mew Doc 2784 Filed 03/09/18 Entered 03/09/18 16:00:38 Main Document Pg 1 of 7

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1 Pg 1 of 7 Objection Deadline: March 9, 2018 at 4:00 p.m. (ET) (extended to March 12, 2018, by agreement with Debtors counsel) COLE SCHOTZ P.C Avenue of the Americas, 19 th Floor New York, NY Telephone (212) Facsimile (212) Mark Tsukerman, Esq. -and- McNAIR LAW FIRM, P.A Main Street, Suite 1800 Columbia, SC Telephone: (803) Michael H. Weaver, Esq. Counsel for Savannah River Remediation, LLC UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK : In re: : Chapter 11 : WESTINGHOUSE ELECTRIC : Case No (MEW) COMPANY, LLC, et al., : : Jointly Administered Debtors. 1 : : Related to Dkt : 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 7 SAVANNAH RIVER REMEDIATION, LLC S OBJECTION AND RESERVATION OF RIGHTS WITH RESPECT TO DEBTORS NOTICE REGARDING (I) EXECUTORY CONTRACTS AND UNEXPIRED LEASES, (II) PROPOSED CURE OBLIGATIONS, AND (III) RELATED PROCEDURES Savannah River Remediation, LLC ( SRR ), by and through its undersigned counsel, hereby files this objection and reservation of rights (the Objection ) with respect to Debtors Notice Regarding (I) Executory Contracts and Unexpired Leases, (II) Proposed Cure Obligations, and (III) Related Procedures [Dkt. 2645] (the Notice ). In support of its Objection, SRR respectfully represents as follows: I. BACKGROUND A. Savannah River Remediation, LLC s Relationship with WEC 1. The United States Department of Energy ( DOE ) is the owner and operator of Savannah River Site ( SRS ). 2. SRS is a 300 square mile facility located in Aiken County, South Carolina whose mission is to safely and efficiently operate SRS to protect the public health and the environment while supporting the nation s nuclear deterrent SRR has undertaken to perform work for the SRS Liquid Waste Operations Program at SRS for the United States Government represented by the DOE and the U.S. Department of Justice. 4. On July 7, 2016, SRR and Westinghouse Electric Company, LLC ( WEC ) entered into that certain fixed price contract (the SRR Contract ) for WEC s provision of an ion exchange process to remove radioactive cesium-137 from aqueous high-level waste, hereinafter referred to as a Tank Closure Cesium Removal System ( TCCR System ). 2 (last visited March 8, 2018). 2

3 Pg 3 of 7 5. The work WEC is doing on the TCCR System pursuant to the SRR Contract is vitally important to DOE s and SRR s efforts to treat high levels of radioactive waste before any leaks occur and water aquifers for South Carolina and Georgia are affected. B. The Bankruptcy Proceedings 6. On March 29, 2017 (the Petition Date ), WEC, along with several of its affiliates (collectively, the Debtors ), filed voluntary petitions for relief under Chapter 11 of Title 11 of the U.S. Code, 11 U.S.C. 101 et seq. (the Bankruptcy Code ). 7. On February 22, 2018, the Debtors filed their Modified First Amended Joint Chapter 11 Plan of Reorganization [Dkt. 2622] (the Plan ). 8. The Plan provides for a transaction valued at approximately $4.6 billion, pursuant to which Brookfield WEC Holdings, LLC (the Plan Investor or Brookfield ) will provide approximately $3.802 billion... in cash and cash consideration to fund a chapter 11 plan process in exchange for the acquisition of 100% of (i) the equity interests in Westinghouse Electric Holdings UK Limited... and (ii) the equity interests in reorganized U.S. HoldCo.... (Modified First Amended Disclosure Statement for Joint Chapter 11 Plan of Reorganization [Dkt. 2623] at p. 6). 9. A confirmation hearing on the Plan is currently scheduled for March 27, 2018 (the Confirmation Hearing ). 10. The Notice provides that no later than March 22, 2018, the Debtors will file one or more written notices attaching schedules and identifying which Contracts 3 will be assumed on the Effective Date and which ones will be assumed and assigned to Wind Down Co. Contracts that are not assumed by the Debtors prior to or on the Effective Date will be deemed rejected. 3 Capitalized terms not defined herein shall have the meanings ascribed to them in the Notice. 3

4 Pg 4 of The Notice also provides that until five (5) Business Days prior to the anticipated Closing Date (under and as defined in the PFA), the Plan Investor may designate any of the Debtors executory contracts... on Exhibit A... for assumption by the Debtors or they can be assumed and assigned to Wind Down Co or rejected. (Notice at 3). 12. Pursuant to the Plan, the Closing Date may not occur until the third business day following the date upon which all closing conditions have been satisfied or waived in writing or such other date as the parties may agree in writing. 13. The Notice also contains the Debtors determination of the amounts required to cure any prepetition defaults under the Contracts which are listed on Exhibit A to the Notice pursuant to 11 U.S.C. 363(b)(1)(A). 14. The SRR Contract is listed on Exhibit A to the Notice with a proposed cure amount of $ The Notice provides: Unless you properly and timely file and serve an Objection... you will be deemed to have assented to (I) the assumption of such contract or lease on the Effective Date, (II) the Cure Obligation specified in the Cure Notice... (III) the assignment of such Contract to Wind Down Co... and (IV) the rejection of such Contract; and the Cure Obligation specified on Exhibit A shall be the Cure Obligation and shall be deemed to satisfy in full any prepetition obligations the Debtor might have with respect to such Contract The Notice established an objection deadline of March 9, 2018 at 4:00 p.m. (Prevailing Eastern Time) (the Objection Deadline ). By agreement with the Debtors counsel, SRR s Objection Deadline has been extended to Monday, March 12, 2018 at 11:59 p.m. (Prevailing Eastern Time). 4

5 Pg 5 of 7 II. LEGAL ARGUMENT 17. Section 365(d)(2) states that in a chapter 11 case a trustee may assume or reject an executory contract... at any time before confirmation of a plan but the court, on the request of any party to such contract..., may order the trustee to determine within a specified period of time whether to assume or reject such contract U.S.C. 365(d)(2). 18. Here, the Notice fails to provide any guidance to SRR as to how the SRR Contract will be treated. The Debtors simply identify the SRR Contract together with the proposed cure amount on Exhibit A (along with thousands of other contracts and counterparties) 4 and advise that (i) notification of which Contracts are to be assumed, or assumed and assigned, will not be filed until March 22, 2018 almost two weeks after the Objection Deadline and five days prior to the Confirmation Hearing and (ii) after the Plan supplement is filed, the treatment of the SRR Contract may still be changed up until 5 days before the Closing of its proposed transaction with the Plan Investor, which presumably will be after the Confirmation Hearing and the plan is confirmed. 19. SRR acknowledges that a debtor in bankruptcy has certain rights under Section 365 to assume, assume and assign, or reject an executory contract; however, those rights are not without limit. SRR opposes any effort by the Debtors to require SRR to assent to each possible treatment of the SRR Contract before the Debtors make a final determination as to what, in fact, the Debtors intend to do with the SRR Contract. 20. Further, SRR opposes any effort by the Debtors to change the treatment of the SRR Contract under Section 365 of the Bankruptcy Code after confirmation of the Plan and specifically requests that WEC make its determination prior to the Confirmation Hearing. 4 Rule 6006(f) of the Federal Rules of Bankruptcy Procedure limits the number of executory contracts and unexpired leases that can be listed in any omnibus motion to 100 unless the bankruptcy court otherwise authorizes it. 5

6 Pg 6 of Furthermore, WEC has not proven or offered any evidence in the Notice demonstrating how any of the three possible outcomes (i.e., assumption, assumption and assignment, or rejection of the SRR Contract) is an exercise of its business judgment or that, given the various public safety, health and other interests at stake (including the potential for an extraordinarily large rejection damages claim against WEC s estate pursuant to, among others provisions, Article 20 of the SRR Contract) in connection with WEC s performance of its obligations under the SRR Contract, that the business judgment standard is even the appropriate standard to apply Consequently, it is inappropriate at this time to require SRR to assent to any of the possible treatments of the SRR Contract as set forth in the Notice. III. RESERVATION OF RIGHTS 23. SRR reserves the right to amend or supplement this Objection and expressly reserves the right to object to any additional relief sought by the Debtors in connection with the SRR Contract. 5 See, e.g., NLRB v. Bildisco and Bildisco (In re Bildisco and Bildisco), 465 U.S. 513, 526 (1984) (recognizing national labor policies of avoiding labor strife and encouraging collective bargaining required rejection be approved only if the parties failed to negotiate a solution and then only if the contract was clearly burdensome and after balancing the equities); In re Mirant Corp., 318 B.R. 100, 107 (N.D. Tex 2004) ( In the instant action, the Fifth Circuit concluded that the business judgment standard would be inappropriate, explaining: Use of the business judgment standard would be inappropriate in this case because it would not account for the public interest in the transmission and sale of electricity. ) (internal quotation marks omitted). 6

7 Pg 7 of 7 WHEREFORE, for the foregoing reasons, SRR respectfully requests that the Court enter an order (i) sustaining SRR s Objection; (ii) extending the deadline for SRR to object to the Debtors proposed treatment of the SRR Contract up to and including the Confirmation Hearing; (iii) prohibiting WEC from assuming, assuming and assigning, or rejecting the SRR Contract after confirmation of Debtors Plan; and (iv) granting such other and further relief as the Court deems just and proper. DATED: New York, New York March 9, 2018 Respectfully submitted, /s/ Mark Tsukerman COLE SCHOTZ P.C. Mark Tsukerman 1325 Avenue of the Americas, 19th Floor New York, NY Telephone: (212) and- McNAIR LAW FIRM, P.A. Michael H. Weaver 1221 Main Street, Suite 1800 Columbia, SC Telephone: (803) Counsel for Savannah River Remediation, LLC 7