mew Doc 3813 Filed 08/30/18 Entered 08/30/18 17:26:31 Main Document Pg 1 of 10

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1 Pg 1 of 10 REED SMITH LLP Paul M. Singer 225 Fifth Avenue Pittsburgh, PA Telephone: (412) Facsimile: (412) psinger@reedsmith.com -and- Derek J. Baker Three Logan Square 1717 Arch Street, Suite 3100 Philadelphia, PA, Telephone: (215) Facsimile: (215) dbaker@reedsmith.com Attorneys for South Carolina Electric & Gas Company And South Carolina Public Service Authority IN THE UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: WESTINGHOUSE ELECTRIC COMPANY LLC, et al., Debtors. 1 Chapter 11 Case No (MEW) (Jointly Administered) Relates to ECF No. 68, 385, 776 REQUEST FOR ALLOWANCE AND PAYMENT OF ADMINISTRATIVE CLAIM BY SOUTH CAROLINA ELECTRIC & GAS COMPANY AND SOUTH CAROLINA PUBLIC SERVICE AUTHORITY FOR OVERPAYMENT TO THE DEBTORS UNDER THE INTERIM ASSESSMENT AGREEMENT ENTERED IN CONNECTION WITH THE VC SUMMER PROJECT 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 Debtors principal offices are located at 1000 Westinghouse Drive, Cranberry Township, Pennsylvania US_ACTIVE DJBAKER 08/30/2018 5:17 PM

2 Pg 2 of 10 TO THE HONORABLE MICHAEL E. WILES UNITED STATES BANKRUPTCY JUDGE: South Carolina Electric & Gas Company ( SCE&G ) and South Carolina Public Service Authority ( Santee Cooper and with SCE&G collectively, the "VC Summer Owners") hereby file this REQUEST FOR ALLOWANCE AND PAYMENT OF ADMINISTRATIVE CLAIM FOR OVERPAYMENT TO THE DEBTORS UNDER THE INTERIM ASSESSMENT AGREEMENT ENTERED IN CONNECTION WITH THE VC SUMMER PROJECT (the Administrative Claim ) 2 and in support thereof state as follows: Background 1. In 2008, the VC Summer Owners entered into an Engineering, Procurement and Construction Agreement (the EPC Agreement ) with a Consortium consisting of Westinghouse Electric Company LLC ( WEC ) and Stone & Webster, Inc., as Contractor, to design and build two nuclear power units in Jenkinsville, South Carolina (the VC Summer Project ). The EPC Agreement originally contemplated that WEC would provide engineering services and Stone & Webster, Inc. would provide construction services, although WEC and Stone & Webster, Inc. were jointly and severally liable for performance. 2. There were several amendments to the EPC Agreement, the most significant of which was executed in October, 2015 (the October 2015 Amendment ). The October 2015 Amendment provided for the conversion of the EPC Agreement to a fixed price contract. Additionally, the October 2015 Amendment contemplated that WEC would purchase the stock of Stone & Webster, Inc. That purchase occurred, and Stone & Webster, Inc., the entity 2 Capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the IAA

3 Pg 3 of 10 managing construction of VC Summer Project, was renamed WECTEC Global Project Services, Inc. ( WECTEC ). 3. Shortly prior to the filing of the petition in this case, WEC and its parent, Toshiba Corporation, advised the VC Summer Owners that WEC was going to exit the nuclear construction business due to historic losses and anticipated future losses associated with construction of the VC Summer Project and the Vogtle project in Georgia. 4. WEC and Toshiba Corporation also advised the VC Summer Owners that it was WEC s intention to enter Chapter 11, and upon filing, immediately cease all construction activities on the VC Summer Project. 5. In response to WEC s stated intention to cease construction, the VC Summer Owners and WEC and WECTEC entered into an Interim Assessment Agreement, dated March 28, 2017 (the IAA ). [See Docket No. 68, Ex. 1.] The IAA contemplated the continued construction at the VC Summer Project; however, it required the VC Summer Owners to fund the costs of continued construction during the IAA. Pursuant to several amendments, the IAA was extended through August 10, [See Docket Nos. 385 & 776.] The IAA was terminated effective August 7, 2017 (the IAA Termination Date ). 6. As part of the IAA, WEC/WECTEC required the VC Summer Owners to agree to advance all sums to WEC which WEC estimated WEC would pay for engineering and construction services during the IAA each week. 7. The IAA made clear that funds advanced by the VC Summer Owners could only be used to pay obligations incurred to Vendors and Subcontractors to the VC Summer Project during the Interim Assessment Period (i.e., from the Petition Date through the IAA Termination Date) (See IAA 6 [Docket No. 68-1].) - 3 -

4 Pg 4 of The IAA provided that all advances paid by the VC Summer Owner to WEC under the IAA would be maintained in a separate, interest bearing account and used only to pay Subcontractors and Vendors (as each term was defined) in accordance with the IAA. (See Amendment No 1. [Docket No. 385], 5.) 9. The VC Summer Owners made all required advances during the IAA period. The VC Summer Owners made the advances to WEC as instructed by WEC, with the understanding that the payments were made only for costs expressly authorized under the IAA. The VC Summer Owners advanced $420,286,918 to WEC during the IAA. Of that amount, $97,090,294 was attributed to costs and expenses of WEC and its affiliates. Therefore, $323,196,624 was advanced by the VC Summer Owners to WEC to be used only to pay Subcontractors and Vendors for work at the VC Summer Project performed during the IAA. (See IAA 6 [Docket No. 68-1].) 10. As a way to ensure the proper use of funds advanced by the VC Summer Owners to WEC, the IAA provided: As promptly as possible following the termination of the Interim Assessment Period, there shall be a reconciliation of all the payments made by the V.C. Summer Owners to the Debtors for Subcontractors and Vendors and by the Debtors to the Subcontractors and Vendors as contemplated hereby. If the actual costs incurred by the Debtors exceed the estimated amounts paid by the V.C. Summer Owners to the Debtors, the V.C. Summer Owners shall pay to the Debtors any such additional amount necessary to eliminate the difference. If the amounts paid by the V.C. Summer Owners to the Debtors exceed the actual cost incurred by the Debtors or the Debtors fail to remit a payment to the Subcontractor or Vendor (as the case may be) from amounts paid by the V.C. Summer Owner, the Debtors shall pay such amounts to the V.C. Summer Owners. To the extent such amounts are not paid by the Debtors, the V.C. Summer Owners shall have an administrative claim for such amounts. (IAA [Docket No. 68-1] 6, as amended by Amendment No. 1 [Docket No. 385], 8.]) 11. WEC/WECTEC provided the VC Summer Owners a disbursement report (the Distribution Report ) noting the payments scheduled to be made by WEC/WECTEC from the - 4 -

5 Pg 5 of 10 proceeds advanced under the IAA. Of the $323,196,624 advanced by the VC Summer Owners to WEC which was to be used only to pay Subcontractors and Vendors for work at the VC Summer Project performed during the IAA. (see IAA 6 [Docket No. 68-1]), WEC/WECTEC planned to only disburse $232,748,552. Therefore, approximately $90 million was advanced by the VC Summer Owners which has not been disbursed by WEC/WECTEC. Such amounts should be returned to the VC Summer Owners. 12. Further, VC Summer Owners have performed an initial review of the Disbursement Report contemplated by the IAA. As a result of the review, the VC Summer Owners have determined that the amounts paid by the V.C. Summer Owners to the Debtors exceed the actual cost incurred by the Debtors during the IAA. (IAA [Docket No. 68-1] 6, as amended by Amendment No. 1 [Docket No. 385], 8.]) The VC Summer Owners have determined that the amounts advanced by the VC Summer Owners to the Debtor during the IAA exceed the actual and appropriate costs incurred by the WEC in the construction of the VC Summer Project between the Petition Date and the IAA Termination Date as follows: Basis For Administrative Claim Amount Remaining Funds Advanced by VC Summer Owners After Payment of Invoices as reported by WEC/WECTEC in Distribution Report IAA Funds Which Lack Complete Documentation To Verify Validity IAA Funds Without VC Summer Owner Approval IAA Funds on account of Prepetition Claims $90,448, $7,454, $34,976, $3,640,

6 Pg 6 of 10 Basis For Administrative Claim Amount IAA Funds on account of Improper Milestone Payments IAA Funds Which Lack Any Documentation To Verify Validity IAA Funds on account of Duplicate Invoices IAA Funds on account of Improper Demobilization/Rejection Damages Interest on Segregated Funds Not Paid/Credited to Account By WEC/WECTEC IAA Funds Still Under Review By VC Summer Owners $22,840, $6,382, $3,339, $762, $760, $44,959, TOTAL: $215,564, The VC Summer Owners continue to perform the reconciliation contemplated by the IAA. As the reconciliation continues, the VC Summer Owners may amend, update, modify, supplement or otherwise revise the components noted above. Relief Requested 14. Under 503(a) of the Bankruptcy Code, [a]n entity may timely file a request for payment of an administrative expense. 11 U.S.C 503(a). Section 503(b) of the Bankruptcy Code provides that [a]fter notice and a hearing, there shall be allowed administrative expenses, which, under 507(a)(2), shall have priority over certain other unsecured claims. 11 U.S.C. 503(b); see also 11 U.S.C. 507(a)(2)

7 Pg 7 of The IAA expressly provides that if WEC does not remit the amount overpaid by the VC Summer Owners to the VC Summer Owners, the V.C. Summer Owners shall have an administrative claim for such amounts. (IAA [Docket No. 68-1] 6, as amended by Amendment No. 1 [Docket No. 385], 8.])(emphasis added). The VC Summer Owners have determined that amounts funded to the Debtors during the IAA well exceed the actual and proper costs incurred by the Debtors during the IAA. Under the terms of the IAA already approved by the Court, the VC Summer Owners submit and are entitled to allowance and payment of this Administrative Claim. 16. By this Administrative Claim, the VC Summer Owners hereby assert any and all claims based upon, arising under, on account of, in connection with, or related to, the IAA. These claims include, but are not limited to, (a) claims against WEC/WECTEC for all payments, and any and all interest, fees, costs, expenses, taxes, assessments, governmental charges, damages, losses, reimbursements, and other amounts owed to the VC Summer Owners under the IAA; (b) claims against WEC/WECTEC for any and all interest, fees, costs, expenses, taxes, assessments, governmental charges, damages, losses, reimbursements, indemnification and other amounts owed to the VC Summer Owners under, or incurred or suffered by the VC Summer Owners as a result of WEC/WECTEC s breach of, or other failure to perform under, the IAA; and (c) any and all equitable and common law claims against WEC/WECTEC arising from, related to or in connection with their relationship or transactions with VC Summer Owners or, including but not limited to, breach of the implied covenant of good faith and fair dealing, unjust enrichment, and conversion

8 Pg 8 of The filing of this Administrative Claim is not and should not be construed to be a waiver or release of any of the VC Summer Owners rights against any person, entity or property. 18. This Administrative Claim is filed with a full reservation of rights, including the right to amend, update, modify, supplement or otherwise revise this Administrative Claim in any respect at any time. Notice 19. Notice of this Administrative Claims is being provided to the Debtors pursuant to the NOTICE OF OCCURRENCE OF EFFECTIVE DATE OF DEBTORS MODIFIED SECOND AMENDED JOINT CHAPTER 11 PLAN OF REORGANIZATION [Docket No. 3705] and parties that have filed requests for electronic service of documents in these chapter 11 cases. VC Summer Owners respectfully submits that, in view of the facts and circumstances, such notice is sufficient and no other or further notice need be provided. other court. No Prior Request 20. No prior request for the relief sought in this motion has been made to this or any WHEREFORE, the VC Summer Owners respectfully request that the Court allow the Administrative Claim, direct payment thereof to the VC Summer Owners as provided for under the IAA and grant such other relief as is just and proper

9 Pg 9 of 10 Dated: August 30, 2018 New York, New York Respectfully submitted, REED SMITH LLP By: /s/ Paul M. Singer Paul M. Singer 225 Fifth Avenue Pittsburgh, PA Telephone: (412) Facsimile: (412) psinger@reedsmith.com -and- Derek J. Baker Three Logan Square 1717 Arch Street, Suite 3100 Philadelphia, PA, Telephone: (215) Facsimile: (215) dbaker@reedsmith.com Attorneys for South Carolina Electric & Gas Company and South Carolina Public Service Authority - 9 -

10 Pg 10 of 10 CERTIFICATE OF SERVICE I hereby certify that on the date below, this Administrative Claim was filed electronically through the CM/ECF system, which caused all parties or counsel requesting notice to be served by electronic means on the date of filing and a copy thereof was provided by electronic mail to counsel for the Debtors: Gary Holtzer, Esq./Garrett Fail, Esq., Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, NY 10153, gary.holtzer@weil.com/ garrett.fail@weil.com. Dated: August 30, 2018 New York, New York Respectfully submitted, REED SMITH LLP By: /s/ Paul M. Singer Paul M. Singer 225 Fifth Avenue Pittsburgh, PA Telephone: (412) Facsimile: (412) psinger@reedsmith.com -and- Derek J. Baker Three Logan Square 1717 Arch Street, Suite 3100 Philadelphia, PA, Telephone: (215) Facsimile: (215) dbaker@reedsmith.com Attorneys for South Carolina Electric & Gas Company and South Carolina Public Service Authority

11 mew Doc Filed 08/30/18 Entered 08/30/18 17:26:31 Declaration Pg 1 of 1