Jeffrey R. Gleit, Esq. Allison H. Weiss, Esq. SULLIVAN & WORCESTER LLP 1633 Broadway New York, New York 10019 (212) 660-3000 (Telephone) (212) 660-3001 (Facsimile) Counsel to the Reorganized Debtors Hearing Date and Time: December 18, 2018 at 10:00 a.m. (prevailing Eastern Time) Objection Deadline: December 11, 2018 at 4:00 p.m. (prevailing Eastern Time) UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ) In re: ) Chapter 11 ) 21st CENTURY ONCOLOGY HOLDINGS, INC., et al., 1 ) Case No. 17-22770 (RDD) ) Reorganized Debtors. ) (Jointly Administered) ) NOTICE OF REORGANIZED DEBTORS MOTION FOR ENTRY OF AN ORDER (I) CLOSING THE CHAPTER 11 CASE, (II) ENTERING A FINAL DECREE AND (III) GRANTING RELATED RELIEF PLEASE TAKE NOTICE that on November 27, 2018, 21st Century Oncology Holdings, Inc. and its reorganized debtor affiliates (collectively, the Debtors and after the Effective Date 2 of the Plan, the Reorganized Debtors ), filed the attached Reorganized Debtors Motion for Entry of an Order (I) Closing the Chapter 11 Case, (II) Entering a Final Decree and (III) Granting Related Relief (the Motion ) with the United States Bankruptcy Court for the Southern District of New York (the Bankruptcy Court ). PLEASE TAKE FURTHER NOTICE that the Motion is scheduled to be heard by the Bankruptcy Court on December 18, 2018 at 10:00 a.m. (prevailing Eastern Time) before the 1 Each of the Reorganized Debtors in the above-captioned jointly administered chapter 11 cases and their respective tax identification numbers are set forth in the Order Directing Joint Administration of Chapter 11 Cases [Docket No. 30]. The location of 21st Century Oncology Holdings, Inc. s corporate headquarters and the Debtors service address is: 2270 Colonial Boulevard, Fort Myers, Florida 33907. 2 Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Motion.
Honorable Robert D. Drain, United States Bankruptcy Court for the Southern District of New York, 300 Quarropas Street, White Plains, New York 10601 (the Hearing ). PLEASE TAKE FURTHER NOTICE that responses or objections, if any, to the Motion shall (i) be in writing, (ii) conform to the Federal Rules of Bankruptcy Procedure, the Local Bankruptcy Rules for the Southern District of New York, and the Final Order (I) Establishing Certain Notice, Case Management, and Administrative Procedures and (II) Granting Related Relief [Docket No. 125] (the Case Management Order ), and (iii) be filed with the Bankruptcy Court (a) by registered users of the Bankruptcy Court s case filing system, electronically in accordance with General Order M 399 (which can be found at http://www.nysb.uscourts.gov) and (b) by all other parties in interest, on a CD-ROM, in textsearchable portable document format (PDF) (with a hard copy delivered directly to Chambers as set forth in the Case Management Order), in accordance with the customary practices of the Bankruptcy Court and General Order M 399, to the extent applicable, and served upon the undersigned counsel and on the Service List (as defined in the Case Management Order) so as to be actually received on or before December 11, 2018, at 4:00 p.m. (prevailing Eastern Time) (the Objection Deadline ). PLEASE TAKE FURTHER NOTICE that, if no Objections to the Motion are timely filed and served, the Reorganized Debtors shall, on or after the Objection Deadline, submit to the Bankruptcy Court an order substantially in the form annexed as Exhibit A to the Motion, which the Bankruptcy Court may enter, granting the Motion, with no further notice or opportunity to be heard. 2
PLEASE TAKE FURTHER NOTICE that the Hearing may be continued or adjourned thereafter from time to time without further notice other than an announcement of the adjourned date or dates in open court at the Hearing. PLEASE TAKE FURTHER NOTICE that copies of the Motion, Case Management Order and all other documents filed in the chapter 11 cases may be obtained free of charge by visiting the website of Kurtzman Carson Consultants LLC, at www.kccllc.net/21co. You may also obtain copies of any pleadings by visiting the Bankruptcy Court s website at http://www.nysb.uscourts.gov in accordance with the procedures and fees set forth therein. Dated: New York, New York November 27, 2018 SULLIVAN & WORCESTER LLP By: /s/ Jeffrey R. Gleit Jeffrey R. Gleit, Esq. Allison H. Weiss, Esq. 1633 Broadway New York, New York 10019 (212) 660-3000 (Telephone) (212) 660-3001 (Facsimile) jgleit@sandw.com aweiss@sandw.com Counsel for the Reorganized Debtors 3
Hearing Date and Time: December 18, 2018 at 10:00 a.m. (prevailing Eastern Time) Objection Deadline: December 11, 2018 at 4:00 p.m. (prevailing Eastern Time) Jeffrey R. Gleit, Esq. Allison H. Weiss, Esq. SULLIVAN & WORCESTER LLP 1633 Broadway New York, New York 10019 (212) 660-3000 (Telephone) (212) 660-3001 (Facsimile) Counsel to the Reorganized Debtors UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ) In re: ) Chapter 11 ) 21st CENTURY ONCOLOGY HOLDINGS, INC., et al., 1 ) Case No. 17-22770 (RDD) ) Reorganized Debtors. ) (Jointly Administered) ) REORGANIZED DEBTORS MOTION FOR ENTRY OF AN ORDER (I) CLOSING THE CHAPTER 11 CASE, (II) ENTERING A FINAL DECREE AND (III) GRANTING RELATED RELIEF 1 Each of the Reorganized Debtors in the above-captioned jointly administered chapter 11 cases and their respective tax identification numbers are set forth in the Order Directing Joint Administration of Chapter 11 Cases [Docket No. 30]. The location of 21st Century Oncology Holdings, Inc. s corporate headquarters and the Debtors service address is: 2270 Colonial Boulevard, Fort Myers, Florida 33907.
TABLE OF CONTENTS JURISDICTION AND VENUE... 1 BACKGROUND... 1 A. The Plan... 2 B. The Claims Administration Process... 4 C. Vote Changes... 6 D. Prior Motion to Close Certain Bankruptcy Cases... 7 E. The Claims Reconciliation Process and Outstanding Claims... 7 RELIEF REQUESTED... 8 BASIS FOR RELIEF REQUESTED... 8 RESERVATION OF RIGHTS... 12 NOTICE... 12 NO PRIOR REQUEST... 12 i
TABLE OF AUTHORITIES Cases In re BankEast Corp., 132 B.R. 665 (Bankr. D.N.H. 1991)... 10 In re Federated Dep t Stores, Inc., 43 F. App x 820 (6th Cir. 2002)... 9 In re Gates Community Chapel of Rochester, Inc., 212 B.R. 220 (Bankr. W.D.N.Y. 1997)... 9-10 In re Kliegl Bros. Universal Elec. Stage Lighting Co., Inc., 238 B.R. 531 (Bankr. E.D.N.Y. 1999)... 9 In re Mold Makers, Inc., 124 B.R. 766 (Bankr. N.D. Ill. 1990)... 8, 9 In re Pulp Finish 1 Co., 2014 Bankr. LEXIS 189 (Bankr. S.D.N.Y. Jan. 16, 2014)... 9 In re Shotkoski, 420 B.R. 479 (8th Cir. BAP 2009)... 9 In re SLI, Inc., Case No. 02-12608, 2005 WL 1668396 (Bankr. D. Del. 2005)... 9 Statutes and Rules 11 U.S.C. 101(5)... 5 11 U.S.C. 105(a)... 1 11 U.S.C. 350(a)... 1, 8 11 U.S.C. 1107... 4 11 U.S.C. 1101(2)... 3, 9, 10 11 U.S.C. 1107(a)... 1 11 U.S.C. 1108... 2 11 U.S.C. 1129(b)... 3 28 U.S.C. 157... 1 28 U.S.C. 157(b)(2)... 1 28 U.S.C. 1334... 1 28 U.S.C. 1408... 1 28 U.S.C. 1409... 1 ii
Fed. R. Bankr. P. 1015(b)... 2 Fed. R. Bankr. P. 3022... 1, 8, 9, 10 Local Bankruptcy Rule 3022-1... 1, 8 Other Authorities Fed. R. Bankr. P. 3022 Advisory Committee Note (1991)... 9, 10 iii
The above-captioned reorganized debtors (collectively, the Reorganized Debtors and, prior to the Effective Date, as defined herein, the Debtors ), hereby file this motion (the Motion ), pursuant to sections 105(a) and 350(a) of title 11 of the United States Code (the Bankruptcy Code ), Rule 3022 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ) and Rule 3022-1 of the Local Rules of Bankruptcy Procedure for the United States Bankruptcy Court for the Southern District of New York (the Local Rules ), for the entry of an order in substantially in the form attached hereto as Exhibit A (i) closing the remaining open bankruptcy case, Case No. 17-22770, In re 21st Century Oncology Holdings, Inc. (the Bankruptcy Case ); (ii) entering a final decree; and (iii) granting related relief. In support of this Motion, the Reorganized Debtors respectfully represent as follows: JURISDICTION AND VENUE 1. The United States Bankruptcy Court for the Southern District of New York (the Bankruptcy Court ) has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334. This matter is a core proceeding within the meaning of 28 U.S.C. 157(b)(2). 2. Venue is proper before this Court pursuant to 28 U.S.C. 1408 and 1409. 3. The statutory predicates for the relief requested herein are sections 105(a) and 350(a) of the Bankruptcy Code, Bankruptcy Rule 3022, and Local Rule 3022-1. BACKGROUND 4. On May 25, 2017 (the Petition Date ), each of the sixty-one (61) Debtors filed a voluntary petition for relief under the Bankruptcy Code in the United States Bankruptcy Court for the Southern District of New York (the Bankruptcy Court ), Case No. 17-22770 (Hon. Robert Drain) (the Chapter 11 Cases ). Prior to the Effective Date, the Debtors operated their businesses and managed their properties as debtors in possession pursuant to sections 1107(a)
and 1108 of the Bankruptcy Code. No request for the appointment of a trustee or examiner was made in the Chapter 11 Cases. 5. On May 26, 2017, the Court entered the Order on Debtors' Motion for Entry of an Order Directing Joint Administration of Chapter 11 Cases (the Joint Administration Order ), allowing the Chapter 11 Cases to be procedurally consolidated and jointly administered pursuant to Bankruptcy Rule 1015(b) [Docket No. 30]. Pursuant thereto, the Debtors chapter 11 cases were consolidated procedurally and jointly administered by the Bankruptcy Court under the Lead Case. 6. On June 15, 2017, the United States Trustee for the Southern District of New York (the U.S. Trustee ), pursuant to Bankruptcy Code section 1102, appointed an official committee of unsecured creditors (the Committee ) [Docket No. 92]. On June 16, 2017, the U.S. Trustee filed an Amended Notice of Appointment of Official Committee of Unsecured Creditors [Docket No. 94]. A. The Plan 7. On January 9, 2018, the Court held a hearing to consider confirmation of the Plan (as defined herein) (the Confirmation Hearing ). 8. On January 11, 2018, the Court entered the Findings of Fact, Conclusions of Law, and Order Confirming the Joint Chapter 11 Plan of Reorganization of 21 st Century Oncology Holdings, Inc. and Its Debtor Affiliates Pursuant to Chapter 11 of the Bankruptcy Code [Docket No. 915] (the Confirmation Order ) confirming the Debtors Joint Chapter 11 Plan of Reorganization of 21 st Century Oncology Holdings, Inc. and Its Debtor Affiliates Pursuant to Chapter 11 of the Bankruptcy Code [Docket No. 522] (the Plan ). 9. Claims in Class 6 (General Unsecured Claims) voted to reject the Plan at the following Debtors: (i) 21 st Century of Florida Acquisition, LLC; (ii) Associates in Radiation 2
Oncology Services, LLC; (iii) Boynton Beach Radiation Oncology, LLC; (iv) California Radiation Therapy Management Services, Inc.; (v) OnCure Medical Corp.; (vi) SFRO Holdings, LLC; and (vii) U.S.Cancer Care, Inc. (collectively, the Class 6 Rejected Debtors ). 1 Under section 1129(b) of the Bankruptcy Code, the Plan was nevertheless confirmed, although all rights were reserved with respect to resolving the Class 6 Rejected Debtors disputes so that the Class 6 Rejected Debtors could become accepting Debtors at Class 6 to allow for the distribution of New Warrants to Class 11 as contemplated by the Plan. The Reorganized Debtors have also worked to resolve interests at 21C Holdings, the sole Debtor that had interests in Class 11 that voted to reject the Plan (the Class 11 Rejected Debtor ). 10. The Plan became effective on January 16, 2018 (the Effective Date ) [Docket No. 919]. 11. On the Effective Date, pursuant to Section 9.4 of the Plan and Paragraph 152(a) of the Confirmation Order, the Plan was deemed substantially consummated under Bankruptcy Code section 1101(2). 2 1 When the Amended Certification with respect to the tabulation of votes on the Plan was filed [Docket No. 865], the Lead Case was one of the Class 6 Rejected Debtors. Subsequent thereto, however, four Class 6 claimants of the Lead Case Debtor revised their ballots in favor of the Plan and the Lead Case became an accepting Debtor at Class 6. 2 Bankruptcy Code section 1101(2) provides: [S]ubstantial consummation means (A) transfer of all or substantially all of the property proposed by the plan to be transferred; (B) assumption by the debtor or by the successor to the debtor under the plan of the business or of the management of all or substantially all of the property dealt with by the plan; and (C) commencement of distribution under the plan. 11 U.S.C. 1101(2). 3
B. The Claims Administration Process 12. On May 26, 2017, the Bankruptcy Court entered the Order Extending Time to File Schedules of Assets and Liabilities, Schedules of Current Income and Expenditures, Schedules of Executory Contracts and Unexpired Leases, Statements of Financial Affairs, and Rule 2015.3 Financial Reports [Docket No. 34], and on July 10, 2017, the Debtors filed their respective statements of financial affairs and schedules of assets and liabilities on each Debtors respective chapter 11 docket [see, e.g., Docket Nos. 190 and 192], pursuant to Bankruptcy Rule 1007. 13. On July 10, 2017, the Debtors filed their respective schedules of assets and liabilities (as amended from time to time, the Schedules ) [Docket No. 190] pursuant to Bankruptcy Rule 1007 and the Order Extending Time to File Schedules of Assets and Liabilities, Schedules of Current Income and Expenditures, Schedules of Executory Contracts and Unexpired Leases, Statements of Financial Affairs, and Rule 2015.3 Financial Reports [Docket No. 34]. 14. On July 24, 2017, the Court entered an Order (A) Setting a Bar Date for Filing Proofs of Claim, Including Claims Arising Under Section 503(B)(9) of the Bankruptcy Code, (B) Setting a Bar Date for the Filing Of Proofs of Claim By Governmental Units, (C) Setting an Amended Schedules Bar Date, (D) Setting Rejection Damages Bar Date, (E) Approving the Form of and Manner for Filing Proofs of Claim, (F) Approving Notice of the Bar Dates, and (G) Granting Related Relief (the Bar Date Order ) [Docket No. 253], pursuant to which the Bankruptcy Court, among other things, established September 5, 2017, at 5:00 p.m. (prevailing 4
Eastern Time), as the deadline for all non-governmental entities holding or wishing to assert a claim (as defined in section 101(5) of the Bankruptcy Code). 3 15. On January 16, 2018, the Debtors filed the Debtors Motion for Entry of an Order (A) Establishing the Maximum Unsecured Claims Amount and the Disputed Claims Reserve for the Purpose of Making Distributions of the New Common Stock, (B) Authorizing the Debtors to Make Distributions of the New Common Stock on Account of Allowed Unsecured Claims, and (C) Granting Related Relief (the Reserve Motion ) [Docket No. 920]. In the Reserve Motion, the Debtors, inter alia, set forth certain amounts that the Debtors would reserve on account of various disputed claims. 16. On February 1, 2018, the Bankruptcy Court entered the Order (A) Establishing the Maximum Unsecured Claims Amount and the Disputed Claims Reserve for the Purpose of Making Distributions of the New Common Stock, (B) Authorizing the Debtors to Make Distributions of the New Common Stock on Account of Allowed Unsecured Claims, and (C) Granting Related Relief (the Reserve Order ) [Docket No. 945]. The Reserve Order, inter alia, reserved 22.35% of the New Common Stock issued on the Effective Date (the Aggregate Reserve Amount ) in the Disputed Claims Reserve, 4 the full amount of which shall be available for distribution to each holder of each Equity GUC Claim, if and when any such Claim (or any portion thereof) becomes Allowed (x) in an amount greater than $1,000,000 or (y) in any amount if the holder of such Claim made the New Common Stock Election, in accordance with the Plan. 3 The Bar Date Order established November 21, 2017, at 5:00 p.m. (prevailing Eastern Time) as the deadline for all governmental units asserting a claim (as defined in section 101(5) of the Bankruptcy Code) against the Debtors that arose on or prior to the Petition Date to file written proof of such claim. 4 Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Reserve Motion and/or the Reserve Order. 5
17. On March 12, 2018, the Bankruptcy Court entered the Order (I) Approving (A) Omnibus Claims Objection Procedures and (B) Omnibus Claims Satisfaction Procedures, (II) Authorizing the Reorganized Debtors to File Substantive Omnibus Objections to Claims Pursuant to Bankruptcy Rule 3007(e)(6) [Docket No. 1023] (the Omnibus Procedures Order ), setting forth certain procedures with respect to the claims reconciliation process. 18. The Reorganized Debtors have proceeded expeditiously towards resolving and, where appropriate, objecting to and expunging claims. In total, 2,713 proofs of claim were filed against the Debtors estates in the aggregate amount of approximately $729,600,000. 19. Since the Effective Date, the Reorganized Debtors have completed an exhaustive review of the Proofs of Claim and compared them to their books and records. The Reorganized Debtors have (i) resolved a significant number of claims consensually with stipulations, (ii) determined that a number of claims were consistent with their books and records and should be allowed, and (iii) filed ten (10) omnibus claims objections, pursuant to which the Bankruptcy Court has entered orders granting the relief requested therein C. Vote Changes 20. As discussed at the Confirmation Hearing and explicitly provided for in the Confirmation Order, the Reorganized Debtors have worked tirelessly to (i) resolve Class 6 Claims at the Class 6 Rejecting Debtors so that such claims would either accept or be deemed to have accepted the Plan, and (ii) resolve Class 11 Interests at the Class 11 Rejecting Debtor so that such interests will accept the Plan. This would allow the Reorganized Debtors to distribute New Warrants to Class 11 as contemplated by the Plan. 21. To date, the Reorganized Debtors have made substantial progress in this regard and anticipate filing shortly a Notice of Second Amended Certification of James Lee with respect to the Tabulation of Votes on the Joint Chapter 11 Plan of Reorganization of 21st Century 6
Oncology Holdings, Inc. and its Debtor Affiliates. The Reorganized Debtors anticipate that they will file such notice in advance of the hearing on this Motion. D. Prior Motion to Close Certain of the Bankruptcy Cases 22. On March 7, 2018, the Reorganized Debtors filed the Reorganized Debtors Motion for Entry of an Order (I) Directing Administrative Consolidation of Claims Filed in Certain Jointly Administered Chapter 11 Cases, (II) Closing Certain Chapter 11 Cases, (III) Entering Final Decrees in the Closing Cases and (IV) Granting Related Relief (the Motion to Close ) [Docket No. 1019]. The Court entered an Order granting the Motion to Close on March 23, 2018 (the Order Closing Cases ). The Order Closing Cases closed sixty (60) of the sixtyone (61) jointly-administered Chapter 11 Cases, leaving the Bankruptcy Case as the only open case. E. Claims Reconciliation Progress and Outstanding Claims 23. As of the date of this filing, the Reorganized Debtors have resolved all but three (3) of the 2,713 proofs of claim that were filed against the Debtors estates. Specifically, the following three (3) claims remain unresolved: (i) Claim 175 filed by claimant Andrew L. Woods (the Woods Claim ), which is subject to an objection [Docket No. 1201], (ii) Claim 1782 filed by Laura A. Hudson, Individually and as Personal Representative of the Estate of Todd Michael Hudson (the Hudson Claim ), which is subject to the Tenth Omnibus Objection [Docket No. 1221] and (iii) Claim 1150, an alleged administrative expense claim, filed by The Doctors Company (the TDC Claim ), which is subject to the Eighth Omnibus Objection [Docket No. 1204], and currently scheduled for a hearing on December 13, 2018 (collectively, the Outstanding Claims ). 24. As described below, the Reorganized Debtors have reserved an appropriate amount of equity to satisfy the Woods Claim and the Hudson Claim, should such claims become 7
allowed. Additionally, upon resolution of the TDC Claim, the Reorganized Debtors will pay to The Doctors Company an administrative expense claim, in such amount, if any, that is determined to be due and owing on the TDC Claim. 25. As such, the Reorganized Debtors intend to make distributions on the Convenience Class Claims shortly and anticipate that all such distributions will be complete prior to the hearing on this Motion. Upon completion of the distribution process, the Reorganized Debtors shall file a notice with the Bankruptcy Court indicating that the process has been completed. RELIEF REQUESTED 26. By this Motion, the Reorganized Debtors seek, pursuant to section 350(a) of the Bankruptcy Code, Bankruptcy Rule 3022, and Local Rule 3022-1, entry of an order (i) closing the Bankruptcy Case; (ii) entering a final decree; and (iii) granting related relief. BASIS FOR RELIEF REQUESTED 27. Section 350(a) of the Bankruptcy Code provides that [a]fter an estate is fully administered and the court has discharged the trustee, the court shall close the case. 11 U.S.C. 350(a). Further, Bankruptcy Rule 3022 provides that [a]fter an estate is fully administered in a chapter 11 reorganization case, the court, on its own motion or on motion of a party interest, shall enter a final decree closing the case. Fed. R. Bankr. P. 3022. 28. The phrase fully administered is not defined in the Bankruptcy Code or in the Bankruptcy Rules, however, fully administered can be interpreted in various ways. At one extreme, an estate could be fully administered when a Chapter 11 plan is confirmed and the estate dissolves... [a]t the other extreme, an estate could be fully administered when all that is called for under a plan occurs. In re Mold Makers, Inc., 124 B.R. 766, 768 (Bankr. N.D. Ill. 1990). 8
29. Bankruptcy Rule 3022 gives the court flexibility in determining whether an estate is fully administered. In re Federated Dep t Stores, Inc., 43 F. App x 820, 822 (6th Cir. 2002); see also, In re Pulp Finish 1 Co., 2014 Bankr. LEXIS 189, at *38 (Bankr. S.D.N.Y. Jan. 16, 2014) (noting that Bankruptcy Rule 3022 is flexible). In fact, bankruptcy courts are charged with reviewing each request for entry of a final decree on a case-by-case basis in determining whether an estate has been fully administered. In re Shotkoski, 420 B.R. 479, 483 (8th Cir. BAP 2009). 30. The Advisory Committee Note to Bankruptcy Rule 3022 explains that courts may consider the following factors when determining whether an estate has been fully administered: whether the order confirming the plan has become final; whether deposits required by the plan have been distributed; whether the property proposed by the plan to be transferred has been transferred; whether the debtor or the successor of the debtor under the plan has assumed the business or the management of the property dealt with by the plan; whether payments under the plan have commenced; and whether all motions, contested matters, and adversary proceedings have been finally resolved. Fed. R. Bankr. P. 3022 Advisory Committee Note (1991). However, several courts have noted that these six (6) factors are not requirements rather, they are non-exclusive guides used in determining if a case has been fully administered. See In re Kliegl Bros. Universal Elec. Stage Lighting Co., Inc., 238 B.R. 531, 542 (Bankr. E.D.N.Y. 1999); In re SLI, Inc., Case No. 02-12608, 2005 WL 1668396, at *2 (Bankr. D. Del. 2005); In re Mold Makers, Inc., 124 B.R. at 768. Other courts have found that a Chapter 11 case should be considered fully administered when it reaches a point of substantial consummation as defined in Section 1101(2) [of the Bankruptcy Code]. In re Gates Community Chapel of Rochester, Inc., 212 B.R. 220, 224 9
(Bankr. W.D.N.Y. 1997) (citing Walnut Assocs. v. Saidel, 164 B.R. 487 (E.D. Pa. 1994); accord In re BankEast Corp., 132 B.R. 665 (Bankr. D.N.H. 1991). Section 1101(2) of the Bankruptcy Code defines substantial consummation as: 11 U.S.C. 1101(2). (A) transfer of all or substantially all of the property proposed by the plan to be transferred; (B) assumption by the debtor or by the successor to the debtor under the plan of the business or of the management of all or substantially all of the property dealt with the plan; and (C) commencement of distribution under the plan. 31. Here, all or substantially all of the factors provided in the Advisory Committee Note to Bankruptcy Rule 3022 have been satisfied. (i) the Confirmation Order is final; (ii) the restructuring transactions provided for in the Plan have been effectuated and deposits have been distributed; (iii) the property proposed by the Plan to be transferred has been transferred, deposited or put into escrow to resolve open claims, including the deposit of $2,600,000.00 to satisfy General Unsecured Claims upon the resolution of such claims (the GUC Pool ); (iv) the Reorganized Debtors have reserved an appropriate amount of equity to satisfy the Woods Claim and the Hudson Claim, should such claims become allowed (see paragraphs 32-33 below); (v) upon resolution of the TDC Claim, the Reorganized Debtors will pay to The Doctors Company an administrative expense claim, in such amount, if any, that is determined to be due and owing on the TDC Claim (see paragraph 34 below); (vi) the Reorganized Debtors have begun making distributions on account of allowed General Unsecured Claims from the GUC Pool; (vii) the Reorganized Debtors have assumed the business and the management of the companies; (viii) payments in the form of distributions of New Common Stock have commenced; (ix) by the time of the hearing on this Motion, the Reorganized Debtors will have successfully resolved claims so to convert the Class 6 Rejected Debtors into accepting Debtors at Class 6, and thus the 10
Reorganized Debtors will soon commence the issuance of New Warrants as contemplated by the Plan; and (x) all motions and contested matters have been resolved. 32. As referenced above, the Reorganized Debtors have reserved an appropriate amount of equity to satisfy both of the Woods Claim and the Hudson Claim. Specifically, on account of the Woods Claim, and pursuant to the Reserve Motion and Reserve Order, the Reorganized Debtors have already reserved sufficient stock to satisfy an allowed unsecured claim in the amount of $11,084,395.46 (the Woods Reserve ). The Reorganized Debtors submit that the Woods Reserve exceeds any reasonable estimate of the maximum allowable amount of the Woods Claim. The Reorganized Debtors shall maintain the Woods Reserve until the Woods Claim is fully and finally resolved. 33. Further, on account of the Hudson Claim and consistent with the Stipulation and Agreed Order to Lift Stay endorsed by this Bankruptcy Court on November 6, 2017 [Docket No. 644], the Reorganized Debtors have reserved stock sufficient to satisfy an allowed unsecured claim in the amount of $2,000,000.00 (the Hudson Reserve ). The Reorganized Debtors submit that the Hudson Reserve exceeds any reasonable estimate of the maximum allowable amount of the Hudson Claim. The Reorganized Debtors shall maintain the Hudson Reserve until the Hudson Claim is fully and finally resolved. 34. Accordingly, because the reserves exceed any reasonable estimates of the maximum allowable amounts of the Woods Claim and the Hudson Claim, and, because any payment in satisfaction of the TDC Claim will not be out of the GUC Pool, the closing of the Bankruptcy Case can occur notwithstanding the Outstanding Claims. 35. Moreover, in accordance with the Plan, and pursuant to the Confirmation Order, the Plan was substantially consummated on the Effective Date. Closing the Bankruptcy Case 11
will help the Reorganized Debtors business going forward and allow the Reorganized Debtors to distance themselves from the perceived stigma of bankruptcy. 36. The Reorganized Debtors remain focused on ensuring their successful emergence from chapter 11. In furtherance thereof and because (i) the Plan is substantially consummated, and (ii) closure of the Bankruptcy Case will not impair or affect the rights of any economic party in interest, the Reorganized Debtors respectfully request that the relief requested herein be granted. RESERVATION OF RIGHTS 37. The Reorganized Debtors reserve the right, in accordance with applicable law, to further supplement this Motion as necessary. NOTICE 38. The Reorganized Debtors will provide notice to (a) the U.S. Trustee, (b) the Committee Designee, and (c) parties on the Service List as defined in the Case Management Order. In light of the nature of the relief requested, the Reorganized Debtors submit that no other or further notice is necessary. NO PRIOR REQUEST 39. No prior request for the relief sought in this Motion has been made to this Court or any other court in connection with these Chapter 11 Cases. [Remainder of page intentionally left blank] 12
WHEREFORE, the Reorganized Debtors respectfully request that the Court enter an order granting the relief requested herein and such other and further relief as the Court deems just and proper. Dated: New York, New York November 27, 2018 SULLIVAN & WORCESTER LLP By: /s/ Jeffrey R. Gleit Jeffrey R. Gleit, Esq. Allison H. Weiss, Esq. 1633 Broadway New York, New York 10019 (212) 660-3000 (Telephone) (212) 660-3001 (Facsimile) jgleit@sandw.com aweiss@sandw.com _ Counsel for the Reorganized Debtors 13
Exhibit A Proposed Order
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ) In re: ) Chapter 11 ) 21st CENTURY ONCOLOGY HOLDINGS, INC., et al., 1 ) Case No. 17-22770 (RDD) ) Reorganized Debtors. ) (Jointly Administered) ) ORDER (I) CLOSING THE OUTSTANDING CHAPTER 11 CASE, (II) ENTERING A FINAL DECREE AND (III) GRANTING RELATED RELIEF Upon consideration of the Reorganized Debtors Motion for Entry of an Order (I) Closing the Outstanding Chapter 11 Case, (II) Entering a Final Decree and (III) Granting Related Relief [Docket No. ] (the Motion ) 2 ; and it appearing that this Court has jurisdiction to consider the Motion and the relief requested therein pursuant to 28 U.S.C. 157 and 1334; and it appearing that venue of these chapter 11 cases and the Motion in this district is proper pursuant to 28 U.S.C. 1408 and 1409; and it appearing that this is a core proceeding pursuant to 28 U.S.C. 157(b); and the Court having considered the Motion, all related pleadings and documents, and the record established in these chapter 11 cases; and the Court having found that due and proper notice and service of the Motion has been given and that no other further notice or service of the Motion need be given; and the Court having found that the relief sought in the Motion is in the best interests of the Reorganized Debtors, the Debtors estates, their creditors, and other parties in interest; and the Court having found that the relief sought in the Motion is appropriate under the circumstances, consistent with applicable law, and necessary to effectuate 1 Each of the Reorganized Debtors in the above-captioned jointly administered chapter 11 cases and their respective tax identification numbers are set forth in the Order Directing Joint Administration of Chapter 11 Cases [Docket No. 30]. The location of 21st Century Oncology Holdings, Inc. s corporate headquarters and the Debtors service address is: 2270 Colonial Boulevard, Fort Myers, Florida 33907. 2 Capitalized terms used but not defined herein shall have the respective meanings ascribed to them in the Motion.
the purposes of the Plan, and that good and sufficient cause exists for granting the relief set forth herein; and after due deliberation and sufficient cause appearing therefor, IT IS HEREBY ORDERED THAT: 1. The Motion is GRANTED as set forth herein. 2. The Bankruptcy Case is hereby closed. 3. Entry of this Order is without prejudice to the rights of the Debtors, the Reorganized Debtors, or any other party in interest, to seek to reopen the Bankruptcy Case for good cause shown in accordance with 11 U.S.C. 350(b). 4. The Reorganized Debtors shall maintain the Hudson Reserve and the Woods Reserve until the respective claims are fully and finally resolved. When such claims are resolved, the Reorganized Debtors shall, from the reserve, make appropriate distributions thereon. 5. The Reorganized Debtors and their agents are authorized to take all actions necessary to effectuate the relief granted in accordance with the Motion and pursuant to this Order. 6. The terms and conditions of this Order shall be immediately effective and enforceable upon entry of this Order. 7. This Court shall retain jurisdiction with respect to all matters arising from or related to the implementation of this Order, including to hear and determine all matters relating to the chapter 11 cases and the Plan, without prejudice to the Reorganized Debtors right to reopen any of the chapter 11 cases pursuant to section 350(b) of the Bankruptcy Code. 8. Within fourteen (14) days after entry of this Order, the Debtors shall pay any fees due to the U.S. Trustee pursuant to 28 U.S.C. section 1930, to the extent not already paid.
IT IS SO ORDERED. White Plains, New York Dated:, 2018 THE HONORABLE ROBERT D. DRAIN UNITED STATES BANKRUPTCY JUDGE