mew Doc 1341 Filed 09/10/17 Entered 09/10/17 12:53:00 Main Document Pg 1 of 5 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK

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1 Pg 1 of 5 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 HERC RENTALS INC. S MOTION TO DEEM TIMELY ITS OBJECTION TO CURE COSTS RELATED TO ASSUMPTION AND ASSIGNMENT OF CONTRACTS FOR THE VOGTLE PROJECT (DKT. 769) Herc Rentals Inc. ( Herc ) hereby files this motion (this Motion ) to deem timely its objection ( Objection ) 2 (a) objecting to the Cure Costs identified in Exhibit C to the Motion of the Debtors Pursuant to 11 U.S.C. 363(b), 365(a), and 105(a) for Entry of Order Authorizing Debtors to (i) Enter into Services Agreement with Vogtle Owners, (ii) Assume and Assign Certain Executory Contracts to Vogtle Owners, (iii) Assume and Amend Certain Executory 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 Herc requested in its Objection the affirmative relief sought herein. This Motion is filed out of an abundance of caution.

2 Pg 2 of 5 Contracts, and (iv) Reject the Vogtle EPC Contract (the Assumption Motion ) 3, (b) requesting that its Objection be deemed timely based on inadequate notice; and (c) granting other relief as the Court deems just and proper, and respectfully states as follows in support thereof 1. Herc is a prepetition lessor of equipment to the Debtors at the Vogtle nuclear facility project ( Vogtle ). Specifically, Herc began providing equipment to the Debtors in connection with the Vogtle nuclear facility project on August 10, 2009, and has been continuously leased equipment to the Debtors ever since. Throughout the lessor/lessee relationship with the Debtor, Herc issued to the Debtor invoices for rental and other charges. As of the petition date, the amount outstanding for the equipment provided by Herc to the Debtors at Vogtle was no less than $1,987, Herc filed proofs of claim against Debtors Stone& Webster Construction, Inc., WECTEC Contractors Inc., and WECTEC Global Project Services Inc. in the aggregate amount of $3, (Claims Nos ) 4, of which $1,987, relates to the Vogtle project. 2. The Debtors filed the Assumption Motion on June 23, 2017 (Dkt. 769). Pursuant to the Assumption Motion, the Debtors sought to have certain Assigned Subcontracts assumed and assigned with the associated proposed Cure Costs set forth on Exhibit C to the Assumption Motion. On July 6, 2017, the Debtors filed an Amended Exhibit C, with no change to the proposed Cure Costs applicable to Herc. 3. The Assigned Subcontracts included fifteen (15) subcontracts to which Herc is a party (the Herc Subcontracts ). For all but one of the Herc Subcontracts, the Debtors 3 Capitalized terms not defined herein shall have the meanings ascribed to them in the Assumption Motion. 4 Debtors Stone & Webster Construction, Inc., WECTEC Contractors Inc., and WECTEC Global Project Services Inc. also listed Herc on their Schedules E/F and G (Dkts. 591, 611, and 613). 2

3 Pg 3 of 5 asserted an ambigous Cure Cost amount of $ -. The correct Cure Cost amount under the Herc Subcontracts is $1,987,728.02, plus interest, regardless of whether payment of Cure Costs is the responsibility of the Debtors or of the assignee Herc was not provided proper notice of the Assumption Motion and was not afforded an appropriate opportunity to object. The Affidavit of Service to the Assumption Motion does not contain the correct notice address for Herc or for its in-house counsel or outside counsel. See Dkt As such, Herc only recently learned of the Assumption Motion and the Court s July 20, 2017 order granting it as to all non-objecting parties. 5. Herc filed its Objection upon becoming aware of the Assumption Motion and the Court s July 20, 2017 Order. Therefore, Herc requests that its Objection be deemed timely and requests an opportunity for its Objection to be heard at the Court s October 17, 2017 hearing on the remaining objections to the Assumption Motion. granting it as to all non-objecting parties. 6. Equity favors the requested relief. The aim of Chapter 11 cases is rehabilitating the debtor and avoiding forfeitures by creditors. Pioneer Investment Services Co. v. Brunswick Associates L.P., 507 U.S. 380, 389 (1993). Bankruptcy Rule 9006(b) adopts the spirit of that aim by permitting enlargement of the time within which to act, even when the time for acting has expired. No Prejudice to Debtors 7. Debtors will not be prejudiced by the relief sought in this Motion. The delay is limited and will not interfere with Debtors cases. Indeed, Debtors are still resolving 5 Herc reserves the right to increase this amount based on the timing of the Effective Date. 3

4 Pg 4 of 5 cure-related objections to the Assumption Motion, and the next hearing of those objections is not until October 17, Also, it is unclear whether Debtors intended to assert that the cure amount for most of Herc s contracts is $0 or undetermined because Debtors listed the amount as $ -. If Debtors intent was to assert a $0 cure amount, then the Assumption Motion failed to give Herc adequate notice of the relief sought against it. 9. The Cure Cost, while large to Herc, is quite small relative to the size of Debtors estates. Thus, the Cure Cost would not disrupt administration of the cases either. Substantial Prejudice to Herc 10. Absent the requested relief Herc will be substantially prejudiced by being deprived of its right to recover the Cure Cost amount. Debtors are not entitled to a windfall, but that is what will result absent the requested relief. 11. Debtors have acknowledged far greater debts to Herc than what is asserted in the Assumption Motion. In the voluntary petition of Debtor Westinghouse Electric Company, Herc is listed as a creditor with a claim of $2,846, In Schedule F of Debtor Stone & Webster Construction Inc. lists Herc in its Schedule F with two claims (i) $72,843 and (ii) $941,642. Debtor WECTEC Global Project Services Inc. lists four debts owed to Herc (a) $512,327; (b) $4,140; (c) $1,176,070; and (d) $64,195. Finally, three debts to Herc are listed by Debtor WECTEC Contractors Inc. (x) $29,552; (y) $528,377; and (z) $1, It is unlikely that Debtors diligently searched their books and records, but failed to appreciate the substantial Cure Cost due to Herc under the Herc Subcontracts. If, 6 Herc disagrees with the claim amounts asserted in Debtors petitions and schedules (and has filed proof s of claim listing the correct amounts), and notes them only to assert a tension between Debtors petitions, schedules and the Assumption Motion. 4

5 Pg 5 of 5 however, Debtors have a good faith basis to contend that, on the merits, no cure is due to Herc, Debtors still will have the opportunity to do so if the relief requested herein is granted. Herc s Diligence and Good Faith 13. Herc has acted diligently and in good faith. Upon becoming aware of the Assumption Motion and the Court s July 20, 2017 Order, Herc filed its Objection, and now this Motion. As noted above, Herc did not timely become aware of the Assumption Motion because it was not served upon Herc s in-house counsel or delivered to an address where counsel is located. 14. Further, Herc has requested a stipulation regarding the timeliness of the Objection in order to avoid the need for this Motion, but has not heard from Debtors or the Assignee regarding the matter. Therefore, Herc requests that its Objection be deemed timely and requests an opportunity to be heard on it. WHEREFORE, Herc respectfully requests that this Court enter an order deeming this Objection timely based on the lack of adequate notice provided to Herc of the Motion, and (c) granting such further relief as the Court deems just and proper. Dated September 10, 2017 KATTEN MUCHIN ROSENMAN LLP Karen B. Dine 575 Madison Avenue New York, NY Telephone (212) Counsel to Herc Rentals Inc. 5