Case No. BK-N-01-31627United States Bankruptcy Court, D. Nevada
February 4, 2002
Attorneys for the Debtors and Debtors-in-Possession, Jennifer A. Smith, Etta L. Walker, LIONEL SAWYER COLLINS, Reno, Nevada
David S. Kurtz, Timothy R. Pohl, SKADDEN, ARPS, SLATE, MEAGRER FLOM (ILLINOIS), Chicago, Illinois
Gregg M. Galardi, Eric M. Davis, SKADDEN, ARPS, SLATE, MEAGHER FLOM LLP, Wilmington, Delaware
Counsel to Roche Carolina, Inc., George B. Cauthen, Esq., NELSON MULLINS RILEY SCARBOROUGH, L.L.P., Columbia, South Carolina.
Counsel to Raytheon Company and Raytheon Engineers Constructors International, Inc., David C. McElhinney, Esq., BECKLEY SINGLETON, CHTD., Reno, Nevada
STIPULATION AND ORDER MODIFYING THE AUTOMATIC STAY PURSUANT TO MOTION FILED BY ROCH CAROLINA INC.
GREGG W. ZIVE, United States Bankruptcy Judge
RECITALS
WHEREAS, on or about March of 1996, Raytheon Engineers
Constructors, Inc. (“REC”) initiated the case captioned REC v. Roche Carolina Inc. (“Roche”) (the “Litigation”), in the Court of Common Pleas for the County of Florence, South Carolina;
WHEREAS, on or about June 23, 2000, a judgment in the amount of $25,513,801.06 was entered in Roche’s favor against REC;
WHEREAS, on or about July 11, 2000, a bond was posted on behalf of REC, through its surety, Liberty Mutual Insurance Company, in the amount of $30,871,699.24 to secure REC’s appeal of the outcome in the Litigation now pending before the South Carolina Court of Appeals (the “Appeal”);
WHEREAS, on May 14, 2001 (the “Petition Date”), the above-captioned debtors and debtors-in-possession (the “Debtors”) each filed a voluntary petition in this Court for reorganization relief under chapter 11 of title 11 of the United States Code, 11 U.S.C. § 101-1330 (as amended, the “Bankruptcy Code”) in the United States Bankruptcy Court for the District of Nevada;
WHEREAS, the Debtors continue to operate their businesses and manage their properties as debtors-in-possession pursuant to Bankruptcy Code sections 1107(a) and 1108;
WHEREAS, on August 31, 2001, Roche filed a motion to terminate the automatic stay to allow the Appeal to proceed; and
WHEREAS, the Debtors and Roche have reached a resolution on the terms and subject to the conditions set forth below.
NOW THEREFORE, in consideration of the foregoing, the Debtors and Roche, through their undersigned counsel, hereby agree and stipulate, subject to the Court’s approval, as follows:
1. The automatic stay imposed by Bankruptcy Code section 362 shall be modified to permit the parties to prosecute or defend against or settle the Appeal, including, but not limited to, discovery and depositions and to take such actions as are necessary or appropriate to exercise their respective rights of appeal, until such rights have been exhausted,provided, however that Roche may not enforce or execute upon any settlement or judgment entered by a court of competent jurisdiction or other disposition of the underlying action in the Appeal against the Debtors or property of the Debtors’ estates without further order of this Court.
2. Nothing stated herein shall affect (a) the rights of the parties to prosecute or defend against the merits of any allegations that may be asserted in the Appeal, except as set forth in paragraph 1 of this Stipulation and Agreed Order; (b) the rights of the Debtors to object to any bankruptcy claim (the “Bankruptcy Claim”) Roche has filed or may in the future file on any and all grounds not inconsistent with this Stipulation and Agreed Order; and (c) the rights of Roche to respond to all objections to the Bankruptcy Claim on any and all appropriate grounds.
3. This Stipulation and Agreed Order shall not be modified, altered, amended or vacated without the prior written consent of all parties hereto. No statement made or action taken in the negotiation of this Stipulation and Agreed Order may be used by any party for any purpose whatsoever.
4. Except as otherwise provided herein, the Automatic Stay shall remain in effect in all other respects with respect to the Appeal and the commencement of any other actions by Roche against the Debtors.
5. The parties hereto represent and warrant to each other that they are authorized to execute this Stipulation and Agreed Order; that each has full power and authority to enter into and perform in accordance with the terms of this Stipulation and Agreed Order; and that this Stipulation and Agreed Order is duly executed and delivered and constitutes a valid and binding agreement in accordance with its terms.
6. This Court shall retain jurisdiction over the parties hereto and this Stipulation and Agreed Order, including, without limitation, for the purposes of interpreting, implementing and enforcing its terms and conditions.
7. The limitations in this Stipulation and Agreed Order shall not be applicable to any other responsible parties or defendants who may have liability to Roche other than the Debtors.
8. Nothing stated herein shall (a) affect the rights of the parties to prosecute or defend against or settle the merits of the allegations asserted in the Appeal and any subsequent appellate proceedings with respect to the Appeal; (b) constitute an admission as to the merits of any arguments, Procedurally or substantively, the parties may have with respect to the Appeal; and (c) affect the rights of the Debtors to seek contribution or indemnification from any other third party.
9. The effective date of this Stipulation and Agreed Order shall be November 19, 2001.
10. This Stipulation and Agreed Order is the entire agreement between the parties in respect of the subject matter hereof, and may be signed in counterpart originals.