JPM di ieri
Crystallex obtains the writ to attach PDVH shares. Today, Judge Stark from the District Court of Delaware has ordered the court clerk to issue a praecipe to Crystallex, which allows the U.S. Marshal Services to issue the writ of attachment on PDV Holding (PDVH) shares. The execution of the attachment of property is stayed until further order. In the court order, PDVSA is allowed to post a supersedeas bond (or seek other appropriate relief) to achieve a stay on the sale of PDVH shares. We note that with this order, PDVSA has not lost the right to appeal –a process that was initiated by PDVSA last Friday in the Third Circuit. The order follows Judge Stark’s Aug 9 ruling that PDVSA was Venezuela’s legal “alter ego,” thereby allowing Crystallex to satisfy its $1.2bn arbitration judgment against the Republic of Venezuela by attaching shares of the Delaware-based PDV Holding, in turn the 100% owner of Citgo Holding (see our note Crystallex wins on alter ego, PDVSA appeals).
The Delaware district court acknowledged the interest of third parties in this process. After receiving unsolicited letters in recent days from Citgo and Rosneft, the court allowed any interested party to file motions before the court issues the order of sale. The court requested such motions within 7 days, with responses filed 14 days after and replies to any responses 7 days thereafter. Presumably, PDVSA 2020s holders, as well as Rosneft, will seek to provide the relevant information that demonstrates their first-priority security interest in the shares of Citgo Holding Inc. Indeed, in its August 22 letter Rosneft stated that it “possesses a perfected, first-priority security interest in 49.9% of the shares of CITGO Holding, Inc., and the holders of PDVSA bonds maturing in 2020 possess a perfected, first-priority security interest in the remaining 50.1% of the shares. Thus, the core asset that would be sold as part of any potential sale of PDVH is 100% encumbered.”
PDVSA faces an important decision in pledging a supersedeas bond or filing for Chapter 11. As outlined above, PDVSA could only obtain a stay on the sale of the shares by pledging a supersedeas bond or any other acceptable asset with a value of $1.4 billion (we wonder if the PDVH shares themselves could be posted as the bond). On the contrary, PDVSA could protect its ownership in PDVH by filing Chapter 11 protection in the U.S., a scenario discussed by Cleary in this report. However, such an option, while being more orderly for the numerous creditors, would seemingly guarantee that PDVSA would surrender its ownership of Citgo, a scenario we still think it prefers to avoid, even against mounting odds.
Conoco reaches a settlement agreement with PDVSA on the $2 bn arbitration award. In our last report, we noted that the ConocoPhillips case was one to keep an eye on, since its $2bn arbitration award was a direct claim on PDVSA and thus not subject to alter-ego considerations. We also noted that settlement discussions were in the works. Indeed, on August 20, Conoco announced that it had entered into a settlement agreement with PDVSA including an approximate $500mn initial payment due 90 days after signing, with the $1.5bn balance to be paid quarterly over 4.5 years. Conoco’s formal statement also noted that “the settlement meets all appropriate U.S. regulatory requirements, including any applicable sanctions imposed by the U.S. against Venezuela,” while noting that other details of the settlement would be confidential. PDVSA accepted the service of the SDNY summons, and the court granted a final judgment to Conoco. Recall that aside from its successful attachment of assets in the Dutch Caribbean, Conoco had also initiated the process of seeking a judgment in the US at the Southern District of New York, but it was facing a relatively cumbersome process to serve PDVSA as per the guidelines of the US Foreign Sovereign Immunity Act (FSIA). Subsequent to the announcement of the settlement, on August 22 lawyers for PDVSA acknowledged and accepted the service of the SDNY’s summons, while consenting to its jurisdiction, including waiving any available legal options related to the FSIA.
The SDNY in turn wasted no time, and on August 22 rendered the full $2bn judgment in favor of Conoco. We presume that these actions, while not mentioned in the press statement, were part and parcel of the settlement agreement reached between the parties. Indeed, while Conoco in the aforementioned statement “agreed to suspend its legal enforcement actions of the ICC award, including in the Dutch Caribbean,” in our view attainment of the SDNY judgment should allow Conoco to almost immediately ratchet up the legal pressure against PDVSA in the future if the latter fails to comply with the payment terms of the settlement. The Conoco final judgment may trigger an event of default on PDVSA 2020 notes. As for the PDVSA 2020 bondholders, the SDNY judgment leads us to contemplate another interesting wrinkle, since the bond has as an Event of Default the following clause related to PDVSA (as the Issuer): “one or more judgments in an aggregate amount in excess of U.S. $100 million shall have been rendered against the Issuer or any of its Significant Subsidiaries and such judgments remain undischarged, unpaid or, unstayed, unbonded or not suspended by agreement for a period of 60 days after such judgment or judgments become final and non-appealable”
Satisfied? While logic would hold that the settlement between PDVSA and Conoco somehow means the judgment is effectively (conditionally) satisfied, in the absence of a detailed understanding of the settlement agreement between Conoco and PDVSA, the judgment itself may provide
some additional legal options for the PDVSA 2020 bondholders to explore, even while PDVSA is current on payments for now