FILED: NEW YORK COUNTY CLERK 11/28/2012 INDEX NO /2011 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 11/28/2012

Transcription

1 FILED: NEW YORK COUNTY CLERK 11/28/2012 INDEX NO /2011 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 11/28/2012 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Zhina /2011 Plaintiff las Part 48 Jeffrey Oing AFFIRMATION IN SUPPORT OF Galaxy Entertainment Group Limited APPLICATION FOR ISSUANCE OF Defendant COMMISSIONS Pursuant to CPLR 2106 Brenda DiLuigi affirm as follows am member ofthe Bar ofthe State ofnew York am an attorney with the law firm of Linklaters LLP counsel to Galaxy Entertainment Group Limited Galaxy in the above-captioned action and am familiarwith the facts ofthe case and the facts set forth herein except as to those matters stated on information and belief and as to such matters believe them to be true submit this Affirmation in support of Galaxy request for the issuance of commissions to request documents and depositions from non-parties Plainfield Asset Management LLC and Plainfield Special Solutions Master Fund Limited collectively Plainfield and Donal Murphy without the State The above entitled actiofi was commenced by the service of summons and complaint on or about March 201 Complaint The Complaint asserts two causes of action for specific performance which arise from the claim by China Privatization Fund Del LP CPF or Plaintiff that an indenture dated December the Indenture required Galaxy to convert certain convertible Notes

2 belonging to CPF using different methodology than the methodology which was actually used and that the different methodology would have led to larger number of shares being issued to cpf in February 2Q1 In addition to the $50 million in Notes issued to CPF Galaxy issued 90 million in other Notes under the Indenture to other holders Given the nature of CPFs claims the meaning ofthe terms ofthe Indenture and specifically those terms relating to the conversion mechanism as well the meaning of other terms in other documentation related to the 2006 issuance ofthe Notes is central to the resolution ofthis case Plainfield from whom documents and deposition are sought is hedge fund that purchased and on information and belief subsequently sold certain Notes that were issued contemporaneously with the Notes issued to CPF As an initial investor Plainfield was involved on information and belief with the drafting negotiation and execution of the hidenture and other transaction documents Plainfield later sold its Notes and therefore is likely to posses information and/or documents regarding its view ofthe Notes Thus Plainfield likely has documents and knowledge that are material and necessary to Galaxysdefense ofthe claims asserted in the Complaint Donal Murphy from whom documents and deposition are sought acted on information and belief as placement agent on behalf of CPF in connection with the transaction at issue Upon information and belief Mr Murphy as placement agent would have played significant role in matching CPF with the California Public Employees Retirement System Ca1PERS which invested the large majority ofthe funds that CPF used to purchase the Notes and therefore may have participated in discussions and communications conceming the Ca1PERS investment Additionally upon information and belief CPF consulted Mr Murphy conceming its conversion of the Notes in 2011 Upon information and belief Mr Murphy likely

3 has particular knowledge concerning the negotiation of the Indenture and other transaction documents and concerning the understanding of the contracting parties with respect to conversion ofthe Notes Thus Mr Murphy likely has documents and knowledge that are material and necessary to Galaxy defense of the claims asserted in the Complaint On information and belief Plainfield resides in the State of Connecticut at the following address Plainfield Asset Management LLC Plainfield Special Solutions Master Fund Ltd 60 Arch Street Greenwich Connecticut On irifonnation and belief Donal Murphy resides in the State of Florida at the following address Donal Murphy 4756 Pond Apple Drive North Naples Florida There are no means by which Galaxy may compel out-ofstate nonparty witnesses to attend depositions or produce documents in New York Thus the nonparty witnesses cannot be conveniently examined in the State ofnew York Galaxy wishes to request documents from Plainfield and to examine an individual with knowledge ofthe produced documents in the State of Connecticut Section e of the Connecticut General Statues provides that The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books papers documents or tangible things which are material to the cause of action or the defense of the party at whose request the subpoena was issued and within the possession or control of the person to be examined However no subpoena may compel the production of matters which are privileged or otherwise protected by law from discovery

4 Deposition of witnesses living in this state may be taken in like manner to be used as evidence in civil action or probate proceeding pending in any court of the United States or of any other state of the United States or of any foreign country on application to the court in which such civil action or probate proceeding is pending of any party to such civil action or probate proceeding Conn Gen Stat eb 10 Galaxy wishes to request documents from Donal Murphy and to examine him in the State of Florida Rule.4 ofthe Florida Rules of Civil Procedure provides that subpoena may also command the person to whom it is directed to produce the books papers documents or tangible things designated therein.. When any person authorized by the laws of Florida to administer oaths is appointed by court of record of any other state jurisdiction or government as commissioner to take the testimony of any named witness within this state that witness may be compelled to attend and testify before that commissioner by witness subpoena issued by the clerk of any circuit court at the instance of that commissioner or by other process or proceedings in the same manner as if that commissioner had been appointed by court ofthis state Fla Civ Therefore Galaxy respectfully requests that the Court grant an Order directing that commissions in the form attached hereto as Exhibits and issue in this action authorizing subpoenas for the examination of said witnesses by deposition upon oral questions before Notary Public and certified shorthand reporter or other persons authorized to administer oaths or some other competent person named by the Court in the States of Connecticut and Florida

5 and that said witnesses produce for inspection certain documents and things as described in the Schedule attached to each proposed commission 12 affirm under penalty of perjury that the foregoing is true and correct Date November New York New York Brenda DiLuigi