/raid1/www/Hosts/bankrupt/TCRLA_Public/080716.mbx
T R O U B L E D C O M P A N Y R E P O R T E R
L A T I N A M E R I C A
Wednesday, July 16, 2008, Vol. 9, No. 140
Headlines
A R G E N T I N A
AEROLINEAS ARGENTINAS: Gov't Asks Judge to Name Administrator
ALITALIA SPA: Adviser Plans Administration Under Amended Law
ALL BUSINESS: Proofs of Claim Verification Deadline Is Aug. 22
FABRI HNOS: Proofs of Claim Verification Deadline Is Oct. 14
FRANCOSTOR SA: Proofs of Claim Verification Is Until Sept. 25
HERCULES INC: S&P Puts US$350MM Interest Debenture Under Watch
OBRA SOCIAL: Trustee Verifies Proofs of Claim Until Oct. 8
PACIFICO SA: Proofs of Claim Verification Is Until Aug. 6
POTTER SA: Files for Reorganization in Buenos Aires Court
PROTEL SERVICIOS: Trustee Verifies Proofs of Claim Until Oct. 9
B E R M U D A
ANNUITY & LIFE: Posts US$212,458 Net Loss in Qtr. Ended June 30
CAPE OPPORTUNITIES: Sets Final Shareholders Meeting for Aug. 14
TYCO INTERNATIONAL: Okays US$1BB Program to Repurchase Shares
B R A Z I L
ADVANCED MICRO: To Write Down US$880MM, Mostly Due to ATI Buyout
DELPHI CORP: GM Wants to Participate in Appaloosa Adversary Suit
DELPHI CORP: Retains W.Y. Campbell to Coordinate Brake Biz Sale
DELPHI CORP: Wants to Modify 19.1% Stake in Ener1 Venture
GENERAL MOTORS: Wants to Participate in Delphi-Appaloosa Lawsuit
C A Y M A N I S L A N D S
ACUSA LIMITED: Deadline for Proofs of Claim Filing Is July 23
BELMONT PARK: Proofs of Claim Filing Is Until July 23
CABLE & WIRELESS: CEO's Departure May be Due to Restructuring
CABLE & WIRELESS: Investigates New Cellphone Tax
CARDIFF LTD: Proofs of Claim Filing Deadline Is July 23
GREAT MEADOWS: Deadline for Proofs of Claim Filing Is July 23
HONEY HARBOUR: Proofs of Claim Filing Deadline Is Until July 23
KODEX LIMITED: Deadline for Proofs of Claim Filing Is July 23
NICHOLAS LIMITED: Proofs of Claim Filing Deadline Is July 23
PARMALAT SPA: Allocated Shares Hike Equity Capital
PARMALAT SPA: Board to Review Interim Data July 30, 2008
PLATT INVESTMENT: Proofs of Claim Filing Deadline Is July 23
OMNIBUS FUNDING: Proofs of Claim Filing Is Until July 23
D O M I N I C A N R E P U B L I C
BANCO INTERCONTINENTAL: Two Former Officials to Go to Prison
G U A T E M A L A
CLAIRE'S STORES: Zimmermann Quits as President for North America
* GUATEMALA: S&P Holds BB/B Foreign & BB+/B Local Currency IDRs
J A M A I C A
NATIONAL COMMERCIAL: Says Olint Accounts Debacle is Untrue
NATIONAL WATER: Shrugs Off Blame in Fire at Brown's Town
SUGAR COMPANY: Unions Promise to Work With Infinity Bio-Energy
M E X I C O
BHM TECHNOLOGIES: Asks Court to Approve Disclosure Statement
BHM TECHNOLOGIES: Asks Court to Approve Solicitation Protocol
BHM TECHNOLOGIES: Court Approves US$45,000,000 DIP Financing
H.J. HEINZ: Moody's Assigns Ba1 Rating on Preferred Stock
SATELITE MEXICANOS: Likely to be Sold, Report Says
SATELITES MEXICANOS: Board to Explore Strategic Alternatives
P E R U
CRPAO PEN TRUST: Peru's Rating Lift Cues S&P to Up Rating to BB+
INTEROCEANICA IV: Peru's Rating Upgrade Cues S&P's BB+ Ratings
PERU ENHANCED: Peru's Rating Upgrade Cues S&P's BB+ Ratings
* PERU: S&P Upgrades Long-Term Credit Rating to BBB- From BB+
P U E R T O R I C O
ADELPHIA COMMS: Wants to Exclude Documents from Lucent Trial
AGILENT TECHNOLOGY: Moody's Affirms Ba1 Corporate Family Rating
BEATRIX READY: Case Summary & 20 Largest Unsecured Creditors
V E N E Z U E L A
PETROLEOS DE VENEZUELA: Hugo Chavez Urges CenAm & Caribbean JV
PETROLEOS DE VENEZUELA: To Conduct Maintenance Work at Amuay
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A R G E N T I N A
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AEROLINEAS ARGENTINAS: Gov't Asks Judge to Name Administrator
-------------------------------------------------------------
Mercopress reports that the Argentine government has asked a
judge to name an administrator for Aerolineas Argentinas.
According to Mercopress, a court-appointed administrator would
authorize any major decision by Aerolineas Argentinas.
Published reports say the government wanted an administrator who
could negotiate loans from government-owned bank Banco Nacion to
pay salaries. Aeorolineas Argentinas and the government have
been summoned to deliver their cases in court this week.
Argentine Transportation Secretary Ricardo Jaime told an
Argentine radio station that Aerolineas Argentinas has US$360
million in debts and half of its fleet is grounded, Mercopress
notes.
Mercopress relates that chiefs of unions representing Aerolineas
Argentinas' met with government officials last week. They
promised not to hold demonstrations for 60 days while the
government seeks the court action.
The government's move could mean that it wants to take over
Aerolineas Argentinas, Mercopress says, citing Argentine
analysts. Aerolineas Argentinas could be purchased by the state
or by an investor considered an ally of Argentine President
Cristina Fernandez de Kirchner and her husband Nestor Kirchner.
Aerolineas Argentinas is controlled by Spanish tourism group
Marsans, which purchased the airline in 2001 when the Argentine
company was bankrupt. Aerolineas Argentinas has 80% of the
domestic flights in Argentina.
Aerolineas Argentinas is behind on the payment of its June 2008
salary and other benefits. The airline has been facing protests
and complaints about poor service. It was forced to run under
state-controlled fares. Despite subsidized jet fuel, it has
accumulated growing debts. Aerolineas Argentinas declared
operating losses of US$100 million in the first half of the
year.
Aerolineas Argentinas had financial problems in the past. As
reported in the Troubled Company Reporter on June 15, 2000,
Aerolineas Argentinas needed a US$650 million capital injection
and sweeping cost cuts to save it from bankruptcy. Aerolineas'
biggest shareholder covered a bulk of its losses, which Spanish
sources put at US$300 million in 2000. Aerolineas Argentinas
also defaulted on a US$50 million bonds due on Dec. 23, 2003.
In 2005 the airline admitted the possibility of letting
Argentine partners into the company. Earlier in 2008, Marsans
reached a preliminary accord to reduce its stake in Aerolineas
Argentinas to 35% from 95% including a local private investor
(35%) and greater participation of the Argentine state and
provinces.
ALITALIA SPA: Adviser Plans Administration Under Amended Law
------------------------------------------------------------
Alitalia S.p.A. will be placed into administration under an
amended reorganization as part of its rescue plan, Thomson
Financial says citing a Milano Finanza report.
According to Intesa Sanpaolo S.p.A.'s plan known as Fenice, MF
relates, the Italian government will amend a law used to
reorganized Parmalat S.p.A. The government tapped Intesa
Sanpaolo as adviser for the sale of its 49.9% stake in Alitalia.
The law, written by former Industry Minister Antonio Marzano,
allows large companies to seek protection from creditors and to
be placed in emergency administration. The law would allow
Alitalia's core business to be separated from its debt and
placed them under a new company.
Under the Fenice plan, the old company will shoulder the cost of
the planned 5,000 job cuts and take on Alitalia's EUR1.1 billion
debt -- including the recent EUR300 million loan from the
government and a EUR750 million convertible bond, MF reports.
The new company, meanwhile, will inherit Alitalia's fleet and
real estate assets as well as the remaining employees and up to
EUR500 million in debt, MF says. It would also have EUR800
million in fresh cash and receive around EUR300 million in
assets from AirOne S.p.A.
A consortium of businessmen including Roberto Colaninno,
Gilberto Benetton and the De Agostini group will acquire a
minority stake in the new company, with possibility of playing a
greater role.
Intesa Sanpaolo has until Aug. 10 to present Alitalia's rescue
plan to the government.
About Alitalia
Based in Rome, Alitalia S.p.A. -- http://www.alitalia.it/--
provides air travel services for passengers and air transport of
cargo on national, international and inter-continental routes,
including United States, Canada, Japan and Argentina. The
Italian government owns 49.9% of Alitalia.
Despite a EUR1.4 billion state-backed restructuring in 1997,
Alitalia posted net losses of EUR256 million and EUR907 million
in 2000 and 2001 respectively. Alitalia posted EUR93 million in
net profits in 2002 after a EUR1.4 billion capital injection.
The carrier booked annual net losses of EUR520 million in 2003,
EUR813 million in 2004, EUR168 million in 2005, EUR625.6 million
in 2006, and EUR494.64 million in 2007.
ALL BUSINESS: Proofs of Claim Verification Deadline Is Aug. 22
--------------------------------------------------------------
The court-appointed trustee for All Business Solution Argentina
S.R.L.'s bankruptcy proceeding will be verifying creditors'
proofs of claim until Aug. 22, 2008.
The trustee will present the validated claims in court as
individual reports on Oct. 3, 2008. The National Commercial
Court of First Instance in Buenos Aires will determine if the
verified claims are admissible, taking into account the
trustee's opinion, and the objections and challenges that will
be raised by All Business and its creditors.
Inadmissible claims may be subject for appeal in a separate
proceeding known as an appeal for reversal.
A general report that contains an audit of All Business'
accounting and banking records will be submitted in court on
Nov. 14, 2008.
FABRI HNOS: Proofs of Claim Verification Deadline Is Oct. 14
------------------------------------------------------------
The court-appointed trustee for Fabri Hnos. S.R.L.'s bankruptcy
proceeding will be verifying creditors' proofs of claim until
Oct. 14, 2008.
The trustee will present the validated claims in court as
individual reports on Nov. 14, 2008. The National Commercial
Court of First Instance in Mar del Plata, Buenos Aires, will
determine if the verified claims are admissible, taking into
account the trustee's opinion, and the objections and challenges
that will be raised by Fabri Hnos. and its creditors.
Inadmissible claims may be subject for appeal in a separate
proceeding known as an appeal for reversal.
A general report that contains an audit of Fabri Hnos.'s
accounting and banking records will be submitted in court on
Feb. 16, 2009.
FRANCOSTOR SA: Proofs of Claim Verification Is Until Sept. 25
-------------------------------------------------------------
The court-appointed trustee for Francostor S.A.'s bankruptcy
proceeding will be verifying creditors' proofs of claim until
Sept. 25, 2008.
The trustee will present the validated claims in court as
individual reports on Nov. 6, 2008. The National Commercial
Court of First Instance in Buenos Aires will determine if the
verified claims are admissible, taking into account the
trustee's opinion, and the objections and challenges that will
be raised by Francostor and its creditors.
Inadmissible claims may be subject for appeal in a separate
proceeding known as an appeal for reversal.
A general report that contains an audit of Francostor's
accounting and banking records will be submitted in court on
Dec. 19, 2008.
HERCULES INC: S&P Puts US$350MM Interest Debenture Under Watch
--------------------------------------------------------------
Standard & Poor's Ratings Services placed its ratings on Ashland
Inc., including the 'BB+' corporate credit rating, on
CreditWatch with negative implications following the
announcement that Ashland will acquire Hercules Inc. in a
transaction valued at US$3.3 billion excluding transaction-
related costs.
At the same time, S&P placed its 'BB+' corporate credit rating
on Hercules and its 'BB-' rating on its US$350 million 6.5%
junior subordinated deferrable interest debenture due June 20,
2029 (remaining balance US$215 million) on CreditWatch with
negative implications.
S&P affirmed its ratings on Hercules' bank credit facility and
US$250 million 6.75% senior subordinated notes due Oct. 15,
2029. Because these instruments contain change of control
provisions, S&P believe they would be repaid upon closing of the
acquisition.
"If the transaction closes as currently structured, we expect to
lower Ashland's corporate credit rating to 'BB' and assign a
negative outlook," said Standard & Poor's credit analyst Cynthia
Werneth.
From a business risk perspective, the Hercules transaction would
be a strong positive. It would add substantial specialty
chemical assets with investment-grade business characteristics,
creating a company with more than US$10 billion in annual
revenues. The acquisition should result in more favorable
growth prospects and a more stable and profitable chemicals
company, with reduced reliance on the lower-margin distribution
and Valvoline products.
Although the transaction as currently contemplated will be
primarily debt-financed, it will include about US$500 million of
stock at Ashland's pre-announcement share price. In addition,
Ashland currently has very little book debt, and the company
plans to use its substantial cash balance to finance the
Hercules acquisition. As a result, S&P expect Ashland's total
adjusted debt pro forma for the transaction to be about US$3
billion. S&P would adjust debt to include about US$360 million
of after-tax pension and other postretirement obligations,
US$210 million of estimated, tax-effected asbestos liabilities,
and US$210 million of capitalized operating leases at the
combined company. Pro forma funds from operations to adjusted
total debt will be in the upper teens percentage area.
Following this acquisition, S&P would expect Ashland to use the
majority of discretionary cash flow to reduce debt, so that the
FFO to debt ratio strengthens to the 20%-25% range it deem
appropriate at the 'BB' rating.
S&P will update this CreditWatch for any changes to the
transaction structure or if details regarding the prospective
capital structure are disclosed. S&P anticipate resolving the
CreditWatch upon closing of the transaction, which is expected
to occur by the end of calendar 2008, subject to Hercules
shareholder and regulatory approval. Ashland has financing
commitments for the transaction.
Wilmington, Delaware-based Hercules Inc. -- http://www.herc.com/
-- (NYSE:HPC) manufactures and markets chemical specialties
globally for making a variety of products for home, office and
industrial markets.
Outside the United States, the company has subsidiaries in
Argentina, Bahamas, Belgium, Brazil, Hong Kong, India, Indonesia
and France.
OBRA SOCIAL: Trustee Verifies Proofs of Claim Until Oct. 8
----------------------------------------------------------
The court-appointed trustee for Obra Social del Personal
Jerarquico de la Republica Argentina para el Personal Jerarquico
de la Industria Grafica y el Personal Jerarquico del Agua y la
Energia's reorganization proceeding will be verifying creditors'
proofs of claim until Oct. 8, 2008.
The trustee will present the validated claims in court as
individual reports on March 3, 2009. The National Commercial
Court of First Instance in Buenos Aires will determine if the
verified claims are admissible, taking into account the
trustee's opinion, and the objections and challenges that will
be raised by Obra Social's and its creditors.
Inadmissible claims may be subject for appeal in a separate
proceeding known as an appeal for reversal.
A general report that contains an audit of Obra Social's
accounting and banking records will be submitted in court on
April 20, 2009.
A general report that contains an audit of Obra Social's
accounting and banking records will be submitted in court on
April 20, 2009.
The informative assembly will be held on Nov. 9, 2009.
Creditors will vote to ratify the completed settlement plan
during the assembly.
The debtor can be reached at:
Obra Social del Personal Jerarquico de la
Republica Argentina para el Personal
Jerarquico de la Industria Grafica y el Personal
Jerarquico del Agua y la Energia (Osjera)
Moreno 1140
Buenos Aires, Argentina
PACIFICO SA: Proofs of Claim Verification Is Until Aug. 6
---------------------------------------------------------
The court-appointed trustee for Pacifico S.A.'s bankruptcy
proceeding will be verifying creditors' proofs of claim until
Aug. 6, 2008.
The trustee will present the validated claims in court as
individual reports. The National Commercial Court of First
Instance in Mar del Plata, Buenos Aires, will determine if the
verified claims are admissible, taking into account the
trustee's opinion, and the objections and challenges that will
be raised by Pacifico and its creditors.
Inadmissible claims may be subject for appeal in a separate
proceeding known as an appeal for reversal.
A general report that contains an audit of Pacifico's accounting
and banking records will be submitted in court.
Infobae didn't state the submission dates for the reports.
POTTER SA: Files for Reorganization in Buenos Aires Court
---------------------------------------------------------
Potter S.A. has requested for reorganization approval after
failing to pay its liabilities.
The reorganization petition, once approved by the court, will
allow Potter to negotiate a settlement with its creditors in
order to avoid a straight liquidation.
The case is pending in the National Commercial Court of First
Instance in Buenos Aires.
PROTEL SERVICIOS: Trustee Verifies Proofs of Claim Until Oct. 9
---------------------------------------------------------------
The court-appointed trustee for Protel Servicios S.A.'s
reorganization proceeding, will be verifying creditors' proofs
of claim until Oct. 9, 2008.
The trustee will present the validated claims in court as
individual reports on Nov. 20, 2008. The National Commercial
Court of First Instance in Buenos Aires will determine if the
verified claims are admissible, taking into account the
trustee's opinion, and the objections and challenges that will
be raised by Protel Servicios and its creditors.
Inadmissible claims may be subject for appeal in a separate
proceeding known as an appeal for reversal.
A general report that contains an audit of Protel Servicios'
accounting and banking records will be submitted in court on
Feb. 6, 2009.
The informative assembly will be held on Sept. 2, 2009.
Creditors will vote to ratify the completed settlement plan
during the assembly.
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B E R M U D A
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ANNUITY & LIFE: Posts US$212,458 Net Loss in Qtr. Ended June 30
---------------------------------------------------------------
Annuity & Life Re (Holdings) Ltd. has incurred a net loss of
US$212,458 on net revenues of US$169,187 for the three months
ended June 30, 2008, compared to a net loss of US$92,056 on net
revenues of US$419,233 for the same period in 2007.
Due to the absence of ongoing insurance operations, the company
has reduced its operations including:
* terminating employees,
* reducing the size of the Board of Directors, and
* moving to smaller office space.
Because of statutory requirements, the wind-down or dissolution
of the company is not imminent. The company continues to
explore strategic alternatives to attempt to maximize its
economic value for stockholders. On Feb. 29, 2008, the company
closed the sale of its U.S. domiciled insurance company
resulting to its dissolution of its U.S. holding company and
releasing the former CFO who also had headed up those
operations.
The company made a cash distribution (return of capital) of
US$0.50 per common share on May 15, 2008 with a total payout of
US$12.267 million.
The company has continuing obligations under an employment
agreement with its CEO, including obligations to make severance
payments under certain circumstances. There are no arbitrations
or other legal proceedings currently in process in which the
company is involved.
Bermuda-based Annuity & Life Re (Holdings), Ltd. --
http://www.alre.bm/or -- http://www.annuityandlifere.com/--
provides annuity and life reinsurance to insurers through its
wholly owned subsidiaries, Annuity & Life Reassurance, Ltd. and
Annuity & Life Reassurance America, Inc.
Going Concern Doubt
Chartered Accountants of Hamilton, Bermuda, raised substantial
doubt about Annuity and Life Re (Holdings), Ltd.'s ability to
continue as a going concern after it audited the company's
annual report for 2004. The auditor pointed to the company's
significant losses from operations and experience of liquidity
demands.
Annuity and Life Re incurred losses for two consecutive
quarters. The company posted a net loss of US$92,056 for the
three months ended June 30, 2007, compared to a net loss of
US$649,949 for the same period in 2006. The company incurred a
net loss from continuing operations of US$88 million for the
three months ended Sept. 30, 2007, as compared to a net loss
from continuing operations of US$212.2 million for the same
period in 2006.
CAPE OPPORTUNITIES: Sets Final Shareholders Meeting for Aug. 14
---------------------------------------------------------------
Cape Opportunities Fund Limited will hold its final general
meeting on Aug. 14, 2008, at 2:00 p.m. at Leman Management
Limited, Wessex House, 2nd floor, 45 Reid Street, Hamilton
HM 12, Bermuda.
These matters will be taken up during the meeting:
-- receiving an account showing the manner in which the
winding-up of the company has been conducted and its
property disposed of and hearing any explanation that may
be given by the liquidator;
-- determination by resolution the manner in which the books,
accounts and documents of the company and of the
liquidator shall be disposed; and
-- passing of a resolution dissolving the company.
Cape Opportunities' shareholder decided on March 5, 2008, to
place the company into voluntary liquidation under Bermuda's
Companies Act 1981.
The liquidator can be reached at:
Edward Allanby
Wessex house
45 Reid Street, 2nd floor
Hamilton HM11, Bermuda
TYCO INTERNATIONAL: Okays US$1BB Program to Repurchase Shares
-------------------------------------------------------------
Bloomberg News reports that Tyco International Ltd.'s board has
approved a
US$1 billion program to repurchase the firm's shares.
According to Tyco International, the newly authorized program
adds to a
US$1 billion program approved in September 2007. The September
program is almost completed.
Bermuda relates that through the new program, about 25.7 million
shares will be purchased for US$38.88. The 25.7 million shares
represent 5.3% of the 482.2 million shares outstanding as of
April 25, 2007. Tyco International said it bought back 4% of
outstanding stock in the fiscal year 2008, which ends in
September 2008.
Based in Pembroke, Bermuda, Tyco International Ltd. (NYSE: TYC)
-- http://www.tyco.com/-- provides security, fire protection
and detection, valves and controls, and other industrial
products and services to customers in four business segments:
Electronics, Fire & Security, Healthcare, and Engineered
Products & Services. With 2007 revenue of US$18 billion, Tyco
employs approximately 118,000 people worldwide. In Latin
America, Tyco has presence in Argentina, Brazil, Chile, Costa
Rica, Ecuador, Honduras, and the Bahamas.
Effective June 29, 2007, Tyco International Ltd. completed the
spin-offs of Covidien and Tyco Electronics, formerly its
Healthcare and Electronics businesses, respectively, into
separate, publicly traded companies in the form of a
distribution to Tyco shareholders.
* * *
As reported in the Troubled Company Reporter on Dec. 21, 2007,
in its annual report for the year ended Sept. 28, 2007, Tyco
said that on Nov. 8, 2007, The Bank of New York delivered to the
company a notice of events of default. The notice claims that
the actions taken by the company in connection with its
separation into three public entities constitute events of
default under certain indentures.
===========
B R A Z I L
===========
ADVANCED MICRO: To Write Down US$880MM, Mostly Due to ATI Buyout
----------------------------------------------------------------
Advanced Micro Devices Inc. said it will take goodwill and
intangible asset impairment charges of approximately
US$880 million, mostly due to its 2006 acquisition of ATI
Technologies.
The charges were associated with the Handheld and DTV reporting
units which have not performed in accordance with the company's
expectations.
As a result of these impairment charges, the company will not be
required to make any current or future cash expenditures.
Restructuring Plan
During the fiscal quarter ended June 28, 2008, the company
implemented a restructuring plan to reduce its break even point.
The plan involves the termination of employees which commenced
during the second quarter of fiscal 2008 and is expected to
complete by the end of fiscal 2008.
The company expects to record a restructuring charge of
approximately US$32 million in the second quarter of 2008. A
part of this US$32 million charge is related to employee
severance, and a majority of this severance was paid by the
company during the second quarter of 2008.
The company believes that subsequent charges related to this
restructuring plan will consist of employee severance payments.
However, the company does not expect these charges to be
material.
In addition, in the fiscal quarter ended June 28, 2008, the
company expects to incur other-than-temporary investment
impairment charges of approximately US$36 million related to the
company's short-term investments.
These charges consist of a US$24 million charge for the
company's investment in Spansion Inc., a former joint venture of
AMD and Fujitsu Ltd., and a US$12 million charge related to the
company's holdings in Auction Rate Securities.
Also, during the fiscal quarter ended June 28, 2008, the company
expects to recognize a gain in connection with sales of certain
200mm wafer fabrication tools which the company expects will
have a materially favorable impact on its gross margin for the
second quarter of 2008. The company's estimate is that the
gross margin impact will be approximately US$190 million.
The Wall Street Journal related that the charges are the latest
in a series of negative financial news from AMD, whose shares
have shed two-thirds of their value in the past 12 months.
AMD's shares declined after the statement to US$4.84, down 12
cents, WSJ added.
About Advanced Micro Devices
Headquartered in Sunnyvale, California, Advanced Micro Devices
Inc. (NYSE: AMD) -- http://www.amd.com/-- provides innovative
processing solutions in the computing, graphics and consumer
electronics markets. Outside the United States, the company
has subsidiaries in Belgium, Brazil, China, Germany, Japan,
Malaysia and Bermuda.
At Dec. 29, 2007, the company's consolidated balance sheet
showed US$11.550 billion in total assets, US$8.295 billion in
total liabilities, US$265.0 million in minority interest in
consolidated subsidiaries, and US$2.990 billion in total
stockholders' equity.
* * *
As reported on Troubled Company Reporter-Latin America on
April 11, 2008, Standard & Poor's Ratings Services placed its
'B' corporate credit and senior unsecured ratings on Advanced
Micro Devices Inc. on CreditWatch with negative implications.
As reported in the Troubled Company Reporter-Latin America on
Jan. 28, 2008, Fitch downgraded these ratings on Advanced Micro
Devices Inc., including its Issuer Default Rating to 'B-' from
'B'; and its Senior unsecured debt to 'CCC'/RR6 from 'CCC+/RR6'.
The Rating Outlook remains Negative.
DELPHI CORP: GM Wants to Participate in Appaloosa Adversary Suit
----------------------------------------------------------------
General Motors Corp. seeks authority from the U.S. Bankruptcy
Court for the Southern District of New York to participate in
the adversary proceedings filed by Delphi Corp. against
Appaloosa, Management, L.P., et al. GM wants to participate in
the proceedings as a "party-in-interest."
Delphi's ties with Appaloosa, et al., soured after Delphi sought
funding of the US$2,825,000,000 of its US$6,100,000,000 exit
debt financing facility from General Motors, its primary
customer. The lenders, including GM, were ready to close April
4, but the financing agreements have been terminated after
Appaloosa, et al., pulled out from their commitment to provide
US$2,550,000,000 of equity financing to Delphi.
Michael P. Kessler, Esq., at Weil, Gotshal & Manges LLP, in New
York, tells the Court that GM wants to:
(i) appear before the Court on any matter arising in the
adversary proceedings, including hearings and chambers
conferences;
(ii) participate in settlement discussions, mediation sessions
and arbitrations regarding the Adversary Proceeding; and
(iii) participate in the discovery process, including through
the review of documents produced and attendance at
depositions.
Mr. Kessler asserts GM only seeks limited participation rights
sufficient to fully monitor the progress and status of the
adversary proceedings and to permit involvement in activities
likely to affect or overlap with the negotiation of a modified
new plan. GM clarifies it does not intend to intervene at this
time as a plaintiff in the adversary proceedings, and it does
not intend to file pleadings, argue before the court, or examine
witnesses at depositions, hearings, or trial.
Delphi and the statutory committees appointed in the Chapter 11
cases -- the Official Committee of Unsecured Creditors and the
Official Committee of Equity Security Holders have reached an
agreement with regarding the terms of their intervention in the
adversary proceedings, and they will have significantly more
information into the potential value of the litigation if GM is
not permitted to monitor the Adversary Proceeding, Mr. Kessler
points out. GM cannot meaningfully negotiate over the value and
disposition of any proceeds of this litigation if it is not
afforded the opportunity to participate, including by attending
depositions and reviewing documents produced by the Plan
Investors. Such an advantage to the other major constituents
would be unfair to GM given its role as one of the major
constituents in the case, Mr. Kessler adds.
Mr. Kessler notes that the participation rights now sought by GM
are the same as those GM has enjoyed in other major contested
matters in the Chapter 11 cases. The relief now sought, then,
is not only justified by GM's unique role in Delphi's
reorganization, but is consistent with past practice in these
cases, Mr. Kessler contends.
GM Involved in New Plan Talks with
Delphi and Creditors Committee
GM says that it is a major constituent of a new plan under
negotiation together with Delphi and the Official Committee of
Unsecured Creditors. GM has been asked to provide major support
through financial contributions, subsidies and loans, Mr.
Kessler discloses.
GM adds its interest in participating in the adversary
proceedings is in the litigation's representation of a
significant asset of the Debtors' estates. The terms and
conditions of a modified or new plan will depend, in part, on
the value ascribed to the litigation and the disposition of any
recoveries from the litigation, Mr. Kessler avers.
Delphi Opposes Dismissal
In light of the Plan Investors' request for dismissal of the
adversary proceedings, Delphi is defiant, saying that the
defendants engaged in serious misconducts that have caused
devastating harm to the company and its many stakeholders, and
pleaded two theories of fraud against Appaloosa Management,
L.P., for:
(i) fraudulently inducing Delphi to enter in the December
2007, Equity Purchase & Commitment Agreement by having its
president, David Tepper, represent that AMLP had committed
a minimum of US$1,100,000,000 of its own capital when in
fact, AMLP intended to invest nothing if it did not like
the economics of the deal at closing, even if Delphi
complied with the conditions precedent to the defendants'
commitments, and
(ii) fraudulently concealing its plans efforts, before and
after confirmation of the Joint Plan of Reorganization of
Delphi, to avoid a closing and avoid consummation of the
Plan.
The Official Committees join in Delphi in its opposition to the
Motions for Dismissal, asserting they too have been injured by
the Plan Investors' acts.
Representing Delphi, Edward A. Friedman, Esq., at Friedman
Kaplan Seiler & Adelman LLP, tells the Court that the Plan
Investorshave conspired to avoid their commitments to Delphi and
ultimately renounced any intention to perform, despite their
contractual commitments to provide the equity financing
necessary for the consummation of the Reorganization Plan, and
despite their repeated assurances to Delphi and to the Court
that they would honor their commitments.
Mr. Friedman says, the Plan Investors' misconduct resulted in
Delphi's remaining in bankruptcy, despite obtaining confirmation
of the Plan in January, and obtaining commitments for its
US$6,100,000,000 debt financing in April.
"Now defendants argue that, even if they behaved exactly as
Delphi alleges, the Court is powerless to enforce the parties'
agreements," Mr. Friedman asserts. The Defendants, he says, are
arguing that there is no remedy for their breach of contract if
they did not do it at will, but even if they did so willfully,
only limited monetary damages will be imposed on them, contrary
to what the parties agreed and contrary to what the law
provides.
The remedies available to redress Delphi's injury, Mr. Friedman
asserts, turn on disputed facts, which cannot be determined on
the face of the pleadings. The defendants' arguments are based
on four major premises, which he discusses one by one:
(i) The specific performance of a contract to provide money is
always precluded as a matter of law.
This rule does not exist, Mr. Friedman says. As in most
cases, the injured party can obtain substitute performance
elsewhere, then sue to recover any increased costs. In
the case of Delphi, substitute performance is not
available. The plaintiff cannot obtain the money elsewhere
on similar terms and the complex nature of the transaction
makes damages difficult to measure, and this must be
resolved on a full record, not on the pleadings.
Delphi's inability to find another US$2.55 billion equity
package makes substitute performance impossible. It also
makes the calculation of Delphi's damages very difficult,
Mr. Friedman relates. The Court would have to weigh the
accuracy and credibility of competing fact and expert
witnesses trying to estimate the difference in value
between the equity package promised by the defendants and
what a hypothetical alternative investor might
theoretically charge for a similar package. The Court
would also need to weigh the injury caused by all the
other changes to the Plan a hypothetical substitute
investment might require, Mr. Friedman adds.
(ii) Even if the Court could order specific performance, it may
not do so because the parties' agreements forbid it.
This contention raises a question of fact because even if
the agreements could be read, under New York Law, any
contractual limitation on the remedies available for
breach is unenforceable, as a matter of public policy, if
the breaching party is guilty of willful misconduct or has
acted with reckless indifference to the damage it is
inflicting, Mr. Friedman notes.
He asserts the Defendants' commitments were an integral
part of the plan to consummate one of the largest public
company reorganizations in history. The reorganized
Delphi represents a a unique asset of incalculable value
to its employees, its community, and its many other
stakeholders. The proposed transaction involves a unique
and irreplaceable asset, Mr. Friedman avers.
(iii) Section 12(d) of the EPCA permitted termination of the
contract without cause as of April 5, 2008, if the
transaction had not closed by April 4.
It did not close by that date, so the defendants argue
that they had an unequivocal right to walk away, making
specific performance impossible whatever the merits if
Delphi's claims, Mr. Friedman adds. It is settled law,
however, that a party cannot take advantage of its own
wrongdoing in that fashion. If, as Delphi alleges, the
sole reason the transaction did not close on April 4 is
that the Defendants improperly terminated the contract on
that date, they cannot claim the benefit of a provision
that would have had no application but for their own
misconduct, Mr. Friedman contends.
Even if the EPCA and the Commitment Letter Agreements
could be read to preclude specific performance, that
preclusion would be unenforceable as a matter of public
policy. It is well-established under New York law that,
where a defendant has breached a contract in bad faith or
through willful misconduct, a limitation--liability
provision will not be enforced and will not preclude any
legal or equitable remedy otherwise appropriate. Public
policy precludes enforcement of a contractual limitation
on liability or remedy where the defendant has acted in
bad faith, Mr. Friedman explains.
(iv) The Defendants argue that the Court need not reach the
question of remedy because they did not breach their
agreements at all. They contended that Delphi failed go
satisfy various conditions precedent, excusing
their performance.
Mr. Friedman laments the Defendants are free to try to
make the case, which is without merit in any event, but
not on the pleadings. It is beyond question that Delphi
pleaded "generally that all conditions precedent had
occurred or been performed,' and nothing more is required,
Mr. Friedman tells the Court.
A defendant that fails to plead non-compliance with a
particular condition waives its right to invoke that
condition in its defense. At this point, the Defendants
have not yet pleaded, so any alleged failure of a
condition is not yet an issue. The Defendants' suggestion
that the complaint should be dismissed because Delphi did
not anticipate which conditions the defendants might argue
were unsatisfied, and address those defenses preemptively,
is without merit, Mr. Friedman maintains .
In deciding a motion to dismiss, a court will accept the
complaint as true and draw all reasonable inference in the
plaintiff's favor. A defendant cannot obtain dismissal of an
adequately pleaded complaint with the argument "that the
plaintiff will not fail to find evidentiary support for his
allegations, because the issue is not whether the plaintiff
ultimately will prevail but whether the plaintiff is entitled to
offer evidence to support its claims, Mr. Friedman states.
Delphi asks the court to deny the Motions to Dismiss, asserting
that hearing the case will lead to the discovery and trial for
of Delphi's claims and the determination of the appropriate
remedy.
Parties Stipulate on Confidential Information
Delphi, the Committees, and the Plan Investors anticipate that
the documents provided in the adversary proceedings may involve
information that are sensitive and confidential in nature.
Accordingly, they agree to these terms:
* Discovery Material that contains information that is (i) not
generally available to the public and (ii) sensitive
commercial, financial, or business information, sensitive
personal information, trade secrets, or other confidential
research, development, or commercial information the public
disclosure of which may adversely affect the producing party
may be designated as "Confidential."
* Discovery Material that poses a reasonable risk of
competitive or other harm to the Producing Party or non-
party, maybe classified as "Highly Confidential."
* Confidential Discovery Material will only be available to
the Court, the Court employees directly involved in the
proceeding, counsel to the Parties in the Chapter 11 cases,
and third-party contractors working on the data in
connection with the action, and any joining party required
to provide assistance in the conduct of these cases.
* "Highly Confidential" Discovery Materials will be available
only to the Court, the Court employees directly involved in
the proceedings, counsel to the parties in these cases and
their staff, and third party contractors engaged in working
on the data in connection with the action. Consultants,
advisors, investigators, or experts employed by counsel in
connection with the Chapter 11 cases may be authorized
access to "Highly Confidential' Discovery Materials when
necessary, provided they sign a confidentiality agreement.
* A party who desires to provide "Highly Confidential'
materials to persons not authorized in the Stipulation will
have to make an appropriate application to the Court.
* The unintentional disclosure by a producing party of
unmarked Confidential Discovery Materials will not be deemed
as a waiver of the party's claim of confidentiality, and the
unintentional production of any privileged material by the
producing Party or a third party will not be deemed to be a
waiver or impairment of any claim of privilege.
* To the extent that Confidential Discovery Material is
proposed to be filed or is filed with the Court, that
Confidential Discovery Material, any portion of a pleading,
motion or memorandum that discloses the Confidential
Discovery Material will be filed under seal, together with a
motion to seal the documents.
About GM
Based in Detroit, Michigan, General Motors Corp. (NYSE:
GM) -- http://www.gm.com/-- was founded in 1908. GM employs
about 266,000 people around the world and manufactures cars and
trucks in 35 countries. In 2007, nearly 9.37 million GM cars
and trucks were sold globally under the following brands: Buick,
Cadillac, Chevrolet, GMC, GM Daewoo, Holden, HUMMER, Opel,
Pontiac, Saab, Saturn, Vauxhall and Wuling. GM's OnStar
subsidiary is the industry leader in vehicle safety, security
and information services.
At March 31, 2008, GM's balance sheet showed total assets of
US$145,741,000,000 and total debts of US$186,784,000,000,
resulting in a stockholders' deficit of US$41,043,000,000.
Deficit, at Dec. 31, 2007, and March 31, 2007, was
US$37,094,000,000 and US$4,558,000,000, respectively.
About Delphi
Based in Troy, Michigan, Delphi Corporation (PINKSHEETS: DPHIQ)
-- http://www.delphi.com/-- is the single supplier of vehicle
electronics, transportation components, integrated systems and
modules, and other electronic technology. The company's
technology and products are present in more than 75 million
vehicles on the road worldwide. Delphi has regional
headquarters in Japan, Brazil and France.
The company filed for Chapter 11 protection on Oct. 8, 2005
(Bankr. S.D.N.Y. Lead Case No. 05-44481). John Wm. Butler Jr.,
Esq., John K. Lyons, Esq., and Ron E. Meisler, Esq., at Skadden,
Arps, Slate, Meagher & Flom LLP, represent the Debtors in their
restructuring efforts. Robert J. Rosenberg, Esq., Mitchell A.
Seider, Esq., and Mark A. Broude, Esq., at Latham & Watkins LLP,
represent the Official Committee of Unsecured Creditors. As of
March 31, 2007, the Debtors' balance sheet showed
US$11,446,000,000 in total assets and US$23,851,000,000 in total
debts.
The Court approved Delphi's First Amended Joint Disclosure
Statement and related solicitation procedures for the
solicitation of votes on the First Amended Plan on Dec. 20,
2007. The Court confirmed the Debtors' First Amended Plan on
Jan. 25, 2008. The Plan has not been consummated after a group
led by Appaloosa Management, L.P., backed out from their
proposal to provide US$2,550,000,000 in equity financing to
Delphi.
(Delphi Bankruptcy News, Issue No. 136; Bankruptcy Creditors'
Service Inc., http://bankrupt.com/newsstand/or 215/945-7000)
DELPHI CORP: Retains W.Y. Campbell to Coordinate Brake Biz Sale
---------------------------------------------------------------
Delphi Corp. disclosed the retention of W.Y. Campbell & Company
to explore sale opportunities for Delphi's Brake business.
Delphi's Brake business has estimated 2008 revenue of
US$295 million and provides fully integrated brake system
solutions to customers as well as engineered components tailored
to customer requirements.
Delphi's Brake business has more than 1,000 employees globally
throughout three manufacturing and assembly facilities located
in Juarez, Mexico and Shanghai, China. The business also has
technical centers in Shanghai, China; Brighton, Michigan; and
Dayton, Ohio.
Parties interested in Delphi's Brake business may contact:
Cliff Roesler
Managing Director
W.Y. Campbell & Company
Tel: (313) 496-9000
E-mail: croesler@wycampbell.com
Based in Troy, Michigan, Delphi Corporation (PINKSHEETS: DPHIQ)
-- http://www.delphi.com/-- is the single supplier of vehicle
electronics, transportation components, integrated systems and
modules, and other electronic technology. The company's
technology and products are present in more than 75 million
vehicles on the road worldwide. Delphi has regional
headquarters in Japan, Brazil and France.
The company filed for Chapter 11 protection on Oct. 8, 2005
(Bankr. S.D.N.Y. Lead Case No. 05-44481). John Wm. Butler Jr.,
Esq., John K. Lyons, Esq., and Ron E. Meisler, Esq., at Skadden,
Arps, Slate, Meagher & Flom LLP, represent the Debtors in their
restructuring efforts. Robert J. Rosenberg, Esq., Mitchell A.
Seider, Esq., and Mark A. Broude, Esq., at Latham & Watkins LLP,
represent the Official Committee of Unsecured Creditors. As of
March 31, 2007, the Debtors' balance sheet showed
US$11,446,000,000 in total assets and US$23,851,000,000 in total
debts.
The Court approved Delphi's First Amended Joint Disclosure
Statement and related solicitation procedures for the
solicitation of votes on the First Amended Plan on Dec. 20,
2007. The Court confirmed the Debtors' First Amended Plan on
Jan. 25, 2008. The Plan has not been consummated after a group
led by Appaloosa Management, L.P., backed out from their
proposal to provide US$2,550,000,000 in equity financing to
Delphi.
(Delphi Bankruptcy News, Issue No. 136; Bankruptcy Creditors'
Service Inc., http://bankrupt.com/newsstand/or 215/945-7000)
DELPHI CORP: Wants to Modify 19.1% Stake in Ener1 Venture
---------------------------------------------------------
Delphi Corp. and its debtor-affiliates ask the U.S. Bankruptcy
Court for the Southern District of New York to allow Debtor
Delphi Automotive Systems LLC to enter into a Restructuring and
Exchange Agreement with Ener1, Inc., for the restructuring and
exchange of DAS LLC's ownership interests in EnerDel, Inc.,
pursuant to Section 363 of the Bankruptcy Code and Rules 2004
and 6004(a) of the Federal Rules of Bankruptcy Procedure.
In 2004, DAS LLC and Ener1 Inc. formed a joint venture, EnerDel,
to design and manufacture lithium-ion battery technologies and
products. The goal of the joint venture was to create an
alternative energy source and sell and distribute its products
globally. EnerDel primarily focuses its lithium-ion batteries
business in the automotive, power tool, military, consumer
appliance, and personal mobility markets. Ener1 contributed
capital and intellectual property to the joint venture, and in
exchange was granted 80.5% of EnerDel's common stock.
John Wm. Butler, Jr., Esq., at Skadden, Arps, Slate, Meagher &
Flom LLP, in Chicago, Illinois, tells the Court that DAS LLC
contributed proportionally a smaller amount of capital and
intellectual property to the joint venture and in exchange was
granted 19.5% of EnerDel's common stock. DAS LLC was also
granted one of six seats on the EnerDel board of directors,
8,000 shares of EnerDel preferred stock and warrants to acquire
750,000 shares of Ener1 common stock with a strike price of US$7
per share, to expire on Oct. 20, 2011.
The low-cost, high-performance lithium-ion batteries that
EnerDel develops are designed for plug-in hybrid and extended-
range electric vehicles. This niche is becoming increasingly
competitive, Mr. Butler avers. Nevertheless, EnerDel believes
it has a feasible business plan for the development of the
lithium-ion batteries, and the global market for alternate fuel
sources is in the billions of dollars.
Mr. Butler tells the Hon. Robert Drain that the Restructuring
and Exchange Agreement which is aimed at restructuring the
ownership interests of DAS LLC in EnerDel to a more liquid
asset, provides, among others, that:
(a) DAS LLC would transfer 19.5% Common Stock interest and
its preferred Stock in EnerDel to its joint partner,
Ener1, in exchange for (i) 2,086,000 shares of the Ener1
common stock valued at approximately US$19,500,000, (ii)
US$8,000,000 cash, and (iii) revised warrants to acquire
Ener1 common stock at an exercise price of $5.25 per
share;
(b) the non-compete provision in the Formation Agreement,
which limits the options of DAS LLC and Ener1 to engage in
operations to compete with EnerDel will remain in effect
until October 20, 2010;
(c) EnerDel would continue to license intellectual property to
DAS LLC for the use of, manufacture, and sale of products
other than lithium batteries;
(d) the Restructuring and Exchange Agreement could be
terminated prior to the closing upon (1) mutual agreement
by the parties, (2) termination by either party, provided
that the terminating party is not in material breach of
its obligations under the Restructuring and Exchange
Agreement, if the closing does not occur on or five
business days following the date an order approving the
motion is no longer subject to a stay or injunction, (3)
termination by either party if the other party materially
breached its representations and warranties and the breach
is not cured within 10 business days of written notice of
the breaches, and (4) termination by either party, if the
Court has not entered an order approving the motion on or
before Sept. 2, 2008.
The Agreement is a product of both parties' good-faith and
arm's-length bargaining positions, Mr. Butler tells the Court.
The transactions and instruments contemplated by the Agreement,
he says, satisfies the requirements of Section 363 of the
Bankruptcy Code.
The Court will convene a hearing on July 31, 2008, at 10:00
a.m., to consider approval of the Debtors' request. Objections
are due July 24, 2008 at 4:00 p.m.
Based in Troy, Michigan, Delphi Corporation (PINKSHEETS: DPHIQ)
-- http://www.delphi.com/-- is the single supplier of vehicle
electronics, transportation components, integrated systems and
modules, and other electronic technology. The company's
technology and products are present in more than 75 million
vehicles on the road worldwide. Delphi has regional
headquarters in Japan, Brazil and France.
The company filed for Chapter 11 protection on Oct. 8, 2005
(Bankr. S.D.N.Y. Lead Case No. 05-44481). John Wm. Butler Jr.,
Esq., John K. Lyons, Esq., and Ron E. Meisler, Esq., at Skadden,
Arps, Slate, Meagher & Flom LLP, represent the Debtors in their
restructuring efforts. Robert J. Rosenberg, Esq., Mitchell A.
Seider, Esq., and Mark A. Broude, Esq., at Latham & Watkins LLP,
represent the Official Committee of Unsecured Creditors. As of
March 31, 2007, the Debtors' balance sheet showed
US$11,446,000,000 in total assets and US$23,851,000,000 in total
debts.
The Court approved Delphi's First Amended Joint Disclosure
Statement and related solicitation procedures for the
solicitation of votes on the First Amended Plan on Dec. 20,
2007. The Court confirmed the Debtors' First Amended Plan on
Jan. 25, 2008. The Plan has not been consummated after a group
led by Appaloosa Management, L.P., backed out from their
proposal to provide US$2,550,000,000 in equity financing to
Delphi.
(Delphi Bankruptcy News, Issue No. 136; Bankruptcy Creditors'
Service Inc., http://bankrupt.com/newsstand/or 215/945-7000)
GENERAL MOTORS: Wants to Participate in Delphi-Appaloosa Lawsuit
----------------------------------------------------------------
General Motors Corp. seeks authority from the U.S. Bankruptcy
Court for the Southern District of New York to participate in
the adversary proceedings filed by Delphi Corp. against
Appaloosa, Management, L.P., et al. GM wants to participate in
the proceedings as a "party-in-interest."
As previously reported, Delphi's ties with Appaloosa, et al.,
soured after Delphi sought funding of the US$2,825,000,000 of
its US$6,100,000,000 exit debt financing facility from General
Motors, its primary customer. The lenders, including GM, were
ready to close April 4, but the financing agreements have been
terminated after Appaloosa, et al., pulled out from their
commitment to provide US$2,550,000,000 of equity financing to
Delphi.
Michael P. Kessler, Esq., at Weil, Gotshal & Manges LLP, in New
York, tells the Court that GM wants to:
(i) appear before the Court on any matter arising in the
adversary proceedings, including hearings and chambers
conferences;
(ii) participate in settlement discussions, mediation sessions
and arbitrations regarding the Adversary Proceeding; and
(iii) participate in the discovery process, including through
the review of documents produced and attendance at
depositions.
Mr. Kessler asserts GM only seeks limited participation rights
sufficient to fully monitor the progress and status of the
adversary proceedings and to permit involvement in activities
likely to affect or overlap with the negotiation of a modified
new plan. GM clarifies it does not intend to intervene at this
time as a plaintiff in the adversary proceedings, and it does
not intend to file pleadings, argue before the court, or examine
witnesses at depositions, hearings, or trial.
Delphi and the statutory committees appointed in the Chapter 11
cases -- the Official Committee of Unsecured Creditors and the
Official Committee of Equity Security Holders have reached an
agreement with regarding the terms of their intervention in the
adversary proceedings, and they will have significantly more
information into the potential value of the litigation if GM is
not permitted to monitor the Adversary Proceeding, Mr. Kessler
points out. GM cannot meaningfully negotiate over the value and
disposition of any proceeds of this litigation if it is not
afforded the opportunity to participate, including by attending
depositions and reviewing documents produced by the Plan
Investors. Such an advantage to the other major constituents
would be unfair to GM given its role as one of the major
constituents in the case, Mr. Kessler adds.
Mr. Kessler notes that the participation rights now sought by GM
are the same as those GM has enjoyed in other major contested
matters in the Chapter 11 cases. The relief now sought, then,
is not only justified by GM's unique role in Delphi's
reorganization, but is consistent with past practice in these
cases, Mr. Kessler contends.
GM Involved in New Plan Talks with
Delphi and Creditors Committee
GM says that it is a major constituent of a new plan under
negotiation together with Delphi and the Official Committee of
Unsecured Creditors. GM has been asked to provide major support
through financial contributions, subsidies and loans, Mr.
Kessler discloses.
GM adds its interest in participating in the adversary
proceedings is in the litigation's representation of a
significant asset of the Debtors' estates. The terms and
conditions of a modified or new plan will depend, in part, on
the value ascribed to the litigation and the disposition of any
recoveries from the litigation, Mr. Kessler avers.
Delphi Opposes Dismissal
In light of the Plan Investors' request for dismissal of the
adversary proceedings, Delphi is defiant, saying that the
defendants engaged in serious misconducts that have caused
devastating harm to the company and its many stakeholders, and
pleaded two theories of fraud against Appaloosa Management,
L.P., for:
(i) fraudulently inducing Delphi to enter in the December
2007, Equity Purchase & Commitment Agreement by having
its president, David Tepper, represent that AMLP had
committed a minimum of US$1,100,000,000 of its own
capital when in fact, AMLP intended to invest nothing if
it did not like the economics of the deal at closing,
even if Delphi complied with the conditions precedent to
the defendants' commitments, and
(ii) fraudulently concealing its plans efforts, before and
after confirmation of the Joint Plan of Reorganization of
Delphi, to avoid a closing and avoid consummation of the
Plan.
The Official Committees join in Delphi in its opposition to the
Motions for Dismissal, asserting they too have been injured by
the Plan Investors' acts.
Representing Delphi, Edward A. Friedman, Esq., at Friedman
Kaplan Seiler & Adelman LLP, tells the Court that the Plan
Investorshave conspired to avoid their commitments to Delphi and
ultimately renounced any intention to perform, despite their
contractual commitments to provide the equity financing
necessary for the consummation of the Reorganization Plan, and
despite their repeated assurances to Delphi and to the Court
that they would honor their commitments.
Mr. Friedman says, the Plan Investors' misconduct resulted in
Delphi's remaining in bankruptcy, despite obtaining confirmation
of the Plan in January, and obtaining commitments for its
US$6,100,000,000 debt financing in April.
"Now defendants argue that, even if they behaved exactly as
Delphi alleges, the Court is powerless to enforce the parties'
agreements," Mr. Friedman asserts. The Defendants, he says, are
arguing that there is no remedy for their breach of contract if
they did not do it at will, but even if they did so willfully,
only limited monetary damages will be imposed on them, contrary
to what the parties agreed and contrary to what the law
provides.
The remedies available to redress Delphi's injury, Mr. Friedman
asserts, turn on disputed facts, which cannot be determined on
the face of the pleadings. The defendants' arguments are based
on four major premises, which he discusses one by one:
(i) The specific performance of a contract to provide money is
always precluded as a matter of law.
This rule does not exist, Mr. Friedman says. As in most
cases, the injured party can obtain substitute performance
elsewhere, then sue to recover any increased costs. In
the case of Delphi, substitute performance is not
available. The plaintiff cannot obtain the money
elsewhere on similar terms and the complex nature of the
transaction makes damages difficult to measure, and this
must be resolved on a full record, not on the pleadings.
Delphi's inability to find another US$2.55 billion equity
package makes substitute performance impossible. It also
makes the calculation of Delphi's damages very difficult,
Mr. Friedman relates. The Court would have to weigh the
accuracy and credibility of competing fact and expert
witnesses trying to estimate the difference in value
between the equity package promised by the defendants and
what a hypothetical alternative investor might
theoretically charge for a similar package. The Court
would also need to weigh the injury caused by all the
other changes to the Plan a hypothetical substitute
investment might require, Mr. Friedman adds.
(ii) Even if the Court could order specific performance, it may
not do so because the parties' agreements forbid it.
This contention raises a question of fact because even if
the agreements could be read, under New York Law, any
contractual limitation on the remedies available for
breach is unenforceable, as a matter of public policy, if
the breaching party is guilty of willful misconduct or has
acted with reckless indifference to the damage it is
inflicting, Mr. Friedman notes.
He asserts the Defendants' commitments were an integral
part of the plan to consummate one of the largest public
company reorganizations in history. The reorganized
Delphi represents a a unique asset of incalculable value
to its employees, its community, and its many other
stakeholders. The proposed transaction involves a unique
and irreplaceable asset, Mr. Friedman avers.
(iii) Section 12(d) of the EPCA permitted termination of the
contract without cause as of April 5, 2008, if the
transaction had not closed by April 4.
It did not close by that date, so the defendants argue
that they had an unequivocal right to walk away, making
specific performance impossible whatever the merits if
Delphi's claims, Mr. Friedman adds. It is settled law,
however, that a party cannot take advantage of its own
wrongdoing in that fashion. If, as Delphi alleges, the
sole reason the transaction did not close on April 4 is
that the Defendants improperly terminated the contract on
that date, they cannot claim the benefit of a provision
that would have had no application but for their own
misconduct, Mr. Friedman contends.
Even if the EPCA and the Commitment Letter Agreements
could be read to preclude specific performance, that
preclusion would be unenforceable as a matter of public
policy. It is well-established under New York law that,
where a defendant has breached a contract in bad faith or
through willful misconduct, a limitation--liability
provision will not be enforced and will not preclude any
legal or equitable remedy otherwise appropriate. Public
policy precludes enforcement of a contractual limitation
on liability or remedy where the defendant has acted in
bad faith, Mr. Friedman explains.
(iv) The Defendants argue that the Court need not reach the
question of remedy because they did not breach their
agreements at all. They contended that Delphi failed go
satisfy various conditions precedent, excusing
their performance.
Mr. Friedman laments the Defendants are free to try to
make the case, which is without merit in any event, but
not on the pleadings. It is beyond question that Delphi
pleaded "generally that all conditions precedent had
occurred or been performed,' and nothing more is required,
Mr. Friedman tells the Court.
A defendant that fails to plead non-compliance with a
particular condition waives its right to invoke that
condition in its defense. At this point, the Defendants
have not yet pleaded, so any alleged failure of a
condition is not yet an issue. The Defendants' suggestion
that the complaint should be dismissed because Delphi did
not anticipate which conditions the defendants might argue
were unsatisfied, and address those defenses preemptively,
is without merit, Mr. Friedman maintains .
In deciding a motion to dismiss, a court will accept the
complaint as true and draw all reasonable inference in the
plaintiff's favor. A defendant cannot obtain dismissal of an
adequately pleaded complaint with the argument "that the
plaintiff will not fail to find evidentiary support for his
allegations, because the issue is not whether the plaintiff
ultimately will prevail but whether the plaintiff is entitled to
offer evidence to support its claims, Mr. Friedman states.
Delphi asks the court to deny the Motions to Dismiss, asserting
that hearing the case will lead to the discovery and trial for
of Delphi's claims and the determination of the appropriate
remedy.
Parties Stipulate on Confidential Information
Delphi, the Committees, and the Plan Investors anticipate that
the documents provided in the adversary proceedings may involve
information that are sensitive and confidential in nature.
Accordingly, they agree to these terms:
* Discovery Material that contains information that is (i) not
generally available to the public and (ii) sensitive
commercial, financial, or business information, sensitive
personal information, trade secrets, or other confidential
research, development, or commercial information the public
disclosure of which may adversely affect the producing party
may be designated as "Confidential."
* Discovery Material that poses a reasonable risk of
competitive or other harm to the Producing Party or non-
party, maybe classified as "Highly Confidential."
* Confidential Discovery Material will only be available to
the Court, the Court employees directly involved in the
proceeding, counsel to the Parties in the Chapter 11 cases,
and third-party contractors working on the data in
connection with the action, and any joining party required
to provide assistance in the conduct of these cases.
* "Highly Confidential" Discovery Materials will be available
only to the Court, the Court employees directly involved in
the proceedings, counsel to the parties in these cases and
their staff, and third party contractors engaged in working
on the data in connection with the action. Consultants,
advisors, investigators, or experts employed by counsel in
connection with the Chapter 11 cases may be authorized
access to "Highly Confidential' Discovery Materials when
necessary, provided they sign a confidentiality agreement.
* A party who desires to provide "Highly Confidential'
materials to persons not authorized in the Stipulation will
have to make an appropriate application to the Court.
* The unintentional disclosure by a producing party of
unmarked Confidential Discovery Materials will not be deemed
as a waiver of the party's claim of confidentiality, and the
unintentional production of any privileged material by the
producing Party or a third party will not be deemed to be a
waiver or impairment of any claim of privilege.
* To the extent that Confidential Discovery Material is
proposed to be filed or is filed with the Court, that
Confidential Discovery Material, any portion of a pleading,
motion or memorandum that discloses the Confidential
Discovery Material will be filed under seal, together with a
motion to seal the documents.
About Delphi
Based in Troy, Michigan, Delphi Corporation (PINKSHEETS: DPHIQ)
-- http://www.delphi.com/-- is the single supplier of vehicle
electronics, transportation components, integrated systems and
modules, and other electronic technology. The company's
technology and products are present in more than 75 million
vehicles on the road worldwide. Delphi has regional
headquarters in Japan, Brazil and France.
The company filed for Chapter 11 protection on Oct. 8, 2005
(Bankr. S.D.N.Y. Lead Case No. 05-44481). John Wm. Butler Jr.,
Esq., John K. Lyons, Esq., and Ron E. Meisler, Esq., at Skadden,
Arps, Slate, Meagher & Flom LLP, represent the Debtors in their
restructuring efforts. Robert J. Rosenberg, Esq., Mitchell A.
Seider, Esq., and Mark A. Broude, Esq., at Latham & Watkins LLP,
represent the Official Committee of Unsecured Creditors. As of
March 31, 2007, the Debtors' balance sheet showed
US$11,446,000,000 in total assets and US$23,851,000,000 in total
debts.
The Court approved Delphi's First Amended Joint Disclosure
Statement and related solicitation procedures for the
solicitation of votes on the First Amended Plan on Dec. 20,
2007. The Court confirmed the Debtors' First Amended Plan on
Jan. 25, 2008. The Plan has not been consummated after a group
led by Appaloosa Management, L.P., backed out from their
proposal to provide US$2,550,000,000 in equity financing to
Delphi.
(Delphi Bankruptcy News, Issue No. 136; Bankruptcy Creditors'
Service Inc., http://bankrupt.com/newsstand/or 215/945-7000)
About General Motors
Based in Detroit, Michigan, General Motors Corp. (NYSE:
GM) -- http://www.gm.com/-- was founded in 1908. GM employs
about 266,000 people around the world and manufactures cars and
trucks in 35 countries, including the United Kingdom, Germany,
France, Russia, Brazil and India. In 2007, nearly 9.37 million
GM cars and trucks were sold globally under the following
brands: Buick, Cadillac, Chevrolet, GMC, GM Daewoo, Holden,
HUMMER, Opel, Pontiac, Saab, Saturn, Vauxhall and Wuling. GM's
OnStar subsidiary is the industry leader in vehicle safety,
security and information services.
At March 31, 2008, GM's balance sheet showed total assets of
US$145,741,000,000 and total debts of US$186,784,000,000,
resulting in a stockholders' deficit of US$41,043,000,000.
Deficit, at Dec. 31, 2007, and March 31, 2007, was
US$37,094,000,000 and US$4,558,000,000, respectively.
* * *
As reported in the Troubled Company Reporter-Latin America
June 30, 2008, Fitch downgraded the Issuer Default Rating of
General Motors Corporation to 'B-' from 'B', and assigned a
Rating Outlook Negative. The downgrade results from weak
economic conditions, the dramatic shift to fuel efficient
vehicles and the resulting cash drains at GM that are expected
to persist at lest through 2009. Fitch expects that cash drains
in 2008 will exceed US$10 billion, and that new financing
activity will be required over the next 18 months to keep GM's
cash position above the minimum comfort level of US$12 - US$14
billion.
As reported in the Troubled Company Reporter-Latin America on
June 25, 2008, DBRS has placed the ratings of General Motors
Corporation and General Motors of Canada Limited Under Review
with Negative Implications. The rating action reflects the
structural deterioration of the company's operations in North
America brought on by high oil prices and a slowing U.S.
economy.
Standard & Poor's Ratings Services is placing its corporate
credit ratings on the three U.S. automakers, General Motors
Corp., Ford Motor Co., and Chrysler LLC, on CreditWatch with
negative implications, citing the need to evaluate the financial
damage being inflicted by deteriorating U.S. industry
conditions--largely as a result of high gasoline prices.
Included in the CreditWatch placement are the finance units Ford
Motor Credit Co. and DaimlerChrysler Financial Services Americas
LLC, as well as GM's 49%-owned finance affiliate GMAC LLC.
==========================
C A Y M A N I S L A N D S
==========================
ACUSA LIMITED: Deadline for Proofs of Claim Filing Is July 23
-------------------------------------------------------------
Acusa Limited's creditors have until July 23, 2008, to prove
their claims to Buchanan Limited, the company's liquidator, or
be excluded from receiving any distribution or payment.
In their proofs of claim, creditors must indicate their full
names, addresses, the full particulars of their debts or claims,
and the names and addresses of their lawyers, if any.
Acusa's shareholders decided on June 12, 2008, to place the
company into voluntary liquidation under The Companies Law (2004
Revision) of the Cayman Islands.
The liquidator can be reached at:
Buchanan Limited
P.O. Box 1170
Grand Cayman, Cayman Islands
Contact for inquiries:
Francine Jennings
Telephone: (345) 949-0355
Fax: (345) 949-0360
BELMONT PARK: Proofs of Claim Filing Is Until July 23
-----------------------------------------------------
Belmont Park Ltd.'s creditors have until July 23, 2008, to prove
their claims to Buchanan Limited, the company's liquidator, or
be excluded from receiving any distribution or payment.
In their proofs of claim, creditors must indicate their full
names, addresses, the full particulars of their debts or claims,
and the names and addresses of their lawyers, if any.
Belmont Park's shareholders decided on June 12, 2008, to place
the company into voluntary liquidation under The Companies Law
(2004 Revision) of the Cayman Islands.
The liquidator can be reached at:
Buchanan Limited
P.O. Box 1170
Grand Cayman, Cayman Islands
Contact for inquiries:
Francine Jennings
Telephone: (345) 949-0355
Fax: (345) 949-0360
CABLE & WIRELESS: CEO's Departure May be Due to Restructuring
-------------------------------------------------------------
Cayman Net News reports that the restructuring of Cable &
Wireless Plc's Caribbean operations may be among the main
reasons for Tim Adam's resignation as the firm's Chief Executive
officer.
As reported in the Troubled Company Reporter-Latin America on
July 10, 2008, Mr. Adam will leave his CEO post at Cable &
Wireless' Cayman operations to take on a part-time role in the
firm. Mr. Adam will remain as CEO until the end of September to
allow for a smooth transition.
Cayman Net relates that a source familiar with Cable & Wireless
said, "It has happened before, but the word on the street is
that [Cable & Wireless] is going through a massive
restructuring, but what is new is the depth of the activity, the
commitment to the restructuring."
Cable & Wireless' officials wanted to rationalize a structure
that supported "often-redundant operations" across the
Caribbean, Cayman Net says, citing the source. "The management
team don't want 16 operations across the Caribbean, 16
management departments and 16 technical departments, etc. No
one before has had the strength to [restructure] this, though,"
the source added.
"I've been with the company for 35 years and been in this
position for 10 years. It's highly unusual for someone to stay
this length of time. The company is changing and it's the ideal
time for a new generation of leadership, and to show we have
confidence in them," Cayman Net quoted Mr. Adam.
Headquartered in London, Cable & Wireless Plc
-- http://www.cw.com/new/-- operates through two standalone
business units -- International and Europe, Asia & U.S. The
International business unit operates integrated
telecommunications companies in 33 countries, with principal
operations in the Caribbean, Panama, Macau, Monaco and the
Channel Islands. The Europe, Asia & U.S. business units provide
enterprise and carrier solutions to the largest users of
telecoms services across the U.K., U.S., continental Europe and
Asia -- and wholesale broadband services in the U.K. The
company also has operations in India, China, the Cayman Islands
and the Middle East.
* * *
As reported in the Troubled Company Reporter-Europe on
May 26, 2008, Standard & Poor's Ratings Services has revised its
outlook on Cable & Wireless PLC to developing from stable. The
developing outlook means ratings can be raised, lowered, or
affirmed. The 'BB-' long-term and 'B' short-term corporate
credit ratings remain unchanged.
CABLE & WIRELESS: Investigates New Cellphone Tax
------------------------------------------------
Cable and Wireless Plc has examined the implementation of a new
government requirement of a four dollar tax on both prepaid and
postpaid mobile services, Caribbean Broadcasting Corp. reports.
There will be challenges with the prepaid service, Vice
President Legal, Regulatory and Corporate Affairs, Glenda
Medford noted, adding that the changes could affect cell phone
usage, the report states.
"You may not necessarily be topping up on a monthly basis so you
can have a situation where a guy buys a US$20 card, or he tops
up for US$20 and if the programming on the platform is done
correctly it may wipe out everything that he has put on and he
must put on more money again if he does not do it on a monthly
basis. So that is just some of the things we are anticipating
at this point in time," the report says, citing said Ms.
Medford.
Ms. Medford reportedly said that some adjustment usage would
lead other persons not to spend more than US$20 a month or
US$20 every two months while some persons might not see the
additional US$4.
Headquartered in London, Cable & Wireless Plc
-- http://www.cw.com/new/-- operates through two standalone
business units -- International and Europe, Asia & US. The
International business unit operates integrated
telecommunications companies in 33 countries, with principal
operations in the Caribbean, Panama, Macau, Monaco and the
Channel Islands. The Europe, Asia & U.S. business unit provides
enterprise and carrier solutions to the largest users of
telecoms services across the U.K., U.S., continental Europe and
Asia -- and wholesale broadband services in the U.K. The
company also has operations in India, China, the Cayman Islands
and the Middle East.
* * *
As reported in the Troubled Company Reporter-Europe on
May 26, 2008, Standard & Poor's Ratings Services has revised its
outlook on Cable & Wireless PLC to developing from stable. The
developing outlook means ratings can be raised, lowered, or
affirmed. The 'BB-' long-term and 'B' short-term corporate
credit ratings remain unchanged.
CARDIFF LTD: Proofs of Claim Filing Deadline Is July 23
-------------------------------------------------------
Cardiff Ltd.'s creditors have until July 23, 2008, to prove
their claims to Stuart K. Sybersma and Ian A.N. Wight, the
company's liquidators, or be excluded from receiving any
distribution or payment.
In their proofs of claim, creditors must indicate their full
names, addresses, the full particulars of their debts or claims,
and the names and addresses of their lawyers, if any.
Cardiff's shareholder decided on June 12, 2008, to place the
company into voluntary liquidation under The Companies Law (2004
Revision) of the Cayman Islands.
The liquidators can be reached at:
Stuart K. Sybersma and Ian A.N. Wight
c/o Deloitte, Cayman Islands
Attn: Mervin Solas
P.O. Box 1787 GT
Grand Cayman, Cayman Islands
Telephone: (345) 949-7500
Fax: (345) 949-8258
GREAT MEADOWS: Deadline for Proofs of Claim Filing Is July 23
-------------------------------------------------------------
Great Meadows Ltd.'s creditors have until July 23, 2008, to
prove their claims to Buchanan Limited, the company's
liquidator, or be excluded from receiving any distribution or
payment.
In their proofs of claim, creditors must indicate their full
names, addresses, the full particulars of their debts or claims,
and the names and addresses of their lawyers, if any.
Great Meadows' shareholders decided on June 12, 2008, to place
the company into voluntary liquidation under The Companies Law
(2004 Revision) of the Cayman Islands.
The liquidator can be reached at:
Buchanan Limited
P.O. Box 1170
Grand Cayman, Cayman Islands
Contact for inquiries:
Francine Jennings
Telephone: (345) 949-0355
Fax: (345) 949-0360
HONEY HARBOUR: Proofs of Claim Filing Deadline Is Until July 23
---------------------------------------------------------------
Honey Harbour Ltd.'s creditors have until July 23, 2008, to
prove their claims to John Le Masurier Germain, the company's
liquidator, or be excluded from receiving any distribution or
payment.
In their proofs of claim, creditors must indicate their full
names, addresses, the full particulars of their debts or claims,
and the names and addresses of their lawyers, if any.
Honey Harbour's shareholders decided on June 13, 2008, to place
the company into voluntary liquidation under The Companies Law
(2004 Revision) of the Cayman Islands.
The liquidator can be reached at:
John Le Masurier Germain
c/o Leumi Overseas Trust Corporation Limited
P.O. Box 510
27 Hill Street, St. Helier
Jersey JE2 4UA
Telephone: (44) 1534-702525
Fax: (44) 1534-702570
KODEX LIMITED: Deadline for Proofs of Claim Filing Is July 23
-------------------------------------------------------------
Kodex Limited's creditors have until July 23, 2008, to prove
their claims to Buchanan Limited, the company's liquidator, or
be excluded from receiving any distribution or payment.
In their proofs of claim, creditors must indicate their full
names, addresses, the full particulars of their debts or claims,
and the names and addresses of their lawyers, if any.
Kodex's shareholders decided on June 12, 2008, to place the
company into voluntary liquidation under The Companies Law (2004
Revision) of the Cayman Islands.
The liquidator can be reached at:
Buchanan Limited
P.O. Box 1170
Grand Cayman, Cayman Islands
Contact for inquiries:
Francine Jennings
Telephone: (345) 949-0355
Fax: (345) 949-0360
NICHOLAS LIMITED: Proofs of Claim Filing Deadline Is July 23
------------------------------------------------------------
Nicholas Limited's creditors have until July 23, 2008, to prove
their claims to Buchanan Limited, the company's liquidator, or
be excluded from receiving any distribution or payment.
In their proofs of claim, creditors must indicate their full
names, addresses, the full particulars of their debts or claims,
and the names and addresses of their lawyers, if any.
Nicholas' shareholders decided on June 12, 2008, to place the
company into voluntary liquidation under The Companies Law (2004
Revision) of the Cayman Islands.
The liquidator can be reached at:
Buchanan Limited
P.O. Box 1170
Grand Cayman, Cayman Islands
Contact for inquiries:
Francine Jennings
Telephone: (345) 949-0355
Fax: (345) 949-0360
PARMALAT SPA: Allocated Shares Hike Equity Capital
--------------------------------------------------
Parmalat S.p.A. reports that, following the allocation of shares
to creditors of the Parmalat Group, the subscribed and fully
paid up share capital has now been increased by
EUR142,627 to EUR1,667,640,951 from EUR1,667,498,324.
The share capital increase is due to the exercise of 107,236
warrant and to the assignation of 35,391 shares.
According to the company, about 28,746,739 shares representing
approximately 1.7% of the share capital are still in a
deposit account c/o Parmalat S.p.A., of which:
* 13,203,874 or 0.8% of the share capital, registered in the
name of individually identified commercial creditors, are
still deposited in the intermediary account of Parmalat
S.p.A. centrally managed by Monte Titoli (compared with
13,222,215 shares as at May 30, 2008); and
* 15,542,865 or 0.9% of the share capital registered in the
name of the Foundation, called Fondazione Creditori
Parmalat, of which:
-- 120,000 shares representing the initial share capital
of Parmalat S.p.A. (unchanged), and
-- 15,422,865 or 0,9% of the share capital that pertain to
currently undisclosed creditors (compared with
16,667,668 shares as at May 30, 2008).
About Parmalat
Headquartered in Milan, Italy, Parmalat S.p.A.
-- http://www.parmalat.net/-- sells nameplate milk products
that can be stored at room temperature for months. It also has
about 40 brand product lines, which include yogurt, cheese,
butter, cakes and cookies, breads, pizza, snack foods and
vegetable sauces, soups and juices.
The company's U.S. operations filed for chapter 11 protection on
Feb. 24, 2004 (Bankr. S.D.N.Y. Case No. 04-11139). Gary
Holtzer, Esq., and Marcia L. Goldstein, Esq., at Weil Gotshal &
Manges LLP, represent the Debtors. When the U.S. Debtors filed
for bankruptcy protection, they reported more than US$200
million in assets and debts. The U.S. Debtors emerged from
bankruptcy on April 13, 2005.
Parmalat S.p.A. and its Italian affiliates filed separate
petitions for Extraordinary Administration before the Italian
Ministry of Productive Activities and the Civil and Criminal
District Court of the City of Parma, Italy on Dec. 24, 2003.
Dr. Enrico Bondi was appointed Extraordinary Commissioner in
each of the cases. The Parma Court has declared the units
insolvent.
On June 22, 2004, Dr. Bondi filed a Sec. 304 Petition, Case No.
04-14268, in the United States Bankruptcy Court for the Southern
District of New York.
Parmalat has three financing arms: Dairy Holdings Ltd., Parmalat
Capital Finance Ltd., and Food Holdings Ltd. Dairy Holdings and
Food Holdings are Cayman Island special-purpose vehicles
established by Parmalat S.p.A. The Finance Companies are under
separate winding up petitions before the Grand Court of the
Cayman Islands. Gordon I. MacRae and James Cleaver of Kroll
(Cayman) Ltd. serve as Joint Provisional Liquidators in the
cases. On Jan. 20, 2004, the Liquidators filed Sec. 304
petition, Case No. 04-10362, in the United States Bankruptcy
Court for the Southern District of New York. In May 2006, the
Cayman Island Court appointed Messrs. MacRae and Cleaver as
Joint Official Liquidators. Gregory M. Petrick, Esq., at
Cadwalader, Wickersham & Taft LLP, and Richard I. Janvey, Esq.,
at Janvey, Gordon, Herlands Randolph, represent the Finance
Companies in the Sec. 304 case.
The Honorable Robert D. Drain presides over the Parmalat
Debtors' U.S. cases. On June 21, 2007, the U.S. Court granted
Parmalat permanent injunction.
PARMALAT SPA: Board to Review Interim Data July 30, 2008
--------------------------------------------------------
Parmalat S.p.A. communicates that the Board Meeting for the
discussion of the preliminary data as at June 30, 2008, will be
held on July 30, 2008, instead of July 25, 2008, as initially
planned.
About Parmalat
Headquartered in Milan, Italy, Parmalat S.p.A.
-- http://www.parmalat.net/-- sells nameplate milk products
that can be stored at room temperature for months. It also has
about 40 brand product lines, which include yogurt, cheese,
butter, cakes and cookies, breads, pizza, snack foods and
vegetable sauces, soups and juices.
The company's U.S. operations filed for chapter 11 protection on
Feb. 24, 2004 (Bankr. S.D.N.Y. Case No. 04-11139). Gary
Holtzer, Esq., and Marcia L. Goldstein, Esq., at Weil Gotshal &
Manges LLP, represent the Debtors. When the U.S. Debtors filed
for bankruptcy protection, they reported more than US$200
million in assets and debts. The U.S. Debtors emerged from
bankruptcy on April 13, 2005.
Parmalat S.p.A. and its Italian affiliates filed separate
petitions for Extraordinary Administration before the Italian
Ministry of Productive Activities and the Civil and Criminal
District Court of the City of Parma, Italy on Dec. 24, 2003.
Dr. Enrico Bondi was appointed Extraordinary Commissioner in
each of the cases. The Parma Court has declared the units
insolvent.
On June 22, 2004, Dr. Bondi filed a Sec. 304 Petition, Case No.
04-14268, in the United States Bankruptcy Court for the Southern
District of New York.
Parmalat has three financing arms: Dairy Holdings Ltd., Parmalat
Capital Finance Ltd., and Food Holdings Ltd. Dairy Holdings and
Food Holdings are Cayman Island special-purpose vehicles
established by Parmalat S.p.A. The Finance Companies are under
separate winding up petitions before the Grand Court of the
Cayman Islands. Gordon I. MacRae and James Cleaver of Kroll
(Cayman) Ltd. serve as Joint Provisional Liquidators in the
cases. On Jan. 20, 2004, the Liquidators filed Sec. 304
petition, Case No. 04-10362, in the United States Bankruptcy
Court for the Southern District of New York. In May 2006, the
Cayman Island Court appointed Messrs. MacRae and Cleaver as
Joint Official Liquidators. Gregory M. Petrick, Esq., at
Cadwalader, Wickersham & Taft LLP, and Richard I. Janvey, Esq.,
at Janvey, Gordon, Herlands Randolph, represent the Finance
Companies in the Sec. 304 case.
The Honorable Robert D. Drain presides over the Parmalat
Debtors' U.S. cases. On June 21, 2007, the U.S. Court granted
Parmalat permanent injunction.
PLATT INVESTMENT: Proofs of Claim Filing Deadline Is July 23
------------------------------------------------------------
Platt Investment Company Ltd.'s creditors have until
July 23, 2008, to prove their claims to Buchanan Limited, the
company's liquidator, or be excluded from receiving any
distribution or payment.
In their proofs of claim, creditors must indicate their full
names, addresses, the full particulars of their debts or claims,
and the names and addresses of their lawyers, if any.
Platt Investment's shareholders decided on June 12, 2008, to
place the company into voluntary liquidation under The Companies
Law (2004 Revision) of the Cayman Islands.
The liquidator can be reached at:
Buchanan Limited
P.O. Box 1170
Grand Cayman, Cayman Islands
Contact for inquiries:
Francine Jennings
Telephone: (345) 949-0355
Fax: (345) 949-0360
OMNIBUS FUNDING: Proofs of Claim Filing Is Until July 23
--------------------------------------------------------
Omnibus Funding Corp.'s creditors have until July 23, 2008, to
prove their claims to Mark Hill and Giles Le Sueur, the
company's liquidators, or be excluded from receiving any
distribution or payment.
In their proofs of claim, creditors must indicate their full
names, addresses, the full particulars of their debts or claims,
and the names and addresses of their lawyers, if any.
Omnibus Funding's shareholders decided on June 12, 2008, to
place the company into voluntary liquidation under The Companies
Law (2004 Revision) of the Cayman Islands.
The liquidators can be reached at:
Mark Hill and Giles Le Sueur
c/o Maples Finance Limited
P.O. Box 1093GT
Grand Cayman, Cayman Islands
==================================
D O M I N I C A N R E P U B L I C
==================================
BANCO INTERCONTINENTAL: Two Former Officials to Go to Prison
------------------------------------------------------------
Former Banco Intercontinental officials Ramon Baez Figueroa and
Luis Alvarez Renta reportedly will go to prison today,
Clavedigital.com.do reports, citing defense lawyer Vinicio
Castillo.
The Supreme Court of the Dominican Republic upheld last Friday
the National District Court of Appeals sentence, according to
Elnacional.com.do. As reported in the Troubled Company
Reporter-Latin America on April 23, 2008, the appellate court
upheld the 10-year prison sentence against former Banco
Intercontinental officials Marcos Baez Cocco and Luis Alvarez
Renta, in the bank's fraud case. The prosecution appealed the
sentences against the Banco Intercontinental officials and also
appealed Vivian Lubrano del Castillo's acquittal, seeking six
years in prison.
According to Elnacional.com.do, Mr. Figueroa's defense lawyers
have asked the Justice Ministry's protection and physical
guarantee for their client during his imprisonment. Mr.
Figueroa's defense were scheduled to meet with Justice Minister
Radhames Jimenez last Monday to request for their client's
protection.
Elnacional.com.do relates that Mr. Castillo said Mr. Figueroa
will go to jail as soon as Justice Saulo Alexis Ysabel Diaz
notifies him of the sentence. "Mr. Baez Figueroa has taken this
with much resolve and much gallantry and to abide by what
Dominican justice has so unjustly disposed against him. As soon
as the proceedings for notification are met, Baez Figueroa will
enter the prison," Mr. Castillo added.
Minister Jimenez must ensure that nothing will happen to Mr.
Figueroa, Elnacional.com.do says, citing Mr. Castillo. Mr.
Figueroa is a noted public figure who can't be imprisoned with
common prisoners, Mr. Castillo explained. "It's necessary to be
very careful with Baez Figueroa during the time he's serving out
the sentence that Dominican justice imposed," Mr. Castillo
added.
Dominican Today relates that Justice Diaz said some motion could
delay the imprisonment. However, any motion could be ruled on
without disturbing the detentions, the judge added.
According to Dominican Today, Justice Diaz explained that Mr.
Figueroa and the others convicted have the right to present a
motion, "but the court determines if that paralyzes [stops] it
[the imprisonment] or not." The hearing on the resolution that
establishes the execution of the sentence and a subsequent
subpoena to those convicted, "are issues that are solved in
hours," the judge added.
Located in the Dominican Republic, Banco Intercontinental a.k.a.
Baninter collapsed in 2003 as a result of a massive fraud and a
resulting deficit of US$2.2 billion. As a consequence, all of
its branches were closed. The bank's current and savings
accounts holders were transferred to the bank's new owner --
Scotiabank. The bankruptcy of Baninter was considered the
largest in world history, in relation to the Dominican
Republic's Gross Domestic Product. The resulting deficit was
equal to 12% to 15% of the country's national GDP. It costs
Dominican taxpayers DOP55 billion and resulted to the country's
worst economic crisis.
=================
G U A T E M A L A
=================
CLAIRE'S STORES: Zimmermann Quits as President for North America
----------------------------------------------------------------
Claire's Stores, Inc., reported that John A. Zimmermann resigned
as President of Claire's North America, effective July 7, 2008,
for personal reasons.
Starting as an executive trainee in 1981 with John Wanamaker at
the Philadelphia, Pennsylvania-based department store, Mr.
Zimmermann went on to hold senior merchandising and executive
positions with retail chains that included Federated Department
Stores, The Children's Place and Bon Marche, Carter Hawley
Hale's The Broadway Stores and Contempo Casuals, as well as
Bradlees.
At Zale Corp., as a Corporate Senior Vice President and
President of Zale Canada Company, he led a successful turnaround
of the company. In his most recent Zale assignment as
President, North America, of a 990-store, US$1.4 billion jewelry
retailer with units in the U.S., Canada and Puerto Rico, he
addressed challenging issues that embraced merchandising, sales,
marketing and operational improvement.
Headquartered in Pembroke Pines, Florida, Claire's Stores Inc.
(NYSE: CLE) -- http://www.clairestores.com/-- is a specialty
retailer of value-priced jewelry and accessories for girls and
young women through its two store concepts: Claire's and Icing.
While the latter operates only in North America, Claire's
operates worldwide. As of May 3, 2008, Claire's Stores, Inc.
operated 3,053 stores in North America and Europe. Claire's
Stores Inc. also operates through its subsidiary, Claire's
Nippon Co. Ltd., 201 stores in Japan as a 50:50 joint venture
with AEON Co. Ltd. The company also franchises 169 stores in
the Middle East, Turkey, Russia, South Africa, Poland and
Guatemala.
* * *
As reported in the Troubled Company Reporter on May 6, 2008,
Standard & Poor's Ratings Services lowered its corporate credit
rating on Claire's Stores Inc. to 'B-' from 'B'. At the same
time, S&P lowered the ratings on the company's US$1.65 billion
senior secured credit facilities to 'B' from 'B+', its
US$600 million senior unsecured notes to 'CCC+' from 'B-', and
its US$335 million senior subordinated notes to 'CCC' from
'CCC+'. The outlook is negative.
* GUATEMALA: S&P Holds BB/B Foreign & BB+/B Local Currency IDRs
---------------------------------------------------------------
Standard & Poor's Ratings Services has affirmed its 'BB/B'
foreign currency and 'BB+/B' local currency sovereign credit
ratings on the Republic of Guatemala.
S&P also said that it affirmed its 'BBB-' transfer and
convertibility assessment on Guatemala. The outlook remains
positive.
The ratings on Guatemala are supported by a strong track record
of cautious fiscal policies, an improving government debt
profile, and a steady flow of workers remittances. “The general
government deficit was about 1.5% in 2007 and is expected at
1.9% in 2008,” said S&P's credit analyst Roberto Sifon Arevalo.
“This is a result of higher-than-expected inflationary pressures
and spill-over effects of the slowdown in the U.S. economy.”
The analyst also mentioned that the government continues to
reduce vulnerabilities by notably swapping foreign currency-
denominated debt with fixed-rate debt denominated in local
currency. “Local currency debt as of May 2008 was about 40% of
total government debt, improving from 35% in 2007 and from only
12% in 2004,” Mr. Sifon Arevalo said. “At the same time, net
general government debt, forecasted at 9% of GDP in 2008,
continues to be well above the median for 'BB' rated peers at
about 26% of GDP.”
On the other hand, S&P expects that GDP growth will slow down
toward 4% in 2008, mainly because of adverse external
conditions. High commodities prices and inflation as well as
the expected slowdown in the United States economy, which will
affect the pace of growth of workers remittances, are among the
main negative shocks that the Guatemalan economy will face in
2008.
In addition, the rating agency said that Guatemala's fiscal
flexibility and creditworthiness will continue to be constrained
over the medium term by a narrow tax base and continual current
account deficits that hinder an otherwise sound macroeconomic
framework.
The positive outlook on Guatemala reflects continual
improvements in tax collection, a low level of debt versus its
rated peers, and the growing strength of key public
institutions. The outlook also reflects the smooth political
transition after the last presidential elections. Further steps
to improve transparency and political cohesion -- as well as to
lower the general government debt-to-revenues ratio through
widening the tax base while containing debt levels -- would
improve Guatemala's financial profile, boosting the rating. “On
the other hand, fiscal slippage and a return to political
polarization that limits the government's ability to apply
effective economic policies could place downward pressure on the
ratings," the analyst concluded.
=============
J A M A I C A
=============
NATIONAL COMMERCIAL: Says Olint Accounts Debacle is Untrue
----------------------------------------------------------
National Commercial Bank Jamaica Limited has denied rumors
regarding the restriction of activity on the accounts of Olint
Limited, Radio Jamaica says.
According to the report, the court has ordered the bank to
maintain Olint's accounts open allowing the bank to keep on
accepting deposits and encashing withdrawals.
The bank disclosed it was waiting for the Court of Appeal's
decision, adding that it cannot lawfully decline to get any
deposit, which Olint would want to make to its accounts. The
bank said it has not refused to take their deposits or to do any
other transaction, Radio Jamaica relates.
It has no interest, the bank states, in preventing Olint from
meeting its obligations, the report adds.
Headquartered in Kingston, Jamaica, the National Commercial Bank
Jamaica Limited -- http://www.jncb.com/-- provides commercial
and retail banking, wealth management services. The company's
services include personal banking, business banking, mortgage
loans, wealth management and insurance services. Founded in
1977, the bank primarily operates in West Indies and the U.K.
* * *
As reported in the Troubled Company Reporter-Latin America on
July 3, 2008, Fitch Ratings affirmed National Commercial
Bank Jamaica Limited's ratings on long-term foreign and local
currency Issuer Default Ratings at 'B+'; short-term foreign and
local currency IDRs at 'B'; Individual at 'D'; Support at 4; and
Support Floor at 'B'.
As reported in the Troubled Company Reporter-Latin America on
Dec. 18, 2006, Standard & Poor's Rating Services affirmed its
'B/B' counterparty credit and CD ratings on National Commercial
Bank Jamaica Ltd. S&P said the outlook is stable.
NATIONAL WATER: Shrugs Off Blame in Fire at Brown's Town
--------------------------------------------------------
Radio Jamaica reports that the National Water Commission of
Jamaica said it isn't responsible for the lack of water to fight
a fire in Brown's Town.
Radio Jamaica relates that the fire started at 1:00 a.m. on
Monday, destroying A and S Charlie and Sons at Main Street.
RJR News notes that A and S Charlie owner Anthony Charlie said
the firefighters were impeded by the absence of water. "It's a
disgrace that a town the size of Brown's Town doesn't have water
running in our hydrants. It is a reproach against the
government and the powers that be to know that here you have
people who are law abiding citizens who pay their taxes and we
don't even have water ... it's a disgrace," Mr. Charles added.
According to Radio Jamaica, The Commission's Communications
Manager Charles Buchanan said, "In the interest of accuracy the
NWC [The Commission] wishes to make it very clear that
challenges that may have been experienced in the firefighting
efforts have nothing whatsoever to do with the availability of
water as provided for the NWC. Water has been available on the
Brown's Town water supply system throughout the entire
unfortunate episode and water continues to be available in
Brown's Town. The fact that fire hydrants in the vicinity of
the area were not working has nothing to do with the NWC or the
availability of water on the NWC water supply system."
The National Water Commission is a statutory organization
charged with the responsibility of providing potable water and
wastewater services for the people of Jamaica.
* * *
The National Water Commission of Jamaica had been criticized for
failing to act promptly in cutting its losses. For the fiscal
years 2002 and 2003, the water commission accumulated a net loss
of US$2.11 billion. The deficit fell to US$1.86 billion the
following year, and to US$670 million in 2004 and 2005.
Jamaican citizens have been complaining to the commission about
water disruptions in their communities, resulting to
restrictions of water use.
SUGAR COMPANY: Unions Promise to Work With Infinity Bio-Energy
--------------------------------------------------------------
Unions representing workers at the Sugar Company of Jamaica
Limited have promised to work with Infinity Bio-Energy Limited
to improve the industry, Reuters reports, citing an official.
As reported in the Troubled Company Reporter-Latin America on
July 1, 2008, the Sugar Company will surrender ownership of its
sugar factories to Infinity Bio-Energy. Jamaica's Prime
Minister Bruce Golding signed a Head of Agreement with Infinity
Bio-Energy for the factories' divestment. As agreed, the Sugar
Company will still be managing the government's assets at the
six sugar factories and the workers' status won't change before
the final transfer of assets on Sept. 30. After the assets are
transferred to Infinity Bio-Energy, the government will keep a
25% stake in the company for at least three years.
Reuters relates that about 13,700 workers at the factories would
be laid off. They would be compensated under a US$34 million
program financed by the European Union and the Jamaican
government. Some employees will be rehired. According to
officials, Infinity Bio-Energy will need fewer workers as it
plans to use machines in operations.
"We met with Infinity this morning and discussed ways in which
we could work with them. We recognize that there is likely to
be a significant reduction in the work force, as the new owners
are looking to make a profit and run a viable industry. We
expressed our support to work closely with them and to support
them in their efforts," Reuters quoted University and Allied
Workers Union President Lambert Brown.
The Sugar Company of Jamaica Limited, a.k.a. SCJ, was formed in
November 1993 by a consortium made up of J. Wray & Nephew
Limited, Manufacturers Investments Limited and Booker Tate
Limited. The three companies each held 17% equity in SCJ, with
the remaining 49% being held by the government of Jamaica. In
1998, the government became the sole shareholder of SCJ by
acquiring the interests of the members of the consortium. Its
stated goal was to maximize efficiency, productivity and
profitability of the three sugar factories, within three years.
The principal activities of the company are the cultivation of
cane and the manufacture and sale of sugar and molasses.
The Sugar Company of Jamaica Limited registered a net loss of
almost US$1.1 billion for the financial year ended Sept. 30,
2005, 80% higher than the US$600 million reported in the
previous financial year. Sugar Company blamed its financial
deterioration to the reduction in sugar cane production.
According to published reports, the Jamaican government has
taken responsibility for the payment of the firm's debts. Radio
Jamaica has said that to date, the five sugar factories have
incurred J$3 billion in debts. The government is now selling
the factories.
===========
M E X I C O
===========
BHM TECHNOLOGIES: Asks Court to Approve Disclosure Statement
------------------------------------------------------------
BHM Technologies Holdings, Inc., and its debtor-subsidiaries ask
the United States Bankruptcy Court for the Western District of
Michigan to set a hearing to consider approval of the Disclosure
Statement on August 7, 2008 at 1:30 pm (ET). The Debtors have
set a July 31, 2008 deadline to file objections to the adequacy
of the Disclosure Statement.
On July 2, 2008, the Debtors filed a disclosure statement
explaining the terms of their Joint Chapter 11 Plan of
Reorganization.
A full-text copy of the Disclosure Statement is available for
free at http://bankrupt.com/misc/BHM_DiscStatement.pdf
Leon R. Barson, Esq., at Pepper Hamilton LLP, in Philadelphia,
Pennsylvania, asserts the Disclosure Statement contains adequate
information within the meaning of Section 1125 of the Bankruptcy
Code. Accordingly, by this motion, the Debtors ask the Court
approve the Disclosure Statement pursuant to Section 1125(b) of
the Bankruptcy Code.
The Disclosure Statement notes that the Plan, while proposed
jointly by all of the Debtors, constitutes a separate Plan for
each debtors. The estates of the Debtors, according to Don
Dees, president of BHM Technologies Holdings, Inc., have not
been consolidated, substantively or otherwise.
The Disclosure Statement provides that the purpose of the Plan
is to de-lever the Debtors' balance sheet by converting a
substantial amount of secured debt into equity.
The Plan provides that each Debtor will pay 100% of all
Unsecured Ongoing Operations Claims that are held by ongoing
trade vendors, without interest, over a six month period. The
reason why the Debtors can successfully accomplish this goal is
primarily due to concessions by the Prepetition First Lien
Lenders and Prepetition Second Lien Lenders. In addition, under
one of two alternatives, Atlantic Equity Partners IV, L.P., will
infuse an additional US$12,500,000 into the Debtors, further
improving the Debtors' balance sheet and cash flow.
Mr. Dees relates that in order to ensure a smooth, efficient and
quick exit from Chapter 11, the Debtors are proposing two
alternative plans simultaneously. The New Money Alternative is
the preferred alternative, and the Debtors will first seek
confirmation of this alternative. However, in the event the New
Money Alternative is not confirmed, the Debtors will seek to
confirm the No New Money Alternative.
The Debtors note that a ballot that indicates an acceptance of
the Plan will be deemed to be an acceptance of both
alternatives. These classes are entitled to vote to accept or
reject the Plan: Class S-1 (Secured Tax Claims), Class S-2
(Other Secured Claims), Class P-1 (Other Priority Claims), Class
U-1 (Convenience Claims), Class U-3 (Intercompany Claims) and
Class E-2 (Subsidiary Debtor Equity Interests).
The key terms of each Alternative with respect to the
capitalization of the Reorganized Debtors are:
NEW MONEY ALTERNATIVE
---------------------
Prepetition Prepetition AEP Invests Management Independent
First Lien Second Lien US$12.5 Mil. Equity Plan Director
Lenders Lenders and Receives: Equity Plan
Receive: Receive: Receives:
US$92.5MM US$3.75M of 26.75% of 9% of New 1% of New
Exit Term Parent New Common Common Common
Stock
Loan Pref. Stock Stock on a Stock on a on a fully
(gifted by non-diluted fully diluted
US$75MM of First Lien basis diluted basis
Parent Lenders) (postgifting basis
Pref. Stock .25% to 2nd
(based on 8% of New Lien Lenders)
implied Common
total ent. Stock on a Warrants
value of non-diluted exercisable
US$325MM (inc. 4% into 15% of
from New Common
65% of New gifting of Stock at
Common Prepetition implied TEV
Stock on a First Lien of US$325MM
non-diluted Deficiency w/ a 7-year
basis Claim and tenor
.25% from
gifting by
AEP.
NO NEW MONEY ALTERNATIVE
------------------------
Prepetition Prepetition AEP Management Independent
First Lien Second Lien Receives: Equity Plan Director
Lenders Lenders Equity Plan
Receive: Receive: Receives:
US$92.5MM Approx. Nothing 9% of New 1% of New
Exit Term 5% of New Common Common
Stock
Loan Common Stock on a on a fully
Stock on a fully diluted
Approx. non-diluted diluted basis
94% of New basis basis
Common
Stock on a Penny
non-diluted warrants
basis, inc. convertible
distrib. on into 2.5%
Class S-3 of New
& Class U-4 Common
Claims Stock
(gifted by
First Lien
Lenders)
Claim and
.25% from
gifting by
AEP.
Also, under the Debtors' Joint Chapter 11 Plan of
Reorganization, Class U-1 (Convenience Claims) consist of any
unsecured claim that is allowed in an amount of US$1,500 or less
or is allowed in an amount greater than US$1,500, but which is
reduced to US$1,500 by irrevocable written election of the
holder thereof pursuant to the holder's ballot. Pursuant to the
Plan, the holder of an allowed Convenience Claim will receive
payment in full, without postpetition interest.
Leon R. Barson, Esq., at Pepper Hamilton LLP, in Philadelphia,
Pennsylvania, note that the Sixth Circuit has explaineed that a
claim is impaired under Section 1124(1) of the Bankruptcy Code
if the plan deprives the creditor of interest "to which the
creditor is entitled." However, she cites Thompson v. Kentucky
Lumber Co. (In re Kentucky Lumber Co.), 860 F.2d 674, 676 (6th
Cir. 1988), which said that unsecured creditors are not entitled
to postpetition interest upon their allowable claims, unless the
debtor is solvent.
According to Mr. Barson, the Debtors are admittedly not solvent
from a balance sheet perspective.
In view of the circumstances, and the fact that holders of
claims in Class U-1 are expected to receive 100% of their
allowed claims very shortly after the Plan's effective date, the
Debtors seek the Court's determination that Class U-1 is
unimpaired.
Headquartered in Ionia, Michigan, BHM Technologies Holdings
Inc.-- http://www.browncorp.com/--manufactures and sells
automobile parts including air bags and electrical systems. It
has manufacturing facilites in Mexico and operates under Brown
Corp.
BHM Technologies Holdings, Inc. and 14 affiliates filed separate
voluntary petitions under Chapter 11 on May 19, 2008 (Bankr.
W.D. Mich. Lead Case No. 08-04413). Hannah Mufson McCollum,
Esq., Kay Standridge Kress, Esq., Robert S. Hertzberg, Esq., and
Leon R. Barson, Esq. of Pepper Hamilton LLP, represent the
Debtors in their restructuring efforts. When the Debtors filed
for bankruptcy, it listed estimated assets and debts to be both
between US$100 million and US$500 million.
The Debtors have until Sept. 16, 2008, to exclusively file their
bankruptcy plan. (BHM Technologies Bankruptcy News, Issue No.
7; Bankruptcy Creditors' Service Inc.,
http://bankrupt.com/newsstand/
or 215/945-7000)
BHM TECHNOLOGIES: Asks Court to Approve Solicitation Protocol
-------------------------------------------------------------
BHM Technologies Holdings, Inc., and its debtor-subsidiaries
intend to mail solicitation packages to solicit votes on their
Joint Chapter 11 Plan of Reorganization, and submit it to the
United States Bankruptcy Court for the Western District of
Michigan for confirmation, following the approval of their
disclosure statement explaining the terms of the plan.
The Debtors have proposed these time-line and key dates:
Date
----
Record Date for Voting Purposes Date DS is Approved
Delivery of Solicitation Packages Not later than
Aug. 12, 2008
Deadline to submit ballots to
Kurtzman Carson Consultants Sept. 5, 2008
Confirmation Hearing on Plan Week of Sept. 15, 2008
Deadline to File Confirmation
Objections Sept. 5, 2008
Deadline to Submit Replies to
Confirmation Objections Sept. 11, 2008
Pursuant to Rule 3018(a) of the Federal Rules of Bankruptcy
Procedure, solely for purposes of voting to accept or reject the
Plan and not for the purpose of the allowance of, or
distribution on account of, a claim, and without prejudice to
the rights of the Debtors in any other context, the Debtors
propose that each claim within a class of claims entitled to
vote to accept or reject the Plan be temporarily allowed in an
amount equal to the amount of the claim as set forth in a timely
filed proof of claim, or, if no proof of claim was filed, the
amount of such claim as set forth in the Debtors' Schedules of
Assets and Liabilities. If a proof of claim is listed as
unliquidated, the claims will be allowed, for voting purposes
only, at US$1.00.
The Court will convene a hearing to consider approval of the
Solicitation Protocol on August 7, 2008. Objections are due
July 31, 2008.
Headquartered in Ionia, Michigan, BHM Technologies Holdings
Inc.-- http://www.browncorp.com/--manufactures and sells
automobile parts including air bags and electrical systems. It
has manufacturing facilites in Mexico and operates under Brown
Corp.
BHM Technologies Holdings, Inc. and 14 affiliates filed separate
voluntary petitions under Chapter 11 on May 19, 2008 (Bankr.
W.D. Mich. Lead Case No. 08-04413). Hannah Mufson McCollum,
Esq., Kay Standridge Kress, Esq., Robert S. Hertzberg, Esq., and
Leon R. Barson, Esq. of Pepper Hamilton LLP, represent the
Debtors in their restructuring efforts. When the Debtors filed
for bankruptcy, it listed estimated assets and debts to be both
between US$100 million and US$500 million.
The Debtors have until Sept. 16, 2008, to exclusively file their
bankruptcy plan. (BHM Technologies Bankruptcy News, Issue
No. 7; Bankruptcy Creditors' Service Inc.,
http://bankrupt.com/newsstand/or 215/945-7000)
BHM TECHNOLOGIES: Court Approves US$45,000,000 DIP Financing
------------------------------------------------------------
The United States Bankruptcy Court for the Western District of
Michigan granted final approval to the request of BHM
Technologies Holdings, Inc., and its debtor-subsidiaries to
obtain US$45,000,000 of DIP financing from a syndicate of
lenders led by Lehman Commercial Paper, Inc., administrative
agent under the DIP Facility.
The Court authorized the Debtors to grant superpriority claims,
liens on certain unencumbered property and other liens to the
DIP Lenders.
Paragraph 7(a) of the Final DIP Order provides that the
Unencumbered Property “will not include the Avoidance Actions,
any proceeds or property recovered in respect of any Avoidance
Actions or any other assets upon which security may not be
lawfully granted, but Unencumbered Property shall include the
proceeds of such other assets upon which security may be
lawfully granted.”
A full-text copy of the Final DIP Order is available for free
at:
http://bankrupt.com/misc/BHM_Final_DIP_Order.pdf
First Lien Agent Wants Clarification
On behalf of Lehman Commercial Paper Inc., John T. Gregg, Esq.,
at Barnes & Thornburg LLP, in Grand Rapids Michigan, asserts the
Court should amend Paragraph 7(a) or at least clarify the intent
of the Court's revision, pursuant Rule 9024 of the Federal Rules
of Bankruptcy Procedure. Mr. Gregg says that in the proposed
Final DIP Financing Order submitted to the Court, Paragraph 7(a)
was intended to grant the DIP Lenders a lien only on the
proceeds of the assets upon which security may not lawfully be
granted.
The intention of the First Lien Agent, the Debtors and the other
parties who agreed to the form of the proposed Final DIP
Financing Order was to ensure that the Court was not, in effect,
entering an order that was in conflict with applicable law. It
was the intent of the parties that the liens granted to the DIP
Lenders would not extend to the Unencumbered Property upon which
security cannot be granted. The liens would extend only to the
proceeds of the Unencumbered Property upon which security cannot
be granted.
Upon review of the Final DIP Financing Order, it appears that
the Court was attempting to protect against a violation of
applicable law by declining to grant a lien over assets to which
a lien may not attach, Mr. Gregg asserts. The First Lien Agent
believes that, upon close inspection of Paragraph 7(a) as
submitted, the Court would only be granting a lien on the
proceeds of Unencumbered Property to which security cannot
attach under applicable law. According to the Final DIP
Financing Order as entered by the Court, the DIP Lenders would
not be entitled to a lien on proceeds from Unencumbered Property
upon which security cannot attach.
The DIP Lenders agreed to extend the US$45,000,000 DIP Loan in
exchange for certain protections, including a lien on the
proceeds of Unencumbered Property, which category includes the
proceeds of Unencumbered Property upon which security cannot
attach. The First Lien Agent requests that the Court correct
the clerical error it made when it revised Paragraph 7(a) of the
Final DIP Financing Order so that the DIP Lenders receive the
protections for which they bargained.
In the alternative, the First Lien Agent asks the Court to
reconsider the Final DIP Financing Order pursuant to Bankruptcy
Rule 9023 and Federal Rule 59(e). The intention of the parties
was that security would extend only to the proceeds of
Unencumbered Property, which such Unencumbered Property could
not be subject to security.
Headquartered in Ionia, Michigan, BHM Technologies Holdings
Inc.-- http://www.browncorp.com/--manufactures and sells
automobile parts including air bags and electrical systems. It
has manufacturing facilites in Mexico and operates under Brown
Corp.
BHM Technologies Holdings, Inc. and 14 affiliates filed separate
voluntary petitions under Chapter 11 on May 19, 2008 (Bankr.
W.D. Mich. Lead Case No. 08-04413). Hannah Mufson McCollum,
Esq., Kay Standridge Kress, Esq., Robert S. Hertzberg, Esq., and
Leon R. Barson, Esq. of Pepper Hamilton LLP, represent the
Debtors in their restructuring efforts. When the Debtors filed
for bankruptcy, it listed estimated assets and debts to be both
between US$100 million and US$500 million.
The Debtors have until Sept. 16, 2008, to exclusively file their
bankruptcy plan. (BHM Technologies Bankruptcy News, Issue No.
7; Bankruptcy Creditors' Service Inc.,
http://bankrupt.com/newsstand/or 215/945-7000)
H.J. HEINZ: Moody's Assigns Ba1 Rating on Preferred Stock
---------------------------------------------------------
Moody's Investors Service has assigned a Baa2 rating to
US$500 million of five-year senior unsecured notes issued by
H.J. Heinz Company and a Ba1 rating to US$350 million of series
B cumulative preferred stock issued by H.J. Heinz Finance
Company.
Moody's also affirmed the existing Baa2 long term debt rating,
Ba1 preferred stock rating, and Prime-2 short term debt rating
of Heinz and its subsidiaries. The rating outlook is stable.
The senior notes pay a coupon of 5.35% and mature on July 15,
2013. Heinz intends to use the proceeds from the senior notes
primarily to repay outstanding commercial paper and other
indebtedness. In the fourth quarter, Heinz issued commercial
paper to fund the redemption of US$300 million of senior
unsecured notes that matured March 15, 2008.
The US$350 million series B cumulative preferred stock pay an 8%
dividend and is mandatorily redeemable on July 15, 2013. The
proceeds will be used primarily to refinance the maturing
US$325 million 6.226% series A cumulative preferred stock due
July 15, 2008, and to repay other indebtedness. Following this
redemption, Moody's will withdraw the ratings on the series A
cumulative preferred stock.
Ratings assigned:
H.J. Heinz Company
-- US$500 million senior unsecured notes due 2013 at Baa2
H.J. Heinz Finance Company
-- US$350 million series B preferred stock at Ba1
Ratings affirmed:
H.J. Heinz Company
-- Senior unsecured debt at Baa2
H.J. Heinz Finance Company
-- Senior unsecured debt at Baa2 under full guarantee of H.J.
Heinz Company
-- Preferred stock at Ba1
H.J. Heinz Finance UK PLC
-- Senior unsecured debt at Baa2 under full guarantee of H.J.
Heinz Company
H.J. Heinz Company
-- Short term debt at Prime-2
H.J. Heinz Finance Company
-- Short term debt at Prime-2 under full guarantee of H.J.
Heinz Company
H.J. Heinz B.V.
-- Short term debt at Prime-2 under full guarantee of H.J.
Heinz Company
H.J. Heinz Finance UK PLC
-- Short term debt at Prime-2 under full guarantee of H.J.
Heinz Company
H.J. Heinz Company of Canada Limited
-- Short term debt at Prime-2 under full guarantee of H.J.
Heinz Company
Headquartered in Pittsburgh, Pennsylvania and founded in 1869,
H. J. Heinz Company is a marketer and producer of branded foods
in ketchup, condiments, sauces, meals, soups, seafood, snacks
and infant foods. Key brands include Heinz(R) Ketchup, sauces,
soups, beans, pasta and infant foods, Ore-Ida(R) French Fries
and roasted potatoes, Boston Market(R) and Smart Ones(R) meals
and Plasmon baby food. Heinz's 50 companies have number-one or
number-two brands in 200 countries. The company's European
headquarters in located in England. In South America, Heinz
operates in Mexico, Costa Rica, Venezuela and Argentina.
SATELITE MEXICANOS: Likely to be Sold, Report Says
--------------------------------------------------
Satelites Mexicanos, S.A. de C.V., a.k.a. Satmex, is likely to
be sold, Rapid TV News reports, citing market sources.
According to Rapid TV, the purpose of Satmex's possible sale
would be to restructure its debt. Different bids for the firm
are currently below
US$500 million. The Mexican government has a stake in Satmex.
Satelites Mexicanos, S.A. de C.V., provides fixed satellite
services in Mexico.
Satmex filed a voluntary petition for reorganization under
Chapter 11 in the Bankruptcy Court (Bankr. S.D.N.Y. Case No. 06-
11868), on Aug. 11, 2006. It concluded its reorganization
efforts on Nov. 30, 2006, and emerged from its U.S. bankruptcy
case. The company consummated its U.S. chapter 11 plan of
reorganization, which was confirmed by the on Oct. 26, 2006, and
implemented the restructuring approved in Satmex's Mexican
Concurso Mercantil proceeding by the Concurso Plan Order issued
on July 14, 2006.
* * *
As of May 19, 2008, the company still carries these ratings
placed by Moody's since Sept. 5, 2003:
-- Issuer Rating of C,
-- Senior Secured Rating of Caa1,
-- Long-term Corporate Family Rating of Ca, and
-- Senior Unsecured Debt Rating of C.
SATELITES MEXICANOS: Board to Explore Strategic Alternatives
------------------------------------------------------------
Satelites Mexicanos S.A. de C.V.'s board of directors is
planning to explore a range of strategic alternatives to enhance
shareholder value, Computer Business Review reports.
The report relates that alternatives may include:
-- continued execution of the company's operating plan;
-- financing; and
-- launch of an additional satellite, sale or merger of the
company or another strategic transaction.
There can be no assurance that a deal will suffice at the
exploration of strategic alternatives, the report says, citing
the company.
Satmex has asserted that unless and until the review of
strategic alternatives has been closed, it does not intend to
disclose developments with respect to the process, the report
adds.
Satelites Mexicanos, S.A. de C.V., provides fixed satellite
services in Mexico.
Satmex filed a voluntary petition for reorganization under
Chapter 11 in the Bankruptcy Court (Bankr. S.D.N.Y. Case No. 06-
11868), on Aug. 11, 2006. It concluded its reorganization
efforts on Nov. 30, 2006, and emerged from its U.S. bankruptcy
case. The company consummated its U.S. chapter 11 plan of
reorganization, which was confirmed by the on Oct. 26, 2006, and
implemented the restructuring approved in Satmex's Mexican
Concurso Mercantil proceeding by the Concurso Plan Order issued
on July 14, 2006.
* * *
As of May 19, 2008, the company still carries these ratings
placed by Moody's since Sept. 5, 2003:
-- Issuer Rating of C,
-- Senior Secured Rating of Caa1,
-- Long-term Corporate Family Rating of Ca, and
-- Senior Unsecured Debt Rating of C.
=======
P E R U
=======
CRPAO PEN TRUST: Peru's Rating Lift Cues S&P to Up Rating to BB+
----------------------------------------------------------------
Standard & Poor's Ratings Services has raised its rating on
CRPAO Pen Trust #1 Series 2008-100 to 'BB+' from 'BB'.
S&P raised its ratings on four Peruvian asset-backed securities
transactions backed by certificados de reconocimiento de
derechos del pago anual por obras (CRPAOs) from the Peruvian
government.
Ratings Raised:
Transaction To From
-------------------------------------------------------------
CRPAO Pen Trust #1 Series 2008-100 BB+ BB
Interoceanica IV Finance Ltd.
Series 2007-1 BB+ BB
Series 2007-2 BB+ BB
IIRSA Norte Financial Ltd.
Senior secured notes BBB- BB+
Peru Enhanced Pass Through Finance Ltd.
Class A-1 BB+ BB
Class A-2 BB+ BB
These rating actions follow S&P's elevation of its long-term
foreign currency sovereign credit rating on the Republic of Peru
to 'BBB-' from 'BB+', its long-term local currency sovereign
credit rating to 'BBB+' from 'BBB', and the transfer and
convertibility assessment to 'BBB+' from 'BBB'. The sovereign
upgrade reflects, among other things, the significant decline in
Peru's fiscal and external vulnerabilities within a context of
high and diversifying growth sources with low inflation and
strengthening macroeconomic fundamentals.
The ratings on each of the Peruvian asset-backed securities
transactions reflect the Peruvian government's underlying
payment obligation through the Ministry of Transport and
Communication on the CRPAOs and other structural features,
including credit default swaps and reserve accounts. The IIRSA
Norte Financial Ltd. transaction also benefits from a partial
credit guarantee from the Inter-American Development Bank.
For more information on Peru's sovereign upgrade, see ”Peru
Long-Term Foreign Currency Rating Raised To Investment-Grade
'BBB-', Outlook Stable,” published July 14, 2008, on
RatingsDirect.
INTEROCEANICA IV: Peru's Rating Upgrade Cues S&P's BB+ Ratings
--------------------------------------------------------------
Standard & Poor's Ratings Services has raised its ratings on
Interoceanica IV Finance Ltd. to 'BB+' from 'BB'.
S&P raised its ratings on four Peruvian asset-backed securities
transactions backed by certificados de reconocimiento de
derechos del pago anual por obras (CRPAOs) from the Peruvian
government.
Ratings Raised:
Transaction To From
-------------------------------------------------------------
Interoceanica IV Finance Ltd.
Series 2007-1 BB+ BB
Series 2007-2 BB+ BB
CRPAO Pen Trust #1 Series 2008-100 BB+ BB
IIRSA Norte Financial Ltd.
Senior secured notes BBB- BB+
Peru Enhanced Pass Through Finance Ltd.
Class A-1 BB+ BB
Class A-2 BB+ BB
These rating actions follow S&P's elevation of its long-term
foreign currency sovereign credit rating on the Republic of Peru
to 'BBB-' from 'BB+', its long-term local currency sovereign
credit rating to 'BBB+' from 'BBB', and the transfer and
convertibility assessment to 'BBB+' from 'BBB'. The sovereign
upgrade reflects, among other things, the significant decline in
Peru's fiscal and external vulnerabilities within a context of
high and diversifying growth sources with low inflation and
strengthening macroeconomic fundamentals.
The ratings on each of the Peruvian asset-backed securities
transactions reflect the Peruvian government's underlying
payment obligation through the Ministry of Transport and
Communication on the CRPAOs and other structural features,
including credit default swaps and reserve accounts. The IIRSA
Norte Financial Ltd. transaction also benefits from a partial
credit guarantee from the Inter-American Development Bank.
For more information on Peru's sovereign upgrade, see ”Peru
Long-Term Foreign Currency Rating Raised To Investment-Grade
'BBB-', Outlook Stable,” published July 14, 2008, on
RatingsDirect.
PERU ENHANCED: Peru's Rating Upgrade Cues S&P's BB+ Ratings
-----------------------------------------------------------
Standard & Poor's Ratings Services has raised its 'BB' ratings
on Peru Enhanced Pass Through Finance Ltd. to 'BB+'.
S&P raised its ratings on four Peruvian asset-backed securities
transactions backed by certificados de reconocimiento de
derechos del pago anual por obras (CRPAOs) from the Peruvian
government.
Ratings Raised:
Transaction To From
-------------------------------------------------------------
CRPAO Pen Trust #1 Series 2008-100 BB+ BB
Interoceanica IV Finance Ltd.
Series 2007-1 BB+ BB
Series 2007-2 BB+ BB
IIRSA Norte Financial Ltd.
Senior secured notes BBB- BB+
Peru Enhanced Pass Through Finance Ltd.
Class A-1 BB+ BB
Class A-2 BB+ BB
These rating actions follow S&P's elevation of its long-term
foreign currency sovereign credit rating on the Republic of Peru
to 'BBB-' from 'BB+', its long-term local currency sovereign
credit rating to 'BBB+' from 'BBB', and the transfer and
convertibility assessment to 'BBB+' from 'BBB'. The sovereign
upgrade reflects, among other things, the significant decline in
Peru's fiscal and external vulnerabilities within a context of
high and diversifying growth sources with low inflation and
strengthening macroeconomic fundamentals.
The ratings on each of the Peruvian asset-backed securities
transactions reflect the Peruvian government's underlying
payment obligation through the Ministry of Transport and
Communication on the CRPAOs and other structural features,
including credit default swaps and reserve accounts. The IIRSA
Norte Financial Ltd. transaction also benefits from a partial
credit guarantee from the Inter-American Development Bank.
For more information on Peru's sovereign upgrade, see ”Peru
Long-Term Foreign Currency Rating Raised To Investment-Grade
'BBB-', Outlook Stable,” published July 14, 2008, on
RatingsDirect.
* PERU: S&P Upgrades Long-Term Credit Rating to BBB- From BB+
-------------------------------------------------------------
Standard & Poor's Ratings Services has raised its foreign
currency long-term credit rating on the Republic of Peru to
'BBB-' from 'BB+' and raised its local currency long-term credit
rating on the republic to 'BBB+' from 'BBB-'.
S&P also raised its short-term foreign currency sovereign credit
rating on Peru to 'A-3' from 'B' and its short-term local
currency sovereign credit rating to 'A-2' from 'A-3'. The
outlook on the long-term ratings is stable.
In addition, S&P raised its transfer and convertibility
assessment for Peru to 'BBB+' from 'BBB'. The rating agency
withdrew its recovery rating of '3' on the republic; such
ratings are only assigned to speculative-grade foreign currency
ratings.
“The upgrade is supported by the significant decline in Peru's
fiscal and external vulnerabilities within a context of high and
diversifying sources of growth with low inflation and
strengthening macroeconomic fundamentals,” said S&P's credit
analyst Sebastian Briozzo. “It also reflects Standard & Poor's
expectation that these trends will remain in place over the
medium term despite an increasingly riskier international
environment and the continuation of challenging local politics.”
S&P believes Peru's credit strengths are sufficient to face
these medium-term challenges at a level of risk consistent with
the 'BBB-' credit rating.”
Sound economic prospects, with GDP growth rates estimated at
6.5% over the medium term, are a key-supporting factor for the
upgrade. Peru's robust growth prospects are supported by
rapidly growing investment levels that are expected to reach 25%
of GDP in 2008 and to grow further over the medium term.
“More importantly, economic growth has diversified over the last
three years evolving from a path mostly driven by external
demand into a more complex structure with more reliance on
dynamic domestic demand, in particular investment, but also
private consumption” Mr. Briozzo added. “This new pattern
is critical to achieving progress in terms of distributing more
evenly the benefits of economic growth to greater sectors of the
population, as reflected by improvements in employment and
decreases in poverty, therefore contributing to alleviate a
still complex social situation in Peru.”
The latter declined to a still high 39.3% in 2007 from 48.7% in
2005. Such advances contribute to alleviating the tensions
inherent in Peru's complex social issues. Despite the upgrade
to investment grade, Peru's political and social stability will
continue to constitute a credit weakness compared with peers.
Peru's social structure remains fragmented among social,
economic, and ethnic lines, contributing to a still a fragile
political system, in which political parties and institutions do
not enjoy high levels of popular support. For this reason, the
strong support from the political class for sound macroeconomic
policies, as seen in the current administration of President
Garcia and expected to continue under the new minister of
finance, remains a precondition for Peru to maintain its
recently obtained investment-grade rating.
S&P believes the increasing level of consensus of the Peruvian
political class on the importance of a sound macroeconomic
framework, characterized by strong fiscal results leading to
declining debt levels, operational independence of the central
bank and economic growth based on private investment, makes
Peru's political structure consistent with the 'BBB-' foreign
currency rating.
The stable outlook on Peru balances the macroeconomic strengths
of high-growth prospects and declining vulnerabilities with the
weaknesses derived from a still developing political
institutional framework and an economy that continues to depend
heavily on commodities. “Additional improvements in the debt
trajectory within a stable political context as well as material
progress in Peru's social conditions supporting greater
political stability could lead to upward movements on the rating
over the medium term,” noted Mr. Briozzo. “Conversely,
increasing levels of political polarization that erodes support
for sound macroeconomic policies would add pressure to the
rating and could lead to a downgrade to the speculative-grade
rating category.”
====================
P U E R T O R I C O
====================
ADELPHIA COMMS: Wants to Exclude Documents from Lucent Trial
------------------------------------------------------------
Reorganized Adelphia Communications Corporation and its
affiliates suffered a setback in its bid to seek a declaration
from the U.S. Bankruptcy Court for the Southern District of New
York on a claim by Lucent Technologies Inc. under Section 17-303
of Delaware's Revised Uniform Limited Partnership Act.
In its Claim, Lucent tries to hold ACC liable for the debts
allegedly incurred by Devon Mobile Communications, L.P.,
pursuant to a General Agreement for Personal Communications
Service Systems between Lucent and Devon.
ACOM owns 49.9% of the limited partnership of Devon.
The Reorganized ACOM Debtors had wanted the Court to preclude
Lucent from introducing into evidence:
(a) The Challenged Exhibits, which refer to holdings and
filings made in the ACC bankruptcy cases as well as other
proceedings, including the Adelphia Business Solutions,
Inc. bankruptcy case, the ACC/Rigas Action, the Devon/ACC
Adversary Proceeding, the BOA Action, the SEC Actions and
the FCC/Baker Creek Action that have nothing to do with
the contested proof of claim proceeding;
(b) The Challenged Control Facts, which purport the
proposition that ACOM participated in the control of
Devon; and
(c) The Challenged ABIZ Facts, which purport the idea that
Adelphia Business Solutions, Inc., assisted and provided
support to Devon and that ABIZ received no payment from
Devon for certain services performed.
For reasons stated on the record, the Court denied the
Reorganized ACOM Debtors' Motions in Limine with the exception
of the affidavit of Edward Babcock included in the Challenged
Exhibits. The Court reserved its decision with respect to the
Babcock Affidavit until the trial.
A trial was scheduled on June 23, 2008, solely on the Lucent
Section 17-303 Claim. During that trial, Lucent was to prove
that:
-- ACC participated in the control of Devon, within the
meaning of Section 17-303(a) and prove conduct that is not
within the acts and powers given a “safe harbor” under
Section 17-303(b);
-- if Lucent satisfactorily proves the Control Prong, Lucent
must also demonstrate conduct by ACC that would support a
reasonable belief by Lucent that ACC was a general partner
of Devon.
“The Challenged Exhibits are not subject to judicial notice, are
inadmissible hearsay and are not admissible to establish any
element of Lucent's Section 17-303 Claim,” Joanne B. Wills,
Esq., at Klehr, Harrison, Harvey, Branzburg & Ellers LLP, in
Philadelphia, Pennsylvania, argues.
She adds that the Challenged Control Facts are within the acts
and powers given a “safe harbor” under Section 303(b) and 303(d)
of the Delaware RULPA, which provides an extensive list of
protected activities that a limited partner is free to engage in
without being considered in “control of the business” of the
limited partnership.
Furthermore, the Challenged ABIZ Facts are irrelevant to both
the control and reliance prongs of Lucent's because the acts of
ABIZ cannot be imputed to ACOM; and even if they could be
imputed, the ABIZ acts fall within the safe harbors of Section
303(b), Ms. Wills maintains.
On behalf of Lucent, Joseph Lubertazzi, Jr., Esq., at McCarter &
English LLP, in New York, asserted that the Court should deny
ACC's Motions in Limine for these reasons:
(1) The application of the legal standards governing in
limine motions, especially where there is to be a bench
trial, results in the requests being denied;
(2) ACC failed to recognize that the challenged evidence is
admissible under Rules of Evidence and that the
challenged evidence also applies to other issues in the
proceeding; and
(3) ACC attempts to isolate, minimize and mis-apply the
challenged evidence from the entirety of the proceeding.
Mr. Lubertazzi clarified that the evidence Lucent wishes to use
establishes that ACC disregarded corporate forms in its conduct
with regard to many of its related entities, including Devon.
He maintained that Lucent is entitled to present the entire
picture of the manner in which ACC operated, including
demonstrating how the challenged evidence interacts with the
rest of the case's factual record.
“Evidence should be excluded on a motion in limine only when the
evidence is clearly inadmissible on all potential grounds,” Mr.
Lubertazzi elaborated.
“A review of many of the arguments raised by ACC reflects that
they are, in reality, an argument as to the weight of the
evidence,” Mr. Lubertazzi said. “Viewed in that light, it is
clear that the present motions are misguided.”
About Adelphia Comms
Based in Coudersport, Pennsylvania, Adelphia Communications
Corporation (OTC: ADELQ) -- http://www.adelphia.com/--
is a cable television company. Adelphia serves customers in 30
states and Puerto Rico, and offers analog and digital video
services, Internet access and other advanced services over its
broadband networks. The company and its more than 200
affiliates filed for Chapter 11 protection in the Southern
District of New York on June 25, 2002. Those cases are jointly
administered under case number 02-41729. Willkie Farr &
Gallagher represents the Debtors in their restructuring efforts.
PricewaterhouseCoopers serves as the Debtors' financial advisor.
Kasowitz, Benson, Torres & Friedman, LLP, and Klee, Tuchin,
Bogdanoff & Stern LLP represent the Official Committee of
Unsecured Creditors.
Adelphia Cablevision Associates of Radnor, L.P., and 20 of its
affiliates, collectively known as Rigas Manged Entities, are
entities that were previously held or controlled by members of
the Rigas family. In March 2006, the rights and titles to these
entities were transferred to certain subsidiaries of Adelphia
Cablevision LLC. The RME Debtors filed for chapter 11
protection on March 31, 2006 (Bankr. S.D.N.Y. Case Nos. 06-10622
through 06-10642). Their cases are jointly administered under
Adelphia Communications and its debtor-affiliates' chapter 11
cases.
The Bankruptcy Court confirmed the Debtors' Modified Fifth
Amended Joint Chapter 11 Plan of Reorganization on Jan. 5, 2007.
That plan became effective on Feb. 13, 2007. (Adelphia
Bankruptcy News, Issue No. 188; Bankruptcy Creditors' Service,
Inc., http://bankrupt.com/newsstand/or 215/945-7000)
AGILENT TECHNOLOGY: Moody's Affirms Ba1 Corporate Family Rating
---------------------------------------------------------------
Moody's Investors Service has affirmed the ratings of Agilent
Technologies, Inc., and revised the outlook to positive.
The positive outlook reflects Agilent's continued execution of
its business model and solid financial performance. It also
incorporates the company's strong demonstration of improved
revenue growth in conjunction with higher margins driven by new
product introductions, increased market penetration and
favorable product mix, as well as diversification of revenue
sources and end markets , continued cost containment, and
minimal restructuring charges. The outlook incorporates our
expectations that Agilent's electronic measurement (EM)
business, which accounts for roughly 62% of total revenues, will
demonstrate growth and operating margin characteristics at least
comparable to its business segment peers.
Although the company's financial measures are more indicative of
a Baa3 rating, Moody's remains concerned that sluggish order
growth in the EM business and a potential slowdown in Asian
markets could impact Agilent's financial performance later this
year and/or in early 2009. Moody's notes that Agilent's Asian
sales account for nearly 40% of net revenues. The Ba1 CFR also
incorporates financial policies that are shareholder-friendly.
Moody's expects the company to remain aggressive in share
buybacks, especially given the amount of excess balance sheet
cash and since a portion of senior management compensation
continues to be based on relative share price performance. The
rating agency cited that the positive outlook factors in the
expectation that Agilent will manage annual share repurchases
within its generation of annual free cash flow (FCF) plus excess
(unrestricted) cash balances above US$1.3 billion, while
maintaining debt to EBITDA of no more than 2 -- 2.5x (excludes
World Trade Enhanced Note) on an as reported basis.
Historically, Agilent's share buybacks have ranged from US$2 to
4 billion per annum. Finally, the Ba1 CFR incorporates the
potential for leveraging event risk given the company's penchant
to supplement growth through external means. As world economies
continue to show signs of deceleration, Agilent may fall short
of its 10% revenue growth target, which could result in more
reliance on acquisitions, albeit this would be a departure from
Agilent's current strategy.
The combination of these factors constrains the CFR at Ba1. How
the company manages share repurchases and acquisitions during a
period of weaker operating performance will be an important
factor in Moody's analysis of Agilent's ratings. If there is no
dramatic deterioration in operating performance over the next
six -- nine months in conjunction with a likely slowing of Asian
economies, and if Agilent is able to demonstrate financial
policies that are consistent with the rating agency's
expectations, without materially impacting financial leverage,
Moody's could upgrade the rating.
The company's SGL-1 rating reflects very good liquidity, which
is driven by Agilent'sUS$1.7 billion of unrestricted cash and
short-term investments and Moody's expectations for positive FCF
generation (after acquisitions) over the next 12 to 18 months.
Following completion of theUS$2 billion share repurchase program
in fiscal 2009, Moody's expects that Agilent will maintain cash
balances of around US$1.3 billion or more plus continued access
to a US$300 million multi-year committed unsecured credit
facility. Additional liquidity support is derived from our
expectation that FCF generation will remain robust through
cycles given that operating performance continues to remain
solid. Moody's expects that the bulk of FCF is likely to be
used for small, tuck-in acquisitions and remaining share
repurchases, thereby limiting further cash buildup.
These ratings were affirmed:
* Corporate Family Rating -- Ba1
* Probability of Default Rating -- Ba1
* US$600 million Senior Unsecured Notes due 2017 -- Ba1 (LGD-4,
52%)
* Speculative Grade Liquidity -- SGL-1
About Agilent Technologies
Agilent Technologies Inc. (NYSE: A) -- http://www.agilent.com/
-- is the world's premier measurement company and a technology
leader in communications, electronics, life sciences and
chemical analysis. The company's 19,000 employees serve
customers in more than 110 countries.
The company has operations in India, Argentina, Puerto Rico,
Bolivia, Paraguay, Venezuela, and Luxembourg.
BEATRIX READY: Case Summary & 20 Largest Unsecured Creditors
------------------------------------------------------------
Debtor: Beatriz Ready Mix, Inc.
PMB 24
P.O. Box 6400
Cayey, PR 00737
Bankruptcy Case No.: 08-04457
Type of Business: The Debtor sells pre-mixed concrete.
Chapter 11 Petition Date: July 10, 2008
Court: District of Puerto Rico (Old San Juan)
Debtors' Counsel: Carmen D. Conde Torres, Esq.
(condelaw.com)
254 San Jose Street, 5th Floor
San Juan, PR 00901-1523
Tel: (787) 729-2900
Fax: (787) 729-2203
Total Assets: US$3,182,872
Total Debts: US$4,355,605
A list of the Debtor's largest unsecured creditors is available
for free at:
http://bankrupt.com/misc/prb08-04457.pdf
=================
V E N E Z U E L A
=================
PETROLEOS DE VENEZUELA: Hugo Chavez Urges CenAm & Caribbean JV
--------------------------------------------------------------
Dow Jones Newswires reports that Venezuelan President Hugo
Chavez has urged Central American and Caribbean countries to
form energy companies that can sign joint ventures with
Petroleos de Venezuela S.A.
According to Dow Jones, President Chavez said, "We should create
a PetroCaribe company or a group of companies . . . to handle
oil exploitation activities. From there we would supply the
PetroCaribe accord, from the Boyaca 3 block (in the Orinoco).
That block is available."
"It would be a grand national PetroCaribe company to create
joint ventures with countries and to participate in the
Orinoco," Dow Jones further quoted President Chavez.
Petroleos de Venezuela would have a 60% controlling share in the
joint ventures, while PetroCaribe will have the remaining stake,
President Chavez added.
Dow Jones relates that President Chavez offered technical
assistance to help neighboring nations form their own state-
owned energy firms.
Petroleos de Venezuela S.A. -- http://www.pdvsa.com/-- is
Venezuela's state oil company in charge of the development of
the petroleum, petrochemical and coal industry, as well as
planning, coordinating, supervising and controlling the
operational activities of its divisions, both in Venezuela and
abroad. The company has a commercial office in China.
* * *
In March 2007, Standard & Poor's Ratings Services assigned its
'BB-' senior unsecured long-term credit rating to Petroleos de
Venezuela S.A.'s US$2 billion notes due 2017, US$2 billion notes
due 2027, and US$1 billion notes due 2037.
Also in March 2007, Fitch Ratings gave a BB- rating to PdVSA's
Senior Unsecured debt.
On Feb. 7, 2007, Moody's Investors Service affirmed the
company's B1 global local currency rating.
PETROLEOS DE VENEZUELA: To Conduct Maintenance Work at Amuay
------------------------------------------------------------
Petroleos de Venezuela S.A.'s Senior Refining Official Jesus
Luongo said the firm will conduct a four-month maintenance and
expansion work at the Amuay oil plant's cat cracker, Reuters
reports.
According to Reuters, Mr. Luongo said the work will begin in
August 2008. Mr. Luongo told reporters on the sidelines of a
Colombian-Venezuelan meeting on energy cooperation in Punto Fijo
in Western Venezuela that Petroleos de Venezuela considers the
planned work as a major operation.
Stoppages due to incidents like power outages and maintenance
programs have lowered Venezuela's production from its refineries
over the last few years, Reuters states, citing industry
analysts.
Petroleos de Venezuela S.A. -- http://www.pdvsa.com/-- is
Venezuela's state oil company in charge of the development of
the petroleum, petrochemical and coal industry, as well as
planning, coordinating, supervising and controlling the
operational activities of its divisions, both in Venezuela and
abroad. The company has a commercial office in China.
* * *
In March 2007, Standard & Poor's Ratings Services assigned its
'BB-' senior unsecured long-term credit rating to Petroleos de
Venezuela S.A.'s US$2 billion notes due 2017, US$2 billion notes
due 2027, and US$1 billion notes due 2037.
Also in March 2007, Fitch Ratings gave a BB- rating to PdVSA's
Senior Unsecured debt.
On Feb. 7, 2007, Moody's Investors Service affirmed the
company's B1 global local currency rating.
***********
Monday's edition of the TCR-LA delivers a list of indicative
prices for bond issues that reportedly trade well below par.
Prices are obtained by TCR-LA editors from a variety of outside
sources during the prior week we think are reliable. Those
sources may not, however, be complete or accurate. The Monday
Bond Pricing table is compiled on the Friday prior to
publication. Prices reported are not intended to reflect actual
trades. Prices for actual trades are probably different. Our
objective is to share information, not make markets in publicly
traded securities. Nothing in the TCR-LA constitutes an offer
or solicitation to buy or sell any security of any kind. It is
likely that some entity affiliated with a TCR-LA editor holds
some position in the issuers' public debt and equity securities
about which we report.
Tuesday's edition of the TCR-LA features a list of companies
with insolvent balance sheets obtained by our editors based on
the latest balance sheets publicly available a day prior to
publication. At first glance, this list may look like the
definitive compilation of stocks that are ideal to sell short.
Don't be fooled. Assets, for example, reported at historical
cost net of depreciation may understate the true value of a
firm's assets. A company may establish reserves on its balance
sheet for liabilities that may never materialize. The prices at
which equity securities trade in public market are determined by
more than a balance sheet solvency test.
A list of Meetings, Conferences and Seminars appears in each
Thursday's edition of the TCR-LA. Submissions about insolvency-
related conferences are encouraged. Send announcements to
conferences@bankrupt.com
***********
S U B S C R I P T I O N I N F O R M A T I O N
Troubled Company Reporter - Latin America is a daily newsletter
co-published by Bankruptcy Creditors' Service, Inc., Fairless
Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick,
Maryland USA. Tara Eliza E. Tecarro, Sheryl Joy P. Olano,
Rizande de los Santos, and Pamella Ritah K. Jala, Editors.
Copyright 2008. All rights reserved. ISSN 1529-2746.
This material is copyrighted and any commercial use, resale or
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Information contained herein is obtained from sources believed
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