Saudi Amer Bank v. Shaw Grp Inc ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
2-24-2009
Saudi Amer Bank v. Shaw Grp Inc
Precedential or Non-Precedential: Precedential
Docket No. 05-2717
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 05-2717 & 07-1772
IN RE: STONE & WEBSTER, INCORPORATED, ET AL.,
Debtors
SAUDI AMERICAN BANK
v.
SHAW GROUP, INC.;
SWINC ACQUISITION THREE, INC.;
SWE&C LIQUIDATING TRUSTEE,
successor to Stone & Webster Engineering Corporation, et al.
Shaw Group, Inc.,
Appellant
Appeal from the United States District Court
for the District of Delaware
(D.C. Civil Action No. 04-cv-00834)
District Judge: Honorable Sue L. Robinson
Argued April 18, 2008
Before: SCIRICA, Chief Judge, AMBRO
and FISHER, Circuit Judges
(Opinion filed: February 24, 2009)
Stephen E. Jenkins, Esquire (Argued)
Catherine A. Strickler, Esquire
Ashby & Geddes
500 Delaware Avenue, 8th Floor
Wilmington, DE 19899
Counsel for Appellant
Amy B. Abbott, Esquire
Kirkpatrick & Lockhart Preston Gates Ellis
One Lincoln Street
State Street Financial Center
Boston, MA 02111-0000
Bruce S. Barnett, Esquire
Daniel E. Rosenfeld, Esquire (Argued)
DLA Piper
33 Arch Street
Boston, MA 02110
Francis A. Monaco, Jr., Esquire
Kevin J. Mangan, Esquire
Womble, Carlyle, Sandridge & Rice
222 Delaware Avenue, Suite 1501
Wilmington, DE 19810-0000
Counsel for Appellee
2
OPINION OF THE COURT
AMBRO, Circuit Judge
Stone & Webster, Incorporated (“Stone & Webster”) and
its subsidiaries—including Stone & Webster Engineering
Corporation (“SW Engineering”)—filed for Chapter 11
bankruptcy protection in the District of Delaware. Shortly
thereafter, Stone & Webster and its subsidiaries entered into an
asset purchase agreement (“Purchase Agreement”) with the
Shaw Group, Inc. (“Shaw”) to sell substantially all of their
assets. The District Court approved the Purchase Agreement in
a Sale and Assumption Order (“Sale Order”).
At issue is whether by this transaction Shaw assumed a
guaranty obligation of SW Engineering to Saudi American Bank
(“SAMBA”). In that rare case where the seller and purchaser
agree, SW Engineering and Shaw have argued that the latter did
not assume the guaranty.1 SAMBA contends otherwise.
1
While SW Engineering is not a party to this appeal (even
though it is listed in the case caption), it previously argued
before the Bankruptcy Court that Shaw did not assume liability
for the guaranty obligation or a related “Payment Letter.” See
SW Engineering’s Answer, Affirmative Defenses, and
Counterclaims, Saudi American Bank v. Shaw Group, Inc. (In re
3
The District Court, through a different Judge than the one
who entered the Sale Order, agreed with SAMBA’s view and
granted summary judgment in its favor. In separate
proceedings, the Court also awarded SAMBA pre- and post-
judgment interest on the guaranteed debt, as well as attorneys’
fees and other litigation costs.
Stone & Webster, Inc.), Ch. 11 Case No. 00-02142, Adv. No.
01-07766, at 10–11, 15–16 (Bankr. D. Del. Oct. 29, 2001)
(“[T]he [Payment] Letter and the 1994 Guarantee are not
Assumed Liabilities within the meaning of the [Purchase
Agreement] and were not assumed by the Shaw Parties
thereunder.”). The SWE&C Liquidating Trustee, the post-
confirmation successor to SW Engineering, also agreed to terms
in a Settlement Agreement with SAMBA that stated with regard
to this case: “Nothing in this Agreement shall obligate the
debtors [including SW Engineering and Stone & Webster] to
alter their position that SAMBA does not have a valid claim
against Shaw . . . .” Stipulation and Agreed Order Dismissing
Adversary Proceeding, Appendix at A508, Saudi American
Bank v. Saudi Arabian Oil Co. (In re Stone & Webster, Inc.),
No. 07-3891 (3d Cir. pending).
Shaw additionally has emphasized SW Engineering’s
agreement with its position throughout its brief. See, e.g.,
Shaw’s Br. at 21 (“There are only two parties to the [Purchase
Agreement]—[the Stone & Webster entities] and Shaw—and
they both agree that Shaw did not assume any liability to
SAMBA.”).
4
Because we believe the Court misinterpreted the
Purchase Agreement and Sale Order, we reverse its grant of
summary judgment. While this decision further requires us to
vacate the award of pre- and post-judgment interest, attorneys’
fees and other litigation costs, we note our agreement with the
Court’s analysis of those issues.
I. Factual and Procedural Background
In 1980, SW Engineering formed a joint venture with
Abdullah Said Bugshan & Bros. (“Bugshan”), a Saudi Arabian
company. The joint venture obtained a contract with the Saudi
Arabian American Oil Company (“Aramco”) to upgrade an oil
refinery at Ras Tanura in Saudi Arabia (known as the “in-
kingdom project” or “project number 65004/00”). In a separate
contract, SW Engineering agreed to provide manufactured
goods to Aramco for use at Ras Tanura (called the “out-of-
kingdom project” or “project number 05062011”).
To fund the in-kingdom project, the joint venture
borrowed $35,000,000 from SAMBA. Bugshan and SW
Engineering facilitated the granting of this loan by individually
guarantying 50% of the amount owed by the joint venture to
SAMBA (in the case of SW Engineering, the “Guaranty”). See
Saudi American Bank v. Shaw Group, Inc. (“Saudi American
Bank I”), No. 00-2142, 2005 WL 1036556, at *1 (D. Del. May
3, 2005). Following completion of the in-kingdom project, the
joint venture was unable to repay the loan and SW Engineering
5
and Bugshan began making payments pursuant to their
guaranties. SW Engineering confirmed its obligation to pay this
debt in a 1998 payment letter to SAMBA (the “Payment
Letter”).
When Stone & Webster and its subsidiaries filed their
bankruptcy petitions in 2000, SW Engineering owed SAMBA
$6,728,549 on the Guaranty. Shortly after those filings, Shaw
purchased substantially all of the Stone & Webster entities’
assets through an auction sale. The companies stated the terms
of this sale in the Purchase Agreement.
That document, which states that it is governed by
Delaware law, labels the assets and liabilities of the sellers as
either “assumed” by Shaw or “excluded” from the deal. As is
typical, assumed assets and liabilities are those not excluded
from the Purchase Agreement. Thus the definitions of Excluded
Assets and Excluded Liabilities have controlling importance.
Section 2.02 of the Purchase Agreement defines
“Excluded Assets” as all Rejected Contracts, Completed
Contracts, and Special Project Claims.
• “Rejected Contracts” are any contracts or related
obligations listed by Stone & Webster on Schedule
5.16(b). That schedule lists fifteen projects, none of
which relates to SW Engineering’s work at the Ras
Tanura facility.
6
• “Completed Contracts” and their related receivables and
drawings are “those specifically set forth on Schedule
2.02(b), under which substantially all of the contractual
work effort of Sellers has been completed.” Included
within Schedule 2.02(b) is a notation of the in-kingdom
project name, Aramco Ras Tanura (Bugshan), but with
the out-of-kingdom project number, 05062011.
• “Special Project Claims” are “any and all claims under
the project agreements set forth on Schedule 2.02(e).”
That schedule lists the “Ras Tanura, Saudi Arabia,
Refinery Upgrade Project,” specifically noting the in-
kingdom project number (65004/00) and the presence of
“one or more potential claims for payment under a series
of Letters of Credit issued by [SAMBA].”
The Purchase Agreement defines “Excluded Liabilities” in
§ 1.01 as
any and all liabilities or obligations of [Stone &
Webster and its subsidiaries] of any kind or
nature, other than the Assumed Liabilities,
including those liabilities or obligations described
in Section 2.04, whether known or unknown,
fixed or contingent, recorded or unrecorded, and
whether arising before or after the Closing,
including . . . surety or other bonds relating to
Completed Contracts or Rejected Contracts.
7
App. at A118. In addition, § 2.04 notes that “Excluded
Liabilities” are “liabilities or obligations associated with any
Excluded Assets” or “associated with any and all indebtedness
of [Stone & Webster and its subsidiaries] for borrowed money
not included in the Assumed Liabilities.” The phrase “liabilities
or obligations” is not defined, but provisions of the Purchase
Agreement indicate, as one would expect, that guaranties are
liabilities.2
Perhaps because the parties were unsure which assets and
liabilities were being transferred to Shaw, Sections 2.07 and
5.17 of the Purchase Agreement permit Stone & Webster and its
subsidiaries to amend schedules “to reflect any changes required
as a result of the addition of applicable Subsidiaries” and to
execute any new documents “that may be reasonably necessary
or desirable.” Id. at A133, A158. Section 7.01(a) further
explains that any added or amended schedule is “deemed to have
been made and delivered as of the Effective Date [of the
Purchase Agreement].” Id. at A163.
After reviewing the Purchase Agreement, the District
2
For instance, Schedule 2.03, which describes liabilities, lists
a guaranty given by Stone & Webster to Enron Power
Corporation and includes a reference to “outstanding bank
indebtedness.” App. at A199. A note at the end of Schedule
3.17(a)(ix) also labels responsibilities from a guaranty as a
“liability.” Id. at A283-84.
8
Court approved the sale of Stone & Webster’s assets in the Sale
Order.3 The Order adopts “all of the terms and conditions” of
the Purchase Agreement, but it adds protections for third parties
claiming repayment rights under a contract or asset assumed by
Shaw. For example, it states that Shaw “will cure . . . any
default existing prior to the date hereof under any of the
Assumed Contracts.” Id. at A432 (Paragraph S of the Order).
It also states that “all rights and remedies of any non-debtor
party or Shaw under any of the Assumed Contracts . . . are fully
preserved and shall be fully enforceable after the Closing against
Shaw or the non-debtor party . . . .” Id. at A437 (Paragraph 12
of the Order). No party objected to the addition of these terms.
Following conclusion of the asset sale, SAMBA filed a
cure claim against SW Engineering for payment of $6,728,549
pursuant to the Guaranty.4 Shaw did not contest this claim until
3
At the time of the sale hearing, the District Court was
hearing bankruptcy cases pursuant to 28 U.S.C. § 1334(a).
4
SAMBA’s Statement of Cure Claim also sought $144,430
from SW Engineering on an unrelated letter of credit issued by
SAMBA to the joint venture’s account. SAMBA had received
a demand for payment on the letter of credit from the second
advising bank, MISR Romanian Bank of Bucharest, but this
payment was stayed by an injunction obtained by SW
Engineering. See App. at A457–58, A475–89. SAMBA did not
request payment from Shaw of the $144,430 in the complaint
that began the case before us. See Saudi American Bank I, 2005
9
it filed its Second Omnibus Objection to Claims in April 2001.
See id. at A1078–90. SAMBA thereafter filed suit against Shaw
and SW Engineering in the Bankruptcy Court for the District of
Delaware. SAMBA asked the Court to determine that the
Guaranty and Payment Letter were Assumed Liabilities for
which Shaw was responsible, or, in the alternative, to allow
SAMBA’s cure claim as an unsecured claim against SW
Engineering. After successfully moving for a withdrawal of the
proceeding to the District Court, Shaw answered SAMBA’s
claim with a motion for summary judgment.5 Shaw alleged that
SAMBA lacked standing to sue under the Purchase Agreement
and claimed that SW Engineering’s Guaranty and Payment
WL 1036556, at *4.
5
The docket sheet and District Court opinions indicate that
SW Engineering joined Shaw’s motion for summary judgment.
See App. at A56–61 (“Motion for Summary Judgment Filed by
The Shaw Group, Inc. and SWINC Acquisition Three, Inc., and
Stone & Webster Engineering Corporation . . . (Entered:
08/13/2002).”); Saudi American Bank I, 2005 WL 1036556, at
*1 (identifying SW Engineering as a defendant and stating that
“[p]resently before the court are plaintiff’s and defendants’
motions for summary judgment”); Saudi American Bank v. Shaw
Group, Inc., 354 B.R. 686, 687 (D. Del. 2006) (describing SW
Engineering as a defendant and recounting that “[p]laintiffs and
defendants filed motions for summary judgment”). SW
Engineering, however, was not a party to the cross-motions for
summary judgment.
10
Letter were Excluded Liabilities for which Shaw was not
responsible.6 SAMBA counterclaimed with its own motion for
summary judgment.
The District Court granted SAMBA’s summary judgment
motion and denied that of Shaw. In reaching its decision, the
Court made two principal rulings. First, it held that SAMBA
had standing to bring its suit. See Saudi American Bank I, 2005
WL 1036556, at *5 n.11. Second, it determined that “the
Guaranty and Payment Letter are contracts that were assumed by
defendant Shaw by operation of the [Purchase Agreement] and
[Sale Order].” Id. at *7. The Court believed the Guaranty and
Payment Letter were “separate contract[s]” that were not
“unambiguously” listed as Excluded Assets or Excluded
6
SAMBA now asserts that Shaw was equitably estopped
from asserting that it did not assume SW Engineering’s liability
to SAMBA because Shaw failed timely to contest SAMBA’s
cure claim. As SAMBA did not present this equitable estoppel
argument to the District Court, it is waived. See Union Pac.
R.R. Co. v. Greentree Transp. Trucking Co., 293 F.3d 120, 126
(3d Cir. 2002). The failure to present this argument is easily
understood, as equitable estoppel would need to involve
misleading conduct by Shaw and detrimental reliance by
SAMBA, not simply a failure timely to contest the cure claim.
See Bechtel v. Robinson, 886 F.2d 644, 650 (3d Cir. 1989)
(explaining that, under Delaware law, equitable “estoppel may
arise when a party by his conduct . . . leads another, in reliance
upon that conduct, to change position to his detriment”).
11
Liabilities under the Purchase Agreement. Id. at *6–7. In so
reasoning, it rejected Shaw’s argument that the Guaranty and
Payment Letter were excluded by association with the in-
kingdom project’s listing as a Completed Contract or a Special
Project Claim. The Court considered only the Purchase
Agreement and Sale Order in reaching its decision. Among the
evidence it did not consider was the declaration of James P.
Carroll, the President and Chief Restructuring Officer for Stone
& Webster, who supported Shaw’s claim that the Guaranty and
Payment Letter were Excluded Liabilities.7 See id. at *5 n.10.
In separate, but related, adversary proceedings, the
District Court considered whether Shaw, as the party the Court
ruled to have assumed the Guaranty, owed SAMBA pre- and
post-judgment interest, attorneys’ fees and related costs under
the terms of the Guaranty. See Saudi American Bank v. Shaw
Group, Inc. (“Saudi American Bank II”), 354 B.R. 686, 688–93
(D. Del. 2006). On the matter of pre-judgment interest, the
Court applied New York law and held that the Guaranty set an
7
Although it is not relevant to our determination of this case,
we note that the District Court properly excluded Carroll’s
declaration at summary judgment review. See MBIA Ins. Corp.
v. Royal Indem. Co., 426 F.3d 204, 214 n.4 (3d Cir. 2005) (“[I]n
determining whether an ambiguity exists a court may consider
only undisputed background facts . . . . ‘[U]ndisputed
background facts’ do not include the self-serving parol evidence
submitted by the parties . . . .”).
12
interest rate of 9%. See id. at 690–91. It also awarded SAMBA
$345,714.50 in attorneys’ fees along with $20,750.00 in costs.
See id. at 692; Saudi American Bank v. Shaw Group, Inc.
(“Saudi American Bank III”), 360 B.R. 64, 67 (D. Del. 2007).
Lastly, the Court awarded SAMBA post-judgment interest at a
rate of 3.33%. See Saudi American Bank II, 354 B.R. at 693.
Shaw appealed the decisions of the District Court. We
consolidated the cases for review.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 28 U.S.C.
§§ 157 and 1334. We have jurisdiction under 28 U.S.C. § 1291.
We exercise plenary review over the District Court’s
grant of summary judgment. Atkinson v. Lafayette Coll., 460
F.3d 447, 451 (3d Cir. 2006). Summary judgment is appropriate
if there is “no genuine issue as to any material fact” and the
party making the motion “is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986). “In determining whether a
genuine issue of fact exists, we resolve all factual doubts and
draw all reasonable inferences in favor of the nonmoving party.”
Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140
(3d Cir. 2004). We may affirm or vacate the District Court’s
judgment on any grounds supported by the record. In re
Teleglobe Commc’ns Corp., 493 F.3d 345, 385 (3d Cir. 2007).
13
We engage in plenary review of questions of contract
interpretation. See Jumara v. State Farm Ins. Co., 55 F.3d 873,
880–81 (3d Cir. 1995).
As different District Judges were involved in approving
the Purchase Agreement by the Sale Order and in interpreting
that Order, this is not a case where the District Judge is afforded
special deference in interpreting her own order.
III. Discussion
We review three issues: (1) whether the District Court
erred in holding that SAMBA had standing to bring a claim
against Shaw; (2) whether summary judgment in favor of
SAMBA was proper; and (3) whether the Court correctly
awarded SAMBA pre- and post-judgment interest, attorneys’
fees and other costs of litigation.
A. Standing
In determining whether SAMBA has standing to sue
under the Purchase Agreement for payment of SW
Engineering’s guaranty of the in-kingdom project loan, Shaw
focuses on § 10.08 of the Purchase Agreement. It states:
No Third Party Beneficiary. The terms and
provisions of this Agreement . . . are intended
solely for the benefit of the parties . . . and their
14
respective successors and permitted assigns, and
are not intended to confer third-party beneficiary
rights upon any other Person.
Shaw argues that this provision, typical in sale-of-asset
agreements, denies SAMBA standing as a third-party
beneficiary by stating that only the debtors (i.e., the Stone &
Webster entities) have standing to sue Shaw under the Purchase
Agreement. According to this argument, SAMBA should have
brought its claim for payment of the Guaranty and Payment
Letter only against SW Engineering, which could then have
sought indemnification from Shaw if it paid SAMBA and
believed that the Guaranty and Payment Letter were assumed by
Shaw.8
Shaw’s argument is no doubt plausible. “Ordinarily, a
stranger to a contract acquires no rights thereunder.” Guardian
Constr. Co. v. Tetra Tech Richardson, Inc., 583 A.2d 1378,
8
Shaw presents two other arguments for consideration in its
brief. First, it asserts that the Guaranty and Payment Letter were
not “Contracts” that granted SAMBA enforcement rights under
the Sale Order’s third-party beneficiary provisions. Second,
Shaw claims that the Guaranty and Payment Letter are non-
executory contracts incapable of being assigned to it. As Shaw
failed to present either of these arguments to the District Court,
they are waived on appeal. See Pension Benefit Guar. v. White
Consol. Indus., Inc., 215 F.3d 407, 418–19 (3d Cir. 2000).
15
1386 (Del. Super. Ct. 1990). According to Delaware law, which
governs the Purchase Agreement, “to qualify as a third party
beneficiary of a contract, (a) the contracting parties must have
intended that the third party beneficiary benefit from the
contract, (b) the benefit must have been intended as a gift or in
satisfaction of a pre-existing obligation to that person, and (c)
the intent to benefit the third party must be a material part of the
parties’ purpose in entering into the contract.” E.I. DuPont de
Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates,
S.A.S., 269 F.3d 187, 196 (3d Cir. 2001). In this case, we are
not aware of evidence that Shaw intended to confer direct
benefits to SAMBA through the Purchase Agreement; in fact,
§ 10.08 makes clear that Shaw did not intend to give enforceable
rights to any third party. Thus, on the basis of the Purchase
Agreement alone, SAMBA arguably does not have standing.
The Purchase Agreement, however, is not the only
document relevant to determining SAMBA’s rights. The Sale
Order approving the Purchase Agreement includes language
protecting the rights of third parties. Paragraph 12 of the Order
states that “all rights and remedies of any non-debtor party or
Shaw under any of the Assumed Contracts . . . are fully
preserved and shall be fully enforceable after the Closing against
Shaw or the non-debtor party . . . .” App. at A437. This
language supersedes § 10.08 of the Purchase Agreement. See
Caldwell Trucking PRP v. Rexon Tech. Corp., 421 F.3d 234,
245 (3d Cir. 2005) (explaining that “general, boilerplate
language” prohibiting third-party actions “must yield to the
16
specific direction” of separate contractual provisions granting
third parties enforceable rights in assumed liabilities); see also
In re Safety-Kleen Corp., 380 B.R. 716, 740 (D. Del. 2008)
(“When a buyer expressly assumes liabilities of a seller, it
becomes directly liable therefore, regardless of any language in
the sale agreement otherwise purporting generally to disclaim
third-party beneficiary rights.”).
In this context, SAMBA, a non-debtor, has standing to
claim that Shaw has assumed SW Engineering’s guaranty of the
in-kingdom project loan. We therefore affirm the District
Court’s determination of this issue.9
B. Summary Judgment
Based on the standard already noted, summary judgment
is appropriate if no genuine issue of material fact exists over
whether Shaw assumed SW Engineering’s guaranty of the in-
kingdom project loan. Settling this issue requires us to ascertain
the intentions of Shaw and the Stone & Webster entities as set
out in the Purchase Agreement and Sale Order. See Eagle
9
Shaw claims that by this conclusion “every . . . part[y] who
d[oes] not like the status it was assigned under the Purchase
Agreement ha[s] standing to sue Shaw.” Shaw’s Br. at 33.
Shaw, however, agreed to the Sale Order, and we are simply
following what it states. See Saudi American Bank I, 2005 WL
1036556, at *7.
17
Indus., Inc. v. DeVilbiss Health Care, Inc., 702 A.2d 1228, 1232
(Del. 1997). The District Court determined that these
documents unambiguously proved that “the Guaranty and
Payment Letter are contracts that were assumed by defendant
Shaw.” Saudi American Bank I, 2005 WL 1036556, at *7. We
reach the opposite conclusion.
In its review of the Purchase Agreement and Sale Order,
the District Court considered only whether the Guaranty and
Payment Letter were specifically listed as Excluded Liabilities.
It did not question whether they were excluded by way of
association with the excluded in-kingdom project. The Court
decided not to consider this possibility based on its application
of the “fundamental premise that a guaranty ‘is a separate
contract . . . from the basic contract to which it is collateral.’”
Id. at *6 (quoting FinanceAmerica Private Brands, Inc. v.
Harvey E. Hall, Inc., 380 A.2d 1377, 1379 (Del. Super. Ct.
1977)). This premise, it concluded, controlled interpretation of
the parties’ agreements.
We disagree with the Court’s premise that the Guaranty
and Payment Letter’s association with the in-kingdom project is
irrelevant to their classification as assumed or excluded
liabilities. To be sure, case law establishes that “a guaranty and
the underlying contract are separate contracts.” Saudi American
Bank I, 2005 WL 1036556, at *6 n.12. But that law does not
answer whether the parties intended to include the Guaranty and
Payment Letter under a listing of the in-kingdom project.
18
Instead, the general law of contract, that agreements are
enforced “in accord with their makers’ intent,” must control.
MBIA Ins. Corp. v. Royal Indem. Co., 426 F.3d 204, 210 (3d
Cir. 2005). In this case, the parties expressed a clear intent to
associate guaranties and other liabilities or obligations with their
underlying contracts.
As discussed, the Purchase Agreement contains several
sections that define liabilities as excluded based on their
association with excluded contracts. Section 2.04, as noted
above in part, describes “Excluded Liabilities” as
(a) liabilities . . . other than Assumed Liabilities;
. . . (c) liabilities or obligations associated with
any Excluded Assets; (d) liabilities or obligations
associated with any and all indebtedness of [Stone
& Webster and its subsidiaries] for borrowed
money not included in the Assumed Liabilities;
[and] (e) liabilities or obligations under the
Assumed Contracts that are not Assumed
Liabilities and liabilities or obligations arising
under the Rejected Contracts or the Completed
Contracts.
App. at A129. Under clauses (c), (d), or (e), a liability need only
be “associated with” an Excluded Asset or a debt not an
Assumed Liability, or “aris[e] under” a Rejected or Completed
Contract, to qualify as an “Excluded Liability.” Excerpts from
19
the transcript of the Sale Order hearing further indicate that the
parties and the Court understood that a listing of an excluded
contract also included “all liabilities arising under th[at] . . .
contract.” Id. at A792; see also id. at A762, A767–75, A789.
Thus, the Guaranty and Payment Letter may be Excluded
Liabilities if the in-kingdom project with which they are
associated is listed as an Excluded Asset.10
Recognizing the importance of whether the in-kingdom
10
SAMBA argues against associating the Guaranty and
Payment Letter with the in-kingdom project because neither SW
Engineering nor Stone & Webster had “any involvement
whatsoever in [the project’s] execution and performance.”
SAMBA’s Br. at 4. It also claims that use of the loan secured by
the Guaranty was not limited to the in-kingdom project. Id. at
5–7. It is evident, however, that SW Engineering had an equity
stake in the joint venture, see App. at A516, and that SW
Engineering included contracts related to the in-kingdom project
in its bankruptcy estate. See id. at A212. Furthermore, internal
SAMBA documents and the deposition transcript of Sheheryar
Ali, SAMBA’s Assistant General Manager, indicate that the
Guaranty was linked exclusively to the loan given by SAMBA
to the joint venture to finance the in-kingdom project. See id. at
A77–96, A294; see also SAMBA’s Br. at 5 (“SAMBA has
never denied that its initial loan to [the joint venture] was for the
stated purpose of providing working capital that could be used
for the In-Kingdom Contract and that Contract was, initially, the
primary source of payment of the loan.”).
20
project is an assumed or excluded liability, our review turns to
the schedules that identify the three types of Excluded Assets:
Rejected Contracts, Completed Contracts, and Special Project
Claims.
First, all parties agree that the in-kingdom project is not
a Rejected Contract. Schedule 5.16(b) of the Purchase
Agreement lists the Rejected Contracts and contains no mention
of the in-kingdom project.
Second, the in-kingdom project’s status as a Completed
Contract is ambiguous. Completed Contracts, to repeat, are
“those specifically set forth on Schedule 2.02(b), under which
substantially all of the contractual work effort of [the Stone &
Webster entities] has been completed.” Id. at A117. To repeat,
Schedule 2.02(b) references the in-kingdom project name,
Aramco Ras Tanura (Bugshan)/Refinery Upgrade, but does so
in conjunction with the out-of-kingdom project number,
05062011. See id. at A196. Shaw argues that this reference
proves that the parties meant to exclude both contracts. See
Shaw’s Br. at 15–16. SAMBA asserts that the project number
should control and faults Shaw and SW Engineering for not
clarifying the schedule. See SAMBA’s Br. at 18–19, 53–54; Or.
Arg. Tr. at 17. We are not convinced either way. The listing of
the in-kingdom project name is significant, but the record does
not show conclusively what the parties to the Purchase
Agreement intended it to mean.
21
Third, the schedule of Special Project Claims
unambiguously lists the in-kingdom project as an Excluded
Asset. Schedule 2.02(e) excludes “any and all claims and
liabilities” related to the “Ras Tanura, Saudi Arabia, Refinery
Upgrade Project,” and specifies the in-kingdom project. App.
at A212. In particular, the schedule lists:
Contract for Construction dates as of June
28, 1994 by and between Saudi Arabian Oil
Company (“Saudi Aramco”) and BS&W [the joint
venture] (designated by Saudi Aramco as Contract
No. 65004/00).
...
Contract retainage due to BS&W [the joint
venture] in the amount of $5,757,000 on Contract
No. 65004/00 . . . .
...
One or more potential claims for payment
under a series of Letters of Credit issued by Saudi
American Bank . . . .
Id. This listing is decisive. It excludes the in-kingdom project
by name and number, and it makes clear that the Stone &
Webster entities retain the claims and liabilities of the Ras
Tanura Upgrade Project. The in-kingdom project is thus an
Excluded Asset under the Purchase Agreement, and the
Guaranty and Payment Letter are Excluded Liabilities because
22
they are associated with that Excluded Asset.11
11
The District Court did not consider this reasoning because
“Schedule 2.02(e) was added to the [Purchase Agreement] by
debtor and defendant Shaw subsequent to [the District Court]’s
approval of the Execution Copy of the [Purchase Agreement].”
Saudi American Bank I, 2005 WL 1036556, at *3 n.6. But the
Court did consider as relevant other schedules added to the
Purchase Agreement on the same day as Schedule 2.02(e). See,
e.g., id. at *3 & *7 (reviewing the contents of Schedule
3.17(a)(ix)). And, as mentioned, Sections 2.07 and 5.17 of the
Purchase Agreement permit the Stone & Webster entities to
amend and add schedules, see App. at A133 & A158, and
§ 7.01(a) explains that any added schedule is “deemed to have
been made and delivered as of the Effective Date [of the
Purchase Agreement].” Id. at A163.
SAMBA also argues that we should not consider the
relevance of Schedule 2.02(e) because (1) paragraph 31 of the
Sale Order provides that the Purchase Agreement “could not be
modified without an order of the Court, unless the modification
would not have a material adverse effect on Debtors’ estates,”
and (2) Shaw’s counsel stated at the sale hearing in July 2000
that “the contracts that are in [the Purchase Agreement] are now
fixed.” SAMBA’s Br. at 55. We reject both arguments.
First, the sections of the Purchase Agreement permitting
amendment of schedules were not modified or added to the
Agreement after the issuance of the Sale Order. Also, as noted
by SAMBA’s counsel at oral argument, it is “uncontested” that
Stone & Webster was the party that filed Schedule 2.02(e). Or.
Arg. Tr. at 21. Adding the schedule was thus sanctioned by the
23
The conclusion that the Guaranty and Payment Letter are
Excluded Liabilities by way of association with an excluded
Special Project Claim is further supported by SW Engineering’s
stated Answer, Affirmative Defenses, and Counterclaims to
SAMBA’s initial complaint. Denying that the Guaranty and
Payment letter were assumed by Shaw, SW Engineering
asserted:
Both the [Payment] Letter and the 1994
Guarantee are Special Project Claims (as defined
in section 1.01 and on schedule 2.02(e) of the
[Purchase Agreement]), defined as “[a]ny and all
claims or liabilities available at law or in equity,
or arising under the project agreements in Saudi
Arabia for the Ras Tanura Refinery Upgrade
Project (“RTRUP”)—Package 2—Utilities . . . .”
District Court and was not materially adverse to Stone &
Webster’s interests.
Second, counsel’s remark about the contracts being
“fixed” says nothing about the parties’ ability to add contracts
or adjust the schedules. In fact, counsel’s statements
immediately following the “fixed” remark focus on “preserving
the right for [Stone & Webster] to say . . . [a contract]’s in, and
Shaw to say . . . it’s out,” and discuss the parties’ belief that
further negotiations would be necessary to clarify “material
misunderstandings about what the effect of this contract on the
estate is.” App. at A736–43.
24
[Purchase Agreement] at schedule 2.02(e). . . .
Under the specific terms of the [Purchase
Agreement], the Special Project Claims are
Excluded Assets (as defined therein) and were not
assumed by the Shaw Parties . . . . Additionally,
any liabilities or obligations associated with any
Excluded Assets (including the Special Project
Claims) are Excluded Liabilities (as defined in the
[Purchase Agreement]) and were not assumed by
the Shaw Parties.
SW Engineering’s Answer, Affirmative Defenses, and
Counterclaims, Saudi American Bank v. Shaw Group, Inc. (In re
Stone & Webster, Inc.), Ch. 11 Case No. 00-02142, Adv. No.
01-07766, at 10–11 (Bankr. D. Del. Oct. 29, 2001) (emphasis
added). Rarely is such a clear statement offered by a debtor
against its interests. By refusing to claim that Shaw was
obligated to pay the balance of SAMBA’s loan, SW Engineering
eliminated its surest avenue to avoiding liability for the debt and
reinforced the status of the Guaranty and Payment Letter as
Excluded Liabilities.
In concluding that Shaw did not assume liability for SW
Engineering’s guaranty of the in-kingdom project loan, we
additionally reject SAMBA’s assertions that the Guaranty and
Payment Letter are Assumed Liabilities or Assumed Contracts.
These assertions rely on unreasonable interpretations that do not
overcome the unambiguous language of the Purchase
25
Agreement and Sale Order.
To begin, SAMBA’s attempt to label the Guaranty and
Payment Letter as Assumed Liabilities under Schedules 2.03
and 3.17(a)(ix) is misleading. Schedule 2.03 states that
Assumed Liabilities include “[l]iabilities under [the Stone &
Webster entities’] outstanding bank indebtedness” and “other
liabilities related to the . . . Assumed Contracts.” App. at A199.
Schedule 3.17(a)(ix) lists all of the Stone & Webster entities’
indebtedness “relating to the borrowing of money or indirect
guarantee[s].” Id. at A139. Included within Schedule
3.17(a)(ix) is a listing for a letter of guaranty dated September
1, 1992 from SW Engineering to SAMBA for $5,000,000, and
a letter of guaranty dated October 19, 1992 from SW
Engineering to SAMBA for repayment of 40,000,000 Saudi
Riyals. Id. at A282–83.
Reading these schedules somehow to include the
Guaranty, SAMBA asserts that they provide “undisputed
evidence . . . that [SW Engineering]’s obligation to SAMBA
constitutes [an Assumed Liability] under [SW Engineering]’s
outstanding bank indebtedness.” SAMBA’s Br. at 21. This
overstatement underwhelms, as neither of the guaranties
referenced in Schedule 3.17(a)(ix) is related to the Guaranty,
which was issued October 11, 1994, for $35,000,000—not
September 1992 for $5,000,000 or October 1992 for 40,000,000
Saudi Riyals (as noted, the dates and amounts of the guaranties
listed in Schedule 3.17(a)(ix)). See App. at A73–76, A92–93.
26
SAMBA claims that this discrepancy is unimportant
because “Shaw has admitted that it assumes that the guaranty
listed on Schedule 3.17(a)(ix) incorporates the Guaranty.”
SAMBA’s Br. at 22. This statement misrepresents Shaw’s
actual response that it “currently assumes that this is the same
guaranty (and it knows of no other), but there appears to be no
direct way to confirm (or deny) this point.” App. at A496.12
SAMBA is also incorrect in labeling the Guaranty and
Payment Letter as Assumed Contracts. The Purchase
Agreement defines “Assumed Contracts” as “all Contracts of
Sellers (including the Employee Agreements) other than the
Rejected Contracts and the Completed Contracts.” Id. at A114.
SAMBA claims that the Guaranty and Payment Letter fall
within this definition because they are “Contracts” under the
12
Even if the Guaranty and Payment Letter were included
within the guaranties listed in Schedule 3.17(a)(ix), their
placement there would not be conclusive of their assumed
status. The Purchase Agreement anticipates in Sections 1.01
and 3.17 that there are liabilities and obligations listed in
Schedule 3.17(a)(ix) that are elsewhere excluded through
specific mention or association with an Excluded Asset. There
is no reason why the Guaranty and Payment Letter at issue here
would not be such liabilities if, in fact, they were listed in
Schedule 3.17(a)(ix).
27
Purchase Agreement,13 and they are not specifically listed in the
schedules of Rejected or Completed Contracts.14 We dismiss
this claim as an illogical interpretation of the Purchase
Agreement and Sale Order.
“It is a general rule of contract construction to ‘consider
the entire instrument and attempt to reconcile all of its
provisions in order to determine the meaning intended to be
given to any portion of it.’” In re IAC/Interactive Corp., 948
A.2d 471, 497 (Del. Ch. 2008) (quoting Wood v. Coastal States
Gas Corp., 401 A.2d 932, 937 (Del. 1979)). “Moreover, the
meaning which arises from a particular portion of an agreement
cannot control the meaning of the entire agreement where such
inference runs counter to the agreement’s overall scheme or
13
As defined in § 1.01 of the Purchase Agreement,
“Contracts” are “all commitments, contracts, leases, licenses,
agreements and understandings, written or oral, relating to the
Assets or the operation of the Business to which any [Stone &
Webster entity] is a party or by which it or any of its Assets are
bound.” Id. at A117.
14
In its brief, SAMBA also cites page A882 of the Appendix
to support an assertion that the “Guaranty and Payment Letter
were listed on the Second Amended Assumed Contract List.”
SAMBA’s Br. at 23. Page A882 is merely a title page for the
Amended Assumed Contracts Lists, and a search of the
preceding and following pages reveals no specific mention of
the Guaranty or Payment Letter.
28
plan.” E.I. du Pont Nemours & Co., Inc. v. Shell Oil Co., 498
A.2d 1108, 1113 (Del. 1985).
The overall scheme of the Purchase Agreement and Sale
Order, as noted above, is for Shaw to assume all assets and
obligations of the Stone & Webster entities except for those
listed as Excluded Assets or Excluded Liabilities. SAMBA’s
labeling of the Guaranty and Payment Letter as “Assumed
Contracts” turns that scheme on its head by making Shaw liable
for what are Excluded Liabilities via their association with an
excluded Special Project Claim (the in-kingdom project).15
15
At oral argument, SAMBA asserted that paragraphs 12
and 22 of the Sale Order reversed the Purchase Agreement’s
general rule that Excluded Liabilities cannot create liabilities
assumed by Shaw. See Or. Arg. Tr. at 22-28, 36, 39-43. This
claim is waived because SAMBA raised it for the first time at
oral argument. See Montrose Med. Group Participating Sav.
Plan v. Bulger, 243 F.3d 773, 783 (3d Cir. 2001).
Even were the claim not waived, it misses on the merits.
Paragraph 12 of the Sale Order states, in part, that “Shaw is
assuming all liabilities arising under the Assumed Contracts.”
App. at A437. Paragraph 22 reads: “Under no circumstances
shall any holder of an Excluded Liability be able to commence,
continue or otherwise pursue or enforce any remedy, claim or
cause of action against Shaw . . . except with respect to the
liabilities assumed under an Assumed Contract by Shaw
pursuant to paragraph 12 of this Sale Order.” Id. at A442.
Contrary to SAMBA’s claim, these provisions—like similar
29
Furthermore, were we to extend SAMBA’s logic to other
Excluded Assets and Excluded Liabilities, we would in effect be
reading entire sections and schedules out of the Purchase
Agreement. All items only listed as, or associated with, Special
Project Claims, for example, would no longer be distinctly
excluded because they too would be “Contracts . . . other than
the Rejected Contracts and the Completed Contracts.” App. at
A114 (defining “Assumed Contracts”). To adopt such a far-
reaching interpretation would violate “the cardinal rule of
contract construction that, where possible, a court should give
effect to all contract provisions.” E.I. du Pont, 498 A.2d at
1114; see also New Castle County, Del. v. Nat’l Union Fire Ins.
Co. of Pittsburgh, 174 F.3d 338, 350 (3d Cir. 1999).
Lastly, we disagree with SAMBA’s assertion that the
transcripts of the sale hearings show that the Guaranty and
Payment Letter are Assumed Liabilities or Assumed Contracts
clauses in paragraphs 7, 10, 17, 21, and 25 of the Sale
Order—merely preserve the ability of non-debtor parties to
assert their rights under an Assumed Contract. Paragraph 9 of
the Sale Order confirms that paragraphs 12 and 22 do not alter
the Purchase Agreement’s distinction between Excluded
Liabilities and liabilities under Assumed Contracts, stating
“[SW Engineering]’s assumption and assignment to Shaw, and
Shaw’s assumption on the terms set forth in the [Purchase]
Agreement, of the Assumed Contracts [are] hereby approved
. . . .” Id. at A435 (emphasis added).
30
because they were not identified as Rejected or Completed
Contracts before entry of the Sale Order. SAMBA assigns
particular significance to the representations made by counsel
for the Committee of Unsecured Creditors at the sale hearing in
July 2000 that
[t]his agreement revolves, in terms of its
economics, around three schedules, or let’s say
two schedules, and whether or not your contract is
on one of those two schedules. And those two
schedules are the schedule for rejected contracts
and the schedule for completed contracts. If they
are not on those schedules, in essence, your
contract is an assumed contract, and the economic
impact to you as a stakeholder is dependent upon
whether you are on those two lists . . . .
Saudi American Bank I, 2005 WL 1036556, at *2.
We do not see how this statement establishes with
certainty that the Guaranty and Payment Letter are Assumed
Contracts or Assumed Liabilities. The statement oversimplifies
the terms of the Purchase Agreement, does not discuss the
relevance of the “liabilities and obligations” associated with
Excluded Assets, and fails to mention the importance of the
Special Project Claims. Other statements from the sale hearing
transcript, moreover, show that the District Court did not think
that the provisions of the Purchase Agreement were settled when
31
it issued the Sale Order. See, e.g., App. at A788 (“I will allow
[the parties to adjust the schedules after approval of the
Purchase Agreement], with the understanding that we may end
up having to deal with adjustments and the economic impact of
adjustments.”); A798 (“I would rather leave Shaw and the
debtor as much flexibility as they can to try and make
adjustments, because I understand it is going to be
complicated.”).
The record is clear: the Guaranty and Payment Letter are
Excluded Liabilities because they are associated with the in-
kingdom project, which is an excluded Special Project Claim.
We therefore reverse the District Court’s grant of summary
judgment.16
16
Because we hold that the Guaranty was not assumed by
Shaw, SAMBA’s claim for repayment should now be treated as
a Proof of Claim against SW Engineering, as expressly reserved
in SAMBA’s Statement of Cure Claim. See App. at A458 (“In
the event it is determined that the Guaranty is not a contract
assumed by Shaw, . . . [SAMBA] hereby claims the right to have
such portion of its claim treated as a Proof of Claim, rather than
a Statement of Cure Claim.”). SAMBA’s ability to recover
payment under a Proof of Claim, however, is limited by the
terms of its May 2003 Settlement Agreement with SW
Engineering and the other Stone & Webster entities. See
Stipulation and Agreed Order Dismissing Adversary
Proceeding, Appendix at A500–10, Saudi American Bank v.
Saudi Arabian Oil Co. (In re Stone & Webster, Inc.), No. 07-
32
3891 (3d Cir. pending). That Agreement resolved all disputes
related to a preference action filed by SW Engineering against
SAMBA and SAMBA’s claims under the Guaranty and
Payment Letter. The specific terms of the Agreement state:
WHEREAS the Parties have agreed to
settle the disputes involved in the Preference
Action and SAMBA’s contingent claims against
[SW Engineering] as set forth herein;
NOW, THEREFORE, . . . the Parties agree
as follows:
1. [SW Engineering] shall make a one-time
cash payment of One Million Dollars
($1,000,000) to SAMBA . . . .
2. SAMBA will have an allowed general,
unsecured claim in the amount of Two
M illion Five H undred Thousa nd
($2,500,000) against [SW Engineering].
....
5. Except for the rights and obligations
e x p r e s s l y p r o v i d e d o r re s e r v e d
hereunder[,] SAMBA . . . hereby releases,
remises and forever discharges the [Stone
& Webster entities] . . . from any and all
claims and causes of action . . . that
SAMBA ever had, now has or may have,
for acts, events or occurrences . . . based
upon the Proof of Claim, the Cure Claim,
the Payment Letter, or the Guarantee, or
33
C. Interest, Attorneys’ Fees and Other Litigation
Costs
Because we reverse the District Court’s grant of summary
judgment, we must also vacate its subsequent awards to
SAMBA, and against Shaw, of pre- and post-judgment interest,
attorneys’ fees and other litigation costs. We nonetheless agree
with the Court’s analysis of these issues had they applied to SW
Engineering.
With respect to the award of pre-judgment interest, we
specifically agree with the District Court’s reliance on the
Guaranty’s choice of New York law and its assignment of a 9%
interest rate running from May 31, 2000.17 We likewise concur
that were or could have been asserted by
SAMBA in the Proof of Claim or the Cure
Claim.
Id. at A506–07; see also Saudi American Bank III, 360 B.R. at
66 (discussing the Settlement Agreement). Accordingly,
SAMBA may recover no more than $2.5 million from SW
Engineering through a Proof of Claim.
17
Despite the Guaranty’s statement that it “shall be governed
by the laws of the State of New York,” SAMBA sought
application of Delaware’s legal interest rate of 11%. See Saudi
American Bank II, 354 B.R. at 689–91. Shaw argued in
response that SAMBA was not entitled to receive interest on the
34
in the Court’s application of 28 U.S.C. § 1961 to establish a
3.33% post-judgment interest rate. See Saudi American Bank II,
354 B.R. at 693.18
sum because the joint venture’s “obligation to SAMBA
ultimately arose under and is determined by the Credit
Agreement, and . . . Payment Letter,” which are controlled by
Saudi law that forbids the collection of interest. Id. at 690. The
District Court concluded that the terms of the Guaranty
controlled in all respects, granting SAMBA pre-judgment
interest at New York’s interest rate of 9%. See id. at 690–91;
N.Y. C.P.L.R. §§ 5001(a) & 5004. The Court distinguished the
Guaranty from the Credit Agreement by reiterating that a
guaranty “is a separate contract involving duties and
responsibilities which are different from the basic contract to
which it is collateral.” Saudi American Bank II, 354 B.R. at 690(quoting FinanceAmerica, 380 A.2d at 1379). It applied New
York’s interest rate because it determined that Delaware, whose
law would control in the absence of the parties’ choice of law,
did not have a “materially greater” interest in the subject matter
than New York. Id. at 691 (quoting Hionis Int’l Enters., Inc. v.
Tandy Corp., 867 F.Supp. 268, 271 (D. Del. 1994)).
18
28 U.S.C. § 1961(a) states in part: “Interest shall be
allowed on any money judgment in a civil case recovered in a
district court. . . . Such interest shall be calculated from the date
of the entry of the judgment, at a rate equal to the weekly
average 1-year constant maturity Treasury yield . . . for the
calendar week preceding the date of the judgment.”
35
Regarding litigation expenses, we approve the Court’s
determination that the Guaranty’s promise of reimbursement for
“any and all expenses incurred [by SAMBA] in enforcing [its]
rights under this Guaranty” entitles SAMBA to reasonable
attorneys’ fees and other costs of litigation. Saudi American
Bank II, 354 B.R. at 691–3. Any reward recovered under the
language of the Guaranty, however, must be limited to the fees
and costs directly incurred in enforcing rights against SW
Engineering under that instrument. See id. at 692.
IV. Conclusion
We affirm the conclusion of the District Court that
SAMBA has standing to challenge the status of its claim under
the Purchase Agreement. We reverse the Court’s grant of
summary judgment to SAMBA, and we vacate its orders
requiring Shaw to pay pre- and post-judgment interest,
attorneys’ fees and other litigation costs. We further remand the
matter to the District Court for proceedings consistent with this
opinion.
36