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UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

www.flsb.uscourts.gov

In re: 

PERFORMANCE INSURANCE COMPANY SPC Chapter 15

Debtor in a Foreign Proceeding. Case No.: 21-12609-AJC

________________________________________/

MOTION TO AUTHORIZE DISTRIBUTION OF ESTATE FUNDS

HELD IN THE UNITED STATES TO THE CAYMAN ISLANDS

(Relief Requested Without a Hearing)

Kenneth Krys and Neil Dempsey (the “Foreign Representatives”), the Official Joint 

Liquidators of Performance Insurance Company SPC (the “SPC”) and ten of its twelve segregated 

portfolios1(collectively, the “Debtor”), file this Motion to Authorize Distribution of Estate Funds 

Held in the United States to The Cayman Islands (the “Motion”), to authorize the Foreign 

Representatives to repatriate the funds held in the U.S. bank accounts of the Debtor pertaining to 

two of its segregated portfolios, Hudson York Insurance Company SP (“Hudson SP”) and 

Performance 5 SP, to their corresponding bank accounts in the Cayman Islands so they can be 

 

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 The Debtor’s segregated portfolios are: (i) Bottini Insurance SP; (ii) Gen 1 Insurance 

Company SP; (iii) Goldenstar Holdings Company SP; (iv) Greystone Insurance SP; (v) Hudson 

York Insurance Company SP; (vi) Omega Insurance Company SP; (vii) Performance 5 SP; (viii) 

Prewett Insurance Company SP; (ix) Smart Insure SP; (x) SSS Insurance SP; (xi) Sustainable 

Insurance Company SP; and (xii) Triangle RGK SP. These twelve segregated portfolios are 

hereinafter referred to as the “Segregated Portfolios.” The Foreign Representatives are the Official 

Joint Liquidators for all segregated portfolios but not for Bottini Insurance SP and SSS Insurance 

SP. 

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administered in the Debtor’s foreign main proceeding. In support of their Motion, the Foreign 

Representatives state as follows:

RELEVANT FACTS

I. The Debtor and its Cayman Islands Liquidation

1. The Debtor is a segregated portfolio company incorporated in the Cayman Islands

operating in the captive insurance industry through its 12 Segregated Portfolios. D.E. 2.

2. Due to the exposure to liability in litigation and its inability to generate income 

after the issuance of a desist order against it by the Cayman Islands Monetary Authority, the 

Debtor’s directors and its sole shareholder entered resolutions to wind up the Debtor on February 

26, 2021, thereby commencing its voluntary liquidation (the “Debtor’s Cayman Liquidation”). 

D.E. 2. The Debtor’s Cayman Liquidation became subject to the supervision of the Grand Court 

of the Cayman Islands (the “Cayman Court”) on April 7, 2021. D.E. 18.

3. The plaintiffs in US litigation involving the Debtor have filed proofs of debt with

the foreign representatives in the Debtor’s Cayman Liquidation. 

II. The Recognition of the Debtor’s Insolvency Proceeding Under Chapter 15

4. On March 19, 2021, the Foreign Representatives filed a petition and motion for 

recognition of the Debtor’s Cayman Liquidation under Chapter 15 of the Bankruptcy Code. D.E. 

1 & 2.

5. On April 15, 2021, the Court entered its Order Granting Recognition of Foreign 

Main Proceeding Pursuant to §§ 1515 and 1517 of the Bankruptcy Code and Granting Additional 

Relief (the “Recognition Order”). D.E. 17. The Recognition Order recognized the Debtor’s courtsupervised liquidation pending in the Cayman Islands as a foreign main proceeding and the 

Foreign Representatives as foreign representatives. D.E. 17. 

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6. Among other things, the Recognition Order entrusts the Foreign Representatives 

with “the full administration and realization of all or part of the Debtor’s bankruptcy estate and 

assets within the territorial jurisdiction of the United States.” D.E. 17, at ¶ 3.

7. The Recognition Order also institutes the automatic stay under section 362 of the 

Bankruptcy Code, and specifically provides as follows: 

a. “All persons and entities are stayed from commencing or continuing any 

action or proceeding concerning the assets, rights, obligations or liabilities, 

of the Debtor or the Debtor’s bankruptcy estate, located in the United States.” 

D.E. 17, at ¶ 6 (emphasis added).

b. “All persons and entities are stayed from executing against the assets of the 

Debtor or the Debtor’s bankruptcy estate located in the United States.” D.E. 

17, ¶ 7.

c. “All persons and entities are prohibited from transferring, encumbering or 

otherwise disposing of, or exercising control over any assets of the Debtor 

or the Debtor’s bankruptcy estate, located in the United States.” D.E. 17, ¶ 8

(emphasis added).

III. The Novation Settlements

8. The stakeholders of the Debtor’s segregated portfolios Gen 1 Insurance Company 

SP, Greystone Insurance SP, Prewett Insurance Company SP, Smart Insure SP, Triangle RGK SP, 

and Sustainable Insurance Company SP (the “Novated SPs”) entered into settlement agreements 

whereby their respective obligations and liabilities would be assigned to other captive insurance 

companies. D.E. 50 & 53. The Cayman Court approved these settlements. 

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9. This Court granted the Foreign Representatives’ motions to authorize the 

distribution of the Novated SPs assets in the United States to permit the Foreign Representatives 

to implement the settlement agreements. D.E. 51 & 54. 

10. Though the settlements affected the Novated SPs, the settlements did not affect the 

Debtor’s six other segregated portfolios, including Hudson SP and Performance 5 SP. 

IV. The Cayman Remuneration Order

11. On August 24, 2022, the Grand Court of the Cayman Islands overseeing the 

Debtor’s official liquidation entered an Order (the “Remuneration Order”) approving the 

remuneration and expenses of the Foreign Representatives up to and including July 31, 2021,

under Cayman Islands law with respect to their remuneration agreements as to the SPC and four 

of its segregated portfolios Goldenstar Holdings Company SP, Omega Insurance Company SP, 

Hudson York, and Performance 5 SP. The Remuneration Order is attached as “Exhibit A”.

12. The Remuneration Order further authorizes the Foreign Representatives to make 

an interim payment for 80% of their remuneration and 100% of their expenses, including legal 

fees, incurred from August 1, 2021 onwards. Ex. A, ¶ 5. The Remuneration Order further 

authorizes the Foreign Representatives “to make any applications in other court outside of the

Cayman Islands in order to give effect to the approval and payment of the [Foreign 

Representatives] past and future remuneration and expenses in respect of the [Debtor] and the 

Subject SPs.” Ex. A, ¶ 6.

RELIEF REQUESTED AND BASIS FOR RELIEF

13. Pursuant to 11 U.S.C. §§ 1521(a)(7) & 1521(b), the Foreign Representatives 

request an order from the Court entrusting them with the distribution of the funds located in the 

accounts of Hudson SP and Performance 5 SP in the United States (the “US Accounts”) to the 

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Cayman Islands to permit the Foreign Representatives to administer these funds in connection with 

the Debtor’s Cayman Liquidation. 

14. Pursuant to section 1521(a)(5), the Court has entrusted the Foreign Representatives 

with the “full administration or realization of all or part of the Debtor’s bankruptcy estate and 

assets within the territorial jurisdiction of the United States.” D.E. 17, at ¶ 3; see 11 U.S.C. § 

1521(a)(5).

15. Under section 1521(b), the court may “entrust the distribution of all or part of the 

debtor’s assets located in the United States to the foreign representative ... provided that the court 

is satisfied that the interest of creditors in the United States are sufficiently protected.” 11 U.S.C. 

§ 1521(b). “This alternative provision allows the debtor’s estate to exit the United States for 

distribution.” In re Agrokor d.d., 591 B.R. 163, 188 (Bankr. S.D.N.Y. 2018); see In re British Am. 

Ins. Co., 488 B.R. 205, 225 (Bankr. S.D. Fla. 2013). This relief is conditioned, however, on 

whether the interests of U.S. creditors are “sufficiently protected.” 11 U.S.C. § 1521(b). 

Additionally, any relief under section 1521(b) may only be granted “if the interests of creditors 

and other interested entities, including the debtor, are sufficiently protected.” 11 U.S.C. § 1522(a).

16. Accordingly, “a bankruptcy court must be satisfied that local creditors’ interests are 

‘sufficiently protected’ before allowing a foreign representative to distribute property in a foreign 

proceeding, and though not an express requirement, is not precluded from satisfying itself that 

foreign creditors are ‘sufficiently protected’ before allowing a foreign representative to distribute 

property in a foreign proceeding.” SNP Boat Serv. S.A. v. Hotel Le St. James, 483 B.R. 776 (Bankr. 

S.D. Fla. 2012). 

17. Courts consider the following three factors in determining whether a creditor is 

afforded “sufficient protection”: (i) the just treatment of all holders of claims against the 

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bankruptcy estate; (ii) the protection of U.S. claimants against prejudice and inconvenience in the 

processing of claims in the [foreign] proceeding; and (iii) the distribution of proceeds of the foreign 

estate substantially in accordance with the order prescribed by U.S. law. In re Markus, 610 B.R. 

64, 76 (Bankr. S.D.N.Y. 2019), aff'd, 620 B.R. 31 (S.D.N.Y. 2020).

18. There is no doubt that the Debtor’s U.S. creditors are afforded “sufficient 

protection.” The Debtor’s estate is governed by the Cayman Islands Companies Act (the 

“Companies Act”), which is applicable to all company insolvencies in the Cayman Islands. 

Accordingly, the assets of the Debtor and its segregated portfolios are subject to the Foreign 

Representatives’ exclusive control for the purpose of their liquidations. Companies Act, Sec. 110. 

The Companies Act affords creditors the right to file a proof of debt regarding any claim they may 

have against the Debtor, Companies Act, Sec. 139, and the Plaintiffs in the Kentucky Action have 

filed proofs of debt in the Debtor’s Cayman Liquidation. Further, the Companies Act does not 

distinguish or otherwise prejudice the claims of local creditors from the claims of foreign creditors, 

such as the Debtor’s U.S. creditors. Companies Act, Secs. 139, 140, 141 & 142. Accordingly, 

the holders of claims against the Debtor’s estate are treated fairly and U.S. claimants are neither 

prejudiced nor inconvenienced by processing their claims in the Cayman Liquidation. 

19. Third, the distribution of the estate in a liquidation scenario under the Companies 

Act is similar to the scheme under the U.S. Bankruptcy Code. The Companies Act, provides 

priority of payment to “preferred” and secured creditors, then payment of non-secured and nonpreferred creditors in a pari passu basis, and finally to equity interests. Companies Act, Sec. 140.

20. Importantly, the relief sought is necessary to effectuate the purposes of chapter 15

of promoting the fair and efficient administration of the Debtor’s foreign estate located in the 

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Cayman Islands by centralizing the estate’s assets and claims against the estate and distribution in 

the forum of the main foreign proceeding. 

WHEREFORE, the Foreign Representatives request that the Court enter an order, 

substantially in the form of Exhibit “A”, granting this Motion and permit the Foreign 

Representatives to distribute the funds of Hudson SP and Performance 5 SP to the Cayman Islands.

I HEREBY CERTIFY that a true and correct copy of the foregoing has been served upon 

all interested parties registered to receive notice via this Court’s CM/ECF electronic notification 

system on October 31, 2022.

Dated: October 31, 2022 Respectfully submitted,

SEQUOR LAW, P.A.

1111 Brickell Avenue, Suite 1250 

Miami, Florida 33131

Telephone: (305) 372-8282 

Facsimile: (305) 372-8202

Email: ggrossman@sequorlaw.com

jmendoza@sequorlaw.com 

By: /s/ Gregory S. Grossman

Gregory S. Grossman

Florida Bar No. 896667

Juan J. Mendoza

Florida Bar No.: 113587

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was filed via electronic 

filing using the CM/ECF system with the Clerk of the Court which sent e-mail notification of such 

filing to all CM/ECF participants in this case and via regular US mail to all participants who are 

not on the list to receive e-mail notice/service for this case as indicated on the service list on 

October 31, 2022.

By: _/s/ Gregory S. Grossman

 Gregory S. Grossman

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EXHIBIT A 

Case 21-12609-AJC Doc 57 Filed 10/31/22 Page 8 of 10
UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

www.flsb.uscourts.gov

In re: 

PERFORMANCE INSURANCE COMPANY SPC Chapter 15

Debtor in a Foreign Proceeding. Case No.: 21-12609-AJC

________________________________________/

ORDER GRANTING MOTION TO AUTHORIZE DISTRIBUTION OF 

ESTATE FUNDS HELD IN THE UNITED STATES TO THE CAYMAN ISLANDS

THIS CAUSE came before the Court on __________ ___, 2022, (the “Hearing”) upon the 

Motion to Authorize the Distribution of Estate Funds Held in the United States to the Cayman 

Islands (the “Motion”) [DE ___] filed by Kenneth Krys and Neil Dempsey (the “Foreign 

Representatives”), the Official Joint Liquidators of Performance Insurance Company SPC (the 

Case 21-12609-AJC Doc 57 Filed 10/31/22 Page 9 of 10
“SPC”) and ten of its twelve segregated portfolios1 (collectively, the “Debtor”). The Court has 

considered the Motion, the record, and is fully advised, and finds that the interests of the Debtor’s 

U.S. creditors are sufficiently protected under the Debtor’s Cayman Liquidation. Accordingly, it 

is 

ORDERED that:

1. The Motion is GRANTED as set forth below.

2. The Foreign Representatives are authorized and entrusted with the distribution of

the funds in the United States bank accounts of segregated portfolios Hudson York Insurance 

Company SP and Performance 5 SP, to such account in the Cayman Islands as specified by the 

Foreign Representatives. 

###

Submitted by:

Gregory S. Grossman, Esq.

Juan J. Mendoza, Esq.

SEQUOR LAW, P.A.

1111 Brickell Avenue, Suite 1250

Miami, Florida 33131

ggrossman@sequorlaw.com

jmendoza@sequorlaw.com

Telephone: (305) 372-8282

(Juan J. Mendoza is directed to serve a copy of this order upon all interested parties who do not 

receive service by CM/ECF and file a proof of service within three days of entry of this order)

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 The Debtor’s segregated portfolios are: (i) Bottini Insurance SP; (ii) Gen 1 Insurance 

Company SP; (iii) Goldenstar Holdings Company SP; (iv) Greystone Insurance SP; (v) Hudson 

York Insurance Company SP; (vi) Omega Insurance Company SP; (vii) Performance 5 SP; (viii) 

Prewett Insurance Company SP; (ix) Smart Insure SP; (x) SSS Insurance SP; (xi) Sustainable 

Insurance Company SP; and (xii) Triangle RGK SP. These twelve segregated portfolios are 

hereinafter referred to as the “Segregated Portfolios.” The Foreign Representatives are the Official 

Joint Liquidators for all segregated portfolios but not for Bottini Insurance SP and SSS Insurance 

SP. 

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