Trump Confidentiality

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

--------------------------------------------------------------- IN RE: NEWLAND INTERNATIONAL PROPERTIES, CORP., Debtor. ---------------------------------------------------------------

x : : : : : : : : x

Chapter 11 Case No. 13-11396 (MG)

DEBTOR’S 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 Main Document Pg 1 of 13

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 Debtor’s 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 Debtor’s 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].


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 Debtor’s 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


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 Debtor’s corporate headquarters in Panama City, Panama. The Debtor’s

management is employed by the Debtor through Arias, Serna y Saravia, S.A. For the year ended

December 31, 2012, the Debtor’s net loss was approximately $50.6 million. As of the Petition

Date, the Debtor’s 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 Debtor’s

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


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 Debtor’s 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 Debtor’s 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.


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


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 Debtor’s 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,


public disclosure of the Confidential Documents and related Disclosures is not necessary to

protect the interests of the Debtor’s 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 Debtor’s 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.


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


EXHIBIT A

Proposed Order


1

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK

--------------------------------------------------------------- IN RE: NEWLAND INTERNATIONAL PROPERTIES, CORP., Debtor. ---------------------------------------------------------------

x : : : : : : : : 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.


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(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. The Motion is approved to the extent set forth herein.

2. 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.


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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 Clerk’s 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


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