mew Doc 2762 Filed 03/08/18 Entered 03/08/18 12:35:47 Main Document Pg 1 of 8

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1 Pg 1 of 8 Thomas R. Slome Michael Kwiatkowski MEYER, SUOZZI, ENGLISH & KLEIN, P.C. 990 Stewart Avenue, Suite 300 P.O. Box 9194 Garden City, New York Telephone: (516) Facsimile: (516) tslome@msek.com mkwiatkowski@msek.com and Russell R. Johnson III John M. Craig LAW FIRM OF RUSSELL R. JOHNSON III, PLC 2258 Wheatlands Drive Manakin-Sabot, Virginia Telephone: (804) Facsimile: (804) russell@russelljohnsonlawfirm.com Co-Counsel for NextEra Energy Services Connecticut, LLC, NextEra Energy Services IL, LLC, NextEra Energy Services NH, LLC, and NextEra Energy Services Pennsylvania, LLC UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ) In re: ) Chapter 11 ) WESTINGHOUSE ELECTRIC ) Case No (MEW) COMPANY LLC, et al., ) ) Debtors. ) (Jointly Administered) ) OBJECTION OF NEXTERA ENERGY SERVICES COMPANIES TO NOTICE REGARDING (I) EXECUTORY CONTRACTS AND UNEXPIRED LEASES, (II) PROPOSED CURE OBLIGATIONS, AND (III) RELATED PROCEDURES NextEra Energy Services Connecticut, LLC ( NextEra CT ), NextEra Energy Services IL, LLC ( NextEra IL ), NextEra Energy Services NH, LLC ( NextEra NH ), and NextEra 1

2 Pg 2 of 8 Energy Services Pennsylvania, LLC ( NextEra PA ) (collectively, NextEra ), by and through their undersigned counsel, for their Objection (the Objection ) to the Debtors Notice Regarding (I) Executory Contracts and Unexpired Leases, (II) Proposed Cure Obligations, and (III) Related Procedures [Doc. No. 2645] (the Cure Notice ), respectfully represent as follows: FACTS 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 ). These cases are being administered jointly pursuant to Fed. R. Bankr. P. 1015(b). 2. The Debtors are operating their businesses as Debtors-in-Possession, and no trustee or examiner has been appointed. 3. On July 7, 2017, the Bankruptcy Court issued a Notice of Deadline for Filing Proofs of Claim setting September 1, 2017 (the Bar Date ) as the deadline for creditors to file proofs of claim in these bankruptcy proceedings. 4. On the Bar Date, NextEra timely filed the following general unsecured proofs of claim against Westinghouse Electric Company LLC ( WEC ) (Case No ) in these bankruptcy proceedings (collectively, the NextEra Proofs of Claim ): A. Claim No NextEra Energy Services Connecticut, LLC - $29, (the CT Proof of Claim ); B. Claim No NextEra Energy Services IL, LLC - $12, (the IL Proof of Claim ); C. Claim No NextEra Energy Services NH, LLC - $41, the NH Proof of Claim ); 2

3 Pg 3 of 8 D. Claim No NextEra Energy Services Pennsylvania, LLC - $16, (the PA Proof of Claim ). TOTAL PROOF OF CLAIM AMOUNT: $99, Facts Regarding the Cure Notice 5. On February 22, 2018, the Debtors filed the Modified First Amended Joint Chapter 11 Plan of Reorganization [Doc. No. 2622], pursuant to which the businesses of the Debtors will be transferred (the Transaction ) to Brookfield WEC Holdings LLC (the Plan Investor ) in accordance with that certain Plan Funding Agreement dated as of January 12, In accordance with the Transaction, on February 23, 2018, the Debtors filed the Cure Notice. Exhibit A to the Cure Notice lists the following contracts with NextEra, each with proposed cure costs of $0: A. one (1) Business Electricity Authorization Connecticut Large Commercial Sales between NextEra CT and WEC; B. one (1) Business Electricity Authorization Illinois Commercial Sales between NextEra IL and WEC; C. two (2) Business Electricity Authorization New Hampshire Large Commercial Sales between NextEra Energy Services NH and WEC; and D. four (4) Business Electricity Authorization PA Large Commercial Sales between NextEra PA and WEC. 7. The Cure Notice provides that the Plan Investor may designate any of the Debtors executory contracts, including those identified on Exhibit A to the Cure Notice, for assumption by the Debtors on the date the Plan becomes effective, and that the contracts may also be assumed by the Debtors and assigned to Wind Down Co., or rejected; or if the form of 3

4 Pg 4 of 8 the Transaction changes to an Asset Sale, the Debtors may assume and assign any executory contract or unexpired lease to the Plan Investor or its designee as part of a sale under section 363 of the Bankruptcy Code. Cure Notice at p The deadline for contract counterparties to file an objection to the proposed assumption and assignment of their respective contracts, including any objections to proposed cure amounts and the proposed form of adequate assurance of future performance, is 4:00 pm on March 9, 2018 (the Objection Deadline ). 9. The Cure Notice provides that if a contract counterparty fails to file and serve an objection by the Objection Deadline, then the counterparty shall be deemed to have assented to the following: Cure Notice at p.4. (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 or, as applicable, if the Transaction converts to an Asset Sale, the Plan Investor or its designee, 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(s) under section 365(b) of the Bankruptcy Code, without further notice, hearing, or order of the Bankruptcy Court. Facts Regarding NextEra s Contracts With the Debtor and Proofs of Claim 10. NextEra has the following contracts with WEC (collectively, the NextEra Contracts ), pursuant to which WEC purchased electric commodity from NextEra prior to the Petition Date and continues to purchase electric commodity post-petition: A. Business Electricity Authorization Connecticut Large Commercial Sales Standard Product, executed as of June 7, 2016, between WEC and NextEra CT (the CT BEA ); 4

5 Pg 5 of 8 B. Business Electricity Authorization Illinois Commercial Sales Standard Product, executed as of May 19, 2016, between WEC and NextEra IL (the IL BEA ); C. Business Electricity Authorization New Hampshire Large Commercial Sales Standard Product, executed as of June 6, 2016, between WEC and NextEra NH (the NH BEA ); D. Business Electricity Authorization Pennsylvania Large Commercial Sales Standard Product, executed as of December 9, 2016, between WEC and NextEra PA, for a term beginning December 2016 (the PA BEA 1 ); and E. Business Electricity Authorization Pennsylvania Large Commercial Sales Standard Product, executed as of December 9, 2016, between WEC and NextEra PA, for a term beginning May 2017 (the PA BEA 2 ; and together with PA BEA 1, the PA BEAs ). 11. The CT Proof of Claim relates to outstanding invoices for prepetition amounts incurred by WEC under the CT BEA; the IL Proof of Claim relates to outstanding invoices for prepetition amounts incurred by WEC under the IL BEA; and the NH Proof of Claim relates to outstanding invoices for prepetition amounts incurred by WEC under the NH BEA. The PA Proof of Claim relates to outstanding invoices for prepetition amounts incurred by WEC under the PA BEA The full amounts of the NextEra Proofs of Claim remain due and owing under the NextEra Contracts. 5

6 Pg 6 of By dated March 2, 2018, counsel for NextEra forwarded to Debtors counsel copies of the NextEra Proofs of Claim and attempted to resolve the cure issues addressed herein, but as of the time of this filing, Debtor s counsel has not responded to the same. DISCUSSION 14. Section 365(b)(1) provides as follows: If there has been a default in an executory contract or unexpired lease of the debtor, the trustee may not assume such contract or lease unless, at the time of assumption of such contract or lease, the trustee (A) cures, or provides adequate assurance that the trustee will promptly cure, such default. (B) compensates, or provides adequate assurance that the trustee will promptly compensate, a party other than the debtor to such contract or lease, for any actual pecuniary loss to such party resulting from such default; and (C) provides adequate assurance of future performance under such contract or lease. 15. It is well established that a contract cannot be assumed in part or rejected in part. Rather, a debtor is required under Section 365 of the Bankruptcy Code to either reject the contract in full or assume the contract in full, which includes the benefits and burdens. AGV Productions, Inc. v. Metro-Goldwyn-Mayer, Inc., 115 F.Supp.2d. 378, 391 (S.D.N.Y. 2000) (debtor cannot assume executory contract in part and reject it in part); see also In re Leslie Fay Cos., Inc., 166 B.R. 802, 808 (S.D.N.Y. 1994) (same); In re Atlantic Computer Sys., Inc., 173 B.R. 844, 849 (S.D.N.Y. 1994) (same); see also In re Plum Run Serv. Corp., 159 B.R. 496, 498 (Bankr. S.D. Ohio 1993) (noting that executory contract must be assumed or rejected by debtor in its entirety and cannot be dealt with in piecemeal fashion); In re Plitt Amusement Co. of Washington, Inc., 233 B.R. 837, 840 (Bankr. C.D. Cal. 1999) (holding that trustee must assume or reject executory contract as whole, and cannot retain beneficial aspects of such contract while rejecting its burdens). 6

7 Pg 7 of Rule 3001 of the Federal Rules of Bankruptcy Procedure ( Rule 3001 ) provides that a proof of claim shall conform substantially to the appropriate Official Form, which was Form No. 410 in use at the time NextEra filed the NextEra Proofs of Claim. 17. A timely-filed proof of claim which conforms substantially to the appropriate Official Form in use at the time of filing constitutes prima facie evidence of the validity of a claim. C-4 Media Cable S., L.P. v. Reds T.V. & Cable, Inc. (In re C-4 Media Cable South, L.P.), 150 B.R. 374, 377 (Bankr. E.D. Va. 1992) (citing 11 U.S.C. 502(a) and Fed. R. Bankr. P. 3001(f)). A debtor objecting to a properly-filed proof of claim has the initial burden of presenting sufficient probative evidence to overcome [the] prima facie effect. In re Shabazz, 206 B.R. 116, 120 (Bankr. E.D. Va. 1996). This evidence must negate at least one fact necessary for the proof of claim s legal sufficiency and must be sufficient to demonstrate the existence of a true dispute and must have probative force equal to the contents of the claim. Va. Broadband, LLC v. Manuel, 538 B.R. 253, 260 (Bankr. W.D. Va. 2015) (quoting In re Hilton, No , 2013 WL , at *5 (Bankr. W.D. Va. Dec. 2, 2013)). 18. In this case, NextEra filed its Proofs of Claim using the Official Form and attaching documents supporting the claim amount. No objection has been asserted to any of NextEra s Proofs of Claim. Thus, the NextEra Proofs of Claim are presumed to be valid in the amounts filed. 19. Accordingly, in order to assume the NextEra BEAs, the Debtors must pay NextEra the $99, total Proof of Claim amount for outstanding invoices owing under the NextEra BEAs, plus any unpaid post-petition debt that may be due and owing under each NextEra BEA. 7

8 Pg 8 of 8 CONCLUSION WHEREFORE, NextEra respectfully requests that the Court enter an order requiring as a condition to the Debtors' assumption and/or assignment of the NextEra BEAs that the Debtors pay NextEra a total cure amount in the sum of $99,888.72, as set forth above, for outstanding prepetition invoices owing under the NextEra BEAs, plus any unpaid post-petition debt that may be due and owing under the NextEra BEAs. In addition, the Court should grant such other and further relief that the Court deems just and appropriate. Dated: Garden City, New York March 8, 2018 MEYER, SUOZZI, ENGLISH & KLEIN, P.C. By: /s/ Michael Kwiatkowski Thomas R. Slome Michael Kwiatkowski 990 Stewart Avenue, Suite 300 P.O. Box 9194 Garden City, New York (516) tslome@msek.com mkwiatkowski@msek.com and Russell R. Johnson III John M. Craig Law Firm of Russell R. Johnson III, PLC 2258 Wheatlands Drive Manakin-Sabot, Virginia (804) russell@russelljohnsonlawfirm.com Co-Counsel for NextEra Energy Services Connecticut, LLC, NextEra Energy Services IL, LLC, NextEra Energy Services NH, LLC, and NextEra Energy Services Pennsylvania, LLC