In re Olinda Star Ltd.

• Decision Date: 03 April 2020
• Docket Number: Case No. 20-10712 (MG)
• Citation: 614 B.R. 28
• Parties: IN RE: OLINDA STAR LTD., (In Provisional Liquidation ), Debtor in a foreign proceeding.
• Court: U.S. Bankruptcy Court — Southern District of New York

614 B.R. 28

IN RE: OLINDA STAR LTD., (In Provisional Liquidation ), Debtor in a foreign proceeding.

Case No. 20-10712 (MG)

United States Bankruptcy Court, S.D. New York.

Signed April 3, 2020 New York, New York

WHITE & CASE LLP, Attorneys for Eleanor Fisher, as Petitioner and Foreign Representative, 1221 Avenue of the Americas, New York, NY 10020 By: John K. Cunningham, Esq., Thomas E. MacWright, Esq., Samuel P. Hershey, Esq.

200 South Biscayne Boulevard, Suite 4900, Miami, FL 33131, By: Richard S. Kebrdle, Esq.

111 South Wacker Drive, Chicago, IL 60606, By: Jason N. Zakia, Esq.

MEMORANDUM OPINION GRANTING THE FOREIGN REPRESENTATIVE'S VERIFIED PETITION OF OLINDA STAR LTD FOR RECOGNITION OF BVI PROCEEDING AND MOTION REQUESTING ADDITIONAL RELIEF

MARTIN GLENN, United States Bankruptcy Judge

Pending before the Court is the Verified Petition of Eleanor Fisher (the "Petitioner" or "Foreign Representative"), in her capacity as the duly-authorized foreign representative of Olinda Star Ltd.'s ("Olinda" or "Debtor") provisional liquidation proceeding (the "BVI Proceeding") pending in the BVI Commercial Court (the "BVI Court"), seeking entry of an order:

(i) granting recognition of the BVI Proceeding pursuant to section 1517 of title 11 of the United States Code (the "Bankruptcy Code") as the "foreign main proceeding" of the Debtor, and all relief included therewith as provided in section 1520 of the Bankruptcy Code ;

(ii) recognizing the Petitioner as the "foreign representative" of the BVI Proceeding;

(iii) granting full force and effect and comity to the BVI Scheme (as defined below) and additional relief set forth pursuant to section 1521(a) or 1507(a) of the Bankruptcy Code ; and

(iv) granting such other and further relief as the Court deems just and proper.

("Verified Petition," ECF Doc. # 2 at 8; "Proposed Order," ECF Doc. # 2, Ex. A.) In the alternative, the Foreign Representative requests that the Court recognize the BVI Proceeding as a foreign nonmain proceeding of the Debtor, and grant the discretionary relief requested pursuant to sections 1521(a), 1507(a) and 105(a) of the Bankruptcy Code. (Verified Petition at 8 n.4; Proposed Order.)

The Verified Petition is supported by the Declaration of Grant Carroll Pursuant to 28 U.S.C. § 1746 ("Carroll Declaration," ECF Doc. # 3) and the Omnibus Motion of the Foreign Representative for Entry of an Order (I) Approving the Withdrawal by the Foreign Representative of the Verified Petition for Recognition of the Brazilian RJ Proceeding as to Olinda Star Ltd. (In Provisional Liquidation) and Dismissal of its Chapter 15 Case, and (II) Granting the Foreign Representative's Renewed Request for Recognition of the Brazilian RJ Proceeding as to Arazi S.a.r.l. Pursuant to 11 U.S.C. §§ 1515, 1517, and 1520 and Giving Full Force and Effect to the Brazilian Reorganization Plan as to Arazi S.a.r.l. Pursuant to 11 U.S.C. §§ 105(a), 1507(a), 1145, 1521(a) and 1525(a) (the "Omnibus Motion," Case No. 18-13952 (MG), ECF Doc. # 197) pending before this Court in the related chapter 15 proceeding, Serviços de Petróleo Constellation S.A ., et al. , Case No. 18-13952 (MG) (the "First Chapter 15 Proceeding").

The Court assumes familiarity with the facts in this case and refers to its previous opinion in the First Chapter 15 Proceeding, In re Serviços de Petróleo Constellation S.A., et al ., 600 B.R. 237 (Bankr. S.D.N.Y. 2019) [hereinafter " SPC Opinion "], recounting the circumstances leading to Olinda's restructuring in the BVI and the pending Verified Petition. The foreign representative in the First Chapter 15 Proceeding, Andrew Childe, sought this Court's recognition of the joint judicial reorganization (recuperação judicial or "RJ") of certain entities within the Constellation group of companies (the "Constellation Group")¹ in the jointly administered judicial organization proceeding (the "Brazilian RJ Proceeding") pending in the 1st Business Court of Rio de Janeiro (the "Brazilian RJ Court"). SPC Opinion at 243–44. On the same day that Olinda and certain of its affiliates filed as debtors in the Brazilian RJ Proceeding and the First Chapter 15 Proceeding, Olinda commenced the BVI Proceeding pending in the BVI Court. (Verified Petition at 9.)

In June 2019, the Brazilian Court of Appeals upheld a decision to remove Olinda from the Brazilian RJ Proceeding for lack of jurisdiction. (Verified Petition at 10; SPC Opinion at 264. ) In the SPC Opinion , this Court granted recognition as a foreign nonmain proceeding to Parent/Constellation and granted recognition as a foreign main proceeding for Petróleo Constellation, Constellation Overseas, Alpha Star, Gold Star, Lone Star, Star International, and Snover. SPC Opinion at 246. In light of Olinda's exclusion from the Brazilian RJ Proceeding, however, this Court found that because "[t]he Brazilian Court of Appeals determined that Olinda Star should be removed from the Brazilian RJ Proceeding ... discussion of this Chapter 15 Debtor's possible recognition is unnecessary." Id. at 264.

After this Court declined to grant recognition to Olinda in the First Chapter 15 Proceeding, Olinda's restructuring changed course. (Verified Petition at 10.) On August 5, 2019, Olinda, the joint provisional liquidators ("JPLs"), certain consenting 2024 Noteholders (as defined below) and other parties to the Constellation Group's plan support agreement (the "PSA Parties") dated June 28, 2019 entered into a term sheet (the "Olinda Term Sheet") governing a parallel restructuring of Olinda's guarantee obligations in the BVI. (Id .) The Olinda Term Sheet permitted the transactions contemplated by the RJ Plan to close without a restructuring of Olinda, provided that Olinda's guarantee obligations were modified under BVI law in the BVI Proceeding. (Id. )

As of December 18, 2019, the Constellation Group's approximately $1.5 billion of prepetition debt has been substantially restructured pursuant to the RJ Plan. (Id. ) On February 25, 2020, following a meeting of Olinda's scheme creditors (the "Scheme Meeting"), and upon notice and a hearing, the BVI Court approved Olinda's BVI law scheme of arrangement (the "BVI Scheme") pursuant to the BVI Business Companies Act, 2004, restructuring the existing guarantee granted by Olinda (the "Prior 2024 Notes Guarantee") in favor of holders (the "2024 Noteholders") of certain 9.00% Cash /0.500% PIK senior secured notes due 2024 (the "Prior 2024 Notes") and allowing Olinda to accede as a guarantor of restructured 2024 Notes (the "Restructured 2024 Notes") as contemplated under the RJ Plan. (Verified Petition 10–11.)

As set forth in the Verified Petition, aside from the relief requested in the Omnibus Motion (which includes dismissal of Olinda in the First Chapter 15 Proceeding), only one step remains in consummating the Constellation Group's global restructuring—granting comity to the Prior 2024 Notes Guarantee, which is governed by New York law. (Id . at 11.)

For the reasons set forth below, the Court GRANTS the relief sought in the Foreign Representative's Verified Petition in this Memorandum Opinion. The Court will issue a separate memorandum opinion and order addressing the relief requested by the foreign representative in the Omnibus Motion pending in the First Chapter 15 Proceeding, and approving (1) withdrawal by the foreign representative of the Verified Petition for recognition of the Brazilian RJ Proceeding as to Olinda and dismissal of Olinda's chapter 15 case and (2) granting the foreign representative's renewed request for recognition of the Brazilian RJ Proceeding and recognizing and enforcing the RJ Plan with respect to Arazi S.à.r.l.

I. BACKGROUND

Having set forth the context for the Pending Verified Petition, this Court discusses facts relevant for this Court's decision to grant the relief requested.

A. Location of Olinda's Registered Office and Records

On September 7, 2006, Olinda was incorporated in the BVI and registered as a Business Company under the laws of the BVI. (Verified Petition ¶ 1; Carroll Declaration, ¶ 12 n.1, Ex. A.) Olinda maintains its registered office at Tortola Pier Park, Building 1, Second Floor, Wickhams Cay 1, Road Town, Tortola VG1110 in the BVI. (Verified Petition ¶ 1; Carroll Declaration, ¶ 12 n.3, Ex. A.) Olinda's statutory books and records are held in Panama, together with the statutory books and records of certain Constellation Group entities. (Carroll Declaration, ¶ 12 n.3.) Olinda's membership interests are also located in the BVI. (Verified Petition ¶ 1.)

B. Location of Olinda's Assets and Operations

Olinda is a special purpose vehicle that conducts its business principally on the high seas. (Id. ¶ 2.) Its primary asset, the Olinda Star drilling rig, is presently completing a contract for a large international oil and gas company in the Indian Ocean. (Id .) Olinda also has a client trust account at White & Case LLP, in New York, with a balance of $1,000.67. (Id .)

C. Olinda's Capital Structure and Location of its Creditors

Olinda is a guarantor and grantor of 2024 Notes, issued by its indirect parent company, Constellation Oil Services Holding S.A. ("Constellation Parent"). (Id. ¶ 3.) As of February 6, 2020, the Foreign Representative came to understand that an aggregate principal amount of $608,455,375 was outstanding under the then-existing 2024 Notes (the "Prior 2024 Notes") pursuant to a New York law-governed indenture (the "Prior 2024 Notes Indenture"). (Id. ) The Prior 2024 Notes were restructured pursuant to the Brazilian RJ Plan, but the Prior 2024 Notes Guarantee remains in place until the BVI Scheme is consummated. (Id. ) Petitioner represents that the indenture trustee of the Restructured 2024 Notes is located in New York and, upon information and belief, the participants comprise investment funds and individuals incorporated in various jurisdictions around the world. (Id. )

To secure the Prior 2024 Notes, Olinda granted security over certain collateral, including a mortgage over its drilling rig,...