UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK. Inte: Case No. 09 Civ. 6432 (WHP) TH AGRICULTURE & NUTRITION, L.L.C. Debtor. APPELLATE BRIEF WATERS & KRAUS LLP 3219 McKinney Avenue Dallas, TX 75204 Phone: (214) 357-6244 Fax: (214) 357-7252 —and— BALLON STOLL BADER & NADLER, P.C. 729 Seventh Avenue - 17" Fl New York, NY 10019 Phone: (212) 575-7900 Fax: — (212) 764-5060 Co-Counsel for Appellants Waters & Kraus Claimants oor2i4t:2)TABLE OF CONTENTS TABLE OF AUTHORITIES....... STATEMENT OF BASIS OF APPELLATE JURISDICTION..... STATEMENT OF ISSUES....... STATEMENT OF THE CASE....... STATEMENT OF FACTS ARGUMENT. 210 POINT I... dO THE DELAY IN INTERPOSING THE REQUEST FOR A CONTINUANCE AND/OR OBJECTION WAS EXCUSABLE.... A. ALL FOUR FACTORS FALL SQUARELY IN FAVOR OF THE WATERS & KRAUS CLAIMANTS = 1. NoDanger of Prejudice... 2. Delay was Minimal... 3, The Reason for the Delay «vrs 4. The Waters & Kraus Claimants Have Acted in Good Faith .....0.:00ne13 B. SECTION 105 OF THE BANKRUPTCY CODE SUPPORTS ALLOWING THE CONTINUANCE 0 POINT IL... ‘THERE IS A STRONG PRIMA FACIE CASE THAT THAN AND PENAC CONSTITUTE A SINGLE BUSINESS ENTITY OR ARE ALTER EGOS, AND THE KRAUS CLAIMANTS SHOULD HAVE BEEN GRANTED A. SHORT EXTENSION OF TIME IN WHICH TO PRESS THIS OBJECTION... 15 A. BACKGROUND wee 16 B. _ PENAC SELLS A MAJORITY OF THE ASSETS OF THCC BUT THE LIABILITIES FOR ASBESTOS, AGENT ORANGE, AND ENVIRONMENTAL CLEANUP REMAIN... 18 00121399:14),TABLE OF CONTENTS ©. PENAC CREATES THAN.. D. THAN AND PENAC WERE A SINGLE BUSINESS ENTITY... E. _ PENAC Was The Alter Ego Of THAN... 22 1, THAN was not adequately capitalized or solvent... 2. THAN’s officers and directors do not funetion properly. (@) Joseph Wolf, President... (6) Warren T. Oates, Former Corporate Secretary...» 3. THAN is Nothing More Than a Fagade.... 4. Remaining Factors... POINT II1....... 27 BECAUSE OF THE RADICALLY DIFFERENT SETTLEMENT HISTORY OF THE WATERS & KRAUS CLAIMANTS, THEY SHOULD BE TREATED AS A SEPARATE CLASS OF CREDITORS FROM ALL OTHER ASBESTOS CLAIMANTS.. 27 CONCLUSION. snes 32 (00121385,14) "