Opinion
Joint Administration Under Case No. BK-N-01-31627-GWZ.
April 20, 2004
Thomas P. Erwin, Esq., Erwin Thompson LLP, Reno Nevada, and Michael P. Cotter, Esq., Vandeventer Black LLP, Norfolk, Virginia, Attorneys for Kier Construction Limited.
Sylvia Harrison, McDonald Carano Wilson LLP, Reno, Nevada, and Todd J. Dressel, Esq., Winston Strawn LLP, San Francisco, CA, Attorneys for the Plan Committee.
PATRICK A. MURPHY (CA S.B. No. 038832) GABRIEL M. BLOCK (CA S.B. No. 197352) San Francisco, CA, Attorneys for the PLAN COMMITTEE.
STIPULATED ORDER REGARDING CLAIMS OF KIER CONSTRUCTION LIMITED (CLAIM NOS. 15636 6859)
The Plan Committee (the "Committee") in these Chapter 11 bankruptcy cases (collectively, the "Proceeding") of Washington Group International, Inc., et al. (the "Debtors"), and Kier Construction Limited ("Kier"), hereby stipulate and agree and this Court hereby finds and orders as follows (the "Stipulated Order"):
On August 24, 2001, Kier filed Claim No. 6859 in the amount of $178,223.19, for amounts allegedly owed arising from a subcontract related to the Damhead Power Plant Project in the United Kingdom (the "Damhead Claim"). On December 17, 2001, Kier filed Claim No. 15636 in the amount of $12,573,618.00, for amounts allegedly owed arising from a subcontract related to the Saltend Power Plant Project in the United Kingdom (the "Saltend Claim") (hereinafter the Damhead and Saltend Claims are collectively referred to as the "Kier Claims").
On October 7, 2003, the Court entered an Order (the "Kier Order") whereby the Kier Claims were to be liquidated in the pending insolvency proceeding in the United Kingdom related to the Debtor entity Washington International, LLC (the "UK Insolvency"). Kier has submitted proofs of debt in the UK Insolvency that correspond to the Saltend and Damhead Claims (the "Insolvency Claims").
Pursuant to the Debtors' Plan of Reorganization, the Committee is authorized to settle certain Claims against the Debtors. Subsequent to the entry of the Kier Order, the Committee and Kier have reached an agreement settling and resolving the differences and disputes relating to the Kier Claims and agreeing to an amount for Kier's Class 7 Allowed Claims for purposes of the Proceeding.
Unless otherwise noted, defined terms shall have the meaning assigned in the Confirmation Order or the Plan.
The Committee and Kier desire, and by this Stipulated Order intend, to, and do hereby, resolve and settle all existing and future differences and disputes relating to the Kier Claims as provided herein. This Stipulated Order relates only to the Committee, the Debtors and Kier, and does not bind or affect any other person, including without limitation the Raytheon Company or any of its related entities, and is not for the benefit of any other person, and shall not be construed to have any effect of res judicata, claim preclusion, collateral estoppel or issue preclusion as it applies to any party other than the Committee, the Debtors or Kier. The parties hereto, by entering into this Stipulated Order, agree that this Stipulated Order is not a determination of any allegations raised in the Kier Claims and any amount agreed to between the Committee and Kier as an Allowed Class 7 Claim is solely for the purpose of the Proceeding.
Except for settling finally and fully all existing and future differences and disputes between the Debtors and Kier for purposes of only this Proceeding related to the Kier Claims and establishing the stipulated amount of the Allowed Class 7 Claims in the Proceeding, the Committee and Kier agree that nothing contained in this Stipulated Order shall be construed to have the effect of res judicata, claim preclusion, collateral estoppel or issue preclusion, or to affect the rights or obligations of third parties in any way and Kier agrees not to assert a position inconsistent with the foregoing as to third parties in any litigation or dispute resolution procedure outside this Proceeding.
Except for the obligations imposed by this Stipulated Order or which are otherwise created by this Stipulated Order, the Committee and Kier, each hereby release, discharge and acquit the other, from any and all claims, demands, costs, liabilities, objections, and causes of action, whether known or unknown, whether suspected or unsuspected that relate to or arise from the allegations in the Kier Claims.
By this Stipulated Order neither party admits liability to the other in connection with any potential claims related to the Kier Claims. Additionally, the parties agree that this Stipulated Order does not affect the rights of third parties, and nothing in this Stipulated Order shall be construed as an admission by either party or any non-party of unlawful or otherwise actionable conduct on its part.
NOW, THEREFORE, in accordance with the foregoing, and intending to be legally bound, the parties, by and through their respective undersigned counsel, do hereby agree and stipulate as follows:
1. In resolution and in full satisfaction of Claim No. 6859, Kier shall be granted an Allowed Class 7 Claim in the amount of $178,223.19.
2. In resolution and in full satisfaction of Claim No. 15636, Kier shall be granted an Allowed Class 7 Claim in the amount of $12,573,618.00.
3. Any distribution on account of Kier's Allowed Class 7 Claims shall be held by the Disbursing Agent until an agreement satisfactory to the Committee under 11 U.S.C. § 1123(a)(4) can be obtained between the Committee, Kier and the liquidator in the UK Insolvency related to the Insolvency Claims or Kier waives the right to any distribution in the UK Insolvency. STIPULATED and AGREED: SO ORDERED.