Exhibit 10.4
TRUST AND DISBURSING AGREEMENT
AMONG
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
THE OFFICIAL UNSECURED CREDITORS' COMMITTEE
AND
WASHINGTON GROUP INTERNATIONAL, INC.
DATED AS OF JANUARY 25, 2002
TABLE OF CONTENTS
PAGE
1. Designation and Acceptance of Trustee and Disbursing Agent.............1
2. Establishment of Accounts..............................................1
3. Investment of Cash.....................................................2
4. Distributions of Plan Consideration....................................2
5. Procedures Regarding Plan Consideration................................4
6. Certain Procedures Regarding Distributions.............................4
7. [INTENTIONALLY OMITTED]................................................6
8. Unclaimed and Undeliverable Distributions..............................6
9. Dividends..............................................................7
10. Tax Reporting and Withholding..........................................8
11. Tax Reporting and Payments for Disputed Claims Reserves................8
12. Information Reports....................................................8
13. Scope of Xxxxx Fargo's Duties..........................................9
14. Indemnification........................................................9
15. Term of Agreement.....................................................10
16. Fees and Expenses.....................................................10
17. Authorized Officers...................................................10
18. Notices...............................................................11
19. Successors and Assigns................................................12
20. Successor by Merger...................................................12
21. Governing Law; Jurisdiction...........................................12
22. Severability..........................................................13
23. Amendments; Waivers...................................................13
24. Entire Agreement......................................................13
25. Section Headings......................................................13
26. Counterparts..........................................................13
-i-
TABLE OF EXHIBITS
EXHIBIT A List of Initial Accounts
EXHIBIT B Agency and Custody Account Directions for Cash Balances
EXHIBIT C Fee Schedule
EXHIBIT D-1 Company Authorized Officer Certificate
EXHIBIT D-2 Plan Committee Authorized Officer Certificate
-ii-
TRUST AND DISBURSING AGREEMENT
This
Trust and Disbursing Agreement (this "Agreement") is entered into as of
January 25, 2002 (the "Effective Date") pursuant to the Second Amended Joint
Plan of Reorganization of Washington Group International, Inc., et al., dated
July 24, 2001, as modified (the "Plan"), among XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, a national banking association ("Xxxxx Fargo"), the
OFFICIAL UNSECURED CREDITORS' COMMITTEE established by the Plan (the
"Creditors' Committee"), and WASHINGTON GROUP INTERNATIONAL, INC., a
corporation organized under the laws of Delaware (the "Company").
RECITALS
FIRST: In the chapter 11 cases in the United States Bankruptcy Court for the
District of Nevada known as IN RE WASHINGTON GROUP INTERNATIONAL, INC., ET
AL., JOINTLY ADMINISTERED CASE NO. BK-N-01-31627, the United States
Bankruptcy Court for the District of Nevada (the "Bankruptcy Court")
confirmed the Plan on December 21, 2001. All capitalized terms not otherwise
defined herein shall have the meanings ascribed to them in the Plan.
SECOND: The Plan provides for distributions of cash, New Common Shares, Class 7
Stock Warrants and the proceeds, if any, of the Transferred Avoidance Actions
(collectively, the "Plan Consideration") to holders of Allowed Claims.
THIRD: The Plan provides that the Creditors' Committee will continue to exist as
the Plan Committee after the Effective Date, pursuant to the Plan Committee
Document, in order to prosecute objections to Disputed Class 7 Claims, to pursue
recovery of the avoiding actions, to monitor implementation of the Plan, and to
take such other actions as are set forth in the Plan, the Confirmation Order or
the Plan Committee Document or as may be approved or ordered by the Bankruptcy
Court.
FOURTH: The Creditors' Committee and the Company desire to designate Xxxxx Fargo
as Disbursing Agent and Trustee, and Xxxxx Fargo desires to accept the
designation subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein and other good
and valuable consideration, the Company, the Creditors' Committee and Xxxxx
Fargo agree as follows:
1. DESIGNATION AND ACCEPTANCE OF TRUSTEE AND DISBURSING AGENT. The Company
and the Creditors' Committee hereby designate Xxxxx Fargo to act pursuant
to the Plan and in accordance with the instructions set forth in this
Agreement. Xxxxx Fargo hereby accepts such designation and agrees to be
bound by and comply with the terms of this Agreement.
2. ESTABLISHMENT OF ACCOUNTS. Xxxxx Fargo will establish the segregated
accounts described on EXHIBIT A hereto and such other segregated accounts
as the Company may require from time to time to receive and hold Plan
Consideration pending distribution
thereof to holders of Allowed Claims (such accounts being referred to
herein collectively as "Accounts").
3. INVESTMENT OF CASH. Xxxxx Fargo is hereby authorized and directed to
invest any cash in the Accounts, and any interest thereon, pursuant to
the Agency and Custody Account Direction for Cash Balances form
attached hereto as EXHIBIT B.
4. DISTRIBUTIONS OF PLAN CONSIDERATION.
a. CLASS 6 DISTRIBUTIONS.
(1) As provided in the Plan, on the Effective Date and subject to
Section 3.3(a) of the Plan, holders of Allowed Claims in Class
6 will be entitled to receive distributions pursuant to the
Plan as follows:
(a) a Pro Rata share of $20,000,000.00 in cash; and
(b) a Pro Rata share of 20,000,000 shares of New Common
Shares.
On the Effective Date, Xxxxx Fargo will administer such
distributions pursuant to this Agreement and in accordance
with the written instructions of the Company.
(2) The Company will provide to Xxxxx Fargo a list of the holders
of Allowed Claims in Class 6 as of the Effective Date,
indicating for each (a) such holder's name, (b) such holder's
address, (c) wire transfer instructions for such holder, if
applicable, (d) a unique identification number for such claim,
if applicable, (e) such holder's taxpayer identification
number, if available, (f) whether such holder is subject to or
exempt from backup withholding, if known, and (g) the amount
of such holder's Claim (collectively, "Applicable Holder
Distribution Information").
b. CLASS 7 DISTRIBUTIONS.
(1) As provided in the Plan, on or as soon as practicable after
the Effective Date and subject to Sections 3.3(b) and 8.2(b)
of the Plan, each holder of Allowed Claims in Class 7 will be
entitled to receive distributions pursuant to the Plan as
follows:
(a) a Pro Rata share of 5,000,000 shares of New Common
Shares;
(b) a Pro Rata share of the Tranche A Class 7 Warrants
exercisable to purchase 3,086,420 shares of New Common
Shares, subject to adjustment pursuant to the warrant
agreement dated as of the date hereof, between
Washington Group International, Inc. and Xxxxx Fargo, as
warrant agent (the "Warrant Agreement");
(c) a Pro Rata share of the Tranche B Class 7 Warrants
exercisable to purchase 3,527,337 shares of New Common
Shares, subject to adjustment pursuant to the Warrant
Agreement;
(d) a Pro Rata share of the Tranche C Class 7 Warrants
exercisable to purchase 1,906,667 shares of New Common
Shares, subject to adjustment pursuant to the Warrant
Agreement; and
(e) a Pro Rata share of net proceeds, if any, derived from
the Transferred Avoidance Actions.
From and after the Effective Date, Xxxxx Fargo will administer
such distributions pursuant to this Agreement in accordance
with the written instructions of the Plan Committee.
(2) The Plan Committee will deliver, or cause to be delivered, to
Xxxxx Fargo a list of the holders of Allowed Class 7 Claims as
of the Distribution Date, indicating for each the Applicable
Holder Distribution Information.
(3) In addition, the Plan Committee will provide to Xxxxx Fargo
(a) a list of holders of Disputed Claims in Class 7 as of the
Distribution Date, indicating for each the Applicable Holder
Distribution Information, and (b) the aggregate Face Amount of
the Disputed Claims in Class 7 as of the Effective Date.
(4) In connection with each Quarterly Distribution Date (as
defined hereinafter in Section 6.a(2)), the Plan Committee
will deliver to Xxxxx Fargo a list of holders of Allowed
Claims in Class 7 that were Disputed Claims as of the
immediately preceding Quarterly Distribution Date (or, in the
case of the first Quarterly Distribution Date, as of the
Effective Date), indicating for each the Applicable Holder
Distribution Information.
c. CLASS 7(a) DISTRIBUTIONS.
(1) As provided in the Plan, on and after the Effective Date,
holders of Allowed Convenience Claims are entitled to receive
distributions of cash pursuant to the Plan.
(2) If the Company desires Xxxxx Fargo to administer distributions
of cash to holders of Claims that become Allowed Convenience
Claims subsequent to the Effective Date, then the Company will
provide Xxxxx Fargo written instructions regarding such
distributions at such times as they become payable in
accordance with the terms of the Plan. Any Allowed Convenience
Class Claim with respect to which the Company so provides
Xxxxx Fargo written instructions pursuant to this section is
referred to in this Agreement as an "Applicable Allowed
Convenience Claim."
5. PROCEDURES REGARDING PLAN CONSIDERATION.
a. CASH. Distributions of cash made pursuant to this Agreement,
including any cash proceeds from the Transferred Avoidance
Actions and cash to pay holders of any Applicable Allowed
Convenience Claim, shall be made by checks drawn on a Xxxxx Fargo
controlled demand deposit account ("DDA"). At or prior to the
time checks are issued by Xxxxx Fargo with respect to any
distributions of cash made pursuant to Section 4 of this
Agreement, the Company will deposit, cause to be deposited, or
there shall be transferred from the Accounts (as specified in the
Exhibits to this Agreement or written instructions of the Company
with respect to Allowed Class 6 Claims and any Applicable Allowed
Convenience Claim, and the Plan Committee with respect to Allowed
Class 7 Claims) to, the DDA sufficient funds to cover such checks.
b. NEW COMMON SHARES. Xxxxx Fargo is hereby authorized and directed
to requisition from itself, as transfer agent for the New Common
Shares, certificates representing shares of New Common Shares in
such names and in such amounts as will enable Xxxxx Fargo to
distribute such shares in accordance with Section 4.a and
Section 4.b of this Agreement. The Company will cause Xxxxx
Fargo, in its capacity as transfer agent for the New Common
Shares, to countersign, register and deliver certificates
representing shares of New Common Shares in such names and in
such amounts as will enable Xxxxx Fargo to distribute such shares
of New Common Shares in accordance with Section 4.a and
Section 4.b of this Agreement.
c. NEW WARRANTS. Xxxxx Fargo is hereby authorized and directed to
requisition from itself, as warrant agent under the Warrant
Agreement, certificates representing Class 7 Stock Warrants in
such names and in such amounts as will enable Xxxxx Fargo to
distribute such Class 7 Stock Warrants in accordance with
Section 4.b of this Agreement. The Company will cause Xxxxx
Fargo, in its capacity as warrant agent under the Warrant
Agreement, to countersign, register and deliver certificates
representing Class 7 Stock Warrants in such names and in such
amounts as will enable Xxxxx Fargo to distribute such Class 7
Stock Warrants in accordance with Section 4.b of this Agreement.
6. CERTAIN PROCEDURES REGARDING DISTRIBUTIONS.
a. DISTRIBUTION MECHANICS.
(1) From time to time on and after the Effective Date, Xxxxx Fargo
will make distributions pursuant to this Agreement as
instructed by the Company with respect to Allowed Class 6
Claims and any Applicable Allowed Convenience Claim, and by
the Plan Committee with respect to Allowed Class 7 Claims.
(2) Subsequent to the distributions made under Section 4.b of this
Agreement, distributions pursuant to this Agreement shall be
made on the last
Business Day of the month following the end of each calendar
quarter after the Effective Date, (each such day, a "Quarterly
Distribution Date").
(3) Prior to making any distribution pursuant to this Agreement,
Xxxxx Fargo, based on information provided to Xxxxx Fargo by
or on behalf of the Company with respect to Allowed Class 6
Claims and any Applicable Allowed Convenience Claim, and of
the Plan Committee with respect to Allowed Class 7 Claims,
will, as promptly as practicable (and, in any event, within
five business days) following receipt of such information and
no less than five business days prior to a proposed
disbursement, prepare and deliver to the Company with respect
to Allowed Class 6 Claims and any Applicable Allowed
Convenience Claim, and to the Plan Committee (with a copy to
the Company) with respect to Allowed Class 7 Claims, a written
report (each, a "Disbursement Report") indicating:
(a) the name of the holder of an Allowed Claim to receive
such distribution;
(b) the classification and amount of such holder's
Allowed Claim in respect of which such distribution
is to be made; and
(c) the type and amount of Plan Consideration to be
distributed to such holder of an Allowed Claim pursuant
to such distribution.
(4) As promptly as practicable upon receipt of a Disbursement
Report, the Company with respect to Allowed Class 6 Claims and
any Applicable Allowed Convenience Claim, and Plan Committee,
with respect to Allowed Class 7 Claims, will review such
Disbursement Report and will either (a) if the Company with
respect to Allowed Class 6 Claims and any Applicable Allowed
Convenience Claim, and Plan Committee, with respect to Allowed
Class 7 Claims, agree with such Disbursement Report, deliver
to Xxxxx Fargo a written instruction indicating its approval
of the Disbursement Report and directing Xxxxx Fargo to make
the distribution or distributions described in such
Disbursement Report (each, an "Approval Letter") or (b) if the
Company with respect to Allowed Class 6 Claims and any
Applicable Allowed Convenience Claim, and Plan Committee, with
respect to Allowed Class 7 Claims, disagree with such
Disbursement Report, inform Xxxxx Fargo of any necessary
changes to the Disbursement Report, whereupon Xxxxx Fargo will
revise and resubmit the Disbursement Report to the Company
with respect to Allowed Class 6 Claims and any Applicable
Allowed Convenience Claim, and Plan Committee (with a copy of
such report to the Company), with respect to Allowed Class 7
Claims, for approval thereof.
(5) As promptly as practicable upon receipt of an Approval Letter,
Xxxxx Fargo will mail (or deliver as otherwise specified in
such Approval Letter or in instructions otherwise contemplated
in this Agreement) Plan
Consideration in the amounts as specified in the Disbursement
Report covered by such Approval Letter to the holders of
Allowed Claims identified in such Disbursement Report.
b. MAILING REQUIREMENTS. Distributions of Plan Consideration consisting
solely of a check that are to be mailed may be mailed by United
States Post Office - First Class Mail. All other distributions of
Plan Consideration that are to be mailed will be mailed by United
States Post Office - Certified Mail, Return Receipt Requested or
sent by Airborne Express delivery service.
c. INFORMATION LETTERS. Upon the written instruction of the Company
with respect to Allowed Class 6 Claims and any Applicable Allowed
Convenience Claim, and of the Plan Committee with respect to
Allowed Class 7 Claims, Xxxxx Fargo will cause to be delivered
with any distribution to holders of Allowed Claims pursuant to
this Agreement an information letter to Xxxxx Fargo in such form
as provided by the Company with respect to Allowed Class 6 Claims
and any Applicable Allowed Convenience Claim, and by the Plan
Committee with respect to Allowed Class 7 Claims.
d. COMPLIANCE WITH PLAN AND APPLICABLE LAW. The Company and the
Plan Committee will be solely responsible for determining whether
Plan Consideration distributed pursuant to this Agreement is
being distributed in accordance with the Plan and applicable
law. Xxxxx Fargo may rely solely on the written instructions of
the Company, with respect to any distribution pursuant to this
Agreement in respect of Allowed Class 6 Claims and any Applicable
Allowed Convenience Claim, and any applicable order of the
Bankruptcy Court, or in lieu thereof, the written instructions of
the Plan Committee with respect to any distribution pursuant to
this Agreement in respect of Allowed Class 7 Claims, as evidence
that such distributions are being made in accordance with the
Plan and applicable law.
7. [INTENTIONALLY OMITTED]
8. UNCLAIMED AND UNDELIVERABLE DISTRIBUTIONS.
a. HOLDING AND INVESTMENT OF UNDELIVERABLE DISTRIBUTIONS. Any
distribution of Plan Consideration to a holder of an Allowed
Claim that is made by Xxxxx Fargo but returned to Xxxxx Fargo as
undeliverable or otherwise is treated as undeliverable pursuant
to this Agreement will be held by Xxxxx Fargo and distributed
according to the written instruction of the Company with respect
to Allowed Class 6 Claims and any Applicable Allowed Convenience
Claim, and of the Plan Committee, with respect to Allowed Class 7
Claims.
b. UNDELIVERED NEW COMMON SHARES. Pending the distribution of any
New Common Shares, Xxxxx Fargo will cause all of the New Common
Shares held by it in its capacity as Disbursing Agent, whether
held in certificated form or through electronic entry on the
books and records of Xxxxx Fargo, as stock transfer agent, to be
represented in person or by proxy at each meeting of the
shareholders of the
Company and voted in any election of directors of the Company for
the nominees recommended by the board of directors of the
Company, unless, with respect to any New Common Shares to be
distributed to holders of Allowed Class 7 Claims ("Undelivered
Class 7 Shares"), the Plan Committee directs Xxxxx Fargo, within
two business days prior to the deadline published in the
balloting materials related to such vote, to vote such shares in
proportion to the votes cast or abstentions claimed by all other
shareholders eligible to vote in such election, and, with respect
to any other matter, as recommended by the board of directors of
the Company unless, with respect to any Undelivered Class 7
Shares, the Plan Committee directs Xxxxx Fargo to vote such
shares in proportion to the votes cast or abstentions claimed by
all other shareholders eligible to vote on such matter.
c. UNCASHED CHECKS. If a check included in a distribution is not
cashed within 180 days of the issuance thereof, Xxxxx Fargo will
void such check and the cash deposited by or on behalf of the
Company with Xxxxx Fargo to fund such check and any Cash
Investment Yield, from the investment of such cash will be
treated in accordance with the written instructions of the
Company, with respect to Allowed Class 6 Claims and of the Plan
Committee, with respect to Allowed Class 7 Claims. "Cash
Investment Yield" shall mean the net yield, after providing for
all applicable taxes, earned by the Company from the investment
of cash held pending distribution pursuant to the Plan (including
any dividends and other distributions on account of New Common
Shares), which investment will be in a manner consistent with the
Reorganized Debtors' investment and deposit guidelines.
d. FAILURE TO CLAIM UNDELIVERABLE DISTRIBUTIONS. If an undeliverable
distribution is not claimed within two years after the Effective
Date, such distribution will be treated in accordance with the
written instructions of the Company, with respect to Allowed Class 6
Claims and any Applicable Allowed Convenience Claim, and of the Plan
Committee, with respect to Allowed Class 7 Claims.
e. NO OBLIGATION TO LOCATE HOLDERS. Nothing contained in this
Agreement will require Xxxxx Fargo to attempt to locate any
holder of an Allowed Claim.
9. DIVIDENDS. From and after the Effective Date, dividends and other
distributions received by Xxxxx Fargo in respect of Plan Consideration
(other than cash) held in Accounts by Xxxxx Fargo for distribution to
holders of Claims in Classes 6 and 7 will be deposited in appropriate
Accounts and held pending distribution to such holders. From and after
the Effective Date, any Cash Investment Yield from the investment of
cash held in Accounts by Xxxxx Fargo for distribution to holders of
Claims in Classes 6, 7 and 7(a) will be retained in such Accounts
pending distribution to such holders. Any distribution to a holder of
an Allowed Claim in Classes 6, 7 and 7(a) will include: (1) dividends
and other distributions previously paid to Xxxxx Fargo in respect of
any Plan Consideration (other than cash) included in such distribution
and (2) a Pro Rata share of the Cash Investment Yield from the
investment of any cash (including any cash dividends, cash interest
payments or other cash distribution) held for the benefit of such
holder. Any Cash
Investment Yield from the investment of cash held in accounts for any
other distribution under the Plan will be treated in accordance with the
written instructions of the Company.
10. TAX REPORTING AND WITHHOLDING. The Company and the Plan Committee will
be responsible for determining any tax reporting to persons or entities
receiving distributions made under the Plan pursuant to this Agreement
and reporting to any tax authority. The Company and the Plan Committee
shall also be responsible for determining the amount of any tax
withholding on such distributions. The Company, with respect to any
distributions in respect of Allowed Class 6 Claims and any Applicable
Allowed Convenience Claim, and the Plan Committee, with respect to any
distributions in respect of Allowed Class 7 Claims, will instruct Xxxxx
Fargo with respect to tax reporting by (a) specifying in writing the
version(s) of tax forms to be distributed and filed with a tax
authority, (b) furnishing any information required in such tax forms
and any additional information as may be reasonably requested by Xxxxx
Fargo in connection with this Section 10 and (c) specifying the type
and amount of any tax withholding. Xxxxx Fargo will, in accordance
with the written instructions of the Company, with respect to Allowed
Class 6 Claims and any Applicable Allowed Convenience Claim, and of the
Plan Committee, with respect to Allowed Class 7 Claims, print and mail
tax forms to persons or entities receiving distributions made under the
Plan pursuant to this Agreement (and to the appropriate tax authority)
and withhold and pay over to the tax authorities any taxes requested to
be withheld. Xxxxx Fargo may rely solely upon the instructions of the
Company, with respect to Allowed Class 6 Claims and any Applicable
Allowed Convenience Claim, and of the Plan Committee, with respect to
Allowed Class 7 Claims, regarding tax reporting. The Company shall be
responsible for signing any tax forms, if applicable, in its capacity
as employer or payor and for the employer's share of any employment
taxes payable in connection with a distribution.
11. TAX REPORTING AND PAYMENTS FOR DISPUTED CLAIMS RESERVES. Subject to
definitive guidance from the IRS or the courts to the contrary and to
the receipt of an adverse determination by the IRS upon audit if not
contested by Xxxxx Fargo in its capacity as the Disbursing Agent: (i)
Xxxxx Fargo shall treat the Disputed Class 7 Claims Reserve, and any
other Disputed Claims Reserve established to implement the Plan, as a
grantor trust as to which the Company is the grantor, (ii) the Company
shall be responsible for the payment of all taxes on any income
generated by money or property in the Disputed Claims Reserve, (iii)
the Company shall timely instruct Xxxxx Fargo concerning the payment of
taxes, and (iv) Xxxxx Fargo shall timely remit to the Company amounts
necessary to pay such taxes at a combined federal and state rate deemed
to be 39%.
12. INFORMATION REPORTS. On a weekly basis, or more frequently upon the
reasonable request of the Plan Committee or the Company, Xxxxx Fargo
will furnish to the Plan Committee and the Company reports indicating:
(a) the distributions made by Xxxxx Fargo pursuant to this Agreement,
(b) the distributions made by Xxxxx Fargo pursuant to this Agreement
that have been returned to Xxxxx Fargo as undeliverable, and (c) such
additional information as the Plan Committee or the Company may from
time to time reasonably request. On a monthly basis, Xxxxx Fargo will
furnish to the Plan Committee and the Company the amount of any Cash
Investment Yield from the investment of cash held by Xxxxx Fargo in the
Accounts.
13. SCOPE OF XXXXX FARGO'S DUTIES. Xxxxx Fargo: (a) will have no duties
or obligations other than those specifically set forth in this
Agreement or as may be subsequently agreed to by the Company and Xxxxx
Fargo in writing; (b) may rely on and will be indemnified by the
Company in acting in reliance upon any court order, certificate,
instrument, opinion, notice, letter, telegram or other document or
security delivered to Xxxxx Fargo by the Company or the Plan Committee
and believed by Xxxxx Fargo to be genuine and to have been signed by
the proper party or parties; except to the extent arising out of Xxxxx
Fargo's bad faith, gross negligence or willful misconduct; (c) will not
be obligated to take legal action hereunder which might in Xxxxx
Fargo's reasonable judgment involve any expense or liability, unless
Xxxxx Fargo shall have been furnished with reasonable indemnity;
PROVIDED, HOWEVER, that Xxxxx Fargo will notify the Company promptly if
Xxxxx Fargo has reason to believe or becomes aware of any situation
that requires legal action to protect the interests of the Company; (d)
may act upon any tender, statement, request, comment, agreement or
other instrument whatsoever not only as to its due execution and
validity and effectiveness of its provisions, but also as to the truth
and accuracy of any information contained therein, which Xxxxx Fargo
believes in good faith to be genuine and to have been signed or
represented by a proper person or persons acting in a fiduciary or
representative capacity (so long as proper evidence of such fiduciary's
or representative's authority so to act is submitted to Xxxxx Fargo)
and Xxxxx Fargo examines and reasonably concludes that such evidence
properly establishes such authority; (e) may consult with the Company's
counsel or its own with respect to any questions relating to Xxxxx
Fargo's duties and responsibilities, and the written opinion of such
counsel shall be full and complete authorization and protection in
respect of certain action taken, suffered or omitted to be taken by
Xxxxx Fargo hereunder in good faith and in accordance with the written
opinion of such counsel; and (f) will not be obligated and is not
authorized to take any actions in connection with the Accounts, any
interest earned thereon or any other Plan Consideration held for
distribution except as expressly set forth in this Agreement or as
provided in the Plan.
14. INDEMNIFICATION. The Company will indemnify and hold harmless Xxxxx
Fargo from and against any and all costs, losses, liabilities, expenses
(including reasonable counsel fees and disbursements) and claims
imposed upon or asserted against Xxxxx Fargo on account of any action
taken or omitted to be taken by Xxxxx Fargo in connection with the
performance of its duties under this Agreement and the documents
related hereto. If Xxxxx Fargo becomes entitled to indemnity
hereunder, Xxxxx Fargo will give prompt written notice to the Company
of any claim or of the commencement of any action or proceeding with
respect to which Xxxxx Fargo seeks indemnification pursuant hereto;
PROVIDED, HOWEVER, that the failure to so notify the Company will not
relieve the Company from any obligation or liability except to the
extent that the Company has been prejudiced materially by such
failure. If such an action or proceeding is brought against Xxxxx
Fargo, the Company will be entitled to participate therein and, to the
extent it may elect by written notice delivered to Xxxxx Fargo promptly
after receiving the notice referred to in the immediately preceding
sentence, to assume the defense thereof with counsel reasonably
satisfactory to Xxxxx Fargo. Notwithstanding the foregoing, Xxxxx
Fargo will have the right to employ its own counsel in any such case,
but the fees and expenses of such counsel will be at the expense of
Xxxxx Fargo unless (i) the employment of such counsel shall have been
authorized in writing by the Company, (ii) the Company
shall not have employed counsel (reasonable satisfactory to Xxxxx
Fargo) to take charge of such action or proceeding within a reasonable
time after notice of commencement thereof, or (iii) Xxxxx Fargo shall
have concluded that there may be defenses or actions available to it
which are different from or additional to those available to the
Company which, if the Company and Xxxxx Fargo were to be represented by
the same counsel, could result in a conflict of interest for such
counsel or materially prejudice the prosecution of defenses or actions
available to Xxxxx Fargo. If any of the events specified in clause (i),
(ii) or (iii) of the immediately preceding sentence are applicable,
then the reasonable fees and expenses of separate counsel for
Xxxxx Fargo shall be borne by the Company. If, in any case, Xxxxx
Fargo employs separate counsel, the Company will not have the right to
direct the defense of such action or proceeding on behalf of Xxxxx
Fargo. Notwithstanding anything to the contrary contained in this
Section 14, the Company will not be liable for the settlement of any
action or proceeding effected without its prior written consent. The
Company will not consent to entry of any judgment or enter into any
settlement or otherwise seek to terminate any action or proceeding in
which Xxxxx Fargo is or could be a party and as to which
indemnification could by sought by Xxxxx Fargo under this Section 14,
unless such judgment, settlement or other termination provides solely
for the payment of money and includes as an unconditional term thereof
the giving by the claimant or plaintiff to Xxxxx Fargo of a release, in
form and substance reasonably satisfactory to Xxxxx Fargo, from all
liability in respect of such claim or litigation for which Xxxxx Fargo
would be entitled to indemnification hereunder. Anything in this
Agreement to the contrary notwithstanding, the Company will not be
liable for any costs, losses, liabilities, expenses or claims to the
extent they arise out of Xxxxx Fargo's bad faith, gross negligence or
willful misconduct.
15. TERM OF AGREEMENT. This Agreement shall remain in full force and
effect until the later of: (a) 60 days after notice of termination has
been given by the Company to Xxxxx Fargo or by Xxxxx Fargo to the
Company, or (b) upon the disbursement of all the Plan Consideration, or
(c) the completion of all tax reporting requirements for distributions
made under the Plan. Upon termination of this Agreement, Xxxxx Fargo
shall distribute any Plan Consideration then held by Xxxxx Fargo
pursuant to written instructions received from the Company, with
respect to Allowed Class 6 Claims and any Applicable Allowed
Convenience Claim, and of the Plan Committee, with respect to Allowed
Class 7 Claims. Promptly after any notice of termination of this
Agreement pursuant to clause (a) of the first sentence of this
Section 15, the Company and the Plan Committee will designate a
successor Disbursing Agent and Xxxxx Fargo will transfer to such
successor Disbursing Agent in accordance with the written instructions
of the Company and the Plan Committee all data files maintained by
Xxxxx Fargo in connection with this Agreement.
16. FEES AND EXPENSES. For its services, Xxxxx Fargo will be entitled to
compensation from the Company in accordance with EXHIBIT C hereto.
17. AUTHORIZED OFFICERS. The Company and the Plan Committee will submit to
Xxxxx Fargo a certificate substantially in the form of EXHIBIT D-1 or
EXHIBIT D-2 hereto, as applicable, detailing the names and specimen
signatures of the representatives of the Company and of the Plan
Committee authorized to direct Xxxxx Fargo under the terms of this
Agreement. The Company and Plan Committee will provide to Xxxxx Fargo
revised certificates as necessary to reflect changes in such
representatives.
18. NOTICES. All notices, directions, requests, demands, and other
communications under this Agreement will be in writing and shall be
deemed to have been duly given (a) on the date of service if served
personally on the party to whom notice is to be given; (b) on the day
of transmission if sent by facsimile transmission to the facsimile
number given below, and telephonic confirmation of receipt is obtained
promptly after completion of transmission; (c) on the day after
delivery to an overnight courier or the express mail service maintained
by the United States Postal Service; or (d) on the fifth day after
mailing, if mailed to the party to whom notice is to be given, by first
class mail, registered or certified, postage prepaid, and properly
addressed, return receipt requested, to the party as follows:
IF TO WASHINGTON GROUP INTERNATIONAL, INC.:
WASHINGTON GROUP INTERNATIONAL, INC.
000 Xxxx Xxxxxxxxx
Xxxxx, Xxxxx 00000
Fax: 000-000-0000
Phone: 000-000-0000
Attention: Xxxx X. Xxxxxxxx
WITH A COPY TO:
XXXXX, DAY, XXXXXX & XXXXX
00 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Fax: 000-000-0000
Phone: 000-000-0000
Attention: Xxxxxx Xxxx Xxxxx
IF TO THE PLAN COMMITTEE:
XXXXXX XXXXXXXX XXXXXX & XXXXXX
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Fax: 000-000-0000
Phone: 000-000-0000
Attention: Xxxxxxx X. Xxxxxx
IF TO XXXXX FARGO:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
Customized Fiduciary Services
Sixth and Marquette; X0000-000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Fax: 000-000-0000
Phone: 000-000-0000
Attention: Xxxxxxxx X. Xxxxx
If the Company, the Plan Committee or Xxxxx Fargo receives any
notice of any third party claim against amounts to be distributed to
a holder of an Allowed Claim pursuant to this Agreement, a copy of
the notice shall be immediately forwarded to each other party.
19. SUCCESSORS AND ASSIGNS. None of the parties hereto shall assign this
Agreement or any rights or obligations hereunder without the prior
written consent of each other party hereto and any such attempted
assignment without such prior written consent shall be void and of no
force and effect; PROVIDED, HOWEVER, that the Creditors' Committee may
assign its rights to the Plan Committee. This Agreement shall inure to
the benefit of and shall be binding upon the successors and permitted
assigns of the parties hereto.
20. SUCCESSOR BY MERGER. Xxxxx Fargo may not assign its benefits or
delegate its duties hereunder without the prior written consent of the
Company; PROVIDED, HOWEVER, that if Xxxxx Fargo merges into or with, or
consolidates with, or sells, leases or transfers its corporate trust
business and assets as a whole or substantially as a whole to, any
entity that (i) is a corporation or association organized and doing
business under the laws of the United States of America or any state
thereof, (ii) is subject to supervision or examination by Federal or
State authority, and (iii) has a combined capital surplus of at least
$50,000,000, no such consent will be necessary for any such successor
to act as a Disbursing Agent hereunder. Subject to the preceding
sentence, any corporation or association into or with which Xxxxx Fargo
may be merged, or with which it may be consolidated, or to which it may
sell, lease or transfer its corporate trust business and assets as a
whole or substantially as a whole, will be and become a successor
Disbursing Agent hereunder and will be vested with all the trusts,
powers, rights, obligations, duties, remedies, immunities and
privileges hereunder as was its predecessor, without the execution or
filing of any instrument on the part of any of the parties hereto;
PROVIDED, HOWEVER, that Xxxxx Fargo will notify the Company and the
Plan Committee in writing of any impending merger, consolidation or
sale, lease or transfer of its corporate trust business reasonably in
advance of the consummation thereof.
21. GOVERNING LAW; JURISDICTION. This Agreement shall be construed, performed,
and enforced in accordance with, and governed by, the laws of the State of
New York, without giving effect to the principles of conflicts of laws
thereof. Each party hereby consents to the personal jurisdiction and venue
of federal or state courts in the State of
New York in respect of any
claims based upon or arising out of this Agreement.
22. SEVERABILITY. In the event that any part of this Agreement is declared by
any court or other judicial or administrative body to be null, void, or
unenforceable, said provision shall survive to the extent it is not so
declared, and all of the other provisions of this Agreement shall remain
in full force and effect.
23. AMENDMENTS; WAIVERS. This Agreement may be amended or modified, and
any of the provisions, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument executed
by the parties hereto, or in the case of a waiver, by any party waiving
compliance. Any waiver by any party of any condition, or of the breach
of any provision, term, covenant, representation or warranty contained
in this Agreement, in any one or more instances, shall not be deemed to
be nor construed as further or continuing waiver of any such condition,
or of the breach of any other provision, term, covenant, representation
or warranty of this Agreement.
24. ENTIRE AGREEMENT. This Agreement contains the entire understanding
among the parties hereto with respect to Xxxxx Fargo's role as a
Disbursing Agent and supersedes and replaces all prior and
contemporaneous agreements and understandings, oral or written.
25. SECTION HEADINGS. The section headings in this Agreement are for
reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
26. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which shall constitute
one instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first written above.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
OFFICIAL UNSECURED CREDITORS' COMMITTEE
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Counsel
WASHINGTON GROUP INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President and
General Counsel
EXHIBIT A
ACCOUNTS
ACCOUNT NUMBER: ACCOUNT NAME: ACCOUNT TYPE:
12178900 WGI Class 6 Disbursement Account Custody Account
00000000 WGI Class 7 Disbursement Account Trust Account
Exhibit B
AGENCY AND CUSTODY ACCOUNT DIRECTION
FOR CASH BALANCES
DIRECTION TO USE XXXXX FARGO FUNDS FOR CASH BALANCES FOR THE FOLLOWING
ACCOUNT(S):
ACCOUNT NAMES: WASHINGTON GROUP INTERNATIONAL BKY DIST.
ACCOUNT NUMBER(S): 00000000
YOU ARE HEREBY DIRECTED TO INVEST, AS INDICATED BELOW OR AS I SHALL DIRECT
FURTHER FROM TIME TO TIME, ALL CASH IN THE ACCOUNT IN THE FOLLOWING MONEY MARKET
PORTFOLIO OF XXXXX FARGO FUNDS (THE "FUND") (CHECK ONE):
/ / XXXXX FARGO CASH INVESTMENT MONEY MARKET SERVICE CLASS FUND
/ / XXXXX FARGO GOVERNMENT MONEY MARKET SERVICE CLASS FUND
/ / XXXXX FARGO 100% TREASURY MONEY MARKET FUND
/ / XXXXX FARGO NATIONAL TAX-FREE INSTITUTIONAL MONEY MARKET SERVICE CLASS FUND
I ACKNOWLEDGE THAT I HAVE RECEIVED, AT MY REQUEST, AND REVIEWED THE FUND'S
PROSPECTUS AND HAVE DETERMINED THAT THE FUND IS AN APPROPRIATE INVESTMENT FOR
THE ACCOUNT.
I UNDERSTAND FROM READING THE FUND'S PROSPECTUS THAT XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, ("XXXXX FARGO BANK") SERVES AS INVESTMENT ADVISOR,
CUSTODIAN AND TRANSFER AGENT FOR THE FUND; I ALSO UNDERSTAND THAT XXXXX FARGO
BANK WILL BE PAID, AND ITS BANK AFFILIATES MAY BE PAID, FEES FOR SERVICES TO THE
FUND AND THAT THOSE FEES MAY INCLUDE SHAREHOLDER SERVICING FEES AS DESCRIBED IN
THE FUND'S PROSPECTUS.
I UNDERSTAND THAT YOU WILL NOT EXCLUDE AMOUNTS INVESTED IN THE FUND FROM ACCOUNT
ASSETS SUBJECT TO FEES UNDER THE ACCOUNT AGREEMENT BETWEEN US.
I UNDERSTAND THAT INVESTMENTS IN THE FUND ARE NOT OBLIGATIONS OF, OR ENDORSED OR
GUARANTEED BY, XXXXX FARGO BANK OR ITS AFFILIATES AND ARE NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION.
I ACKNOWLEDGE THAT I HAVE FULL POWER TO DIRECT INVESTMENTS OF THE ACCOUNT.
I UNDERSTAND THAT I MAY CHANGE THIS DIRECTION AT ANY TIME AND THAT IT SHALL
CONTINUE IN EFFECT UNTIL REVOKED OR MODIFIED BY ME BY WRITTEN NOTICE TO YOU.
-----------------------------
SIGNATURE
------------------------------
DATE
Exhibit C
SCHEDULE OF FEES
WASHINGTON GROUP INTERNATIONAL, INC.
FOR SERVICES AS DISBURSING AGENT
ACCEPTANCE FEE: $10,000.00
Our Acceptance Fee encompasses all administrative and operational activities
necessary to close the transaction. It includes but is not limited to the
following:
o Assistance in the development of Letters of Transmittals and DTC
Coordination effort.
o Review and comment on all necessary agreements and documents delivered at
the closing.
o Preparation and delivery of any closing documents requested of the
Disbursing Agent.
o Creation of the files and records necessary to carry out the duties of the
Disbursing Agent throughout the life of the transaction.
o Attendance at the pre-closing and closing, if necessary.
o Assistance to all professionals involved in the transaction to assure a
timely and successful closing.
RECEIPT OF EACH SECURITYHOLDER CERTIFIED LIST: $2,000.00/FILE
CLASS 6 SECURED LENDER CLAIMS
DISTRIBUTION OF CASH AND NEW COMMON STOCK:
Typically the distribution of the cash portion of this recovery is forwarded to
the agent bank for the entire credit facility for further dissemination. With
respect to the Stock portion of this recovery, physical certificates will be
registered in accordance with Letter of Transmittal instructions and forwarded
to each financial institution by the Disbursing Agent. Should this be the case,
our fee for this class will amount to $15,000.00.
CLASS 7 GENERAL UNSECURED CLAIMS
DISTRIBUTION OF NEW COMMON STOCK, TRANCHE A, B, & C WARRANTS, AND THE NET
PROCEEDS DERIVED FROM THE TRANSFERRED AVOIDANCE ACTIONS:
Page 2 of 3
There is a flat fee for this distribution of $20,000.00, which includes the
below-referenced services:
o Receive, inspect, and approve transmittal letters and cancel old
Senior Subordinated Notes, as necessary.
o Calculate and issue the New Common Stock.
o Calculate and issue the Tranche A, B, & C Warrants.
o Perform all of the functions required to exchange the Notes for the
New Common Stock and Warrants.
o Statements of trust account activity.
o Respond promptly to written and telephonic inquiries.
o Issue appropriate tax information based on the Debtor's instructions
as to the type of reporting required.
OTHER FEES
REJECTION FEE: (For the handling of each deficient Letters of Transmittals) $25.00
CUSTODY CHARGES:
Annual Safekeeping Charge (per security) $30.00
Transaction Charges - other than a Xxxxx Fargo Advantage Fund $25.00
- Xxxxx Fargo Advantage Funds Waived
RECONCILEMENT OF ALL SECURITY DISBURSEMENTS $100.00/month
IRS FORM 1099 REPORTING TO CREDITORS, IF APPLICABLE $4.50/Form
This includes the cost of creating the forms and envelopes
DISBURSEMENTS OF CASH $2.50/check;
$25.00/wire
transfer
CHECK STOP PAYMENTS AND REISSUANCE $25.00 each
Page 3 of 3
EXTRAORDINARY ADMINISTRATION FEES $175.00/hour
Extraordinary administration fees may be charged for Account
services beyond those contemplated by the Disbursing Agreement. Manager
You will be informed in advance of Xxxxx Fargo's performance of $100.00/hour
services that are considered extraordinary. Account Rep
MAINTENANCE OF THE REGISTER OF CREDITORS ENTITLED TO THE
TRANSFERRED AVOIDANCE ACTIONS, (IF APPLICABLE). $2,000.00/year
This proposal is based on the following assumptions:
o The initial targeted disbursement date is January 2002.
o We have assumed approximately 45 Class 6 creditors and 600 class 7
creditors who will receive disbursements.
o Convenience Class distributions will be charged the appropriate per
check or per wire transfer fee previously quoted above.
o Wells Fargo suggests enclosing a letter describing each disbursement
and its calculation.
o Cash distributions will be made through a bank controlled demand
deposit account.
o The Debtor or its professionals will provide Xxxxx Fargo with
instructions regarding the tax treatment of payments.
o To the extent that the placement of the New Securities with the
Disbursing Agent requires the preparation and filing of any Federal
and State Tax Returns, such costs and the resultant tax, if any, will
be born by the Debtor.
IF ANY OF THE ABOVE ASSUMPTIONS ARE INACCURATE, XXXXX FARGO RESERVES THE RIGHT
TO REVISIT AND ADJUST THIS FEE SCHEDULE ACCORDINGLY.
All out-of-pocket expenses will be billed at cost in addition to the above.
Billing over 30 days past due are subject to a 1.5% per month late payment
penalty on balance due.
SCHEDULE IS SUBJECT TO PERIODIC REVIEW AND ADJUSTMENT.
JANUARY 18, 2002
Exhibit D-1
CERTIFICATE AS TO AUTHORIZED SIGNATURES
This is to certify that until further notice the individuals named below,
with specimen signatures included, are designated as the Authorized
Representatives of Washington Group International, Inc. for purposes of
directing Xxxxx Fargo Bank Minnesota, N.A. as Disbursing Agent. The individuals
below are authorized to initiate and approve transactions of all types:
NAME/TITLE/COMPANY SIGNATURE
--------------------- -----------------------------
Name Signature / Date
---------------------
Title
---------------------
Company
--------------------- -----------------------------
Name Signature / Date
---------------------
Title
---------------------
Company
Certified By:
----------------------------
----------------------------------------
Title Date
Exhibit D-2
CERTIFICATE AS TO AUTHORIZED SIGNATURES
This is to certify that until further notice the individuals named below,
with specimen signatures included, are designated as the Authorized
Representatives of the Plan Committee for purposes of directing Xxxxx Fargo Bank
Minnesota, N.A. as Disbursing Agent. The individuals below are authorized to
initiate and approve transactions of all types:
NAME/TITLE/COMPANY SIGNATURE
--------------------- -----------------------------
Name Signature / Date
---------------------
Title
---------------------
Company
--------------------- -----------------------------
Name Signature / Date
---------------------
Title
---------------------
Company
--------------------- -----------------------------
Name Signature / Date
---------------------
Title
---------------------
Company
Certified By:
----------------------
-----------------------------------
Title Date
