Pg 1 of 20 Hearing Date And Time: October 19, 2017 at 11:00 a.m. (Eastern Time) Objection Deadline: October 12, 2017 at 4:00 p.m. (Eastern Time) THE ATTACHED MOTION SEEKS AN ORDER AUTHORIZING THE DEBTORS TO ASSUME CERTAIN LEASES OF NONRESIDENTIAL REAL PROPERTY. PARTIES RECEIVING THIS NOTICE SHOULD REVIEW THE EXHIBITS TO THE MOTION TO DETERMINE IF THEIR LEASE IS INCLUDED. THE INCLUSION OF A LEASE IN ANY EXHIBIT MEANS THAT THE DEBTORS ARE SEEKING TO ASSUME THIS LEASE. 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 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 MOTION OF DEBTORS FOR ENTRY OF AN ORDER APPROVING ASSUMPTION OF CERTAIN LEASES OF NONRESIDENTIAL REAL PROPERTY 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 16066.
Pg 2 of 20 PLEASE TAKE NOTICE that a hearing on the annexed Motion (the Motion ), dated October 2, 2017, of the debtors and debtors in possession in the above-captioned chapter 11 cases (collectively, the Debtors ), for entry of an order pursuant to sections 365 and 363(c) of the Bankruptcy Code, Rule 6006 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ), and Rule 6006-1 of the Local Bankruptcy Rules for the Southern District of New York (the Local Rules ) approving the assumption of certain of the Debtors unexpired leases of nonresidential real property (the Assumed Leases ), and amendment and assumption of a lease for premises in Cranberry Township, PA (the Amended Lease ), will be held before the Honorable Michael E. Wiles, in the United States Bankruptcy Court for the Southern District of New York, located at, One Bowling Green, New York, New York 10004 (the Bankruptcy Court ), on October 19, 2017 at 11:00 a.m. (Eastern Time) (the Hearing ). PLEASE TAKE FURTHER NOTICE that any responses or objections ( Objections ) to the Motion must be in writing, shall conform to the Federal Rules of Bankruptcy Procedure and the Local Bankruptcy Rules, and shall be filed with the Bankruptcy Court (a) 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 (b) by all other parties in interest, on a CD-ROM, in textsearchable 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 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) and 9007 Implementing Certain Notice and Case Management Procedures, dated April 4, 2017 [ECF No. 101], so as to be filed 2
Pg 3 of 20 and received no later than October 12, 2017 at 4:00 p.m. (Eastern Time) (the Objection Deadline ). PLEASE TAKE FURTHER NOTICE that if no Objections are timely filed and served, the Debtors may, on or after the Objection Deadline, submit to the Bankruptcy Court an order substantially in the form of the proposed order annexed to the Motion, which order may be entered with no further notice or opportunity to be heard. Dated: October 2, 2017 New York, New York /s/ Robert J. Lemons Gary T. Holtzer Robert J. Lemons Garrett A. Fail 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 20 Hearing Date And Time: October 19, 2017 at 11:00 a.m. (Eastern Time) Objection Deadline: October 12, 2017 at 4:00 p.m. (Eastern Time) THIS MOTION SEEKS AN ORDER AUTHORIZING THE DEBTORS TO ASSUME CERTAIN LEASES OF NONRESIDENTIAL REAL PROPERTY. PARTIES RECEIVING THIS NOTICE SHOULD REVIEW THE EXHIBITS TO THE MOTION TO DETERMINE IF THEIR LEASE IS INCLUDED. THE INCLUSION OF A LEASE IN ANY EXHIBIT MEANS THAT THE DEBTORS ARE SEEKING TO ASSUME THIS LEASE. 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 Attorneys for Debtors and Debtors in Possession 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 MOTION OF DEBTORS FOR ENTRY OF AN ORDER APPROVING ASSUMPTION OF CERTAIN UNEXPIRED LEASES OF NONRESIDENTIAL REAL PROPERTY 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 16066.
Pg 5 of 20 TO THE HONORABLE MICHAEL E. WILES, UNITED STATES BANKRUPTCY JUDGE: Westinghouse Electric Company LLC ( WEC ) and certain of its affiliates, as debtors and debtors in possession in the above-captioned chapter 11 cases (collectively, the Debtors ), respectfully represent as follows in support of this motion (the Motion ): A. General Background Background 1. On March 29, 2017 (the Petition Date ), each Debtor commenced with this Court a voluntary case under chapter 11 of title 11 of the United States Code (the Bankruptcy Code ). The Debtors are authorized to continue to operate their businesses and manage their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. No trustee or examiner has been appointed in these chapter 11 cases. 2. The Debtors chapter 11 cases are being jointly administered for procedural purposes only pursuant to Rule 1015(b) of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ). 3. On April 7, 2017, the United States Trustee for Region 2 appointed the Official Committee of Unsecured Creditors (the UCC ) pursuant to section 1102 of the Bankruptcy Code. 4. Additional information regarding the Debtors businesses, capital structure, and the circumstances leading to the commencement of these chapter 11 cases is set forth in the Declaration of Lisa J. Donahue Pursuant to Rule 1007-2 of the Local Bankruptcy Rules for the Southern District of New York, sworn to and filed on the Petition Date [ECF No. 4]. 2
Pg 6 of 20 5. On September 5, 2017, the Bankruptcy Court entered an order extending the time for the Debtors to assume or reject their unexpired leases of nonresidential real property through and including October 25, 2017 (ECF No. 1304, the Extension Order ). 6. The Debtors, pursuant to this Motion, are now seeking to assume certain of the unexpired leases as to which the time to assume or reject was previously extended pursuant to the Extension Order. Jurisdiction 7. This Court has jurisdiction to consider this matter pursuant to 28 U.S.C. 157 and 1334. This is a core proceeding pursuant to 28 U.S.C. 157(b). Venue is proper before this Court pursuant to 28 U.S.C. 1408 and 1409. Relief Requested 8. The Debtors request entry of an order, substantially in the form of Exhibit A to this Motion, pursuant to sections 365 and 363(c) of the Bankruptcy Code, Bankruptcy Rule 6006, and Rule 6006-1 of the Local Bankruptcy Rules for the Southern District of New York (the Local Rules ), approving the assumption of the Debtors leases listed on Exhibit B to this Motion (the Assumed Leases ). The Assumed Leases are essential to the Debtors ongoing core business and revenue generating capacity. The cure amounts, if any, for the Assumed Leases are set forth on Exhibit B. 9. The Debtors have also negotiated a favorable amendment for the lease for their premises located in Cranberry Township, PA (the Amended Lease ), and are seeking approval of the amendment of this lease and assumption of the lease under this Motion. While the Debtors believe that amending the Amended Lease is within the ordinary course of business for the Debtors and subject to their business judgment, the Debtors are requesting entry of an 3
Pg 7 of 20 order under section 363(c) of the Bankruptcy Code authorizing entry into and performance under the Amended Lease out of an abundance of caution. 10. Finally, the Debtors request that the Court find, for the avoidance of doubt, that section 503(b)(7) of the Bankruptcy Code is applicable to all Assumed Leases, including the Amended Lease. 11. Additional information regarding the Assumed Leases, and the considerations behind the Debtors decision to assume these leases will be set forth in a declaration to be filed shortly by the Debtors. Assumption of the Assumed Leases Is a Sound Exercise of the Debtors Business Judgment 12. Section 365(a) of the Bankruptcy Code provides, in pertinent part, that a debtor in possession subject to the court s approval, may assume or reject any executory contract or unexpired lease of the debtor. 11 U.S.C. 365(a); see also NLRB v. Bildisco & Bildisco, 465 U.S. 513, 521 (1984); In re Lavigne, 114 F.3d 379, 386 (2d Cir. 1997). The purpose behind allowing the assumption of unexpired leases is to permit the trustee or debtorin-possession to use valuable property of the estate. Orion Pictures Corp. v. Showtime Networks, Inc. (In re Orion Pictures Corp.), 4 F.3d 1095, 1098 (2d Cir. 1993). A debtor s decision to assume or reject an unexpired lease or executory contract is a proper exercise of its business judgment if it is rational and does not demonstrate bad faith or whim or caprice. In re Old Carco LLC, 406 B.R. 180, 196 (Bankr. S.D.N.Y. 2009). 13. Courts defer to a debtor s business judgment in assuming an unexpired lease. See, e.g., In re Child World, Inc., 142 B.R. 87, 89 (Bankr. S.D.N.Y. 1992) (stating that a debtor may assume or reject an unexpired lease under section 365(a) of the Bankruptcy Code in the exercise of its business judgment ). Indeed, under the business judgment standard, a 4
Pg 8 of 20 debtor s decision to assume an unexpired lease must be summarily affirmed unless it is the product of bad faith, whim, or caprice. In re Trans World Airlines, Inc., 261 B.R. 103, 121 (Bankr. D. Del. 2001) (quotation omitted). 14. The Debtors assumption of the Assumed Leases represents a sound exercise of their business judgment and should be approved. The Debtors conducted an extensive review of their lease portfolio and, in their business judgment, have determined that the Assumed Leases are essential to their business operations and ongoing revenue generating capacity, will preserve and enhance the value of the Debtors estates, are integral to the Debtors ongoing operations, and the maintenance of the same are critical to the Debtors reorganization effort. Indeed, if the Assumed Leases were not assumed in accordance with the time frame dictated by section 365(d)(4) of the Bankruptcy Code, and as a result, there was a deemed rejection of any of the Assumed Leases, the consequences to the Debtors businesses would be value-destructive, to the detriment and prejudice of all parties-in-interest in these cases. The Amended Lease 15. The Debtors assumption of the Amended Lease for the premises in Cranberry Township, PA represents a sound exercise of their business judgment and should be approved. The Debtors lease the headquarters for their global operations pursuant to the Amended Lease, and the premises form an integral part of the Debtors operations. In exchange for an extension of the lease term from the original expiration date of May 31, 2025 to March 31, 2032, the Debtors negotiated an annual rent reduction of $2,337,087 under the lease, which amounts to a $19,065,544 rent reduction over the remainder of the existing lease term. As a result, the Debtors have achieved the continued use of their headquarters space, along with significant overhead cost reductions for their estates and their ongoing business. The Debtors 5
Pg 9 of 20 have determined that as amended, the Amended Lease will preserve and enhance the value of the Debtors estates, is integral to the Debtors ongoing operations, and the maintenance of the same is critical to the Debtors reorganization effort. 16. In view of the foregoing, the assumption of the Assumed Leases, including the Amended Lease, plainly represents an exercise of sound business judgment and should be approved. The Debtors Have Provided Adequate Assurance of Future Performance 17. Section 365(b) of the Bankruptcy Code establishes certain conditions that must be satisfied prior to the assumption of an unexpired lease: 11 U.S.C. 365(b)(1). (b)(1) 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. 18. The Debtors recognize that they must cure (or provide adequate assurance that they will promptly cure) all defaults (other than defaults described in section 365(b)(2) of the Bankruptcy Code) existing under the Assumed Leases in connection with their assumption. With respect to the Assumed Leases set forth on Exhibit B as to which there may be cure amounts owing, the Debtors intend to pay all such amounts promptly after the assumption is approved by the Court. 6
Pg 10 of 20 19. Section 365(b)(1)(C) provides that, if there has been a default in an unexpired lease or executory contract, a debtor seeking to assume the same must provide adequate assurance of future performance under such contract or lease. 11 U.S.C. 365(b)(1)(C). The meaning of adequate assurance of future performance depends on the facts and circumstances of each case, but should be given practical, pragmatic construction. See Carlisle Homes, Inc. v. Arrari (In re Carlisle Homes, Inc.), 103 B.R. 524, 538 (Bankr. D.N.J. 1989) (internal citation omitted); see also In re Jennifer Convertibles, Inc., 447 B.R. 713, 719 (Bankr. S.D.N.Y. 2011) ( A debtor need not prove that it will thrive and make a profit but only that it appears that it will meet its obligations. ); In re Natco Indus., Inc., 54 B.R. 436, 440 (Bankr. S.D.N.Y. 1985) (adequate assurance of future performance does not mean absolute insurance that the debtor will thrive and make a profit ). 20. For those few Assumed Leases where prepetition defaults may exist, the facts of these chapter 11 cases sufficiently demonstrate the Debtors adequate assurance of future performance. In pertinent part, the Debtors have sufficient liquidity from their ongoing business operations and their debtor-in-possession financing facility, to address the obligations under such Assumed Leases in the ordinary course. 21. Courts have found that sufficient income to cover lease obligations provides adequate assurance of future performance. See Tex. Health Enters., Inc. v. Lytle Nursing Home (In re Tex. Health Enters., Inc.), 72 Fed. Appx. 122, 126 (5th Cir. 2003) (finding an income stream sufficient to meet [Debtors ] obligations provides adequate assurance of future performance) (citations omitted); In re Lafayette Radio Elecs. Corp., 7 B.R. 189, 194 (Bankr. E.D.N.Y. 1980) (finding adequate assurance through the debtor s renewed viability that showed sufficient income to cover the lease). Here, the Debtors have an $800 million debtor 7
Pg 11 of 20 in possession financing facility in place that enables them to finance and support the stability of their businesses. Furthermore, the Debtors are generating positive cash flow on a cumulative basis, have been timely addressing all of their postpetition obligations, including all obligations with respect to the Assumed Leases, and are on track to successfully emerge from chapter 11. 22. The Debtors also propose in connection with this Motion that the assumption of any Assumed Lease shall be effective notwithstanding any dispute over cure amounts, with the rights of the parties being reserved with respect to a dispute over any cure amount. The Debtors further propose that any disputed cure cost would be paid promptly after the earlier of (a) the date on which the Debtors and the applicable party agree to the cure amount, and (b) the date specified in a final and non-appealable order entered by the Court determining such amount. Notice and Bankruptcy Rule 6006 23. Notice of this Motion will be provided in accordance with 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 [ECF No. 101]. The Debtors submit that, in view of the facts and circumstances, such notice is sufficient and no other or further notice need be provided. 24. Pursuant to Bankruptcy Rule 6006(e), the Debtors may not seek authority to assume multiple unexpired leases in one motion unless the [debtor] seeks to assume, but not assign to more than one assignee, unexpired leases of real property. The Debtors are seeking to assume, but not assign, the Assumed Leases. Therefore, the Debtors may seek authority to assume all of the Assumed Leases in this Motion. Under Bankruptcy Rule 6006(f), a Debtor may join requests for authority to assume multiple unexpired leases in one motion if permitted 8
Pg 12 of 20 under subdivision 6006(e). Bankruptcy Rule 6006(f) provides that a motion to assume (or reject) multiple executory contracts or unexpired leases that are not between the same parties shall: (1) state in a conspicuous place that parties receiving the omnibus motion should locate their names and their contracts or leases listed in the motion; (2) list parties alphabetically and identify the corresponding contract or lease; (3) specify the terms, including the curing of defaults, for each requested assumption or assignment; (4) specify the terms, including the identity of each assignee and the adequate assurance of future performance by each assignee, for each requested assignment; (5) be numbered consecutively with other omnibus motions to assume, assign, or reject executory contracts or unexpired leases; and (6) be limited to no more than 100 executory contracts or unexpired leases 25. The Motion and notice thereof as described herein clearly and conspicuously directs parties and provides sufficient information to determine their agreements covered by the Motion and specifies the cure amounts, largely satisfying the requirements of Bankruptcy Rule 6006(f) (an alphabetical listing of counterparties is neither helpful nor practical here and, in view of the customized notice, is not necessary). In addition, Courts may waive the requirements of Bankruptcy Rule 6006(f). See In re Old Carco LLC, 406 B.R. 180, 209 10 (Bankr. S.D.N.Y. 2009) (where debtors sought to reject nearly 800 agreements, waiving the requirement of Bankruptcy Rule 6006(f); observing that the 2007 Advisory Committee Note to Rule 6006 states that [a]n omnibus motion to assume, assign, or reject multiple executory contracts and unexpired leases must comply with the procedural requirements set forth in subdivision (f) of the rule, unless the court orders otherwise; further stating that, because notice of the proposed rejections was otherwise sufficient, it would not have advanced the process by requiring the Debtors to file eight separate motions requesting the same relief ). 9
Pg 13 of 20 26. Accordingly, the Debtors respectfully submit that notice with respect to the Motion as described herein is appropriate, satisfies due process and should be approved as good and sufficient. 27. No previous request for the relief sought herein has been made by the Debtors to this or any other Court. WHEREFORE the Debtors respectfully request entry of the Proposed Order granting the relief requested herein and such other and further relief as is just. Dated: October 2, 2017 New York, New York /s/ Robert J. Lemons Gary T. Holtzer Robert J. Lemons Garrett A. Fail 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 10
Pg 14 of 20 Exhibit A Proposed Order
Pg 15 of 20 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 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 ORDER APPROVING ASSUMPTION OF CERTAIN UNEXPIRED LEASES OF NONRESIDENTIAL REAL PROPERTY Upon the Motion, dated October 2, 2017 (the Motion ), 2 of Westinghouse Electrical Company LLC and its affiliated debtors in the above-captioned chapter 11 cases, as 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 16066.
Pg 16 of 20 debtors and debtors in possession (collectively, the Debtors ), pursuant to sections 365(a) and 363(c) of title 11 of the United States Code (the Bankruptcy Code ), Rule 6006 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ), and Rule 6006-1 of the Local Bankruptcy Rules for the Southern District of New York (the Local Rules ), for an order approving the Debtors assumption of the Assumed Leases and amendment and assumption of the Amended Lease, and the cure amounts, if any, with respect to the Assumed Leases, all 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, and it appearing that no other or further notice need be provided; and the Court having held a hearing on the Motion on October 19, 2017; and all objections to the Motion, if any, having been withdrawn, resolved, or overruled; and the Court having found and determined that the relief sought in the Motion is in the best interests of the Debtors, their estates, creditors, and all parties in interest, and that the legal and factual bases set forth in the Motion establish just cause for the relief granted herein; and after due deliberation and sufficient cause appearing therefor, it is ORDERED that the Motion is granted as provided herein; and it is further ORDERED that the Debtors assumption of the Assumed Leases under section 365 of the Bankruptcy Code is hereby approved, effective as of October 25, 2017; and it is further 2 Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to such terms in the Motion. 2
Pg 17 of 20 ORDERED that the Debtors entry into and performance under the Amended Lease is hereby approved under section 363(c) of the Bankruptcy Code, and the assumption of the Amended Lease is approved under section 365 of the Bankruptcy Code, effective as of October 25, 2017; and it is further ORDERED that notwithstanding the assumption of the Assumed Leases (including the Amended Lease), the Debtors retain the right to later assign the Assumed Leases (including the Amended Lease) under section 365(f) of the Bankruptcy Code; and it is further ORDERED that section 503(b)(7) of the Bankruptcy Code shall remain applicable to all Assumed Leases, including the Amended Lease; and it is further ORDERED that notwithstanding anything herein to the contrary, the assumption of each Assumed Lease shall be effective notwithstanding any dispute over cure amounts, provided that the objecting party s and the Debtors rights with respect to the dispute as to the appropriate cure amount, if any, are hereby reserved and preserved. Any disputed cure costs will be paid promptly after the earlier of: (a) the date on which the Debtors and the applicable party agree to an amount; and (b) the date specified in a final and non-appealable order entered by this Court determining such amount with respect to the applicable Assumed Lease; and it is further ORDERED that nothing contained in the Motion or this Order is intended or shall be construed as: (a) an admission as to the validity of any claim against the Debtors; (b) an admission as to the nature of the property interest granted pursuant to or covered by the Assumed Leases; (c) a waiver of any party s rights to dispute the amount of, basis for, or validity of any claim of a lease counterparty or any other party under applicable law; (d) a waiver of any claims or causes of action which may exist against any lease counterparty; or (e) a waiver of the 3
Pg 18 of 20 Debtors right to transfer or assign some or all of the Debtors interests in the Assumed Leases at a later date, subject to any applicable provision of the Bankruptcy Code; and it is further ORDERED that, to the extent required by section 365 of the Bankruptcy Code, the Debtors have provided adequate assurance of future performance of the Assumed Leases, and no further showing of adequate assurance is necessary; and it is further ORDERED that upon entry of this Order, the counterparties to the Assumed Leases shall be forever barred from asserting against the Debtors any defaults or claims arising prior to the date of this Order; and it is further ORDERED that notwithstanding anything to the contrary contained herein, any payment to be made or authorization contained hereunder shall be subject to the requirements imposed on the Debtors under any interim or final orders approving the DIP Loans (as defined in the final order approving the Debtors postpetition credit facility) and the budget approved thereunder (the Budget ). To the extent there is any conflict between this Order and any order approving the Debtors postpetition credit facility (the DIP Order ) or Budget, the terms of the DIP Order or Budget, as applicable, shall govern; and it is further ORDERED that notice of the Motion and the relief set forth in this Order is good and sufficient; and it is further ORDERED that, to the extent the Debtors discover accurate contact information for any currently unknown counterparties to any Assumed Leases, the Debtors will provide such parties with notice of this Motion and an opportunity to be heard if they have any objection to the relief granted herein as to their agreement; and it is further ORDERED that the Debtors are authorized to take any actions as are necessary or appropriate to implement and effectuate the assumption of the Assumed Leases; and it is further 4
Pg 19 of 20 ORDERED that this Court shall retain jurisdiction to hear and determine all matters arising from or related to this Order. Dated:, 2017 New York, New York HONORABLE MICHAEL E. WILES UNITED STATES BANKRUPTCY JUDGE 5
Pg 20 of 20 Exhibit B Assumed Leases and Cure Amounts No. Debtor/Tenant Description of Lease Landlord Cure Amount 1 Westinghouse 44 Inverness Center Parkway, Southern Company $0 Birmingham, AL Services 2 Fauske & 341 Shore Drive, NWT Inc $0 Associates, LLC Burr Ridge, IL 3 Fauske & 16W070 West 83rd Street, FGHREALCO, LLC $0 Associates, LLC Burr Ridge, IL 4 Westinghouse 1332 Beulah Road, S&T Bank $0 Pittsburgh, PA 5 Westinghouse Freeport Center, Building F-7, K&M Two, LLC $252.32 Clearfield, UT 6 Westinghouse Freeport Center, Building J-5, Freeport Center Associates $176.25 Clearfield, UT 7 Westinghouse 400 Bertha Lamme Dr., The GC Net Lease $0 Cranberry, PA (Cranberry) Investors, LLC 8 Westinghouse 19405 Vale Ave., G.R. Daniels Warehouse, $0 Hutchinson, MN LLC 9 Westinghouse 4350 Northern Pike, LSREF4 Rebound, LLC $0 Monroeville, PA 10 Westinghouse 1000 Westinghouse Dr., RSP, L.P. $66,274.16 New Stanton, PA 11 Westinghouse 205 Shattuck Way, Mareld Company, Inc. $0 Newington, NH 12 Westinghouse 20 Durham Street, GEB, INC $0 Portsmouth, NH 13 Westinghouse 2939 Richardson Rd, Port of Benton $0 Richland, WA 14 Westinghouse 11333 Woodglen Drive, JBG/Nicholson Lane East $0 Rockville, MD II, L.L.C. 15 Westinghouse 1775 Pennsylvania Ave. NW, 1775 Pennsylvania $0 Washington DC Property, L.P. 16 Westinghouse Youngwood Warehouse, Youngwood Commerce Park, The Buncher Company $167.41 17 Westinghouse Youngwood, PA 1000 Westinghouse Drive, Buildings 1-3, Cranberry Township, PA *** As Amended Columbia Property Trust, Inc. $154.00