13-11396-mg

Doc 35

Filed 05/06/13

Entered 05/06/13 15:05:31 Pg 1 of 13

Main Document

GIBSON, DUNN & CRUTCHER LLP J. Eric Wise Shira D. Weiner 200 Park Avenue New York, New York 10166-0193 Telephone: (212) 351-4000 Facsimile: (212) 351-4035 Proposed Attorneys for the Debtor and Debtor in Possession UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------x : : IN RE: : : NEWLAND INTERNATIONAL : PROPERTIES, CORP., : : Debtor. : ---------------------------------------------------------------x

Chapter 11 Case No. 13-11396 (MG)

DEBTORS MOTION FOR ENTRY OF AN ORDER AUTHORIZING THE DEBTOR TO FILE UNDER SEAL CERTAIN CONFIDENTIAL PLAN SUPPLEMENT DOCUMENTS Newland International Properties, Corp., as debtor and debtor in possession (the Debtor), submits this motion (the Motion) for entry of an order pursuant to section 107(b) of title 11 of the United States Code (the Bankruptcy Code)1 and Rule 9018 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules) authorizing the Debtor to: (a) redact certain confidential documents (the Confidential Documents) contained in the Plan Supplement that will be filed in connection with the Prepackaged Plan of Reorganization for the Debtor Under

1 All statutory references are to the Bankruptcy Code unless otherwise specified.

13-11396-mg

Doc 35

Filed 05/06/13

Entered 05/06/13 15:05:31 Pg 2 of 13

Main Document

Chapter 11 of the Bankruptcy Code, dated March 29, 2013 [Docket No. 11] (the Plan)2 and in other disclosures, applications, motions, and other pleadings related to such Confidential Documents (collectively, the Disclosures) filed publicly with the Court (each redacted Disclosure, a Redacted Disclosure); (b) file an unredacted copy of the Confidential Documents and any related Disclosures (the Unredacted Disclosures) with the Court under seal; and (c) provide a copy of the Unredacted Disclosures to (i) the United States Trustee for the Southern District of New York (the United States Trustee), (ii) professionals for (x) the Official Committee of Unsecured Creditors (the Committee), if appointed, and (y) the Steering Group, and (iii) any Noteholder (as defined below); provided that each of the foregoing other than the United States Trustee executes an appropriate confidentiality agreement in form and substance reasonably acceptable to the Debtor and the Trump Parties (as defined below). In support of the Motion, the Debtor respectfully represents:3 BACKGROUND A. General Background 1. On April 30, 2013 (the Petition Date), the Debtor commenced a case (the

Chapter 11 Case) under chapter 11 of the Bankruptcy Code. The Debtor is operating its business and managing its property as a debtor in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code.

2 Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Plan. 3 A description of the Debtors business and the reasons for filing the Chapter 11 Case is set forth in the Declaration of Carlos Saravia, Chief Operating Officer of Newland International Properties, Corp., in Support of the Debtors Chapter 11 Petition and First Day Motions and in Accordance with Local Rule 1007-2, executed on April 30, 2013 (the Saravia Declaration) [Docket No. 2].

13-11396-mg

Doc 35

Filed 05/06/13

Entered 05/06/13 15:05:31 Pg 3 of 13

Main Document

2.

No request has been made for the appointment of a trustee or an examiner in the

Chapter 11 Case. No official committee has been appointed by the Office of the United States Trustee. B. The Debtors Business 3. The Debtor is a real estate development company established exclusively to

develop the Trump Ocean Club International Hotel & Tower in Panama City, Panama (the Trump Ocean Club) and the related amenities. 4. Trump Ocean Club is a multi-use luxury tower overlooking the Pacific Ocean,

with luxury condominium residences, a world-class hotel condominium, a limited number of offices and premier leisure amenities. Trump Ocean Club is located on the Punta Pacifica Peninsula one of the most exclusive neighborhoods in Panama City on approximately 2.8 acres of land, including approximately 295 lineal feet of oceanfront. The Trump Ocean Club tower has 69 floors of construction, three of which are technical floors dedicated to critical machinery, with the remaining floors including, among other things, 630 luxury residential condominium units and 369 world-class hotel condominium units, a pier facility, pool deck, 30 boutique shops, 64 office lofts, restaurants and 1592 parking spaces. The construction of the building is finished and the hotel is currently in operation, as are the residences, offices, boutiques and restaurants. The developers are now finishing a private beach club located on Viveros Island, which is scheduled to be completed in September 2013. Newland also announced an agreement with a globally-recognized gaming group which plans to operate a 75,000 square foot casino in the building as well as the acquisition of important real estate units to complement its gaming business. The transaction remains subject to the fulfillment of certain conditions for filing and obtaining the necessary authorizations from the Panamanian Government. Operating under the internationally recognized Trump brand name, Trump Ocean

13-11396-mg

Doc 35

Filed 05/06/13

Entered 05/06/13 15:05:31 Pg 4 of 13

Main Document

Club is a unique development not only in Panama, but also in the Central American and Caribbean regions. 5. As of April 23, 2013, sellout totals approximately $530.2 million, consisting of

604 sold units aggregating $239.2 million and 495 available units aggregating $290.9 million. Of the 604 units sold, 554 units have closed.4 From January 2012 through April 23, 2013, Newland sold 50 units in gross sales (before broker commissions) in an aggregate amount of $19.3 million. Average price per square meter for residential units, condo-hotel units and commercial space amounted to $3,075, $4,871 and $6,126, respectively. The 495 units of available inventory include 291 residential condominium units, 201 hotel condominium units, 2 restaurant spaces, and the casino. 6. As of the Petition Date, the Debtor has approximately 40 direct employees, all of

whom work in the Debtors corporate headquarters in Panama City, Panama. The Debtors management is employed by the Debtor through Arias, Serna y Saravia, S.A. For the year ended December 31, 2012, the Debtors net loss was approximately $50.6 million. As of the Petition Date, the Debtors debt is approximately $287 million. C. The Proposed Restructuring 7. Prior to the Petition Date, the Debtor commenced the solicitation of votes with

respect to the Plan, which Plan, together with its related Disclosure Statement, dated March 29, 2013 (including all exhibits and supplements, the Disclosure Statement), have each been filed contemporaneously herewith. 8. If confirmed, the Plan will implement the agreed restructuring of the Debtors

obligations to the holders (the Noteholders and each a Noteholder) of the Debtors 9.50%
4 A unit is considered closed when the buyer has paid the remaining balance and has signed the deed.

13-11396-mg

Doc 35

Filed 05/06/13

Entered 05/06/13 15:05:31 Pg 5 of 13

Main Document

Senior Secured Notes due 2014 (the Prepetition Senior Secured Notes), provide for the payment of all general unsecured claims in full, and effect the cancellation of the Prepetition Senior Secured Notes and the issuance of new notes in exchange for such cancellation. 9. Before soliciting votes on the Plan, the Debtor engaged in extensive negotiations

with a steering group of Prepetition Noteholders, collectively holding or controlling approximately 42% of the outstanding principal amount of the Prepetition Senior Secured Notes (the Steering Group), regarding the terms of a financial restructuring of the Debtors business. As a result of these negotiations, the Debtor reached an agreement (the Plan Support Agreement) with a super-majority of its Prepetition Noteholders as to the terms of a restructuring of the Prepetition Senior Secured Notes that will implement a feasible capital structure and a sound business plan for the Debtor. The Plan incorporates the terms of all of the related prepetition agreements, including the Plan Support Agreement. To effectuate the terms of the consensual restructuring as contemplated under the Plan Support Agreement, on April 1, 2013, prior to filing the Chapter 11 Case, the Debtor solicited votes on the Plan from all of the Prepetition Noteholders, the only impaired class of creditors entitled to vote on the Plan. The Debtor established April 29, 2013 at 5:00 p.m. (Eastern Time), as the deadline for the receipt of votes to accept or reject the Plan. The Debtors balloting and tabulation agent has confirmed that 100% of the votes received were in favor of the Plan. 10. A hearing on confirmation of the Plan and adequacy of the Disclosure Statement

is scheduled to be held on May 28, 2013. JURISDICTION AND VENUE 11. The Court has jurisdiction to consider this Motion pursuant to 28 U.S.C. 157

and 1334. This is a core proceeding pursuant to 28 U.S.C. 157(b). Venue is proper in this district pursuant to 28 U.S.C. 1408 and 1409.

13-11396-mg

Doc 35

Filed 05/06/13

Entered 05/06/13 15:05:31 Pg 6 of 13

Main Document

RELIEF REQUESTED 12. By this Motion, the Debtor seeks entry of an order pursuant to section 107(b) of

the Bankruptcy Code and Bankruptcy Rule 9018, substantially in the form annexed hereto as Exhibit A (the Proposed Order), authorizing the Debtor to: (a) redact the Confidential Documents in the Plan Supplement and any other related Disclosures filed publicly with the Court; (b) file a copy of the Unredacted Disclosures with the Court under seal; and (c) provide a copy of the Unredacted Disclosures to (i) the United States Trustee, (ii) professionals for (x) the Committee, if appointed, and (y) the Steering Group, and (iii) any Noteholder; provided that each of the foregoing other than the United States Trustee executes an appropriate confidentiality agreement in form and substance reasonably acceptable to the Debtor and the Trump Parties (as defined below). BASIS FOR RELIEF REQUESTED 13. Section 107(b) provides, in relevant part, as follows: On request of a party in

interest, the bankruptcy court shall . . . (1) protect an entity with respect to a trade secret or confidential research, development, or commercial information . . . 11 U.S.C. 107(b). 14. Bankruptcy Rule 9018 provides, in relevant part, as follows: On motion or on its own initiative, with or without notice, the court may make any order which justice requires (1) to protect the estate or any entity in respect of a trade secret or other confidential research, development, or commercial information contained in any paper filed in a case under the Code. Fed. R. Bankr. P. 9018. 15. The Second Circuit has held that section 107(b) and Bankruptcy Rule 9018 do

not require that commercial information be the equivalent of a trade secret before protecting such information. Video Software Dealers Assoc. v. Orion Pictures Corp. (In re Orion Pictures

13-11396-mg

Doc 35

Filed 05/06/13

Entered 05/06/13 15:05:31 Pg 7 of 13

Main Document

Corp.), 21 F.3d 24, 28 (2d Cir. 1994). In addition, the Second Circuit has held that a party seeking to seal information is required to show only that the information is confidential and commercial. No showing of good cause is necessary, although as set forth below, the Debtor here has demonstrated that good cause does exist. Id. 16. By this Motion, the Debtor seeks to limit public access to certain

Confidential Documents contained in the Plan Supplement and related Disclosures. The Confidential Documents consist of licensing and similar agreements between the Debtor and the Trump Parties, which contain confidential commercial information relating to pricing, fees and other agreed terms. Exposure of this confidential commercial information would be detrimental to the Debtor, its estate and creditors, as well as the Trump Parties, who are party to various similar agreements with third parties, and the exposure of such terms would be anticompetitive to their business. Moreover, making public the Confidential Documents would likely harm the relationship among the Debtor and the Trump Parties and adversely affect the Debtors ability, among other things, to operate under the Trump name. It is therefore essential that the Confidential Documents remain confidential. Due to the complexity of the Confidential Documents, the Debtor requests that the Court authorize it to redact the Confidential Documents from the Plan Supplement in their entirety rather than certain provisions thereof. 17. The Debtor, soon after the filing of the Plan Supplement, will share

unredacted copies of the Plan Supplement, including the Confidential Documents, and any other related Disclosures with (a) the United States Trustee, (b) professionals for (i) the Committee, if appointed, and (ii) the Steering Group, and (c) any Noteholder; provided that each of the foregoing other than the United States Trustee executes an appropriate confidentiality agreement in form and substance reasonably acceptable to the Debtor and the Trump Parties. Therefore,

13-11396-mg

Doc 35

Filed 05/06/13

Entered 05/06/13 15:05:31 Pg 8 of 13

Main Document

public disclosure of the Confidential Documents and related Disclosures is not necessary to protect the interests of the Debtors creditors. Furthermore, any party or member of the public with a compelling interest in learning the terms of the Confidential Documents may request a further order from this Court. In sum, the relief sought in this Motion is necessary to protect the confidential commercial information of the Debtor and will not impair the ability of this Court to protect the public interest. NO PRIOR REQUEST 18. No previous motion for the relief sought in this Motion has been made to this or

any other Court. NOTICE 19. No trustee, examiner, or official committee of unsecured creditors has been

appointed in the Chapter 11 Case. The Debtor has provided notice of filing of the Motion by electronic mail, facsimile, and/or overnight mail to: (a) the office of the United States Trustee; (b) the Debtors 20 largest unsecured creditors; (c) counsel to the Indenture Trustee; (d) counsel to the Steering Group; (e) the United States Securities and Exchange Commission; and (f) all other parties entitled to notice in this Chapter 11 Case.

13-11396-mg

Doc 35

Filed 05/06/13

Entered 05/06/13 15:05:31 Pg 9 of 13

Main Document

CONCLUSION WHEREFORE, the Debtor respectfully requests that the Court grant the relief requested herein and such other and further relief as the Court may deem just and proper. Dated: May 6, 2013 New York, New York Respectfully submitted, /s/ J. Eric Wise J. Eric Wise Shira D. Weiner GIBSON, DUNN & CRUTCHER LLP 200 Park Avenue New York, New York 10166-0193 Telephone: (212) 351-4000 Facsimile: (212) 351-4035 PROPOSED ATTORNEYS FOR THE DEBTOR AND DEBTOR IN POSSESSION

13-11396-mg

Doc 35

Filed 05/06/13 Entered 05/06/13 15:05:31 Pg 10 of 13

Main Document

EXHIBIT A Proposed Order

13-11396-mg

Doc 35

Filed 05/06/13 Entered 05/06/13 15:05:31 Pg 11 of 13

Main Document

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------x : : IN RE: : : NEWLAND INTERNATIONAL : PROPERTIES, CORP., : : Debtor. : ---------------------------------------------------------------x

Chapter 11 Case No. 13-11396 (MG)

ORDER AUTHORIZING THE DEBTOR TO FILE UNDER SEAL CERTAIN CONFIDENTIAL PLAN SUPPLEMENT DOCUMENTS Upon consideration of the motion (the Motion)1 of Newland International Properties, Corp., as debtor and debtor in possession (the Debtor) in the above-captioned chapter 11 case (the Chapter 11 Case), for entry of an order pursuant to Bankruptcy Code 107 and Bankruptcy Rule 9018, authorizing the Debtor to: (a) redact certain confidential documents (the Confidential Documents) contained in the Plan Supplement that will be filed in connection with the Prepackaged Plan of Reorganization for the Debtor Under Chapter 11 of the Bankruptcy Code, dated March 29, 2013 [Docket No. 11] (the Plan) and in other disclosures, applications, motions, and other pleadings related to such Confidential Documents (collectively, Disclosures) filed publicly with the Court (each redacted Disclosure, a Redacted Disclosure); (b) file an unredacted copy of the Confidential Documents and related Disclosures (Unredacted Disclosures) with the Court under seal; and (c) provide a copy of the Unredacted Disclosures to (i) the United States Trustee for the Southern District of New York (the United States Trustee), (ii) professionals for (x) the Official Committee of Unsecured Creditors

1 Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Motion.

13-11396-mg

Doc 35

Filed 05/06/13 Entered 05/06/13 15:05:31 Pg 12 of 13

Main Document

(the Committee), if appointed, and (y) the Steering Group, and (iii) any Noteholder; provided that each of the foregoing other than the United States Trustee executes an appropriate confidentiality agreement in form and substance reasonably acceptable to the Debtor and the Trump Parties; it appearing that the relief requested in the Motion is appropriate in the context of these cases and in the best interests of the Debtor and its estate; the Court having reviewed the Motion and having considered the statements in support of the relief requested therein at a hearing before the Court (the Hearing); and the Court having determined that the legal and factual bases set forth in the Motion and at the Hearing establish just cause for the relief granted herein; and upon all of the proceedings had before the Court; and after due deliberation and sufficient cause appearing therefor, IT IS HEREBY ORDERED: 1. 2. The Motion is approved to the extent set forth herein. Pursuant to section 107(b) of the Bankruptcy Code and Bankruptcy Rule 9018,

the Debtor may redact the Confidential Documents from the Plan Supplement and any related Disclosures (defined in the Motion as a Redacted Disclosure), and serve such Redacted Disclosure on all parties entitled to notice thereof under the Bankruptcy Code, the Bankruptcy Rules or any other applicable order. 3. The clerk of the Bankruptcy Court shall accept for filing under seal an unredacted

copy of the Confidential Documents and any related Disclosures publicly filed in redacted form pursuant to this Order (defined in the Motion as Unredacted Disclosures). 4. The Unredacted Disclosures shall be available to the Court, but otherwise shall

remain under seal and may not be unsealed unless and until authorized by an order of the Court.

13-11396-mg

Doc 35

Filed 05/06/13 Entered 05/06/13 15:05:31 Pg 13 of 13

Main Document

5.

The Debtor shall serve a copy of any Unredacted Disclosure, permitted pursuant

to this Order, on (a) the United States Trustee, (b) professionals for (i) the Committee, if appointed, and (ii) the Steering Group, and (c) any Noteholder; provided that each of the foregoing other than the United States Trustee executes an appropriate confidentiality agreement in form and substance reasonably acceptable to the Debtor and the Trump Parties. Notwithstanding anything contained herein to the contrary and for the avoidance of doubt, any party who receives the Unredacted Disclosures in accordance with this Order shall not disclose or otherwise disseminate such Unredacted Disclosures to any other person or entity and shall keep the Unredacted Disclosures confidential. 6. The Debtor shall provide a copy of any Unredacted Disclosures as required by an

order of this Court or other Court of competent jurisdiction. 7. Entry of this Order is without prejudice to the rights of any party in interest or the

U.S. Trustee to request the entry of an order to unseal the Confidential Documents or Disclosures. 8. The clerk of the Bankruptcy Court shall treat the Unredacted Disclosures as

confidential and counsel for the Debtor shall contact the Clerks Office regarding the return or disposition of the Unredacted Disclosures within ten (10) days after the Effective Date of the Plan. 9. This Order shall be immediately effective and enforceable upon its entry.

Dated: _________, 2013 New York, New York ____________________________________ THE HONORABLE MARTIN GLENN UNITED STATES BANKRUPTCY JUDGE