CELL C PROPRIETARY LIMITED, Debtor in a foreign proceeding.
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Hearing Date: October 31, 2017 at 10 a.m. Objection Deadline: October 24, 2107 at 4:00 p.m.
Francisco Vazquez NORTON ROSE FULBRIGHT US LLP 1301 Avenue of the Americas New York, NY 10019-6022 Telephone: (212) 408-5100 Facsimile: (212) 408-5369 [email protected] and Kristian W. Gluck (Admitted pro hac vice) NORTON ROSE FULBRIGHT US LLP 2200 Ross Avenue, Suite 3600 Dallas, TX 75201 Telephone: (214) 855-8000 Facsimile: (214) 855-8200 [email protected] COUNSEL FOR THE FOREIGN REPRESENTATIVES
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: CELL C PROPRIETARY LIMITED, Debtor in a foreign proceeding.
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Chapter 15 Case No. 17-11735
FOREIGN REPRESENTATIVES’ FINAL REPORT AND MOTION FOR AN ORDER, PURSUANT TO 11 U.S.C. §§ 350 AND 1517 AND FEDERAL RULE OF BANKRUPTCY PROCEDURE 5009 CLOSING THIS CHAPTER 15 CASE Paolo Pianezze (“Pianezze”), Robert Killigrew Sabine Pasley (“Pasley”), and Graham Mackinnon (“Mackinnon”), in their capacity as foreign representatives (the “Foreign Representatives”) of Cell C Proprietary Limited (“Cell C”), hereby respectfully submit this Final Report and Motion (the “Motion”), by and through their undersigned counsel, for entry of an order, pursuant to sections 350(a) and 1517(d) of title 11 of the United States Code (the “Bankruptcy Code”) and rule 5009 of the Federal Rules of Bankruptcy Procedure (the
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“Bankruptcy Rules”), closing the above-captioned Chapter 15 Case. In support thereof, the Foreign Representatives respectfully represent as follows: Statement of Jurisdiction, Venue, and Authority 1.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and
1334 and the Amended Standing Order of Reference, M-431 (S.D.N.Y. Jan. 31, 2012) (Preska, C.J.). This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(P). 2.
Venue is proper in this district pursuant to 28 U.S.C. § 1410(1) and (3).
3.
The statutory predicates for the relief requested herein are sections 350 and 1517
of the Bankruptcy Code. Final Report1 A.
Overview of Cell C and Events Leading to Debt Restructuring 4.
Cell C is based in the Republic of South Africa. It is the third largest of four
mobile network operators in South Africa. Cell C offers a comprehensive array of mobile voice and data communication services and a wide range of devices to its customers, which include individual consumers, businesses, and the South African government. 5.
Prior to the implementation of the debt restructuring under the Arrangement (as
defined below), (i) Cell C was 100% owned by 3C Telecommunications Proprietary Limited (“3C Telecommunications”), a South African company, and (ii) 3C Telecommunications was 75% owned by Oger Telecom Limited (“OTL”), a company registered in accordance with the 1
For ease of reference, the following section provides a general overview of Cell C and its operations and the Arrangement (as defined herein) and briefly describes the circumstances leading to Cell C pursuing the restructuring contemplated by the Arrangement in South Africa and the filing of the Chapter 15 Case. For a more complete description, the Court is respectfully referred to (i) the Petition for Recognition as Foreign Main Proceeding, or Alternatively as Foreign Nonmain Proceeding, Pursuant to Sections 1515 and 1517 of the United States Bankruptcy Code and Related Relief [Dkt. No. 7] (the “Petition for Recognition”), (ii) the Foreign Representatives’ Motion for an Order Recognizing and Granting Comity for Sanction Order of the South African Court [Dkt. No. 11] (the “Comity Motion”), and (iii) the Foreign Representatives’ Memorandum of Law in Support of Motion for an Order Recognizing and Granting Comity for Sanction Order of the South African Court [Dkt. No. 40] (the “Comity Memorandum”), each of which is hereby incorporated by reference as if fully set forth herein.
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laws of the Dubai International Financial Centre in the United Arab Emirates.2 This 75% beneficial interest was and continues to be held through (a) Lanun Securities S.A. (“Lanun”), a wholly-owned subsidiary of OTL that directly held and continues to hold 15% of 3C Telecommunications and (b) Oger Telecom (South Africa) Proprietary Limited (“OTSA”), a subsidiary of OTL that held and continues to hold 60% of 3C Telecommunications.3 The remaining 25% of 3C Telecommunications was and continues to be owned by CellSAf Proprietary Limited (“CellSAf”), a South African company. CellSAf is in turn owned by multiple South African entities and several empowerment partnerships. 6.
Cell C’s major creditors are China Development Bank Corporation (“CDB”), the
Industrial and Commercial Bank of China Limited (“ICBC”), Nedbank Limited (“Nedbank”), Development Bank of Southern Africa Limited (“DBSA”), and the “Compromise Creditors.” The Compromise Creditors were the holders of Euro 400,000,000 8.625% first priority senior secured notes due 2018 (the “Euro Notes”) issued by Cell C and identified with ISIN XS0223890251 and ISIN XS0223890418. 7.
After pursuing an aggressive pricing strategy against its competitors for a few
years, it became clear to Cell C in 2014 that additional equity would be required in the business. Cell C attempted to identify new sources for equity, either through an outright disposal of Cell C’s equity or through a combined transaction involving OTL and a new equity investor, but this process was ultimately unsuccessful.
2 3
Following the restructuring, 3C Telecommunications became the indirect owner of 30% of the equity in Cell C. Prior to the restructuring, OTSA was a wholly-owned subsidiary of OTL. Following the restructuring, Albanta Trading 109 Proprietary Limited became the owner of 49% of the equity in OTSA, with OTL owning the remaining 51% of the equity in OTSA. Lanun continues to be a wholly-owned subsidiary of OTL.
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On November 20, 2016, Cell C failed to make a capital payment due to CDB,
which was an event of default under the related facility agreement. This default resulted in cross defaults under other facilities with ICBC, Nedbank, and DBSA. On January 1, 2017, Cell C failed to make an interest payment due to the Compromise Creditors. Cell C then turned to the debt restructuring process provided for under South African law. B.
Section 155 of the Companies Act 9.
Section 155 of the South African Companies Act 71 of 2008 (the “Companies
Act”) provides for a process to approve an “arrangement” or “compromise” that may affect some or all of a company’s creditors. In a Section 155 proceeding, the “debtor” or “applicant” proposes an arrangement to its affected creditors, the creditors vote on the arrangement, and if the requisite votes are obtained, the debtor petitions the High Court of South Africa (the “South African Court”) for a “sanction order” approving, or “sanctioning,” the arrangement. 10.
On June 21, 2017, Cell C sent to its creditors a “Notice of the Compromise
Creditors Meeting,” providing notice to affected creditors of a “Compromise Creditors Meeting” pursuant to Section 155 of the Companies Act to approve an arrangement that Cell C negotiated with the Compromise Creditors (the “Arrangement”). The Arrangement provided for, among other things, the restructuring of the Compromise Creditors’ claims. 11.
On June 28, 2017, the requisite majorities of Compromise Creditors voted in
favor of the Arrangement. Thereafter, on July 18, 2017, the South African Court issued an order approving the Arrangement (the “Sanction Order”). See Notice of Filing of Sanction Order [Dkt. No. 31]. On the same day, a copy of the Sanction Order was filed with the South Africa Companies and Intellectual Property Commission (“CIPC”).
Upon the filing of the Sanction
Order with the CIPC, the Arrangement became “final and binding on all of the company’s
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creditors or all of members of the relevant class of creditors, as the case may be[.]” Companies Act § 155(8)(c). C.
The Chapter 15 Case
12.
On June 21, 2017, Cell C issued a board resolution appointing the Foreign
Representatives and authorizing them to file a chapter 15 case in the United States. 13.
On June 22, 2017, the Foreign Representatives commenced this Chapter 15 Case
by filing the Chapter 15 Petition for Recognition of a Foreign Proceeding [Dkt. No. 1]. On the same day, the Foreign Representatives filed, among other things, the Petition for Recognition, the Comity Motion, and the Foreign Representatives’ Emergency ex parte Application for Temporary Restraining Order and Relief Pursuant to Sections 105(a) and 1519 of the Bankruptcy Code [Dkt. No. 6] (the “Provisional Relief Application”). 14.
The Foreign Representatives commenced the Chapter 15 Case for the purpose of
obtaining the assistance of this Court to ensure that the Arrangement, as approved by and implemented through the South African Court, and the legal consequences of the Arrangement, are respected in the United States. 15.
On June 22, 2017, the Court entered the Order to Show Cause with Temporary
Restraining Order [Dkt. No. 15], pursuant to which the Court, among other things, scheduled a preliminary injunction hearing for July 6, 2017. 16.
On July 3, 2017, the Foreign Representatives filed the Declaration of Foreign
Representative in support of the Petition for Recognition and the Provisional Relief Application [Dkt. No. 21]. On July 6, 2017, the Court entered the Preliminary Injunction Order Pursuant to Sections 1519 and 105(a) of the Bankruptcy Code (the “Preliminary Injunction Order”) [Docket No. 24], pursuant to which the Court, among other things, scheduled (i) a hearing on the
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Petition for Recognition for July 14, 2017 (the “Recognition Hearing”), and (ii) a hearing on the Comity Motion for July 20, 2017 (the “Comity Hearing”). 17.
On July 12, 2017, the Foreign Representatives filed the Declaration of South
African Counsel for Foreign Representatives in support of the Petition for Recognition [Dkt. No. 27]. 18.
On July 14, 2017, the Court entered the Order Granting Petition for Recognition
as Foreign Main Proceeding, or Alternatively as Foreign Non-main Proceeding, Pursuant to Sections 1515 and 1517 of the United States Bankruptcy Code and Related Relief (the “Recognition Order”) [Dkt. No. 30]. 19.
On July 20, 2017, in support of the Comity Motion, the Foreign Representatives
filed (i) Declaration executed by Kristian Gluck [Dkt. No. 36], (ii) Declaration of South African Counsel for Foreign Representatives executed by Haroon Yusuf Laher [Dkt. No. 37], (iii) Declaration of Foreign Representative executed by Pianezze [Dkt. No. 38], (iv) Declaration executed by James Morrison [Dkt. No. 39], (v) the Comity Memorandum, (vi) Notice of Filing of Revised Proposed Order Granting Foreign Representatives’ Motion for an Order Recognizing and Granting Comity for Sanction Order of the South African Court [Dkt. No. 41], (vii) Notice of Filing of Supplement to Motion for an Order Recognizing and Granting Comity for Sanction Order of the South African Court [Dkt. No. 45], and (viii) Notice of Filing of Second Supplement to Motion for an Order Recognizing and Granting Comity for Sanction Order of the South African Court [Dkt. No. 49]. 20.
On the afternoon of July 20, 2017, the Court entered the Order Granting Foreign
Representatives’ Motion for an Order Recognizing and Granting Comity for Sanction Order of the South African Court (the “Comity Order”) [Dkt. No. 48]. The Comity Order provides that,
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subject to certain limited exceptions, the Sanction Order “is hereby recognized and given full force and effect in the United States, [and] is enforceable in accordance with its terms.” Thereafter, on July 27, 2017, the Court entered the Memorandum Opinion after Recognition of Foreign Main Proceeding Pending in the High Court of South Africa and Recognition and Enforcement of South African Scheme of Arrangement (the “Opinion”) [Dkt. No. 52]. D.
The Arrangement Has Been Fully Implemented
21.
Following entry of the Comity Order, Cell C took steps to implement the
Arrangement in accordance with the Sanction Order. On August 2, 2017, Cell C consummated the transactions set forth in the Arrangement.4 In particular, Cell C made the payments provided for under the Arrangement to the Compromise Creditors in exchange for, among other things, the cancellation of the Euro Notes. Consequently, Cell C has no further obligations to the Compromise Creditors under the Euro Notes that were restructured under the Arrangement.5 22.
The Arrangement and the transactions contemplated therein and in the Sanction
Order have been fully consummated.
There are no further steps to be taken under the
Arrangement or the Sanction Order. Moreover, there is nothing foreseeable on which the assistance of courts in the United States should be required in respect of the Arrangement or the Sanction Order. Accordingly, there is no longer a reason for this Chapter 15 Case to remain open. Relief Requested 23.
By this Motion, the Foreign Representative seeks entry of an order, substantially
in the form attached hereto as Exhibit A, closing this Case without prejudice to the right of the 4 5
Following implementation of the Arrangement, Cell C changed its name to “Cell C Limited” on August 7, 2017. As noted by the Court in the Opinion, Cell C has “liabilities to the Compromise Creditors under the Arrangement, including those representing payments in cash and pursuant to the New Cell C Bonds and SPV1 Bonds.”
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Foreign Representatives or Cell C to reopen this Case, pursuant to sections 350 and 1517(d) of the Bankruptcy Code and Bankruptcy Rule 5009(c). Basis for Relief 24.
Section 1517(d) of the Bankruptcy Code provides that “[a] case under … [Chapter
15] may be closed in the manner prescribed under section 350.” 11 U.S.C. §1517(d). Pursuant to section 350 of the Bankruptcy Code, a bankruptcy case may be closed “[a]fter an estate is fully administered.” 11 U.S.C. §350(a). 25.
An estate is not created under Chapter 15. See In re Fairfield Sentry Ltd., 448
B.R. 665, 683 (S.D.N.Y. 2011). Nevertheless, the intent of section 1517(d) is clear. A Chapter 15 case should be closed once there is no longer a need for ancillary relief or assistance under Chapter 15. 26.
Here, there are no outstanding motions, contested matters, or adversary
proceedings and the transactions contemplated by the Arrangement and the Sanction Order have been consummated leaving Cell C with no significant issues related to the implementation of the Arrangement in the United States.
The Foreign Representatives do not need any further
assistance from this Court in connection with the Arrangement or the Sanction Order. Consequently, the Foreign Representatives have determined that this Chapter 15 Case has been fully administered and should be closed. 27.
Bankruptcy Rule 5009(c) provides that a foreign representative “shall file a final
report when the purpose of the representative’s appearance in the court is completed. The report shall describe the nature and results of the representative’s activities in the court.” Fed. R. Bankr. P. 5009(c). In accordance with Bankruptcy Rule 5009(c), this Motion contains a Final Report describing the Foreign Representatives’ activities in this Chapter 15 Case.
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Under Bankruptcy Rule 5009(c), there is a presumption that a Chapter 15 case has
been fully administered if no objection is filed to the Final Report within 30 days. The Foreign Representatives anticipate that no objection will be filed. Further, even in the unlikely event that an objection is filed, the Foreign Representatives respectfully submit that the facts set forth in this Motion demonstrate that this Chapter 15 Case has been fully administered. Notice 29.
Notice of this Motion has been provided to (i) the Foreign Representatives, (ii)
Cell C, (iii) The Bank of New York Mellon, in its capacity as trustee for the Euro Notes, (iv) the Ad Hoc Committee, a group that represented a majority of the holders of the Euro Notes, (v) Saudi Oger Limited, the holder of approximately twenty percent (20%) of the Euro Notes, (vi) CDB, (vii) ICBC, (viii) Nedbank, (ix) DBSA, (x) the Office of the United States Trustee, (xi) CellSaf, (xii) the IRS, (xiii) the SEC, (xiv) the South African Companies and Intellectual Property Commission, (xv) the US Attorney for the Southern District of NY, (xvi) Murat Korkmaz, (xvii) Ziad Smaili, and (xviii) BNY Mellon Corporate Trustee Services Limited, in its capacity as trustee of the New Cell C Bonds (ISIN: XS1634003831) and the SPV1 Bonds (ISIN: XS1634002437) issued pursuant to the Arrangement. Conclusion WHEREFORE, the Foreign Representatives respectfully request that this Court (i) close the above-captioned Chapter 15 Case, (ii) enter the proposed Order Closing Chapter 15 Case, substantially in the form attached hereto as Exhibit A, and (iii) grant such other relief as this Court may deem just and proper.
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Respectfully submitted, NORTON ROSE FULBRIGHT US LLP By: /s/ Kristian W. Gluck Kristian W. Gluck (Admitted pro hac vice) 2200 Ross Avenue, Suite 3600 Dallas, TX 75201 Telephone: (214) 855-8000 Facsimile: (214) 855-8200 [email protected] -andFrancisco Vazquez 1301 Avenue of the Americas New York, NY 10019-6022 Telephone: (212) 408-5100 Facsimile: (212) 541-5369 [email protected] COUNSEL FOR THE FOREIGN REPRESENTATIVES
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EXHIBIT A Proposed Order
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UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: CELL C PROPRIETARY LIMITED, Debtor in a foreign proceeding.
) ) ) ) ) )
Chapter 15 Case No. 17-11735
ORDER CLOSING CHAPTER 15 CASE Upon the Final Report and Motion (the “Motion”) of Paolo Pianezze, Robert Killigrew Sabine Pasley, and Graham Mackinnon, in their capacity as foreign representatives ( collectively, the “Foreign Representatives”) of Cell C Proprietary Limited (“Cell C”), seeking entry of an order, pursuant to sections 350(a) and 1517(d) of title 11 of the United States Code (the “Bankruptcy Code”) and rule 5009 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), closing the above-captioned Chapter 15 Case; and due and proper notice of the Motion having been given, which notice was adequate under Bankruptcy Rule 5009 and for all purposes such that no other or further notice thereof need be given; and any objections to the Motion that have not been withdrawn or resolved having been overruled; and all interested parties having had an opportunity to be heard; and after due deliberation and sufficient cause appearing therefor, it is hereby ORDERED, that the above-captioned Chapter 15 Case is closed pursuant to sections 350(a) and 1517(d) of the Bankruptcy Code, without prejudice to the rights of the Foreign Representative or Cell C to seek an order reopening this Chapter 15 Case under section 350(b) of the Bankruptcy Code; and it is further
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ORDERED, that, notwithstanding the entry of this Order, the Order Granting Foreign Representatives’ Motion for an Order Recognizing and Granting Comity for Sanction Order of the South African Court [Dkt. No. 48] shall remain in full force and effect; and it is further ORDERED, that this Court shall retain jurisdiction with respect to its prior orders in this Case, the enforcement, amendment, or implementation of this Order or requests for any additional relief in or related to this Case. Dated: New York, New York September __, 2017
_____________________________________ UNITED STATES BANKRUPTCY JUDGE
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Hearing Date: October 31, 2017 at 10 a.m. Objection Deadline: October 24, 2107 at 4:00 p.m.
Francisco Vazquez NORTON ROSE FULBRIGHT US LLP 1301 Avenue of the Americas New York, NY 10019-6022 Telephone: (212) 408-5100 Facsimile: (212) 408-5369 [email protected] and Kristian W. Gluck (Admitted pro hac vice) NORTON ROSE FULBRIGHT US LLP 2200 Ross Avenue, Suite 3600 Dallas, TX 75201 Telephone: (214) 855-8000 Facsimile: (214) 855-8200 [email protected] COUNSEL FOR THE FOREIGN REPRESENTATIVES UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re:
CELL C PROPRIETARY LIMITED,
Debtor in a foreign proceeding.
) ) ) ) ) ) ) ) )
Chapter 15 Case No. 17-11735
NOTICE OF HEARING OF FOREIGN REPRESENTATIVES’ FINAL REPORT AND MOTION FOR AN ORDER, PURSUANT TO 11 U.S.C. §§ 350 AND 1517 AND FEDERAL RULE OF BANKRUPTCY PROCEDURE 5009 CLOSING THIS CHAPTER 15 CASE PLEASE TAKE NOTICE that upon the Foreign Representatives’ Final Report and Motion for an Order, Pursuant to 11 U.S.C. §§ 350 and 1517 and Federal Rule of Bankruptcy Procedure 5009, Closing this Chapter 15 Case, dated September 20, 2017 (the “Final Report
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and Motion”), a hearing (the "Hearing") will be held before the Honorable Martin Glenn, United States Bankruptcy Judge, in Room 523 of the United States Bankruptcy Court for the Southern District of New York, Alexander Hamilton Customs House, One Bowling Green, New York, New York, on October 31, 2017 at 10:00 a.m. (prevailing Eastern Time), or as soon thereafter as counsel may be heard; PLEASE TAKE FURTHER NOTICE that any responses or objections to the Final Report and Motion: (a) shall be in writing; (b) shall comply with the Federal Rules of Bankruptcy Procedure and the Local Bankruptcy Rules; (c) shall set forth the name of the respondent, the nature and amount of claims or interests held or asserted by the respondent in the above-captioned case, the basis for the response or objection, and the specific grounds therefor; (d) shall be filed with the Bankruptcy Court electronically in accordance with General Order M-399 (which can be found at www.nysb.uscourts.gov) by registered users of the Bankruptcy Court's case filing system and, by all other parties in interest, on a CD or other electronic media, preferably in Portable Document Format (PDF), WordPerfect, or any other Windows-based word processing format (with a hard copy delivered directly to the chambers of Judge Glenn), and (e) shall be served on Norton Rose Fulbright US LLP, 2200 Ross Avenue, Suite 3600, Dallas, Texas 75201 (Attn: Kristian W. Gluck, Esq.), and 1301 Avenue of the Americas, New York, New York 10019-6022 (Attn: Francisco Vazquez, Esq.) so that they are received no later than 4:00 p.m. (prevailing Eastern Time) on October 24, 2017; PLEASE TAKE FURTHER NOTICE that all parties-in-interest opposed to the Final Report and Motion must appear at the Hearing at the time and place set forth above; PLEASE TAKE FURTHER NOTICE that the Hearing may be adjourned from time to time without further notice other an announcement in open court at the Hearing or the
2
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adjourned date or dates of the Hearing and filing of a notice on the Court's electronic docket of the Chapter 15 case; and PLEASE TAKE FURTHER NOTICE that if no response or objection is timely filed and served as provided above, the Court may grant the relief requested by the Foreign Representatives without further notice. Dated: Dallas, Texas September 20, 2017
Respectfully submitted, NORTON ROSE FULBRIGHT US LLP By: /s/ Kristian W. Gluck Kristian W. Gluck (Admitted pro hac vice) 2200 Ross Avenue, Suite 3600 Dallas, TX 75201 Telephone: (214) 855-8000 Facsimile: (214) 855-8200 [email protected] -andFrancisco Vazquez 1301 Avenue of the Americas New York, NY 10019-6022 Telephone: (212) 408-5100 Facsimile: (212) 541-5369 [email protected] COUNSEL FOR THE FOREIGN REPRESENTATIVES
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Hearing Date: October 31, 2017 at 10 a.m. Objection Deadline: October 24, 2107 at 4:00 p.m.
Francisco Vazquez NORTON ROSE FULBRIGHT US LLP 1301 Avenue of the Americas New York, NY 10019-6022 Telephone: (212) 408-5100 Facsimile: (212) 408-5369 [email protected] and Kristian W. Gluck (Admitted pro hac vice) NORTON ROSE FULBRIGHT US LLP 2200 Ross Avenue, Suite 3600 Dallas, TX 75201 Telephone: (214) 855-8000 Facsimile: (214) 855-8200 [email protected] COUNSEL FOR THE FOREIGN REPRESENTATIVES
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: CELL C PROPRIETARY LIMITED, Debtor in a foreign proceeding.
) ) ) ) ) )
Chapter 15 Case No. 17-11735
FOREIGN REPRESENTATIVES’ FINAL REPORT AND MOTION FOR AN ORDER, PURSUANT TO 11 U.S.C. §§ 350 AND 1517 AND FEDERAL RULE OF BANKRUPTCY PROCEDURE 5009 CLOSING THIS CHAPTER 15 CASE Paolo Pianezze (“Pianezze”), Robert Killigrew Sabine Pasley (“Pasley”), and Graham Mackinnon (“Mackinnon”), in their capacity as foreign representatives (the “Foreign Representatives”) of Cell C Proprietary Limited (“Cell C”), hereby respectfully submit this Final Report and Motion (the “Motion”), by and through their undersigned counsel, for entry of an order, pursuant to sections 350(a) and 1517(d) of title 11 of the United States Code (the “Bankruptcy Code”) and rule 5009 of the Federal Rules of Bankruptcy Procedure (the
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“Bankruptcy Rules”), closing the above-captioned Chapter 15 Case. In support thereof, the Foreign Representatives respectfully represent as follows: Statement of Jurisdiction, Venue, and Authority 1.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and
1334 and the Amended Standing Order of Reference, M-431 (S.D.N.Y. Jan. 31, 2012) (Preska, C.J.). This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(P). 2.
Venue is proper in this district pursuant to 28 U.S.C. § 1410(1) and (3).
3.
The statutory predicates for the relief requested herein are sections 350 and 1517
of the Bankruptcy Code. Final Report1 A.
Overview of Cell C and Events Leading to Debt Restructuring 4.
Cell C is based in the Republic of South Africa. It is the third largest of four
mobile network operators in South Africa. Cell C offers a comprehensive array of mobile voice and data communication services and a wide range of devices to its customers, which include individual consumers, businesses, and the South African government. 5.
Prior to the implementation of the debt restructuring under the Arrangement (as
defined below), (i) Cell C was 100% owned by 3C Telecommunications Proprietary Limited (“3C Telecommunications”), a South African company, and (ii) 3C Telecommunications was 75% owned by Oger Telecom Limited (“OTL”), a company registered in accordance with the 1
For ease of reference, the following section provides a general overview of Cell C and its operations and the Arrangement (as defined herein) and briefly describes the circumstances leading to Cell C pursuing the restructuring contemplated by the Arrangement in South Africa and the filing of the Chapter 15 Case. For a more complete description, the Court is respectfully referred to (i) the Petition for Recognition as Foreign Main Proceeding, or Alternatively as Foreign Nonmain Proceeding, Pursuant to Sections 1515 and 1517 of the United States Bankruptcy Code and Related Relief [Dkt. No. 7] (the “Petition for Recognition”), (ii) the Foreign Representatives’ Motion for an Order Recognizing and Granting Comity for Sanction Order of the South African Court [Dkt. No. 11] (the “Comity Motion”), and (iii) the Foreign Representatives’ Memorandum of Law in Support of Motion for an Order Recognizing and Granting Comity for Sanction Order of the South African Court [Dkt. No. 40] (the “Comity Memorandum”), each of which is hereby incorporated by reference as if fully set forth herein.
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laws of the Dubai International Financial Centre in the United Arab Emirates.2 This 75% beneficial interest was and continues to be held through (a) Lanun Securities S.A. (“Lanun”), a wholly-owned subsidiary of OTL that directly held and continues to hold 15% of 3C Telecommunications and (b) Oger Telecom (South Africa) Proprietary Limited (“OTSA”), a subsidiary of OTL that held and continues to hold 60% of 3C Telecommunications.3 The remaining 25% of 3C Telecommunications was and continues to be owned by CellSAf Proprietary Limited (“CellSAf”), a South African company. CellSAf is in turn owned by multiple South African entities and several empowerment partnerships. 6.
Cell C’s major creditors are China Development Bank Corporation (“CDB”), the
Industrial and Commercial Bank of China Limited (“ICBC”), Nedbank Limited (“Nedbank”), Development Bank of Southern Africa Limited (“DBSA”), and the “Compromise Creditors.” The Compromise Creditors were the holders of Euro 400,000,000 8.625% first priority senior secured notes due 2018 (the “Euro Notes”) issued by Cell C and identified with ISIN XS0223890251 and ISIN XS0223890418. 7.
After pursuing an aggressive pricing strategy against its competitors for a few
years, it became clear to Cell C in 2014 that additional equity would be required in the business. Cell C attempted to identify new sources for equity, either through an outright disposal of Cell C’s equity or through a combined transaction involving OTL and a new equity investor, but this process was ultimately unsuccessful.
2 3
Following the restructuring, 3C Telecommunications became the indirect owner of 30% of the equity in Cell C. Prior to the restructuring, OTSA was a wholly-owned subsidiary of OTL. Following the restructuring, Albanta Trading 109 Proprietary Limited became the owner of 49% of the equity in OTSA, with OTL owning the remaining 51% of the equity in OTSA. Lanun continues to be a wholly-owned subsidiary of OTL.
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On November 20, 2016, Cell C failed to make a capital payment due to CDB,
which was an event of default under the related facility agreement. This default resulted in cross defaults under other facilities with ICBC, Nedbank, and DBSA. On January 1, 2017, Cell C failed to make an interest payment due to the Compromise Creditors. Cell C then turned to the debt restructuring process provided for under South African law. B.
Section 155 of the Companies Act 9.
Section 155 of the South African Companies Act 71 of 2008 (the “Companies
Act”) provides for a process to approve an “arrangement” or “compromise” that may affect some or all of a company’s creditors. In a Section 155 proceeding, the “debtor” or “applicant” proposes an arrangement to its affected creditors, the creditors vote on the arrangement, and if the requisite votes are obtained, the debtor petitions the High Court of South Africa (the “South African Court”) for a “sanction order” approving, or “sanctioning,” the arrangement. 10.
On June 21, 2017, Cell C sent to its creditors a “Notice of the Compromise
Creditors Meeting,” providing notice to affected creditors of a “Compromise Creditors Meeting” pursuant to Section 155 of the Companies Act to approve an arrangement that Cell C negotiated with the Compromise Creditors (the “Arrangement”). The Arrangement provided for, among other things, the restructuring of the Compromise Creditors’ claims. 11.
On June 28, 2017, the requisite majorities of Compromise Creditors voted in
favor of the Arrangement. Thereafter, on July 18, 2017, the South African Court issued an order approving the Arrangement (the “Sanction Order”). See Notice of Filing of Sanction Order [Dkt. No. 31]. On the same day, a copy of the Sanction Order was filed with the South Africa Companies and Intellectual Property Commission (“CIPC”).
Upon the filing of the Sanction
Order with the CIPC, the Arrangement became “final and binding on all of the company’s
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creditors or all of members of the relevant class of creditors, as the case may be[.]” Companies Act § 155(8)(c). C.
The Chapter 15 Case
12.
On June 21, 2017, Cell C issued a board resolution appointing the Foreign
Representatives and authorizing them to file a chapter 15 case in the United States. 13.
On June 22, 2017, the Foreign Representatives commenced this Chapter 15 Case
by filing the Chapter 15 Petition for Recognition of a Foreign Proceeding [Dkt. No. 1]. On the same day, the Foreign Representatives filed, among other things, the Petition for Recognition, the Comity Motion, and the Foreign Representatives’ Emergency ex parte Application for Temporary Restraining Order and Relief Pursuant to Sections 105(a) and 1519 of the Bankruptcy Code [Dkt. No. 6] (the “Provisional Relief Application”). 14.
The Foreign Representatives commenced the Chapter 15 Case for the purpose of
obtaining the assistance of this Court to ensure that the Arrangement, as approved by and implemented through the South African Court, and the legal consequences of the Arrangement, are respected in the United States. 15.
On June 22, 2017, the Court entered the Order to Show Cause with Temporary
Restraining Order [Dkt. No. 15], pursuant to which the Court, among other things, scheduled a preliminary injunction hearing for July 6, 2017. 16.
On July 3, 2017, the Foreign Representatives filed the Declaration of Foreign
Representative in support of the Petition for Recognition and the Provisional Relief Application [Dkt. No. 21]. On July 6, 2017, the Court entered the Preliminary Injunction Order Pursuant to Sections 1519 and 105(a) of the Bankruptcy Code (the “Preliminary Injunction Order”) [Docket No. 24], pursuant to which the Court, among other things, scheduled (i) a hearing on the
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Petition for Recognition for July 14, 2017 (the “Recognition Hearing”), and (ii) a hearing on the Comity Motion for July 20, 2017 (the “Comity Hearing”). 17.
On July 12, 2017, the Foreign Representatives filed the Declaration of South
African Counsel for Foreign Representatives in support of the Petition for Recognition [Dkt. No. 27]. 18.
On July 14, 2017, the Court entered the Order Granting Petition for Recognition
as Foreign Main Proceeding, or Alternatively as Foreign Non-main Proceeding, Pursuant to Sections 1515 and 1517 of the United States Bankruptcy Code and Related Relief (the “Recognition Order”) [Dkt. No. 30]. 19.
On July 20, 2017, in support of the Comity Motion, the Foreign Representatives
filed (i) Declaration executed by Kristian Gluck [Dkt. No. 36], (ii) Declaration of South African Counsel for Foreign Representatives executed by Haroon Yusuf Laher [Dkt. No. 37], (iii) Declaration of Foreign Representative executed by Pianezze [Dkt. No. 38], (iv) Declaration executed by James Morrison [Dkt. No. 39], (v) the Comity Memorandum, (vi) Notice of Filing of Revised Proposed Order Granting Foreign Representatives’ Motion for an Order Recognizing and Granting Comity for Sanction Order of the South African Court [Dkt. No. 41], (vii) Notice of Filing of Supplement to Motion for an Order Recognizing and Granting Comity for Sanction Order of the South African Court [Dkt. No. 45], and (viii) Notice of Filing of Second Supplement to Motion for an Order Recognizing and Granting Comity for Sanction Order of the South African Court [Dkt. No. 49]. 20.
On the afternoon of July 20, 2017, the Court entered the Order Granting Foreign
Representatives’ Motion for an Order Recognizing and Granting Comity for Sanction Order of the South African Court (the “Comity Order”) [Dkt. No. 48]. The Comity Order provides that,
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subject to certain limited exceptions, the Sanction Order “is hereby recognized and given full force and effect in the United States, [and] is enforceable in accordance with its terms.” Thereafter, on July 27, 2017, the Court entered the Memorandum Opinion after Recognition of Foreign Main Proceeding Pending in the High Court of South Africa and Recognition and Enforcement of South African Scheme of Arrangement (the “Opinion”) [Dkt. No. 52]. D.
The Arrangement Has Been Fully Implemented
21.
Following entry of the Comity Order, Cell C took steps to implement the
Arrangement in accordance with the Sanction Order. On August 2, 2017, Cell C consummated the transactions set forth in the Arrangement.4 In particular, Cell C made the payments provided for under the Arrangement to the Compromise Creditors in exchange for, among other things, the cancellation of the Euro Notes. Consequently, Cell C has no further obligations to the Compromise Creditors under the Euro Notes that were restructured under the Arrangement.5 22.
The Arrangement and the transactions contemplated therein and in the Sanction
Order have been fully consummated.
There are no further steps to be taken under the
Arrangement or the Sanction Order. Moreover, there is nothing foreseeable on which the assistance of courts in the United States should be required in respect of the Arrangement or the Sanction Order. Accordingly, there is no longer a reason for this Chapter 15 Case to remain open. Relief Requested 23.
By this Motion, the Foreign Representative seeks entry of an order, substantially
in the form attached hereto as Exhibit A, closing this Case without prejudice to the right of the 4 5
Following implementation of the Arrangement, Cell C changed its name to “Cell C Limited” on August 7, 2017. As noted by the Court in the Opinion, Cell C has “liabilities to the Compromise Creditors under the Arrangement, including those representing payments in cash and pursuant to the New Cell C Bonds and SPV1 Bonds.”
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Foreign Representatives or Cell C to reopen this Case, pursuant to sections 350 and 1517(d) of the Bankruptcy Code and Bankruptcy Rule 5009(c). Basis for Relief 24.
Section 1517(d) of the Bankruptcy Code provides that “[a] case under … [Chapter
15] may be closed in the manner prescribed under section 350.” 11 U.S.C. §1517(d). Pursuant to section 350 of the Bankruptcy Code, a bankruptcy case may be closed “[a]fter an estate is fully administered.” 11 U.S.C. §350(a). 25.
An estate is not created under Chapter 15. See In re Fairfield Sentry Ltd., 448
B.R. 665, 683 (S.D.N.Y. 2011). Nevertheless, the intent of section 1517(d) is clear. A Chapter 15 case should be closed once there is no longer a need for ancillary relief or assistance under Chapter 15. 26.
Here, there are no outstanding motions, contested matters, or adversary
proceedings and the transactions contemplated by the Arrangement and the Sanction Order have been consummated leaving Cell C with no significant issues related to the implementation of the Arrangement in the United States.
The Foreign Representatives do not need any further
assistance from this Court in connection with the Arrangement or the Sanction Order. Consequently, the Foreign Representatives have determined that this Chapter 15 Case has been fully administered and should be closed. 27.
Bankruptcy Rule 5009(c) provides that a foreign representative “shall file a final
report when the purpose of the representative’s appearance in the court is completed. The report shall describe the nature and results of the representative’s activities in the court.” Fed. R. Bankr. P. 5009(c). In accordance with Bankruptcy Rule 5009(c), this Motion contains a Final Report describing the Foreign Representatives’ activities in this Chapter 15 Case.
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28.
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Under Bankruptcy Rule 5009(c), there is a presumption that a Chapter 15 case has
been fully administered if no objection is filed to the Final Report within 30 days. The Foreign Representatives anticipate that no objection will be filed. Further, even in the unlikely event that an objection is filed, the Foreign Representatives respectfully submit that the facts set forth in this Motion demonstrate that this Chapter 15 Case has been fully administered. Notice 29.
Notice of this Motion has been provided to (i) the Foreign Representatives, (ii)
Cell C, (iii) The Bank of New York Mellon, in its capacity as trustee for the Euro Notes, (iv) the Ad Hoc Committee, a group that represented a majority of the holders of the Euro Notes, (v) Saudi Oger Limited, the holder of approximately twenty percent (20%) of the Euro Notes, (vi) CDB, (vii) ICBC, (viii) Nedbank, (ix) DBSA, (x) the Office of the United States Trustee, (xi) CellSaf, (xii) the IRS, (xiii) the SEC, (xiv) the South African Companies and Intellectual Property Commission, (xv) the US Attorney for the Southern District of NY, (xvi) Murat Korkmaz, (xvii) Ziad Smaili, and (xviii) BNY Mellon Corporate Trustee Services Limited, in its capacity as trustee of the New Cell C Bonds (ISIN: XS1634003831) and the SPV1 Bonds (ISIN: XS1634002437) issued pursuant to the Arrangement. Conclusion WHEREFORE, the Foreign Representatives respectfully request that this Court (i) close the above-captioned Chapter 15 Case, (ii) enter the proposed Order Closing Chapter 15 Case, substantially in the form attached hereto as Exhibit A, and (iii) grant such other relief as this Court may deem just and proper.
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Dated: Dallas, Texas September 20, 2017
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Respectfully submitted, NORTON ROSE FULBRIGHT US LLP By: /s/ Kristian W. Gluck Kristian W. Gluck (Admitted pro hac vice) 2200 Ross Avenue, Suite 3600 Dallas, TX 75201 Telephone: (214) 855-8000 Facsimile: (214) 855-8200 [email protected] -andFrancisco Vazquez 1301 Avenue of the Americas New York, NY 10019-6022 Telephone: (212) 408-5100 Facsimile: (212) 541-5369 [email protected] COUNSEL FOR THE FOREIGN REPRESENTATIVES
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EXHIBIT A Proposed Order
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UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: CELL C PROPRIETARY LIMITED, Debtor in a foreign proceeding.
) ) ) ) ) )
Chapter 15 Case No. 17-11735
ORDER CLOSING CHAPTER 15 CASE Upon the Final Report and Motion (the “Motion”) of Paolo Pianezze, Robert Killigrew Sabine Pasley, and Graham Mackinnon, in their capacity as foreign representatives ( collectively, the “Foreign Representatives”) of Cell C Proprietary Limited (“Cell C”), seeking entry of an order, pursuant to sections 350(a) and 1517(d) of title 11 of the United States Code (the “Bankruptcy Code”) and rule 5009 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), closing the above-captioned Chapter 15 Case; and due and proper notice of the Motion having been given, which notice was adequate under Bankruptcy Rule 5009 and for all purposes such that no other or further notice thereof need be given; and any objections to the Motion that have not been withdrawn or resolved having been overruled; and all interested parties having had an opportunity to be heard; and after due deliberation and sufficient cause appearing therefor, it is hereby ORDERED, that the above-captioned Chapter 15 Case is closed pursuant to sections 350(a) and 1517(d) of the Bankruptcy Code, without prejudice to the rights of the Foreign Representative or Cell C to seek an order reopening this Chapter 15 Case under section 350(b) of the Bankruptcy Code; and it is further
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ORDERED, that, notwithstanding the entry of this Order, the Order Granting Foreign Representatives’ Motion for an Order Recognizing and Granting Comity for Sanction Order of the South African Court [Dkt. No. 48] shall remain in full force and effect; and it is further ORDERED, that this Court shall retain jurisdiction with respect to its prior orders in this Case, the enforcement, amendment, or implementation of this Order or requests for any additional relief in or related to this Case. Dated: New York, New York September __, 2017
_____________________________________ UNITED STATES BANKRUPTCY JUDGE
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Hearing Date: October 31, 2017 at 10 a.m. Objection Deadline: October 24, 2107 at 4:00 p.m.
Francisco Vazquez NORTON ROSE FULBRIGHT US LLP 1301 Avenue of the Americas New York, NY 10019-6022 Telephone: (212) 408-5100 Facsimile: (212) 408-5369 [email protected] and Kristian W. Gluck (Admitted pro hac vice) NORTON ROSE FULBRIGHT US LLP 2200 Ross Avenue, Suite 3600 Dallas, TX 75201 Telephone: (214) 855-8000 Facsimile: (214) 855-8200 [email protected] COUNSEL FOR THE FOREIGN REPRESENTATIVES UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re:
CELL C PROPRIETARY LIMITED,
Debtor in a foreign proceeding.
) ) ) ) ) ) ) ) )
Chapter 15 Case No. 17-11735
NOTICE OF HEARING OF FOREIGN REPRESENTATIVES’ FINAL REPORT AND MOTION FOR AN ORDER, PURSUANT TO 11 U.S.C. §§ 350 AND 1517 AND FEDERAL RULE OF BANKRUPTCY PROCEDURE 5009 CLOSING THIS CHAPTER 15 CASE PLEASE TAKE NOTICE that upon the Foreign Representatives’ Final Report and Motion for an Order, Pursuant to 11 U.S.C. §§ 350 and 1517 and Federal Rule of Bankruptcy Procedure 5009, Closing this Chapter 15 Case, dated September 20, 2017 (the “Final Report
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and Motion”), a hearing (the "Hearing") will be held before the Honorable Martin Glenn, United States Bankruptcy Judge, in Room 523 of the United States Bankruptcy Court for the Southern District of New York, Alexander Hamilton Customs House, One Bowling Green, New York, New York, on October 31, 2017 at 10:00 a.m. (prevailing Eastern Time), or as soon thereafter as counsel may be heard; PLEASE TAKE FURTHER NOTICE that any responses or objections to the Final Report and Motion: (a) shall be in writing; (b) shall comply with the Federal Rules of Bankruptcy Procedure and the Local Bankruptcy Rules; (c) shall set forth the name of the respondent, the nature and amount of claims or interests held or asserted by the respondent in the above-captioned case, the basis for the response or objection, and the specific grounds therefor; (d) shall be filed with the Bankruptcy Court electronically in accordance with General Order M-399 (which can be found at www.nysb.uscourts.gov) by registered users of the Bankruptcy Court's case filing system and, by all other parties in interest, on a CD or other electronic media, preferably in Portable Document Format (PDF), WordPerfect, or any other Windows-based word processing format (with a hard copy delivered directly to the chambers of Judge Glenn), and (e) shall be served on Norton Rose Fulbright US LLP, 2200 Ross Avenue, Suite 3600, Dallas, Texas 75201 (Attn: Kristian W. Gluck, Esq.), and 1301 Avenue of the Americas, New York, New York 10019-6022 (Attn: Francisco Vazquez, Esq.) so that they are received no later than 4:00 p.m. (prevailing Eastern Time) on October 24, 2017; PLEASE TAKE FURTHER NOTICE that all parties-in-interest opposed to the Final Report and Motion must appear at the Hearing at the time and place set forth above; PLEASE TAKE FURTHER NOTICE that the Hearing may be adjourned from time to time without further notice other an announcement in open court at the Hearing or the
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adjourned date or dates of the Hearing and filing of a notice on the Court's electronic docket of the Chapter 15 case; and PLEASE TAKE FURTHER NOTICE that if no response or objection is timely filed and served as provided above, the Court may grant the relief requested by the Foreign Representatives without further notice. Dated: Dallas, Texas September 20, 2017
Respectfully submitted, NORTON ROSE FULBRIGHT US LLP By: /s/ Kristian W. Gluck Kristian W. Gluck (Admitted pro hac vice) 2200 Ross Avenue, Suite 3600 Dallas, TX 75201 Telephone: (214) 855-8000 Facsimile: (214) 855-8200 [email protected] -andFrancisco Vazquez 1301 Avenue of the Americas New York, NY 10019-6022 Telephone: (212) 408-5100 Facsimile: (212) 541-5369 [email protected] COUNSEL FOR THE FOREIGN REPRESENTATIVES
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