Lupatech S.A.

UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
In re:
LUPATECH S.A., et al.,
Debtors in a Foreign Proceeding.
FOR PUBLICATION
Case No. 16-11078 (MG)
Chapter 15
MEMORANDUM OPINION GRANTING FINAL RELIEF AND ORDERING THAT THE
CASES BE CLOSED ON THE TERMS PROVIDED IN THE ACCOMPANYING ORDER
A P P E A R A N C E S:
ROBINSON BROG LEINWAND GREENE
GENOVESE & GLUCK P.C.
Attorneys for the Foreign Representative
875 Third Avenue, 9th Floor
New York, New York 10022
By: 	Steven B. Eichel, Esq.
MARTIN GLENN
UNITED STATES BANKRUPTCY JUDGE
As the history of these chapter 15 cases shows, sometimes the interplay between a
foreign proceeding that is subject to appellate challenge in the foreign country, and the relief
needed to effect the consummation of a plan approved by the foreign court and to close the
chapter 15 cases, can seemingly lead to a ping-pong match requiring new rulings from both
courts on largely non-controversial issues, before an approved reorganization plan can be
successfully consummated. Pending before the Court in these jointly administered chapter 15
cases is a Motion (the “Motion,” ECF Doc. # 46) for entry of an order recognizing and enforcing
the December 2018, September 2019, and November 2019 Orders (as defined below) within the
territorial jurisdiction of the United States; authorizing and directing certain U.S. Intermediaries
to carry out any ministerial actions that are required of them under the New Lupatech Plan and
granting them protection for the performance of such actions; finding these cases to be fully
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administered and closing these cases without prejudice; and granting such other relief as the
Court deems just and proper.
The Motion was filed by Rafael Gorenstein, in his capacity as the authorized Foreign
Representative (the “Foreign Representative”) of Lupatech S.A. and its affiliated debtors
(collectively, “Lupatech,” or the “Debtors”). The Motion is supported by a declaration by Rafael
Gorenstein. (“Gorenstein Declaration,” ECF Doc. # 47.) The Motion is unopposed.
For the following reasons, the Motion is GRANTED and the cases are ordered to be
closed on the terms provided in the separate accompanying order granting relief.
I. 	BACKGROUND
Lupatech S.A. is the direct or indirect parent company of each of the other Debtors. The
Debtors form the “Lupatech Group,” a provider of technical components and specialized services
to the oil and gas industries. (Motion ¶ 5.)
A. 	Relevant Case Background
1. 	The Original Lupatech Plan in the Foreign Court
On August 24, 2015, the Debtors filed a judicial reorganization plan (the “Original
Lupatech Plan”) with the First Chamber of Bankruptcy, Judicial Recovery and Arbitration
Disputes of the Comerca Forum of São Paolo (the “Foreign Court”) to restructure their claims,
including certain notes (the “Notes”), and provided four payment plans for unsecured creditors.
(Id. ¶ 6.) The Original Lupatech Plan was approved by the requisite number of creditors, and on
December 16, 2015, the Foreign Court entered its Order homologating (or approving) the plan
(the “Original Homologation Order”). (Id. ¶¶ 7–8.) Two creditors subsequently filed appeals
(the “Appeals”), alleging that the payment options contained in the Original Lupatech Plan
violated Brazilian law. (Id. ¶ 9.)
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2. 	The Chapter 15 Cases
On April 27, 2016 (the “Petition Date”), the Foreign Representative filed these chapter 15
cases by filing verified chapter 15 petitions in this Court. (Id. ¶ 10.) On the same day, the
Foreign Representative filed a motion seeking entry of an order granting the chapter 15 petitions
and recognizing the foreign proceeding in Brazil as a foreign main proceeding, recognizing and
enforcing the Original Lupatech Plan and the Original Homologation Order, and granting
additional relief (including authorizing certain U.S. Intermediaries to carry out ministerial
actions required or necessary under the Original Lupatech Plan). (Id. ¶ 11.) On May 26, 2016,
the Court granted the Foreign Representative’s petition and motion, and entered its Order
Granting Recognition of Foreign Main Proceeding and Certain Related Relief, including
recognizing the Original Lupatech Plan. (“Recognition Order,” ECF Doc. # 15, ¶ 12.)
3. 	The New Lupatech Plan
In June 2016, the 2nd Reserved Chamber of Business Law of the Court of Appeals of São
Paulo granted the Appeals, annulled the Original Lupatech Plan, and ordered that several criteria
should be complied with in a new judicial reorganization plan (the “Reversal”). (Id. ¶ 13.) On
July 20, 2016, after the Foreign Representative informed the Court of the Reversal, the Court
entered an Order Modifying the Recognition Order, suspending its previous recognition of the
Original Lupatech Plan and Original Homologation Order. (ECF Doc. # 22; Motion ¶ 14.)
On September 5, 2016, the Debtors filed a modified restructuring plan (the “New
Lupatech Plan,” or the “Plan”) with the Foreign Court, which, inter alia, provides only one
payment option for unsecured creditors, consistent with Brazilian law and the Reversal. (Motion
¶ 15.)
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With respect to Noteholders’ Unsecured Claims (as defined in the New Lupatech Plan),
consummation of the Plan requires (i) 50% of the amount of such claims to be paid in cash and
(ii) 50% of the amount of such claims to be paid with Subscription Warrants (as defined in the
New Lupatech Plan). (Id. ¶ 16.) The cash payment is to be effectuated by delivery of notes to
such claimants. The Plan provides that after the Foreign Representative obtains approval of the
New Lupatech Plan and approval from this Court “acknowledging the efficacy of the [New
Lupatech] Plan,” the current notes will be “cancelled by operation of law and replaced by New
Notes to be issued by Lupatech subsidiary Lupatech Finance Limited” (the “Exchange”). (Id.)
(internal quotation marks and citations omitted). Paragraph 6.4.5 of the New Lupatech Plan also
provides that Subscription Warrants due to the Noteholders shall be delivered by means of
American Depositary Warrants representing such Subscription Warrants, or in another manner
economically equivalent to the Noteholders. (Id. ¶ 17.) Paragraph 8.3.5 of the New Lupatech
Plan indicates that if Noteholders want to participate in a future debt-to-equity exchange, they
would receive American Depository Receiptss, whereby Paragraph 9.2 allows the Debtors to
take economically equivalent measures when not possible to fulfill the original obligation. (Id.)
On November 8, 2016 the New Lupatech Plan was approved by (i) 98.63% of the labor-
related creditors by number and 84.93% by amount of their claims, (ii) 84.13% of the unsecured
creditors by number and 75.19% by amount of their claims, and (iii) 98.57% of the
Microenterprise and Small Enterprise creditors by number and 75.51% by amount of their
claims. (Id. ¶ 19.) No appeals were filed, and the appeals period has passed. (Id.) Thus, on
December 1, 2016, the Foreign Court entered its order homologating the New Lupatech Plan (the
“New Homologation Order”). (Id. ¶ 20.)
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On January 12, 2018, the Foreign Representative filed a motion with the Court for an
order (a) recognizing and enforcing the New Lupatech Plan and the December 2016
Homoglation Order; (b) authorizing and directing certain U.S. Intermediaries to carry out any
ministerial actions that are required under the New Lupatech Plan and granting them protection
for the performance of such actions; and (c) finding the chapter 15 cases to be fully administered
and closing them without prejudice. (Id. ¶ 21.) On March 26, 2018, the Court approved the
Foreign Representative’s motion and entered an Order Granting Final Relief in Aid of Foreign
Proceeding and Closing the Cases. (“Supplemental Recognition Order,” ECF Doc. # 38.)
Following the Court’s Supplemental Recognition Order, Debtors and their attorneys and
advisors: (1) drafted an indenture relating to the issuance of New Notes (the “New Indenture”);
(2) drafted a warrant agreement relating to the issuance of Subscription Warrants (the “Warrant
Agreement”); (3) engaged Wilmington Savings Fund Society (“WSFS”) to serve as indenture
trustee for the New Notes under the New Indenture and as warrant agent for the Subscription
Warrants under the Warrant Agreement; (4) engaged with BNY Mellon, the Current Indenture
Trustee, to determine its requirements for allowing for the cancellation of the current Notes in
the Exchange; (5) engaged with Depository Trust Company (“DTC”) to determine its
requirements for the cancellation of the current Notes and issuance of New Notes and
Subscription Warrants in the Exchange; and (6) drafted a notice to holders of Notes relating to
the Exchange and the issuance of New Notes under the New Indenture and Subscription
Warrants under the Warrant Agreement. (Id. ¶ 23.)
4. 	The Foreign Representative’s Motion to Reopen
On August 20, 2018, the Foreign Representative filed a motion to reopen the bankruptcy
cases pursuant to section 350 of the Bankruptcy Code for the purpose of (1) declaring that the
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issuance of New Notes and Subscription Warrants, in exchange for the cancellation of the
current Notes in the Exchange, or any other transactions to be effected as part of the Exchange,
are exempt from the registration requirements of Section 5 of the Securities Act of 1933; (2)
declaring that the Trust Indenture Act of 1934 does not apply to the cancellation of the current
Notes in exchange for the issuance of the New Notes and Subscription Warrants; and (3)
granting such other relief as the Court deems just and proper. (Id. ¶ 24.)
On October 3, 2018, the Court granted the Foreign Representative’s motion to reopen the
case. (ECF Doc. # 44.) In addition to reopening the case and exempting the issuance of New
Notes and Subscription Warrants in exchange for the cancellation of the current Notes pursuant
to the New Lupatech Plan from registration under the Securities Act, the Order also authorized
and directed DTC and BNY Mellon (as Current Indenture Trustee) to take lawful actions that
may be necessary to consummate the transactions contemplated under the New Lupatech Plan.
(Id. ¶ 25.)
Before the Supplemental Recognition Order and October 3, 2018 Orders were entered,
BNY Mellon, the Current Indentured Trustee, had incurred approximately $191,815 in legal and
other expenses from the reorganization in this Court and the Foreign Court (the “Outstanding
Trustee Expenses”). (Id. ¶ 26.) Even though the Current Indenture required reimbursement for
the Outstanding Trustee Expenses, Brazilian law provides that each creditor is responsible for its
own legal expenses, so the noteholders must bear their own legal expenses with respect to their
participation in the bankruptcy process. (Id.) Thus, pursuant to the Supplemental Recognition
Order, the Current Indenture Trustee is entitled to reimbursement for Outstanding Trustee
Expenses under the Current Indenture, but the Debtors were unable to pay under Brazilian
bankruptcy law. (Id. ¶ 27.) After discussions to resolve the issue proved unsuccessful, the
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parties determined to make arrangements for WSFS to serve as the New Indenture Trustee under
the New Indenture and warrant agent under the Warrant Agreement. (Id.)
Because Debtors could not pay Outstanding Trustee Expenses under Brazilian
bankruptcy law, it was determined that payment of the Outstanding Trustee Expenses should be
made by holders of the New Notes. (Id. ¶ 28.) As such, payment for the Outstanding Trustee
Expenses was diverted to the Current Indenture Trustee from money distributed to holders of the
New Notes under the New Indenture, until the Outstanding Trustee Expenses were paid in full.
(Id.) The New Indenture reflected these arrangements, subject to approval by the Foreign Court
and this Court. (Id. ¶ 29.)
On October 29, 2018, the Debtors made a proposal adjusting the flow of payments to
unsecured creditors (“Revised Payment Proposal”). (Id. ¶ 30.) At a meeting of creditors on
November 30, 2018, creditors voted to approve the Revised Payment Proposal, and the Foreign
Court entered an order approving the Revised Payment Proposal on December 7, 2018 (the
“December 2018 Order”). (Id.)
On May 29, 2019, the Foreign Representative filed a motion in the Foreign Court seeking
to implement the new arrangement for payment of the Outstanding Trustee Expenses. (Id. ¶ 31.)
The holders of the Notes did not object to the proposed changes, and on September 2, 2019, the
Foreign Court entered an order (the “September 2019 Order”): (1) authorizing the New Notes
containing clauses providing for the payment of the Outstanding Trustee Expenses directly to
BNY Mellon, as the Current Indenture Trustee, out of monies payable to the holders of the New
Notes under the New Indenture, prior to the payment to the holders of the New Notes; (2)
authorizing that the Outstanding Trustee Expenses be borne by the holders of the New Notes and
not the Debtors; (3) authorizing the omission in the New Indenture of certain restrictive and
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other covenants and provisions in the Current Indenture because they conflict with the terms of
the Brazilian law; (4) authorizing payment to a New Indenture Trustee; and (5) requiring that the
transaction to issue the New Notes shall be completed within 180 days from the confirmation of
new payments to unsecured creditors in the chapter 15 bankruptcy case. (Id. ¶ 33.)
On November 8, 2019, the Foreign Court issued an order (the “November 2019 Order”)
allowing (1) the issuance of Subscription Warrants that are not “American Depositary Warrants,”
and that are instead U.S.-issued warrants that are exercisable locally in Brazil for shares of stock
of Lupatech S.A. as publicly registered in Brazil by relying on the economic equivalence
principles set forth in Paragraphs 6.4.5 and 9.2 of the New Lupatech Plan and (2) in line with the
economic equivalence principles set forth in Paragraphs 8.3.5 and 9.2 of the New Lupatech Plan,
in the event future capital raising where debt-to-equity conversion is allowed, the issuance of
shares of stock of Lupatech S.A. as publicly registered in Brazil is allowed in lieu of American
Depositary Receipts. (Id. ¶ 34.)
5. 	The Foreign Representative’s Final Report
Pursuant to Bankruptcy Rule 5009, the Foreign Representative reports that the
protections afforded to the Debtors by chapter 15 of the Bankruptcy Code have been fully
realized. The Exchange will take place promptly following entry of the Proposed Order, and any
remaining matters to be resolved do not require the assistance of courts in the United States. (Id.
¶ 35.)
B. 	The Motion
1. 	Recognizing and Enforcing the December 2018 Order, the September
2019 Order and the November 2019 Order
Through the Motion, the Foreign Representative seeks to recognize and enforce the
December 2018, September 2019, and November 2019 Orders. (Motion ¶ 37.) The Foreign
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Representative claims that the relief requested in the Motion is appropriate and necessary for
several independent reasons:
i. 	Brazilian insolvency law is substantially similar to applicable United States law,
and here, the New Lupatech Plan was approved by the requisite number of
creditors.
ii. 	The Plan provides for fair distribution to the Debtors’ creditors in accordance with
Brazilian insolvency law.
iii. 	Through the Homologation Order, the Foreign Court approved the New Lupatech
Plan. No appeals were filed and the appeal period has passed.
iv. 	The Foreign Representative’s requested relief complies with the applicable
sections of the Bankruptcy Code, i.e., sections 1525 and 1527.
v. 	The “additional assistance” requested in the Motion is warranted under
Bankruptcy Code sections 105, 1507, and 1521 because “the U.S. Intermediaries
may not be, or may not believe themselves to be subject to the jurisdiction of the
Foreign Court, and therefore may be unwilling to act in support of the December
2018 Order, the September 2019 Order and the November 2019 Order without
authorization and direction from, and limited protection granted by, a United
States Court in the form of an entry of the Proposed Order.”
(Id. ¶¶ 37–49.)
2. 	Closing the Chapter 15 Cases
The Foreign Representative argues that the Court should close the chapter 15 cases
because there are no outstanding motions, contested matters, or adversary proceedings remaining
in the cases. (Id. ¶ 51.) If the Court grants the Motion, the Exchange will occur shortly
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thereafter, leaving nothing further to administer in the United States. (Id.) In addition, the
Foreign Representative has complied with Bankruptcy Rule 5009(c) in filing the Final Report
(encompassed in the Motion) describing the status of the cases and explaining that the cases have
been fully administered. (Id. ¶ 52.)
II. 	LEGAL STANDARD
A. 	Recognition and Enforcement in a Chapter 15 Case
Under section 1521(a)(7) of the Bankruptcy Code, upon recognition of a foreign
proceeding, with certain enumerated exceptions, the Court may grant “any appropriate relief,”
including “any additional relief that may be available to a trustee” that the Court finds necessary
to effectuate the purpose of chapter 15 and to protect assets of the debtor or the interests of the
creditors. 11 U.S.C. § 1521(a)(7). “Appropriate relief” under section 1521 includes enforcing a
foreign order confirming a debtor’s plan. See In re Rede Energia S.A., 515 B.R. 69, 92–93
(Bankr. S.D.N.Y. 2014). Relief under this section will be granted only if the interests of the
creditors and other interested entities, including the debtor, are sufficiently protected. Id. at 90;
11 U.S.C. § 1522(a).
In addition to the types of relief enumerated in section 1521, section 1507(a) 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 fairness considerations set forth in section 1507(b).” In re
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Rede Energia S.A., 515 B.R. at 90. Under section 1507(b), in considering a request for
additional assistance, the Court also considers whether the relief will ensure:
(1) just treatment of all holders of claims against or interests in the
debtor’s property; (2) protection of claim holders in the United
States against prejudice and inconvenience in the processing of
claims in such foreign proceeding; (3) prevention of preferential or
fraudulent dispositions of property of the debtor; (4) distribution of
proceeds of the debtor’s property substantially in accordance with
the order prescribed by this title; and (5) if appropriate, the provision
of an opportunity for a fresh start for the individual that such foreign
proceeding concerns.
11 U.S.C. § 1507(b).
“As with section 1521, relief under section 1507 may include recognition and
enforcement of a plan approved by a foreign court.” In re Cell C Proprietary Ltd., 571 B.R. 542,
551 (Bankr. S.D.N.Y. 2017) (citing In re Rede Energia S.A., 515 B.R. at 94–95).
Section 1506 provides that a bankruptcy court may decline to grant relief requested in a
chapter 15 case if the action would be “manifestly contrary to the public policy of the United
States.” 11 U.S.C. §§ 1506, 1517(a). This public policy exception is narrowly construed. See In
re Ocean Rig UDW Inc., 570 B.R. 687, 707 (Bankr. S.D.N.Y. 2017).
B. 	Closing a Chapter 15 Case
Section 1517(d) of the Bankruptcy Code provides that “[a] case under . . . [chapter 15]
may be closed in the manner prescribed under section 350.” 11 U.S.C. § 1517(d). 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. The purpose of
section 350 is to expedite disposition of the case and ensure fair treatment of all interested
parties. 3 COLLIER ON BANKRUPTCY ¶ 350.01 (Alan N. Resnick & Henry J. Sommer eds., 15th
ed. 2010). However, an estate is not created under chapter 15. See In re Fairfield Sentry Ltd.,
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458 B.R. 665, 683 (S.D.N.Y. 2011). “Fully administered” means, at a minimum, that
administrative claims have been provided for, and there are no outstanding motions, contested
matters or adversary proceedings. See e.g., In re Kliegl Bros. Universal Elec. Stage Lighting
Co., Inc., 238 B.R. 531, 546 (Bankr. E.D.N.Y. 1999).
Bankruptcy Rule 5009(c) provides that a Foreign Representative shall “file a final report
when the purpose of the representative’s appearance in the court is completed. The report shall
describe the nature and results of the representative’s activities in the Court.” FED. R. BANKR. P.
5009(c). If no objection to the final report is filed, the estate is presumed to have been fully
administered and may be closed. FED. R. BANKR. P. 5009(c); In re Ginsberg, 164 B.R. 870, 873
(Bankr. S.D.N.Y. 1994). The intended meaning of section 1517(d) of the Bankruptcy Code and
Bankruptcy Rule 5009(c) is clear: once the need for a chapter 15 case no longer exists and the
purpose of the representative’s appearance in the U.S. court is completed, the case may be
closed.
III. 	DISCUSSION
A. 	Recognition and Enforcement of the December 2018 Order, September 2019
Order and November 2019 Order in the United States
The Court recognizes and enforces the December 2018 Order, September 2019 Order,
and November 2019 Order. The Court is persuaded that the Foreign Representative has made a
sufficient showing that recognition and enforcement of the orders is necessary to effectuate the
purposes of chapter 15 and protect the interests of creditors. See 11 U.S.C. §§ 1507, 1521. The
Foreign Representative seeks recognition and enforcement of the December 2018 Order so that
distributions in the agreed-upon revised amount may be made to unsecured creditors. (Motion ¶
43.) The Foreign Representative seeks enforcement and recognition of the September 2019
Order so that (1) U.S. Intermediaries will have authority and direction under United States laws
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to take all actions necessary to effectuate the terms of the September 2019 Order, (2) the
exchange of the Notes for the New Notes and Subscription Warrants will occur, and in
connection therewith the New Notes and Subscription Warrants will be distributed to the holders
of the current Notes, (3) the Current Indenture Trustee will be paid the Outstanding Trustee
Expenses, with such payment of the Outstanding Trustee Expenses being diverted to the Current
Indenture Trustee out of monies being distributed to the holders of the New Notes under the New
Indenture, until the Outstanding Trustee Expenses have been paid in full, and (4) the holders of
the New Notes will be paid the amounts set forth in the New Indenture. (Id. ¶ 44.) Finally, the
Foreign Representative seeks enforcement and recognition of the November 2019 Order so that
Subscription Warrants that are not “American Depositary Warrants,” and are instead U.S.-issued
warrants may be issued, which are exercisable locally in Brazil for shares of stock of Lupatech
S.A. as publicly registered in Brazil. (Id. ¶ 45.)
The Court finds persuasive the Foreign Representative’s position that this relief is
necessary because U.S. Intermediaries may not be subject to the direct jurisdiction of the Foreign
Court, and therefore, may be unable or unwilling to act in support of the three orders at issue
without authorization or direction from a United States Court. (Id. ¶ 47.) Thus, entry of the
Foreign Representative’s Proposed Order will direct the U.S. Intermediaries to carry out the
requirements of the three orders—in, acknowledging the exchange of the Notes for the New
Notes and Subscription Warrants, and for the distribution of the New Notes and Subscription
Warrants to the holders of the current Notes. (Id.) Such relief will benefit the Debtors and their
estates and assist the Foreign Court in implementing the three orders. (Id. ¶ 48.) Finally,
without the requested relief, the New Lupatech Plan could not be consummated since no
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payments could be made to the Debtors’ noteholders and to the Current Indenture Trustee for the
Outstanding Trustee Expenses owed to it. (Id. ¶ 49.)
B. 	Closing the Chapter 15 Cases
The Court closes the chapter 15 cases on the terms provided in the separate
accompanying order granting relief, as it appears the purposes of the cases have been met and the
cases have been fully administered. Pursuant to Bankruptcy Rule 5009, the Foreign
Representative included a final report in the Motion, which sufficiently explains that the
protections afforded to the Debtors by chapter 15 have been fully realized. There were no
objections filed to the final report, indicating that the estate is presumed to have been fully
administered and may be closed. See In re Ginsberg, 164 B.R. at 873; see also FED. R. BANKR.
P. 5009. More importantly, the Exchange will take place promptly following the entry of the
Proposed Order. Thus, the Court should close the chapter 15 cases.
IV. 	CONCLUSION
For the foregoing reasons, the Foreign Representative’s Motion to recognize and enforce
the December 2018 Order, the September 2019 Order, and the November 2019 Order in the
United States is GRANTED and the chapter 15 cases are ordered to be closed, on the terms
provided in the separate accompanying order granting relief.
IT IS SO ORDERED.
Dated: 	January 10, 2020
New York, New York
_____Martin Glenn____________
MARTIN GLENN
United States Bankruptcy Judge
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