Pg 1 of 9 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 ORDER PURSUANT TO 11 U.S.C. 365(a) AND 105(a) AUTHORIZING DEBTORS TO (I) ASSUME AND ASSIGN CERTAIN EXECUTORY CONTRACTS TO VOGTLE OWNERS AND (II) ASSUME AND AMEND CERTAIN EXECUTORY CONTRACTS Upon the motion [ECF No. 1021] (the Motion ), 2 dated July 27, 2017, of Westinghouse Electric Company LLC and its debtor affiliates, as debtors and debtors in possession in the above-captioned chapter 11 cases (collectively, the Debtors ), pursuant to sections 365(a) and 105(a) of the Bankruptcy Code, for an order authorizing the Debtors to (i) assume and assign the Assigned Subcontracts to the Vogtle Owners and (ii) assume and amend the Assumed Subcontracts, 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 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. 2 Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Motion.
Pg 2 of 9 consideration of the Motion and the requested relief being a core proceeding pursuant to 28 U.S.C. 157(b); and venue being proper before the Court pursuant to 28 U.S.C. 1408 and 1409; and due and proper notice of the Motion having been provided; 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 upon the First Day Declaration, the Donahue Declaration, and the McKinney Declaration; and the Court having determined that the legal and factual bases set forth in the Motion establish just cause for the relief granted herein; and it appearing that the relief requested in the Motion is in the best interests of the Debtors, their estates, creditors, and all parties in interest and represents an appropriate exercise of the Debtors reasonable business judgment; and upon all of the proceedings had before the Court and after due deliberation and sufficient cause appearing therefor, IT IS HEREBY ORDERED THAT: 1. The Motion is granted to the extent set forth herein. 2. The objections to the Motion listed on Exhibit 1 annexed hereto (the Pending Objections ) relate solely to the assumption of specific Subcontracts. The Motion with respect to Subcontracts subject to a Pending Objection shall be heard by the Court on September 7, 2017 at 11:00 a.m. (Prevailing Eastern Time) or such other date and time as may be fixed by this Court (the Hearing ). 3. Pursuant to sections 365(a) and 105(a) of the Bankruptcy Code, the Debtors assumption and assignment of the Assigned Subcontracts to GPC (as the Vogtle Owners designee) is approved and effective as of the date hereof. 4. Any and all anti-assignment provisions in the Assigned Subcontracts, whether such provisions expressly prohibit or have the effect of restricting or limiting assignment 2
Pg 3 of 9 of such contract, are unenforceable and prohibited pursuant to section 365(f) of the Bankruptcy Code. 5. Subject to paragraphs 2 and 9 herein, pursuant to sections 365(a) and 105(a) of the Bankruptcy Code, the Debtors are authorized to assume the Assumed Subcontracts. 6. Subject to paragraphs 2 and 9 herein, the Vogtle Owners, and the Debtors, as applicable, have provided adequate assurance of future performance in respect of the Subcontracts, and no further showing of adequate assurance is necessary. 7. Subject to paragraphs 2 and 9 herein, the prepetition Cure Costs set forth on Exhibits B and C to the Motion are approved. In accordance with the terms of the Services Agreement, GPC, on behalf of itself and the other Vogtle Owners, shall pay such Cure Costs to counterparties to Subcontracts for which there is no Pending Objection and, with respect to Assumed Subcontracts, only for those which an amendment to its Assumed Subcontract adding the Vogtle Owners or their designee as a counterparty to such Assumed Subcontract (an Amendment ) has been executed, within five (5) business days of the entry of this Order. For Assumed Subcontracts as of the date of entry of this Order (i) that are subject to a Pending Objection, or (ii) for which no Amendment has been executed, GPC, on behalf of itself and the other Vogtle Owners, shall pay Cure Costs to the applicable counterparty within five (5) business days of (a) the resolution of the Pending Objection (if such resolution requires payment of Cure Costs), and (b) the execution of an Amendment. 8. Neither the Debtors nor the Vogtle Owners shall be required to make further payment in connection with any prepetition default under any Subcontract in excess of the applicable Cure Costs, notwithstanding anything to the contrary in any Subcontract, or any other document, and the counterparty forever shall be barred from asserting any other prepetition cure 3
Pg 4 of 9 cost claims related to such Subcontract against the Debtors or the Vogtle Owners, or the property of any of them. 9. Without further order of the Court, (a) the Debtors may consensually resolve, subject to the consent of the Vogtle Owners, any Pending Objection prior to the Hearing, and (b) the Vogtle Owners may, in their sole discretion, by giving written notice to the Debtors as soon as practicable after the Hearing, remove (i) any Assumed Subcontract that is subject to a Pending Objection or (ii) any Assumed Subcontracts for which an Amendment has not been executed as of the entry of this Order, from Exhibit C, subject to the terms of the Services Agreement, from the list of Assumed Subcontracts. If a Pending Objection is resolved or an Amendment is executed, the Debtors are authorized to assume the applicable Assumed Subcontract, and the provisions of this Order shall apply. Notwithstanding the foregoing, any resolution that provides for the payment of prepetition Cure Costs for an Assumed Subcontract that is at least $1,000,000 more than the amount listed as the cure cost by the Debtors for such Assumed Subcontract on Exhibit C to the Motion, shall require the consent of the UCC or approval of the Court, which approval may be sought on presentment on seven (7) days notice. 10. GPC, on behalf of itself and the other Vogtle Owners, shall pay all administrative expenses accrued by the Debtors during the Interim Period (as defined below) for services or goods for the Vogtle Project arising under an Assumed Subcontract that is subject to a Pending Objection, or for which an Amendment has not been fully executed, regardless of whether such administrative expenses become payable during or after the Interim Period. The Interim Period shall mean, with respect to a particular Assumed Subcontract, from July 27, 2017 (the Effective Date ) to and through the earlier of (a) five (5) business days after the Vogtle Owners provide written notice to the Debtors that such Assumed Subcontract is removed from the list of 4
Pg 5 of 9 Assumed Subcontracts, and (b) the date the Assumed Subcontract is assumed. Such payments by GPC shall only be used to pay counterparties to (x) Assumed Subcontracts with Pending Objections, or (y) Assumed Subcontracts for which an Amendment was not executed as of the Effective Date, and the Debtors shall provide GPC with evidence of such payment within five (5) business days of such payment. 11. Following the Interim Period, there shall be a reconciliation of the payments made by GPC to the Debtors and by the Debtors to the counterparties to the Assumed Subcontracts with Pending Objections and Assumed Subcontracts for which an Amendment was not executed as of the date hereof. If the actual costs incurred by the Debtors exceed the amounts paid by GPC to the Debtors, GPC, on behalf of itself and the other Vogtle Owners, shall pay to the Debtors any such additional amount necessary to eliminate the difference. If the amounts paid by GPC to the Debtors exceed the actual costs incurred by the Debtors, the Debtors shall pay such amounts to GPC. To the extent such amounts are not paid by the Debtors, GPC shall have an administrative claim for such amounts. 12. Notice of the Motion as provided therein is deemed to be good and sufficient notice of such Motion, and the contents of the Motion satisfy the requirements of the Bankruptcy Rules. 13. Nothing contained in this Order or any action taken by the Debtors in implementing this Order shall be deemed: (i) an admission as to the validity of any claim against the Debtors, including, without limitation, from the Vogtle Owners or counterparties to the Subcontracts; (ii) a waiver or limitation of the Debtors rights under the Bankruptcy Code or any other applicable law, including without limitation, any right to assert a claim, cause of action, or right of set-off which may exist now or hereafter against any party; (iii) a waiver by the Debtors 5
Pg 6 of 9 of the requirement that any party file a proof of claim in the Debtors chapter 11 cases; (iv) a waiver of the Debtors rights, or the rights of any other appropriate party (including the DIP Lenders), to dispute the amount of, basis for, or validity of a claim, whether arising under a Subcontract or otherwise; or (v) a waiver or limitation of the Debtors rights under the Services Agreement. 14. Notwithstanding entry of this Order, 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. 15. 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 DIP Order) and the budget approved thereunder (the Budget ). To the extent there is any conflict between this Order and any DIP Order or Budget, the terms of the DIP Order or Budget, as applicable, shall govern. 16. Under the circumstances of these chapter 11 cases, notice of the Motion is adequate under Bankruptcy Rule 6006(c). 17. The requirements of Bankruptcy Rule 6006(f) have been satisfied. 18. Notwithstanding Bankruptcy Rule 6006(d), this Order shall be immediately effective and enforceable upon its entry. 19. The Debtors are authorized to take all actions that are necessary or appropriate to implement the relief granted in this Order. 6
Pg 7 of 9 20. The Court shall retain jurisdiction to hear and determine all matters arising from or related to the implementation, interpretation, and/or enforcement of this Order. Dated: August 18, 2017 New York, New York s/michael E. Wiles UNITED STATES BANKRUPTCY JUDGE 7
Pg 8 of 9 Exhibit 1 Pending Objections
Pg 9 of 9 Pending Objections 1. Limited Objection of Consolidated Pipe & Supply Company, Inc. to the Omnibus Motion of Debtors Pursuant to 11 U.S.C. 365(a) and 105(a) for Entry of Order Authorizing Debtors to (I) Assume and Assign Certain Executory Contracts to Vogtle Owners and (II) Assume and Amend Certain Executory Contracts [ECF No. 1140] 2. Objection and Reservation of Rights of R-V Industries, Inc. to Omnibus Motion of Debtors Pursuant to 11 U.S.C. 365(a) and 105(a) for Entry of Order Authorizing Debtors to (I) Assume and Assign Certain Executory Contracts to Vogtle Owners, and (II) Assume and Amend Certain Executory Contracts [ECF No. 1142]