mew Doc 1901 Filed 12/11/17 Entered 12/11/17 16:47:01 Main Document Pg 1 of 12

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1 Pg 1 of 12 WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York Telephone: (212) Facsimile: (212) Gary T. Holtzer Robert J. Lemons Garrett A. Fail Attorneys for Debtors and Debtors in Possession UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x In re : : Chapter 11 WESTINGHOUSE ELECTRIC : COMPANY LLC, et al., : Case No (MEW) : Debtors. 1 : (Jointly Administered) x LIMITED OBJECTION OF DEBTORS TO MOTION OF OVIVO USA, LLC FOR ALLOWANCE AND IMMEDIATE PAYMENT OF ADMINISTRATIVE EXPENSE CLAIM 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, if any, are: Westinghouse Electric Company LLC (0933), CE Nuclear Power International, Inc. (8833), Fauske and Associates LLC (8538), Field Services, LLC (2550), Nuclear Technology Solutions LLC (1921), PaR Nuclear Holding Co., Inc. (7944), PaR Nuclear, Inc. (6586), PCI Energy Services LLC (9100), Shaw Global Services, LLC (0436), Shaw Nuclear Services, Inc. (6250), Stone & Webster Asia Inc. (1348), Stone & Webster Construction Inc. (1673), Stone & Webster International Inc. (1586), Stone & Webster Services LLC (5448), Toshiba Nuclear Energy Holdings (UK) Limited (N/A), TSB Nuclear Energy Services Inc. (2348), WEC Carolina Energy Solutions, Inc. (8735), WEC Carolina Energy Solutions, LLC (2002), WEC Engineering Services Inc. (6759), WEC Equipment & Machining Solutions, LLC (3135), WEC Specialty LLC (N/A), WEC Welding and Machining, LLC (8771), WECTEC Contractors Inc. (4168), WECTEC Global Project Services Inc. (8572), WECTEC LLC (6222), WECTEC Staffing Services LLC (4135), Westinghouse Energy Systems LLC (0328), Westinghouse Industry Products International Company LLC (3909), Westinghouse International Technology LLC (N/A), and Westinghouse Technology Licensing Company LLC (5961) (the Chapter 11 Cases ). The Debtors principal offices are located at 1000 Westinghouse Drive, Cranberry Township, Pennsylvania

2 Pg 2 of 12 TO THE HONORABLE MICHAEL E. WILES UNITED STATES BANKRUPTCY JUDGE: 1. Westinghouse Electric Company LLC and certain of its affiliates, as debtors and debtors in possession in the above-captioned chapter 11 cases (collectively, the Debtors ), respectfully submit this limited objection to the Motion of Ovivo USA, LLC for Allowance and Immediate Payment of Administrative Expense Claim [ECF No. 1735] (the Motion ), which seeks allowance and immediate payment of Ovivo USA, LLC s ( Ovivo ) administrative expense claim (the Claim ) pursuant to section 503(a) and 503(b)(1) of title 11 of the United States Code. 2. On March 30, 2017, the Court approved that certain Interim Assessment Agreement, dated as of March 28, 2017 (the IAA ), between the Debtors and South Carolina Electric & Gas Company and the South Carolina Public Service Authority (collectively, the Project Owners ) (as amended) [ECF Nos. 68, 385, and 778]. Pursuant to the IAA, the Project Owners agreed to pay the costs of continuing construction at Units 2 and 3 at the Virgil C. Summer Nuclear Station near Columbia, South Carolina (the Project ) during an Interim Assessment Period : The [Project] Owners agree to pay all costs and administrative claims accrued by the Debtors during the Interim Assessment Period pursuant to the [Engineering, Procurement and Construction Agreement dated May 23, 2008, as amended from time to time (the EPC )], the Interim Assessment Agreement, or any other agreement related to the V.C. Summer Project, regardless of whether the costs become payable during the Interim Assessment Period, and including all costs accrued by the Debtors to Flour, Subcontractors and/or Vendors pursuant to (i) existing purchase orders, vendor contracts and Subcontracts (as defined in the EPC) and (ii) new purchase orders, new vendor contracts, Subcontracts, or change orders to existing purchase order, vendor contracts, or Subcontracts (items (i) and (ii), the IAP Contracts ). 2

3 Pg 3 of 12 IAA 6, see IAA, Amendment No. 1, 2 [ECF No. 385]. The IAA also provides that the Project Owners will: [I]ndemnify and hold harmless the Debtors against any administrative expenses which the Debtors may incur under the EPC, the Interim Assessment Agreement, the IAP Contracts, or any other agreement related to the V.C. Summer Project, regardless of whether the administrative expenses arise during or after the Interim Assessment Period, including for the avoidance of doubt, prior to the execution of this agreement. IAA 11, see IAA, Amendment No. 1, 4 [ECF No. 385]. 3. The Debtors have reviewed the Motion, their books and records, and information provided by Ovivo. The Debtors do not oppose the Motion for allowance of an administrative claim of $2,311,169.00, for which sufficient information was provided by Ovivo. Ovivo s claim related to this amount is for expenses incurred during the Interim Assessment Period. Pursuant to the IAA, upon entry of an order granting the Motion in part, the Debtors will apply funds advanced by the Project Owners to fund payment of the allowed amount of the Claim. See IAA 7; IAA, Amendment No. 1, 7 [ECF No. 385]. 4. Based on representations by counsel to Ovivo, the Debtors understand that Ovivo is no longer seeking payment or asserting an administrative expense claim for the remaining $2,373,089 balance of Ovivo s Claim. At this time, the Debtors object to the allowance of an administrative claim for such amounts. 5. A proposed form of order granting the Motion in part and denying the Motion in part is annexed hereto as Exhibit A (the Proposed Order ). 3

4 Pg 4 of A redline of the Proposed Order against the proposed form of order attached to the Motion is annexed hereto as Exhibit B. Dated: December 11, 2017 New York, New York /s/ Garrett A. Fail WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York Telephone: (212) Facsimile: (212) Gary T. Holtzer Robert J. Lemons Garrett A. Fail Attorneys for Debtors and Debtors in Possession 4

5 Pg 5 of 12 Exhibit A Proposed Order

6 Pg 6 of 12 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x In re : : Chapter 11 WESTINGHOUSE ELECTRIC : COMPANY LLC, et al., : Case No (MEW) : Debtors. 1 : (Jointly Administered) x ORDER GRANTING IN PART AND DENYING IN PART MOTION OF OVIVO USA, LLC FOR ALLOWANCE AND IMMEDIATE PAYMENT OF ADMINISTRATIVE EXPENSE CLAIM This matter is before the court on the Motion of Ovivo USA, LLC for Allowance and Immediate Payment of Administrative Expense Claim ( Motion ) that a hearing on the Motion of Ovivo USA, LLC for Allowance and Immediate Payment of Administrative Expense Claim, filed by Ovivo USA, LLC. This Court finds that sufficient notice having been provided on the Motion and that no other or further notice need be given; that the Court having considered the factual and legal basis as set forth in the Motion establish just cause for the relief requested therein 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, if any, are: Westinghouse Electric Company LLC (0933), CE Nuclear Power International, Inc. (8833), Fauske and Associates LLC (8538), Field Services, LLC (2550), Nuclear Technology Solutions LLC (1921), PaR Nuclear Holding Co., Inc. (7944), PaR Nuclear, Inc. (6586), PCI Energy Services LLC (9100), Shaw Global Services, LLC (0436), Shaw Nuclear Services, Inc. (6250), Stone & Webster Asia Inc. (1348), Stone & Webster Construction Inc. (1673), Stone & Webster International Inc. (1586), Stone & Webster Services LLC (5448), Toshiba Nuclear Energy Holdings (UK) Limited (N/A), TSB Nuclear Energy Services Inc. (2348), WEC Carolina Energy Solutions, Inc. (8735), WEC Carolina Energy Solutions, LLC (2002), WEC Engineering Services Inc. (6759), WEC Equipment & Machining Solutions, LLC (3135), WEC Specialty LLC (N/A), WEC Welding and Machining, LLC (8771), WECTEC Contractors Inc. (4168), WECTEC Global Project Services Inc. (8572), WECTEC LLC (6222), WECTEC Staffing Services LLC (4135), Westinghouse Energy Systems LLC (0328), Westinghouse Industry Products International Company LLC (3909), Westinghouse International Technology LLC (N/A), and Westinghouse Technology Licensing Company LLC (5961) (the Chapter 11 Cases ). The Debtors principal offices are located at 1000 Westinghouse Drive, Cranberry Township, Pennsylvania WEIL:\ \2\

7 Pg 7 of 12 in part; and in consideration of the Limited Objection of the Debtors to the Motion; and after due deliberation and sufficient cause appearing therefor, it is HEREBY ORDERED that the relief requested in the Motion is granted in part and denied in part as set forth herein; and it is further ORDERED that Ovivo USA, LLC is granted an allowed administrative expense claim in the amount of $2,311, (the Allowed Claim ); and it is further and it is further ORDERED that the Motion is denied other than with respect to the Allowed Claim; ORDERED that notwithstanding entry of this Order, Ovivo reserves its right to assert additional administrative expense claims against the Debtors, and the Debtors reserve any and all rights to object to, defend, or assert counterclaims to such claims; and it is further ORDERED that the Allowed Claim arose during the Interim Assessment Period (as defined in the IAA) and South Carolina Electric & Gas Company, and South Carolina Public Service Authority (collectively, the Project Owners ) are obligated to the Debtors in an amount equal to the Allowed Claim pursuant to that certain Interim Assessment Agreement, dated as of March 28, 2017, between the Debtors and the Project Owners (as amended) (the IAA ); and it is further ORDERED that the Debtors are to pay the Allowed Claim within ten (10) days of the date of this order, and it is further WEIL:\ \2\

8 Pg 8 of 12 ORDERED that the Debtors are authorized to take all actions necessary to effectuate the relief granted in this Order; and it is further ORDERED, that the Court will retain jurisdiction with respect to all matters arising from or in connection with this Order. Dated:, 2017 New York, New York THE HONORABLE MICHAEL E. WILES UNITED STATES BANKRUPTCY JUDGE WEIL:\ \2\

9 Pg 9 of 12 Exhibit B Redline of Proposed Order

10 Pg 10 of 12 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x In re : : Chapter 11 WESTINGHOUSE ELECTRIC : COMPANY LLC, et al., : Case No (MEW) : Debtors. 1 : (Jointly Administered) x ORDER GRANTING IN PART AND DENYING ORDER GRANTINGIN PART MOTION OF OVIVO USA, LLC FOR ALLOWANCE AND IMMEDIATE PAYMENT OF ADMINISTRATIVE EXPENSE CLAIM This matter is before the court on the Motion of Ovivo USA, LLC for Allowance and Immediate Payment of Administrative Expense Claim ( Motion ) that a hearing on the Motion of Ovivo USA, LLC for Allowance and Immediate Payment of Administrative Expense Claim, filed by Ovivo USA, LLC. This Court finds that sufficient notice having been provided on the Motion and that no other or further notice need be given; that the Court having considered the factual and legal basis as set forth in the Motion establish just cause for the relief requested therein 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, if any, are: Westinghouse Electric Company LLC (0933), CE Nuclear Power International, Inc. (8833), Fauske and Associates LLC (8538), Field Services, LLC (2550), Nuclear Technology Solutions LLC (1921), PaR Nuclear Holding Co., Inc. (7944), PaR Nuclear, Inc. (6586), PCI Energy Services LLC (9100), Shaw Global Services, LLC (0436), Shaw Nuclear Services, Inc. (6250), Stone & Webster Asia Inc. (1348), Stone & Webster Construction Inc. (1673), Stone & Webster International Inc. (1586), Stone & Webster Services LLC (5448), Toshiba Nuclear Energy Holdings (UK) Limited (N/A), TSB Nuclear Energy Services Inc. (2348), WEC Carolina Energy Solutions, Inc. (8735), WEC Carolina Energy Solutions, LLC (2002), WEC Engineering Services Inc. (6759), WEC Equipment & Machining Solutions, LLC (3135), WEC Specialty LLC (N/A), WEC Welding and Machining, LLC (8771), WECTEC Contractors Inc. (4168), WECTEC Global Project Services Inc. (8572), WECTEC LLC (6222), WECTEC Staffing Services LLC (4135), Westinghouse Energy Systems LLC (0328), Westinghouse Industry Products International Company LLC (3909), Westinghouse International Technology LLC (N/A), and Westinghouse Technology Licensing Company LLC (5961) (the Chapter 11 Cases ). The Debtors principal offices are located at 1000 Westinghouse Drive, Cranberry Township, Pennsylvania WEIL:\ \1\ WEIL:\ \2\

11 Pg 11 of 12 in part; and with noin consideration of the Limited oobjections having been madeof the Debtors to the Motion; and after due deliberation and sufficient cause appearing therefor, it is HEREBY ORDERED, that the relief requested in the Motion is granted in part and denied in part as set forth herein; and it is further ORDERED that Ovivo USA, LLC is granted an allowed administrative expense claim in the amount of $4,684,2582,311, (the Allowed Claim ); and it is further Claim; and it is further ORDERED that the Motion is denied other than with respect to the Allowed ORDERED that notwithstanding entry of this Order, Ovivo reserves its right to assert additional administrative expense claims against the Debtors, and the Debtors reserve any and all rights to object to, defend, or assert counterclaims to such claims; and it is further ORDERED that the Allowed Claim arose during the Interim Assessment Period (as defined in the IAA) and South Carolina Electric & Gas Company, and South Carolina Public Service Authority (collectively, the Project Owners ) are obligated to the Debtors in an amount equal to the Allowed Claim pursuant to that certain Interim Assessment Agreement, dated as of March 28, 2017, between the Debtors and the Project Owners (as amended) (the IAA ); and it is further ORDERED that the Debtors are to pay thisthe aallowed administrative expense cclaim within ten (10) days of the date of this order, and it is further 2 WEIL:\ \1\ WEIL:\ \2\

12 Pg 12 of 12 ORDERED that the Debtors are authorized to take all actions necessary to effectuate the relief granted in this Order; and it is further ORDERED, that the Court will retain jurisdiction with respect to all matters arising from or in connection with this Order. Dated:, 2017 New York, New York THE HONORABLE MICHAEL E. WILES UNITED STATES BANKRUPTCY JUDGE 3 WEIL:\ \1\ WEIL:\ \2\