrastructure Inc.
.. Raytheon UAE Enterprises, LLC
.. Rocky Mountain Remediation Services, LLC
.. Safe Sites of Colorado, LLC(Rocky Flats)
.. Xxxxxx, LLC
.. SGT Ltd.
.. Shanghai Ebasco-ECEPDI Engineering Corporation
.. Xxxxxxx Catalytic Ingenieria y Construccion Chile Limitada
.. Thai Refinery Constructors
.. Triptych International, LLC
.. Twenty-First Century Rail Corporation
.. UME/SMAS, Ltd.
.. Washington Engineers PSC
.. Washington Group (Malaysia) Sdn. Bhd.
.. Washington Group International Hungary Kft
.. Washington Group Romania S.R.L.
.. Washington International B.V.
.. Washington International Holding Limited
.. Washington Senggara Sdn. Bhd.
.. Washington Transportation Partners, LLC
.. West Valley Nuclear Services Company, LLC
.. Westinghouse Government Environmental Services Company LLC
.. Westinghouse Government Services Company, LLC
.. Westinghouse KAPL, LLC
.. Westinghouse Safety Management Solutions, LLC
.. Westinghouse Savannah River Company, LLC
.. Westinghouse TRU Solutions, LLC (WID GOCO)
.. Westinghouse Y-12 Company, LLC
.. Xxxxxxxxxxxx Resources, Inc.
.. WGNH Acquisition, LLC
.. WSMS Mid-America, LLC
.. WSMS-MK, LLC
JOINT VENTURES
.. Xxxxxxxx/MK New Venture Gear JV
.. Xxxxxxxx - Xxxxxxxxxx - Xxxxxx, A Joint Venture (West Dam)
.. Xxxxx & Root Raytheon Joint Venture
.. Consortium Agreement (Washington Infrastructure Services, Inc.)
.. Consortium Agreement (Siemens/Westinghouse Power Corp.)
(Harqughalaa)
.. Consortium Agreement (Washington Group International, Inc. (OH) &
BNFL USA Group Inc.)
.. Consortium Agreement (Washington Group International, Inc. (OH) & ABB)
.. Consortium Agreement (Washington Group International, Inc. (OH) &
Mitsubishi)
.. Consortium Agreement (Washington Group International, Inc. (OH) &
Mitsubishi)
.. Consortium Agreement (Washington Group International, Inc. (OH) &
Xxxxxx Xxxxxxx Ingr.)
.. Consortium Agreement (Washington Group International, Inc. (OH) &
Bharat Heavy Electricals Limited (BHEL))
.. Consortium Agreement (Washington Group International, Inc. (OH) &
General Electric)
.. Consortium Agreement (Washington Group International, Inc. (OH) &
General Electric)
.. Consortim Agreement (United Engineers International, Inc. & Mitsubishi
Heavy Industries)
.. Consortim Agreement (United Engineers International, Inc. & Mitsubishi
Corporation)
.. Eight Mile Construction Managers
.. Florida Toll Services
.. G/UB/MK Constructors
.. Hill/MK Joint Venture
.. HNTB/UE&C Joint Venture
.. Xxxxxx & Xxxxxx Raytheon
.. ICC (International Consortium Chernobyl) Joint Venture
.. ICC (MK) Joint Venture
.. International Technical Team, Kosovo Consortium, Ltd.
.. kali Gandaki "A" Associates
.. Kiewit/Washington, a Joint Venture
.. Kiewit/Xxxxxx, a Joint Venture
.. LMK Joint Venture (British Airways)
.. LMK Joint Venture (Knowledge Center)
.. MK/Contrack Pager Forge JV
.. MK/IDC
.. MK/Lane
.. MK/MC Joint Venture
.. MK/MW
.. XX-Xxxxxxxx Brazil Joint Venture
.. MKC/PB
.. MKC/PTG
.. MK-HAS
.. MKK Constructors
.. MKK Leasing
.. Xxxxxxxx Xxxxxxx/Xxxxxxx Brothers/Weeks Marine dba MKTW-JV
.. National Missile Defense Constructors
.. NYC DOT
.. PB/XX Xxxxxx Team
.. Raytheon Engineers & constructors
.. Tang/Eng/MK
.. TMI
.. Tri-County Rail Constructors, A Joint Venture
.. Sunland Remediatiors
.. Unnamed (Client is Almabani General Contractor)
.. Unnamed (Client USAID)
.. Unnamed (Client USAID)
.. Unnamed (Client USAID)
.. unnamed (Client is U.S. Army) (Pueblo Chemical Agent Disposal)
.. Upper Egypt Constructors
.. Utah Transit Constructors
.. Wasatch Constructors
.. Washington - Odebrecht Joint Venture
.. Washington Xxxxxxxx Xxxxxxx Airport Venture
.. Washington/Granite Joint Venture
.. UE & C Urban Services, Joint Venture
21
SCHEDULE 4
SUBSIDIARY DEBTORS
.. Asia Badger, Inc.
.. Badger America, Inc.
.. Badger Energy, Inc.
.. Badger Middle East, Inc.
.. Catalytic Industrial Maintenance Co., Inc.
.. CF Environmental Corporation
.. Cia International de Ingenieria, S.A.
.. Ebasco International Corporation
.. Emkay Capital Investments, Inc.
.. Gulf Design Corporation
.. Xxxxxxx-Xxxxxxx, Inc.
.. HCC Holding, Inc.
.. Industrial Constructors Corp.
.. Xxxxxxx & Xxxxxxxx Internaional, Inc.
.. XxXxxxx-Xxxxxxxx & Associates, Inc.
.. MK Aviation Services, Inc.
.. MK Capital Company
.. MK Construction, Inc.
.. MK Nevada, LLC
.. MK Train Control, Inc.
.. XX-Xxxxxxxx Engineering Company
.. XX-Xxxxxxxx of Idaho Company
.. XX-Xxxxxxxx of Oak Ridge Company
.. Xxxxxxxx Xxxxxxx Corporation of Viet Nam
.. Xxxxxxxx Xxxxxxx Company, Inc.
.. Xxxxxxxx Xxxxxxx Engineers, Inc.
.. Xxxxxxxx Xxxxxxx Leasing Corporation
.. Xxxxxxxx Xxxxxxx Services, Inc.
.. National Projects Southwest, Inc.
.. National Projects, Inc.
.. Xxxxxxx Corporation
.. Raytheon Architects, Ltd.
.. Raytheon Constructors International, Inc.
.. Raytheon Engineering Quality Services Corportation
.. Raytheon Engineering & Constructors (Aruba) Ltd.
.. Raytheon Engineering & Constructors (Ireland) Ltd.
.. Raytheon Engineering & Constructors (Panama) Ltd.
.. Raytheon Engineering & Constructors (Russia) Ltd.
.. Raytheon Engineering & Constructors (Trinidad & Tobago) Ltd.
.. Raytheon Engineering & Constructors Latin America Inc.
.. Raytheon Engineering & Constructors Middle East, Ltd.
.. Raytheon Engineering & Constructors Midwest Inc.
.. Raytheon Engineering & Constructors Midwest, LLC
.. Raytheon Nuclear, Inc.
.. Raytheon-Ebasco Indonesia, Ltd.
.. Raytheon-Ebasco Overseas, Ltd.
.. Raytheon-Ebasco Pakistan, Ltd.
.. Raytheon Quality Inspection Company
.. Rust Constructors Inc.
.. Rust Constructors Puerto Rico, Inc.
.. Speciality Technical Services, Inc.
.. Steams Catalytic Corporation
.. United Engineers Far East, Ltd.
.. United Engineers International, Inc.
.. United Mid-East, Inc.
.. Washington Architects, LLC
.. Washington Construction Corporation
.. Washington Demilitarization Company
.. Washington Electrical, Inc.
.. Washington Group International, Inc.(DE)
.. Washington Group International, Inc.(OH)
.. Washington Infrastructure Services, Inc.
.. Washington International, Inc.
.. Washington International, L.L.C.
.. Washington Ohio Services, LLC
.. Washington Quality Programs Company
.. Washington-Catalytic Inc.
.. WCG Holdings, Inc.
.. WCG Leasing, Inc.
.. Yampa Mining Co.
