Pg 1 of 16 PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, New York 10019 Telephone: +1 (212) 373-3000 Facsimile: +1 (212) 757-3990 Alan W. Kornberg Kyle J. Kimpler Lauren Shumejda Counsel to Wind Down Co UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------ x In re : Chapter 11 : WESTINGHOUSE ELECTRIC COMPANY : Case No. 17-10751 (MEW) LLC, et al., : : : Debtors. 1 : (Jointly Administered) : ------------------------------------------------------------ x NOTICE OF FILING OF REVISED PROPOSED ORDER (I) ENFORCING THE INTERIM ASSESSMENT AGREEMENT ORDER AND (II) GRANTING RELATED RELIEF PLEASE TAKE NOTICE that on October 30, 2018, W Wind Down Co LLC ( Wind Down Co ), the company responsible for administering Westinghouse Electric Company LLC s ( WEC ) and certain of its affiliates (collectively, the Debtors ) obligations under the Debtors Modified Second Amended Joint Chapter 11 Plan of Reorganization [ECF 1 Pursuant to the Order (I) Consolidating the Administration of Certain Remaining Matters at the Lead Case; (II) Entering a Final Decree Closing Certain Affiliate Cases; (III) and Granting Related Relief [ECF No. 3956], entered on September 25, 2018, many of the Debtors Chapter 11 Cases were closed. The Debtors in the remaining chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, are: Westinghouse Electric Company LLC (0933), Stone & Webster Services LLC (5448), WEC Carolina Energy Solutions, Inc. (8735), WEC Carolina Energy Solutions, LLC (2002), WECTEC Global Project Services Inc. (8572), WECTEC LLC (6222), and WECTEC Staffing Services LLC (4135). The Reorganized Debtors principal offices are located at 1000 Westinghouse Drive, Cranberry Township, Pennsylvania 16066.
Pg 2 of 16 No. 2986] (the Plan ), filed and served Wind Down Co s Motion to Enforce Order Pursuant to 11 U.S.C. 105(a) Approving Interim Assessment Agreements [ECF No. 4067] (the Motion ). PLEASE TAKE FURTHER NOTICE that Wind Down Co received the following responses to the Motion: (i) the Response of Georgia Power Company to Wind Down Co s Motion to Enforce Order Pursuant to 11 U.S.C. 105(a) Approving Interim Assessment Agreements [ECF No. 4089] and (ii) the Response of Brookfield WEC Holdings Inc. to Wind Down Co s Motion to Enforce Order Pursuant to 11 U.S.C. 105(a) Approving Interim Assessment Agreements [ECF No. 4090] (the Brookfield Objection ). PLEASE TAKE FURTHER NOTICE that, on November 14, 2018, Wind Down Co filed its Reply in Further Support of Motion to Enforce Order Pursuant to 11 U.S.C. 105(a) Approving Interim Assessment Agreements [ECF No. 4103] (the Reply ) in response to the Brookfield Objection. PLEASE TAKE FURTHER NOTICE that the Brookfield Objection has not been resolved and a hearing on the relief requested in the Motion will take place before the Court on November 16, 2018 at 11:00 a.m. (ET). PLEASE TAKE FURTHER NOTICE that, as described in the Reply, Wind Down Co has, after discussions with certain other parties in interest, revised the proposed order approving the relief sought in the Motion. Annexed hereto as Exhibit A is a copy of such revised proposed order (the Revised Proposed Order ). PLEASE TAKE FURTHER NOTICE that annexed hereto as Exhibit B is a blackline of the Revised Proposed Order against the proposed order originally annexed to the Motion.
Pg 3 of 16 Dated: November 15, 2018 New York, New York PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP /s/ Kyle J. Kimpler Alan W. Kornberg Kyle J. Kimpler Lauren Shumejda 1285 Avenue of the Americas New York, New York 10019 Telephone: (212) 373-3000 Facsimile: (212) 757-3990 akornberg@paulweiss.com kkimpler@paulweiss.com lshumejda@paulweiss.com Counsel to Wind Down Co
Pg 4 of 16 EXHIBIT A Revised Proposed Order
Pg 5 of 16 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------x In re : : Chapter 11 WESTINGHOUSE ELECTRIC : COMPANY LLC, et al., : Case No. 17-10751 (MEW) : Debtors. 1 : (Jointly Administered) --------------------------------------------------------x REVISED [PROPOSED] ORDER (I) ENFORCING THE INTERIM ASSESSMENT AGREEMENT ORDER AND (II) GRANTING RELATED RELIEF Upon the motion, dated October 30, 2018 (the Motion ), 2 of W Wind Down Co LLC ( Wind Down Co ), pursuant to section 105(a) of title 11 of the United States Code (the Bankruptcy Code ), (i) enforcing the IAA Order and (ii) granting related relief, as more fully set forth in the Motion; and the Court having jurisdiction to consider the Motion and the relief requested therein in accordance with 28 U.S.C. 157 and 1334 and the Amended Standing Order of Reference M-431, dated January 31, 2012 (Preska, C.J.); and consideration of the Motion and the relief requested therein being a core proceeding pursuant to 28 U.S.C. 157(b); and venue being proper before this Court pursuant to 28 U.S.C. 1408 and 1409; and due and proper notice of the Motion having been provided to the Notice Parties; and such notice having been adequate and appropriate under the circumstances, and it appearing that no other or further notice need be provided; and the Court having reviewed the Motion and the responses and objections filed thereto; and the Court having held a hearing to consider the relief requested in the Motion (the Hearing ); 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), Stone & Webster Services LLC (5448), WEC Carolina Energy Solutions, Inc. (8735), WEC Carolina Energy Solutions, LLC (2002), WECTEC Global Project Services Inc. (8572), WECTEC LLC (6222), and WECTEC Staffing Services LLC (4135). The Reorganized Debtors principal offices are located at 1000 Westinghouse Drive, Cranberry Township, Pennsylvania 16066. 2 Capitalized terms used but not otherwise herein defined shall have the meanings ascribed to such terms in the Motion.
Pg 6 of 16 and the Court having determined that the legal and factual bases set forth in the Motion and at the Hearing establish just cause for the relief granted herein; and it appearing that the relief requested in the Motion is in the best interests of creditors and other parties in interest, and upon all of the proceedings had before the Court and after due deliberation and sufficient cause appearing therefor, it is hereby ORDERED that the Motion is granted to the extent provided herein; and it is further ORDERED that the objections and responses to the Motion are overruled, except as specifically provided herein; and it is further ORDERED that, except as specifically provided herein, the terms of the IAAs and the IAA Order shall continue in full force and effect, notwithstanding the consummation of the Plan and the entry of the Confirmation Order; and it is further ORDERED that, no later than five (5) business days following entry of this Order, Brookfield or the Reorganized Debtors shall (i) transfer all funds held in BMO Harris Bank Account Number 440-473-7 entitled SCANA AP1000 Receipts (or any account into which funds therefrom have been transferred since September 30, 2018, the VC Summer IAA Account ), including any interest earned thereon through the date of transfer, to South Carolina Electric & Gas Company and South Carolina Public Service Authority (collectively, the VC Summer Owners ), pursuant to instructions provided by the VC Summer Owners (all such amounts transferred from the VC Summer IAA Account to the VC Summer Owners, the VC Summer Transferred Amount ), (ii) transfer all funds held in BMO Harris Bank Account Number 440-475-2 entitled Southern AP1000 Receipts (or any account into which funds therefrom have been transferred since September 30, 2018, the Vogtle IAA Account, and together with the VC Summer IAA Account, the IAA Accounts ), including any interest earned thereon through the
Pg 7 of 16 date of transfer, to Georgia Power Company ( GPC ), on behalf of itself and as agent for Oglethorpe Power Corporation, Municipal Electric Authority of Georgia, and the City of Dalton, Georgia, as joint owners (collectively with GPC, the Vogtle Owners, and together with the VC Summer Owners, the Owners ), pursuant to instructions provided by GPC (all such amounts transferred from the Vogtle IAA Account to GPC, the Vogtle Transferred Amount ), and (iii) provide the Owners with account statements and wire reference details verifying that the VC Summer Transferred Amount and Vogtle Transferred Amount comprise all funds in the IAA Accounts as soon as reasonably available; and it is further ORDERED that, upon the VC Summer Owners receipt of the VC Summer Transferred Amount, the VC Summer Owners Administrative Expense Claim [ECF No. 3813] (the VC Summer Administrative Expense Claim ) (i) shall be deemed irrevocably reduced by an amount equal to the VC Summer Transferred Amount, and (ii) the maximum allowable amount of the VC Summer Administrative Expense Claim for all purposes under the Plan, including Distribution, shall be (a) $187,921,721.31 minus (b) the VC Summer Transferred Amount; provided, however, that to the extent the VC Summer Owners are required by Court order to return the VC Summer Transferred Amount to Wind Down Co, Brookfield, the Reorganized Debtors or any other party (it being understood that any payments made by the VC Summer Owners in respect of their indemnity obligations under the IAA shall not constitute a return of the VC Summer Transferred Amount), the VC Summer Administrative Expense Claim shall be deemed increased by the amount returned notwithstanding anything in this Order to the contrary; and it is further ORDERED that, upon the Vogtle Owners receipt of the Vogtle Transferred Amount, the Vogtle Owners asserted Administrative Expense Claim [ECF No. 3815] (the Vogtle Administrative Expense Claim, and together with the VC Summer Administrative Expense
Pg 8 of 16 Claim, the Owner Administrative Expense Claims ) (i) shall be deemed irrevocably reduced by an amount equal to the Vogtle Transferred Amount, and (ii) the maximum allowable amount of the Vogtle Administrative Expense Claim for all purposes under the Plan, including Distribution, shall be (a) $107,870,000 minus (b) the Vogtle Transferred Amount; provided, however, that to the extent the Vogtle Owners are required by Court order to return the Vogtle Transferred Amount to Wind Down Co, Brookfield, the Reorganized Debtors or any other party (it being understood that any payments made by the Vogtle Owners in respect of their indemnity obligations under the IAA shall not constitute a return of the Vogtle Transferred Amount), the Vogtle Administrative Expense Claim shall be deemed increased by the amount returned notwithstanding anything in this Order to the contrary; and it is further ORDERED that Wind Down Co is the successor of the Debtors for all purposes under the IAAs and shall be entitled to enforce (i) the VC Summer Owners obligations under Paragraph 11 of the VC Summer IAA (as amended) pursuant to the terms thereof, and (ii) the Vogtle Owners obligations under Paragraph 11 of the Vogtle IAA (as amended) pursuant to the terms thereof; and it is further ORDERED that each of Wind Down Co and the VC Summer Owners shall have the right to offset any valid claims that they may have against each other in respect of their respective obligations under the IAAs, including the right to offset any indemnity obligations set forth therein against any Allowed (as defined in the Plan) portion of the VC Summer Administrative Expense Claim; and it is further ORDERED that each of Wind Down Co and the Vogtle Owners shall have the right to offset any valid claims that they may have against each other in respect of their respective obligations under the IAAs, including the right to offset any indemnity obligations set forth therein
Pg 9 of 16 against any Allowed (as defined in the Plan) portion of the Vogtle Administrative Expense Claim; and it is further ORDERED that, nothing in this Order shall constitute an admission of the validity, nature, amount or priority of any Claim asserted in these cases; and it is further ORDERED that entry of this Order is without prejudice to Wind Down Co s right to dispute, object to or otherwise challenge any portion of the Owner Administrative Expense Claims, including to seek to reclassify any portion of such claims, and the Owners agree that no portion of such claims are Allowed by this Order; and it is further ORDERED that except as specifically set forth herein, nothing herein shall create, nor is intended to create, any rights in favor of or enhance the status of any Claim held by, any party; and it is further ORDERED that entry of this Order is without prejudice to the Plan Oversight Board s and Wind Down Co s rights to seek entry of an order modifying or supplementing the relief granted herein; provided that no such modification or supplement shall affect the Owners rights hereunder without their consent; and it is further ORDERED that the terms and conditions of this Order shall be immediately effective and enforceable upon its entry; and it is further ORDERED that this Court shall retain jurisdiction to hear and determine all matters arising from the interpretation and/or implementation of this Order. Dated:, 2018 New York, New York HONORABLE MICHAEL E. WILES UNITED STATES BANKRUPTCY JUDGE
Pg 10 of 16 EXHIBIT B Blackline of Revised Proposed Order
Pg 11 of 16 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------x In re : : Chapter 11 WESTINGHOUSE ELECTRIC : COMPANY LLC, et al., : Case No. 17-10751 (MEW) : Debtors. 1 : (Jointly Administered) --------------------------------------------------------x REVISED [PROPOSED] ORDER (I) ENFORCING THE INTERIM ASSESSMENT AGREEMENT ORDER AND (II) GRANTING RELATED RELIEF Upon the motion, dated October 30, 2018 (the Motion ), 2 of W Wind Down Co LLC ( Wind Down Co ), pursuant to section 105(a) of title 11 of the United States Code (the Bankruptcy Code ), (i) enforcing the IAA Order and (ii) granting related relief, as more fully set forth in the Motion; and the Court having jurisdiction to consider the Motion and the relief requested therein in accordance with 28 U.S.C. 157 and 1334 and the Amended Standing Order of Reference M-431, dated January 31, 2012 (Preska, C.J.); and consideration of the Motion and the relief requested therein being a core proceeding pursuant to 28 U.S.C. 157(b); and venue being proper before this Court pursuant to 28 U.S.C. 1408 and 1409; and due and proper notice of the Motion having been provided to the Notice Parties; and such notice having been adequate and appropriate under the circumstances, and it appearing that no other or further notice need be provided; and the Court having reviewed the Motion and the responses and 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), Stone & Webster Services LLC (5448), WEC Carolina Energy Solutions, Inc. (8735), WEC Carolina Energy Solutions, LLC (2002), WECTEC Global Project Services Inc. (8572), WECTEC LLC (6222), and WECTEC Staffing Services LLC (4135). The Reorganized Debtors principal offices are located at 1000 Westinghouse Drive, Cranberry Township, Pennsylvania 16066. 2 Capitalized terms used but not otherwise herein defined shall have the meanings ascribed to such terms in the Motion.
Pg 12 of 16 objections filed thereto; and the Court having held a hearing to consider the relief requested in the Motion (the Hearing ); and the record of the Hearing; and the Court having determined that the legal and factual bases set forth in the Motion and at the Hearing establish just cause for the relief granted herein; and it appearing that the relief requested in the Motion is in the best interests of creditors and other parties in interest, and upon all of the proceedings had before the Court and after due deliberation and sufficient cause appearing therefor, it is hereby ORDERED that the Motion is granted to the extent provided herein; and it is further ORDERED that the objections and responses to the Motion are overruled, except as specifically provided herein; and it is further ORDERED that, except as specifically provided herein, the terms of the IAAs and the IAA Order shall continue in full force and effect, notwithstanding the consummation of the Plan and the entry of the Confirmation Order; and it is further ORDER that the IAA Deposits shall only be used in the manner set forth in the IAAs; and it is further ORDERED, that Brookfield shall, at its election, promptly turn over the IAA Deposits to Wind Down Co or agree to make distributions from the IAA Deposits as Wind Down Co may reasonably direct in accordance with the IAAs; and it is further ORDERED that, no later than five (5) business days following entry of this Order, Brookfield or the Reorganized Debtors shall (i) transfer all funds held in BMO Harris Bank Account Number 440-473-7 entitled SCANA AP1000 Receipts (or any account into which funds therefrom have been transferred since September 30, 2018, the VC Summer IAA Account ), including any interest earned thereon through the date of
Pg 13 of 16 transfer, to South Carolina Electric & Gas Company and South Carolina Public Service Authority (collectively, the VC Summer Owners ), pursuant to instructions provided by the VC Summer Owners (all such amounts transferred from the VC Summer IAA Account to the VC Summer Owners, the VC Summer Transferred Amount ), (ii) transfer all funds held in BMO Harris Bank Account Number 440-475-2 entitled Southern AP1000 Receipts (or any account into which funds therefrom have been transferred since September 30, 2018, the Vogtle IAA Account, and together with the VC Summer IAA Account, the IAA Accounts ), including any interest earned thereon through the date of transfer, to Georgia Power Company ( GPC ), on behalf of itself and as agent for Oglethorpe Power Corporation, Municipal Electric Authority of Georgia, and the City of Dalton, Georgia, as joint owners (collectively with GPC, the Vogtle Owners, and together with the VC Summer Owners, the Owners ), pursuant to instructions provided by GPC (all such amounts transferred from the Vogtle IAA Account to GPC, the Vogtle Transferred Amount ), and (iii) provide the Owners with account statements and wire reference details verifying that the VC Summer Transferred Amount and Vogtle Transferred Amount comprise all funds in the IAA Accounts as soon as reasonably available; and it is further ORDERED that, upon the VC Summer Owners receipt of the VC Summer Transferred Amount, the VC Summer Owners Administrative Expense Claim [ECF No. 3813] (the VC Summer Administrative Expense Claim ) (i) shall be deemed irrevocably reduced by an amount equal to the VC Summer Transferred Amount, and (ii) the maximum allowable amount of the VC Summer Administrative Expense Claim for all purposes under the Plan, including Distribution, shall be (a) $187,921,721.31 minus (b) the
Pg 14 of 16 VC Summer Transferred Amount; provided, however, that to the extent the VC Summer Owners are required by Court order to return the VC Summer Transferred Amount to Wind Down Co, Brookfield, the Reorganized Debtors or any other party (it being understood that any payments made by the VC Summer Owners in respect of their indemnity obligations under the IAA shall not constitute a return of the VC Summer Transferred Amount), the VC Summer Administrative Expense Claim shall be deemed increased by the amount returned notwithstanding anything in this Order to the contrary; and it is further ORDERED that, upon the Vogtle Owners receipt of the Vogtle Transferred Amount, the Vogtle Owners asserted Administrative Expense Claim [ECF No. 3815] (the Vogtle Administrative Expense Claim, and together with the VC Summer Administrative Expense Claim, the Owner Administrative Expense Claims ) (i) shall be deemed irrevocably reduced by an amount equal to the Vogtle Transferred Amount, and (ii) the maximum allowable amount of the Vogtle Administrative Expense Claim for all purposes under the Plan, including Distribution, shall be (a) $107,870,000 minus (b) the Vogtle Transferred Amount; provided, however, that to the extent the Vogtle Owners are required by Court order to return the Vogtle Transferred Amount to Wind Down Co, Brookfield, the Reorganized Debtors or any other party (it being understood that any payments made by the Vogtle Owners in respect of their indemnity obligations under the IAA shall not constitute a return of the Vogtle Transferred Amount), the Vogtle Administrative Expense Claim shall be deemed increased by the amount returned notwithstanding anything in this Order to the contrary; and it is further
Pg 15 of 16 ORDERED that Wind Down Co is the successor of the Debtors for all purposes under the IAAs and shall be entitled to enforce (i) the VC Summer Owners obligations under Paragraph 11 of the VC Summer IAA (as amended) pursuant to the terms thereof, and (ii) the Vogtle Owners obligations under Paragraph 11 of the Vogtle IAA (as amended) pursuant to the terms thereof; and it is further ORDERED that each of Wind Down Co and the VC Summer Owners shall have the right to offset any valid claims that they may have against each other in respect of their respective obligations under the IAAs, including the right to offset any indemnity obligations set forth therein against any Allowed (as defined in the Plan) portion of the VC Summer Administrative Expense Claim; and it is further ORDERED that each of Wind Down Co and the Vogtle Owners shall have the right to offset any valid claims that they may have against each other in respect of their respective obligations under the IAAs, including the right to offset any indemnity obligations set forth therein against any Allowed (as defined in the Plan) portion of the Vogtle Administrative Expense Claim; and it is further ORDERED that, nothing in this Order shall constitute an admission of the validity, nature, amount or priority of any Claim asserted in these cases; and it is further ORDERED that entry of this Order is without prejudice to Wind Down Co s right to dispute, object to or otherwise challenge any portion of the Owner Administrative Expense Claims, including to seek to reclassify any portion of such claims, and the Owners agree that no portion of such claims are Allowed by this Order; and it is further
Pg 16 of 16 ORDERED that notwithstanding entry of this Orderexcept as specifically set forth herein, nothing herein shall create, nor is intended to create, any rights in favor of or enhance the status of any Claim held by, any party; and it is further ORDERED that entry of this Order is without prejudice to the rights of Wind Down Co or the Project Owners to challenge, dispute or otherwise assert an entitlement in respect of the IAAs or the claims filed by the Project Owners relating thereto; and it is further ORDERED that entry of this Order is without prejudice to the Plan Oversight Board s and Wind Down Co s rights to seek entry of an order modifying or supplementing the relief granted herein; provided that no such modification or supplement shall affect the Owners rights hereunder without their consent; and it is further ORDERED that the terms and conditions of this Order shall be immediately effective and enforceable upon its entry; and it is further ORDERED that this Court shall retain jurisdiction to hear and determine all matters arising from the interpretation and/or implementation of this Order. Dated:, 2018 New York, New York HONORABLE MICHAEL E. WILES UNITED STATES BANKRUPTCY JUDGE