district of delaware in re - mnat.com gas company, petroles de venezuela (“pdvsa”). beginning in...

900200.00001/101491959v.5

UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE

---------------------------------------------------------------- X Chapter 15

Case No. 15-12048 (LSS)

In re: : : ENERGY COAL S.P.A., :

: :

Debtor in a Foreign Proceeding : ---------------------------------------------------------------- X

DECLARATION OF GIOVANNI CRISTOFFANINI OF CRISTOFFANINI & ASSOCIATES (ITALIAN BANKRUPTCY COUNSEL) IN SUPPORT OF VERIFIED PETITION UNDER CHAPTER 15 FOR RECOGNITION OF

FOREIGN MAIN PROCEEDING AND FOR ADDITIONAL RELIEF AND ASSISTANCE UNDER 11 U.S.C. §§105, 1507, AND 1521

I, Giovanni Cristoffanini, pursuant to 28 U.S.C. § 1746, hereby declare under penalty of

perjury as follows:

1. I am an attorney licensed, and in good standing, to practice in Italy. I am the

founding member of the law firm of Cristoffanini & Associates, a law firm located in Genova,

Italy.

2. Cristoffanini & Associates has been retained by Energy Coal S.p.A. (the

“Company”), to represent the Company as its primary counsel in in the Company’s Concordato

Preventivo (the “Italian Concordato Proceeding”), pursuant to Section 160 of R.D. 267/1942

Italian Insolvency Law, (as amended the “IIL”) and as Italian counsel in connection with this

chapter 15 case.

3. I have been practicing law in Italy for 30 years. The focus of my practice is

bankruptcy and corporate insolvency. I obtained my law degree from the University of Genova

in Genova, Italy. I have extensive experience with bankruptcy and corporate insolvency cases in

Italy.

Case 15-12048-LSS Doc 7 Filed 10/02/15 of 10

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4. This declaration is comprised of matters that are statements of legal opinion

and/or statements of fact. Where the matters stated in this declaration are statements of legal

opinion, such statements reflect Italian law based on my education and years of experience

practicing Italian law in Italy. Where the matters stated in this declaration are statements of fact

they are either: (i) based on my personal knowledge, and are known to me to be true and

accurate, or (ii) if not within my personal knowledge, are derived from documents and/or

information supplied to me by or on behalf of the Company and/or Mr. Augusto Ascheri,

director and duly authorized foreign representative (the “Foreign Representative”) of the

Company, and are true to the best of my knowledge, information and belief.

5. I submit this declaration in support of (i) the petition for recognition of a foreign

main proceeding, and related relief made pursuant to chapter 15 of title 11 of the United States

Code (the “Bankruptcy Code”) and (ii) the ex parte application for provisional relief.

Overview of the Company and Connections to the United States

6. The Company was incorporated under the laws of Italy in 1997 and maintains its

registered office at Via San Vincenzo 2, 16121 Genova, Italy. The Company is primarily

engaged in trading in coal and other raw material, including petroleum coke.

7. The Company is a part of a group of companies ultimately owned by ICE Holding

S.r.L. The Company currently has outstanding 9,000,000 shares of stock and ICE Holding holds

approximately 77.35% of the outstanding stock. No other entity or person holds in excess of

10% of the outstanding stock of the Company.

8. Most recently, the Company reported revenues of €88 million, which equates to

approximately USD $98,425,800.1 The Company has assets valued at approximately €58

1 All values provided in US Dollars are estimates based on publically available exchange rate data as of or immediately prior to the date hereof and are therefore subject to change.


3 900200.00001/101491959v.5

million (USD $64,871,550) and liabilities of approximately €185 million (USD $206,917,875),

of which approximately €5 million (USD $5,592,375) constitute secured liabilities.

9. The Company regularly trades in various ports in the United States (including in

the port of Wilmington, Delaware) as a core part of its business. Currently, the vessel M/V

Coretalent OL (the “Vessel”), subject to a voyage charter with the Company’s wholly-owned

subsidiary, Energy Coke S.r.L. (“Energy Coke”), is located at the Marcus Hook Anchorage. On

board the Vessel is approximately 26,000 metric tons of petroleum coke owned by the Company

(the “Cargo”).2 As discussed more fully below, the Company owned Cargo is subject to two

Rule B attachment proceedings currently pending before the United States District Court for the

District of Delaware.

The Italian Concordato Proceeding

10. In order to provide the Company with the protection needed to reorganize its

financial affairs, an application for Concordato Preventivo under the IIL was filed by the

Company on April 13, 2015 (the “Concordato Application”) in the Court of Genova, Bankruptcy

Section (the “Italian Bankruptcy Court”).3 Thereafter, the Italian Bankruptcy Court received the

Concordato Application and, on April 16, 2015, entered an order commencing the Italian

Concordato Proceeding with respect to the Company (“Commencement Order”).4

11. As discussed more fully below, a Concordato Preventivo proceeding in Italy

follows the “debtor-in-possession” model embodied in Chapter 11 of the U.S. Bankruptcy Code.

2 Documents evidencing the Company’s ownership interest in the Cargo are attached as Exhibit “A” to the Foreign Representative Declaration. 3 A true and correct English translation copy of the Company’s Concordato Application is attached hereto as Exhibit A. 4 A certified copy of the Commencement Order with English translation is attached hereto as Exhibit B.


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Specifically, it provides a court-supervised procedure by which a business facing financial

difficulties may seek to reach an agreement with its creditors by proposing a debt restructuring

plan.

12. Pursuant to the IIL, and previous orders of the Italian Bankruptcy Court, the

Company is currently under a deadline of October 10, 2015, to submit a debt restructuring plan.

During this time, the Company is entitled to carry out ordinary course operations, providing

regular reports to the Italian Bankruptcy Court. However, transactions outside the ordinary

course of business are prohibited, unless approved by the Italian Bankruptcy Court.

13. In addition, upon filing the Concordato Application, as soon as the request for

Concordato Preventivo is published in the competent Company Register (this occurs the day

after the filing of the Concordato Application), a mandatory and automatic stay of actions against

the Company and its property went into effect. This automatic stay remains in place until the

Company’s restructuring plan is approved and becomes final. Specifically, section 168 of the

IIL provides, in relevant part:

From the date of publication of the [Concordato Application]… and up to the moment in which the decree of approval of the arrangement of creditors becomes definitive, creditors… may not, under penalty of nullity, initiate or continue to pursue enforcement action, including protective measures, on the debtor’s assets. Provisions that would be interrupted by the aforementioned assets remain suspended and revocations do not apply. Creditors may not obtain rights of first refusal applicable with respect to competing creditors, except when there is judicial authorization in the cases foreseen by the previous article. Mortgages ordered by the court that are recorded in the ninety days prior to the date of the publication of the appeal in the Register of Companies shall not apply with respect to creditors preceding the composition.

Reasons for and Anticipated Results of the Italian Concordato Proceeding

14. The corporate performance of the Company in the past several years has been

affected significantly by its commercial relations with the Venezuelan state-owned oil and


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natural gas company, Petroles de Venezuela (“PDVSA”). Beginning in 2011, the Company

entered into certain contracts with PDVSA in connection with the Company’s management of

the extraction, processing and exportation of petroleum. Among other things, these contracts

called for the Company to be compensated for services rendered by providing the Company with

petroleum coke.

15. The Company provided approximately $169 million worth of services to PDVSA.

However, at the end of 2013, PDVSA discontinued the provision of petroleum coke and did not

otherwise satisfy the amounts owed to the Company. As a result, on or about September 12,

2014, the Company brought an action in the United States against PDVSA’s wholly owned

subsidiary, CITGO Petroleum Corporation (the “CITGO Action”). The CITGO Action, which

was pending before the United States District Court for the Western District of Louisiana,5 was

recently dismissed on jurisdictional grounds. The Company filed an appeal on September 24,

2015. See Energy Coal, S.p.A. v. CITGO Petroleum Corp., No. 2:14-cv-03092, D.I. 46 (W.D.

La. September 24, 2015) (Notice of Appeal).

16. In July 2014, PricewaterhouseCoopers Advisory S.p.A. was retained to, among

other things, assist with a potential restructuring of the Company’s debts. During this time

period, the Company’s financial position continued to deteriorate, necessitating the filing of the

Italian Concordato Proceeding. In the past year, the Company has experienced losses of

approximately €7,998,707 (USD $8,946,353.81).

17. The Company filed the Italian Concordato Proceeding in an effort to restructure

its debts, including its secured debts. The Company may sell certain assets in connection with

the Italian Concordato Proceeding but, as a general statement, is not liquidating its assets.

5 The CITGO Action was originally filed in the Louisiana State Court, 14th Judicial District. However, it was removed to federal court.


6 900200.00001/101491959v.5

Establishment of Energy Coke

18. Many of the Company’s suppliers of petroleum coke are publicly traded

companies and, for various reasons, are unable to conduct business with a company involved in

insolvency proceedings. As such, most of the Company’s suppliers required the Company to

establish a non-debtor subsidiary. In order to avoid a substantial disruption in its petroleum coke

business, on March 25, 2015, the Company established Energy Coke. On April 10, 2015, the

Company and Energy Coke entered into an agreement whereby Energy Coke leased the

Company’s petroleum coke business unit (the “Energy Coke Lease”).

19. Subsequent to the filing of the Company’s Concordato Application, many of the

same petroleum coke suppliers decided to continue dealing directly with the Company.

Accordingly, on August 11, 2015, the Company sought Italian Bankruptcy Court approval to

terminate the Energy Coke Lease. On August 13, 2015, the Italian Bankruptcy Court entered an

order authorizing the Company to terminate the Energy Coke Lease (the “Lease Termination

Order”). On the same date, the Company and Energy Coke entered into an agreement which,

among other things, terminated the Energy Coke Lease (the “Lease Termination Agreement”).6

The Pending Rule B Litigations and Other Pending Litigation

20. The Company is involved in two recently filed lawsuits pending in the United

States District Court for the District of Delaware (the “District Court”) filed by Danish creditors

of the Company: (i) Falcon Navigation A/S v. Energy Coal SPA and Energy Coke SRL (Case No.

15-cv-00861) and (ii) XO Shipping A/S v. Energy Coal SPA and Energy Coke SRL (Case No. 15-

6 True and correct English translation copies of the Lease Termination Order and the Lease Termination Agreement are attached hereto as Exhibits C & D respectively.


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cv-00862) (collectively, the “Rule B Actions”).7 The Rule B Actions were filed on September

22, 2015.

21. The plaintiffs in the Rule B Actions (the “Rule B Plaintiffs”) each assert that the

Company (and Energy Coke as an alleged alter ego of the Company) owes money pursuant to

certain voyage charters between the Rule B Plaintiffs and the Company. In connection with the

Rule B Actions, the plaintiffs have sought and, pursuant to an order of the District Court on

September 23, 2015, have obtained an attachment of the Company’s Cargo.

22. Both of the Rule B Actions and resulting attachment of the Company’s Cargo,

occurred well after the Company filed its Concordato Application and the automatic stay

provisions of section 168 of the IIL went into effect. Accordingly, the Company is seeking the

vacation of the Rule B attachments through this chapter 15 and the relief requested by the

Verified Petition.

23. In addition to the Rule B Actions, the Company is a defendant in a civil action

currently pending before the Supreme Court of the State of New York styled Thyssenkrupp

Minenergy GmbH n/k/a Thyssenkrupp Metallurgical Products GmbH v. Energy Coal S.p.A.

(Index No. 652748/2012). The Company also believes that it currently has approximately fifteen

(15) creditors based on the United States.

Overview of Concordato Preventivo Proceedings under Italian Law.8

24. The Company is in possession of its assets and is operating while it seeks to

implement a plan of arrangement with its creditors under the IIL. This is part of the collective

Concordato Preventivo process, which closely resembles the basic process implemented under

7 True and correct copies of the Rule B Action complaints are attached hereto as Exhibits E & F. 8 This section sets forth the provisions of the IIL that govern the Company’s Italian filing and related proceeding. The references cited herein are references to the IIL, an English translation copy English translations of the provisions of the IIL cited herein are attached hereto as Exhibit G.


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chapter 11 of the U.S. Bankruptcy Code. Among other things, the Company is authorized to

carry out the ordinary management of its business while the Concordato Preventivo proceeding

is pending before the Italian Bankruptcy Court. Transactions and matters that are outside of the

ordinary course of the Company’s business require Italian Bankruptcy Court approval and post-

commencement claims or “super priority credits” associated with such transactions and matters

have a priority senior to pre-commencement claims. The Company can seek to suspend or

terminate performance in respect of certain executory contracts. Further, the Company can seek

approval of super-priority post-petition financing. Notice of all such matters, as well as the

commencement of the case, is provided to creditors by the Company, including, without

limitation, non-Italian, foreign creditors, where appropriate.

25. The plan of arrangement classifies creditors by common characteristics associated

with their claims. The plan of arrangement can adjust debts, but ultimately must be accepted by

both the majority of the classes of claims and the overall majority vote of creditors. Creditors are

notified of a deadline to assert and file claims that will be adjusted by the plan of arrangement.

The plan of arrangement can be implemented in various ways, including, without limitation, by

compromising claims in exchange for consideration or to support the plan.

26. As noted above, upon commencement and registration, the mandatory stay in

Italy permits the Company a breathing space to propose its plan pursuant to a prescribed period

of time that may be extended by the Italian Bankruptcy Court. The mandatory stay, without

limitation, applies to and stays precautionary measures or actions such as the Rule B

Attachments, the “misure cautelari,” which freeze or attach the Company’s assets as security

while a related action on the merits of a matter is pending or is imminent. The mandatory stay,

without limitation, prohibits the pursuit by creditors of actions to avoid transfers by the Company


9 900200.00001/101491959v.5

to third parties, whether the transfer might be avoided on the basis of insolvency, fraud or

otherwise.

27. Only “commissioners,” monitoring creditor fiduciaries, are empowered to

evaluate and to sue on avoidance actions after the commencement of a Concordato Preventivo

proceeding. After the commencement of a proceeding, individual creditors cannot sue to void

transactions.

28. The Italian Bankruptcy Court supervises these proceedings and has certain

exclusive or plenary authority over certain matters after the Concordato Preventivo proceeding

has been commenced. These matters include decisions to terminate executory contracts such as

the Energy Coke Lease.

[Remainder of page intentionally left blank]


1 declare under penalty of pel:jury under the laws of the United States of America that the

foregoing is true and correct.

Executed at Genova, Italy on October z-, 2015


EXHIBIT A

Case 15-12048-LSS Doc 7-1 Filed 10/02/15 Page 1 of 8

1

COURT OF GENOA Bankruptcy Section - Chairman R. Delucchi

APPEAL AS PER ART. 161, ITEM 6, Bankruptcy Law,

filed by

Energy Coal S.p.A., Tax Identification Number and registration number in the Genoa Register of Companies 03647280100, with registered office in Genoa, Via San Vincenzo 2, represented by the Chairman of the Board of Directors and temporary legal representative Mr Augusto Ascheri (hereinafter called "Energy Coal" or "the Company"), represented and defended by virtue of the power of attorney attached to this act, by lawyers Giovanni Cristoffanini (Social Security Number CRSGNN57D24D969G, fax 010/54.08.65, email [email protected], Giovanni Bravo (SSNBRVGNN74M21D969C, fax 010/54.08.65, email [email protected]) and Lorenzo Bottero (SSNBTTLNZ72R05D969Y, fax 010/54.08.65, email [email protected]), whose office in Genoa, Salita Santa Caterina 1/2, is elected for service.

whereas

> Energy Coal is a company whose main object is trading in coal and other raw materials (see, among others, ex. 1 and par.1);

> the Company is currently in a state of crisis and complies with the provisions foreseen by art. 1, R.D. no. 267 of 16 March 1942 (hereinafter called "Bankruptcy Law"), as shown, among others, by its own balance sheets (see, among others, par. 6);

> the objective and subjective conditions exist for the Company to file an appeal as per art. 161(VI) of the Bankruptcy Law;

> filing of this appeal for arrangement with creditors was the subject of a decision of the Administration Body, as foreseen by article 152(2b) and 161 of the Bankruptcy Law, with minutes drafted by Notary Paolo Torrente of Genoa on 04 February 2015 (ex. 2);

> as regards the purposes of art. 191, items 9 and 10 of the Bankruptcy Law, the Company has not filed, in the two years prior to filing of this appeal, any other appeal that was followed by admission to the procedure of arrangement with creditors, and no bankruptcy procedures appear to be pending;

and considering the following

1. Energy Coal. Energy Coal, established in 1997 and with dependent personnel of 19 persons, is part of a Group of companies active in the following sectors: i) coke production and trading; ii) trading in coal and derivatives; iii) shipping and sea freight; as well as iv) terminals (hereinafter called "the Group", see ex. 3), headed by the parent company ICE Holding S.r.l. (hereinafter called "ICE Holding"). The Group is characterized by two integrated industrial sectors: the coke sector, consisting of port terminals for offloading coal and other bulk goods (Genoa and Savona), cable railways for the transportation of raw materials to the industrial area and coking plant of Cairo Montenotte, and the trading sector, consisting of Energy Coal and companies that own and charter ships. As well as Italy, the Group also includes companies in foreign countries, such as France, Spain, Hungary, United States, Venezuela and Colombia.


2

At 30 June 2014, the Group had 492 employees (considering only those of fully owned companies).

The main companies in the Group, besides Energy Coal, are:

> ICE Holding, involved in industrial holding and real estate management.

> Italiana Coke S.r.l., involved in the field of distillation of coal for the production of coke, gas and other derivative products (hereinafter called "Italiana Coke").

> Energy Shipping S.p.A., involved in the sector of shipping and shipping charters, declared bankrupt by the Court on 02 April 2015 (hereinafter called "Energy Shipping").

> Funivie S.p.A., a company involved in the transportation and transfer of coal and its derivatives.

> Terminal Alti Fondali Savona S.r.L, the concessionaire of the eponymous terminal within the Port of Savona.

> Terminal Rinfuse Genova S.r.L, the concessionaire of the bulk goods area and the relevant terminal inside the Port of Genoa.

Over the last few years, the Group has recorded positive results (consolidated turnover for fiscal year 2013: € 603 million) and a high profitability considering the sector (consolidated gross operating margin for fiscal year 2013: € 23 million), sustained mainly by the high profitability of Italian Coke. Moreover, thanks to the development of commercial relations established by Energy Coal starting in 2011, with the Venezuelan state-owned oil and natural gas company, Petróleos de Venezuela, (hereinafter called "PDVSA"), the trading sector recorded significant growth in terms of turnover and profitability compared to the past.

2. Corporate structure and corporate bodies

The shareholders of Energy Coal are ICE Holding S.r.L (77.35%), Mr Gian Franco Enrico (5.44%), Surrexco B.V. (6.80%), Mr Pier Giovanni Buzzi (4.07%), Mr Paolo Ascheri (2.17%), Mr Ernesto Ascheri (2.17%), Ms Maria Cristina Bianchi (1%), Mr Augusto Ascheri (1%). As regards the corporate bodies, the Board of Directors consists of 4 members:

(a) Mr Augusto Ascheri (Chairman and CEO); (b) Mr Paolo Ascheri (CEO); (c) Mr Paolo Moro (Member); (d) Mr Ernesto Ascheri (Member).

The company has a Board of Auditors and a statutory auditor. The Board of Auditors consists of the following members:

(a) Mr Carlo Piana (Chairman); (b) Mr Giovanni Queirolo (Auditor); (c) Mr Luca Trabattoni (Auditor); (d) Ms Lina Gardella (Deputy Auditor); (e) Mr Giacomo Guano (Deputy Auditor). The statutory auditor is Baker Tilly Revisa S.p.A.

3. The causes of the crisis

The corporate performance of Energy Coal, in the past few fiscal years, was affected significantly by its commercial relations with PDVSA.


3

Starting in 2011, the company signed certain contracts with PDVSA, in relation to the management of the entire cycle of extraction, processing and exportation of petroleum.

These contracts, managed by Energy Coal through its Venezuelan subsidiary Energy Coal De Venezuela S.A, (hereinafter called "ECDV") included the following provisions: • the role of general contractor for Energy Coal, in the framework of the

restructuring of certain infrastructure (mainly the shipping terminal) and buildings located at the petroleum site of Jose Antonio Anzoategui in Venezuela;

• payment to Energy Coal for services rendered, through supplies of petcoke.

The total value of services rendered by Energy Coal to PDVSA, under the aforementioned contracts, amounts to 169 million USD. However, at the end of 2013, due to operational problems at the Jose terminal, not attributable to Energy Coal, PDVSA discontinued the provision of petcoke and did not settle the invoices on expiry. The circumstances described above brought about: • a deceleration in the provisioning of petcoke, with negative effects on the

Company's traditional trading activities; • the discontinuation of service provision to PDVSA, with a reduction in the

revenues arising from the activities of general contractor; • doubtful status on advances from lending banks on expired and unpaid

credit.

These circumstances established a state of financial tension that the company disclosed to the Financial Institutions in May last year, asking for the freezing of expired advances referring to PDVSA and the possibility of remaining operational in view of an agreement for debt restructuring.

In order to protect its rights, on 12 September 2014 (date of filing of the appeal, notified on 9 October next) Energy Coal brought action against the United States fully owned subsidiary of PDVSA, CITGO Petroleum Corporation (hereinafter called "CITGO"), before the Louisiana State Court, 14th Judicial District, Calcasieu Section, where CITGO owns and manages a major refinery, claiming damages of more than 180 million dollars (see ex. 4). The legal action was brought under the "single business enterprise theory" according to which CITGO, being subject to the exclusive control of PDVSA, may be considered liable for the obligations contracted by the latter. Faced with the need to confront PDVSA, a State company fully owned by the Petroleum Ministry of Venezuela, the legal advisers of Energy Coal identified the Court of Louisiana, receptor of the "single business enterprise theory", as the most convenient court (compared to the Court of Caracas) in relation to profitably contested assets.

The case is currently pending and a preliminary decision on jurisdiction is expected in the next 90/120 days.

4. The events of the last few months

In view of facing the above concerns in an efficient and timely manner, in July 2014 the parent company ICE Holding appointed PricewaterhouseCoopers Advisory S.p.A., to draw up an industrial plan for the period from fiscal year 2015 to fiscal year 2019, and to identify the most suitable measures for restructuring the debts of its subsidiaries.


4

In the framework of determination of the relevant financial move, a comparison process was initiated with the numerous financial institutions involved (Banca Carige S.p.A., Cassa di Risparmio di Genova e Imperia, Banca Nazionale del Lavoro S.p.A., Unicredit S.p.A., Banca Monte dei Paschi di Siena S.p.A., Intesa Sanpaolo S.p.A., Banca Popolare di Milano S.c. a r.L, Banco di Sardegna, Unipol S.p.A, Banca Popolare di Vicenza, Banco Popolare, Credit Agricole, Banca Popolare di Sondrio, Ifìtalia, Carispe S.p.A., SG Factoring, Banca Ubi, Credem Credito Emiliano, Banca Sella, Unicredit Banca d'Impresa, Banca Generali, Banca Popolare dell'Emilia Romagna, Factorit), during which a moratorium was requested, so as to ensure the normal operations of the Group's companies.

The prolongation of negotiations with financial institutions, the doubtful status of further credit positions as well as the encroachment from credit in USD due simply to the appreciation of the Euro regardless of usage, all worsened the Company's situation, and various suppliers appear to intend to attack the company's assets, thus rendering the filling of this appeal necessary (following those presented by the parent company ICE Holding and Italiana Coke on 18 March 2015, admitted on 19 March 2015 with the nomination of Court Commissioners Mr Ermanno Martinetto and Mr Simone Lupi (see ex. 5, 6, 7 and 8).

The Company also believes that, under the aegis of the Procedure, it is easier to maintain the support of the financial institutions in relation to self-liquidating credit facilities (advance payment of invoices), and reserves the right to submit - as a precaution - an appeal for authorization to continue to use the existing credit facilities.

The following are also noted.

Filing of this appeal is not compatible with the prosecution of the significant portion of Energy Coal's activity consisting in the sale of petcoke (mainly US production), since the entities providing such material to the Company (mostly large groups listed on stock markets) cannot - due to company policies - work with entities undergoing insolvency proceedings or similar.

For this reason, the Company has undertaken to transfer this business to a new wholly-owned entity, thus protecting the significant commercial relations with petcoke producers, in the interests of corporate continuity. Therefore, last March 25th, Energy Coal established Energy Coke S.r.L., in which it holds the entire share capital (see ex. 9), and then leased to it, on 10 April 2015, the "petcoke branch" (see ex. 10). 5. Jurisdiction of the Court of Genoa and prerequisites for access to the

procedure.

The Court of Genoa is the competent court to hear this appeal, as per art. 161 (I) of the Bankruptcy Law. In fact, Energy Coal has its registered office in Genoa.

Energy Coal is in a state of crisis and has the requisite size in order to access the procedure (exceeding all of the parameters of art. 1 of the Bankruptcy Law), as shown by the attached documentation, and specifically:

(a) the balance sheets as at 30 June 2012, 2013 and 2014 (ex. 11, 12 and 13). On this subject, it is noted that the balance sheet relating to the fiscal year closing on 30 June 2014 was approved by the assembly of shareholders on 30 March 2015 and submission thereof to the register of companies is in progress;

(b) the list of the Company's creditors as at 31 March 2015, with indications of the relevant credits (ex. no. 14).


5

6. The reasons for which concession of the maximum permissible deadline is requested

This procedure is particularly complex, since it involves - as already noted by the Court - a large group of companies with a total of almost 500 employees.

The Court is respectfully asked to grant a deadline of 120 days for filing of the restructuring agreement (or the agreement proposal), with reserve to subsequent extensions.

On this subject, it is pointed out that, as mentioned earlier, Energy Coal has not, to date, been the recipient of bankruptcy filings.

*** Considering all of the above, Energy Coal S.p.A., as represented by its Chairman and temporary legal representative Mr Augusto Ascheri, expressly authorized for this purpose by the Board of Directors on 04 February 2015,

H E R E B Y R E Q U E S T S > that the Court, subject to any necessary verification:

I. establish the deadline (which may be extended on valid grounds) of 120 days starting from today, for filing of the agreement proposal, the plan and the other documents foreseen by art. 161, items 2 and 3 of the Bankruptcy Law, or the restructuring agreement and other documents foreseen by art. 182bis, item 1, of the Bankruptcy Law;

II. establish the periodic information obligations that Energy Coal must undertake medio tempore in accordance with art. 161, item 8, of the Bankruptcy Law;

III. nominate, a court commissioner in accordance with art 161, item 6, of the Bankruptcy Law;

IV. ensure that the secretariat publishes this appeal in the register of companies within the deadline foreseen by art. 161, item 5, of the Bankruptcy Law;

V. ensure the joint examination of this appeal and the appeals filed on 18 March 2015 by ICE Holding and Italian Coke, so that, even if the existence of the legal requirements for admission to the procedures are examined independently, the suitable coordination of actions is guaranteed.

Moreover, the Court is asked, where considered necessary, to grant the claimant a deadline of 15 (fifteen) working days for additions to this act, as well as for producing any new documentation.

The Company hereby declares itself available to provide any clarification and/or amplification and to provide any additional documentation considered necessary, as well as to comply with the periodic information obligations prescribed.

Documentation submitted:

1) CCIAA certificate for Energy Coal; 2) Minutes of Notary Paolo Torrente of Genoa, dated 04/02/2015; 3) ICE Holding organization chart; 4) Petition Energy Coal/Citgo Petroleum;


6

5) Appeal as per art. 161, item 6, Bankruptcy Law, ICE Holding, dated 18/03/2015; 6) Admission decree dated 19/03/2015; 7) Appeal as per art. 161, item 6, Bankruptcy Law, Italiana Coke, dated 18/03/2015; 8) Admission decree dated 19 March 2015; 9) Energy Coke establishment act; 10) Lease contract of business unit Energy Coal/Energy Coke; 11) Company balance sheet as at 30 June 2012; 12) Company balance sheet as at 30 June 2013; 13) Company balance sheet as at 30 June 2014; 14) List of creditors.

This appeal is subject to a unified stamp duty of € 98.00=.

Genoa, 13 April 2015

Lawyer Giovanni Cristoffanini

Lawyer Giovanni Bravo

Lawyer Lorenzo Bottero


7

This appeal is, moreover, signed in accordance with art. 161, item 1, Bankruptcy Law, by the company Energy Coal S.p.A., represented by represented by its Chairman and temporary legal representative Mr Augusto Ascheri, as per the decision of the Board of Directors on 04 February 2015. Augusto Ascheri

POWER OF ATTORNEY As Chairman of the Board of Directors and temporary legal representative of Energy Coal S.p.A., with registered office in Genoa, Via San Vincenzo 2, I hereby delegate the representation and defence of the Company in the procedure of arrangement with creditors with reserve, in the procedure of arrangement with creditors, or in the procedure of agreement for debt restructuring, in every phase thereof, including the judgement of approval, or in case of opposition, in any state of grade, including separately, to lawyers Giovanni Cristoffanini, Giovanni Bravo and Lorenzo Bottero, granting to them the widest powers granted by the law, including those of revocation, withdrawal, modification and integration of the arrangement appeal, requesting the granting of extensions of the deadlines of art. 161, item 6, Bankruptcy Law, and to request authorizations from the Court, as well as to be replaced, and elects for service their office in Genoa, Salita Santa Caterina, 1/2. In accordance with leg. decree 196/03, I also hereby declare our consent to the processing of personal data for the purpose of implementation of the professional activity performed in the interests of the Company, confirming to have been informed as to the purposes and methods of processing, the mandatory or optional nature of the provision of data, the consequences of a potential refusal to respond, the entities or categories of entities to whom the data may be disclosed and their range of dissemination, the rights recognized by art. 7 and 13 of the aforementioned legislative decree and finally the name and address of the data processor. Augusto Ascheri Signature authenticated Lawyer Giovanni Cristoffannini


EXHIBIT B


No. 22/2015 PCP

THE CIVL COURT OF GENOA

BANKRUPTCY SECTION VII

Meeting in a closed session and composed by the

following Magistrates:

Renato Delucchi - Judge

Roberto Bonino - Judge-Rapporteur

Daniele Bianchi - Judge

Issued the following

DECREE

Considering the appeal for admission to the procedure

of arrangement with creditors as per article 161 (VI)

of the Bankruptcy Law, filed on 13 April 2015 by Energy

Coal S.p.A., with registered office in Genoa, Via San

Vincenzo no. 2, Tax Identification Number 03647280100;

Considering this Court's territorial jurisdiction to

decide on the appeal, since the company's registered

office is in Genoa;

Considering that the company is subject to the

procedure foreseen by the Bankruptcy Law since, for

example, in the fiscal years closing on 30/06 of years

2012-2013-2014 it earned gross proceeds amounting to

more than € 200,000.00 in total;

Considering that the balance sheets as at 30/06/2012,

30/06/2013 and 30/06/2014 have been regularly

submitted, as has the list of creditors (documents 11,

12, 13 and 14 attached to the appeal);

Considering that the filing of the request for

arrangement with creditors appears to have been

approved by the Board of Directors in a decision dated

04/02/2015, which was adopted in compliance with the

majorities and forms foreseen by art. 151 (IIb and III)

of the Bankruptcy Law, recalled by art. 161 (IV) of

the bankruptcy law;

Considering that the content of the appeal demonstrates

the reasons for the crisis (a significant drop in

turnover occurred during the last year, compared to


previous fiscal years, resulting in losses of €

7,998,707.00) and the ongoing negotiations between the

banking system and the group of companies to which the

claimant belongs;

Considering that as regards extraordinary operations,

urgent acts must be authorized by the Court as per art.

161 (VII) of the Bankruptcy Law;

Considering that pursuant to applicable art. 161 (VI)

of the bankruptcy law, it is possible to nominate the

court commissioner, a nomination that is undoubtedly

necessary in this case: in particular, the Court

believes that it is necessary to appoint two

commissioners given the complexity of the procedure;

Considering, therefore, that it is possible to grant a

period of 120 days for filing of the proposal, the plan

and the documentation foreseen by article 161 (II and

III) of the Bankruptcy Law, given the complexity of

the ongoing negotiations;

For these reasons

Given that the appeal for arrangement with creditors

filed by Energy Coal S.p.A., with registered office in

Genoa, Via San Vincenzo no. 2, Tax Identification

Number 03647280100 satisfies the requirements of art.

161 (VI) of the Bankruptcy Law;

We hereby grant the claimant a deadline of 120 days

starting from filing of the appeal, in order to file

the proposal, plan and documentation foreseen by law.

We nominate Mr Simone Lupi and Mr Ermanno Martinetto,

with offices in Genoa, as court commissioners.

We foresee, as information obligations, the submission

of a financial statement for the company each month,

as well as a report stating individual expenses with a

value of more than € 20,000.00, credits being pre-

deducted even with a lesser value, as well as the

progress in drafting the plan and the proposal.

We assign the notification of this decision to the

public prosecutor.


Genoa, 16 April 2015

The Chairman

Renato Delucchi


EXHIBIT C


Court of Genoa Summer Term

Decree of authorization for the execution of extraordinary administration of the composition as per Art. 161 (VII) of the Bankruptcy Law The Court, meeting in a closed session and composed of the following Magistrates: Glauco Gandolfo Chairman Roberto Bonino Judge-Rapporteur Paola Zampieri Judge Considering the appeal filed on 11/08/2015 by Energy Coal S.p.A. in agreement with reserve, in which authorization is requested as per art. 161 (VII) of the Bankruptcy Law, for the consensual resolution of the lease contract of the business unit involved in the sale of petcoke, stipulated on 10/04/2015 with the wholly owned newco Energy Coke S.r.l.; Considering the attached documentation; Considering the favourable view expressed by the Court Commissioner; Acknowledging that the contract was stipulated in order to protect commercial relations with petcoke suppliers, on the supposition that they were unable to cooperate with companies undergoing insolvency proceedings or similar, due to company policy. Acknowledging that after filing of the appeal as per art. 161 (VI) of the Bankruptcy Law, the same suppliers changed their mind and decided instead to continue working with Energy Coal itself, rather than the newco created for this purpose;

Acknowledging therefore that the lease contracts for the business unit now appears to be useless, considering that Energy Coke S.r.l., being a newco fully owned by Energy Coal S.p.A., does not offer any additional guarantee with respect


to the latter, since the payment of rent is in any case dependent on the economic and financial results of the rented company; Considering, therefore that the appeal may be sustained, since this is an urgent act of extraordinary administration;

For these reasons Considering art. 161 (VII) of the Bankruptcy Law

AUTHORIZES

Energy Coal S.p.A. in agreement with reserve, consensually to resolve the rent contract for the business unit involved in the sale of petcoke, stipulated on 10/04/2015 with the fully owned newco Energy Coke S.r.l. Notification assigned to the Secretariat Genoa, 13 August 2015

The Chairman


EXHIBIT D


1

CONSENSUAL RESOLUTION ACT

Between:

ENERGY COAL S.p.A., with registered office in Genoa, Via San

Vincenzo 2, represented by its Chairman, Mr Augusto Ascheri, Tax

Identification Number 03647280100 (hereinafter called "ECoal");

and

ENERGY COKE S.r.l., with registered office in Genoa, Via San

Vincenzo 2, represented by its Director, Mr Paolo Ascheri, Tax

Identification Number 02323680997 (hereinafter called "ECoke", and

together with ECoal, "the Parties");

whereas

on 25 March 2015, ECoal established Ecoke, in which it is the only

shareholder, and then rented to ECoke, on 10 April 2015, with a document

authenticated on the same date by Notary Paolo Torrente, ref. no. 22582,

folder no. 9842, the business unit ("Business Unit") involved in the sale of

petcoke; the business unit consists in existing contracts, credits, five

employees and certain capital goods ("Agreement" - att. 1);

the establishment of ECoke and the subsequent transfer of the

Business Unit had become necessary from the moment of the filing of the

previously agreed request by ECoal, which appeared to be incompatible

with the continuation of that significant portion of the Company's typical

activity, which consisted in the sale of petcoke; most of the suppliers,

informed of ECoal's intention to access a continuity procedure, had

announced that they were unable, due to company policy, to work with

entities undergoing insolvency proceedings or similar. The transfer of

business to a new entity that would be a fully-owned subsidiary, was thus

intended to protect the significant commercial relation s with petcoke

producers, in the interests of continuity;

subsequent to filing of the appeal as per art. 161, item 6 of the

Bankruptcy Law, the same suppliers who had asked ECoal to operate

through "new" entities not undergoing procedures, changed their mind and


2

decided instead to continue working with ECoal itself, rather than the

newco created for this purpose;

given these circumstances. ECoal applied to the Court of Genoa on

11 August 2015 (att. 2), for authorization as per art. 161, item 7 of the

Bankruptcy Law, to proceed with the consensual resolution of the

Agreement;

in its ruling bearing today's date, the Court granted the above

authorization (att. 3).

Taking into consideration the above,

the following are agreed and jointly accepted:

1. The premises and attachments constitute an integral part of this act.

2. The Agreement shall be consensually resolved with immediate effect

and ECoal shall reclaim full and exclusive ownership of the Business Unit,

which is returned by ECoke in the condition in which it was received,

subject to changes in the stock as described below.

3. ECoke shall return to ECoal the dependent labour relationships (and

relevant severance pay as per attachment 3) of the Agreement, except those

relating to personnel hired by ECoke (Mr Fabio Pagano and Ms Sara

Basile), who shall remain with ECoke (with the relevant severance pay).

4. With reference to the Business Unit contracts:

(a) ECoal shall replace ECoke in all active contracts passed on to the

latter in accordance with article 2558(I) of the Civil Code upon execution of

the Agreement, and in all further contracts stipulated by ECoke during the

lease period, as identified (with reserve for any errors and omissions) in

attachment 4, except those mentioned in attachment 5, which were

stipulated by ECoke during the Agreement and which shall remain with the

latter; in any case ECoke shall pay ECoal, within fifteen (15) days from

collection, the sums paid to it by Clients for such contracts, net of any

expenses incurred for implementation;

(b) ECoal shall replace ECoke in all passive contracts, except for all


3

transportation contract and for service supplies for the active contracts

listed in attachment 5 as mentioned above.

5. ECoal shall take over all credits and debits (expired and expiring) of

the Business Unit, except those relating to the personnel maintained by

ECoke according to article 3 above, and those relating to the active and

passive contracts remaining with ECoke (which, however, shall charge

ECoal with the transportation costs relating to active contracts that the

latter has taken over).

6. ECoke shall return to ECoal all the equipment, fixtures, furniture,

office machinery and IT systems (with the relevant licenses) of the Business

Unit. The Parties hereby concur that there are no significant differences

between the inventory of the aforementioned assets of the Business Unit

(att. 2 to the Agreement), compiled by the Parties in accordance with art. 7

of the Agreement, and the inventory compiled by the Parties today in

accordance with art. 16 (ii) of the Agreement (att. 6), and hereby waive any

adjustment thereto as may occur.

7. According to art. 16 (iii) of the Agreement, the parties hereby agree

that the difference between (i) the summation between the accounting value

of the assets and liabilities of the Business Unit as at 10 April 2014 as per

the statement compiled by the parties and included in attachment 7 and

the rent amounts not yet paid by ECoke (including accruals to date) and (ii)

the value of the assets and liabilities of the Business Unit (as identified

above as for ECoal) on this date shall be determined on the basis of a

balance of assets referring to the Business Unit as at 13 August 2013, which

the Parties shall compile jointly by 30 September 2015.

ECoke hereby undertakes to renounce the payment of any difference,

should it be negative.

It is clarified that, since ECoke has, to date, bought the goods that it has

resold only after having entered into the relevant sales contract, the goods

whose ownership has not yet been passed on to the buyer shall be included

in the balance of assets as at 13 August 2015, as a credit entry from ECoke's


4

client (and with limitation to the contracts being passed on to ECoal).

8. Any liability arising from the management and/or use of the

Business Unit by ECoke, including any damages to third parties and/or

workers, shall remain exclusively with ECoke, which shall protect and

indemnify ECoal from any liability for debts, damages and obligations,

including taxes, duties and contributions of any nature relating to the

Business Unit, which have occurred during the term of the Agreement.

9. ECoal hereby grants to ECoke, free of charge and until revoked (to

be notified with advance notice of at least 3 months) the premises indicated

in the plan included as attachment 8 hereto). ECoke shall promptly pay for

the relevant operating expenses (administration costs, lighting, cleaning, etc.

proportionate to the square footage that has been granted to it).

10. Moreover, ECoke hereby declares that it is willing to contract in its

own name but in the interests of ECoal, the transportation services that the

latter may ask ECoke to procure, provided that ECoal shall reimburse

ECoke for the costs incurred for such operations.

11. The Parties hereby agree to proceed with the authentication of this

document by a notary immediately following the compilation of the balance

of assets as per article 7 above, and in any case by 30 September 2015 at the

latest.

12. With the exception of the provisions of article 7, 8 and 11 above, the

Parties hereby mutually declare that they have nothing further to claim in

relation to the stipulation, execution and resolution of the Agreement.

Att. 1) Agreement;

Att. 2) Request;

Att. 3) Authorization;

Att. 4) List of Clients;

Att. 5) List of Clients - ECoke;


5

Att. 6) Inventory;

Att. 7) Statement of situation as at 10/04/2015;

Att. 8) Plan.

Genoa, 13 August 2015

Energy Coal S.p.A. Energy Coke S.r.l.

(Augusto Ascheri) (Paolo Ascheri)


EXHIBIT E


1 438167.1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

FALCON NAVIGATION A/S, )

)

Plaintiff, )

) Civil Action No.

v. )

)

ENERGY COAL SPA and ENERGY COKE SRL, )

)

Defendants. )

VERIFIED COMPLAINT IN ADMIRALTY

Plaintiff Falcon Navigation A/S (“Plaintiff” or “Falcon”), by and through its undersigned

counsel Palmer Biezup & Henderson, LLP, files this Verified Complaint in Admiralty against

Defendants Energy Coal SPA (“Energy Coal”) and Energy Coke SRL (“Energy Coke”)

(collectively, “Defendants”) and alleges, upon information and belief, as follows:

JURISDICTION

1. This is an admiralty and maritime claim within the meaning of Rule 9(h) of the

Federal Rules of Civil Procedure in that it arises out of a maritime contract or transaction and,

therefore, falls under this Court’s admiralty and maritime jurisdiction pursuant to 28 U.S.C.

§1333.

2. Federal jurisdiction also exists because the action arises under the Convention on

the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C. §§201, et seq. and/or the

Federal Arbitration Act, 9 U.S.C. §§1, et seq., and, therefore, falls under this Court’s federal

question jurisdiction pursuant to 28 U.S.C. §1331.

3. Federal jurisdiction exists over any and all other claims in that they are so related

to claims in the action within the Court’s original jurisdiction that they form part of the same

Case 1:15-cv-00861-UNA Document 1 Filed 09/22/15 Page 1 of 13 PageID #: 1Case 15-12048-LSS Doc 7-5 Filed 10/02/15 Page 2 of 14

2 438167.1

case or controversy and, thus, fall within the Court’s supplemental jurisdiction pursuant to 28

U.S.C. §1367.

4. Venue is properly situated in this District because, upon information and belief,

Defendants have, or will soon have, property within this District that may be attached through

the process of maritime attachment and garnishment pursuant to Rule B, i.e., a cargo of petcoke

being or soon to be loaded on board a vessel in the port of Wilmington, which cargo is, upon

information and belief, presently within this District and being held or otherwise controlled by,

on behalf of or for the benefit of Defendants.

THE PARTIES

5. At all times material hereto, Plaintiff Falcon was and is a foreign business entity

duly organized and existing under the laws of a foreign country with an address in Denmark.

6. At all times relevant hereto, Defendant Energy Coal was and still is a foreign

business entity organized and existing under the laws of Italy with a registered office and

principal place of business at Via San Vincenzo, 2 A – 16121 Genova, Italy. Energy Coal is a

wholly owned subsidiary of non-party Ice Holding Srl. Energy Coal is the 100% parent of

Energy Coke.

7. At all times relevant hereto, Defendant Energy Coke was and still is a foreign


principal place of business at Via San Vincenzo, 2 A – 16121 Genova, Italy. Energy Coke is a

wholly owned subsidiary of Energy Coal.

8. At all times relevant hereto, non-party Ice Holding Srl was and still is a foreign



3 438167.1

principal place of business at Via San Vincenzo, 2 A – 16121 Genova, Italy. Ice Holding Srl is a

100% parent of Energy Coal which is, in turn, the 100% parent of Energy Coke.

BACKGROUND

9. Falcon, as owner of the M/V QUINN J, and Energy Coal, as charterer, entered

into a voyage charter party on an amended Americanized Welsh Coal Charter form dated

February 23, 2015 for the carriage of a cargo of petcoke from Wilmington, Delaware to one safe

port / safe berth Bizerte + Porto Vesme on board the M/V QUINN J (the “Charter Party”, copy

attached hereto as Exhibit 1).

10. Under the terms of the Charter Party, Energy Coal was obligated to pay

demurrage at the rate of USD9,000.00 per day pro rata for time lost by the vessel at the loading

and/or discharge port(s) beyond the agreed laytime period.

11. Falcon duly delivered the vessel into the service of Energy Coal and performed all

of its obligations under the Charter Party.

12. On or about April 22, 2015, Falcon issued a Freight Recap invoice to Energy

Coal, showing a demurrage balance in favor of Falcon in the amount of USD185,877.80 in

accordance with the terms of the Charter Party. (See Ex. 2).

13. Despite due demand, Energy Coal refused or otherwise failed to pay any portion

of the demurrage invoices due and owing to Falcon in breach of the Charter Party, and the entire

amount of USD185,877.80 remains due and outstanding to date.

14. The Charter Party provides that disputes will be resolved in arbitration in London

with arbitration law and procedures prevailing in London to apply. (See Ex. 1).

15. Falcon has commenced or soon will commence arbitration against Energy Coal in

London as provided for in the Charter Party.


4 438167.1

16. This action is brought inter alia pursuant to 9 U.S.C. §8 in order to obtain security

for Falcon’s claims made or to be made in arbitration, as agreed by the parties, and Falcon

reserves the right to arbitrate this matter in London.

17. As a regular feature of English law and arbitration, attorneys fees are awarded to

the successful litigant, along with costs, disbursements, the cost of the arbitration, and interest,

all of which constitute a part of Falcon’s main claim and the amount sued for herein.

18. Falcon estimates, as nearly as can presently be computed, that the legal fees and

costs of prosecuting their claims in London will be USD35,000.00. Interest anticipated to be

awarded is estimated to be USD23,724.85 (calculated at the rate of 5% per annum on the

principal claim of USD185,877.80 and compounded quarterly for a period of 2 years, the

estimated time for completion of the proceedings in London).

19. In all, the claim for which Falcon sues in this action, as near as presently may be

estimated, totals USD244,602.65, no part of which has been paid by Energy Coal, despite due

demand. Falcon specifically reserves their right to amend this figure and to seek an increase in

the amount of security should such sum appear to be insufficient to fully secure Falcon.

20. Upon information and belief, Energy Coal has an attachable property interest in a

certain cargo of petcoke that is being loaded or will soon be loaded on board a vessel in the port

of Wilmington.

21. By way of background, Energy Coal is an Italian entity that is engaged in the

trading of coal and other raw materials.

22. On or about April 13, 2015, Energy Coal submitted an application pursuant to

Article 161, Comma 6, B.L., in the Court of Genoa in Italy, seeking to be admitted to a special


5 438167.1

procedure named “composition with creditors” as part of an apparent effort to restructure the

company’s debt.

23. In connection with that application, Energy Coal formed a wholly owned

subsidiary, Energy Coke, in order to transfer its petcoke business to an apparently solvent wholly

owned and controlled entity through which it could continue to conduct its petcoke business with

its suppliers and trading partners in the United States while it attempted to reorganize its debt in

Italy.

24. Pursuant to a Lease Agreement dated April 10, 2015 (the “Lease Agreement”), a

copy of which is attached hereto as Exhibit 3, Energy Coal leased its petcoke business, including

existing contracts with customers and suppliers, equipment, furniture, fittings, office machinery

and IT systems along with their licenses, employee contracts, receivables from customers and

office space, to Energy Coke, in exchange for an annual rental fee consisting of (1) a fixed yearly

sum of Euro 480,000.00 plus (2) a variable yearly sum of between 40% and 60% of the positive

EBITDA (earnings before interest, taxes, depreciation, and amortization) of Energy Coke from

its carrying out and furthering Energy Coal’s petcoke business.

25. In the Lease Agreement, the parties stipulated regarding the purported basis for

the Lease Agreement as follows:

The suppliers of petcoke, for the most part large groups listed on

the stock exchange, cannot – due to company policy – do business

with companies undergoing insolvency procedures or similar

proceedings, so the contractual relationship with Energy Coal

cannot continue in its current fashion;

In order to safeguard the important (and fundamental for purposes

of the petcoke trading activity) business relationship with the

above-mentioned suppliers by transferring it to a solvent subject,

on March 25, 2015 Energy Coal established Energy Coke, in

which it has a 100% shareholding, to which to rent the Company

Branch [i.e. petcoke business].


6 438167.1

The renting out of the Company Branch [i.e. petcoke business],

contributing to ensuring the continuity of the Company and along

with it, its employment levels, is consistent with the goals pursued

by Energy Coal in resorting to Art. 161, paragraph 6, Financial

Law (restructuring of debt as per Art. 182 Bis Financial Law, or

preventative agreement for company continuity)….

Upon information and belief, and as explained more fully below, the stated basis for the Lease

Agreement as purported by the parties above is merely an effort to disguise the true intention of

the parties – to prevent creditors of Energy Coal, including Falcon, from obtaining security and

enforcing valid claims.

26. During the pendency of the lease agreement, Energy Coal retains both a present

beneficial interest in Energy Coke’s operation of the leased petcoke business as well as a future

reversionary interest. Such interests constitute property of Energy Coal that is subject to

attachment pursuant to Rule B.

27. Upon information and belief, Energy Coke is presently scheduled to load a cargo

of petcoke on board a vessel now calling or soon to call at the port of Wilmington.

28. Based upon prior business practices, Energy Coal chartered the vessel for carriage

of the cargo and bills of lading were issued identifying Energy Coal as shipper. It is expected

that the present shipment will follow suit.

29. Energy Coke and, by reason of the foregoing, Energy Coal are believed to have an

attachable interest in that cargo which has been or will be loaded on board the vessel. For these

reasons, the cargo is subject to attachment pursuant to Rule B to serve as security in support of

Plaintiff’s claims herein.

ALTER EGO LIABILITY


7 438167.1

30. In the alternative, notwithstanding the notion of corporate separateness, by reason

of the beneficial ownership and dominating control of Energy Coal over Energy Coke, Energy

Coal and Energy Coke are so intertwined and indistinguishable that they operate as and are, in

fact, a single business enterprise pursing a single business purpose for the ultimate benefit of

Energy Coal.

31. By way of background, and as noted above, Energy Coal is incorporated in Italy

and is engaged in the trading of petcoke and other coal products internationally.

32. Energy Coal formed Energy Coke in March 2015 specifically to enable Energy

Coal to continue to carry out its petcoke business with its U.S. suppliers and trading partners

through a wholly owned and controlled, and apparently solvent, entity, while Energy Coal

attempts to restructure its debt in Italy.

33. Energy Coke is, however, upon information and belief, undercapitalized.

According to information obtained from the Chamber of Commerce in Italy, Energy Coke has a

share capital of only EURO 10,000. Yet, under the Lease Agreement, Energy Coke is obligated

to pay to Energy Coal: (1) a fixed sum of Euro 480,000 per year; and (2) a variable yearly sum of

between 40% and 60% of the positive EBITDA of Energy Coke. (See Exhibit 4, copy of Italian

Chamber of Commerce documents issued for Energy Coke; see also Exhibit 3 copy of Lease

Agreement).

34. Energy Coal and Energy Coke (as well as their ultimate parent entity, Ice Holding

Srl1) all share the same registered office and operate out of the same principal place of business

in Italy at Via San Vincenzo, 2 A – 16121 Genova. (See Exhibit 5, printouts from website

1 Energy Coal is a majority owned subsidiary of Ice Holding Srl, an entity also incorporated in Italy. Ice

Holding Srl is owned by Mr. Ascheri Agusto (holding 53.6% of the shares) and Ms. Bianchi Maria

Cristina (holding 46.4% of the shares). (See Exhibit 7, copy of Italian Chamber of Commerce document

issued for Ice Holding Srl).


8 438167.1

published by Energy Coal available online at http://www.energycoal.com/ (last viewed: June 4,

2015); see also Exhibits 4 and 6, copies of Italian Chamber of Commerce documents issued for

Energy Coal and Energy Coke, respectively).

35. Energy Coal, Energy Coke and Ice Holding Srl share identical registered email

accounts at [email protected], [email protected] and [email protected].

36. In addition to sharing common ownership, addresses and contact information,

Energy Coal and Energy Coke also share overlapping management.

37. The sole Director of Energy Coke, Mr. Paolo Ascheri, is also the CEO of Energy

Coal as well as a minority shareholder in Energy Coal. (See Exhibits 4 and 6, copies of Italian

Chamber of Commerce documents issued for Energy Coal and Energy Coke, respectively).

38. Mr. Paolo Ascheri’s apparent relative, Mr. Augusto Ascheri, is the majority

shareholder of the ultimate parent entity Ice Holding Srl, the sole director of that parent entity

and the President of the Board of Directors of Energy Coal. (See Exhibit 7, copy of Italian

Chamber of Commerce documents issued for Ice Holding Srl).

39. In addition, another Energy Coal affiliate named Energy Shipping S.P.A. has

made multiple payments on behalf of Energy Coal under charter parties entered into between

Energy Coal and third parties. (See Exhibit 8).

40. By virtue of and through its relationship with Energy Coke and its other affiliates,

Energy Coal is pursuing, furthering and carrying out its petcoke business with its suppliers and

trading partners in the United States, albeit in the name of Energy Coke, in an apparent effort to

avoid efforts by creditors of Energy Coal, including Falcon, from obtaining security for their

claims.


http://www.energycoal.com/

mailto:[email protected]



9 438167.1

41. Energy Coke has no separate or independent identity from Energy Coal and

exercises no independent business decision over the direction of its business and acts merely as

a shell for the benefit of Energy Coal and its shareholders.

42. Based on the foregoing, Energy Coal and Energy Coke are alter egos of one

another in that Energy Coke is actually carrying out the business of Energy Coal as if it were its

own, and all obligations, liabilities and debts of Energy Coal as a result are in fact those of

Energy Coke.

43. Energy Coal and Energy Coke should therefore be considered a single economic

unit with no corporate distinction between or among them, rendering each liable for the debts of

the other, and all assets of Defendants together should be susceptible to attachment and/or

restraint for the debts of Energy Coal.

FRAUDULENT CONVEYANCE

44. In the further alternative, as set forth in detail above, and in an attempt to evade

Energy Coal’s creditors, including Falcon, Energy Coal and Energy Coke have engaged in a

scheme to transfer the assets and operations of Energy Coal’s petcoke business to Energy Coke.

More specifically, in connection with the transfer of Energy Coal’s petcoke operations to Energy

Coke, Energy Coal and Energy Coke jointly and severally intentionally depleted Energy Coal of

its assets and transferred such assets from Energy Coal to Energy Coke.

45. The transfers alleged herein were done with the actual intent to hinder, delay, or

defraud Falcon, and other creditors of Energy Coal.

46. In the alternative, the transfers alleged herein were made without Energy Coal

having received reasonably equivalent value in exchange for such transfers and were made at a


10 438167.1

time when Energy Coal was either insolvent or the value of the transfers far exceeded Energy

Coal’s remaining assets.

47. In addition, upon information and belief, (i) the transfers were made to an entity

wholly controlled by Energy Coal and an Energy Coal insider; (ii) the transfers were concealed

from Falcon; (iii) the transfers were of all or substantially all of Energy Coal’s assets; and (iv)

the transfers occurred shortly before or after Energy Coal incurred the substantial debt to Falcon

described herein.

48. As a result of these fraudulent conveyances, Falcon seeks (i) an order authorizing

the attachment of the transferred assets; (ii) an order setting aside and disgorging the transfers to

the extent necessary to secure the satisfaction of Falcon’s claim herein and in aid of arbitration;

(iii) an injunction against Defendants preventing further disposition of the assets fraudulently

transferred from Energy Coal to Energy Coke and/or the others; (iv) appointment of a receiver

to take charge of the assets; and (v) any other relief the circumstances may require.

Request for Rule B Relief

49. Upon information and belief, and after investigation, Defendants cannot be

“found” within this District for the purpose of Rule B of the Supplemental Rules of Certain

Admiralty and Maritime Claims, but Plaintiff is informed that Defendants have, or will shortly

have, assets within this District comprising, inter alia, goods, cargo, cash, funds, escrow funds,

credits, debts, accounts, freights, sub-freights, charter hire and/or sub-charter hire, of, belonging

to, due or for the benefit of Defendants (collectively hereinafter, “ASSETS), including a cargo

scheduled to be loaded on board a vessel in the port of Wilmington in the hands of certain

garnishees who may be served with a copy of the Process of Maritime Attachment and

Garnishment issued herein.


11 438167.1

50. The total amount to be attached pursuant to the calculations set forth above is

USD244,602.65.

WHEREFORE, Plaintiff prays:

a. That process in due form of law according to the practice of this Court may issue

against the Defendants, citing them to appear and answer the foregoing, failing

which default may be taken;

b. That if Defendants cannot be found within this District pursuant to Supplemental

Rule B that all tangible or intangible property of Defendants up to and including

USD244,602.65 be restrained and attached, including, but not limited to any

goods, cargo, cash, funds, escrow funds, credits, debts, accounts, freights, sub-

freights, charter hire and/or sub-charter hire, of, belonging to, due or for the

benefit of Defendants (collectively hereinafter, “ASSETS), including a cargo

scheduled to be loaded on board a vessel in the port of Wilmington in the hands of

certain garnishees who may be served with a copy of the Process of Maritime

Attachment and Garnishment issued herein;

c. That this Court retain jurisdiction over the matter for any further or supplemental

proceedings as may be necessary, including but not limited to an order compelling

Defendant to arbitrate and/or the recognition and enforcement of any award or

judgment entered against the Defendants in the London proceedings; and

d. For such other, further and different relief as this Court may deem just and proper,

including but not limited to a default with respect to any property seized in the

event a timely response is not filed.


12 438167.1

Dated: September 22, 2015

PALMER BIEZUP & HENDERSON LLP

By: /s/ Michael B. McCauley

Michael B. McCauley

1223 Foulk Road

Wilmington, DE 19803

Tel.: (302) 594-0895

Email: [email protected]

Attorneys for Plaintiff

Falcon Navigation A/S

OF COUNSEL:

FREEHILL HOGAN & MAHAR, LLP

Michael E. Unger

Susan Lee

80 Pine Street

New York, NY 10005

Tel.: 212-425-1900

Fax: 212-425-1901


[email protected]

Attorneys for Plaintiff Falcon Navigation A/S





13 438167.1

ATTORNEY VERIFICATION

Michael B. McCauley declares as follows:

1. I am a partner in the law firm of PALMER BIEZUP & HENDERSON LLP,

attorneys for Plaintiff in this action. I have read the foregoing Verified Complaint and know the

contents thereof, and the same are true to the best of my knowledge, information and belief.

2. The sources of my information and the grounds for my belief are

communications, information and documentation provided by Plaintiff and/or by solicitors

representing Plaintiff.

3. The reason this verification is made by an attorney and not by the Plaintiff is that

Plaintiff is a foreign entity, none of whose officers are presently within this Judicial District.

4. I declare under penalty of perjury that the foregoing is true and correct.

5. Executed on September 22, 2015.

/s/ Michael B. McCauley

Michael B. McCauley


EXHIBIT F


1 439518.1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

XO SHIPPING A/S, )

)

Plaintiff, )

) Civil Action No.

v. )

)

ENERGY COAL SPA and ENERGY COKE SRL, )

)

Defendants. )

VERIFIED COMPLAINT IN ADMIRALTY

Plaintiff XO Shipping A/S (“Plaintiff” or “XO”), by and through its undersigned counsel

Palmer Biezup & Henderson, LLP, files this Verified Complaint in Admiralty against

Defendants Energy Coal SPA (“Energy Coal”) and Energy Coke SRL (“Energy Coke”)

(collectively, “Defendants”) and alleges, upon information and belief, as follows:

JURISDICTION

1. This is an admiralty and maritime claim within the meaning of Rule 9(h) of the

Federal Rules of Civil Procedure in that it arises out of a maritime contract or transaction and,

therefore, falls under this Court’s admiralty and maritime jurisdiction pursuant to 28 U.S.C.

§1333.

2. Federal jurisdiction also exists because the action arises under the Convention on

the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C. §§201, et seq. and/or the

Federal Arbitration Act, 9 U.S.C. §§1, et seq., and, therefore, falls under this Court’s federal

question jurisdiction pursuant to 28 U.S.C. §1331.

3. Federal jurisdiction exists over any and all other claims in that they are so related

to claims in the action within the Court’s original jurisdiction that they form part of the same


2 439518.1

case or controversy and, thus, fall within the Court’s supplemental jurisdiction pursuant to 28

U.S.C. §1367.

4. Venue is properly situated in this District because, upon information and belief,

Defendants have, or will soon have, property within this District that may be attached through

the process of maritime attachment and garnishment pursuant to Rule B, i.e., a cargo of petcoke

being or soon to be loaded on board a vessel in the port of Wilmington, which cargo is, upon

information and belief, presently within this District and being held or otherwise controlled by,

on behalf of or for the benefit of Defendants.

THE PARTIES

5. At all times material hereto, Plaintiff XO was and is a foreign business entity duly

organized and existing under the laws of a foreign country with an address in Denmark.

6. At all times relevant hereto, Defendant Energy Coal was and still is a foreign


principal place of business at Via San Vincenzo, 2 A – 16121 Genova, Italy. Energy Coal is a

wholly owned subsidiary of non-party Ice Holding Srl. Energy Coal is the 100% parent of

Energy Coke.

7. At all times relevant hereto, Defendant Energy Coke was and still is a foreign


principal place of business at Via San Vincenzo, 2 A – 16121 Genova, Italy. Energy Coke is a

wholly owned subsidiary of Energy Coal.

8. At all times relevant hereto, non-party Ice Holding Srl was and still is a foreign



3 439518.1

principal place of business at Via San Vincenzo, 2 A – 16121 Genova, Italy. Ice Holding Srl is a

100% parent of Energy Coal which is, in turn, the 100% parent of Energy Coke.

BACKGROUND

A. The GLOBAL ORIOLE Charter Party.

9. XO, as owner of the M/V GLOBAL ORIOLE, and Energy Coal, as charterer,

entered into a voyage charter party on an amended Americanized Welsh Coal Charter form dated

November 12, 2014 for the carriage of a cargo of 46,000 metric tons (10% more or less in XO’s

option) of coal from Wilmington, Delaware to one safe port South China on board the M/V

GLOBAL ORIOLE (the “GLOBAL ORIOLE Charter Party”, a copy of which is attached hereto

as Exhibit 1).

10. Under the terms of the GLOBAL ORIOLE Charter Party, Energy Coal was

obligated to pay to XO freight at the rate of USD38.85 per metric ton of cargo.

11. In addition, Energy Coal was obligated to pay to XO demurrage at the rate of

$9,000.00 per day pro rata for time lost by the vessel at the loading and/or discharge port(s)

beyond the agreed laytime period.

12. XO duly delivered the vessel into the service of Energy Coal and performed all of

its obligations under the GLOBAL ORIOLE Charter Party.

13. On or about January 20, 2015, XO issued a final invoice to Energy Coal, showing

a balance due in respect to freight and demurrage in accordance with the terms of the GLOBAL

ORIOLE Charter Party.

14. Despite due demand, Energy Coal refused or otherwise failed to pay the final

invoice due and owing to XO in breach of the GLOBAL ORIOLE Charter Party, and the entire

amount of USD118,653.25 remains due and outstanding to date.


4 439518.1

15. The GLOBAL ORIOLE Charter Party provides that disputes will be resolved in

arbitration in London with arbitration law and procedures prevailing in London to apply.

16. XO commenced arbitration against Energy Coal in London as provided for in the

Charter Party.

17. On June 29, 2015, after carefully and conscientiously considering the

documentary evidence and submissions put before him and giving due weight thereto, Mr.

Simon Everton, the London sole arbitrator, issued a Final Arbitration Award, a copy of which is

attached hereto as Exhibit 2, holding in favor of XO’s claims against Energy Coal and directing

Energy Coal to pay certain sums to XO as follows:

a. USD118,653.25 in respect to XO’s principal claims for freight and demurrage

plus interest thereon at the rate of 4% per annum compounded quarterly from

March 6, 2015;

b. £3,250.00 (or USD4,990.661) in respect to the costs of the Final Arbitration

Award plus interest thereon at a rate of 4% per annum compounded quarterly

from June 29, 2015; and

c. XO’s recoverable costs of the Final Arbitration Award to be assessed by the

arbitrator on the basis set out in section 63(5) of the Arbitration Act 1996;

18. Despite due demand, Energy Coal has failed or otherwise refused to pay any

portion of the Final Arbitration Award due to XO.

19. The entire amount due under the Final Arbitration Award, inclusive of the interest

thereon as of September 22, 2015 (USD121,250.41 + USD5,037.15, which interest continues to

accrue until the date of payment) plus XO’s recoverable costs of the London arbitration

1 Calculated based on GBP/USD exchange rate on September 22, 2015.


5 439518.1

proceeding (which, as nearly as can presently be computed, total USD8,000) is, as nearly as can

presently be computed, USD126,287.56.

20. Energy Coal has in bad faith and/or without sufficient justification failed to pay

any portion of the Final Arbitration Award to XO, and the entire amount of USD126,287.56

presently due remains unpaid to date.

21. XO now seeks an Order recognizing and confirming the Final Arbitration Award

against Energy Coal as rendered by the London arbitrator, and reduction of that Award to a

judgment of this Court for the purpose of its enforcement pursuant to Convention on the

Recognition and Enforcement of Foreign Arbitral Awards (“the New York Convention”), 9

U.S.C. §§ 201, et seq., and the Federal Arbitration Act, 9 U.S.C. §§ 1, et seq.

22. XO also seeks an award of its attorneys fees and costs incurred in the prosecution

of the instant action because Defendants have in bad faith and/or without sufficient justification

failed to satisfy the Final Arbitration Award and have thereby created a needless waste of

judicial and counsel resources, all of which are properly recoverable under the Court’s admiralty

and federal common law jurisdiction, and pursuant to the parties’ agreement that provides for

disputes to be resolved under English law, which provides for recovery of such sums.

23. XO estimates, as nearly as can presently be computed, that its legal fees and costs

to be incurred in connection with the recognition and enforcement of the

Final Arbitration Award will total USD20,000.

B. The DENAK VOYAGER Charter Party.

24. XO, as owner of the M/V DENAK VOYAGER, and Energy Coal, as charterer,

entered into a voyage charter party on an amended Americanized Welsh Coal Charter form dated

November 26, 2014 for the carriage of a cargo of 60,000 metric tons (10% more or less in XO’s


6 439518.1

option) of petcoke from 1 safe berth St. James Bouys, Mississippi River for discharge at 1 SP

Hazira, India on board the M/V DENAK VOYAGER (the “DENAK VOYAGER Charter Party”,

a copy of which is attached hereto as Exhibit 3).

25. Under the terms of the DENAK VOYAGER Charter Party, Energy Coal was

obligated to pay to XO freight at the rate of USD36.85 per metric ton of cargo.

26. In addition, Energy Coal was obligated to pay to XO demurrage at the rate of

USD19,500.00 per day pro rata for time lost by the vessel at the loading and/or discharge port(s)

beyond the agreed laytime period.

27. XO duly delivered the vessel into the service of Energy Coal and performed all of

its obligations under the DENAK VOYAGER Charter Party.

28. On or about February 16, 2015, XO issued a final invoice to Energy Coal,

showing a balance due in respect to freight and demurrage in the amount of USD245,844.25 in

accordance with the terms of the DENAK VOYAGER Charter Party.

29. Despite due demand, Energy Coal refused or otherwise failed to pay any portion

of the final invoice due and owing to XO in breach of the DENAK VOYAGER Charter Party,

and the entire amount of USD245,844.25 remains due and outstanding to date.

30. The DENAK VOYAGER Charter Party provides for the resolution of disputes in

arbitration in London with English law to apply. (See Exhibit 3).

31. Owing to Energy Coal’s breach of the DENAK VOYAGER Charter Party, XO

commenced arbitration proceedings against Energy Coal as provided for under the DENAK

VOYAGER Charter Party.


7 439518.1

32. This action is brought inter alia pursuant to 9 U.S.C. §8 in order to obtain security

for XO’s claims made or to be made in arbitration, as agreed by the parties, and XO reserves the

right to arbitrate this matter in London.

33. As a regular feature of English law and arbitration, attorneys fees are awarded to

the successful litigant, along with costs, disbursements, the cost of the arbitration, and interest,

all of which constitute a part of XO’s main claim and the amount sued for herein.

34. XO estimates, as nearly as can presently be computed, that the legal fees and costs

of prosecuting their claims in London will be USD35,000.00. Interest anticipated to be awarded

is estimated to be USD33,814.50 (calculated at the rate of 5% per annum on the principal claim

of USD245,844.25 and compounded quarterly for a period of 2 years, the estimated time for

completion of the proceedings in London).

35. In all, the claim for which XO sues in this action, inclusive of the claims relating

to the GLOBAL ORIOLE and DENEK VOYAGER Charter Parties, as near as presently may be

estimated, totals USD460,946.31 (plus additional interest which continues to accrue from the

date of this Verified Complaint until payment is made), no part of which has been paid by

Energy Coal, despite due demand. XO specifically reserves their right to amend this figure and

to seek an increase in the amount of security should such sum appear to be insufficient to fully

secure XO.

36. Upon information and belief, Energy Coal has an attachable property interest in a

certain cargo of petcoke that is being loaded or will soon be loaded on board a vessel in the port

of Wilmington.

37. By way of background, Energy Coal is an Italian entity that is engaged in the

trading of coal and other raw materials.


8 439518.1

38. On or about April 13, 2015, Energy Coal submitted an application pursuant to

Article 161, Comma 6, B.L., in the Court of Genoa in Italy, seeking to be admitted to a special

procedure named “composition with creditors” as part of an apparent effort to restructure the

company’s debt.

39. In connection with that application, Energy Coal formed a wholly owned

subsidiary, Energy Coke, in order to transfer its petcoke business to an apparently solvent wholly

owned and controlled entity through which it could continue to conduct its petcoke business with

its suppliers and trading partners in the United States while it attempted to reorganize its debt in

Italy.

40. Pursuant to a Lease Agreement dated April 10, 2015 (the “Lease Agreement”), a

copy of which is attached hereto as Exhibit 4, Energy Coal leased its petcoke business, including

existing contracts with customers and suppliers, equipment, furniture, fittings, office machinery

and IT systems along with their licenses, employee contracts, receivables from customers and

office space, to Energy Coke, in exchange for an annual rental fee consisting of (1) a fixed yearly

sum of Euro 480,000.00 plus (2) a variable yearly sum of between 40% and 60% of the positive

EBITDA (earnings before interest, taxes, depreciation, and amortization) of Energy Coke from

its carrying out and furthering Energy Coal’s petcoke business.

41. In the Lease Agreement, the parties stipulated regarding the purported basis for

the Lease Agreement as follows:

The suppliers of petcoke, for the most part large groups listed on

the stock exchange, cannot – due to company policy – do business

with companies undergoing insolvency procedures or similar

proceedings, so the contractual relationship with Energy Coal

cannot continue in its current fashion;

In order to safeguard the important (and fundamental for purposes

of the petcoke trading activity) business relationship with the


9 439518.1

above-mentioned suppliers by transferring it to a solvent subject,

on March 25, 2015 Energy Coal established Energy Coke, in

which it has a 100% shareholding, to which to rent the Company

Branch [i.e. petcoke business].

The renting out of the Company Branch [i.e. petcoke business],

contributing to ensuring the continuity of the Company and along

with it, its employment levels, is consistent with the goals pursued

by Energy Coal in resorting to Art. 161, paragraph 6, Financial

Law (restructuring of debt as per Art. 182 Bis Financial Law, or

preventative agreement for company continuity)….

(See Ex. 4). Upon information and belief, and as explained more fully below, the stated basis for

the Lease Agreement as purported by the parties above is merely an effort to disguise the true

intention of the parties – to prevent creditors of Energy Coal, including XO, from obtaining

security and enforcing valid claims.

42. During the pendency of the lease agreement, Energy Coal retains both a present

beneficial interest in Energy Coke’s operation of the leased petcoke business as well as a future

reversionary interest. Such interests constitute property of Energy Coal that is subject to

attachment pursuant to Rule B.

43. Upon information and belief, Energy Coke is presently scheduled to load a cargo

of petcoke on board a vessel now calling or soon to call at the port of Wilmington.

44. Based upon prior business practices, Energy Coal chartered the vessel for carriage

of the cargo and bills of lading were issued identifying Energy Coal as shipper. It is expected

that the present shipment will follow suit.

45. Energy Coke and, by reason of the foregoing, Energy Coal are believed to have an

attachable interest in that cargo which has been or will be loaded on board the vessel. For these

reasons, the cargo is subject to attachment pursuant to Rule B to serve as security in support of

Plaintiff’s claims herein.


10 439518.1

ALTER EGO LIABILITY

46. In the alternative, notwithstanding the notion of corporate separateness, by reason

of the beneficial ownership and dominating control of Energy Coal over Energy Coke, Energy

Coal and Energy Coke are so intertwined and indistinguishable that they operate as and are, in

fact, a single business enterprise pursing a single business purpose for the ultimate benefit of

Energy Coal.

47. By way of background, and as noted above, Energy Coal is incorporated in Italy

and is engaged in the trading of petcoke and other coal products internationally.

48. Energy Coal formed Energy Coke in March 2015 specifically to enable Energy

Coal to continue to carry out its petcoke business with its U.S. suppliers and trading partners

through a wholly owned and controlled, and apparently solvent, entity, while Energy Coal

attempts to restructure its debt in Italy.

49. Energy Coke is, however, upon information and belief, undercapitalized.

According to information obtained from the Chamber of Commerce in Italy, Energy Coke has a

share capital of only EURO 10,000. Yet, under the Lease Agreement, Energy Coke is obligated

to pay to Energy Coal: (1) a fixed sum of Euro 480,000 per year; and (2) a variable yearly sum of

between 40% to 60% of the positive EBITDA of Energy Coke. (See Exhibit 5, copy of Italian

Chamber of Commerce documents issued for Energy Coke; see also Exhibit 4 copy of Lease

Agreement).

50. Energy Coal and Energy Coke (as well as their ultimate parent entity, Ice Holding

Srl2) all share the same registered office and operate out of the same principal place of business

2 Energy Coal is a majority owned subsidiary of Ice Holding Srl, an entity also incorporated in Italy. Ice

Holding Srl is owned by Mr. Ascheri Agusto (holding 53.6% of the shares) and Ms. Bianchi Maria

Cristina (holding 46.4% of the shares). (See Exhibit 8 copy of Italian Chamber of Commerce document

for Ice Holding Srl).


11 439518.1

in Italy at Via San Vincenzo, 2 A – 16121 Genova. (See Exhibit 6, printouts from websites

published by Energy Coal and Energy Coke available online at http://www.energycoal.com/

(last viewed: June 4, 2015); see also Exhibits 5 and 7 copies of Italian Chamber of Commerce

documents issued for Energy Coal and Energy Coke, respectively).

51. Energy Coal, Energy Coke and Ice Holding Srl share identical registered email

accounts at [email protected], [email protected] and [email protected].

52. In addition to sharing common ownership, addresses and contact information,

Energy Coal and Energy Coke also share overlapping management.

53. The sole Director of Energy Coke, Mr. Paolo Ascheri, is also the CEO of Energy

Coal as well as a minority shareholder in Energy Coal. (See Exhibits 5 and 7, copies of Italian

Chamber of Commerce documents issued for Energy Coal and Energy Coke, respectively).

54. Mr. Paolo Ascheri’s apparent relative, Mr. Augusto Ascheri, is the majority

shareholder of the ultimate parent entity Ice Holding Srl, the sole director of that parent entity

and the President of the Board of Directors of Energy Coal. (See Exhibit 8, copy of Italian

Chamber of Commerce documents issued for Ice Holding Srl).

55. In addition, another Energy Coal affiliate named Energy Shipping S.P.A. has

made multiple payments on behalf of Energy Coal under charter parties entered into between

Energy Coal and third parties. (See Exhibit 9).

56. By virtue of and through its relationship with Energy Coke and its other affiliates,

Energy Coal is pursuing, furthering and carrying out its petcoke business with its suppliers and

trading partners in the United States, albeit in the name of Energy Coke, in an apparent effort to

avoid efforts by creditors of Energy Coal, including XO, from obtaining security for their

claims.


http://www.energycoal.com/




12 439518.1

57. Energy Coke has no separate or independent identity from Energy Coal and

exercises no independent business decision over the direction of its business and acts merely as

a shell for the benefit of Energy Coal and its shareholders.

58. Based on the foregoing, Energy Coal and Energy Coke are alter egos of one

another in that Energy Coke is actually carrying out the business of Energy Coal as if it were its

own, and all obligations, liabilities and debts of Energy Coal as a result are in fact those of

Energy Coke.

59. Energy Coal and Energy Coke should therefore be considered a single economic

unit with no corporate distinction between or among them, rendering each liable for the debts of

the other, and all assets of Defendants together should be susceptible to attachment and/or

restraint for the debts of Energy Coal.

FRAUDULENT CONVEYANCE

60. In the further alternative, as set forth in detail above, and in an attempt to evade

Energy Coal’s creditors, including XO, Energy Coal and Energy Coke have engaged in a scheme

to transfer the assets and operations of Energy Coal’s petcoke business to Energy Coke. More

specifically, in connection with the transfer of Energy Coal’s petcoke operations to Energy Coke,

Energy Coal and Energy Coke jointly and severally intentionally depleted Energy Coal of its

assets and transferred such assets from Energy Coal to Energy Coke.

61. The transfers alleged herein were done with the actual intent to hinder, delay, or

defraud XO and other creditors of Energy Coal.

62. In the alternative, the transfers alleged herein were made without Energy Coal

having received reasonably equivalent value in exchange for such transfers and were made at a


13 439518.1

time when Energy Coal was either insolvent or the value of the transfers far exceeded Energy

Coal’s remaining assets.

63. In addition, upon information and belief, (i) the transfers were made to an entity

wholly controlled by Energy Coal and an Energy Coal insider; (ii) the transfers were concealed

from XO; (iii) the transfers were of all or substantially all of Energy Coal’s assets; and (iv) the

transfers occurred shortly before or after Energy Coal incurred the substantial debt to XO

described herein.

64. As a result of these fraudulent conveyances, XO seeks (i) an order authorizing the

attachment of the transferred assets; (ii) an order setting aside and disgorging the transfers to the

extent necessary to secure the satisfaction of XO’s claim herein and in aid of arbitration; (iii) an

injunction against Defendants preventing further disposition of the assets fraudulently

transferred from Energy Coal to Energy Coke and/or the others; (iv) appointment of a receiver

to take charge of the assets; and (v) any other relief the circumstances may require.

Request for Rule B Relief

65. Upon information and belief, and after investigation, Defendants cannot be

“found” within this District for the purpose of Rule B of the Supplemental Rules of Certain

Admiralty and Maritime Claims, but Plaintiff is informed that Defendants have, or will shortly

have, assets within this District comprising, inter alia, goods, cargo, cash, funds, escrow funds,

credits, debts, accounts, freights, sub-freights, charter hire and/or sub-charter hire, of, belonging

to, due or for the benefit of Defendants (collectively hereinafter, “ASSETS), including a cargo

scheduled to be loaded on board a vessel in the port of Wilmington in the hands of certain

garnishees who may be served with a copy of the Process of Maritime Attachment and

Garnishment issued herein.


14 439518.1

66. The total amount to be attached pursuant to the calculations set forth above is

USD460,946.31.

WHEREFORE, Plaintiff prays:

a. That process in due form of law according to the practice of this Court may issue

against the Defendants, citing them to appear and answer the foregoing, failing

which default may be taken;

b. That if Defendants cannot be found within this District pursuant to Supplemental

Rule B that all tangible or intangible property of Defendants up to and including

USD460,946.31 be restrained and attached, including, but not limited to any

goods, cargo, cash, funds, escrow funds, credits, debts, accounts, freights, sub-

freights, charter hire and/or sub-charter hire, of, belonging to, due or for the

benefit of Defendants (collectively hereinafter, “ASSETS), including a cargo

scheduled to be loaded on board a vessel in the port of Wilmington in the hands of

certain garnishees who may be served with a copy of the Process of Maritime

Attachment and Garnishment issued herein;

c. That this Court retain jurisdiction over the matter for any further or supplemental

proceedings as may be necessary, including but not limited to an order compelling

Defendant to arbitrate and/or the recognition and enforcement of any award or

judgment entered against the Defendants in the London proceedings; and

d. For such other, further and different relief as this Court may deem just and proper,

including but not limited to a default with respect to any property seized in the

event a timely response is not filed.


15 439518.1

Dated: September 22, 2015

PALMER BIEZUP & HENDERSON LLP

By: /s/ Michael B. McCauley

Michael B. McCauley

1223 Foulk Road

Wilmington, DE 19803

Tel.: (302) 594-0895


Attorneys for Plaintiff XO Shipping A/S

OF COUNSEL:

FREEHILL HOGAN & MAHAR, LLP

Michael E. Unger

Susan Lee

80 Pine Street

New York, NY 10005

Tel.: 212-425-1900

Fax: 212-425-1901


[email protected]

Attorneys for Plaintiff XO Shipping A/S





16 439518.1

ATTORNEY VERIFICATION

Michael B. McCauley declares as follows:

1. I am a partner in the law firm of PALMER BIEZUP & HENDERSON LLP,

attorneys for Plaintiff in this action. I have read the foregoing Verified Complaint and know the

contents thereof, and the same are true to the best of my knowledge, information and belief.

2. The sources of my information and the grounds for my belief are

communications, information and documentation provided by Plaintiff and/or by solicitors

representing Plaintiff.

3. The reason this verification is made by an attorney and not by the Plaintiff is that

Plaintiff is a foreign entity, none of whose officers are presently within this Judicial District.

4. I declare under penalty of perjury that the foregoing is true and correct.

5. Executed on September 22, 2015.

/s/ Michael B. McCauley

Michael B. McCauley


ITALIAN INSOLVENCY LAW (“I.L.L.”)

TITLE III

AGREEMENTWITH CREDITORS AND RESTRUCTURING AGREEMENTS

CHAPTER ONE- ADMISSION TO THE AGREEMENT WITH CREDITORS PROCEDURE

Art. 160: Requirements for Admission to the Procedure

An entity is in a state of crisis may propose an agreement with creditors on the basis of a plan that may include:

a) the restructuring of debts and satisfaction of claims by any means including disposal of assets, assumption, or other extraordinary transactions, including the award to creditors, as well as companies from these investments, from shares, bonds or , also convertible into shares or other financial instruments and debt securities;

b) the allocation of the assets of the companies affected by the proposed settlement to an underwriter; creditors or companies in which they participate or to be established in the course of the procedure may be appointed as underwriters, the shares of which are intended to be allocated to creditors for effect of the agreement;

c) the division of creditors into uniform classes according to legal status and economic interests;

d) differential treatment between creditors belonging to different classes.

The proposal may provide that secured creditors are not satisfied in full, on condition that the plan provides for the satisfaction of not less than that achievable, due to their preferential interests. This projection should be made on the basis of the reasonable proceeds in the event of liquidation considering the market value attributable to the assets or rights on which there are security interest as stated in the sworn report of a professional meeting the requirements of article 67, third subparagraph, point d).

The established treatment for each class cannot have the effect of altering the order of the legitimate causes of priority.

For the purposes of the first paragraph, a state of crisis can also mean a state of insolvency.

Art. 161: Application for Agreement with Creditors


The application for admission to the agreement with creditors procedure is proposed to the court of the place where the company has its principal office in an application, signed by the debtor. The transfer of the principal office within the year prior to the filing of the proposal does not effect the competence of the court. The debtor must submit with the application:

a) an updated report on the equity, economic and financial situation;

b) an estimate and analysis of activities and the list of names of creditors, with an indication of their claims and causes of pre-emption;

c) c) a list of holders of the rights of real or personal property owned by or in the possession of the debtor;

d) the value of assets and creditors of any partner with unlimited liability;

e) a plan containing a description of the analytical methods and the time of performance of the proposal.

The plan and the documents referred to in the preceding subparagraphs shall be accompanied by the report of a professional, designated by the debtor satisfying the requirements of article 67, third paragraph, letter d, attesting to the veracity of the business data and feasibility of the plan itself. A similar report must be filed in the case of substantial changes to the proposal or plan.

For a company, the application shall be approved and signed in accordance with Article 152.

The request for an agreement is communicated to the public authority and is published by the clerk in the commercial register no later than the day following its filing with the court.

The entity may submit an application containing the request for agreement together with the balance sheets for the past three years along with a creditors list and indication of the due amounts, reserving the right to submit the proposal, the plan and the documents referred to paragraphs two and three before a deadline set by the court, between sixty and one hundred twenty days and can be extended, for justified reasons, not later than sixty days. At the same time, as an alternative and keeping up with the approval of the effects of the application, the debtor may file an application pursuant to article 182bis, first paragraph. If not, article 162, second and third paragraphs apply. With a specific decree that establishes the term reference in the previous paragraph the court may appoint the judicial commissioner said in art. 16, second paragraph, n.3; Art. 170, second paragraph applies. The judicial commissioner, if ascertains that one of the conducts provided for under art. 173 has to


immediately informs the court that, in the forms of at. 15 having verified such conducts, may, by decree declare that the procedure is rejected and, upon petition by the creditor or the Public Prosecutor, having verified the fulfillment of the requisites set by arts. 1 and 5, declare the debtor’s bankruptcy, challengeable under art. 18.

After the application is filed and until the order referred to in article 163 is issued, the debtor may perform any act of extraordinary administration upon approval of the court, which may do so ex parte having acquired the opinion of the judicial commissioner if appointed. During the same period, with effect from that date, the debtor may also carry out acts of ordinary administration. The claims of third parties, which may arise as a result of the acts lawfully done by a debtor, are pre-deductible pursuant to article 111.

With the decree referred to in the sixth paragraph, first sentence, the court requires the periodic disclosure requirements, including those relating to the financial management of the company and the activity performed for the proposal and plan to be provided by the debtor at least monthly under the judicial commissioner supervision, if appointed, until the said deadline. The debtor, monthly, shall file the company’s financial situation that, within the next day, is published in the Company Register by the clerk. Should such obligations be breached, art. 162 paragraphs 2 and 3, shall then apply. When the activity performed by the debtor results manifestly unsuitable to the disposal of both the proposal and the plan, the court, also ex parte, having heard both the debtor and the judicial commissioner fs appointed, shortens the said deadline set in the decree provided for by the sixth paragraph, first sentence. The court may, at any time, hear the creditors.

The application referred to in paragraph six is inadmissible when the applicant files another application under that subsection within the two previous years, which was not followed by admission to the agreement procedure or the approval of the restructuring agreement.

Without prejudice to article 22, first paragraph, when proceedings are pending for a declaration of bankruptcy, the period referred to in the sixth paragraph of this article is to be sixty days, subject to extension for justified reasons, not later than an additional sixty days.

Art. 162: Inadmissible Requests

The court may grant the debtor a period not exceeding fifteen days to make additions to the plan and produce new documents.

If the court determines that none of the grounds referred to in article 160, first and second paragraphs, and 161, are present, it may, after hearing the debtor in chambers, by an order not subject to appeal, rule that the


proposed agreement is unacceptable. In such cases, the court, on application by the creditor or at the request of the public authority, satisfied as to the existence of the conditions referred to articles 1 and 5, declare the bankruptcy of the debtor.

An appeal under article 18 is allowed against the bankruptcy decree. Along with the appeal an applicant may arguments as to the admissibility of the proposed agreement.

Art. 163: Admission to the Procedure

The court opens the agreement with creditors procedure if it does not proceed pursuant to article162 first and second paragraphs by issuing an order not subject to appeal. Where there are different classes of creditors, the court shall order such a composition after verifying the fairness of the formation of different classes.

With the order referred to in the first paragraph, the court shall:

1. nominate a presiding judge for the proceedings;

2. order the convening of the creditors not later than thirty days from the date of the decision

3. and set a time limit for the communication of this to the creditors;

4. appoint a judicial commissioner pursuant to articles 28 and 29;

5. set a period not exceeding fifteen days within which the applicant must deposit with the clerk of the court a sum equal to 50 percent of the costs that are presumed to be necessary for the entire process, or such other lesser sum, not less than 20 percent of such expenses, which is determined by the court. On a proposal from the commissioner, the presiding judge may order that the amounts collected are invested in accordance with the provisions of article 34, first paragraph.

If the deposit is not made as required, the commissioner shall act in accordance with article 173, first paragraph.

Art. 164: Decrees of the Presiding Judge

The decrees of the presiding judge shall be subject to appeal pursuant to article 26.

Art. 165: Judicial Commissioner

The commissioner is, as regard to the exercise of his functions, a public official.

Articles 36, 37, 38 and 39 apply to the acts of the commissioner.

Art. 166: Notification of the Decree


The decree shall be published by the clerk pursuant to article. 17.

The court may also order the publication in one or more newspapers, as it may designate.

Article 88, second paragraph applies if the debtor owns real estate or other property subject to public registration.

CHAPTER TWO - EFFECTS OF THE AGREEMENTWITH CREDITORS PROCEDURE

Art. 167: Administration of Assets During the Procedure

During the agreement procedure, the debtor maintains possession of his property and the administration of the company under the supervision of the commissioner.

The loans (even in the form bill of exchange), settlements, compromises, alienation of immovable property, the granting of mortgages or liens, guarantees, waivers of claims, recognition of third party rights, cancellation of mortgages, refunds of liens, acceptances of inheritance and donations, and generally acts in excess of the usual business made without the written permission of the presiding judge are ineffective with respect to claims existing before the agreement.

With the order provided for in article 163, or in a subsequent decree, the court may set a limit value below which the authorization referred to in the second paragraph is not necessary.

Art 168: Effects of an Appeal

From the date of publication of the request in the commercial register, and until such time as an order of approval of the agreement becomes final, creditors may can not, under penalty of nullity, initiate or continue enforcement actions and precautionary measures.

The limitations periods that would continue to run are tolled and do not expire.

Creditors cannot acquire rights of first refusal with respect to the effectiveness of competing creditors, unless there is permission from a judge in the cases provided for in the preceding article. Judicial mortgages recorded in the ninety days preceding the date of publication of the application in the commercial register are ineffective with respect to claims existing before the agreement.

Art. 169: Applicable Standards

Articles 45, 55, 56, 57, 58, 59, 60, 61, 62 and 63 apply as of the date of submission of the application for an agreement with creditors. The debtor, in the application referred to in article 161, may request that the


court or, after the order approving the agreement, the presiding judge, to authorize him to dissolve the contracts in progress at the time of submission of the application. On request of the debtor, the court may authorize the suspension of the contract for not more than sixty days, renewable once.

In such cases, the contractor is entitled to compensation equal to the damages resulting from the contract’s non-fulfillment. This credit is satisfied as if it pre-dated the agreement.

The termination of the contract does not extend to any arbitration clause contained in it.

The provisions of this article shall not apply to employment relationships and contracts referred to in articles 72, paragraph eight, 72ter and 80, first paragraph.

CHAPTER THREE - IMMEDIATE ACTION

Art. 170: Accounting Records

The presiding judge, immediately after the decree of admission to the agreement, shall note as much after the last writing in the accounting books presented.

The books are returned to the debtor, who must make them available to the presiding judge and the judicial commissioner.

Art. 171: Notice of Meeting of Creditors

The commissioner shall proceed to the verification of the list of creditors and debtors on the basis of accounting entries submitted in accordance with article 161, making any necessary adjustments.

The commissioner shall serve creditors by registered mail or telegram with a notice containing the date of the meeting of creditors and the debtor’s proposals. When the notification referred to in the preceding paragraph is extremely difficult, due to the significant number of creditors, or difficulty in identifying them all, the court, after hearing the commissioner, may provide authorization as indicated in article 126.

If there are bondholders, the term, described in article 163, first paragraph, no. 2, should be doubled.

In any case, the notice to the bondholders shall be communicated to their common representative.

The provisions of Royal Decree February 8, 1924, n. 136 still apply to credit institutions.

Art. 172: Operations and Reports of the Commissioner


The commissioner shall establish an inventory of the debtor’s assets and a detailed report on the causes of the collapse, on the conduct of the debtor, on the proposed agreement and on the guarantees offered to creditors, and file it with the court at least three days before the meeting of creditors.

At the request of the commissioner, the court may appoint an assessor to assist in the evaluation of the assets.

Art. 173: Revocation of the Agreement and Declaration of Bankruptcy During the Procedure

The commissioner, if he finds that the debtor has concealed or hidden assets, intentionally failed to report one or more claims, asserted the existence of non-existent assets or committed other acts of fraud, must so report immediately to the court, which sua sponte opens proceedings for the revocation of the agreement, notifying the public prosecutor and creditors Upon completion of the procedure, which takes place as set out in article 15, the court shall order by decree and, at the request of the creditor or at the request of the public authorities, make sure the conditions referred to in articles 1 and 5, declare the bankruptcy of the debtor while at the same time issuing a judgment to that effect which is appealable pursuant to article 18.

The provisions of the preceding paragraph shall also apply if the debtor, during the agreement procedure, takes unauthorized acts pursuant to article 167 or otherwise intends to defraud creditors, or if at any time it appears that he lacks the conditions for the eligibility of the agreement.

CHAPTER FOUR - THE FORMATION OF THE AGREEMENT WITH CREDITORS

Art. 174: Meeting of Creditors

The meeting of creditors is chaired by the presiding judge. Any creditor may be represented by an agent with power of attorney. The power of attorney may be written without following any particular formalities on notice of the meeting.

The debtor, or his legal representative, must personally be present. Only in such a case where that presence is not possible may a special proxy represent the debtor. The presiding judge verifies the facts preventing appearance.

Co-debtors, guarantors and the co-debtors who are joint and severally liable may also intervene.

Art. 175: Discussion of the Proposed Agreement


At the meeting of creditors, the commissioner introduces the report and the final proposals of the debtor.

The proposed agreement cannot be changed after the start of the voting process.

Any creditor can explain the reasons for which it considers the proposal to be acceptable or inacceptable and raise objections to credits on the list of creditors.

The debtor has the right to respond and challenge credits, in turn, and has a duty to provide the court with any appropriate clarifications.

Art. 176: Provisional Admission of Disputed Claims

The judge may provisionally admit all or part of the disputed claims for the sole purpose of voting and calculation of majorities, without prejudice to the final determination on the existence of the credits.

Creditors may object to their exclusion from the agreement at the time it is being approved in the event that their admission would influence on the formation of the majority.

Art. 177: Majority for the Approval of the Agreement

Creditors representing the majority of the credits allowed to vote approve the agreement. Where there are different classes of creditors, the agreement is approved if the majority of classes approve the agreement.

Secured creditors, even if the warranty is contested, of which the proposed settlement provides for the payment in full, are not entitled to vote if they do not waive in whole or in part their pre-emptive right. If the secured creditors renounce in whole or in part to right to pre-emption, the portion of the claim not covered by the warranty shall be treated as an unsecured credit, the withdrawal shall take effect for the sole purpose of the agreement.

The creditors with right of first refusal, to which the proposed settlement provides, under article 160, an incomplete satisfaction, shall be treated as unsecured for the remainder of their credit.

The debtor’s spouse, family and relatives to the fourth degree, transferees of their interests within a year before the proposed agreement are excluded from the computation of the majority vote.

Art. 178: Additions to the Proposed Agreement

yeas and nays of the creditors with the names of the voters and the amount of their claims are inserted in the minutes of the meeting of creditors. The names of the creditors who did not exercise their right to vote and the amount of their claims are also included.


The presiding judge, the commissioner and the clerk shall sign the minutes.

If it is not possible to complete all the days business during the hearing, the presiding judge shall order an adjournment with the hearing to continue no later than eight days. Those not in attendance during the first hearing are notified of the second one.

Creditors, who have not exercised their vote, may submit their disagreement by telegram, letter, fax or email within twenty days after the end of the hearing. Those who fail to raise any objection are deemed to consent and as such are considered in the calculation of the majority of credits. The clerk shall record any expressions of dissent and assent, as covered by this paragraph, at the bottom of the minutes of the meeting.

CHAPTER FIVE - APPROVAL AND IMPLEMENTATION OF THE AGREEMENTWITH CREDITORS;

DEBT RESTRUCTURING AGREEMENTS

Art. 179: Failure to Approve the Agreement

If within the prescribed period a majority is not reached as required by the first paragraph of article 177, the presiding judge shall report immediately to the court, which must act in accordance with article 162, second paragraph When the commissioner finds a change in the situation that alters feasibility of the plan after its approval by the creditors, he shall give notice to creditors, which can file a motion to be heard during the hearing referred to in article 180 in order toto change their vote.

Art. 180: Approval

If the agreement has been approved pursuant to the first paragraph of article 177, the presiding judge reports to the court, which will fix a hearing in chambers to summon the parties and the judicial commissioner, providing that the order is published in accordance with article 17 and served, by the debtor, on the commissioner and on any dissenting creditors.

The debtor, the commissioner, any dissenting creditors and any interested party must file a notice of appearance at least ten days before the date of the hearing. In the same period, the commissioner must deposit his reasoned opinion.

If there are no proposals in opposition, the court, after verifying the correctness of the procedure and the outcome of the vote, shall approve the agreement by a reasoned decision not subject to appeal.

In the case of opposition, the court admits the evidence requested by the parties or that selected sua sponte, which may be done by delegating the


procedure to one of the members of the panel. In the case referred to in the second sentence of the first paragraph of article 177, if a creditor belonging to a dissenting class or, in the event of failure to form a class, dissenting creditors representing 20 percent of the credits allowed to vote, contest the convenience of the proposal, the court may approve the agreement if it considers that the debt may be satisfied by the agreed amount is not less than any workable alternatives.

The court shall decide by a reasoned order, communicating to the debtor and to the commissioner, who shall give notice to the creditors. The decision is published in accordance with article 17 and is provisionally enforceable.

The amounts due on contested and conditional claims or to untraceable creditors are deposited in the manner prescribed by the court, which also sets out the terms and conditions for the release of the funds.

If the tribunal rejects the agreement, on motion of the creditor or of the public authorities, having determined the conditions referred to in articles 1 and 5, declare the bankruptcy of the debtor by separate judgment issued at the same time.

Art. 181: Closure of Proceedings

The agreement with creditors procedure ends with the decision approving the agreement in accordance with article 180. The approval must take place within six months of the submission of the application pursuant to article 161, the period may be extended only once by the court of sixty days.

Art. 182: Measures for the Transfer of Assets

If the agreement is based on the transfer of assets, and does not otherwise provide, the court appoints one or more liquidators in the approval decision and a committee of three or five creditors to assist in the liquidation and determine the methods of the liquidation.

Articles 28, 29, 37, 38, 39 and 116, apply mutatis mutandis to liquidators.

Articles 40 and 41 apply to the creditors’ committee mutatis mutandis. The court shall see to the replacement of members of the committee.

Sales of companies and branches of companies, real estate and other assets recorded in public records, transfer of activities and liabilities of the company, of assets or legal relations in blocks must be authorized by the creditors committee.
