InterCement Brasil S.A. and Antonio Reinaldo Rabelo Filho

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF NEW YORK

) FOR PUBLICATION

In re: )

) C ase No. 24-12291 (MG)

InterCement Brasil S.A., et al., )

) Chapter 15

Debtors in a Foreign Proceeding. ) (Jointly Administered)

)

MEMORANDUM OPINION AND ORDER RECOGNIZING

FOREIGN MAIN PROCEEDINGS

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

WHITE & CASE LLP

Attorneys for Antonio Reinaldo Rabelo Filho,

as Petitioner and Foreign Representative

1221 Avenue of the Americas

New York, New York 10020-1095

By: John K. Cunningham, Esq.

Thomas E. MacWright, Esq.

Ricardo M. Pasianotto, Esq.

Ashley R. Chase, Esq.

Southeast Financial Center

200 South Biscayne Blvd., Suite 4900

Miami, Florida 33131

By: Richard S. Kebrdle, Esq.

Amanda Parra Criste, Esq.

111 South Wacker Drive, Suite 5100

Chicago, Illinois 60606

By: Jason N. Zakia, Esq.

CLEARY GOTTLIEB STEEN & HAMILTON LLP

Counsel to the Ad Hoc Group

One Liberty Plaza

New York, New York 10006

By: Richard J. Cooper, Esq.

David H. Botter, Esq.

Luke A. Barefoot, Esq.

Thomas S. Kessler, Esq.

David Z. Schwartz, Esq.

Thomas Q. Lynch, Esq.

MARTIN GLENN

CHIEF UNITED STATES BANKRUPTCY JUDGE

Antonio Reinaldo Rabelo Filho (the “Petitioner” or “Foreign Representative”), in his

capacity as the duly authorized foreign representative of InterCement Brasil S.A. (“ICB”),

InterCement Participações S.A (“ICP”), InterCement Financial Operations B.V. (“IC Financial”

or “ICBV”), and InterCement Trading e Inversiones S.A. (“ITI” and, together with ICB, ICP,

and IC Financial, the “Debtors” or “Chapter 15 Debtors”), seeks in the above-captioned cases

(the “Chapter 15 Cases”) recognition of a Brazilian recuperação judicial (“RJ”) proceeding (the

“Brazilian RJ Proceeding”) commenced on December 3, 2024 as a foreign main or nonmain

proceeding pursuant to section 1517 of the Bankruptcy Code. See Chapter 15 Petition for

Recognition of Foreign Proceeding (the “Petition”, ECF Doc. # 1) and Petitioner’s Declaration

and Verified Petition for Recognition of the Brazilian Proceeding and Motion for Order

Granting Related Relief Pursuant to 11 U.S.C. §§ 105(a), 1515, 1517, 1520, and

1521 (“Motion,” ECF Doc. # 2). The Petitioner seeks entry of an order (the “Proposed Order,”

ECF Doc. # 2-1) that:

a) grants the Petition in the Chapter 15 Cases and recognizes the Brazilian RJ

Proceeding as the “foreign main proceeding” for each of the Chapter 15

Debtors pursuant to section 1517 of the Bankruptcy Code, or in the

alternative, recognizes the Brazilian RJ Proceeding as a “foreign nonmain

proceeding” and grants appropriate relief;

b) finds that the Petitioner is the duly appointed “foreign representative” of

each of the Chapter 15 Debtors within the meaning of section 101(24) of

the Bankruptcy Code and is authorized to act on behalf of each Chapter 15

Debtor; and

c) grants such other and further relief as the Court deems just and proper.

(Motion ¶ 42.)

The Motion is supported by the Declarations of Ana Elisa Laquimia (ECF Doc. # 4) and

Guillermo Ruiz Medrano (the “Medrano Declaration,” ECF Doc. # 46) pursuant to 28 U.S.C. §

1746.

On January 15, 2025, the Petitioner filed a Brief on COMI Determination as of the

December 9, 2024 Filing Date for Chapter 15 Debtors IC Financial and ITI (“COMI Brief,”

ECF Doc. # 30), arguing that recent developments, including the Debtors’ pre-Petition

restructuring activities, support a determination that the center of main interests of two Chapter

15 Debtors, as of the filing of the Chapter 15 Cases, is Brazil. The COMI Brief is supported by

the declaration of Dr. Matthias Haentjens pursuant to 28 U.S.C. § 1746 (ECF Doc. # 32).

On January 31, 2025, an ad hoc group of holders (the “Ad Hoc Group”) of New York

law-governed notes (the “NY Notes”), filed an (i) Objection to the Petitioner’s Verified Petition

and (ii) Opposition to the Petitioner's Brief of COMI Determination as of the December 9, 2024

Filing Date for Chapter 15 Debtors IC Financial and ITI (the “Objection,” ECF Doc. # 39). The

Objection is supported by the declaration of Thomas Q. Lynch (ECF Doc. # 40). The Objection

argues that the COMI of ICBV is the Netherlands, and the COMI of ITI is Spain,

notwithstanding the Debtors’ pre-Petition restructuring activities in Brazil.1

On February 7, 2025, the Foreign Representative filed the Petitioner’s Omnibus Reply on

COMI Determination as of the December 9, 2024 Filing Date for Chapter 15 Debtors IC

Financial and ITI (the “Reply,” ECF Doc. # 45).

Despite that two of the foreign debtors maintain their registered offices in Spain and the

Netherlands, respectively, rather than in Brazil, for the reasons explained below, the Court

1 UMB Bank, N.A., Trustee for the NY Notes, filed a Joinder to Ad Hoc Group’s (i) Objection to the

Petitioner’s Verified Petition and (ii) Opposition to the Petitioner’s Brief of COMI Determination as of the

December 9, 2024 Filing Date for Chapter 15 Debtors IC Financial and ITI (the “UMB Joinder,” ECF Doc. # 41).

concludes that all of the foreign debtors, as of the date of the filing of the Brazilian RJ

Proceeding, have their COMI in Brazil. Therefore, the Court GRANTS the relief sought in the

Motion, RECOGNIZES the Brazilian RJ Proceeding as a Foreign Main Proceeding, and

OVERRULES the Ad Hoc Group’s Objection.

I. BACKGROUND

A. History and Corporate Structure of the Debtors

The InterCement Group (the “InterCement Group” or “InterCement”) is a large cement

producer in Brazil. (In re InterCement Brasil S.A., Case No. 24-11226 (MG) (Bankr. S.D.N.Y.

September 20, 2024) (the “Prior Chapter 15 Cases”), Declaration of Antonio Reinaldo Rabelo

Filho, as Petitioner and Foreign Representative for the Chapter 15 Debtors (the “Rabelo

Declaration,” ECF Doc. # 78) ¶¶ 38–39.) It is comprised of a Brazilian holding company

(“Mover”) and a collection of subsidiaries within and outside of Brazil. A simplified

organizational chart documenting the various entities comprising the InterCement Group is set

forth below:

□□□

sare |

ima blll tele]

Rosco

ICP June 2020 Debenture

99.46%

& ICB June 2020 Debenture

Osa

Debenture

@ 5.750% Motes:

eh ICP June 2020 Debenture

10c% en a 103 June 2020 Debenture

CB September 2021

= I m

100%

100%

oon

□□□

(Motion § 9.)

Each of the subsidiaries plays a specific role within the group.

1. The Brazilian Entities

Mover, the ultimate parent holding company, engages in capitalization and financing

activities for the corporate group, and is responsible for business management, including

providing the group with “strategic direction on key business matters”; it is incorporated and

headquartered in Brazil. (/d.)

InterCement Participacdes S.A, the holding company responsible for “concentrating all of

Mover’s investments in the cement sector,” is also incorporated in Brazil, with its registered

office in Sao Paulo. (U/d.) All of ICP’s directors, officers, and employees are located in Brazil.

(Rabelo Declaration ¶ 38, JX-2842.) ICP functions as the “head” of the InterCement Group, and

its board of directors and executive officers make “the main strategic, financial, and operational

decisions” for the company as a whole out if its headquarters in Brazil; for example, ICP decides

whether the InterCement Group should “market and sell assets, incur or restructure indebtedness,

grant collateral, initiate or defend against material lawsuits and commence insolvency

proceedings.” (Rabelo Declaration ¶ 4.) The Debtors contend that ICP “controls each of the

other members of the InterCement Group,” citing ICP’s ability to “directly or indirectly . . .

appoint or remove the directors of each of its direct and indirect subsidiaries, including the other

Chapter 15 Debtors.” (Id. ¶ 38.)

InterCement Brasil S.A. is the InterCement Group’s primary operating company and

Brazil’s third-largest cement company. (Id. ¶ 5.) ICB is “engaged in all stages of cement

production and sales” in Brazil. (Id.) The company is incorporated in Brazil and has its

registered office in São Paulo. (Id.) It has 1,745 employees, 99% of whom are located in Brazil.

(JX-284.)

2. The Netherlands Entity

InterCement Financial Operations B.V. is a Netherlands-incorporated special purpose

financing vehicle created to provide the InterCement Group with “access to the international

capital markets to support the InterCement Group’s funding needs.” (Rabelo Declaration ¶ 6.)

ICBV’s registered office is in Amsterdam. (Id.) It is owned by InterCement Portugal (“IC

Portugal”), which is in turn owned by ICP. (Id.) As the issuer of the NY Notes, ICBV has two

2 Documents marked with the prefix “JX” were entered as exhibits in the evidentiary hearing held on

November 20 and 21, 2024 in the case captioned In re InterCement Brasil S.A., Case No. 24-11226 (MG); page

numbers of exhibits are designated by the Bates stamps utilized by the parties if available. See infra I(B), Prior

Chapter 15 Cases.

limited functions: managing relationships with the holders of the NY Notes, and paying on the

NY Notes. (Id. ¶ 41.)

ICBV’s primary assets are intercompany claims against ITI and ICP (incorporated in

Spain and Brazil, respectively), and its only other asset is $2 million in cash. (Id. ¶ 52.) ICBV’s

intercompany loans are denominated in USD or Euros, and its largest asset, its intercompany

claim against ITI, is denominated in Euros and worth over a billion dollars. (Deposition

Designations of Matthijs Paul Adrian Stoop (“Stoop Dep.”), Prior Chapter 15 Cases, ECF Doc. #

81, at 65:4-10, 66:6-17; Transcript Regarding Hearing Held on 11/20/24 (“Trial Tr. Day 1”),

Prior Chapter 15 Cases, ECF Doc. # 93, at 140:4-6 (“Q: So then necessarily, 90 percent of IC

Financial’s intercompany receivables are located in Spain, right? A: Right.”).) As for ICBV’s

cash, it is kept in six bank accounts, including one Dutch account. Three of the accounts are

denominated in Euros, two in USD, and one in Brazilian reais. (Stoop Dep. 32:22–33:7.) As of

July 2024, the majority of ICBV’s cash was located in an account in the Bahamas and

denominated in USD. (JX-149; Trial Tr. Day 1 at 141:9–19.). ICBV’s Brazilian bank accounts

have been inactive since 2022 and show a balance of zero reais as of October 2024. (JX-272, -

277, -182 at IC_FR_00003838; Trial Tr. Day 1 at 143:6-144:21.)

As for ICBV’s liabilities, all holders of the USD-denominated NY Notes, ICBV’s largest

debt at $750 million, are located outside of both Brazil and the Netherlands (Rabelo Declaration

¶ 53), and its second-largest debt, worth $436.27 million, stems from intercompany loans owed

to ICP (id. ¶ 54). Apart from the intercompany claims, ICBV has no creditors in Brazil. (JX-

232.)

ICBV’s key operations involving the NY Notes are governed by two documents: the

Offering Memorandum (the “OM,” JX-1), a 2014 document which advertised the sale of the NY

Notes, and the indenture agreement governing the NY Notes (the “Indenture,” JX-209, Prior

Chapter 15 Cases, ECF Doc. # 2-5). The Offering Memorandum, which displays ICBV’s

country of incorporation on the first page, describes the InterCement Group on the first page of

its Executive Summary as among the largest “international cement producers . . . with operations

in South America . . . Europe . . . and Africa,” and as a “market leader[] in Argentina, Portugal,

Mozambique and Cape Verde, the second largest cement producer in Brazil, and a regional

leader in South Africa.” (JX-1 at IC_FR_00002669, IC_FR_00002680.) At the same time, the

Offering Memorandum makes clear that, at the time, InterCement’s largest operations and its

controlling shareholder were located or based in Brazil. (Id. at IC_FR_00002709 (“Brazilian

operations . . . account for the most significant portion of our overall revenues and expenses”),

IC_FR_00002728 (describing InterCement as a “Brazilian company with a significant portion of

our operations in Brazil”).)3 The OM provides:

The issuer’s [ICBV’s] principal business activity is to act as a financing vehicle for

our activities and operations. The issuer has no substantial assets (other than in

connection with transactions entered into with [Mover] and its affiliates) and its

only sources of cash flow are from its financing activities and capital contributions

made by us4 and our other subsidiaries. Accordingly, the ability of the issuer to pay

principal, interest and other amounts due on the notes and other indebtedness will

depend upon our financial condition and results of operations.

(JX-1 at IC_FR_00002712.)

The OM warns creditors that, in the event of a bankruptcy, the guarantors of the NY

notes—ICP and ICB, both Brazilian entities—“may become subject to bankruptcy proceedings

in Brazil,” which may be “less favorable to creditors” than proceedings in other jurisdictions.

3 Since the OM was written, the InterCement Group has sold 48% of its Argentinian interests and all of its

other businesses outside Brazil (Rabelo Declaration ¶¶ 66-67; Motion ¶ 67), and announced these divestments

publicly (see, e.g., JX-86 (announcing divestment of operations in Egypt), JX-119 (announcing sale of business in

rest of Africa).

4 The OM provides that references to terms like “we,” “our company,” “ours”, and “us” refer to ICP and its

subsidiaries, rather than ICBV. JX-1 at IC_FR_00002670.

.

(Id. at IC_FR_00002714.) However, any insolvency involving the ICBV would likely be

affected by, if not governed by, Dutch law: “Any insolvency proceedings with respect to the

issuer in the EEA [European Economic Area] (excluding Denmark) would most likely be based

on and governed by the insolvency laws of the Netherlands. In addition, there can be no

assurance as to how the insolvency laws of the Netherlands would be applied in the event that

the issuer is subject to one or more insolvency proceedings outside the Netherlands.” (Id.)

The Indenture Agreement directs investors to send related correspondence to a Brazilian

address, and provides that ICBV can be substituted as issuer with either ICP or ICB without the

consent of the noteholders. (Rabelo Declaration ¶¶ 61–62; Indenture at 62, 90.) ICBV files

taxes solely in the Netherlands. (Stoop Dep. 59:2–13.) ICBV’s annual reports (with financial

results denominated in euros) are filed with the Dutch Chamber of Commerce and are publicly

available. (Stoop Dep. 28:14–25, 32:10–18.) ICBV’s original books and records are kept by its

vendor Vistra in the Netherlands, with copies separately maintained in Brazil, pursuant to Dutch

law. (Rabelo Declaration ¶ 51; Stoop Dep. 25:7–11.)

ICBV has six directors, three of whom are Dutch and reside in the Netherlands and three

of whom are Brazilian and reside in Brazil. (Rabelo Declaration ¶ 46.) Any action taken by

ICBV’s board requires the approval of at least one Dutch director and at least one Brazilian

director. (Id.; Stoop Dep. 23:13–25:6.) This means that, without approval from at least one

Dutch (or Brazilian) director, the board cannot act. (Trial Tr. Day 1 122:8–20.) Because ICBV’s

Dutch directors are not employees of the InterCement Group, the Dutch directors rely on the

Brazilian directors (and other InterCement employees) to provide them with information

regarding the corporate group’s operations at large. (Rabelo Declaration ¶ 47.)5 ICBV’s board

5 See also Stoop Dep. 23:13-24:5 (“[T]he Brazilian board members are obviously well integrated into the

overall InterCement Group, so they bring that knowledge to” ICBV.)

may take into account advice from the Brazilian component of the InterCement Group when

determining what course of action to take, but ultimately acts independently and maintains

independent judgment in executing its fiduciary duties.6 In fact, the Foreign Representative was

unable to think of a time when the shareholders of ITI and ICBV refused to ratify any action of

the companies’ respective boards. (Trial Tr. Day 1 127:14–19.) Vistra Employment Services,

B.V., a Dutch corporation, has a permanent seat on ICBV. (See Stoop Dep. 11:7–23.) Over the

three years prior to the Petition Date, formal board meetings have been held virtually, with the

Dutch directors calling in from the Netherlands and the Brazilian directors from Brazil, but all

in-person meetings typically took place in the Netherlands, whether formal or informal. (Rabelo

Declaration ¶ 48; Stoop Dep. 29:2–31:16; Trial Tr. Day 1 122:3–7.)

ICBV’s operations are, in significant part, run out of Brazil: ICP’s agents hold calls and

meetings with the holders of the NY Notes, prepare investor presentations, audit quarterly

financial statements (prepared on a consolidated basis for ICP and all its subsidiaries), make

market announcements, and run quarterly public investor calls out of Brazil. (Rabelo

Declaration ¶¶ 42, 59.) ICP’s board of directors and officers makes “material strategic decisions

for all entities” within the InterCement Group from the company’s Brazilian headquarters, and,

according to the Foreign Representative, this encompasses the decision as to “when and how to

pay the scheduled interest payments on the NY Notes” and whether to transfer money from other

entities to allow ICBV to make such payments.7 (Id. ¶ 43.) However, while ICP determines

6 Stoop Dep. 55:5–11, 57:6–16 (“Q: “[Y]ou’re not aware of any instances in which Mover provided direction

on a resolution to the IC Financial board of directors?” . . . A: . . . [T]hey can propose something which for the

consideration of the board. Ultimately, the board needs to make its own assessment and decision.”); Trial Tr. Day 1

123:7–10 (“Q: [Y]ou are not aware of an instance in which IC Financial shareholder has instructed IC Financial’s

board to take an action, are you? A: No.”).

7 The Foreign Representative provided an example of the exercise of such power: “For instance, if IC

Financial’s Dutch directors wanted to make a scheduled interest payment on the NY Notes, the effectuation of such

interest payment would in fact be dependent on decisions made in Brazil to transfer funds to pay IC Financial.”

(Rabelo Declaration ¶ 43.)

how to extract the necessary funds from the InterCement Group’s operations and provide those

funds to ICBV for the purpose of paying on the NY Notes, it is ultimately the ICBV board which

decides whether and when to make payments on the Notes.8

ICBV has no employees but engages with a number of Dutch contractors in order to run

its business. (JX-284; Rabelo Declaration ¶ 44.) ICBV does not have an office of its own, but

rents shared office space from Vistra, which provides a number of additional services, including

recordkeeping, mail services, tax return preparation, and payment of daily expenses. (Rabelo

Declaration ¶ 40; Trial Tr. Day 1 115:3–116:4.). Vistra also provides draft annual reports for

ICBV, which are prepared by individuals in the Netherlands working in “close connection and

interaction with the financial team in Brazil.” (Stoop Dep. 27:18–28:2.) ICBV pays Vistra for

the services it provides. (Trial Tr. Day 1 121:4–14.) Vistra does not any provide services for the

InterCement Group in Brazil. (Id. 121:18–20.) PricewaterhouseCoopers Nederland prepares

the first draft of ICBV’s tax returns and Vistra prepares the first drafts of its accounts, but ICP’s

employees in Brazil review and sign off on these documents before they are finalized. (Rabelo

Declaration ¶ 44.) However, ahead of the November 2024 evidentiary hearing, one of ICBV’s

Dutch board members testified, unchallenged, that it is the responsibility of ICBV’s 50% Dutch

board of directors to ultimately approve the annual report. (Stoop Dep. 28:3–7.) ICBV’s annual

financial reports are audited by Ernst & Young Nederland, but ICBV does not have its own audit

committee; rather, it shares an Audit Committee with the rest of the InterCement Group.

(Rabelo Declaration ¶ 44; JX-182 at IC_FR_00003824.)

8 Trial Tr. Day 1 133:21–134:4. (“Q: [T]he ultimate decision to make payments on the notes is made by the

IC Financial Board, right? A: When the proceeds arrive in IC Financial’s account, yes, the board is entitled to pay it,

to press the button. But, of course, all the decision about the region of the money we [] provided and how it will be

generated and how it’s to be paid is derived from IC participants in Brasil.”).

The NY Notes ICBV manages are governed by New York law, and ICBV, as a

Netherlands-incorporated entity, is subject to Dutch law. (JX-1 at IC_FR_00002837,

IC_FR_00002861.) However, as the operations generating cash flow in the InterCement Group,

which generate funds used to pay the NY Notes, take place in Brazil, certain disputes likely to

affect ICBV would largely be governed by Brazilian law. (Rabelo Declaration ¶ 55; see also JX-

1 at IC_FR_00002694-IC_FR_00002698, IC_FR_00002703- IC_FR_00002714 (citing risk

factors, most of which refer to Brazil.)) However, with the exception of intercompany

agreements, ICBV is not a party to any third-party agreement governed by Brazilian law. (Trial

Tr. Day 1 137:21–138:5).

3. The Spanish Sub-Holding Company

InterCement Trading e Inversiones S.A. is a Spanish sub-holding company wholly owned

by IC Portugal. (Rabelo Declaration ¶ 7.) ITI is the controlling shareholder of ICB and of ITI

Argentina (“ITI ARG”) (in turn a sub-holding company which is the controlling shareholder of

the Argentine operating company Loma Negra). (Id.) ITI and ITI ARG both support

InterCement’s international financing efforts, including by guaranteeing debentures (the

“Debentures”) issued by ICB and ICP in the Brazilian capital markets. (Id.) ITI also issues

inter-company loans denominated in euros, US dollars, and Brazilian reais, most of which are

held by Brazilian entities ICP and ICB. (JX-250.) ITI represented to a Spanish court that its

corporate purpose consists, in part, of:

[T]he acquisition, holding and enjoyment, general administration, sale and

encumbrance of Spanish securities, fixed or variable income, through the

corresponding organization of personal and material resources . . . as well as the

provision of technical management, auditing, consulting and technical assistance

services, as well as technical know-how and implementation of initiatives in the

cement sector and its derivative products or raw materials destined for construction

companies within and outside the [InterCement G]roup.

(JX-215 at 2.)9

ITI is incorporated in Spain, and its registered office is in Bilbao, where it rents a one-

room office. (Rabelo Declaration ¶ 68.) Its bylaws are in Spanish and are governed by Spanish

law. (JX-165.) ITI has a single employee who is located in Spain, one Spanish director residing

in Spain, and two Brazilian directors residing in Brazil (both of whom are ICP employees); it has

no officers. (Rabelo Declaration ¶ 69, JX-284.) In recent years, many of ITI’s board decisions

have been made by written consent, which the two Brazilian directors executed from Brazil and

the Spanish director executed from Spain. (Rabelo Declaration ¶ 69.) Most board meetings took

place in Spain, as required by Spanish law, with the remainder taking place over videoconference

with each director participating from his domicile. (Id.) The Foreign Representative testified

that while ITI’s board of directors “consider[s], take[s] into account, [and has] as part of the total

mix of information” the “guidance, information, and recommendation[s] from the Brazilian

employees [and] Brazilian directors” of the InterCement Group when making decisions, the ITI

board does not take instruction from ICP or any other entity’s agents, and makes all final

decisions regarding actions carried out by ITI. (Trial Tr. Day 1 100:12–101:1, 113:2–4.)

ITI’s sole employee “organizes the administrative affairs for ITI in Spain, such as paying

the rent and utilities . . . preparing draft meeting minutes and preparing drafts of ITI’s accounts,

subject to approval by the . . . teams in Brazil,” and she “takes direction from ICP’s chief

financial officer . . . in Brazil.” (Rabelo Declaration ¶ 69.)) As with ICBV, employees of ICP

provide legal, finance, treasury, tax, accounting, compliance, and investor relations services to

ITI. (Id. ¶ 70.)

9 The Foreign Representative states that ITI no longer sells Spanish securities, and Rabelo testified that ITI

has not sold Spanish securities since 2012. (Foreign Representative Closing Demonstrative at 8, Rabelo Declaration

at 25 n.14.) However, in a 2024 filing in Spanish court, ITI asserted that it sold such securities more recently. (JX-

215 at 2.)

ITI’s books and records are kept in Spain, with copies separately maintained in Brazil; all

entries in the books and records are first approved by an ICP employee. (Id.) ITI contracts with

a number of Spanish counterparties as needed to support the company’s operations, and has

retained various Spanish professionals, including legal and tax advisors, auditors, and consultants

to provide services in Spain. (Trial Tr. Day 1 97:10–13; 104:25–105:6.)

ITI’s assets consist of its equity interests in ICB, 100% of the shares of ITI ARG, and

cash in various bank accounts. (Rabelo Declaration ¶ 71.) Most of ITI’s cash is held in bank

accounts in Spain. (Id.; JX-252, -253.) ITI has a mix of Brazilian and non-Brazilian creditors;

the holders of the Debentures (the “Debenture Holders”), which ITI guarantees but is not directly

a party to, are mostly based in Brazil. (Rabelo Declaration ¶ 72.) ITI has no other Brazilian

creditors; its other creditors are entities within the InterCement Group to which it has made

intercompany loans. (JX-232, JX-250.)

While the Debentures are governed by Brazilian law, ITI’s intercompany loans are

governed by Spanish, Dutch and Brazilian law, and ITI itself is subject to certain Spanish laws as

a Spain-incorporated company. (Rabelo Declaration ¶¶ 75–76.) Other than the holders of the

Debentures, all of ITI’s creditors are located outside of Brazil. (JX-232.)

B. Prior Chapter 15 Cases

On July 15, 2024 (the “Prior Petition Date”), the Chapter 15 Debtors filed a petition (the

“Prior Petition”) seeking recognition under chapter 15 of the Bankruptcy Code, initiating the

Prior Chapter 15 Cases (In re InterCement Brasil S.A., Case No. 24-11226 (MG) (Bankr.

S.D.N.Y. July 18, 2024)). Immediately prior to the filing of the Prior Chapter 15 Cases, a

portion of the InterCement Group10 (the “Brazilian Applicants”) had commenced a court-

10 The Brazilian Applicants are ICP, ICB, IC Financial, ITI, ITI Argentina, and Mover. (Motion at 2 n.5.)

supervised mediation proceeding in in São Paulo (the “Brazilian Mediation”) with a number of

creditors. (Motion ¶ 1). The 1st Bankruptcy and Restructuring Court of São Paulo (the

“Brazilian Bankruptcy Court”) granted a 60-day injunction barring creditors from pursuing the

Brazilian Applicants’ assets. (Id.) Three days later, on July 18, 2024, this Court granted a

provisional stay barring potential creditor actions against the Chapter 15 Debtors. (Id.)

The Brazilian Applicants were able to reach an agreement in principle with the Debenture

Holders (who comprised a majority of their largest creditor constituency) regarding the terms of

a restructuring plan (the “EJ Plan”). (Id. ¶ 2.) On September 16, 2024, a subset of the Brazilian

Applicants (the “EJ Debtors”11) filed a petition with the Brazilian Bankruptcy Court to convert

the Brazilian Mediation into a consensual recuperação extrajudicial proceeding (the “Brazilian

EJ Proceeding”). (Id.) The Brazilian Bankruptcy Court promptly entered an order accepting the

Brazilian EJ Proceeding, and granted an additional 120-day stay to provide the EJ Debtors with

time to seek support for the EJ Plan. (Id.) This Court also granted a further provisional stay on

creditor actions against the Chapter 15 Debtors in the United States pending its consideration of

the relief requested in the Prior Petition. (Id.)

In the Prior Petition, the Foreign Representative sought recognition of the Brazilian EJ

Proceeding as a foreign main or nonmain proceeding. 12 The Ad Hoc Group objected to the Prior

Petition. A two-day evidentiary hearing was held on November 20 and 21, 2024 to consider

11 The EJ Debtors are ICP, ICB, IC Financial, ITI, ITI Argentina. The EJ Debtors include all of the Brazilian

Applicants except Mover, which consented to the EJ Plan but was not an EJ Debtor as it was not an obligor with

respect to any of the claims affected by the EJ Plan. (Motion at 3 n.8.)

12 It is not contested that ICBV, ITI, ICP, and ICB have sufficient connections to the United States to warrant

this Court’s exercise of jurisdiction over them. As discussed infra, ICBV, ICP, and ICB have contract rights under

an indenture governed by New York choice-of-law and choice-of-forum provisions. (Rabelo Declaration ¶ 35, 47.)

ITI has assets in the United States consisting of $200 million of the NY Notes held on deposit with an institution in

New York. (Id. ¶ 36.) These four debtors also have $5,000 each in cash in a trust account located in New York.

(Id. ¶ 37.) The companies not seeking Chapter 15 protection have no connection to the United States.

factual issues related to each Chapter 15 Debtor’s COMI and establishments as of the Prior

Petition Date. (Id. ¶ 5.) The Court did not rule on the requested relief.

C. Commencement of Proceedings in the Netherlands and Spain

1. The Netherlands

On July 9, 2024, a few days before the filing of the Prior Petition, an NY Noteholder filed

a petition in the Amsterdam Court (Private Law Department) (the “Dutch Court”) seeking the

appointment of a restructuring expert with the authority to submit a restructuring plan for ICBV

pursuant to a provision of the Wet homologatie onderhands akkoord (“WHOA”). (Prior Chapter

15 Cases, Declaration of Robert van Galen in Support of the Ad Hoc Group's Objection to

Verified Petition and Verified Supplement (the “Van Galen Declaration,” ECF Doc. # 79), ¶ 10.)

In response, ICBV filed a Commencement Statement on July 17, 2024 (JX-282 at Exhibit 21),

requesting that the Dutch Court declare a four-month cooling-off period under a different

provision of the WHOA and appoint an observer pursuant to the WHOA rather than a

restructuring expert. (Motion ¶ 30.) In its Commencement Statement, ICBV identified the

Netherlands as ICBV’s “centre of main interests” on the basis of its “corporate seat” being

located in the Netherlands. (Objection ¶ 8; Trial Tr. Day 1 24:11–20).

By filing the Commencement Statement, ICBV initiated a voluntary public restructuring

procedure (the “Dutch Proceeding”). In voluntary proceedings in the Netherlands, Dutch courts

remain largely uninvolved with the restructuring, and debtors in public proceedings can secure a

pan-European stay on creditor actions if the proceeding is recognized pursuant to the European

Insolvency Regulation (“EIR”) (Trial Tr. 20:11–19.) However, public proceedings only fall

within the scope of the EIR if the debtor’s COMI is located within the European Union,

according to the EIR’s definition of COMI. (Van Galen Declaration ¶ 23; see also Trial Tr. Day

1 21:2–7.)

On July 31, 2024, the Dutch Court entered an order (the “Dutch Order”) accepting

ICBV’s voluntary WHOA filing and rejecting the NY Noteholder’s request for the appointment

of an expert. (Motion ¶ 30.) Instead, as requested by ICBV, the Dutch Court appointed an

observer (the “Dutch Observer”) pursuant to Section 380 of WHOA to, inter alia, oversee the

formation of a restructuring plan for ICBV (Id.; JX-282 at Exhibit 19). In the Dutch Order, the

Dutch Court found that ICBV’s COMI is “situated in the Netherlands.” (JX282 at Exhibit 5,

Section 5.2.)

On November 1, 2024, a member of the Ad Hoc Group filed a petition in the Dutch Court

to end the cooling-off period imposed by the Dutch Court, along with a petition for bankruptcy

on behalf of ICBV. (Rabelo Declaration ¶ 27.) On December 5, 2024, the Dutch Court denied

the request to terminate the cooling-off period and permitted the Dutch Proceeding to continue.

(Exhibit F to Motion.) In doing so, the Dutch Court reiterated its earlier finding that ICBV’s

COMI is the Netherlands, a finding consistent with ICBV’s own repeated representations in the

Dutch Proceeding. (Id. at 8.)

The cooling-off period in the Dutch Proceeding expired on March 1, 2025. (ECF Doc. #

56 at ¶ 7.) The Dutch Court held a hearing on March 14, 2025 to consider the continued

necessity of the appointment of the Dutch Observer, and subsequently revoked the appointment

of the Dutch Observer on March 21, 2025. (See ECF Doc. # 61 at ¶ 1.)

2. Spain

On July 16, 2024, ITI and ITI ARG filed a notice before the Commercial Court No. 2 of

Bilbao, Spain (the “Spanish Court”) communicating the initiation of creditor negotiations and

seeking an initial pre-insolvency protection period of three months (the “Spanish Proceeding”).

(Rabelo Declaration ¶¶ 28-29.) The Spanish Court accepted the notice and imposed the

requested stay on July 24, 2024. (Id. ¶ 29.) The Spanish Court extended the stay for an

additional three months on October 15, 2024. (Motion ¶ 30.)

Subsequently, ITI and ITI ARG filed a motion seeking recognition of the Brazilian RJ

Proceeding; a separate commercial court in Bilbao granted the motion on January 17, 2025 (the

“Spanish Recognition Order”). (See ECF Doc. # 56 at ¶ 9.) Members of the Ad Hoc Group have

filed a notice of appeal of the Spanish Recognition Order, which remains pending at this time.

(Id.)

D. Liquidation Efforts

In Brazil, the success of the Brazilian EJ Proceeding hinged on the proposed sale of all of

the EJ Debtors’ business. (Motion ¶ 2.) Accordingly, a number of restructuring processes

occurred before and during the pendency of the Brazilian EJ Proceeding, beginning with the

Brazilian Mediation, and thereafter including the filing of the EJ Plan and a marketing and sales

process whereby the InterCement Group provided confidential information to creditors and the

leading bidder, Companhia Siderúrgica Nacional (“CSN”). (Id.).

Ultimately, after months of negotiations, the EJ Debtors concluded that they would be

unable to execute a sale agreement or obtain the requisite creditor support for the EJ Plan prior to

the expiration of the deadline required by the Brazilian Bankruptcy Law. (Motion ¶ 3.)

Accordingly, on December 3, 2024, the Chapter 15 Debtors and certain of their affiliates

(collectively, the “RJ Debtors”13) commenced the Brazilian RJ Proceeding and obtained a further

stay from the Brazilian Bankruptcy Court barring creditor actions. (Id.) Because the Brazilian

13 The other RJ Debtors are ITI Argentina, Sucea Participações S.A. (“Sucea”), Sincro Participações S.A.

(“Sincro”), and Mover. (Id. at 1 n.1.)

RJ Proceeding added new debtors, it is considered under Brazilian law a distinct insolvency

proceeding from the Brazilian EJ Proceeding, rather than a continuation or conversion thereof.

(Id.)

E. Chapter 15 Petition and Debtors

On December 9, 2024 (the “New Petition Date”), the Petitioner commenced the Chapter

15 Cases, seeking recognition of the Brazilian RJ Proceeding as a foreign main proceeding (or,

in the alternative, a foreign nonmain proceeding) for each of the Chapter 15 Debtors. (Motion ¶

4). The identities of the Chapter 15 Debtors are identical to the debtors in the Prior Chapter 15

Cases. (Id.)

II. LEGAL STANDARD

A. Section 1517(a): Foreign Proceeding Recognition

Section 1517(a) of the Bankruptcy Code establishes three requirements for the

recognition of a foreign proceeding under chapter 15. In order to recognize the foreign

proceeding, a court must conclude that:

(1) The foreign proceeding constitutes a foreign proceeding (either main or

nonmain) as are defined under section 1502;

(2) The foreign representative applying for recognition is a person or body; and

(3) the petition meets the requirements of section 1515.

11 U.S.C. § 1517(a).

Recognition of the foreign proceeding is statutorily mandated if the three requirements of

section 1517(a) are met and no exception is applicable. See In re Millard, 501 B.R. 644, 651

(Bankr. S.D.N.Y. 2013).

1. 1517(a)(1): Foreign Main Proceeding Recognition

Section 1517(a) distinguishes between “foreign main” and “foreign nonmain”

proceedings. Section 1517(b) establishes conditions for recognition of each. In relevant part,

section 1517(b)(1) states that a foreign proceeding shall be recognized “as a foreign main

proceeding if it is pending in the country where the debtor has the center of its main interests.”

11 U.S.C. § 1517(b)(1). Section 1502(4) uses the same language to define “foreign main

proceeding.”

a. “Foreign Proceeding”

Section 101(23) defines a “foreign proceeding” as:

[A] collective judicial or administrative proceeding in a foreign country, including

an interim proceeding, under a law relating to insolvency or adjustment of debt in

which proceeding the assets and affairs of the debtor are subject to control or

supervision by a foreign court, for the purpose of reorganization or liquidation.

11 U.S.C. § 101(23).

Based on this definition, courts have held that a “foreign proceeding” requires:

(i) [the existence of] a proceeding;

(ii) that is either judicial or administrative;

(iii) that is collective in nature;

(iv) that is in a foreign country;

(v) that is authorized or conducted under a law related to insolvency or the

adjustment of debts;

(vi) in which the debtor’s assets and affairs are subject to the control or supervision

of a foreign court; and

(vii) which proceeding is for the purpose of reorganization or liquidation.

See Armada (Singapore) Pte Ltd. v. Shah (In re Ashapura Minechem Ltd.), 480 B.R. 129, 136

(S.D.N.Y. 2012) (citing In re Betcorp Ltd., 400 B.R. 266, 277 (Bankr. D. Nev. 2009)); see also

In re Overnight & Control Com’n of Avánzit, S.A., 385 B.R. 525, 532–36 (Bankr. S.D.N.Y 2008)

(discussing factors).

b. “Center of Main Interests”

The term “center of [debtor’s] main interests” (“COMI”) is not defined by the

Bankruptcy Code. However, section 1516(c) provides that, in the absence of an objection or

evidence to the contrary, a debtor’s registered office or habitual residence “is presumed to be the

center of the debtor’s main interests.” 11 U.S.C. § 1516(c); see also In re Olinda Star I, 614

B.R. 28, 41 (Bankr. S.D.N.Y. 2020); In re Ocean Rig UDW Inc., 570 B.R. 687, 705 (Bankr.

S.D.N.Y. 2017); In re ABC Learning Centres Ltd., 445 B.R. 318, 333 (Bankr. D. Del. 2010),

aff’d, 728 F.3d 301 (3d Cir. 2013). The relevant time period to determine the location of the

debtor’s COMI is the date on which the chapter 15 petition is filed. See Morning Mist Holdings

Ltd. v. Krys (In re Fairfield Sentry Ltd.), 714 F.3d 127, 137 (2d Cir. 2013) (hereinafter “Fairfield

Sentry”).

In assessing whether the registered office presumption has been overcome, courts in this

District have applied a list of non-exclusive factors for determining the COMI. Those factors

include: (i) the location of the debtor’s headquarters; (ii) the location of those who actually

manage the debtor; (iii) the location of the debtor’s primary assets; (iv) the location of the

majority of the debtor’s creditors or a majority of the creditors who would be affected by the case;

and (v) the jurisdiction whose law would apply to most disputes. Fairfield Sentry, 714 F.3d at

137 (citing In re SPhinX, Ltd., 351 B.R. 103, 117 (Bankr. S.D.N.Y. 2006)). While these factors

serve as a “helpful guide” in determining a debtor’s COMI, the factors are not exclusive, and

none of the factors is required nor dispositive. Fairfield Sentry, 714 F.3d at 137 (explaining that

“consideration of these specific factors is neither required nor dispositive” and warning against

mechanical application).

Additionally, in determining a debtor’s COMI, the Second Circuit and this Court have

examined the expectations of creditors and other interested parties, as a company’s COMI must

be “ascertainable to third parties.” See Fairfield Sentry, 714 F.3d at 136–38; In re Millennium

Global Emerging Credit Master Fund Ltd., 474 B.R. 88, 93 (S.D.N.Y. 2012). As the Second

Circuit has explained, by examining factors “in the public domain,” courts are readily able a

debtor’s COMI is in fact “regular and ascertainable [and] not easily subject to tactical removal.”

See Fairfield Sentry, 714 F.3d at 136–37. “Creditor expectations can be evaluated through

examination of the public documents and information available to guide creditor understanding

of the nature and risks of their investments.” In re Oi Brasil Holdings Cooperatief U.A., 578

B.R. 169, 228 (Bankr. S.D.N.Y. 2017). In practice, the evaluation of creditor expectations has

focused on reviewing disclosures in offering memoranda and indentures. See id. at 228–32

(reviewing offering memorandum to establish noteholder expectations as part of a COMI

analysis); In re OAS S.A., 533 B.R. 83,102–03 (Bankr. S.D.N.Y. 2015) (same); Millennium

Glob., 474 B.R. at 93–94 (same); In re Suntech Power Holdings Co., Ltd., 520 B.R. 399, 418

(Bankr. S.D.N.Y. 2014) (considering terms of indenture agreement to establish creditor

expectations regarding likely location of a restructuring as part of a COMI analysis).

As noted, the Second Circuit has also clarified that the determination of a debtor’s COMI

should be based on the facts available at the time the Chapter 15 petition is filed. Fairfield

Sentry, 714 F.3d at 138. The Court explained that “the factors that a court may consider in this

analysis are not limited and may include the debtor’s liquidation activities.” Id. at 137–38. See

also In re Modern Land (China) Co., Ltd., 641 B.R. 768, 783 (Bankr. S.D.N.Y. 2022) (finding

that a Cayman court’s supervision of a debtor’s Cayman scheme of arrangement proceeding

established the Cayman Islands as the debtor’s COMI—although the debtor was a holding

company of entities involved with real estate investing in China and the United States—when

other factors putting creditors on notice were considered). Pre-filing restructuring efforts may

shift a debtor’s COMI, especially where a debtor is an entity with limited operations such that

restructuring activity constitutes the debtor’s “primary business activity” prior to the filing of a

petition for recognition. Modern Land, 641 B.R. at 789–90.

Relevant pre-filing restructuring efforts may include the negotiation or execution of a

restructuring framework or support agreement, holding of meetings with creditors, or other

operational or liquidation activities or administrative functions. Oi Brasil, 578 B.R. at 222

(citing In re Creative Fin., 543 B.R. 498, 517 (Bankr. S.D.N.Y. 2016)); see, e.g., Modern Land,

641 B.R. at 778–81, 789–90. However, courts may also undertake a “holistic analysis” to

consider whether a debtor has manipulated COMI in bad faith prior to the filing of a chapter 15

petition in the debtor’s preferred locale. Ocean Rig, 570 B.R. at 706–07. Indicators of bad-faith

“COMI-shifting” may include “insider exploitation, untoward manipulation, [and] overt

thwarting of third party expectations.” Fairfield Sentry, 440 B.R at 66.

2. 1502(5): Foreign Non-Main Proceeding

A foreign nonmain proceeding is defined as a “foreign proceeding, other than a foreign

main proceeding, pending in a country where the debtor has an establishment.” 11 U.S.C. §

1502(5). An “establishment” is “any place of operations where the debtor carries out a

nontransitory economic activity.” 11 U.S.C. § 1502(2). The location should:

constitute a ‘seat for local business activity’ for the debtor. The terms ‘operations’

and ‘economic activity’ require a showing of a local effect on the marketplace,

more than mere incorporation and record-keeping and more than just the

maintenance of property.

Creative Fin., 543 B.R. at 520.

Recognition as a foreign nonmain proceeding requires “a showing of a local effect on the

marketplace, more than mere incorporation and record-keeping and more than just the

maintenance of property.” Id.

3. 1517(a)(2): Foreign Representative Recognition

The term “foreign representative” is defined in section 101(24) of the Bankruptcy Code

as follows:

[A] person or body, including a person or body appointed on an interim basis,

authorized in a foreign proceeding to administer the reorganization or the

liquidation of the debtor’s assets or affairs or to act as a representative of such

foreign proceeding.

11 U.S.C. § 101(24).

4. 1517(a)(3): Section 1515 and Rule 1007 Requirements

Section 1515 separately imposes the following procedural requirements:

(a) A foreign representative applies to the court for recognition of a foreign

proceeding in which the foreign representative has been appointed by filing a

petition for recognition.

(b) A petition for recognition shall be accompanied by—

(1) a certified copy of the decision commencing such foreign proceeding

and appointing the foreign representative;

(2) a certificate from the foreign court affirming the existence of such

foreign proceeding and of the appointment of the foreign representative; or

(3) in the absence of evidence referred to in paragraphs (1) and (2), any

other evidence acceptable to the court of the existence of such foreign

proceeding and of the appointment of the foreign representative.

(c) A petition for recognition shall also be accompanied by a statement identifying

all foreign proceedings with respect to the debtor that are known to the foreign

representative.

(d) The documents referred to in paragraphs (1) and (2) of subsection (b) shall be

translated into English. The court may require a translation into English of

additional documents.

11 U.S.C. § 1515.

Additionally, Bankruptcy Rule 1007 imposes additional procedural requirements,

including the filing of a corporate disclosure statement. FED. R. BANKR. P. 1007.

B. Additional Relief

1. Automatic Relief Under Section 1520

Section 1520(a) of the Bankruptcy Code sets forth a series of statutory protections that

automatically result from the recognition of a foreign main proceeding, including the application

of the protection afforded by the automatic stay under section 362(a) of the Bankruptcy Code to

the debtor and its property located within the territorial jurisdiction of the United States. See 11

U.S.C. § 1520(a).

2. Discretionary Relief Under Section 1521

Section 1521(a) outlines the discretionary relief a court may order upon recognition. See

11 U.S.C. § 1521(a). “The discretion that is granted is ‘exceedingly broad,’ since a court may

grant ‘any appropriate relief’ that would further the purposes of chapter 15 and protect the

Debtor’s assets and the interests of creditors,” provided that the interests of creditors and other

interested entities are sufficiently protected. In re Atlas Shipping A/S, 404 B.R. 726, 740 (Bankr.

S.D.N.Y. 2009) (citing 11 U.S.C. §§ 1521(a), 1522(a)). In Atlas Shipping, this Court described

“sufficient protection” as embodying three basic principles: “the just treatment of all holders of

claims against the bankruptcy estate, the protection of U.S. claimants against prejudice and

inconvenience in the processing of claims in the [foreign] proceeding, and the distribution of

proceeds of the [foreign] estate substantially in accordance with the order prescribed by U.S.

law.” Atlas Shipping, 404 B.R. at 740.

3. Relief Under Section 105

Additionally, section 105(a) of the Bankruptcy Code provides that the “court may issue

any order, process, or judgment that is necessary or appropriate to carry out the provisions of this

title.” 11 U.S.C. § 105(a).

III. ANALYSIS

A. The Brazilian RJ Proceeding Should be Recognized as a Foreign Main

Proceeding

1. The Brazilian RJ Proceeding is a “Foreign Main Proceeding” under Sections

1517(a) and 1517(b)

a. The Brazilian RJ Proceeding Proceeding is a “Foreign Proceeding”

The Brazilian RJ Proceeding qualifies as a “foreign proceeding.” Courts in this Circuit

have long agreed that the Brazilian RJ process satisfies these standards. See In re Servicos de

Petroleo Constellation S.A., 600 B.R. 237, 270 (Bankr. S.D.N.Y. 2019) (collecting cases). As

such, the Court will not further examine each specific requirement of section 101(23).

b. Each Chapter 15 Debtor’s COMI is Brazil as of the New Petition Date

i. Uncontested Entities: ICP & ICB

ICP is the parent company of the other Chapter 15 Debtors. No party contests that ICP’s

COMI is Brazil. (Rabelo Declaration ¶ 38.) ICP’s registered office in São Paulo, Brazil. Id.

Therefore, absent “evidence to the contrary,” the Bankruptcy Code presumes its COMI is Brazil.

11 U.S.C. § 1516(c); see also In re Bear Stearns High-Grade Structured Credit Strategies

Master Fund, Ltd., 374 B.R. 122, 130 (Bankr. S.D.N.Y. 2007). Here, no evidence contradicts

this presumption: ICP’s directors, officers, and employees are all based in Brazil, and its books

and records are maintained in Brazil. (Rabelo Declaration ¶ 38.) Accordingly, ICP’s COMI is

Brazil.

Similarly, ICB, a Brazilian operating company and cement production and sales

corporation, has near-exclusive ties to Brazil, and no party disputes that its COMI is Brazil.

(Rabelo Declaration ¶ 39.) ICB’s registered office is also located in São Paulo, and no evidence

undercuts the resultant statutory presumption that its COMI is Brazil: 99% of ICB’s 1,745

employees are based in Brazil, where it represents the country’s third-largest cement company.

(Id.) As such, ICB’s COMI is Brazil.

ii. ICBV

ICBV’s COMI as of the New Petition Date is contested: the Foreign Representative

maintains that ICBV’s COMI is Brazil, while the Ad Hoc Group asserts that it is the

Netherlands. ICBV’s registered office is in Amsterdam, (Motion ¶ 40), entitling it to a rebuttable

statutory presumption that its COMI is the Netherlands. 11 U.S.C. § 1516(c).

There are several other Fairfield Sentry factors that would ordinarily undercut a

straightforward determination that ICBV’s COMI is Brazil. First, ICBV’s Board meetings are

typically held in the Netherlands, the entity contracts with almost exclusively Dutch contractors

and offers no services in Brazil, and the Board requires consent from at least one of its Dutch

constituent directors to make ultimate corporate decisions regarding the payment of the NY

Notes. ICBV’s assets are dispersed, with its largest (an intercompany receivable) held by a

Spanish entity, while the majority of its cash is denominated in USD and held in a Bahamanian

bank, and its Brazilian bank accounts are empty. The same pattern applies for ICBV’s creditors,

the majority of whom are neither based in Brazil nor in the Netherlands. Similarly, the law

applicable to ICBV’s disputes is mixed: New York law governs the NY Notes, which constitute

the majority of ICBV’s debt, and its intercompany loans are governed by a mix of New York and

Brazilian law. However, as a Dutch-incorporated company, ICBV is bound to certain Dutch

laws. See supra I(A)(2).

The analysis of ICBV’s creditor and other third-party expectations is more salient—and

more complex. Governing law in this District provides that where, as here, a debtor is a special

purpose financing vehicle (SPV) with no operations other than managing relationships with

creditors and paying off obligations on behalf of a larger corporate parent, the debtor’s COMI

should be determined by the location of the corporate “nerve center.” Oi Brasil, 578 B.R. at

222–30. And the developments immediately before the commencement of the Brazilian RJ

Process—namely, the Brazilian Mediation and Brazilian EJ Proceeding—bolster the Foreign

Representative’s position that ICBV’s COMI, as of the New Petition Date, is Brazil.

The facts in Oi Brasil were remarkably similar to the circumstances presently before the

Court. There, the debtor was an SPV to a large conglomerate in Brazil. The SPV was

incorporated in the Netherlands and maintained its registered office in Amsterdam. Oi Brasil,

578 B.R.at 177. Like ICBV, the SPV in Oi Brasil had no operations or business independent of

its Brazil-based corporate parent, had “never held money for any entity” other than a member of

the conglomerate, and performed only two functions, primarily “borrowing, or issuing or

assuming notes.” Id. at 177–78. The SPV was the issuer of two series of notes governed by

New York law, the governing indentures of which disclosed that the SPV had “no operations

other than the issuing and making payments on the Notes and other indebtedness ranking equally

with the Notes, and using the proceeds therefrom as permitted by the documents governing these

issuances,” and explained that the ability of the SPV to “pay principal, interest and other

amounts due on the Notes and other indebtedness” would “depend upon the financial condition

and results of operations” of the Brazilian parent. Id. Similarly, ICBV’s OM provides:

The issuer’s principal business activity to act as a financing vehicle for [ICP’s]

activities and operations. The issuer has no substantial assets . . . and its only

sources of cash flow are from its financing activities and capital contributions made

by [ICP] and [its] other subsidiaries. Accordingly, the ability of the issuer to pay

principal, interest, and other amounts due on the notes and other indebtedness will

depend upon [ICP’s] financial condition and results of operations.

(JX-1 at IC_FR_00002712; see also id. at IC_FR_00002670 (clarifying that references to “we,”

“our company,” “ours”, and “us” in the OM refer to ICP and its subsidiaries, not ICBV).) The

notes indentures at issue in Oi Brasil also “explicitly warn[ed] of the possibility of a Brazilian

bankruptcy” in terms nearly identical to ICBV’s OM: “[i]f we are unable to pay our

indebtedness, including our obligations under the notes, then we may become subject to

bankruptcy proceedings in Brazil. Brazilian bankruptcy laws are significantly different from,

and may be less favorable to creditors than, those of the United States.” Oi Brasil, 578 B.R. at

180 (emphases added). Given these striking similarities, it would be reasonable to find that

ICBV’s COMI, is, and has always been, Brazil.

However, the Court need not answer this question; rather, it must only identify ICBV’s

COMI as of the New Petition Date. Fairfield Sentry, 714 F.3d at 137. In addressing that more

narrow question, the Court finds that applicable restructuring activities occurring as part of the

Brazilian Mediation and Brazilian EJ Proceeding establish conclusively that, as of December 9,

2024, ICBV’s COMI was Brazil. In the months leading up to the filing of the Chapter 15

Petition, ICBV’s “primary business activity” was clearly limited to repayment of the NY Notes.

Modern Land, 641 B.R. at 789–90. As a practical matter, this effort was channeled through—

and its success depended on—the success of the Brazilian Mediation and Brazilian EJ

Proceeding and related creditor negotiations in Brazil. See OAS, 533 B.R. at 101 (finding that an

Austrian-incorporated SPV had “no other business except to pay [notes governed by New York

law] off,” and observing that this was “the very business [the SPV] and the other Brazilian

Debtors were engaged in through the Brazilian [b]ankruptcy [p]roceedings”).

Specifically, ICBV participated in the Brazilian Mediation as a debtor, attending

approximately six mediation sessions with the Ad Hoc Group’s advisors and four sessions with

the Indenture Trustee. (Rabelo Declaration ¶ 32; Motion ¶ 31; COMI Brief ¶ 38.) ICBV also

commenced the Brazilian EJ Proceeding, and signed the EJ Plan, which was filed with the

Brazilian Bankruptcy Court. (COMI Brief ¶ 39.) ICBV actively participated in litigation before

the Brazilian Bankruptcy Court and filed pleadings addressing matters substantively affecting its

interests in the Brazilian EJ Proceeding. (Laquimia Declaration ¶¶ 9, 12, 13.) ICBV’s Brazilian

directors also executed non-disclosure agreements in connection with the provision of

information regarding the InterCement Group to the Ad Hoc Group and its advisors. (Rabelo

Declaration ¶¶ 32–34; COMI Brief ¶ 15.) ICBV’s Brazilian advisors and directors met with the

Ad Hoc Group’s counsel to discuss matters directly impacting the scope of potential recoveries

on the NY Notes—the sole focus of ICBV’s business operations at that time. (Rabelo

Declaration ¶¶ 32–34; COMI Brief ¶ 15.) Finally, the Brazilian Mediation, Brazilian EJ

Proceeding, and ultimate commencement of the Brazilian RJ Proceeding were all publicly and

widely disclosed by press releases by ICP from Brazil. (COMI Brief ¶ 43.) Accordingly, when

considered as a whole, the Brazilian Mediation and Brazilian EJ Proceeding provide strong

indicia that ICBV’s creditors were on notice of the proceedings in Brazil.14

14 The Foreign Representative emphasizes that the Ad Hoc Group had no connection to the Netherlands: no

Ad Hoc Group member ever interacted with anyone in the Netherlands. (See Prior Chapter 15 Cases, ECF Doc. #

72, Joint Stipulated Facts.) Similarly, the Foreign Representative points out that the Ad Hoc Group stipulated to the

fact that its members “anticipated that any main plenary proceeding in which [the NY Notes] would be restructured

would be in the Federative Republic of Brazil,” (id. ¶ 6), and points to email evidence showing that the Ad Hoc

Group’s members subjectively anticipated a bankruptcy process in Brazil to affect their holdings (see, e.g., JX-15, -

55, -102, -116) and understood the importance of InterCement’s operations in Brazil to their investment (see, e.g.,

JX-17, -61, JX-102). Note, however, that even were this not the case, the subjective beliefs of a debtor’s creditors

By contrast, no restructuring activities with the capacity to materially impact ICBV’s

ability to conduct its business operations occurred in the Netherlands during this timeframe.

While the Ad Hoc Group focuses on the progress of the Dutch Proceeding during this timeframe,

the existence of parallel developments in that proceeding fails to negate the fact that, as a matter

of United States law, ICBV’s COMI as of the New Petition Date was Brazil. The Dutch

Observer’s activity in the Dutch Proceeding, while continuous and consistent, “do[es] little to

change the economic realities associated with [ICBV’s] status as a special purpose financing

vehicle and the related expectations of its creditors,” and separately has minimal impact on the

COMI determination because “there are significant legal and pragmatic limitations on the

[Observer’s] authority with respect to ICBV.” Oi Brasil, 578 B.R. at 225. As to the first point,

ICBV’s unique “economic reality,” which stems from its structure as an SPV, cannot be ignored

and has special implications for its COMI analysis. Id. Given that ICBV’s primary business

activity has, at all relevant times, been limited to the repayment of the NY notes, its economic

reality was tied inextricably to Brazil as of the New Petition Date because, up until that point, the

Brazilian EJ Proceeding had “provide[d] the only realistic chance to repay [ICBV’s] debts.” Id.

at 226. Indeed, even the Dutch Observer acknowledged in his monthly reports that ICBV’s

financial prospects were wholly dependent on the success of the Brazilian EJ Proceeding. (See

the “October Report,” ECF Doc. # 30-1, at §§ 1.2.3, 2.3.3, 2.3.4; the “November Report,” ECF

Doc. # 30-2, at § 1.2.3).15 Therefore, notwithstanding the involvement of the Dutch Observer in

concerning the debtor’s COMI does not matter—it is the perspective of the hypothetical (i.e., objective) third

party/creditor which the Court must consider.

15 In an apparent acknowledgement of ICBV’s involvement in the Brazilian EJ Proceeding, the Observer also

explained in the November Report that he was kept “sufficiently informed by ICBV (and its advisers and those of

the Group) . . . about the course of events in the EJ Procedure.” (November Report at § 5.3.).

the Dutch Proceeding, in totality, all relevant circumstances underscore that, as of the New

Petition Date, ICBV’s COMI is Brazil.

The Ad Hoc Group also relies on ICBV’s representations in the Dutch Proceeding that,

ICBV’s COMI, pursuant to the EIR, has at various points in time been the Netherlands—a

representation which it reiterated in November 2024, a few weeks before the New Petition Date.

(Objection ¶ 16.) On December 5, 2024, the Dutch Court referenced this representation in

extending the cooling-off period in the Dutch Proceeding, commenting that ICBV had provided

“no reason” for the Dutch Court to “reconsider its earlier finding” that ICBV’s COMI was the

Netherlands. (Id.) The Ad Hoc Group further emphasizes ICBV’s continued reiteration of this

position in the Dutch Proceeding in January 2025, even after the Foreign Representative filed the

COMI Brief. (Id. ¶ 17.) The Ad Hoc Group asserts that the Petitioner should be estopped from

proffering an apparently contradictory position in these Chapter 15 Cases: namely, that

contemporaneous developments have shifted ICBV’s COMI from the Netherlands to Brazil.

(Id.)

The Ad Hoc Group’s position is incorrect. Corporate entities are not precluded from

having different COMIs in European and Chapter 15 proceedings, because a “COMI finding

under the [EIR] in the Dutch proceedings is not the same as a COMI finding under Chapter 15 of

the Bankruptcy Code.” Oi Brasil, 578 B.R. at 206. The Second Circuit made clear in Fairfield

Sentry that the EIR “does not operate as an analog to Chapter 15.” Fairfield Sentry, 714 F.3d at

136. Critically, the EIR is a “poor analog” for Chapter 15 “in regards to the timeframe

considered in a COMI analysis . . . [t]he [EIR] looks to the date of the filing of the foreign

insolvency proceedings, whereas in the U.S. the inquiry centers on the date of the Chapter 15

recognition petition.” Oi Brasil, 578 B.R. at 207 (citing Fairfield Sentry, 714 F.3d at 136 n.9

(internal citations omitted)). This distinction alone legitimizes what initially appear to be

contradictory COMI positions by ICBV before the Dutch Court and this Court. On the one hand,

the EIR’s tethering of the COMI analysis to the filing of the foreign insolvency proceedings

substantiates ICBV’s continued representations to the Dutch Court that no intervening

developments would justify a departure from its initial position on ICBV’s COMI at the

commencement of the Dutch Proceeding. On the other hand, because it is the Chapter 15

petition date that controls the analysis under the Bankruptcy Code, the Foreign Representative

cannot be estopped from contending that ICBV’s COMI in these cases is Brazil. And for the

foregoing reasons, the centralization of the Brazilian Mediation and Brazilian EJ Proceeding

within Brazil justifies this Court’s finding that ICBV’s COMI, for purposes of these Chapter 15

Cases, is Brazil.

iii. ITI

Like ICBV, ITI’s COMI is contested: the Foreign Representative maintains that ITI’s

COMI is Brazil, while the Ad Hoc Group asserts that its COMI is Spain. ITI’s registered office

is in Bilbao, Spain, (Motion ¶ 94), entitling it to a rebuttable statutory presumption that its COMI

is Spain. 11 U.S.C. § 1516(c).

However, as with ICBV, ITI’s COMI analysis as relevant to these Chapter 15 Cases is

heavily dependent on the nature of its operations as of time of the New Petition Date. ITI’s

primary assets are its equity interests in ICB, which undisputedly has its COMI in Brazil.

(Rabelo Declaration ¶ 39; Motion ¶ 97.) As guarantor to the Debentures issued by ICB and ICP,

ITI’s primary business activities at the time of the commencement of the Brazilian RJ

Proceeding, and these Chapter 15 Cases, were the restructuring of its obligations under the

Debentures—activities which predominantly occurred in Brazil.

Like ICBV, ITI participated in the Brazilian Mediation and was a debtor in the Brazilian

EJ Proceeding, and its key creditors, including the Debenture Holders, participated in these

processes as well. (Motion ¶ 31; COMI Brief ¶ 47.) The Debenture Holders and their advisors

engaged substantively in the Brazilian EJ Proceeding, and the majority of the Debenture Holders

ultimately signed onto the EJ Plan. (COMI Brief ¶ 47.) The Debenture Holders appeared at a

creditors’ meeting in Brazil and were appointed to a committee to oversee the sales process and

negotiations under the EJ Plan. (Id.) Like ICBV, ITI’s creditors were all made aware of the

Brazilian Mediation, Brazilian EJ Proceeding, and ultimate commencement of the Brazilian RJ

Proceeding through widely-disseminated press releases issued by ICP from Brazil. (Id.)

Notably, ITI itself does not contest that its COMI is Brazil, and it previewed as much to the

Spanish Court prior to the New Petition Date; a commercial court in Bilbao has since granted

ITI’s request for recognition of the Brazilian RJ Proceeding.16 (ECF Doc. # 56 at ¶ 9.)

Accordingly, when considered as a whole, the factual circumstances leading up to the

New Petition Date provide strong indicia that ITI’s creditors were on notice of the proceedings in

Brazil, and, more broadly, that ITI’s COMI is Brazil.

16 The Ad Hoc Group speculates that any “events in Spain” subsequent to the New Petition Date were

“plainly engineered to boost Petitioner’s recognition efforts.” (Objection ¶ 17; see also id. at 9 n.51). While the Ad

Hoc Group does not directly accuse the Foreign Representative of bad faith conduct or forum-shopping, it is worth

briefly addressing this point directly, as courts have authority to “look at the time period between the initiation of the

foreign liquidation proceeding and the filing of the Chapter 15 petition” in order to “offset [the] debtor’s ability to

manipulate its COMI.” Fairfield Sentry, 714 F.3d at 133. In short, here, neither party’s description of the Brazilian

Mediation and the Brazilian EJ Proceeding rings of bad faith or COMI manipulation. Courts have declined to find

bad faith even where parties have sought to shift COMI from a debtor’s principal place of business to a “letterbox”

jurisdiction where the debtor plainly does not conduct meaningful business. See Suntech Power, 520 B.R. at 419

(liquidators who shifted COMI from China to Cayman Islands did not act in bad faith). Here, the opposite is true:

the Foreign Representative’s position is that COMI has shifted from a “letterbox” jurisdiction to the undisputed

principal place of business of the debtor’s corporate family. Under these circumstances, there is no factual basis

reasonably supporting a presumption of bad faith.

B. The Petitioner is a “Foreign Representative”

The Petitioner was duly appointed by the Chapter 15 Debtors via corporate resolution to

act as the foreign representative of the Brazilian RJ Proceeding and commence the Chapter 15

Cases in accordance with 101(24) of the Bankruptcy Code. (Motion ¶ 112.) The appointment of

the Petitioner comports with applicable requirements. See, e.g., In re Mina Tucano Ltda., No.

22-11198 (LGB) (Bankr. S.D.N.Y. Oct. 12, 2022) (ECF Doc. # 26) (approving verified petition

where the foreign representative was authorized by chapter 15 debtors’ corporate resolution).

C. The Petition Otherwise Meets Section 1515’s and Rule 1007(a)(4)’s Procedural

Requirements

The Foreign Representative satisfies section 1517(a)(3) of the Bankruptcy Code, which

states that the petition shall meet the requirements of section 1515, which in turn provides

applicable requirements in subsections 1515(b) and (c). Those subsections require that a

recognition petition include a certified copy of the decision commencing the foreign proceeding

and appointing the foreign representative, as well as a statement identifying all foreign

proceedings with respect to the Chapter 15 debtors known to the foreign representative. 11

U.S.C. §§ 1515(b)–(c), 1517(a)(3).

The Petitioner has satisfied those requirements. The Foreign Representative properly

commenced these Chapter 15 Cases in accordance with sections 1504 and 1509(a), which require

the filing of a petition for recognition along with all the documents and information required

under section 1515. (Motion ¶ 114.) In accordance with section 1515(b), the Foreign

Representative filed original and certified translated copies of the petition in and the order by the

Brazilian Bankruptcy Court accepting the Brazilian RJ Proceeding, as well as the corporate

resolutions authorizing the Petitioner to act on behalf of each Chapter 15 Debtor as a foreign

representative. (Id. ¶ 115.) As required by section 1515(c) of the Bankruptcy Code, the Foreign

Representative also submitted a declaration identifying all known foreign proceedings on behalf

of the Chapter 15 Debtors. (Id. ¶ 116.) Finally, the Foreign Representative has satisfied the

requirement of Bankruptcy Rule 1007(a)(4) to file a corporate ownership statement including all

information required by Rule 7007.1, as well as a list including the names and addresses of all

person or bodies authorized to administer the foreign proceedings of the Chapter 15 Debtors and

all parties to litigation pending in the United States to which the Chapter 15 Debtors are parties.

(Id. ¶ 117; see FED. R. BANKR. P. 1007.)

Accordingly, all elements of Section 1517 and Rule 1007(a)(4) have satisfied, and the

Court should recognize the Brazilian RJ Proceeding as a foreign main proceeding.

D. The Court Need Not Consider Recognition as a Foreign Nonmain Proceeding

Because the Court has concluded that the COMI of each Chapter 15 Debtor is Brazil and

therefore that the Brazilian RJ Proceeding constitutes a foreign main proceeding, the Court need

not assess whether to grant recognition of the Brazilian RJ Proceeding as a foreign nonmain

proceeding pursuant to section 1517(b)(2) of the Code.

E. The Debtors Should Receive Additional Relief

1. Automatic Relief Under Section 1520

Upon the recognition of a foreign main proceeding, a debtor is automatically entitled to

the protection of the automatic stay under section 362(a) with respect to the debtor and its

property within the jurisdiction of the United States. 11 U.S.C. § 1520(a). As the Foreign

Representative has shown that the Brazilian RJ Proceeding should be recognized as the foreign

main proceeding in these Chapter 15 Cases, the Chapter 15 Debtors are entitled to the automatic

relief under section 1520.

2. Discretionary Relief Under Section 1521

Upon recognition of a foreign proceeding, section 1521(a) authorizes the Court to grant

“any appropriate relief” at the request of the foreign representative “where necessary to

effectuate the purpose of [chapter 15] and to protect the assets of the debtor or the interests of the

creditors.” 11 U.S.C. § 1521(a). Pursuant to section 1521(a)(6), the Foreign Representative

requests that any protective relief that is the subject of the Provisional Relief Motion (ECF Doc.

# 5) be extended pursuant to section 1521(a)(6) of the Bankruptcy Code. (Motion ¶ 133.)

Courts granting discretionary relief pursuant to section 1521 must ensure that the interests of “the

creditors and other interested entities, including the debtor, [must be] sufficiently protected.” 11

U.S.C. § 1522(a). The Bankruptcy Code does not define “sufficient protection.” A

determination of sufficient protection “requires a balancing of the respective parties’ interests.”

In re AJW Offshore, Ltd., 488 B.R. 551, 559 (Bankr. E.D.N.Y. 2013) (citing SNP Boat Serv. S.A.

v. Hotel Le St. James, 483 B.R. 776, 784 (S.D. Fla. 2012)).

Here, the extension of provisional relief will provide adequate protection to the Chapter

15 Debtors and their creditors by centralizing the orderly administration of the debtors’ assets in

the United States. Additionally, the balance of the parties’ interests weighs in favor of extending

provisional relief, as the Chapter 15 Debtors represent that permitting creditor actions “could

threaten their ability as a going concern” and the parties have previously agreed to extend

provisional relief to mirror the relief extended by the Brazilian Bankruptcy Court. (Motion ¶

137; see ECF Doc. # 58.).

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS the relief sought in the Foreign

Representative’s Motion, RECOGNIZES the Brazilian RJ Proceeding as a Foreign Main

Proceeding, and OVERRULES the Ad Hoc Group’s Objection.

IT IS SO ORDERED.

Dated: March 31, 2025

New York, New York

Martin Glenn

_______ __________

MARTIN GLENN

Chief United States Bankruptcy Judge