MARTIN GLENN, UNITED STATES BANKRUPTCY JUDGE.
U.S. Steel Canada Inc. ("USSC") filed this chapter 15 case on June 2, 2017 (the "Petition Date"), seeking recognition in this Court of its Canadian CCAA Proceeding as a foreign main proceeding, and seeking recognition and enforcement in the United States of the Sanction Order, the Plan, and related orders, approved by the Canadian Court (all defined below). No objections were filed in this Court to any of the requested relief. Following a hearing on June 29, 2017, the Court entered an order granting all of the requested relief. (ECF Doc. # 12.) This Opinion explains the basis for the Court's ruling.
The relevant pleadings in this Court include the Verified Petition for (I) Recognition of Foreign Main Proceeding, (II) Recognition of Foreign Representative,
USSC is wholly and indirectly owned by United States Steel Corporation ("U.S. Steel"), an integrated steel producer organized under Delaware law and headquartered in Pittsburgh, Pennsylvania. (Aziz Decl. ¶ 6.) U.S. Steel is among the largest producers of steel in North America and contributes significantly to the global steel market. (Id.) USSC was acquired by U.S. Steel in October 2007 (the "Acquisition") and serves as U.S. Steel's Canadian subsidiary. (Id.) USSC principally operates from its Lake Erie Works facility (the "Lake Erie Facility") and Hamilton Works facility (the "Hamilton Facility"). (Id.)
The Lake Erie Facility is situated along the shores of Lake Erie near Nanticoke, Ontario on a 6,600-acre industrial parcel. (Id. ¶ 7.) The Lake Erie facility carries out a number of processes, including: (i) the baking of coal in coke ovens in order to convert it to coke ("coke making"); (ii) combining the coke with iron ore and limestone in a blast furnace ("iron making"); (iii) combining the iron with scrap metal and injecting it with oxygen to form liquid steel, which is solidified into slabs ("steel making"); and (iv) the hot rolling of steel slabs into sheets, then into coils ("finishing"). (Id.) USSC sells its products at various stages of finish throughout the production process. (Id. ¶ 8.) A great number of hot rolled coils, however, are shipped to the Hamilton Facility to undergo further finishing before they are ready for sale. (Id.)
The Hamilton Facility is located along the Hamilton Harbor and is approximately 810 acres in size. (Id. ¶ 9.) The Hamilton Facility's operations consist of coke ovens and finishing lines, including a cold reduction mill (which forms hot rolled steel into thinner gauges of steel for end customer use, i.e., "cold-rolled steel") and two galvanizing lines (which add zinc to the cold-rolled steel). (Id. ¶ 10.) Like the Lake Erie Facility, the Hamilton Facility's products fall into different stages of finish depending on the purpose for which those products will be used. (Id. ¶ 11.)
Shortly after the Acquisition, the 2008 financial crisis hit. (Id. ¶ 16.) USSC's financial stability and the stability of the steel market in general were compromised. (Id.) Additionally, the reduction of manufacturing
As of the Filing Date, USSC's outstanding funded indebtedness under the Amended Revolver Loan, the Term Loan Agreement, and the Province Loan (all defined below) totaled approximately CAD $2.0 billion and approximately USD $193.1 million. (Id. ¶ 12.)
On May 11, 2010, U.S. Steel Holdings, Inc. ("USS Holdings"), a subsidiary of U.S. Steel, and USSC, entered into a USD $600 million revolving loan facility (the "Amended Revolver Loan") that matures on May 11, 2025. (Id. ¶ 13.) As of the Filing Date, USSC owed USD $193.1 million under the Amended Revolver Loan, including accrued and unpaid interest. (Id.)
On October 29, 2007, 1344972 Alberta ULC (a wholly-owned subsidiary of U.S. Steel that merged with a predecessor of USSC in December 2007) and U.S. Steel Canada Limited Partnership LP ("USSC LP") (the direct parent of USSC) entered into a CAD $1.5 billion unsecured loan (the "Term Loan Agreement") that matures on October 31, 2037. (Id. ¶ 14.) The outstanding debt under the Term Loan Agreement was CAD $1.85 billion plus accrued and unpaid interest as of the Filing Date. (Id.)
On March 31, 2006, the Province of Ontario made a loan to USSC (the "Province Loan Agreement") that is due on December 31, 2015 (the "Province Loan"). (Id. ¶ 15.) The Province Loan bears interest at 1% per annum, payable semi-annually. (Id.) The outstanding balance on the Province Loan, including accrued and unpaid interest, was approximately CAD $150.7 million on the Filing Date.
USSC filed the CCAA Proceeding, seeking protection by the Canadian Court pursuant to the CCAA. (Id. ¶ 20.) On September 16, 2014, the Canadian Court granted the relief requested and entered an order appointing Ernst & Young Inc. as monitor of USSC in the CCAA Proceeding (the "Monitor"). (Id.) The Debtor also retained Rothschild Inc. to advise USSC through the restructuring process. (Id.)
On October 8, 2014, the Canadian Court approved debtor-in-possession ("DIP") financing for USSC in the CCAA Proceeding. (Id. ¶ 23.) Under the current amended and restated interim financing term sheet dated as of November 4, 2015 (the "DIP Agreement," and the credit facility arising thereunder, the "DIP Facility") between USSC and Brookfield Capital Partners Ltd., USSC obtained access to CAD $30 million for working capital and other corporate purposes, and to make payments necessary to comply with the Initial Order, to provide guarantees supporting the operations of the business, and to pay interest and other expenses under the DIP Facility. (Id.) The DIP Facility includes an exit fee of CAD $3 million, as well as a monthly monitoring fee of approximately CAD $30,000. (Id.) USSC has not drawn on the DIP Facility. (Id.)
After a 2015 sale and restructuring process (the "SARP") authorized by the Canadian Court failed, USSC held discussions with each of its significant stakeholders about a further sale and investment solicitation process (the "SISP"). (Id. ¶¶ 21-22.) The Canadian Court issued an order on January 12, 2016, approving the SISP and authorizing USSC "to market its assets for sale or to solicit an external capital injection." (Id. ¶ 22.) Bedrock Industries L.P. and Bedrock Industries Canada LLC (together, "Bedrock") emerged from the marketing process with the most competitive bid (id.), resulting in the execution of a plan sponsor agreement (as amended, the "Plan Sponsor Agreement"). (Id. at 25.)
If successfully completed, the transaction contemplated by the Plan Sponsor Agreement (the "Transaction")
In broad terms, the Transaction will provide for the following:
(Id. ¶ 26.)
On April 27, 2017, in furtherance of USSC's goal of consummating the Transaction under the reorganization plan sanctioned by the Canada Court (as amended, the "Plan"), USSC held a separate meeting for each of the two classes of creditors, as required under the CCAA. (Id. ¶ 34.) The holders of claims in each class voted overwhelmingly in favor of the Plan. (Id.) With respect to the meeting of the class of General Unsecured Creditors ("GUCs"), 95.79% of the votes by number and 95.33% of the votes by value voted in favor of the Plan. (Id. ¶ 35.) With respect to the Salaried Employees, 99.93% of the votes by number and 99.94% of the votes by value voted in favor of the Plan. (Id.)
The Plan sets out a number of conditions precedent to the effectiveness of the Plan, including, among others, the following:
(Id. ¶ 36 (emphasis added).) As emphasized above, effectiveness of the confirmed Plan required that the Sanction Order be given full force and effect in the United States by an order of a Bankruptcy Court in a chapter 15 proceeding. USSC also reserved the right to further amend the Plan with the consent of the relevant parties and the Monitor and subject to the restrictions set forth therein. (Id. ¶ 38.)
In addition to those terms contemplated by the Plan and the Transaction, USSC bears obligations under various intercompany services agreements with U.S. Steel which are governed by Delaware and Pennsylvania law. (Aziz Decl. III ¶ 6.) Those agreements are outlined below:
(Id. ¶ 6.) As of the Petition Date, USSC was also a party to a Common Interest, Cooperation and Information Access Agreement with U.S. Steel, governed by Delaware law, as well as indemnification agreements between U.S. Steel and USSC's three directors, governed by Pennsylvania law. (Id. ¶ 8.) Additionally, as of the Filing Date, USSC owed approximately USD $193.1 million on a USD $600 million credit facility governed by Pennsylvania law and provided by USS Holdings, which, as noted above, is a subsidiary of U.S. Steel and is incorporated under Delaware law. (Id. ¶ 7; Aziz Declaration ¶ 13.)
On May 26, 2017, the Canadian Court in the CCAA Proceeding entered an order authorizing USSC to act as a foreign representative in the CCAA Proceeding for the purposes of having that proceeding recognized in a jurisdiction outside of Canada, including to apply for recognition of the CCAA Proceeding in the United States pursuant to chapter 15 of the Bankruptcy Code (the "Authorizing Order"). (See Aziz Declaration, Exhibit 2; id. ¶ 3.)
On June 9, 2017, at a hearing before the Canadian Court (the "Sanction Hearing"), the Canadian Court approved and entered the Sanction Order. USSC and other parties in interest established June 30, 2017, as the target implementation date of the Plan and the closing of the Transaction contemplated therein. (Aziz Decl. II, Exhibit A; id. ¶ 5.)
Section 1517(a) of the Bankruptcy Code provides that the court shall, after notice
11 U.S.C. § 1517(a). "While not explicit in this section, the foreign proceeding and the foreign representative must meet the definitional requirements set out in sections 101(23) and 101(24)." 8 COLLIER ON BANKRUPTCY ¶ 1517.01 (Alan N. Resnick & Henry J. Sommer eds., 16th ed. 2017). Section 101(23) defines a foreign proceeding as a "collective judicial or administrative proceeding in a foreign country, including an interim proceeding, under a law relating to insolvency or adjustment of debt in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganization or liquidation." 11 U.S.C. § 101(23); see also In re ABC Learning Ctrs. Ltd., 445 B.R. 318, 327 (Bankr. D. Del. 2010).
A foreign main proceeding "shall be recognized . . . if it is pending in the country where the debtor has the center of its main interests" (its "COMI"). 11 U.S.C. § 1517(b)(1). The Bankruptcy Code presumes that "[i]n the absence of evidence to the contrary, the debtor's registered office. . . is presumed to be the [debtor's COMI]." Id. § 1516(c); see also In re Bear Stearns High-Grade Structured Credit Strategies Master Fund, Ltd., 374 B.R. 122, 130 (Bankr. S.D.N.Y. 2007), aff'd, 389 B.R. 325 (S.D.N.Y. 2008). To determine a debtor's COMI, courts in this circuit look not only to the location of the debtor's registered office, but also consider a non-exclusive list of factors, including:
Morning Mist Holdings Ltd. v. Krys (In re Fairfield Sentry Ltd.), 714 F.3d 127, 137 (2d Cir. 2013) (quoting In re SPhinX, Ltd., 351 B.R. 103, 117 (Bankr. S.D.N.Y. 2006)).
A foreign representative is "a person or body, including a person or body appointed on an interim basis, authorized in a foreign proceeding to administer the reorganization or the liquidation of the debtor's assets or affairs or to act as a representative of such foreign proceeding." 11 U.S.C. § 101(24). "Person" is defined under section 101(41) of the Bankruptcy Code to include an individual, partnership, or corporation. Id. § 101(41).
The Bankruptcy Code further provides that an order of recognition shall be entered if the foreign representative's petition meets the requirements of section 1515. Id. § 1517(a)(2)-(3). Section 1515 requires presentation of certain documents relating to the commencement, existence, and/or authorization of the foreign proceeding. See id. § 1515(b). The petition must also be accompanied by a statement identifying all known foreign proceedings with respect to the debtor, id. § 1515(c), and if applicable, a translation of the evidentiary materials into English. Id. § 1515(d).
Upon the grant of an order recognizing a proceeding as a foreign main proceeding,
Section 1521(a) outlines the discretionary relief a court may order upon recognition. Id. § 1521(a). The discretion that is granted is "exceedingly broad," since a court may grant "any appropriate relief" that would further the purposes of chapter 15 and protect the debtor's assets and the interests of creditors. Hon. Leif M. Clark, ANCILLARY AND OTHER CROSS-BORDER INSOLVENCY CASES UNDER CHAPTER 15 OF THE BANKRUPTCY CODE, § 7[2], at 70 (2008). "[A]ny appropriate relief" may include "any additional relief that may be available to a trustee" that the Court determines is necessary to effectuate the purpose of chapter 15 and to protect the assets of the debtor or the interests of the creditors. 11 U.S.C. § 1521(a)(7). In the exercise of comity, which is a central tenet of a chapter 15 proceeding, appropriate relief under section 1521 may include recognizing and enforcing a foreign confirmation order. See In re Rede Energia S.A., 515 B.R. 69, 89 (Bankr. S.D.N.Y. 2014); see also In re Cell C Proprietary Ltd., Case No. 17-11735 (MG), 571 B.R. 542, 551, 2017 WL 3190568, at *7 (Bankr. S.D.N.Y. July 27, 2017). Relief under section 1521 will be granted "only if the interests of the creditors and other interested entities, including the debtor, are sufficiently protected." Rede Energia, 515 B.R. at 90; see also Cell C Proprietary Ltd., 571 B.R. at 551, 2017 WL 3190568, at *7; 11 U.S.C. § 1522(a).
In addition to the types of relief enumerated in section 1521, section 1507(a) of the Bankruptcy Code provides that "[s]ubject to the specific limitations stated elsewhere in this chapter[,] the court, if recognition is granted, may provide additional assistance to a foreign representative under this title or under other laws of the United States." Id. § 1507(a). "Pursuant to section 1507, the court is authorized to grant any `additional assistance' available under the Bankruptcy Code or under `other laws of the United States,' provided that such assistance is consistent with the principles of comity and satisfies the fairness considerations set forth in section 1507(b)." Rede Energia, 515 B.R. at 90. As with section 1521, relief under section 1507 may include recognition and enforcement of a plan approved by a foreign court. Id. at 94-95.
Section 109(a) provides that "[n]otwithstanding any other provision of this
Some courts, including this one, have held that an undrawn retainer in a United States bank account qualifies as property in satisfaction of section 109(a). See, e.g., Octaviar, 511 B.R. at 372-73 ("There is a line of authority that supports the fact that prepetition deposits or retainers can supply `property' sufficient to make a foreign debtor eligible to file in the United States.") (citing In re Cenargo Int'l PLC, 294 B.R. 571, 603 (Bankr. S.D.N.Y. 2003)); see also In re Berau Capital Resources Pte Ltd., 540 B.R. 80, 82 (Bankr. S.D.N.Y. 2015) ("The Court is satisfied that the retainer provides a sufficient basis for eligibility in this case."); In re Global Ocean Carriers Ltd., 251 B.R. 31, 39 (Bankr. D. Del. 2000) (holding that a $400,000 retainer paid on behalf of the debtors to bankruptcy counsel in that case qualifies as sufficient property in the United States under section 109(a)).
Further, "[c]ontracts create property rights for the parties to the contract. A debtor's contract rights are intangible property of the debtor." Berau Capital, 540 B.R. at 83 (citing U.S. Bank N.A. v. Am. Airlines, Inc., 485 B.R. 279, 295 (Bankr. S.D.N.Y. 2013), aff'd, 730 F.3d 88 (2d Cir. 2013)). Those property rights can be and typically are tied to the location of the governing law of the contract. See id. at 84 (holding that the situs of intangible property rights governed by New York law was New York). Accordingly, debt subject to a New York governing law clause and a New York forum selection clause constitutes property in the United States. See In re Inversora Eléctrica de Buenos Aires S.A., 560 B.R. 650, 655 (Bankr. S.D.N.Y. 2016) ("[D]ollar-denominated debt subject to New York governing law and a New York forum selection clause is independently sufficient to form the basis for jurisdiction.") (citation omitted); Berau Capital, 540 B.R. at 84 ("The Court concludes that the presence of the New York choice of law and forum selection clauses in the Berau indenture satisfies the section 109(a) `property in the United States' eligibility requirement.") (footnote omitted).
USSC, in its capacity as foreign representative authorized by the Canadian Court in the CCAA Proceeding, petitions this Court to grant recognition of the CCAA Proceeding as a foreign main proceeding and give full force and effect to the Sanction Order so that it may proceed with the Transaction contemplated by the Plan. As noted above, section 1517(a) of the Bankruptcy Code provides that "an order recognizing a foreign proceeding shall be entered if . . . (i) such foreign proceeding for which recognition is sought is a foreign main proceeding or foreign nonmain proceeding within the meaning of section 1502; (ii) the foreign representative applying for recognition is a person or body; and (iii) the petition meets the requirements of section 1515." 11 U.S.C.
Section 109(a) requires a foreign debtor to have either (i) a domicile, (ii) a place of business, or (iii) property in the United States. 11 U.S.C. § 109(a). See Barnet, 737 F.3d at 247; Octaviar, 511 B.R. at 369. Here, USSC does not satisfy the first two options: its domicile is in Canada and it does not have a place of business in the United States. However, USSC has property in the United States.
As explained above, courts in the Second Circuit and elsewhere recognize professional retainers as property under section 109. In this case, USSC has an undrawn $100,000 retainer paid to its U.S. counsel and held in a JP Morgan Chase Bank account located in New York, NY. (Aziz Decl. ¶ 42; Verified Petition ¶ 41.) USSC also has additional property in the United States, including approximately US $193.1 million in outstanding funded indebtedness (including accrued interest) under the Amended Revolver Loan, governed by Pennsylvania law. Furthermore, as set forth in the Aziz Declaration III, U.S. law governs a number of USSC's contractual obligations, including the requirement that U.S. Steel provide certain transition and business services to USSC, and requiring USSC to purchase all of its iron ore requirements from U.S. Steel through 2021.
"The CCAA provides for a court-supervised reorganization procedure designed to enable financially distressed companies to avoid foreclosure or seizure of assets while maximizing the company's value as a going concern for the benefit of creditors and other parties in interest." (Gage Decl. ¶ 15.) In a CCAA proceeding, absent exceptional circumstances, a debtor's management and board of directors remain in place. But the court also appoints a qualified monitor, who functions as an independent court officer and observer of the CCAA proceeding and of the debtor's business, and who monitors the company's ongoing operations, and reports to the court on any major events affecting the company. (Id. ¶¶ 17-18.)
Further, USSC's COMI is plainly in Canada. USSC (i) is incorporated in Canada; (ii) houses its registered office in Canada; (iii) undertakes all of its operations in Canada; (iv) generates all of its revenue in Canada; (v) has substantially all of its major customers in Canada; (vi) employs residents of Canada; (vii) pays payroll taxes solely to the Canadian government; and (vii) has all of its senior management in Canada. (Aziz Declaration ¶ 6; id. Exhibit 2 at 87; Verified Petition ¶ 53.) Accordingly, the CCAA Proceeding satisfies the requirements of a foreign main proceeding under the Bankruptcy Code.
This Court and others have recognized that a Canadian CCAA restructuring proceeding can constitute a "foreign proceeding." See, e.g., In re Sino-Forest Corp., 501 B.R. 655 (Bankr. S.D.N.Y. 2013); In re Metcalfe & Mansfield Alternative Investments, 421 B.R. 685 (Bankr. S.D.N.Y. 2010); Collins v. Oilsands Quest Inc., 484 B.R. 593 (S.D.N.Y. 2012).
The term "foreign representative" is defined under section 101(24) of the Bankruptcy Code as:
11 U.S.C. § 101(24). Under section 101(41) of the Bankruptcy Code, the term "person" includes a corporation. Here, the Canadian Court has authorized USSC, a corporation, to act as foreign representative and to apply for recognition of the CCAA Proceeding in this Court pursuant to the Authorization Order. Accordingly, USSC is qualified to be the foreign representative.
Section 1508 of the Bankruptcy Code requires Courts to "consider [the] international origin [of chapter 15] and the need to promote an application of [chapter 15] that is consistent with the application of similar statutes adopted by foreign justifications." 11 U.S.C. § 1508. USSC worked with the creditor body and outside parties, including governmental bodies, to negotiate a largely consensual Plan, which will take effect after the Transaction closes. The Plan has the overwhelming support of the creditor body and the Province of Ontario.
Recognition and enforcement of the Sanction Order and Plan in this chapter 15 proceeding are conditions precedent to the effectiveness of both. No objections were filed to the relief sought by the Petition. As explained above, in the exercise of comity, the Court has the authority to recognize and enforce the Sanction Order and the Plan. Based on the principles of international comity and in accordance with the requirements of the Bankruptcy Code, this Court will recognize and enforce the Sanction Order and the Plan.
For the reasons discussed above, the Court previously granted recognition of the CCAA Proceeding as a foreign main proceeding, and recognized and enforced the Sanction Order and the Plan in the United States.
