Monday, March 28, 2011

Investor Wins $2 Million and Auto Dealership in Fraud Suit

A judge ruled in favor of North Shore Auto Group investor Chuck Brahos Friday, convicting the dealership's managing members of fraud and breach of fiduciary duty.
Highland Park investor Chuck Brahos walked out of the Lake County Courthouse on Friday looking jubilant, and half-seriously raised his hands in the air in victory.
“I feel vindicated,” he said.
Brahos had just heard the final verdict on a case he filed nearly three years ago, against Carl Ritz of Northbrook and Carey Chickerneo and Steven Goodman of Highland Park, principals of Highland Park’s North Shore Auto Group. After Brahos invested $750,000 in the company and signed on as a non-managing member in 2006, Ritz, Chickerneo and Goodman created a phony operating agreement behind his back and attempted to expel him as a shareholder, according to Judge Margaret Mullen.
Because of the complexity of the issues involved, Brahos’ suit was decided in two parts. In February, a jury ruled that Chickerneo, Ritz and Goodman were guilty of fraud and awarded Brahos more than $2 million.
Final judgment was entered on Brahos’ lawsuit Friday, when Judge Mullen ruled in a bench trial that Chickerneo, Ritz and Goodman were also guilty of breach of fiduciary duty. According to Mullen, the three managing partners created a false operating agreement, which they submitted to the bank at the closing of the loan the partners took out to buy North Shore Auto Group. That agreement did not contain the provisions Brahos believed were necessary to protect his investment—and the provisions he believed he had signed on to.
“I find that Mr. Brahos would not have made his capital contributions without these provisions,” Mullen said.
Because Brahos was a shareholder and Ritz, Chickerneo and Goodman were managing members of North Shore Auto, they owed Brahos a fiduciary duty—“care in the conduct of the company’s business,” Mullen explained. Furthermore, because Chickerneo acted as the auto group’s lawyer, he owed Brahos an additional duty as overseer of the group’s dealership and loan transactions. But Chickerneo did not ensure that the operating agreement was legal, and all three members did not abide by the operating agreement Brahos believed he had signed on to, according to Mullen. For example, the three voted to maintain their salaries from 2007 to 2010 without repaying any of Brahos’ investment, despite the fact that the contract Brahos signed stipulated that salaries should be reduced with time if his investment was not returned.
“They disregarded the plaintiff’s interests, lied to him, acted in contravention to the agreement that they made and then they expelled him without cause,” Mullen said.
In October 2008, Ritz, Chickerneo and Goodman scheduled a meeting, and despite Brahos’ requests, refused to provide an agenda. Then they held a vote to expel him from the company. But, Mullen said, “Mr. Brahos did nothing that could be construed as wrongful conduct”—and the operating agreement he signed prohibited expulsion without cause.
In her judgment, Mullen cited Brahos’ believability as a witness as a key factor behind her decision in his favor.
In contrast, she said, Chickerneo, Ritz and Goodman were “remarkably incredible witnesses, at best evasive and at worst, impeachable.”
Ritz, Goodman and Chickerneo were not present for Friday’s verdict. According to their lawyer, Elizabeth Dillon of O’Hagan Spencer, they are considering filing an appeal.
Meanwhile, Brahos said he was relieved that the “rollercoaster ride” of an ordeal was over.
“It feels good to be a company member again,” he said.
According to the operating agreement Brahos signed—which Mullen affirmed as the correct, legal version on Friday—he was to become managing partner of the company within 24 months if 85 percent of his investments had not been repaid, along with fellow investor and non-managing member Nicholas Gouletas. That makes Brahos a managing member now, according to his lawyer, Robert T. O’Donnell.
Brahos declined to comment on what will happen with North Shore Auto Group in the future.

WaMu, Lehman, Madoff, Blockbuster, New Stream: Bankruptcy

By Bill Rochelle
(This report contains items about companies both in bankruptcy and not in bankruptcy. Updates Lehman and adds Madoff, Tribune and Javo in Updates; Epic Energy in New Filing, Fisher Island in Involuntary Filing and Vulcan Materials in Downgrade.)
March 21 (Bloomberg) -- Washington Mutual Inc. is in bankruptcy court today seeking approval for supplemental disclosure materials that creditors will receive before they vote again and make elections giving up claims against third parties in return for distributions.
Assuming the new disclosure is approved, the confirmation hearing for approval of the plan will commence May 2. The new disclosure describes the revised plan WaMu filed to comply with the bankruptcy judge’s 109-page opinion on Jan. 7 finding defects in the prior version she declined to confirm.
The revised disclosure materials say that the net distributions to creditors are now estimated to be $7.37 billion, compared with $7.45 billion under the plan the judge wouldn’t approve. The decline is due mostly to increased operating expenses and professional costs resulting from the delay in confirmation.
The so-called creditor cash available for distribution on implementation of the plan is now estimated to be $6.18 billion, including $2.07 billion in tax refunds. WaMu estimates that tax refund recoveries may rise by $60 million to $120 million from ongoing tax litigation.
WaMu is now projecting that the recovery on the so-called Piers claims will be 49 percent rather than 74 percent. Except for holders of subordinated claims, the 100 percent recovery is intact for creditors previously scheduled for full payment.
For details on the new plan, click here for the Feb. 14 Bloomberg bankruptcy report. For details on the opinion denying confirmation of the prior plan, click here for the Jan. 10 Bloomberg bankruptcy report.
Click here to read the May 18 Bloomberg bankruptcy report for a summary of WaMu’s original plan. To read about the settlement before it was modified, click here for the May 24 Bloomberg bankruptcy report. For a summary of changes WaMu made to its plan in October, click here for the Oct. 7 Bloomberg bankruptcy report.
The WaMu holding company filed under Chapter 11 in September 2008, one day after the bank subsidiary was taken over. The bank, once the sixth-largest depository and credit- card issuer in the U.S., was the largest bank failure in the country’s history. The holding company filed formal lists of assets and debt showing property with a total value of $4.49 billion against liabilities of $7.83 billion.
The holding company Chapter 11 case is In re Washington Mutual Inc., 08-12229, U.S. Bankruptcy Court, District of Delaware (Wilmington).
Updates
Lehman Brokerage Trustee Sues Citibank for $1.3 Billion
The trustee liquidating Lehman Brothers Inc., the brokerage subsidiary of Lehman Brothers Holdings Inc., filed a complaint on March 18 seeking to recover more than $1.3 billion from Citibank NA and affiliates.
The complaint recounts how the Lehman broker didn’t file for liquidation under the Securities Investor Protection Act until Sept. 19, 2008, four days after the parent holding company filed in Chapter 11. During the week before the broker’s filing, Citibank required the broker to deposit $1 billion as security so the bank would continue clearing foreign-exchange trades.
The complaint alleged that Citibank didn’t affect a setoff against the $1 billion until hours after the filing under SIPA. The Lehman broker contends that setting off after the filing was a violation of the so-called automatic stay.
The Lehman broker argues that the setoff wasn’t permissible under so-called safe harbor provisions in bankruptcy law. The trustee also contends there wasn’t the required mutuality so setoff would be permissible in any event.
The Lehman brokerage trustee also lays claim to $342 million, with $190 million representing deposits after bankruptcy. In addition, the trustee seeks $62 million in deposits before bankruptcy and $90 million in net payables owing by the bank or its affiliates.
The trustee’s complaint describes how Barclays Plc deposited $700 million at the bank before the broker’s filing so that Citibank would continue providing services. The trustee says Citibank repaid Barclays to maintain relations.
Lehman reported on March 18 that total cash grew about $100 million in February, to end the month at $22.6 billion. Unrestricted cash at the month’s end was $18.7 billion.
Cash receipts during the month were $496 million.
Lehman Brothers Special Financing Inc. leads the Lehman companies with $8.89 billion cash. In second place is Lehman Commercial Paper Inc. with $4.49 billion, followed by the holding company with $2.32 billion. All amounts include restricted cash.
Professional fees and expenses since the case began now total $1.2 billion, including $30.1 million in professional costs plus fees for the U.S. Trustee system in February.
The fees for Alvarez & Marsal LLC, Lehman’s financial advisers, now total $412.7 million, including $9.2 million in February. The fees for Weil Gotshal & Manges LLP, Lehman’s principal bankruptcy lawyers, total $279.9 million, including $7.8 million in February. For other Bloomberg coverage, click here.
Lehman is aiming to hold a confirmation hearing on Nov. 17 for approval of one of two competing Chapter 11 plans. There will be a June 28 hearing for approval of disclosure statements explaining Lehman’s plan and a competing plan proposed by a group including Paulson & Co.
The Lehman holding company Chapter 11 case is In re Lehman Brothers Holdings Inc., 08-13555, while the liquidation proceeding under the Securities Investor Protection Act for the brokerage operation is Securities Investor Protection Corp. v. Lehman Brothers Inc., 08-01420, both in U.S. Bankruptcy Court, Southern District of New York (Manhattan).
New York Times Wants Disclosure of Madoff Bankers’ Names
The New York Times and several television outlets owned by NBC Universal LLC gave the bankruptcy judge a 20-page letter explaining why he should unseal the remainder of complaints by the trustee for Bernard L. Madoff Investment Securities Inc. against financial institutions. The complaints filed in December were unsealed except for the names of people who worked for the defendant banks.
Today, we also review the Madoff trustee’s amended $1 billion complaint against Fred Wilpon and the trustee’s suit against a lawyer in Austria.
The Times says that U.S. law allows disclosure of the names of individuals mentioned in lawsuits although not accused of wrongdoing. The newspaper said the only names routinely omitted from public disclosure are those of minors, undercover policemen, and sexual assault victims. “No exceptions exist for bankers,” the media’s letter said.
The Times said that the unnamed bankers were all at least “somewhat” involved in the “greatest scam of our history.”
Citibank NA, UBS AG and Natixis previously filed papers urging the judge to keep their employees’ identities secret. The bankruptcy judge in February directed the banks and the media to submit papers making their arguments for and against unsealing the names of bank officers and employees mentioned in the trustee’s complaints.
The trustee filed an amended $1 billion complaint on March 18 against Wilpon, the owners of the New York Mets baseball club, and Wilpon’s friends, family, and associates. The trustee said the new complaint added facts showing the “deep dependency” of Wilpon’s businesses “on continuation of the Madoff fraud.”
In a complaint originally filed in December and unsealed in February, the trustee sought $300 million in false profits and an unspecified amount of principal. Although the trustee previously said he was after $700 million in principal payments, the revised complaint quantifies his demand going back six years.
Among the allegations, the trustee describes how Wilpon restructured $500 million of his companies’ debt after the Madoff fraud surfaced. The trustee alleges that Wilpon and the banks structured the transactions in an attempt “to circumvent any potential recovery action.” The bankruptcy judge appointed former New York Governor Mario Cuomo to mediate the lawsuit.
The Madoff trustee filed a second complaint on March 18 against Ewald Weninger, an Austrian lawyer retained to assist in the investigation and lawsuit against Bank Medici AG, its founder Sonja Kohn, Bank Austria and UniCredit SpA. The trustee seeks to recover $810,000 in fees paid to Weninger and a declaration that he isn’t entitled to collect $270,000 in unpaid fees.
The complaint alleges that Weninger disclosed confidential information and acted “adverse to the interests” of the trustee. Weninger allegedly told some potential defendants they wouldn’t be sued if they provided information voluntarily. Later, he demanded that the trustee release certain defendants from the suit.
For Bloomberg coverage on the amended Wilpon complaint, click here. For Bloomberg coverage of the Weninger complaint, click here.
The Madoff firm began liquidating on Dec. 11, 2008, with the appointment of the trustee under the Securities Investor Protection Act. Bernard Madoff individually went into an involuntary Chapter 7 liquidation in April 2009 and his bankruptcy case was consolidated with the firm’s liquidation. Madoff is serving a 150-year prison sentence following a guilty plea.
The Wilpon lawsuit is Picard v. Katz, 10-5287, U.S. Bankruptcy Court, Southern District of New York (Manhattan). The Weninger suit is Picard v. Weninger, 11-01680, U.S. Bankruptcy Court, Southern District of New York (Manhattan). The Madoff liquidation case is Securities Investor Protection Corp. v. Bernard L. Madoff Investment Securities Inc., 08-01789, U.S. Bankruptcy Court, Southern District New York (Manhattan). The criminal case is U.S. v. Madoff, 09-cr-00213, U.S. District Court for the Southern District of New York (Manhattan).
Blockbuster Says Liquidation Plan Maybe Not Possible
Blockbuster Inc. admitted in a bankruptcy court filing on March 18 that the ability to confirm even a liquidating Chapter 11 plan “has not been determined.”
The Dallas-based movie rental chain was referring to the requirement that all expenses of the Chapter 11 case must be paid in full before a plan is confirmed. Blockbuster told suppliers in late January that it couldn’t pay for goods shipped after the bankruptcy filing in September.
Late last week the bankruptcy judge signed an order formally setting April 4 as the date for an auction. The opening bid will be $290 million, which won’t pay even half the $630 million in secured first-lien bonds. The hearing for approval of the sale will take place April 7.
The disclosure about the difficulty of confirming a plan was contained in a motion for a five-month extension of the exclusive right to propose a plan. If granted by the judge at an April 21 hearing, the new deadline would be Aug. 19.
Dallas-based Blockbuster began reorganization in September with 5,600 stores, including 3,300 in the U.S. and the remainder abroad. Among the U.S. stores, 3,000 were owned. The rest are franchised. About 200 stores closed before bankruptcy.
The petition listed assets of $1.017 billion against debt of $1.465 billion. Blockbuster estimated it owes $57 million in accounts payable in addition to secured and subordinated notes.
The case is In re Blockbuster Inc., 10-14997, U.S. Bankruptcy Court, Southern District of New York (Manhattan).
Tribune Judge Says Settle or Face Chapter 11 Trustee
At the end of the second week of the trial to confirm a reorganization plan for Tribune Co., the bankruptcy judge said he might appoint a Chapter 11 trustee if he decides that neither of the competing plans merits approval.
The trial will resume April 11. The judge told both sides to discuss settlement in the meantime.
Aurelius Capital Management LP, the largest holder of debt predating the 2007 leveraged buyout, opposes settlements that would be imposed by Tribune’s plan. Aurelius and three indenture trustees are proponents of a competing plan where lawsuits would continue after plan confirmation to recover damages from alleged fraudulent transfers that occurred along with the LBO.
The company’s plan is co-sponsored by the official creditors’ committee and senior lenders Oaktree Capital Management LP, Angelo Gordon & Co. and JPMorgan Chase & Co. To read Bloomberg coverage, click here.
Tribune, the second-largest newspaper publisher in the U.S., listed $13 billion in debt for borrowed money and assets of $7.6 billion in the Chapter 11 reorganization begun in December 2008. It owns the Chicago Tribune, Los Angeles Times, six other newspapers and 23 television stations.
The case is In re Tribune Co., 08-13141, U.S. Bankruptcy Court, District Delaware (Wilmington).
New Stream Proposes 3% Breakup Fee for McKinsey & Co.
New Stream Capital LLC, which characterizes itself as a fund manager specializing in “non-traded private debt,” filed a motion last week for authority to pay a 3 percent breakup fee to an affiliate of McKinsey & Co. Inc., the consulting firm that’s under contract to buy the portfolio of life insurance policies for $127.5 million.
New Stream intends on selling the portfolio to New York- based McKinsey as part of the prepackaged Chapter 11 plan that was accepted by three classes of creditors before the Chapter 11 filing on March 13. Ridgefield, Connecticut-based New Stream says it knows of no authority requiring an auction when the sale is pursuant to a plan.
The motion for approval of the breakup fee, scheduled for hearing on April 8 in U.S. Bankruptcy Court in Delaware, says that an affiliate of McKinsey is an investor in New Stream U.S. and Cayman Islands funds.
Other investors with over $90 million in the U.S. and Cayman funds contend they were “duped” into investing on the promise they would be treated the same as investors in the Bermuda fund. Instead of being treated the same, the objecting investors say they are being offered a “pittance” under the reorganization plan.
New Stream said the objectors’ allegations were rejected previously by a U.S. district judge and an arbitrator. In an e- mailed statement, the company said the investors are “trying for a third bite at the apple in bankruptcy court.”
The Securities and Exchange Commission appeared in court last week and told the bankruptcy judge that it is conducting an investigation.
New Stream to a large extent invested in the so-called life-settlement market, where life insurance policies are purchased for less than the death benefit from owners of policies on individuals’ lives. McKinsey will provide up to $57 million in financing to fund $5 million a month required to cover premiums. The financing in substance will be added to the purchase price, raising the total to more than $184 million, a court filing says.
The objecting creditors filed involuntary Chapter 11 petitions earlier in March against three New Stream funds. The three are not among those that began the prepackaged reorganization on March 13.
The prepackaged plans calls for full payment to investors in a Bermuda fund owed $81.6 million on what amounts to a first- lien claim. Investors in a Bermuda fund with the equivalent of a $369.1 million second-lien claim are to receive residual assets from the sale.
Investors in U.S. and Cayman Islands funds with $319.3 million in claims may receive as much as $15 million, according to a court filing by New Stream. The payments for those investors are to come from McKinsey and creditors in the other classes.
The prepackaged case is In re New Stream Secured Capital Inc., 11-10753, U.S. Bankruptcy Court, District of Delaware (Wilmington). The first-filed involuntary case is In re New Stream Secured Capital Fund (U.S.) LLC, 11-10690, in the same court.
LTAP Gives Up, Turning Policies Over to Wells Fargo
LTAP US LLP, a purchaser of life insurance policies in the so-called life-settlement market, agreed to turn collateral over to Wells Fargo Bank NA as the result of an opinion by the bankruptcy judge last month giving the lender a victory that was the death knell for the Chapter 11 case begun in December.
U.S. Bankruptcy Judge Kevin Gross in Delaware gave the bank the right to foreclose when he simultaneously refused to approve $40 million in financing that would have come ahead of the bank’s lien. The new money would have been used to pay premiums on life insurance policies.
Last week LTAP and San Francisco-based Well Fargo submitted a settlement agreement where the policies will be turned over to the bank in exchange for secured debt and related expenses. If approved by the bankruptcy judge at an April 2 hearing, the Chapter 11 case will be dismissed within 30 days after the sale is completed.
LTAP said it will have “no significant assets” after the policies are gone.
The bank currently is owed $252.3 million. Gross was willing to allow foreclosure because the policies didn’t have a present value sufficient to pay the bank, he found.
LTAP currently has 410 policies on 313 lives with aggregate death benefits of $1.36 billion, according to the settlement papers. In addition to Well Fargo, unsecured creditors are owed $7.6 million.
When LTAP filed for Chapter 11 protection in December, it said the policies were worth $311.5 million. Based in Atlanta, LTAP is managed by a company wholly owned by Berlin Atlantic Holding GmbH & Co.
In the life-settlement market, companies like LTAP buy a policy for less than the death benefit from the owner of a policy on an individual’s life. The price is higher than what the policy owner would receive were the policy instead surrendered.
The case is In re LTAP US LLP, 0, U.S. Bankruptcy Court, District of Delaware (Wilmington).
Javo Beverage Sets Confirmation After Settlement
Javo Beverage Co., a provider of concentrated coffees and teas for beverage dispensers, scheduled an April 28 confirmation hearing for approval of the Chapter 11 plan after the bankruptcy judge approved the explanatory disclosure statement last week.
Javo filed under Chapter 11 in late January with an agreement for current investor Coffee Holdings LLC to become the owner. As revised, the plan would give Coffee Holdings 90 percent of the equity in exchange for $3.2 million in financing for the Chapter 11 case, $6 million in senior notes and $12.1 million in subordinated notes of the operating company.
The plan for unsecured creditors and subordinated noteholders of the operating company was improved after negotiations with the official creditors’ committee.
General unsecured creditors with $2.5 million in claims are now to be paid in full with interest in quarterly installments over one year. Holders of $11.1 million in subordinated notes of the operating company are to receive 10 percent of the new stock plus an $800,000 note, for a 19.9 percent recovery.
Holders of subordinated notes of the holding company receive nothing.
Coffee Holdings owns 23 percent of the existing common stock, according to court filings.
Javo, based in Vista, California, listed assets of $14.7 million against debt totaling $26.7 million. Sales of $19.6 million for the three quarters ended Sept. 30 resulted in a $3.6 million loss from operations and an $8 million net loss. The business was never profitable, court papers said.
Most of the debt is attributable to three note issues. There is another $2.4 million in accounts payable, according to a court filing.
The case is In re Javo Beverage Co. Inc., 11-10212, U.S. Bankruptcy Court, District of Delaware (Wilmington).
Metamorphix Sold on Credit Bid for First-Lien Notes
Metamorphix Inc. and subsidiary MMI Genomics Inc., which call themselves the “most experienced laboratory in the world for canine DNA identification and parentage testing,” were authorized last week by the bankruptcy judge to sell the assets to holders of the 12.5 percent secured notes.
The noteholders swapped the assets for $5.75 million in notes and $246,000 cash.
Noteholders filed an involuntary petition in January 2010 against the parent. An order for relief putting the parent into Chapter 11 was signed in September. The subsidiary filed under Chapter 11 in November.
The parent listed assets of $314,000 and debt totaling $79.5 million. Subsidiary Genomics listed assets of $1.28 million and debt of $10.85 million. Most of the debt is $56 million on two issues of notes with first and second liens on the assets.
The case is In re Metamorphix Inc., 10-10273, U.S. Bankruptcy Court, District of Delaware (Wilmington).
PJ Finance Wins Cash Use At Least until April 6
PJ Finance Co. LLC and affiliates, the owners of 32 apartment buildings, can remain in business at least until April 6 as the result of a hearing last week where the secured lender unsuccessfully objected to the use of rental income.
The bankruptcy judge in Delaware granted interim use of cash that’s collateral for the secured claim of Torchlight Loan Services LLC, the special servicer for $475 million in mortgage- backed securities. The bankruptcy judge preserved Torchlight’s objection to the use of cash until the final hearing on April 6.
Torchlight did win a concession that’s sometimes important. The interim order allowing use of cash gave the lender the right to bid its lien rather than cash if there is a sale of the properties.
Among the projects’ 9,500 units, 1,700 aren’t in condition to be rented, PJ said in a filing. PJ said it has a commitment for Gaia Real Estate Investments LLC to invest $42 million and serve as the foundation for a reorganization plan.
Trade suppliers are owed $4.4 million, according to court papers.
The projects are in Arizona, Florida, Georgia, Tennessee and Texas. PJ gives its address as the office of a law firm in Chicago.
The case is PJ Finance Co. LLC, 11-10688, U.S. Bankruptcy Court, District of Delaware (Wilmington).
Southwest Georgia Case to Remain in Albany, Georgia
When Southwest Georgia Ethanol LLC filed under Chapter 11 in early February in Albany, Georgia, the owner of the 100 million-gallon-a-year ethanol plan immediately filed a motion seeking to transfer the case to the branch of the court in Macon, Georgia.
The company said Macon would be more convenient because it’s closer to the airport in Atlanta. Last week, the company withdrew the motion seeking transfer.
The plant in Mitchell County, Georgia, began production in October 2008. The petition listed assets of $164.7 million and debt totaling $134.1 million. In addition to bank debt, liabilities include $12.6 million owing on two subordinated notes. Revenue was $168.9 million for the fiscal year ended in September, resulting in a $2.2 million net loss. The company is owned by First United Ethanol LLC which didn’t file bankruptcy.
The case is In re Southwest Georgia Ethanol LLC, 11-10145, U.S. Bankruptcy Court, Middle District of Georgia (Albany).
Watch List
Moody’s Gives YRC a Ca Rating on Outlook to Restructure
YRC Worldwide Inc., the largest less-than-truckload freight hauler in the U.S., was dealt a Ca corporate rating on March 18 by Moody’s Investors Service in light of an increased risk surrounding the company’s “efforts to conclude critical refinancing that is instrumental to its ability to avoid bankruptcy.”
Moody’s was reacting to YRC’s announcement last week that if failed to meet one of the “milestones” in last month’s restructuring agreement with lenders and the Teamsters union.
The agreement in principle called for amending the contribution schedule for multiemployer pension plans. By the March 10 deadline, the required majority of pension plans had not agreed. As a result, the lenders have the right to declare a default under existing loan agreements.
To survive without a Chapter 11 reorganization, Moody’s described YRC as needing relief on “debt service, pension contributions, and wage concessions” from the Teamsters union. The company suffers from what Moody’s called a “prolonged industry downturn.”
The new Moody’s rating is on par with the downgrade issued earlier in the week by Standard & Poor’s.
YRC reported a $322 million net loss in 2010 on operating revenue of $4.33 million. The operating loss was $230.6 million.
Overland Park, Kansas-based YRC operates under names including Yellow Transportation and Roadway Express. YRC rose 56 cents to $1.88 on March 18 in Nasdaq Stock Market trading.
Dynegy Corporate Rating Downgraded on Refinancing Risk
Power producer Dynegy Inc. was demoted to a CC corporate rating on March 18 by Standard & Poor’s in view of the possibility of covenant violations in the secured loan agreement as of June 30. The downgrade from S&P was the third in one year.
Although S&P believes the secured credit will be paid in full or nearly so, the ability to refinance is limited because “access to markets at this juncture is quite doubtful.” Even if the banks modify covenants, S&P says “forward dark spreads continue to remain weak, and no structural recovery in the power market is yet visible.”
S&P predicts unsecured creditors could recover up to 30 percent in the event of payment default.
Management had proposed solving financial problems by taking the company private. Shareholders turned down two proposals, one by Blackstone Group LP and the other from Carl Icahn.
Dynegy, based in Houston, has 17 owned or leased power plants with about 11,700 megawatts of electric generating capacity, according to S&P. It reported a $234 million net loss in 2010 on revenue of $2.32 billion. The net loss in 2009 was $1.25 billion.
Dynegy rose 12 cents to $5.66 on March 18 in New York Stock Exchange composite trading.
New Filing
Houston’s Epic Energy to Files for Reorganization in Denver
Epic Energy Resources Inc., a provider of engineering and construction-management services for energy infrastructure, filed for Chapter 11 reorganization on March 18 in Denver.
Financing for the reorganization will be provided by holders of some of the $13.9 million in 10 percent secured debentures due December 2012, the company said in a statement.
The Houston-based company reported a net loss of $14.3 million on revenue of $11 million for the six months ended June 30. The operating loss in the period was $7.7 million.
The June 30 balance sheet had $18.6 million in assets against $20 million in liabilities. The Chapter 11 petition puts the assets at $5.5 million.
The case is In re Epic Energy Resources, 11-15521, U.S. Bankruptcy Court, District of Colorado (Denver).
Involuntary Filing
Fisher Island Developer Hit with Involuntary Petition
Six creditors filed involuntary Chapter 11 petitions on March 17 in Miami against a developer on Fisher Island, Florida, and two affiliates.
The creditors, saying they are collectively owed $32.4 million, also filed a motion seeking the appointment of a Chapter 11 trustee.
Without providing details, the creditors say an unnamed third party supplanted Fisher Island’s management and is arranging transactions that would benefit the third party at the expense of creditors.
The creditors say that the development’s prior management doesn’t dispute the debt owed to them and is willing to enter into a repayment schedule.
The first-filed case is In re Fisher Island Investments Inc., 11-17047, U.S. Bankruptcy Court, Southern District Florida (Miami).
Downgrade
Vulcan Materials Loses Investment-Grade Status
Vulcan Materials Co., the largest U.S. producer of sand and gravel, lost investment-grade status on March 18 when Standard & Poor’s lowered the corporate credit by two steps to BB, the second-highest junk grade.
S&P doesn’t believe credit standing will improve to investment-grade status in the next two years even though demand “will be flat to slightly up in 2011.”
Vulcan, based in Birmingham, Alabama, also produces asphalt and ready-mix concrete.
Vulcan reported a $96.5 million net loss in 2010 on sales of $2.41 billion. The stock closed on March 18 at $43.02, up 57 cents in New York Stock Exchange composite Trading.
Daily Podcast
Anguilla Resort, West End, New Credit Bubble: Bankruptcy Audio
The Bloomberg bankruptcy podcast opens with a description of two significant new filings. The Viceroy Anguilla Resort is reorganizing in Delaware after Starwood Capital Group LLC bought the secured debt. West End Financial Advisors LLC sought Chapter 11 protection in New York after the Securities and Exchange Commission filed a civil complaint alleging securities fraud. The podcast observes that lenders are willing to buy new notes from Lantheus Medical Imaging Inc. and Vision Solutions Inc. although knowing in both cases that the proceeds will end up in the pockets of the owners. Bloomberg Law’s Lee Pacchia and Bloomberg News bankruptcy columnist Bill Rochelle end the podcast by noting how the financial recovery isn’t helping companies with the lowest credit ratings. To listen, click here.
--With assistance from Linda Sandler and Bob Van Voris in New York; Karen Gullo in San Francisco; and Steven Church, Dawn McCarty and Michael Bathon in Wilmington, Delaware,. Editors: Glenn Holdcraft, Mary Romano
To contact the reporter on this story: Bill Rochelle in New York at wrochelle@bloomberg.net
To contact the editor responsible for this story: David Rovella at drovella@bloomberg.net

Thursday, March 24, 2011

Government Bond Markets Global Outlook Fisher Capital Management Seoul

(UpVery.com) Mar 22, 2011 -- Government Bond Markets Global Outlook Fisher Capital Management Seoul - Conditions in the government bond markets have remained very difficult over the past month, and there have been further falls in some of the minor markets, especially in the euro-zone, because of continuing fears about sovereign debt defaults. The agreement reached by the member countries of the euro-zone to combine with the IMF to provide any necessary support to enable Greece to refinance its maturing debts and avoid a default has had a poor response in the markets; but at least Greece has been able to make further bond issues; and the gilt edged market has coped fairly well so far with a disappointing Budget statement that has left any real attempt to resolve the serious UK debt problems until after the general election. But the sudden weakness in the world bond markets after a series of disappointing auctions has once again increased the tensions.

Our position remains unchanged; any existing exposure to bonds should be further reduced in favor of US & Euro equities.

Fisher Capital Management Seoul, South Korea - The global economic recovery is developing slowly, and so short-term interest rates are likely to remain at low levels for a considerable period. It is also possible that the “fudged” agreement amongst member countries of the euro-zone will provide an opportunity for the introduction of the necessary austerity measures; and that a new government will finally begin to address the debt problems in the UK. But the risks in the situation are still increasing, sovereign debt defaults may still occur, and the single currency system in the euro-zone may not be sustainable in its present form. Higher bond yields therefore appear unavoidable; prospects for all the bond markets are unattractive.

Developments in the bond market over the past month have clearly illustrated the need for caution. The US economy continues to recover. The Fed has left shortterm interest rates unchanged, and has indicated that they will remain “at exceptionally low levels for an extended period”. This tended to enhance the “safe haven” status of the US equity market for most of the past month, as conditions continued to deteriorate in other bond markets.

Fisher Capital Management Seoul, South Korea - Most of the available evidence supports the view that the economic recovery is continuing, but only at a slow pace. The unemployment rate remains close to 10%, and the housing sector is still depressed, with both new housing starts and sales of existing homes weakened still further by adverse weather conditions. However
retail sales are holding up fairly well, and manufacturers are beginning to increase capital expenditures and inventories, and so there is a general expectation that growth in the first quarter will be around a 2% annualized rate.

Fisher Capital Management Seoul, South Korea - The Fed has confirmed that its buying programmed for mortgage-backed securities has ended, and that it may be moving slowly towards re-selling some of these securities; but it seems to be in no hurry, and so both the economic background, and the position of the central bank, remain broadly supportive.

The situation facing investors in the mainland European bond markets is more serious. The economic background is improving, with the weaker euro providing considerable support in export markets, and so the area continues to move out of recession. But progress is slow, and so the European Central Bank is maintaining very low short-term interest rates, and providing support. However the massive fiscal deficits are threatening to overwhelm the bond markets and to lead to sovereign debt defaults, and so investors have continued to switch from the bonds of the weaker countries into those of the stronger countries, and have widened the yield
spreads across the markets. The latest Greek bond auctions have received only a very moderate response, and there is considerable uncertainty whether even the markets of the stronger countries are adequately discounting the risks in the situation.

Fisher Capital Management Seoul, South Korea - The available evidence on the performance of the euro-zone economy is mixed, but slightly more encouraging. The weakness in domestic demand is continuing, and retail sales volumes are disappointing in most member countries; but the manufacturing sector, especially in Germany, is much more buoyant, with exports
providing most of the momentum. The latest Ifo index of business sentiment in Germany is sharply higher, and other countries are also sharing in the improvement.

Analysts are therefore forecasting growth around the 0.5% level in the first quarter
of the year.


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Fisher Capital Management Korea is a leading global financial institution holding extensive relationships with financial institutions, institutional investors and corporations across the world. As a full service company Fisher Capital Management Korea provides a full range of investment banking services including advanced risk management, corporate strategy and structure, plus raising capital through debt and equity markets. With this as our backbone we continue to provide a client service second to none.

California Water Service Group Reports Operating Results (10-K)

California Water Service Group (CWT) filed Annual Report for the period ended 2010-12-31.

California Water Service has a market cap of $734.9 million; its shares were traded at around $35.28 with a P/E ratio of 19.5 and P/S ratio of 1.6. The dividend yield of California Water Service stocks is 3.5%. California Water Service had an annual average earning growth of 3.2% over the past 10 years.
Mutual Fund and Other Gurus that owns CWT: Kenneth Fisher of Fisher Asset Management, LLC, Mario Gabelli of GAMCO Investors.

Highlight of Business Operations:

In February 1996, we entered into an agreement to operate the City of Hawthorne water system. The system, which is located near the Hermosa-Redondo district, serves about half of Hawthorne’s population. The agreement required us to make an up-front $6.5 million lease payment to the city that is being amortized over the lease term. Additionally, annual lease payments of $0.2 million are made to the city and indexed to changes in water rates. Under the lease we are responsible for all aspects of system operation and capital improvements, although title to the system and system improvements reside with the city. In exchange, we receive all revenue from the water system, which was $7.5 million, $6.1 million and $5.2 million in 2010, 2009, and 2008, respectively. At the end of the lease, the city is required to reimburse us for the unamortized value of capital improvements made during the term of the lease. The 15-year lease expired in February 2011 and was extended on a month-to-month basis. The City of Hawthorne is in the process of determining how they will handle their water system and we plan to submit a proposal to the City during 2011 to provide these services for an additional fifteen year period

In July 2003, an agreement was negotiated with the City of Commerce to lease and operate its water system. The lease requires us to pay $0.8 million per year in monthly installments and pay $200 per acre-foot for water usage exceeding 2,000 acre-feet per year plus a percentage of certain operational savings that may be realized.

Under the lease agreement, we are responsible for all aspects of the system’s operations. The city is responsible for capital expenditures, and title to the system and system improvements resides with the city. We bear the risks of operation and collection of amounts billed to customers. The agreement includes a procedure to request rate changes for costs changes outside of our control and other cost changes. In exchange, we receive all revenue from the system, which totaled $1.8 million in 2010, $1.7 million in 2009 and $2.0 million in 2008. The City of Commerce lease is a 15-year lease and expires in 2018.

We lease antenna sites to telecommunication companies, which place equipment at various Company-owned sites. Lease revenues totaled $2.2 million, $2.0 million, and $2.0 million in 2010, 2009 and 2008, respectively. The antennas are used in cellular phone and personal communication applications. We continue to negotiate new leases for similar uses.

In 2006, we started an Extended Service Protection program (ESP) in California covering certain repairs to residential customer’s water line between the meter and the home. The non-regulated program was operated by CWS Utility Services. Typically the utility is responsible for servicing and maintaining the water line up to and including the meter. The home owner is responsible for the water line from the meter to the house. In late 2007, we contracted with Home Service USA to replace the ESP program with an insurance product. Home Service USA now provides water line protection insurance, sewer line protection insurance, and internal plumbing protection insurance to Cal Water’s customers. Cal Water includes charges for these optional non-tariffed services on its bills and CWS Utility Services facilitates marketing these products to its customers. Revenues for these services were $2.0 million, $1.7 million, and $1.5 million in 2010, 2009, and 2008, respectively.

Fisher Capital management

 Market Overview December 2009: Fisher Capital Management - Stocks closed lower in October for the first time in seven months, as investors questioned whether the huge rally off the March lows had exceeded the economy’s ability to generate growth in output and profits.

Wednesday, March 16, 2011

U.S. Equities: Fisher Capital Management Reports

As mentioned previously, stocks finished a volatile month in October with a volatile final week of trading, as investors began to question whether the market¹s impressive rally had surpassed the economy¹s ability to generate growth in output and profits.
To be sure, throughout the market's impressive rebound, the technical picture for stocks gathered steam, as excess liquidity helped drive the market higher.
Fisher Capital Management, US Equities Reports: As one technical achievement passed another, we began to postulate that the market's technicals appeared significantly better than its fundamentals.
Some of these concerns may be coming to fruition over the near term, as a few technical strengths appear to have softened in recent weeks.
Indeed, as the S&P 500 Index approached the 1,100 level during the middle of October, the market ran into strong resistance, falling by approximately 5% from that high by month-end.
Fisher Capital Management, US Equities Reports: This may prove to be an important development because at 1,100, the S&P 500 was within about 20 points of achieving a 50% retracement, whereby the market could have recouped 50% of the loss from the October 2007 high of 1565 to the March 2009 low of 666. Given all the cash parked in money markets and shortterm Treasury bills, another surge or two above 1,100 is certainly possible. Yet 1,121 is a number that should be on the radar for all investors, because if it is achieved, very little technical resistance exists on the path to 1200.
In addition to the strong resistance, stocks failed to hold a key support level on the last day of October.
The market's 50-day moving average (DMA) was 1,052 heading into Halloween weekend, but investors were spooked by poor readings on personal spending and consumer confidence, resulting in a close (1,036) below the important 50- DMA level. An important test will be in the first several trading days of November to see whether or not the market can sustain its rally above this key support level.
Fisher Capital Management, US Equities Reports: This weakness was exacerbated by a surge in the market's "fear gauge" toward the end of October. The Chicago Board Options Exchange Volatility Index, or VIX, which measures the cost of using options as insurance against declines in the S&P 500 Index, surged in the final few days of trading last month.
While the VIX had been at a 14-month low in the middle of October, the 25% jump at the end of the month suggests investor skittishness about market direction over the next several weeks, particularly as the catalyst of earnings season draws to a close.
Fisher Capital Management, US Equities Reports: Fortunately, the fundamental picture has brightened. Better than expected economic data suggests the possibilities for an improvement in corporate performance. Interest rates and inflation remain low, providing a healthy backdrop for corporations that have been very aggressive cutting costs from their expense structures.
Indeed, recent earnings news has been somewhat positive, with 70% of the companies in the S&P 500 Index having reported an average decline in earnings per share (EPS) of 12% for the
third quarter, exceeding expectations.
Fisher Capital Management, US Equities Reports: Given our projections for a "less spectacular" economic recovery in 2010, though, we continue to believe that consensus estimates for corporate profit growth of up to 35% next year are too high. Consequently, our operating EPS projections remain more than 12% below consensus expectations ($75.00) for 2010.
Businesses can't cut costs forever, and at some point we believe revenue growth is a necessity to help justify valuations for a market that is already trading at a price/earnings (P/E) ratio of 16 to 17 times our $65.00 estimate for next year. Until we begin to see an improvement in the longer-term trends for housing, employment, credit, sales, and profits, we suspect the market will be unwilling to pay anything more than historically average P/E multiples (16 to 17 times) for a dollar of earnings. Therefore, we continue to believe the market, as defined by the S&P 500 Index, will likely be fairly valued within the current range of 1,050 to 1,100 over the next six months.
Fisher Capital Management, Korea is a leading global financial institution holding extensive relationships with financial institutions, institutional investors and corporations across the world. As a full service company Fisher Capital Management, Korea provides a full range of investment banking services including advanced risk management, corporate strategy and structure, plus raising capital through debt and equity markets. With this as our backbone we continue to provide a client service second to none.