mg Doc 6 Filed 02/16/12 Entered 02/16/12 11:22:25 Main Document Pg 1 of 16

Transcription

1 Pg 1 of 16 CHADBOURNE & PARKE LLP Counsel for the Petitioners 30 Rockefeller Plaza New York, New York (212) Howard Seife, Esq. Andrew Rosenblatt, Esq. Francisco Vazquez, Esq. UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x In re : : HELLAS TELECOMMUNICATIONS (LUXEMBOURG) II SCA : : : Chapter 15 : Debtor in a Foreign Proceeding. : Case No x MEMORANDUM OF LAW IN SUPPORT OF VERIFIED PETITION UNDER CHAPTER 15 FOR RECOGNITION OF A FOREIGN MAIN PROCEEDING Andrew Lawrence Hosking and Carl Jackson, in their capacity as Joint Compulsory Liquidators (the Petitioners ) of Hellas Telecommunications (Luxembourg) II SCA (the Company ), 1 through their United States counsel, Chadbourne & Parke LLP, respectfully submit this Memorandum of Law in support of the form petition filed under Chapter 15 of the Bankruptcy Code and the accompanying Verified Petition (together, the Petition ). The Petitioners seek recognition of a foreign main proceeding. PRELIMINARY STATEMENT 1. Prior to its insolvency, the Company owned one of the largest telecommunications networks in Greece. In mid-2009, the Company s management determined 1 All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Verified Petition under Chapter 15 for Recognition of a Foreign Main Proceeding filed in the above-captioned case (the Verified Petition ). CPAM:

2 Pg 2 of 16 that it should restructure the Company by selling its interests in WIND Hellas, the Company s primary asset, through a prepackaged administration process in England and, to that end, held a competitive auction. 2. At the auction, the Weather Group prevailed with a bid (the Weather Bid ) that would require it to (i) assume the Company s obligations with respect to certain secured creditors, (ii) pay the Company 10,000 and (iii) provide the Company with 10 million (the Funded Costs Amount ) to cover the costs of the proposed administration and the investigation of potential claims into the Company s pre-administration financing In connection with the Weather Bid, the Company s management filed an application with the High Court of Justice of England and Wales (the High Court ) seeking the appointment of joint administrators. On November 26, 2009, the High Court granted this application, placed the Company into administration and appointed joint administrators (the Administrators ). 4. On November 27, 2009, the Administrators caused the Company to enter into a share purchase agreement with the Weather Group. Pursuant to that share purchase agreement, the Company sold its 100 percent equity stake in WIND Hellas to the Weather Group. The Company was released from its obligations with respect to certain secured creditors, but was left with minimal assets to pay claims of other creditors, except those that could be recovered through avoidance actions. 5. At the conclusion of the administration, the High Court discharged the Administrators and placed the company into compulsory liquidation (the English Proceeding ). 2 Any excess in the Funded Costs Amount after the completion of the administration was to be held in trust for the Weather Group and could not be used to make distributions to the Company s creditors. 2

3 Pg 3 of 16 Shortly thereafter, the Petitioners were appointed by the United Kingdom s Secretary of State for Trade and Industry as the Joint Compulsory Liquidators of the Company. 6. Under English law, only the Petitioners, as Joint Liquidators of the Company, have the right to bring certain types of actions for the benefit of creditors as a whole (e.g., those based on fraudulent conveyance, preferential transfers, and similar actions). As described in the Declaration of John Verrill, English legal counsel to the Company dated February 16, 2012 (the Verrill Declaration ), the Petitioners may avoid, unwind or otherwise recover on account of such transfers or bad acts under English law. See Verrill Declaration at Since their appointment, the Petitioners have been, among other things, investigating potential avoidance actions relating to the Company s operations. However, prior to the Petitioners appointment as Joint Compulsory Liquidators, certain creditors of the Company and its affiliates commenced lawsuits in the Supreme Court of the State of New York against the Company and other parties (the New York Lawsuits ). As set forth more fully in the Verified Petition, the New York Lawsuits appear to consist primarily of actions of the type that English law vests with the Petitioners. The Petitioners have commenced this Chapter 15 case to obtain the benefits of the automatic stay, which would allow the Petitioners to avoid unnecessary expenditures of time and money defending actions in which they may be the proper plaintiffs. Chapter 15 relief would also provide a mechanism to permit the Petitioners to investigate the claims in the New York Lawsuits in order to determine if they are colorable and should be pursued by the Petitioners for the benefit of all creditors. Finally, Chapter 15 relief would grant the Petitioners access to the U.S. courts if they ultimately seek to pursue such claims. 3

4 Pg 4 of Chapter 15 of the Bankruptcy Code authorizes this Court to: (i) recognize a foreign proceeding after the proper commencement of a case under Chapter 15 by a foreign representative, as defined in section 101(24) of the Bankruptcy Code; and (ii) grant assistance in the United States to such foreign representative in connection with the foreign proceeding. 9. The Petition satisfies all of the requirements set forth in section 1515 of the Bankruptcy Code. Moreover, given that the relief requested herein is necessary to give effect to the English Proceeding in the United States, the relief requested is appropriate under Chapter 15 of the Bankruptcy Code. Granting recognition to the English Proceeding is consistent with the goals of international cooperation and providing assistance to foreign courts, embodied in Chapter 15 of the Bankruptcy Code. FACTS 10. The Court is respectfully referred to the Verified Petition, which outlines the relevant facts, all of which are incorporated herein by reference. ARGUMENT I. This Case is Proper under Chapter Chapter 15 of the Bankruptcy Code applies where assistance is sought in the United States by a foreign representative in connection with a foreign proceeding. See 11 U.S.C. 1501(b)(l). This Chapter 15 case was commenced for the purpose of obtaining the assistance of this Court to ensure the effective and economical liquidation of the Company through the English Proceeding by, among other things, staying the New York Lawsuits as against the Company and giving the Petitioners sufficient time to investigate the underlying causes of action in order to make a determination as to whether the Petitioners should pursue such causes of action in New York, England or elsewhere. 4

5 Pg 5 of 16 A. This Case Concerns a Foreign Proceeding 12. A foreign proceeding has seven elements: (a) a proceeding; (b) either judicial or administrative in character; (c) collective in nature; (d) in a foreign country; (e) authorized or conducted under a law related to insolvency or the adjustment of debts; (f) in which the debtor s assets and affairs are subject to the control or supervision of a foreign court; and (g) which is for the purpose of reorganization or liquidation. In re ABC Learning Centres Ltd., 445 B.R. 318, 327 (Bankr. D. Del. 2010) (citing In re Betcorp Ltd., 400 B.R. 266, 277 (Bankr. D. Nev. 2009) (identifying the same seven elements)); In re Oversight and Control Com'n of Avanzit, S.A., 385 B.R. 525, 533 (Bankr. S.D.N.Y. 2008) ( the definition [of foreign proceeding], which is taken from the Model Law, incorporates several requirements, including control and supervision and for the purpose of reorganization or liquidation. ); 11 U.S.C 101(23); see also In re British Am. Ins. Co. Ltd., 425 B.R. 884, 901 (Bankr. S.D. Fla. 2010) (identifying six elements). The English Proceeding satisfies all seven requirements and therefore qualifies as a foreign proceeding. i. The English Proceeding is a Proceeding 13. The English Proceeding is a proceeding. For the purpose of Chapter 15 recognition, the hallmark of a proceeding is a statutory framework that constrains a company s actions and that regulates the final distribution of a company s assets. In re Betcorp, Ltd., 400 B.R. at 278. The English Proceeding operates under just such a statutory framework. As described in the Verrill Declaration, the English Proceeding is governed by the Insolvency Act 1986 (as amended, the 1986 Act ) and the Insolvency Rules 1986 (as amended, the 1986 Rules ). Together, the 1986 Act and the 1986 Rules establish a comprehensive framework that determines how the Company s assets will ultimately be distributed to its creditors. See Verrill 5

6 Pg 6 of 16 Declaration at Because the English Proceeding is operating under that framework, it is a proceeding within the meaning of 11 U.S.C. 101 (23). ii. The English Proceeding is Judicial or Administrative in Character 14. The English Proceeding is judicial or administrative in character. An insolvency proceeding is administrative in character where it is directed by a party other than the court and judicial in character whenever a Court exercises its supervisory powers. In re ABC Learning Centres Ltd., 458 B.R. at 328; see also In re Betcorp, Ltd., 400 B.R. at (holding that a winding-up under Australian law was both administrative and judicial in character given varying levels of court involvement). 3 Here the English Proceeding has an administrative character because the Petitioners have broad authority to liquidate the Company s affairs. See Verrill Declaration at The English Proceeding is also judicial in character because the Petitioners authority is subject to the High Court s direction. See Verrill Declaration at 31, 33. Indeed, English law prohibits the Petitioners from taking certain actions with respect to the Company without obtaining leave from the High Court. See Verrill Declaration at 33. Accordingly, the English Proceeding is both administrative and judicial in character. iii. The English Proceeding is Collective in Nature 15. The English Proceedings is collective in nature. A proceeding is collective in nature pursuant to 11 U.S.C. 101(23) if it considers the rights and obligations of all creditors. In re Ashapura Minechem Ltd., No , 2011 WL , at *3 (Bankr. S.D.N.Y. Nov. 22, 2011) (quoting In re Betcorp, Ltd., 400 B.R. at 281); see also In re ABC Learning Centres Ltd., 445 B.R at 328 (same). The collective proceeding requirement is 3 See also In re Kingscroft Ins. Co., Ltd., 138 B.R. 12, 125 (Bankr. S.D. Fla. 1992) (finding that a final winding-up [under the 1986 Act] may be roughly analogized to liquidation under Chapter 7 of the Bankruptcy Code and granting relief under former section 304, the predecessor to Chapter 15, on that basis). 6

7 Pg 7 of 16 intended to limit access to Chapter 15 to proceedings which benefit creditors generally and to exclude proceedings which are for the benefit of a single creditor. 8 COLLIER ON BANKRUPTCY [1], (16th ed. Rev. 2009). As described in the Verrill Declaration, compulsory liquidations under English law operate for the benefit of all creditors and provide for pari passu recoveries from the subject company s assets. See Verrill Declaration at 25. The English Proceeding is therefore collective in nature. iv. The English Proceeding is Located in a Foreign Country 16. The English Proceeding is located in a foreign country. Although the Company was incorporated in Luxembourg, all events relevant to the English Proceeding have occurred in England. The Company s initial insolvency proceeding the administration was commenced in England in 2009 and occurred before the High Court. The order discharging the administrators and commencing the English Proceeding was issued by the High Court in England. England. The Petitioners were appointed as the Company s Joint Compulsory Liquidators in The Petitioners themselves, who are conducting the English Proceeding, are also located in England. Accordingly, the English Proceeding is located in England, a foreign country. v. The 1986 Act Relates to Insolvency or the Adjustment of Debt 17. The English Proceeding is operating under a law relating to insolvency or adjustment of debt. As described in the Verrill Declaration, the English Proceeding is operating under the 1986 Act. See Verrill Declaration at 27. The 1986 Act governs virtually all aspects of English corporate insolvencies and establishes the framework for the principal types of insolvency proceedings available to corporations under English law including (i) administrations and (ii) liquidations. It also establishes the various avoidance causes of action that are available 7

8 Pg 8 of 16 to the administrators or liquidators of an insolvent company. See Verrill Declaration at Accordingly, the 1986 Act is a law relating to insolvency. vi. The English Proceeding Subjects the Company s Assets and Affairs to a Foreign Court s Control or Supervision 18. The English Proceeding subjects the Company s assets and affairs to a foreign court s control or supervision. Under the 1986 Act, authority for managing the Company s business, assets and affairs was transferred from the Company s pre-insolvency management to the Administrators and ultimately to the Petitioners, as Joint Compulsory Liquidators of the Company. See Verrill Declaration at While the Petitioners have some discretion in managing the Company s assets and affairs, they are ultimately subject to the High Court s control. As set forth in the Verrill Declaration, the Petitioners must obtain leave from the High Court before taking certain out of the ordinary course actions with respect to the Company. See Verrill Declaration at 33. Accordingly, the English Proceeding subjects the Company s assets and affairs to the control of a foreign court the High Court. vii. The English Proceeding is for the Purpose of Liquidation 19. The English Proceeding is for the purpose of liquidation. The English Proceeding is a compulsory liquidation of the Company, which, as the name suggests, involves liquidating the Company and distributing its assets to creditors. See Verrill Declaration at 26. Accordingly, the English Proceeding is for the purpose of liquidation. 20. Because the English Proceeding satisfies all seven elements of a foreign proceeding as set forth in section 101(23) of the Bankruptcy Code, it is a foreign proceeding entitled to recognition under Chapter 15. 8

9 Pg 9 of 16 B. This Case Was Commenced by the Company s Foreign Representatives 21. This Chapter 15 case was commenced by the Petitioners, who are duly appointed and authorized foreign representatives within the meaning of section 101(24) of the Bankruptcy Code. That section provides as follows: The term foreign representative means 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). On December 5, 2011, the Petitioners were appointed as the Joint Compulsory Liquidators of the Company. See Exhibit C to the Verified Petition. As set forth in the Verrill Declaration, the Petitioners, as Joint Compulsory Liquidators, are charged with administering the liquidation of the debtor s assets and affairs for the benefit of all creditors. See Verrill Declaration at 62. Moreover, the Petitioners were specifically authorized to seek recognition of the English Proceeding under Chapter 15. See id. at 63. From the face of the evidence submitted on behalf of the Petitioners, namely the December 30 Order and the written appointment of the Petitioners as the Joint Compulsory Liquidators of the Company, the Petitioners are duly authorized to act as the foreign representatives of the Company. The Petitioners were therefore entitled to commence this ancillary case under Chapter 15 of the Bankruptcy Code. C. This Chapter 15 Case was Properly Commenced 22. This Chapter 15 case was duly and properly commenced as required by sections 1504 and 1509 of the Bankruptcy Code by filing the Petition, accompanied by all documents and information required by section 1515(b) and (c). See In re Bear Stearns High-Grade Structured Credit Strategies Master Fund, Ltd., 374 B.R. 122, 127 (Bankr. S.D.N.Y. 2007), aff d, 389 B.R. 325 (S.D.N.Y. 2008) ( A case under chapter 15 is commenced by a foreign representative filing 9

10 Pg 10 of 16 a petition for recognition of a foreign proceeding under section 1515 of the Bankruptcy Code. ). The Petitioners properly commenced this Chapter 15 case because the Petition satisfies the requirements set forth in section 1515 of the Bankruptcy Code. II. The English Proceeding Should be Recognized as a Foreign Main Proceeding 23. This Court should recognize the English Proceeding as a foreign main proceeding as defined in section 1502(4) of the Bankruptcy Code. A foreign proceeding must be recognized as a foreign main proceeding if it is pending in the country where the debtor has the center of its main interests ( COMI ). See 11 U.S.C. 1517(b)(l). The Company s COMI is located in England, where the English Proceeding is occurring. Accordingly, the English Proceeding should be recognized as a foreign main proceeding. 24. Although the Company s registered offices are in Luxembourg, for more than two years, all meaningful activity with respect to the Company has occurred in England. While a Company s COMI is presumed to be where its registered offices are located, that presumption is rebuttable. See 11 U.S.C. 1516(c); see also In re Bear Stearns, 374 B.R. 122, 130 (Bankr. S.D.N.Y. 2007), aff d, 389 B.R. 325 (S.D.N.Y. 2008) (noting that presumption that debtor s center of main interests is the place of its registered office may be rebutted by evidence to the contrary ). Here, the High Court has already recognized that the Company s COMI is located in England. See Exhibit E to Verified Petition. 25. Additional evidence also demonstrates that the Company s COMI is located in England. Certain courts have held that a Company s COMI is equivalent to its principal place of business. See, e.g., In re Tri-Continental Exchange Ltd., 349 B.R. 627, 634 (Bankr. E.D. Cal. 2006). Here, the Company s principal place of business is in England. The Company s head office and principal operating address are both located in London, England. See Exhibit E to Verified Petition. All decisions concerning the Company s operations are made by the 10

11 Pg 11 of 16 Petitioners, who are located in England, or the High Court, which is also located in England. See id. Moreover, as noted by the High Court, all negotiations between the company and its creditors have taken place in London. See id. Accordingly, the Company s COMI is in England because that is the only jurisdiction that is readily ascertainable by third parties as the Company s COMI. See In re Bear Stearns, 374 B.R. at 130 (noting that debtors center of main interests is the United States where the debtors conduct the administration of their interests on a regular basis and is therefore ascertainable by third parties ). 4 For those reasons, in November of 2009, the High Court concluded that the Company s COMI was located in England. See Exhibit E to Verified Petition. Since then, the evidence establishing that the Company s COMI is located in England has become even stronger: the Company has undergone two years of administration in England under the English High Court and was subsequently placed into compulsory liquidation in England. Because the evidence establishes that the Company s COMI is located in England, the English Proceeding should be recognized as a foreign main proceeding. III. The Requested Relief Should be Granted 26. An order recognizing a foreign proceeding shall be entered if all of the requirements for recognition have been met. See 11 U.S.C As set forth above: (i) the 4 Although there is some uncertainty as to whether COMI should be determined as the date of the petition commencing a chapter 15 case or the date that the subject company s foreign insolvency proceeding was commenced, that distinction is irrelevant here. See In re Fairfield Sentry, Ltd., 440 B.R. 60 (Bankr.S.D.N.Y.2010) (holding COMI is determined as of the Chapter 15 petition date); In re British Am. Ins. Co. Ltd., 425 B.R. at (same); but see In re Millennium Global Emerging Credit Master Fund Ltd., 458 B.R. 63, 76 (Bankr. S.D.N.Y. 2011) (COMI must be determined as of the commencement of the foreign proceeding for which recognition is sought). Here, the Company s COMI was moved to England three months prior to the commencement of the Company s administration proceeding and more than two years before the commencement of the foreign proceeding for which recognition is sought. Accordingly, regardless of which reference date is used, the Company s COMI is located in England. 11

12 Pg 12 of 16 English Proceeding is a foreign proceeding; (ii) the Petitioners are the Company s foreign representatives; and (iii) the Petition satisfies the requirements of section 1515 of the Bankruptcy Code. Therefore, this Court should enter an order recognizing the English Proceeding as a foreign main proceeding. The legislative history to Chapter 15 provides that: The decision to grant recognition is not dependent upon any findings about the nature of the foreign proceedings of the sort previously mandated by section 304(c) of the Bankruptcy Code. The requirements of [section 1517], which incorporates the definitions in section 1502 and sections 101(23) and (24), are all that must be fulfilled to attain recognition. H.R. REP , pt. 1 (2005). Thus, recognition under sections 1517(a) and (b) of the Bankruptcy Code is mandatory where, as here, a Chapter 15 petition meets the statutory requirements. 27. Moreover, the recognition of the English Proceeding as a foreign proceeding would not be inconsistent with section 1506 of the Bankruptcy Code. That section provides that nothing in Chapter 15 shall prevent the Court from refusing to take an action otherwise required by Chapter 15 if such action would be manifestly contrary to the public policy of the United States. 5 See 11 U.S.C The relief requested by the Petitioners is not manifestly contrary to, but rather is consistent with, United States public policy. 28. It is well established that one of the fundamental goals of the Bankruptcy Code is the centralization of disputes involving the debtor. See, e.g., In re Ionosphere Clubs, Inc., 922 F.2d 984, 989 (2d Cir. 1990) ( The Bankruptcy Code provides for centralized jurisdiction and administration of the debtor, its estate and its reorganization in the Bankruptcy Court.... ). Indeed, the firm policy of American courts is the staying of actions against a corporation which 5 As the legislative history explains, [section 1506] follows the Model Law article 5 exactly, [which] is standard in UNCITRAL texts, and has been narrowly interpreted on a consistent basis in courts around the world. The word manifestly in international usage restricts the public policy exception to the most fundamental policies of the United States. H.R. REP pt. 1 (2005). 12

13 Pg 13 of 16 is the subject of a bankruptcy proceeding in another jurisdiction. Cornfeld v. Investors Overseas Servs., Ltd., 471 F. Supp. 1255, 1259 (S.D.N.Y. 1979) (recognizing that a Canadian liquidation proceeding would not violate laws or public policy of New York or the United States). The English Proceeding, like a case under chapter 7 of the Bankruptcy Code, provides a centralized process to (i) assert and resolve claims against an estate and (ii) make distributions to creditors. Recognizing the English Proceeding, enjoining actions against the Company outside of the English Proceeding and granting the relief requested would assist in the centralization of disputes in a single jurisdiction. That result is demonstrably consistent with the public policy of the United States. See id. at Further, recognition of the English Proceeding would be consistent with the purpose of Chapter 15 and its predicate, the UNCITRAL Model Law on Cross-Border Insolvency. Section 1501 of the Bankruptcy Code provides, in pertinent part that: 11 U.S.C The purpose of this chapter is to incorporate the Model Law on Cross- Border Insolvency so as to provide effective mechanisms for dealing with cases of cross-border insolvency with the objectives of - (1) cooperation between - * * * (B) the courts and other competent authorities of foreign countries involved in cross-border insolvency cases; * * * (3) fair and efficient administration of cross-border insolvencies that protects the interests of all creditors, and other interested entities, including the debtor; (4) protection and maximization of the value of the debtor s assets. 30. The relief requested by the Petitioners is consistent with, and critical to effectuate, the objectives of Chapter 15 for several reasons. First, recognition of the English Proceeding 13

14 Pg 14 of 16 would foster cooperation between the High Court and United States courts. By granting recognition of the English Proceeding this Court would be cooperating with the High Court s efforts to (i) prevent litigation against the Company in other forums and (ii) provide the Petitioners with the opportunity to investigate potential causes of action that are vested with them under English law. 31. Second, recognition of the English Proceeding would promote the fair and efficient administration of a cross-border insolvency proceeding that protects the interests of all creditors and interested entities. By recognizing the English Proceeding, this Court will ensure that the Petitioners are able to investigate potential causes of action that should be brought for the benefit of all creditors. 32. Finally, if the relief requested is granted, the Petitioners may seek further assistance from this court to protect and preserve potentially valuable causes of action. If individual creditors of the Company are permitted to pursue actions that are properly brought by the Petitioners for the benefit of all creditors, the orderly pro rata distribution of Company assets to creditors may be disturbed. Accordingly, the relief requested would further the objectives of Chapter 15 by assisting the implementation of the English Proceeding. A. The Petitioners are Entitled to Relief under Section Upon recognition of the English Proceeding as a foreign main proceeding, certain express relief is automatically granted as a matter of right. 11 U.S.C In particular, under section 1520(a)(l), the automatic stay provisions of section 362 of the Bankruptcy Code apply to protect the Company from any claim or act to take possession of its property. 14

15 Pg 15 of 16 B. Section 108 of the Bankruptcy Code Should Apply in this Case 34. The Bankruptcy Code provides that section 108 applies in Chapter 15 cases. 6 See 11 U.S.C. 103(a) ( this chapter... appl[ies] in a case under chapter ). Where a statute is clear and unambiguous, courts should apply the statute as written. See U.S. v. Ron Pair Enters., 489 U.S. 235 ( where, as here, the statute s language is plain... the sole function of the courts is to enforce it according to its terms. ) (citations omitted). Accordingly, the provisions of chapter 1 of the Bankruptcy Code, including section 108, apply in all Chapter 15 cases. See In re Fairfield Sentry Ltd., 452 B.R. 52, 62 (Bankr. S.D.N.Y. May 23, 2011) (holding that section 108 automatically applies in cases under Chapter 15); In re Millennium Global Emerging Credit Master Fund Ltd., 458 B.R. at 87 (same). 35. Although the Petitioners are confident that section 108 automatically applies upon recognition, out of an abundance of caution and to provide a clear indication to other courts that the applicable statutes of limitation will be tolled, they seek an explicit ruling that it applies in this case As described above, the Petitioners are charged with investigating potential avoidance actions concerning the Company s pre-insolvency dealings. It is critical that such causes of action be preserved pending the completion of the Petitioners investigation. Granting 6 7 Section 108 of the Bankruptcy Code provides, in relevant part, that [i]f applicable nonbankruptcy law... fixes a period within which the debtor may commence an action, and such period has not expired before the date of the filing of the petition, the trustee may commence such action before... two years after the order for relief. 11 U.S.C. 108(a)(2). As the court in Fairfield noted, joint liquidators in a chapter 15 case are indistinguishable from trustees with respect to the purpose of Section 108. In re Fairfield Sentry Ltd., 452 B.R. at 60. Here, as in Fairfield, the Petitioners (i) act on behalf of all creditors of the company, (ii) have statutory powers similar to those of a chapter 7 trustee and (iii) are supervised by the applicable court. Accordingly, the Petitioners are entitled to the benefits of section 108 of the Bankruptcy Code, including the tolling of statutes of limitation as specified in section 108(a)(2). 15

16 Pg 16 of 16 relief under section 108 of the Bankruptcy Code, which would toll applicable statutes of limitation, would assist in the English Proceeding by ensuring that the Petitioners have sufficient time to investigate potential causes of action that may benefit all creditors. 8 CONCLUSION For the foregoing reasons, the Petitioners respectfully request that this Court grant the relief requested. Dated: New York, New York February 16, 2012 CHADBOURNE & PARKE LLP By: /s/ Howard Seife Howard Seife A Member of the Firm Attorneys for the Petitioner 30 Rockefeller Plaza New York, New York (212) If the English Proceeding is recognized as a foreign nonmain proceeding, the Petitioners also request relief under section 1521 that tracks the relief granted automatically under section 1520 upon recognition of a foreign main proceeding. In that event, the Petitioners are prepared to demonstrate that they meet the appropriate standards for such relief, including satisfying the traditional standards for obtaining injunctive relief. 16