Case 14-51720 Doc 749 Filed 07/27/15 Entered 07/27/15 175723 Desc Main Document Page 1 of 15 Robinson- Cole PATRICK M. BIRNEY 280 Trumbull Street Hartford, CT 06103-3597 Main (860) 275-8200 Fax (860) 275-8299 pbirney@rc.com Direct (860) 275-8275 Also admitted in Massachusetts VIA ECF & E-MAIL July 27, 2015 The Honorable Alan H.W. Shiff United States Bankruptcy Judge United States Bankruptcy Court District of Connecticut 915 Lafayette Street Bridgeport, Connecticut 06604 Re In re O.W. Bunker Holding North America, Inc., et al. Case No. 14-51720 Dear Judge Shiff We represent O.W. Bunker Holding North America, Inc., O.W. Bunker North America Inc., and O.W. Bunker USA Inc. (the "Debtors"), in regard to the above-captioned jointly-administered bankruptcy cases. We write to advise the Court of slippage in the anticipated time frame for approval of plan terms by the various parties and to request that the previously scheduled August 4, 2015 hearing be converted to a status and scheduling conference on the plan process and related matters. When we were before Your Honor on June 30, 2015 we explained that the schedule for confirming a bankruptcy plan in these cases was tight and that we expected that the various constituencies would approve plan terms by mid-july. Despite considerable efforts, we have not been able to accomplish that goal. The Debtors continue to push this process forward and remain optimistic that this process will culminate in a consensual plan shortly. However, on July 8 the Debtors also reached out to Judge Nevas to schedule a further in-person mediation session to assist with finalizing plan terms if the parties are unable to finalize plan terms among themselves. On July 9, Judge Nevas provided several available dates in July but scheduling Boston I Hartford I New York I Providence I Stamford I Albany I Los Angeles I New London I Sarasota I rc.com Robinson & Cole LLP
Case 14-51720 Doc 749 Filed 07/27/15 Entered 07/27/15 175723 Desc Main Document Page 2 of 15 Robinson+Cole The Honorable Alan H.W. Shiff July 27, 2015 Page 2 conflicts involving certain parties have made it difficult to schedule a firm date; the Debtors will continue to pursue this to the extent the parties are not able to finalize plan terms among themselves in the interim. The Debtors would also request time on August 4, 2015 to discuss modifications to Your Honor's previously entered Scheduling Order [Doc ID No. 716] regarding plan confirmation. Mid-July approvals by ING Bank, the Committee and NuStar were an essential assumption to the parties' agreement to entry of the Scheduling Order. Without these approvals, the Debtors chose not to file their section 503(b)(9) claim objection on July 15, 2015 and, consequently, no objections will be before the Court at the August 4, 2015 hearing. The Debtors also believe that the review and approval of the necessary plan documents will extend beyond the currently scheduled August 7, 2015 filing date set out in the scheduling order. In addition, the slippage to the schedule requires a further extension of the exclusive periods by which the Debtors may file and solicit a plan. Concurrent with the filing of this letter, the Debtors have filed their Third Motion to Extend Exclusivity and a motion to shorten notice. Due to the emergent nature of this filing, the Debtors will respectfully request in the motion to shorten notice that Your Honor set August 4, 2015 as the hearing date for the exclusivity extension (the "Exclusivity Hearing") and enter a proposed Bridge Order extending exclusivity from July 31, 2015 to the Exclusivity Hearing. The Debtors have conferred, or sought to confer, with ING Bank, the Committee and NuStar regarding entry of the Bridge Order. Both ING Bank and Committee Counsel have generally indicated their support for an exclusivity extension. At the time of submitting this letter, NuStar had not advised the Debtors of its position on the Bridge Order. Finally, Your Honor recently requested that the Debtors prepare a letter to District Judge Valerie E. Caproni, United States District Court for the Southern District of New York, updating her on the status of the Debtors' bankruptcy cases. The Debtors drafted the requested letter but wanted to raise the request for an August 4, 2015 status conference, as well as exclusivity and scheduling issues, with Your Honor prior to delivering the letter to Judge Caproni. The Debtors wish to reassure Your Honor that Judge Caproni has been advised of the status of these bankruptcy cases on several occasions, including during a June 19, 2015 omnibus status conference on the interpleader actions currently pending in her court. A copy of her scheduling order is enclosed for the Court's information. -2-
Case 14-51720 Doc 749 Filed 07/27/15 Entered 07/27/15 175723 Desc Main Document Page 3 of 15 Robinson+Cole The Honorable Alan H.W. Shiff July 27, 2015 Page 3 The undersigned is available should the Court have any questions regarding these requests. Respectful) submitted, Patric irney Enclosure Copy Via ECF to Natalie Ramsey, Esq. (via e-mail) Richard Placey, Esq. (via e-mail) Davis Wright, Esq. (via e-mail) Michael Enright, Esq. (via e-mail) Michael M. Parker, Esq. (via e-mail) Eric Henzy, Esq. (via e-mail) Peter Partee, Esq. (via e-mail) Michael Richman, Esq. (via e-mail) Daniel Guyer, Esq. (via e-mail) Craig Lifland, Esq. (via e-mail)
Case 114-cv-09262-VEC Document 72 Filed 06/30/15 Page 1 of 12 Case 14-51720 Doc 749 Filed 07/27/15 Entered 07/27/15 175723 Desc Main Document Page 4 of 15 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UPT POOL LTD., DYNAMIC OIL TRADING (SINGAPORE) PTE. LTD., O.W. BUNKER USA INC., O.W. BUNKER NORTH AMERICA INC., O.W. BUNKER HOLDING NORTH AMERICA INC., HARLEY MARINE SERVICES, INC., ING BANK N.V., BIRCH SHIPPING LTD., O.W. BUNKER CHINA LTD. (HK), O.W. BUNKER USA INC., O.W. BUNKER NORTH AMERICA INC., O.W. BUNKER HOLDING NORTH AMERICA INC., O.W. BUNKER & TRADING A/S, CHEMOIL LATIN AMERICA, INC., ING BANK N.V., Defendants CLEARLAKE SHIPPING PTE LTD., Plaintiffs, Defendants O.W. BUNKER (SWITZERLAND) SA, O.W. BUNKER USA INC., O.W. BUNKER NORTH AMERICA INC., O.W. BUNKER HOLDING NORTH AMERICA INC., WESTOIL MARINE SERVICES, INC., ING BANK N.V., USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC # DATE FILED 6/30/2015 14-CV-9262 (VEC) 14-CV-9282 (VEC) 14-CV-9286 (VEC)
Case 114-cv-09262-VEC Document 72 Filed 06/30/15 Page 2 of 12 Case 14-51720 Doc 749 Filed 07/27/15 Entered 07/27/15 175723 Desc Main Document Page 5 of 15 CLEARLAKE SHIPPING PTE LTD, O.W. BUNKER (SWITZERLAND) SA, O.W. BUNKER USA INC., O.W. BUNKER NORTH AMERICA INC., O.W. BUNKER HOLDING NORTH AMERICA INC., NUSTAR ENERGY SERVICES INC., ING BANK N.V., Defendants BONNY GAS TRANSPORT LIMITED, as owner of the LNG FINIMA (IMO No. 7702401), O.W. BUNKER GERMANY GMBH, NUSTAR TERMINALS MARINE SERVICES N.V., NUSTAR ENERGY SERVICES, INC., ING BANK N.V., MT CAPE BIRD TANKSCHIFFAHRTS GMBH & CO. KG, individually and on behalf of M/T CAPE BIRD (IMO No. 9260067), O.W. USA INC., O.W. NORTH AMERICA INC., HARLEY MARINE SERVICES, INC., ING BANK N.V., 14-CV-9287 (VEC) 14-CV-9542 (VEC) 14-CV-9646 (VEC) 2
Case 114-cv-09262-VEC Document 72 Filed 06/30/15 Page 3 of 12 Case 14-51720 Doc 749 Filed 07/27/15 Entered 07/27/15 175723 Desc Main Document Page 6 of 15 SHV GAS SUPPLY & RISK MANAGEMENT SAS AND EMAR SHIPPING BVBA, as owner of the WAREGEM (IMO No. 9659127), Plaintiffs, O.W. BUNKER USA, INC., O.W. BUNKER HOLDING NORTH AMERICA INC., O.W. BUNKER NORTH AMERICA INC., NUSTAR ENERGY SERVICES, INC., ING BANK N.V., HAPAG-LLOYD AKTIENGESELLSCHAFT, U.S. OIL TRADING L.L.C., O.W. BUNKER GERMANY GMBH, O.W. BUNKER & TRADING A/S, ING BANK N.V., CREDIT AGRICOLE S.A., OSG SHIP MANAGEMENT, INC., and 1372 TANKER CORPORATION as owner of the M/V OVERSEAS MULAN (IMO NO. 9230880), Plaintiffs, O.W. BUNKER USA INC., O.W. BUNKER MIDDLE EAST DMCC, CHEMOIL CORPORATION, CHEMOIL MIDDLE EAST DMCC, GPS CHEMOIL LLC FZC, ING BANK N.V., ------------------------------------------------------------- 14-CV-9720 (VEC) 14-CV-9949 (VEC) 14-CV-9973 (VEC) 3
Case 114-cv-09262-VEC Document 72 Filed 06/30/15 Page 4 of 12 Case 14-51720 Doc 749 Filed 07/27/15 Entered 07/27/15 175723 Desc Main Document Page 7 of 15 HAPAG-LLOYD AKTIENGESELLSCHAFT, O ROURKE MARINE SERVICES L.P., L.L.P., O.W. BUNKER GERMANY GMBH, O.W. BUNKER USA, INC., ING BANK N.V., CONTI 149 CONTI GUINEA, individually and on behalf of M/T CONTI GUINEA (IMO No. 9391402), O.W. BUNKER PANAMA S.A., O.W. BUNKER USA INC., CLEMENTI PARK SHIPPING CO. PTE LTD., ING BANK N.V., NYK BULK & PROJECT CARRIERS LTD., individually and on behalf of M/V OCEAN FRIEND (IMO No. 9401829), O.W. BUNKER USA INC., NUSTAR ENERGY SERVICES, INC., HARLEY MARINE GULF, INC., ING BANK N.V., 14-CV-10027 (VEC) 14-CV-10089 (VEC) 14-CV-10090 (VEC) 4
Case 114-cv-09262-VEC Document 72 Filed 06/30/15 Page 5 of 12 Case 14-51720 Doc 749 Filed 07/27/15 Entered 07/27/15 175723 Desc Main Document Page 8 of 15 NIPPON KAISHA LINE LIMITED, individually and on behalf of M/V RIGEL LEADER (IMO No.9604940), O.W. BUNKER USA INC., NUSTAR ENERGY SERVICES, INC., KIRBY INLAND MARINE LP, ING BANK N.V., HAPAG-LLOYD AKTIENGESELLSCHAFT, O.W. BUNKER NORTH AMERICA, INC., O.W. BUNKER GERMANY GMBH, O.W. BUNKER USA, INC., ING BANK N.V., APL CO. PTE LTD and AMERICAN PRESIDENT LINES, LTD., individually and on behalf of M/V APL SALALAH (IMO No. 9462029), M/V APL ENGLAND (IMO No. 9218650), M/V APL OAKLAND (IMO No. 9332250), M/V APL SOUTHHAMPTON (IMO No. 9462017), M/V APL THAILAND (IMO No. 9077123), M/V APL CHINA (IMO No. 9074389), M/V APL EGYPT (IMO No. 9196905), M/V APL PHILIPPINES (IMO No. 9077276), and, M/V APL YANGSHAN (IMO No. 9462031), Plaintiffs, O.W. BUNKER FAR EAST (SINGAPORE) PTE. LTD, O.W. BUNKER USA INC., O.W. BUNKER NORTH AMERICA INC., WESTOIL MARINE SERVICES, INC., ING BANK N.V., 14-CV-10091 (VEC) 15-CV-00190 (VEC) 15-CV-00620 (VEC) 5
Case 114-cv-09262-VEC Document 72 Filed 06/30/15 Page 6 of 12 Case 14-51720 Doc 749 Filed 07/27/15 Entered 07/27/15 175723 Desc Main Document Page 9 of 15 CANPOTE SHIPPING SERVICES LIMITED, individually and on behalf of M/V GLOBAL PHOENI (IMO No. 9565053), M/V CMB GIULIA (IMO No. 9588419), and M/V ASTON TRADER II (IMO No. 9392731), Plaintiffs, O.W. BUNKERS (UK) LIMITED, O.W. SUPPLY & TRADING A/S, CHEVRON MARINE PRODUCTS LLC, ING BANK N.V., STAR TANKERS INC, individually and on behalf of M/V SHARON SEA (IMO No. 9316232), O.W. BUNKER PANAMA S.A., O.W. BUNKER USA INC., O.W. BUNKER NORTH AMERICA INC., O.W. BUNKER HOLDING NORTH AMERICA INC., ING BANK N.V., SK SHIPPING CO., LTD., and SK B&T PTE. LTD., individually and on behalf of M/V AZURIT (IMO No. 9551703), Plaintiffs, NUSTAR ENERGY SERVICES, INC., O.W. BUNKER MIDDLE EAST DMCC, O.W. BUNKER USA INC., ING BANK N.V., 15-CV-1351 (VEC) 15-CV-2090 (VEC) 15-CV-2141 (VEC) 6
Case 114-cv-09262-VEC Document 72 Filed 06/30/15 Page 7 of 12 Case 14-51720 Doc 749 Filed 07/27/15 Entered 07/27/15 175723 Desc Main Document Page 10 of 15 SIGMA TANKERS INC, individually and on behalf of M/V DUBAI ATTRACTION (IMO No. 9422536), M/V ORCHID (IMO No. 9624079), Plaintiffs, O.W. BUNKER PANAMA S.A., O.W. BUNKER USA INC., O.W. BUNKER NORTH AMERICA INC., O.W. BUNKER HOLDING NORTH AMERICA INC., ING BANK N.V., BAERE MARITIME LLC, individually and on behalf of M/V YASA GOLDEN HORN (IMO No. 9334040), O.W. BUNKER PANAMA S.A., O.W. BUNKER USA INC., O.W. BUNKER NORTH AMERICA INC., O.W. BUNKER HOLDING NORTH AMERICA INC., ING BANK N.V., MSC MEDITERRANEAN SHIPPING COMPANY S.A., O.W. BUNKER NORTH AMERICA INC., O.W. BUNKER USA, INC., O.W. BUNKER (SWITZERLAND) S.A., ING BANK N.V., HARLEY MARINE NY, INC. 15-CV-2733 (VEC) 15-CV-2734 (VEC) 15-CV-3221 (VEC) 7
Case 114-cv-09262-VEC Document 72 Filed 06/30/15 Page 8 of 12 Case 14-51720 Doc 749 Filed 07/27/15 Entered 07/27/15 175723 Desc Main Document Page 11 of 15 O.W. BUNKER USA INC. and O.W. BUNKER NORTH AMERICA INC., Plaintiffs, COSCO PIRAEUS, I.M.O. NO. 9484364, her engines, tackle, equipment, and furnishings, in rem, Defendant. O.W. BUNKER USA INC., M/V BAKKEDAL in rem, Defendant. KAWASAKI KISEN KAISHA, LTD and CATALINA SHIPPING SA, as owner of the M/V Bremen Bridge (IMO No. 9367188), Plaintiffs, O.W. BUNKER MIDDLE EAST DMCC, O.W. BUNKER NORTH AMERICA, INC., ING BANK N.V., HARLEY MARINE NY, INC., and PAUL DAVID COPLEY, IAN DAVID GREEN AND ANTHONY VICTOR LOMAS IN THEIR CAPACITIES AS JOINT RECEIVERS OF THE SECURITY ASSETS, 15-CV-3471 (VEC) 15-CV-3988 (VEC) 15-CV-4138 (VEC) 8
Case 114-cv-09262-VEC Document 72 Filed 06/30/15 Page 9 of 12 Case 14-51720 Doc 749 Filed 07/27/15 Entered 07/27/15 175723 Desc Main Document Page 12 of 15 AMENDED ORDER VALERIE CAPRONI, United States District Judge WHEREAS the above-captioned cases have been assigned or transferred to this Court as cases that are related to UPT Pool Ltd. v. Dynamic Oil Trading (Singapore) Pte. Ltd. et al. (14- CV-9262) (VEC); WHEREAS pursuant to the Court s Orders of April 17, April 29 and June 9, counsel for many of the parties in the above-captioned cases appeared before the Court for a joint conference on June 19, 2015; WHEREAS following the joint conference of June 19, 2015, the Court issued an Order setting various deadlines and staying several of the above-captioned actions; and WHEREAS letters were filed with the Court by counsel for certain Vessel Interests on June 25, 2015, and by counsel for the U.S. O.W. Bunker entities on June 26, 2015 requesting that the the Court s Order of June 19, 2015 be amended in certain respects; IT IS HEREBY ORDERED that 1. The Court understands that in the following cases, the only Defendants with an adverse claim to the funds on deposit in the interpleader action are ING, one or more O.W. Bunker entities, and, in some cases, Harley Marine NY, Inc. or Westoil Marine Services, Inc. (the latter two, collectively Barging Service Providers ) 14-CV-9262, 14-CV-9286, 14-CV-9646, 15-CV-190, 15-CV-620, 15-CV-2090, 15-CV-2733, 15-CV-2734, 15-CV- 3221, 15-CV-3471, 15-CV-3988, and 15-CV-4138. Apart from basic case management procedures, such as filing an Amended Complaint or effecting service on the named Defendants, litigation of these actions (the Stayed Actions ) shall be stayed until August 21, 2015. Any request to extend the stay past August 21, 2015 shall be filed with the Court no later than August 14, 2015. Counsel for Westoil Marine Services, Inc. shall 9
Case 114-cv-09262-VEC Document 72 Filed 06/30/15 Page 10 of 12 Case 14-51720 Doc 749 Filed 07/27/15 Entered 07/27/15 175723 Desc Main Document Page 13 of 15 inform the Court by July 10, 2015 in the event it objects to the stay being imposed in any of the above cases to which it is a party. In any other case in which it is discovered that the only adverse claimants are ING, one or more of the O.W. Bunker entities, and Barging Service Providers (or any combination of some of them), the parties are directed to immediately notify the Court and to show cause why that action ought not to be stayed. Any party to the above-listed cases may request that the stay be lifted in a particular case in the event it comes to light that an entity other than ING, an O.W. Bunker entity, or a Barging Service Provider may have an adverse claim. With the exception of paragraph 3 below, the deadlines set below shall not apply to the Stayed Actions. 2. Except with respect to the Stayed Actions listed in paragraph 1 above, the Clerks Office is respectfully requested to update the docket to reflect that the remaining actions are no longer stayed. 3. Not later than July 1, 2015, any Plaintiff that has not effected service on all of its named Defendants shall file a letter with the Court stating which Defendants have not been served, why they have not been served, how Plaintiff intends to effect service upon those Defendants, and whether the assistance of the Court is necessary. Counsel representing multiple Plaintiffs in different cases may submit a single letter on behalf of all of their clients, but must address each case separately. 4. Notwithstanding any stipulations that may have been entered agreeing to a different deadline, the deadline to Answer for any Defendant that has been served (or has waived service) but has not yet answered the Complaint shall be July 17, 2015. The deadline for Plaintiffs to move against any Defendant that has been properly served but, as of July 17, 2015, has not answered shall be July 31, 2015. 10
Case 114-cv-09262-VEC Document 72 Filed 06/30/15 Page 11 of 12 Case 14-51720 Doc 749 Filed 07/27/15 Entered 07/27/15 175723 Desc Main Document Page 14 of 15 5. The deadline for all parties to exchange disclosures pursuant to Fed. R. Civ. P. Rule 26 shall be July 8, 2015. 6. Any Motion to Dismiss for lack of personal jurisdiction, improper venue or insufficient service of process pursuant to Fed. R. Civ. P. Rule 12(b) shall be due July 17, 2015. Opposition briefs shall be due August 7, 2015. Reply briefs shall be due August 14, 2015. 7. In Hapag-Lloyd Aktiengesellschaft v. O Rourke Marine Services L.P. et al., 14-CV- 10027 (VEC), the deadline for any Defendant wishing to file a Motion to allow time for discovery pursuant to Fed. R. Civ. P. 56(d) in response to O Rourke Marine Services L.P. s ( OMS ) Motion for Summary Judgment shall be June 26, 2015. OMS s response shall be due July 2, 2015. If the Court grants any Motion for Rule 56(d) relief, the discovery deadline in this action shall be October 19, 2015. The post-discovery status conference in this action shall be held before the Court on October 23, 2015 at 1000 a.m. 8. The deadline for the completion of discovery in every other action, (excluding the Stayed Actions and 14-CV-10027) shall be October 30, 2015. The parties to every other action (excluding the Stayed Actions and 14-CV-10027) shall next appear for the Court for a joint post-discovery status conference on November 6, 2015 at 200 p.m. 9. The deadline for Plaintiff in Birch Shipping Ltd. v. O.W. Bunker China Ltd. (HK) et al., 14-CV-9282 (VEC) to file a Motion to dissolve the LOU previously granted in favor of Chemoil Latin America, Inc. shall be July 8, 2015. Chemoil s opposition deadline shall be July 29, 2015. Plaintiff s Reply deadline shall be August 5, 2015. 10. Counsel from Seward & Kissel representing ING in the above-captioned actions shall be responsible for conferring with the parties and filing a monthly discovery status update with the Court. The first letter shall be due July 24, 2015. The parties to all non-stayed 11
Case 114-cv-09262-VEC Document 72 Filed 06/30/15 Page 12 of 12 Case 14-51720 Doc 749 Filed 07/27/15 Entered 07/27/15 175723 Desc Main Document Page 15 of 15 Actions shall also participate in a monthly teleconference with the Court regarding the status of discovery. The Court requests that Seward & Kissel take the lead in providing a conference call line for participants and providing the dial-in information to Chambers. The first discovery teleconference shall take place on July 31, 2015 at 400 p.m. The Court defers to the parties regarding who must participate in that call. At a minimum, there must be an attorneys representing ING; the U.S. O.W. Bunker entities; non-u.s. O.W. Bunker entities; a non-o.w. Bunker fuel supplier; and the Vessel Interests (that attorney could represent a vessel owner or a charter party). Further, if there are any existing disputes that the parties wish the Court to resolve on the call, attorneys for those parties must be on the call. 11. Counsel for each Plaintiff shall be responsible for distributing copies of this Order to all Defendants named in their respective cases on behalf of whom counsel has yet to appear. SO ORDERED. Date June 30, 2015 New York, New York \coill,,-( _ VALERIE CAPRONI United States District Judge 12