Six Creditors' Motion to continue SPO
posted on
Dec 27, 2023 01:56PM
Crystallex International Corporation is a Canadian-based gold company with a successful record of developing and operating gold mines in Venezuela and elsewhere in South America
I mentioned this yesterday where the Six Creditors submitted a motion to the court to continue with the Sales Process Order should VZ settle with KRY and COF. Here's a severely edited part of that motion (the court did not respond that I've seen)
The Six Creditors ..."hereby respectfully move for an order conclusively designating the Six Creditors (and any other eligible conditional attachment recipients) as Additional Judgment Creditors (and/or Sale Process Parties, if necessary) under the Sale Procedures Order, confirming that the SPO is applicable in the Six Creditor actions captioned above will remain in full force and effect irrespective of any possible resolution of the judgments obtained by the existing Sale Process Parties.
The undersigned Six Creditors have all obtained conditional writs of attachment and thus have completed Steps 1 through 5 prescribed by the Court in its July 27, 2023 Order. As a result, the undersigned Six Creditors are, at the very least, eligible to be designated at this time by the Court as “Additional Judgment Creditors”...
"Until recently, however, the manner for perfecting service of the conditional writs of attachment was clouded by the assertion by Petróleos de Venezuela unable to locate its stock certificate for PDV Holding, Inc. (“PDVH”). Indeed, PDVSA’s inability to locate its stock certificates is one of the express reasons given by the Court for delaying deadlines for the completion of Steps 6 and 7 for those parties, like the Six Creditors, that have completed Step 5.
However, in the past week, the matter of PDVSA’s “lost” stock certificates has been resolved...
"Once that occurs, the Six Creditors will be eligible to perfect their writs of attachment in accordance with, and prior to the expiration of, the current deadlines for Steps 5 through 7. However, time is of the essence. As the sale approaches, there is a meaningful risk that the Venezuela Parties could attempt to thwart the sale process, including potentially by satisfying or otherwise consensually resolving the judgments owed to the current Sale Process Parties.
In such a scenario, the interests of the Six Creditors could be jeopardized. In particular, unless the Court clarifies and ensures that the sale process will continue, even in the event of a settlement between the Venezuela Parties and a current Sale Process Party, the Special Master may erroneously conclude that his work should cease, based on the language in the SPO providing that, “[i]f at any time all Attached Judgments become satisfied in full (or otherwise are consensually resolved), then the Special Master shall cease implementation of the Sale Procedures and seek further direction from the Court.”
At minimum, such circumstances could create ambiguity concerning whether and on what schedule the sales process will continue, which would contradict the Court’s oft-stated maxim that the sale process must and will continue in a manner that will generate a value-maximizing sale of the PDVH shares for the benefit of the maximum number of creditors.
To be clear, the Six Creditors do not agree that this would be an appropriate result, even if both Crystallex and ConocoPhillips have their relevant judgments satisfied.