Opinion
Joint Administration Under Case No. BK-N-01-31627-GWZ.
May 5, 2004
WINSTON STRAWN LLP, PATRICK A. MURPHY (CA S.B. No. 038832), TODD J. DRESSEL (NV S.B. No. 5936), GABRIEL M. BLOCK (CA S.B. No. 197352), San Francisco, CA,
McDONALD CARANO WILSON LLP, SYLVIA HARRISON (NV S.B. No. 4106), Reno, NV, Attorneys for the PLAN COMMITTEE.
Robert Kinas, Snell Wilmer, Las Vegas NV. and Simon Delves, Esq. Melissa Moriarty, Esq, Shadbolt Co. Surrey, United Kingdom. Lightning Electrical Construction, Ltd. and KL International Associates, Ltd.
The Plan Committee (the "Committee") in these Chapter 11 bankruptcy cases (collectively, the "Proceeding") of Washington Group International, Inc., et al. (the "Debtors"), and KL International Associates Limited ("KLIA"), and Lightning Electrical Construction Limited ("LEC", with KLIA collectively "Claimants") hereby stipulate and agree and this Court hereby finds and orders as follows (the "Stipulated Order"):
On August 27, 2001, KLIA filed Claim No. 5448 in the amount of $927,996.88, for amounts allegedly arising from a subcontract for services relating to the Damhead Power Plant in the United Kingdom (the "KLIA Claim").
On August 27, 2001, LEC filed Claim No. 5449 in the amount of $12,552,657.56, for amounts allegedly arising from a subcontract for services relating to the Damhead and Saltend Power Plants in the United Kingdom (the "LEC Claim"), (together with the KLIA Claim, the "Claims").
On October 10, 2003, seeking to liquidate the value of its Claim, KLIA filed Adversary Proceeding 05-05109 (the "KLIA Adversary").
On October 10, 2003, seeking to liquidate the value of its Claim, LEC filed Adversary Proceeding No. 03-05110 (the "LEC Adversary"), (together with the KLIA Adversary, the "Adversaries").
On May 13, 2003, the Committee filed Adversary Proceeding No. 03-5054 against KLIA and Adversary Proceeding No. 03-5053 against LEC seeking to avoid and recover certain allegedly preferential transfers (collectively the "Preference Proceedings").
Pursuant to the Debtors' Plan of Reorganization, the Committee is authorized to settle certain claims against the Debtors. The Committee and the Claimants have reached an agreement settling and resolving the differences and disputes relating to the Claims, the Adversaries, and the Preference Proceedings, and agreeing to the amount of the Claimants' Class 7 Allowed Claim for purposes of the Proceeding.
The Committee, the Debtors, and Claimants desire, and by this Stipulated Order intend, to, and do hereby, resolve and settle all existing and future differences and disputes relating to the Claims, the Adversaries, and the Preference Proceedings as provided herein. This Stipulated Order relates only to the Committee, the Debtors and Claimants, and does not bind or affect any other person 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 Claimants. The parties hereto, by entering into this Stipulated Order, agree that this Stipulated Order is not a determination of any allegations raised in the Claims and any amount agreed to between the Committee and the Claimants 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 Claimants for purposes of only this Proceeding related to the Claims, the Adversaries, and the Preference Proceedings and establishing the stipulated amount of the Allowed Class 7 Claim in the Proceeding, the Committee and Claimants 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 the Claimants, the Committee and the Debtors agree 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 Claimants, 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 Claims, the Adversaries, and the Preference Proceedings.
By this Stipulated Order neither party admits liability to the other in connection with any potential claims related to the Claims, the Adversaries and/or the Preference Proceedings. Additionally, the parties agree that this stipulated order does not affect the rights of third parties, and nothing in this stipulation 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. For administrative purposes only, Claim No. 5449 shall be an allowed Class 7 claim in the amount of $10,000,000.00 which sum represents damages consequent upon breaches of contract. This amount shall be in resolution and in full satisfaction of both claims as submitted against Washington Group International Inc only and damages for Claim No. 5448 shall be disallowed.
2. The Adversaries, numbered 05-05109 and 05-05110, shall be dismissed, with prejudice, upon the Court's execution of the Stipulated Order.
3. The Preference Proceedings, numbered 03-5053 and 03-5054, shall be dismissed, with prejudice, upon the Court's execution of the Stipulated Order.