Pg 1 of 10 Presentment Date and Time March 26, 2018 at 1100 a.m. (Prevailing Eastern Time) Objection Deadline March 26, 2018 at 1000 a.m. (Prevailing Eastern Time) Hearing Date and Time (Only if Objection Filed) March 27, 2018 at 1100 a.m. (Prevailing Eastern Time) WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 Telephone (212) 310-8000 Facsimile (212) 310-8007 Gary T. Holtzer Robert J. Lemons Garrett A. Fail David N. Griffiths Attorneys for Debtors and Debtors in Possession 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 PRESENTMENT OF STIPULATION AND AGREED ORDER BY AND BETWEEN DEBTORS AND CERTAIN MITSUBISHI ENTITIES PLEASE TAKE NOTICE that on March 26, 2018 at 1100 a.m. (Eastern Time), the undersigned will present the annexed Stipulation and Agreed Order By 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), 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, Inc. d/b/a WECTEC Global Project Services Inc. (8572), 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 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 16066.
Pg 2 of 10 Between Debtors and Certain Mitsubishi Entities, dated March 23, 2018 (the Stipulation ), to the Honorable Michael E. Wiles, United States 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 10004 (the Bankruptcy Court ). PLEASE TAKE FURTHER NOTICE that any responses or objections ( Objections ) to the Stipulation shall be in writing, shall conform to the Federal Rules of Bankruptcy Procedure and the Local Bankruptcy Rules for the Southern District of New York, shall be filed with the Bankruptcy Court (i) by attorneys practicing in the Bankruptcy Court, including attorneys admitted pro hac vice, electronically in accordance with General Order M-399 (which can be found at www.nysb.uscourts.gov), and (ii) by all other parties in interest, on a 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 shall be 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 Certain Notice and Case Management Procedures entered on April 4, 2017 [ECF No. 101] so as to be so filed and received no later than March 26, 2018 at 1000 a.m. (Eastern Time) (the Objection Deadline ). PLEASE TAKE FURTHER NOTICE that if no Objections to the Stipulation are received by the Objection Deadline, the Bankruptcy Court may enter an order granting the relief sought in the Stipulation without further notice. PLEASE TAKE FURTHER NOTICE that if one or more Objections are received by the Objection Deadline, the Bankruptcy Court may enter an order granting the relief requested in the Stipulation, except for relief that impacts any party with a pending Objection, and 2
Pg 3 of 10 that if a written Objection is timely filed and served, a hearing (the Hearing ) will be held to consider such Objection(s) before the Honorable Michael E. Wiles in the Bankruptcy Court, on March 27, 2018 at 1100 a.m. (Eastern Time). PLEASE TAKE FURTHER NOTICE that objecting parties are required to attend the Hearing, and failure to appear may result in relief being granted upon default. Dated March 23, 2018 New York, New York /s/ David N. Griffiths Gary T. Holtzer Robert J. Lemons Garrett A. Fail David N. Griffiths WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 Telephone (212) 310-8000 Facsimile (212) 310-8007 Attorneys for Debtors and Debtors in Possession 3
Pg 4 of 10 Presentment Date and Time March 26, 2018 at 1100 a.m. (Prevailing Eastern Time) Objection Deadline March 26, 2018 at 1000 a.m. (Prevailing Eastern Time) WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 Telephone (212) 310-8000 Facsimile (212) 310-8007 Gary T. Holtzer Robert J. Lemons Garrett A. Fail David N. Griffiths Attorneys for Debtors and Debtors in Possession 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 STIPULATION AND AGREED ORDER BY AND BETWEEN DEBTORS AND CERTAIN MITSUBISHI ENTITIES Westinghouse Electric Company LLC and certain debtor affiliates, as debtors and debtors in possession in the above-captioned chapter 11 cases (each, a Debtor, and, collectively, the 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, Inc. d/b/a WECTEC Global Project Services Inc. (8572), 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 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 16066.
Pg 5 of 10 Debtors ), on one hand, and Mitsubishi Heavy Industries, Ltd. ( MHI ), Mitsubishi Nuclear Energy Systems, Inc. ( MNES ), and Mitsubishi Nuclear Fuel Co., Ltd. ( MNF ) on the other hand (MHI, MNES, and MNF, collectively, the Mitsubishi Parties, and together with the Debtors, the Parties ), by and through their respective counsel, hereby enter into this Stipulation and Agreed Order ( Stipulation ) and represent and agree as follows. RECITALS WHEREAS, pursuant to the Debtors proposed Modified First Amended Joint Chapter 11 Plan of Reorganization [Docket No. 2622] (as it may be further amended or modified, the Plan ), the Debtors filed that certain Notice Regarding (I) Executory Contracts and Unexpired Leases, (II) Proposed Cure Obligation, and (III) Related Procedures [Docket No. 2645] (as supplemented, the Notice ); 2 and WHEREAS, the Notice identified certain contracts between Debtors and Mitsubishi Parties that may be subject to assumption, assumption and assignment, or rejection under the Plan; and WHEREAS, pursuant to the Plan Funding Agreement ( PFA ), the Plan Sponsor may designate executory contracts for assumption or rejection through and until five Business Days before the Effective Date of the Plan; and WHEREAS, the Mitsubishi Parties timely filed an Objection and Reservation of Rights of Certain Mitsubishi Entities Regarding (A) Assignment to Wind Down Co, or Rejection, of Certain Contracts, and (B) Transfer of Intellectual Property Free and Clear of License Interests [Docket No. 2849] (the Objection ) in response to the Notice and certain aspects of the Plan; and 2 Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Plan. 2
Pg 6 of 10 WHEREAS, the Parties wish to specify the treatment under the Plan of all contracts between Debtors and Mitsubishi Parties, and to clarify the treatment under the Plan and Confirmation Order of any interest thereunder of any Mitsubishi Party; NOW THEREFORE, to resolve the Objection and facilitate confirmation of the Plan, and for other good and valuable consideration, the Parties hereby stipulate as follows herein. AGREEMENT 1. The foregoing recitals are incorporated into this agreement as though fully set forth 2. Each of the following contracts (each, a Mitsubishi Executory Contract ) is an executory contract for purposes of section 365 of the Bankruptcy Code and an Original Contract as defined in and for purposes of the PFA a. Nuclear Service Technology Cooperation Agreement, dated January 12, 1994, by and among MHI, Westinghouse Electric Corporation, and Westinghouse International Technology Corporation (the NSTCA ); b. New Technical Cooperation Agreement, dated January 1, 2000, by and among MHI, Westinghouse Electric Company LLC, and Westinghouse International Technology LLC (the MHI NTCA ); c. New Technical Cooperation Agreement, dated January 1, 2000, by and among MNF, Westinghouse Electric Company LLC, and Westinghouse International Technology LLC (the MNF NTCA ); d. New APWR Technology Agreement, dated February 8, 2001, by among MHI, Westinghouse Electric Company LLC and Westinghouse Technology Licensing Company LLC (the NATA ); and e. Technical Assistance and Patent Sublicense Agreement for Advanced Scale Conditioning Agents and Ultrasonic Energy Cleaning, effective as of April 1, 2006 (renewed and amended as of April 1, 2016), by and between MHI and Westinghouse Technology Licensing Company LLC (the TAPSA ). 3. To the extent they have not already done so, the Debtors shall list each of the above Mitsubishi Executory Contracts in the Schedule of Assumed Contracts filed by the Debtors on 3
Pg 7 of 10 March 22, 2018 (the Schedule ). Any omission from the Notice or the Schedule of any other contract between a Mitsubishi Party and a Debtor which is an executory contract as of the date hereof is inadvertent and is not intended to cause or result in the rejection of such contract (which, for the avoidance of doubt, shall be a Mitsubishi Executory Contract hereunder and an Original Contract under the PFA). 4. No Mitsubishi Executory Contract shall be assigned to Wind Down Co under the Plan or otherwise. 5. The Debtors do not intend to reject, and are not aware that the Plan Investor intends to reject (or otherwise have treated as an Excluded Contract), any Mitsubishi Executory Contract. Notwithstanding anything to the contrary in the PFA (to the extent applicable), the NSTCA, MHI NTCA, MNF NTCA, and NATA are not precluded from being Designated Contracts (as defined in the PFA). 6. In the event a Mitsubishi Executory Contract is rejected pursuant to section 365 of the Bankruptcy Code, under the Plan or otherwise, each applicable Mitsubishi Party s rights, including but not limited to its rights under section 365(n) of the Bankruptcy Code, are preserved. Nothing in this Stipulation constitutes an election of remedies. 7. Any contract between a Mitsubishi Party and a Debtor (or its affiliate(s)) which is not an executory contract as of the date hereof (or is not an executory contract as between the Mitsubishi Party and Debtor party thereto) (each, a Mitsubishi Vested Contract, and collectively with the Mitsubishi Executory Contracts, the Mitsubishi Contracts ) is not eligible to be assumed, assigned or rejected under the Bankruptcy Code or the Plan. Mitsubishi Vested Contracts include, without limitation, the following 4
Pg 8 of 10 a. Confidential Settlement Agreement and Release, dated as of December 22, 2016, by and among MNES, Westinghouse Electric Company LLC and STP Nuclear Operating Company; b. Agreement on Provision of Certain Information, dated December 22, 2016, by and between MNES and Westinghouse Electric Company LLC; c. AP1000 Program Participation Agreement, dated December 19, 2001 (amended by Amendment #1 thereto, dated February 28, 2005 and signed as of April 18, 2005), by and among MHI, Westinghouse Electric Company LLC, and Westinghouse Technology Licensing Company LLC; d. Beacon License Agreement, effective as of December 15, 1993 (as amended September 6, 2001), by and between MHI and Westinghouse Electric Corporation; and e. Filtered Containment Venting System Agreement about the Basic Required Specification for RFQ, dated July 31, 2017, by and between MHI and Westinghouse Electric Japan, Ltd. 8. The Debtors shall include the following provision in their proposed form of Confirmation Order Mitsubishi Contracts. Notwithstanding anything to the contrary in the Plan, the Plan Funding Agreement, or this Confirmation Order, the assets vesting in the Reorganized Debtors shall remain subject to any interests therein and rights expressly granted to any Mitsubishi Party (or its affiliates) (as defined in that certain Stipulation and Agreed Order By and Between Debtors and Certain Mitsubishi Entities filed with the Court on March 23, 2018 at ECF No. [ ]) (the Mitsubishi Stipulation ) under, and any obligations expressly arising under or in connection with, any Mitsubishi Contract (as defined in the Mitsubishi Stipulation). 9. Upon filing of this Stipulation, the MHI Parties agree that their Objection is resolved and will be withdrawn. 5
Pg 9 of 10 10. The Parties intend for this Stipulation to survive entry of any order confirming the Plan. 11. This Stipulation may not be modified, altered, amended, or vacated other than by a signed writing executed by the Parties. 12. Each person who executes this Stipulation on behalf of a Party hereto represents that he or she is duly authorized to execute this Stipulation on behalf of such Party. 13. This Stipulation contains the entire agreement between the Parties, and supersedes all prior discussions, agreements, and undertakings between the Parties, relating to the subject matter hereof. 14. This Stipulation shall be filed and become part of the record in the Debtors chapter 11 cases. 15. This Stipulation shall be governed by, and construed and enforced in accordance with the laws of the State of New York, without giving effect to the principles of conflict of laws thereof. 16. The Parties hereby irrevocably and unconditionally agree that the Bankruptcy Court shall retain exclusive jurisdiction to interpret, implement, and enforce the provisions of this Stipulation. 17. This Stipulation may be executed in multiple counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Evidence of execution of this Stipulation may be exchanged by fax or by electronic transmission of a scanned copy of the signature pages or by exchange of an original signed document, each of which shall be as fully binding on the Party as a signed original. Remainder of Page Intentionally Blank 6
Pg 10 of 10 Dated New York, New York Dated New York, New York March 23, 2018 March 23, 2018 By /s/ David N. Griffiths Gary T. Holtzer Robert J. Lemons Garrett A. Fail David N. Griffiths WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 Telephone (212) 310-8000 Facsimile (212) 310-8007 Attorneys for the Debtors and Debtors in Possession By /s/ Samuel S. Cavior Samuel S. Cavior PILLSBURY WINTHROP SHAW PITTMAN LLP 1540 Broadway New York, NY 10036 Telephone (212) 858-1000 Facsimile (212) 858-1500 Barbara L. Croutch PILLSBURY WINTHROP SHAW PITTMAN LLP 725 South Figueroa Street, Suite 2800 Los Angeles, CA 90017-5406 Telephone (213) 488-7100 Facsimile (213) 629-1033 Attorneys for Mitsubishi Heavy Industries, Ltd., Mitsubishi Nuclear Energy Systems, Inc. and Mitsubishi Nuclear Fuel Co., Ltd. APPROVED AND SO ORDERED This day of March, 2018 BY THE COURT Honorable Michael E. Wiles United States Bankruptcy Judge 7