Mega Newco Limited and Ignacio Javier Gonzalez Delgadillo

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF NEW YORK

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In re: :

: Chapter 15

MEGA NEWCO LIMITED, :

: Case No. 24-12031 (MEW)

Debtor in a Foreign Proceeding :

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DECISION GRANTING RECOGNITION OF A FOREIGN PROCEEDING AND

ENFORCING AN ORDER APPROVING A SCHEME OF ARRANGEMENT

A P P E A R A N C E S:

CLEARY GOTTLIEB STEEN & HAMILTON LLP

New York, NY

Attorneys for the Debtor and Foreign Representative

By: David H. Botter, Esq.

Thomas S. Kessler, Esq.

Miranda Hatch, Esq.

Carla Martini, Esq.

Kaleinanni Nallira, Esq.

LATHAM & WATKINS LLP

New York, NY

Attorneys for the Ad Hoc Group of Noteholders

By: Adam J. Goldman, Esq.

Jonathan J. Weichselbaum, Esq.

David Hammerman, Esq.

OFFICE OF THE UNITED STATES TRUSTEE

New York, NY

By: Andrea B. Schwartz, Esq.

HONORABLE MICHAEL E. WILES

UNITED STATES BANKRUPTCY JUDGE

Mega Newco Limited (“Mega Newco”) is a wholly owned subsidiary of a Mexican

financial services company named Operadora de Servicios Mega, S.A. De C.V., Sofom, E.R. (the

“Parent”). Mega Newco was formed under the laws of England and Wales on September 30,

2024, for the purpose of assisting its Parent in the completion of a restructuring of obligations

under a set of notes (the “U.S. Notes”) that the Parent issued in 2020 under an Indenture that is

governed by New York law. Mega Newco has asked this Court (i) to grant recognition of a

foreign proceeding (the “English Scheme Proceeding”) that Mega Newco commenced in the

High Court of Justice Business and Property Courts of England and Wales (the “English

Court”), and (ii) to enforce, in the United States, an order entered by the English Court (the

“English Court Order”) that approved the scheme of arrangement (the “Scheme of

Arrangement”) that Mega Newco proposed.

The Parent is based in Guadalajara, Mexico and has its headquarters there. For various

reasons, the Parent faced liquidity constraints and needed to restructure its obligations, including

its obligations under the U.S. Notes. The Parent negotiated with an ad hoc group of noteholders

that collectively owned more than 25 percent of the outstanding U.S. Notes, and the parties

reached agreement on the terms of a possible restructuring at some time during 2024. I will not

attempt to describe in full the deal that the parties reached, but it provides that holders of the U.S.

Notes may choose to receive either partial cash payments from the Parent or to receive equity in

the Parent in exchange for their U.S. Notes. The agreement also gives certain holders of the

exiting U.S. Notes the opportunity to buy new notes to be issued by the Parent.

The Parent has also negotiated consensual arrangements to refinance and restructure

other debt obligations. Those other agreements are contingent on the completion and

enforcement of the agreed restructuring of the U.S. Notes. Together all of these negotiated

restructurings will improve creditor recoveries, strengthen the finances of the Parent, and

preserve the value of the operating business.

However, the agreed restructuring of the U.S. Notes raised practical problems. The U.S.

Notes could not be restructured outside of a bankruptcy proceeding except with the affirmative

consent of one hundred percent of the holders of the U.S. Notes. As a general matter it is not

possible to obtain that level of affirmative consent to a note restructuring, and that is particularly

so in this case, where dealings with some of the holders of the U.S. Notes are constrained

because they are what the Debtor has referred to as “Sanctioned Persons.” Bankruptcy laws

would permit a restructuring of the U.S. Notes without one hundred percent consent, but most of

those laws would not have permitted a surgical restructuring of just the U.S. Notes. However,

U.K. laws permit the approval of a consensual scheme of arrangement that deals with a single set

of note obligations, and pursuing such a scheme of arrangement in the English Court also

promised to be less expensive and time-consuming than other alternatives. The parties therefore

wished to implement the desired restructuring of the U.S. Notes through the English Court under

a U.K. scheme of arrangement.

U.K. courts have held that they have jurisdiction to approve a scheme of arrangement so

long as the debtor has a substantial connection with the U.K., which may include the presence of

a registered office or the fact that the relevant obligations are governed by U.K. laws. However,

the Parent did not have its registered office in the U.K.; the U.S. Notes are governed by New

York law (not English law); and the Parent had no substantial business operations or facilities in

the U.K. Counsel conceded during the hearing that I held on February 7, 2025, that the Parent

therefore would not have had the right, in its own name and on its own behalf, to seek approval

of a proposed scheme of arrangement by the English Court.

Mega Newco was created to address this issue. More particularly:

• Mega Newco was incorporated on September 30, 2024, under the laws of England

and Wales, and listed its registered office as an address in London.

• Mega Newco signed documents by which it made itself an additional obligor under

the U.S. Notes. Mega Newco also agreed that the Parent could seek contribution

from Mega Newco for any payment made by the Parent on the U.S. Notes.

• Mega Newco then filed the necessary papers to commence the English Scheme

Proceeding on November 14, 2024. Mega Newco also commenced this Chapter 15

proceeding in November 2024.

The papers submitted to the English Court made clear that Mega Newco was created for

the purpose of enabling the English Court to take jurisdiction over the proposed scheme of

arrangement. The English Court has approved the exercise of jurisdiction on this basis, and it

has approved Mega Newco’s proposed Scheme of Arrangement, including those provisions that

resolve the noteholders’ claims against the Parent as well as against Mega Newco. The holders

of U.S. Notes had the right to appear at a meeting that was convened to solicit votes with respect

to the proposed Scheme of Arrangement, and the holders of more than seventy-five percent of

the U.S. Notes appeared either in person or through proxies. The Scheme of Arrangement was

approved unanimously by those who voted, and no objections were filed with the English Court.

No party has objected to the proposed recognition of the English Scheme Proceeding in

this Chapter 15 case, or to the enforcement, in the United States, of the English Court Order and

the Scheme of Arrangement. The Office of the United States Trustee raised some issues about

the release provisions in the Scheme of Arrangement, but it has reached an agreement with the

Debtor on a modification to those provisions insofar as they would be given effect in the United

States. No other issues have been raised.

Under Chapter 15, a foreign bankruptcy or insolvency proceeding may be recognized,

and the orders entered in such a proceeding may be enforced, if the foreign proceeding is either a

“foreign main proceeding” or a “foreign nonmain proceeding.” 11 U.S.C. § 1517(a)(1). A

foreign proceeding is a “foreign nonmain proceeding” if it is pending in a country in which a

debtor has an “establishment.” I issued a decision in In re Mood Media Corp., 569 B.R. 556,

561-63 (Bankr. S.D.N.Y. 2017), in which I held that for this purpose an “establishment” must be

an actual place from which economic market-facing activities are regularly conducted. However,

Mega Newco represented to the English Court that it has never engaged in any business, let

alone any regular market-facing activities that it conducted from a location in the U.K. Mega

Newco has engaged in restructuring activities, but those activities are not themselves sufficient to

show the existence of an “establishment” in the U.K. If restructuring activities alone were

sufficient, then any proceeding in which a debtor sought relief would automatically qualify as a

“foreign nonmain proceeding,” and the requirement of an “establishment” would be deprived of

any meaning. See Lavie v. Ran (In re Ran), 607 F.3d 1017, 1028 (5th Cir. 2010) (holding that if a

foreign “bankruptcy proceeding and associated debts, alone, could suffice to demonstrate an

establishment, this would render the framework of Chapter 15 meaningless. There would be no

reason to define establishment as engaging in a nontransitory economic activity. The petition for

recognition would simply require evidence of the existence of the foreign proceeding.”); see also

In re Modern Land (China) Co., 641 B.R. 768, 785-86 (Bankr. S.D.N.Y. 2022) (holding that a

foreign restructuring proceeding “cannot itself constitute nontransitory economic activity to

support recognition as a foreign nonmain proceeding”); Rozhkov v. Pirogova (In re Pirogova),

612 B.R. 475, 484 (S.D.N.Y. 2020) (same).

A foreign proceeding is a “foreign main proceeding” if it is taking place in the

jurisdiction where the debtor has its center of main interests, or COMI. 11 U.S.C. § 1502(4).

Section 1516(c) of the Bankruptcy Code provides that “[i]n the absence of evidence to the

contrary, the debtor’s registered office . . . is presumed to be the center of the debtor’s main

interests.” 11 U.S.C. § 1516(c). Mega Newco’s registered office is in London. Unlike some

other cases, there is no “contrary evidence” in the record before me that indicates that Mega

Newco’s own COMI is located outside the United Kingdom. See In re Bear Stearns High-Grade

Structured Credit Strategies Master Fund, Ltd., 374 B.R. 122, 129-30 (Bankr. S.D.N.Y. 2007)

(holding that other evidence before the Court showed that the debtor’s COMI was not situated

where the debtor had contended). Mega Newco has engaged in restructuring activities in the

U.K., and those may be considered in determining whether its COMI is in the U.K. See Morning

Mist Holdings Ltd. v. Krys (In re Fairfield Sentry Ltd.), 714 F.3d 127, 138 (2d Cir. 2013). These

restructuring activities apparently are the only activities in which Mega Newco has ever engaged.

As a matter of form, then, Mega Newco argues that the requirements for recognition of

the English Scheme Proceeding as a “foreign main proceeding” have been satisfied. I

nevertheless cannot help but see significant risks in the structure that has been used here.

Chapter 15 is premised on the idea that a debtor who seeks to restructure an obligation is actually

the subject of a foreign proceeding, and that the foreign proceeding is located in the country

where that debtor has its COMI. Here, the whole structure admittedly was created for the

purpose of restructuring the U.S. Notes issued by the Parent. However, the Parent is not a party

to the English Scheme Proceeding, and the Parent’s COMI is in Mexico, not the U.K. Mega

Newco was created, and then voluntarily subjected itself to the Parent’s liabilities under the U.S.

Notes, just so that the U.S. Notes issued by the Parent could be restructured in a jurisdiction that

was not otherwise available.

If we were routinely to allow this structure in all cases, no matter what the circumstances,

the ordinary predicates for Chapter 15 relief could be stripped of meaning. Any debtor company

could restructure its obligations anywhere it chose without even subjecting itself to a foreign

proceeding. All that a debtor would need to do is to form a new subsidiary in a jurisdiction of its

choice and then cause that new subsidiary to assume the parent company’s obligations. The

parent company’s COMI would no longer be relevant to the parent’s restructuring of its debts.

The laws of the chosen jurisdiction would govern a restructuring, no matter how those laws

might affect the legitimate expectations of creditors and regardless of whether the debtor had

chosen a particular jurisdiction for the purpose of favoring insiders or for other improper reasons.

Courts and commentators have long worried about instances in which a debtor might try

to manipulate its COMI, fearing that such a manipulation could be done to thwart creditor

expectations or to accomplish other improper objectives. See, e.g., In re Fairfield Sentry Ltd.,

440 B.R. 60, 65-66 (Bankr. S.D.N.Y. 2010) (identifying concerns and explaining that courts may

make a broader assessment of COMI if there has been an “opportunistic shift to establish COMI

(i.e., insider exploitation, untoward manipulation, overt thwarting of third party expectations.)”);

see also In re Modern Land (China) Co., 641 B.R. 768, 782-83 (Bankr. S.D.N.Y. 2022) (same);

In re Ocean Rig UDW Inc., 570 B.R. 687 (Bankr. S.D.N.Y. 2017) (same). The issue before me,

then, boils down to this: does the underlying structure in this case constitute such an improper

manipulation of COMI? Should I disregard the form of the transactions and disregard the

participation by Mega Newco, and look instead to whether the Parent, on its own, has satisfied

the conditions for relief under Chapter 15?

Clearly, the structure before me could be used in another case as a way of frustrating and

thwarting the legitimate expectations of creditors. This case, however, involves no such

frustration or thwarting of creditor rights. Mega Newco was formed, and the English Scheme

Proceeding was pursued, for laudable objectives. The Scheme of Arrangement will enable a

broader restructuring to be accomplished efficiently and thereby will enhance all parties’

recoveries. It will also maximize the value of the underlying businesses. In these respects, the

enforcement of the Scheme of Arrangement is fully consistent with the stated purposes of

Chapter 15. See 11 U.S.C. § 1501(a).

In addition, the procedures that the parties have followed were not implemented in any

way that took unfair advantage of the holders of the U.S. Notes. The whole process was worked

out with the involvement and consent of the affected creditors, and not for the purpose of

harming them or of thwarting their expectations. The Noteholders and their Indenture Trustee

are aware of the basis on which U.K. jurisdiction has been asserted and have not objected to it.

There similarly is not a single objection to the recognition of the U.K. proceeding or the

enforcement of the U.K. order.

If COMI manipulation is a matter of concern because of the risk that creditors’ rights and

expectations might be thwarted, then one of the main factors I ought to consider, in deciding

whether such a manipulation has occurred, is whether the affected creditors have asserted any

objection. See In re SPhinX, Ltd., 351 B.R. 103, 117 (Bankr. S.D.N.Y. 2006) (holding that

COMI determinations should not be made “mechanically,” that COMI should be assessed “in

light of chapter 15’s emphasis on protecting the reasonable interests of parties in interest

pursuant to fair procedures and the maximization of the debtor’s value,” that creditors

presumably are in the bast position to determine whether their own expectations are being

thwarted, and therefore that “one generally should defer . . . to the creditors’ acquiescence in or

support of a proposed COMI”). Ironically, the only thing that would thwart creditor expectations

in the case before me would be if I were to decline to enforce the English Court Order. It would

be absurd for me to thwart the creditors’ constructive desires and expectations in the guise of

supposedly protecting them.

If there were an actual contention or evidence that the structure at issue here had been

used in an unfair way and had thwarted third-party expectations, there would be serious

questions in my mind as to whether it ought to be approved. However, in light of the support of

all of the affected parties and their overwhelming consent to the English Scheme Proceeding and

the approval of the Scheme of Arrangement, and the other factors that I have cited, I see no cause

in this particular case to look past the form of the transactions or to pursue theoretical issues that

no affected party wishes to pursue. I will therefore recognize the English Scheme Proceeding

and enforce the English Court Order.

A separate Order has been issued to reflect the Court’s rulings.

Dated: New York, New York

February 24, 2025

s/Michael E. Wiles

Honorable Michael E. Wiles

United States Bankruptcy Judge