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Pablo Alberto Varela, et al v. the Republic of Argentina

March 7, 2012

PABLO ALBERTO VARELA, ET AL. ,
PLAINTIFFS,
v.
THE REPUBLIC OF ARGENTINA, DEFENDANT.



OPINION AND

[PROPOSED] OPINION AND ORDER

Plaintiffs are the beneficial owners of certain bond indebtedness issued by defendant, the Republic of Argentina (the "Republic"), on which the Republic defaulted in December 2001. Plaintiffs are suing to recover amounts due to them as a result of the default and have moved for partial summary judgment related to the Republic's failure to pay the principal and interest due ("Money Damages"). The Republic has no objection to the entry of partial summary judgment on Money Damages.

The motion for partial summary judgment is granted.

FACTS

The bond indebtedness at issue is governed by one agreement, the Fiscal Agency Agreement dated October 19, 1994 (the "1994 FAA"). The 1994 FAA is the same agreement that governed the bond indebtedness on which this court granted summary judgment to the plaintiffs in Lightwater Corp. Ltd. v. Republic of Argentina , No. 02-3804, 2003 WL 1878420 (S.D.N.Y. Apr. 14, 2003). Section 22 of the 1994 FAA states that the Republic waives sovereign immunity and consents to jurisdiction in any state or federal court in the borough of Manhattan in the City of New York. The 1994 FAA also provides that the Republic's obligations on the bonds are unconditional and that failure to make any payment of principal or interest for 30 days after the applicable payment date constitutes an event of default. A declaration by the Republic of a moratorium on the payment of principal or interest on its public external indebtedness is an event of default as well. Paragraph 12 of the 1994 FAA provides for acceleration of principal if there is a failure to pay interest or a moratorium. If either of these events occurs, each holder of Securities and such Series may by such notice in writing declare the principal amount of Securities of such Series held by it to be due and payable immediately..

On December 24, 2001, the Republic declared a moratorium on payments of principal and interest on the external debt of the Republic. The Court refers to its previous opinions for a description of the circumstances of these defaults. Lightwater , 2003 WL 1878420, at *2; Applestein v. Province of Buenos Aires , No. 02-1773, 2003 WL 1990206, at *1 (S.D.N.Y. Apr. 29, 2003).

On or about September 9, 2009, plaintiffs sent notices to the Fiscal Agent of the Republic of Argentina, providing notice of an event of default, demanding payment on certain bonds governed by the 1994 FAA, and declaring the principal amount of the other debt securities governed by the 1994 FAA to be immediately due and payable.

The bonds that are the subject of this action, and the amounts of beneficial interests owned by the plaintiffs, are listed in the following tables. *fn1

TABLE 1

Plaintiff Bond Holder or PABLO ALBERTO VARELA and LILA INES BURGUENO Beneficial Owner: Face Value: U.S. $25,000 CUSIP No., ISIN No., BB CUSIP No. 040114AR1; ISIN No. US040114AR16 No.: Date Of Issuance: January 30, 1997 Date Of Maturity: January 30, 2017 Interest Rate/Payable: 11.375%

Date Of Purchase: Before the year 2000 Notice of Acceleration: April 23, 2010 Contract Documents: Fiscal Agency Agreement, dated as of October 19, 1994 (the "1994 FAA")

Evidence of Ownership Proffered: Certificates from Caja de Valores dated October 21, 2010 and August 18, 2011

TABLE 2

Plaintiff Bond Holder or SUSANA AQUERRETA Beneficial Owner: Face Value: U.S. $80,000 CUSIP No., ISIN No., BB CUSIP No. 040114GF1; ISIN No. US040114GF14 No.: Date Of Issuance: June 19, 2001 Date Of Maturity: December 19, 2008 Interest Rate/Payable: 7% / 15.5%

Date Of Purchase: On November 2001 Notice of Acceleration: July 9, 2010 Contract Documents: Fiscal Agency Agreement, dated as of ...


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