smb Doc 7 Filed 10/18/12 Entered 10/18/12 15:09:19 Main Document Pg 1 of 12

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1 Pg 1 of 12 SNR DENTON US LLP D. Farrington Yates Oscar N. Pinkas 1221 Avenue of the Americas New York, New York Tel: (212) Fax: (212) Counsel for Loes A. van Kooten-Hendriks, in her capacity as Administrator of Upper Deck International B.V. UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re UPPER DECK INTERNATIONAL B.V., Debtor in a Foreign Proceeding. Chapter 15 Case No. 12- ( ) Recognition Request Pending EX PARTE MOTION FOR AN ORDER (I) SCHEDULING HEARING REGARDING VERIFIED CHAPTER 15 PETITION, AND (II) SPECIFYING FORM AND MANNER OF SERVICE OF NOTICE Loes A. van Kooten-Hendriks, in her capacity as duly authorized Insolvency Administrator (the Insolvency Administrator ) and putative foreign representative of Upper Deck International B.V. ( UDI ), which is in an insolvency proceeding in The Netherlands, Case No. 12/98 F (the Dutch Insolvency Proceeding ) currently pending before the District Court of Amsterdam, The Netherlands (the Dutch Court ), by and through her Unites States counsel, SNR Denton US LLP, respectfully submits this ex parte motion (the Motion ) seeking the entry of the proposed order attached as Exhibit A: (i) scheduling a hearing (the Recognition Hearing ) on the relief sought in the Verified Petition for Recognition Under Chapter 15 and for Additional Relief Under 11 U.S.C (the Petition ) filed contemporaneously herewith, and (ii) specifying the form and manner of service of notice thereof. In support of this Motion, the Insolvency Administrator respectfully represents as follows.

2 Pg 2 of 12 JURISDICTION AND VENUE 1. This Court has jurisdiction to consider this Motion pursuant to 28 U.S.C. 157 and 1334, and the Amended Standing Order of Reference (Preska, C.J.) dated January 31, This is a core proceeding pursuant to 28 U.S.C. 157(b)(2). Venue is proper in this Court pursuant to 28 U.S.C BACKGROUND 2. Contemporaneously with this Motion, the Insolvency Administrator filed the Petition, which is incorporated herein by reference. The Petition seeks entry of an order (i) recognizing the Dutch Insolvency Proceeding as a foreign main proceeding, (ii) recognizing the Insolvency Administrator as the foreign representative of UDI, and (iii) granting related relief. The purpose of this Motion is to schedule the hearing on the relief sought in the Petition and any objections thereto. RELIEF REQUESTED 3. This Motion seeks the entry of an order in the form annexed hereto as Exhibit A: (i) scheduling the Recognition Hearing for November 19, 2012, at 9:30 a.m. (ET) or as soon thereafter as the Court s calendar permits, (ii) setting November 12, 2012, seven days prior to the Recognition Hearing, as the deadline by which any responses or objections to the relief requested in the Petition must be received by the Insolvency Administrator and filed with the Court (the Objection Deadline ), (iii) approving the form of notice of the Recognition Hearing annexed hereto as Exhibit B (the Notice ), and (iv) specifying the manner of service of the Notice as described herein. GROUNDS FOR RELIEF REQUESTED 4. Rule 2002(q)(l) of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ) provides that at least 21 days notice must be given of a hearing to consider a petition for - 2 -

3 Pg 3 of 12 recognition of a foreign proceeding to the debtor, all administrators in foreign proceedings of the debtor, all entities against whom provisional relief is being sought under Section 1519 of Title 11 of the United States Code (the Bankruptcy Code ), all parties to any pending litigation in the United States to which the debtor is a party, and any other parties the Court may direct. 5. Here, there are no other administrators in foreign proceedings other than the Insolvency Administrator, and no provisional relief is sought under Section 1519 of the Bankruptcy Code. Consequently, the Insolvency Administrator respectfully submits that Bankruptcy Rule 2002(q)(1) is satisfied by service of the Notice by mail upon: (a) the Office of the United States Trustee for the Southern District of New York, (b) UDI, (c) ABN AMRO Bank N.V., (d) the defendants in the US Litigation (as defined in the Petition), (e) the parties to the Sale Agreement (as defined in the Petition), (f) UDI s known United States creditors, (g) UDI s known direct shareholders, Upper Deck B.V. and Blue Ocean Entertainment B.V., (h) UDI s known indirect United States shareholders, RLM I LLC, VMB LLC, MPR Trust and Richard McWilliam, (i) UDI s known subsidiaries, Upper Deck International GMBH and Upper Deck Italy Srl, (j) UDI s former director and ultimate beneficial shareholder of Blue Ocean Entertainment B.V., Nico Blauw, (k) foreign creditors in the Dutch Insolvency Proceeding, and (l) any other party that has requested notice pursuant to Federal Rule of Bankruptcy Procedure (collectively, the Notice Parties ) Bankruptcy Rule 9007 states that the form and manner of notice shall be designated by the Court, unless otherwise provided by the Bankruptcy Rules. The Bankruptcy Rules do not prescribe the form and manner of notice to be provided of hearing on a petition for recognition of a foreign proceeding and, therefore, the Court may do so. The Insolvency 1 The Insolvency Administrator will also mail the notice of the recognition hearing to foreign creditors in the Dutch Insolvency Proceeding, which is not required but will serve to notify foreign creditors of the Chapter 15 proceeding and the recognition hearing

4 Pg 4 of 12 Administrator respectfully submits that the Notice provides adequate information to apprise the Notice Parties of the relief sought in the Petition and requests that it be held sufficient. 7. Bankruptcy Rule 1011(b) provides, inter alia, that a party objecting to a petition filed to commence a proceeding under Chapter 15 of the Bankruptcy Code has 21 days from the date of service of the petition to respond. The Insolvency Administrator respectfully submits that: (i) scheduling the Recognition Hearing on November 19, 2012 at 9:30 a.m. (ET) (or as soon thereafter as the Court s calendar permits), so as to permit adequate and proper notice on Notice Parties with foreign addresses, and (ii) setting November 12, 2012, seven days prior to the Recognition Hearing, as the Objection Deadline, is appropriate. 8. Section 1514(c) of the Bankruptcy Code provides that when notification of the commencement of a case is to be given to foreign creditors, such notification shall, inter alia, indicate the time period for filing proofs of claim, specify the place for filing such proofs of claim and indicate whether secured creditors need to file proofs of claim. It is not clear, however, that Section 1514 of the Bankruptcy Code applies in the context of a case under Chapter 15. As explained in Collier on Bankruptcy, Section 1514 of the Bankruptcy Code is the last in a series of sections dealing with the international aspects of cases under chapters other than chapter 15 that began with section Collier on Bankruptcy (Alan N. Resnick & Henry J. Sommer eds., 15th ed. rev. 2008). In addition, as described in the Petition and supplemental declaration in support thereof, the Dutch Bankruptcy Act contains provisions that govern the time period for filing proofs of claims and claims administration. The Insolvency Administrator proposes to administer any claims against UDI through the Dutch Insolvency Proceeding in accordance with Dutch law, which request is congruent with the principles of comity and cooperation among courts in cross-border insolvency cases embodied by Chapter 15. Accordingly, the Insolvency Administrator respectfully requests that the requirements contained - 4 -

5 Pg 5 of 12 in Section 1514(c) of the Bankruptcy Code be waived. Courts in this district have granted such requests. See, e.g., In re Lion-City Run Off Private Limited, Case No (Bankr. S.D.N.Y. Mar. 20, 2006) (Docket No. 8). As a practical matter, while no claims bar date has been set in the Dutch Insolvency Proceeding, the Insolvency Administrator sent a letter to all known creditors notifying them of the Dutch Insolvency Proceeding and inviting them to file their claims. (Jansen Declaration, p. 5). parte. EX PARTE MOTION 9. Given the procedural nature of the relief sought, this Motion may be granted ex NO PRIOR REQUEST 10. No prior motion or application for the relief requested herein has been made to this or any other Court

6 Pg 6 of 12 WHEREFORE, the Insolvency Administrator respectfully requests that the Court enter the proposed order attached hereto as Exhibit A scheduling the Recognition Hearing and the Objection Deadline, approving the form and manner of Notice and service, and granting the Insolvency Administrator such other and further relief as is just and proper. Dated: October 18, 2012 New York, New York Respectfully submitted, SNR DENTON US LLP /s/ D. Farrington Yates D. Farrington Yates Oscar N. Pinkas 1221 Avenue of the Americas New York, New York Tel: (212) Fax: (212) Counsel for Loes A. van Kooten-Hendriks, in her capacity as Insolvency Administrator of Upper Deck International B.V

7 Pg 7 of 12 Exhibit A

8 Pg 8 of 12 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re UPPER DECK INTERNATIONAL B.V., Debtor in a Foreign Proceeding. Chapter 15 Case No. 12- ( ) Recognition Request Pending ORDER (I) SCHEDULING HEARING REGARDING VERIFIED CHAPTER 15 PETITION, AND (II) SPECIFYING FORM AND MANNER OF SERVICE OF NOTICE Upon consideration of the ex parte motion (the Motion ) of Loes A. van Kooten- Hendriks, in her capacity as duly authorized Insolvency Administrator and putative foreign representative of Upper Deck International B.V. ( UDI ) for an order (i) scheduling a Recognition Hearing 1 on the relief sought in the Petition, and (ii) specifying the form and manner of service of the Notice; it is hereby ORDERED, that the Recognition Hearing shall be held before this Court in Room of the United States Bankruptcy Court for the Southern District of New York, One Bowling Green, New York, New York 10004, on November, 2012 at a.m. (ET); and it is further ORDERED, that the notice requirements set forth in Section 1514(c) of the Bankruptcy Code are inapplicable in this Chapter 15 proceeding; and it is further ORDERED, that the form of Notice annexed to the Motion as Exhibit B is hereby approved; and it is further ORDERED, that copies of the Notice and the Petition (and filings in support thereof) shall be served by mail on the Notice Parties on or before October,2012; and it is further ORDERED, that responses or objections, if any, to the Petition shall be made in writing 1 Capitalized terms not defined herein shall have the meaning ascribed to them in the Motion.

9 Pg 9 of 12 and shall set forth the basis thereof, and such responses or objections must be: (i) filed with this Court on or before November, 2012 at 4:00 p.m. (ET), which is at least seven days before the Recognition Hearing (the Objection Deadline ), and (ii) served upon the Insolvency Administrator at SNR Denton US LLP, 1221 Avenue of the Americas, New York, New York (Attn: D. Farrington Yates, Esq. and Oscar N. Pinkas, Esq.) so as to be received by the Objection Deadline; and it is further ORDERED, that service pursuant to this Order shall be due, proper, good and sufficient service, and constitutes adequate notice of the Petition and Recognition Hearing. Dated: October, 2012 New York, New York UNITED STATES BANKRUPTCY JUDGE - 2 -

10 Pg 10 of 12 Exhibit B

11 Pg 11 of 12 SNR DENTON US LLP D. Farrington Yates Oscar N. Pinkas 1221 Avenue of the Americas New York, New York Tel: (212) Fax: (212) Counsel for Loes A. van Kooten-Hendriks, in her capacity as Insolvency Administrator of Upper Deck International B.V. UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re UPPER DECK INTERNATIONAL B.V., Debtor in a Foreign Proceeding. Chapter 15 Case No. 12- ( ) Recognition Request Pending NOTICE OF FILING AND HEARING ON VERIFIED PETITION FOR RECOGNITION UNDER CHAPTER 15 AND FOR ADDITIONAL RELIEF UNDER 11 U.S.C PLEASE TAKE NOTICE that on October [[ ]], 2012, Loes A. van Kooten-Hendriks, in her capacity as duly authorized Insolvency Administrator and putative foreign representative of Upper Deck International B.V. ( UDI ), filed the Verified Petition for Recognition Under Chapter 15 and for Additional Relief Under 11 U.S.C (the Petition ) with the United Stated Bankruptcy Court for the Southern District of New York (the Bankruptcy Court ). PLEASE TAKE FURTHER NOTICE that, inter alia, the Petition seeks the entry of an order (i) recognizing UDI s insolvency proceeding in The Netherlands, Case No. 12/98 F, as a foreign main proceeding, (ii) recognizing the Insolvency Administrator as the foreign representative of UDI and (iii) granting related relief under Section 1521(a)(4-5) of Title 11 of the United States Code (the Bankruptcy Code ). PLEASE TAKE FURTHER NOTICE that the Bankruptcy Court has scheduled a hearing to consider the relief requested in the Petition at [[ ]].m. (ET) on November, 2012 (the Recognition Hearing ) in Room [[ ]] of the United States Bankruptcy Court for the Southern District of New York, One Bowling Green, New York, New York PLEASE TAKE FURTHER NOTICE that copies of the Petition and all accompanying documentation are available to parties in interest through the Bankruptcy Court s Electronic Case Filing System, which can be accessed from the Bankruptcy Court s website at (a PACER login and password are required to retrieve a document) or upon written request to the Insolvency Administrator s counsel (including by e-

12 Pg 12 of 12 mail) addressed to: SNR Denton US LLP 1221 Avenue of the Americas New York, New York Tel: (212) Fax: (212) Attn: D. Farrington Yates, Esq. Oscar N. Pinkas, Esq. PLEASE TAKE FURTHER NOTICE that any party in interest wishing to submit a response or objection to the Petition, or the relief requested therein, must do so in accordance with the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, and the Local Bankruptcy Rules for the Bankruptcy Court, setting forth in writing the basis thereof. The response or objection must be filed with the Bankruptcy Court no later than 4:00 p.m. (ET) on November [[ ]], 2012 (the Objection Deadline ). Additionally, any response or objection must be served on the Insolvency Administrator at SNR Denton US LLP (Attn: D. Farrington Yates, Esq. and Oscar N. Pinkas, Esq.), 1221 Avenue of the Americas, New York, New York so as to be received by the Objection Deadline. PLEASE TAKE FURTHER NOTICE that all parties in interest opposing the Petition, or the relief requested therein must appear at the Recognition Hearing at the time and place set forth above. PLEASE TAKE FURTHER NOTICE that if no response or objection is timely filed and served, the Court may grant the relief requested in the Petition without further notice. PLEASE TAKE FURTHER NOTICE that the Recognition Hearing may be adjourned from time to time without further notice other than an announcement in open court, or a notice of adjournment filed with the Bankruptcy Court, of the adjourned date or dates at the Recognition Hearing or any other further adjourned hearing. Dated: October [[ ]], 2012 New York, New York Respectfully submitted, SNR DENTON US LLP /s/ D. Farrington Yates D. Farrington Yates Oscar N. Pinkas 1221 Avenue of the Americas New York, New York Tel: (212) Fax: (212) Counsel for Loes A. van Kooten-Hendriks, in her capacity as Insolvency Administrator of Upper Deck International B.V