Exhibit 10.6
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 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and WASHINGTON GROUP
INTERNATIONAL, INC., an Ohio corporation (hereinafter "CONSULTANT" or
"WASHINGTON") having a place of business located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
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 of 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;
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WHEREAS, pursuant to a letter agreement, dated January 9, 2001 ("PUERTO
PLATA AGREEMENT"), among WGI Delaware, Raytheon and Lexington Insurance relating
to the Puerto Plata 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, ▇▇▇▇▇▇,
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 other 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
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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
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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)
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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
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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
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efforts to timely cure any condition or event which in the
reasonable 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
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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.
5. WARRANTY EXCLUSION
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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:
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(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)
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and 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,
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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 man-hours 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.
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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.
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
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Raytheon Engineers & Constructors
International, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy sent contemporaneously to:
▇▇▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Washington to:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
17
With a copy sent contemporaneously to:
▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President - Contracts
Washington Group International, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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.
l) 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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: Senior Vice President
and General Counsel
---------------------------------
RAYTHEON ENGINEERS & CONSTRUCTORS
INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
-----------------------------------------
Nane: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
---------------------------------
Title: Senior Vice President,
Secretary and General Counsel
--------------------------------
WASHINGTON GROUP INTERNATIONAL, INC.,
an Ohio corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Senior Vice President
and General Counsel
---------------------------------
SEEN AND CONSENTED TO:
OFFICIAL COMMITTEE OF
UNSECURED CREDITORS
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: Counsel
---------------------------------
20