mew Doc 3855 Filed 08/31/18 Entered 08/31/18 15:47:45 Main Document Pg 1 of 14

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1 Pg 1 of 14 Susan F. Balaschak 666 Fifth Avenue, 20th Floor New York, NY Tel.: (212) Fax: (212) Katherine C. Fackler (Admitted pro hac vice) 50 North Laura Street, Suite 3100 Jacksonville, FL Tel.: (904) Fax: (904) John E. Mitchell (Admitted pro hac vice) 2001 Ross Avenue, Suite 3600 Dallas, TX Tel.: (214) Fax: (214) UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK X In re Chapter 11 Hearing Date and Time: September 25, 2018 at 11:00 a.m. Objection Deadline Date and Time: September 18, 2018 at 4:00 p.m. WESTINGHOUSE ELECTRIC COMPANY LLC, et al., Debtors X Case No (MEW) (Jointly Administered) NOTICE OF HEARING ON MOTION OF THE CALVERT COMPANY, INC. AND NUCLEAR LOGISTICS LLC FOR ALLOWANCE AND IMMEDIATE PAYMENT OF ADMINISTRATIVE EXPENSE CLAIM PURSUANT TO 11 U.S.C. 503(a) AND (b)(1) 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

2 Pg 2 of 14 PLEASE TAKE NOTICE that a hearing on the annexed Motion of The Calvert Company, Inc. and Nuclear Logistics, LLC for Allowance and Immediate Payment of Administrative Expense Claim Pursuant to 11 U.S.C. 503(a) and (b)(1) (the Motion ), of creditor and party-in-interest The Calvert Company, Inc. ("Calvert") and ( NLI ), by and through undersigned counsel, seeking entry of an order (i) allowing Calvert and NLI an Administrative Expense Claim (as defined in the Motion) against the above-captioned debtors (collectively the "Debtors"), and (ii) directing the Debtors to immediately pay Calvert and NLI the Administrative Expense Claim, will be held before the Honorable Michael E. Wiles, United State Bankruptcy Judge, in Room 617 of the United States Bankruptcy Court for the Southern District of New York, One bowling Green, New York, New York (the Bankruptcy Court ), on September 25, 2018 at 11:00 a.m. (Eastern Time), or as soon thereafter as counsel may be heard. PLEASE TAKE FURTHER NOTICE that any responses or objections (the Objections ) to the Motion must be in writing, shall conform to the Federal Rules of Bankruptcy Procedure and the Local Bankruptcy Rules, and shall be filed with the Bankruptcy Court (a) by attorneys practicing in the Bankruptcy Court, including attorneys admitted pro hac vice, electronically in accordance with the General Order M-399 (which can be found at and (b) by all other parties in interest on CD-ROM, in text searchable portable document format (PDF) (with a hard copy delivered directly to Chambers), in accordance with the customary practices of the Bankruptcy Court and General Order M-399, to the extent applicable, and served in accordance with General Order M-399 and the Order Pursuant to 11 U.S. C. 105(a) and Fed. R. Bankr. P. 1015(c), 2002(m), and 9007 Implementing 2

3 Pg 3 of 14 Certain Notice and Case Management Procedures [ECF No. 101] so as to be received no later than September 18, 2018 at 4:00 p.m. (the Objection Deadline ). PLEASE TAKE FURTHER NOTICE that if no Objections are timely filed and served with respect to Motion, on or after the Objection Deadline, Calvert may submit to the Bankruptcy Court an order substantially in the form of the proposed order annexed to the Motion, which order may be entered with no further notice or opportunity to be heard. Dated August 31, 2018 By:/s/ Susan F. Balaschak Susan F. Balaschak 666 Fifth Avenue, 20 th Floor New York, NY Tel.: (212) Fax: (212) susan.balaschak@akerman.com By: /s/ John E. Mitchell John E. Mitchell (Admitted pro hac vice) 2001 Ross Avenue, Suite 3600 Dallas, TX Tel.: (214) Fax: (214) john.mitchell@akerman.com By: /s/ Katherine C. Fackler Katherine C. Fackler (Admitted pro hac vice) 50 North Laura Street, Suite 3100 Jacksonville, FL Tel.: (904) Fax: (904) katherine.fackler@akerman.com 3

4 Pg 4 of 14 Susan F. Balaschak 666 Fifth Avenue, 20th Floor New York, NY Tel.: (212) Fax: (212) Katherine C. Fackler (Admitted pro hac vice) 50 North Laura Street, Suite 3100 Jacksonville, FL Tel.: (904) Fax: (904) John E. Mitchell (Admitted pro hac vice) 2001 Ross Avenue, Suite 3600 Dallas, TX Tel.: (214) Fax: (214) UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK X In re Chapter 11 Hearing Date and Time: September 25, 2018 at 11:00 a.m. Objection Deadline Date and Time: September 18, 2018 at 4:00 p.m. WESTINGHOUSE ELECTRIC COMPANY LLC, et al., Debtors X Case No (MEW) (Jointly Administered) MOTION OF THE CALVERT COMPANY, INC. AND NUCLEAR LOGISTICS LLC FOR ALLOWANCE AND IMMEDIATE PAYMENT OF ADMINISTRATIVE EXPENSE CLAIM PURSUANT TO 11 U.S.C. 503(a) AND (b)(1) 2 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

5 Pg 5 of 14 The Calvert Company, Inc. ("Calvert") and ("NLI"), as subsidiaries of AZZ, Inc., by and through undersigned counsel, hereby request entry of an Order pursuant to 11 U.S.C. 503(a) and 503(b)(1) allowing Calvert and NLI each an administrative expense claim and directing the above-captioned debtors (collectively, the "Debtors") to immediately pay Calvert and NLI their respective administrative expense claims. In support of this Motion, Calvert and NLI respectfully state as follows: JURISDICTION 1. On March 29, 2017 (the "Petition Date"), each of the Debtors filed a voluntary petition for relief under Chapter 11 of Title 11 of the United States Code (the "Bankruptcy Code") in the United States Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court"), initiating the above-styled case. 2. The Bankruptcy Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334(b). This matter is a core proceeding pursuant to 28 U.S.C. 157(b)(2)(A) and (B). Venue is proper in this District pursuant to 28 U.S.C and BACKGROUND A. Calvert's Total Administrative Claim. 3. On March 29, 2018, Calvert filed Claim No against the estate of Debtor WECTEC, which includes post-petition Date components of a minimum of $1,308, (the "Calvert/WECTEC Administrative Claim"). Claim No and exhibits thereto are incorporated by reference herein. 4. On March 29, 2018, Calvert filed Claim No against the estate of Debtor Stone & Webster, Inc., which includes post-petition components of a minimum of $425,799 (the 2

6 Pg 6 of 14 "Calvert/S&W Administrative Claim"). Claim No and exhibits thereto are incorporated by reference herein. 5. The Calvert/WECTEC Administrative Claim and the Calvert/S&W Administrative Claim are referred to collectively herein as the "Total Calvert Administrative Claim." 6. All of the amounts represented by the Total Calvert Administrative Expense Claim are represented by valid unpaid invoices, are past due, were incurred by the Debtors after the Petition Date, and benefited the Debtors' bankruptcy estate. 7. Calvert's business operations personnel have requested reimbursement of the amounts sought herein from their counterparts with the Debtors, to no avail. B. NLI's Administrative Claim. 8. As of the date of this Motion, Debtor Westinghouse Electric Company, LLC has failed to pay NLI the amount of $36,200, which is now due and owing pursuant to invoice no (the "NLI Administrative Claim"). 9. Payment of the NLI Administrative Expense Claim was due June 20, The Debtors have not paid the NLI Administrative Expense Claim. 11. The amounts represented by the NLI Administrative Claim are past due, were incurred by the Debtors after the Petition Date, and benefited the Debtors' bankruptcy estate. RELIEF REQUESTED 12. Accordingly, Calvert respectfully requests: (i) allowance of the Total Calvert Administrative Expense Claim pursuant to Section 503(b)(1) of the Bankruptcy Code, as actual, necessary costs of preserving the bankruptcy estate; and (ii) immediate payment of the Total Calvert Administrative Expense Claim pursuant to 11 U.S.C. 503(a). 3

7 Pg 7 of Further, NLI respectfully requests: (i) allowance of the NLI Administrative Expense Claim pursuant to Section 503(b)(1) of the Bankruptcy Code, as actual, necessary costs of preserving the bankruptcy estate; and (ii) immediate payment of the NLI Administrative Expense Claim pursuant to 11 U.S.C. 503(a). BASES FOR RELIEF REQUESTED 14. The Bankruptcy Code provides that "[a]fter notice and a hearing, there shall be allowed administrative expenses, other than claims allowed under section 502(f) of this title, including the actual, necessary costs and expenses of preserving the estate [.]" 11 U.S.C. 503(b)(1)(A). 15. Under Section 503(b)(1)(A) of the Bankruptcy Code, "[a]n expense is administrative only if it arises out of a transaction between the creditor and the bankrupt's trustee or debtor in possession, and only to the extent that the consideration supporting the claimant's right to payment was both supplied to and beneficial to the debtor-in-possession in the operation of the business." See In re Bethlehem Steel Corp., 479 F.3d 167, 172 (2d Cir. 2007), citing Trustees of Amalgamated Ins. Fund v. McFarlin's, 789 F. 2d 98, 101 (2d Cir. 1986). 16. Calvert's and NLI's continued provision of labor and materials after the Petition Date allowed the Debtors to continue operations uninterrupted and saved the Debtors from being forced to seek emergency replacement of such labor and materials as the Debtors navigated the early stages of the bankruptcy process. In doing so, Calvert and NLI have helped to preserve the bankruptcy estates. 17. With respect to the timing of an allowed administrative claim, courts have discretion as to whether to provide for immediate payment of such claim. In re HQ Global Holdings, Inc., 282 B.R. 169, 173 (Bankr. D. Del. 2002). Courts look to a variety of factors in 4

8 Pg 8 of 14 determining whether to order immediate payment, including (i) bankruptcy's goal of orderly and equal distribution among creditors, (ii) the particular needs of the administrative claimant, and (iii) the length and expense of the case's administration. Id. Other courts have interpreted these factors as (i) prejudice to the debtors, (ii) hardship to the claimant, and (iii) potential detriment to other creditors. See In re Global Home Prods., LLC, 2006 Bankr. LEXIS 3608, at *12 (Bankr. D. Del. Dec. 21, 2006). 18. Here, the Debtors have benefited from Calvert's and NLI's continued provision of labor and materials after the Petition Date, which were critical to the Debtors' operations. Failure by the Debtors to remit immediate payment of the Total Calvert Administrative Expense Claim to Calvert and the NLI Administrative Expense Claim to NLI will impose a substantial hardship on Calvert and NLI, respectively. 19. Lastly, and most importantly, the Debtors affirmatively represented to vendors such as Calvert and NLI that post-petition obligations would be paid, and indeed expressly requested Calvert's and NLI's continued performance. 20. Wherefore, this Court should order the immediate payment of (i) the Total Calvert Administrative Expense Claim to Calvert and (ii) the NLI Administrative Expense Claim to NLI. NO PRIOR REQUEST 21. No previous application for the relief sought herein has been made to this or any other Court or was withdrawn. RESERVATION OF RIGHTS 22. Calvert hereby reserves all of its rights, claims, counterclaims, defenses, and remedies under the Bankruptcy Code, its contracts with the Debtors, any other agreements with the Debtors, and other applicable law. Additionally, Calvert reserves the right to assert 5

9 Pg 9 of 14 additional claims against the Debtors of any nature for any other amounts, and to amend, modify, and/or supplement this Motion. 23. NLI hereby reserves all of its rights, claims, counterclaims, defenses, and remedies under the Bankruptcy Code, its contracts with the Debtors, any other agreements with the Debtors, and other applicable law. Additionally, NLI reserves the right to assert additional claims against the Debtors of any nature for any other amounts, and to amend, modify, and/or supplement this Motion. NOTICE 24. Notice of this Motion will be provided to (i) counsel to the Debtors, Weil, Gotschal & Mangers LLP; (ii) the Office of the United States Trustee for Region 2; (iii) counsel to Debtor Toshiba Nuclear Energy Holdings (UK) Limited, Togut, Segal & Segal, LLP; (iv) counsel to Toshiba Corporation, Skadden, Arps, Slate, Meagher & Flom, LLP; (v) counsel to the Debtors' prepetition agent under that certain Second Amended and Restated Credit Agreement, dated as of October 7, 2009 (as amended), Latham & Watkins LLP; (vi) counsel to the lenders under the Debtors' proposed DIP Facility, Paul, Weiss, Rifkind, Wharton & Garrison LLP; (vii) counsel to the agents and letter of credit issuer under the Debtors' proposed DIP Facility, Shearman & Sterling LLP; (viii) counsel to the Statutory Unsecured Claimholders' Committee of Westinghouse Electronic Company LLC, et al.; (ix) Kurtzman Carson Consultants, the Debtors' claims and noticing agent; and (x) parties that have filed requests for electronic service of documents in these cases. Calvert and NLI respectfully submit that, in view of the facts and circumstances, such notice is sufficient and no other or further notice need be provided. 6

10 Pg 10 of 14 CONCLUSION WHEREFORE, The Calvert Company, Inc. and, as subsidiaries of AZZ, Inc., respectfully request the Court enter an order in substantially the form attached hereto as Exhibit A: (i) allowing the Total Calvert Administrative Expense Claim in the minimum amount of $1,733,851.62, (ii) directing the Debtors to immediately pay Calvert the allowed Total Calvert Administrative Expense Claim, (iii) allowing the NLI Administrative Expense Claim in the minimum amount of $36,200; (iv) directing the Debtors to immediately pay NLI the allowed NLI Administrative Expense Claim; and (v) granting such other and further relief as the Court deems just and proper. 7

11 Pg 11 of 14 Dated August 31, 2018 By:/s/ Susan F. Balaschak Susan F. Balaschak 666 Fifth Avenue, 20 th Floor New York, NY Tel.: (212) Fax: (212) By: /s/ John E. Mitchell John E. Mitchell (Admitted pro hac vice) 2001 Ross Avenue, Suite 3600 Dallas, TX Tel.: (214) Fax: (214) By: /s/ Katherine C. Fackler Katherine C. Fackler (Admitted pro hac vice) 50 North Laura Street, Suite 3100 Jacksonville, FL Tel.: (904) Fax: (904)

12 Pg 12 of 14 EXHIBIT A PROPOSED ORDER

13 Pg 13 of 14 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK X In re Chapter 11 WESTINGHOUSE ELECTRIC COMPANY LLC, et al., Debtors X Case No (MEW) (Jointly Administered) ORDER GRANTING MOTION OF THE CALVERT COMPANY, INC. AND NUCLEAR LOGISTICS LLC FOR ALLOWANCE AND IMMEDIATE PAYMENT OF ADMINISTRATIVE EXPENSE CLAIM PURSUANT TO 11 U.S.C. 503(a) AND (b)(1) THIS CAUSE came before the Court upon the Motion (the "Motion") 4 of The Calvert Company, Inc. and for Allowance and Immediate Payment of Administrative Expense Claim Pursuant to 11 U.S.C. 503(a) and 503(b)(1) [Dkt. No. ]. The Court having reviewed the Motion; and all objections to the Motion having been overruled by the Court or otherwise resolved; and notice of the Motion was sufficient and proper under the circumstances; and the relief requested in the Motion is in the best interests of the Debtors and the bankruptcy estates; and upon the record herein; and after due deliberation and for other good cause shown, it is hereby 3 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 Defined terms from the Motion are incorporated by reference herein.

14 Pg 14 of 14 ORDERED: 1. The Motion is GRANTED. 2. Calvert is granted an allowed administrative expense claim in the amount of $1,733, The Debtors shall pay $1,733, to Calvert within five (5) business days of entry of this Order. 4. NLI is granted an allowed administrative expense claim in the amount of $36, The Debtors shall pay $36,200 to NLI within five (5) business days of entry of this Order. 6. The Court shall retain jurisdiction with respect to all matters arising from or related to the implementation of this Order. Dated: New York, New York September, 2018 PROPOSED UNITED STATES BANKRUPTCY JUDGE 2