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Vol. 5, No. 7, July 2009, Tumbling Dice

Fontainebleau Bankruptcy Moves Forward

Thu, Jul 09, 2009

Fontainebleau Las Vegas LLC has filed for Chapter 11 bankruptcy protection in an effort to secure the funding it needs to finish its $3 billion Strip resort.

The project is about 70 percent complete, but little work has been done in recent weeks after lenders pulled the $800 million needed to complete the project. While Fontainebleau originally tried to force lenders to release the money through a federal lawsuit, the switch to bankruptcy court could help speed up the process.

Nancy Rapoport, a bankruptcy law professor at the University of Nevada-Las Vegas, told the Las Vegas Review-Journal that a bankruptcy court can bring parties together better than a federal court, likely leading to a faster resolution.

“Everyone has to go in front of the bankruptcy court and figure out what exactly is going on that dried up the financing,” Rapoport said. “What is it exactly that somehow you let this project go so far astray? It pulls everything into one area and the court has the ability to force anyone to answer questions under subpoena.”

The silence of lenders as to the reasons they pulled funding for the project was broken last month in court filings submitted by attorneys representing the lenders. They said millions of dollars in cost overruns and possible misrepresentations by the developer led them to rescind loan agreements.

“Fontainebleau repeatedly made contractually-required representations that it was, among other things, solvent, and that its remaining construction costs did not exceed its available remaining financing. But... Fontainebleau management has submitted documents and made statements to the lenders that call those representations into question,” the filing said.

The filing alleges a breach of the credit agreement dating back to March and April. Bank of America said that on March 25, Fontainebleau was provided $138 million after it submitted reports that showed the project was balanced—that available funds exceeded costs by about $14 million. On April 13, however, lenders were informed that the project was out of balance and that additional costs of $187 million needed to be funded.

Bank of America is also arguing that the case does not belong in bankruptcy court because the alleged contract breaches occurred before Fontainebleau filed for bankruptcy. It also questioned efforts to fast-track the case, saying that Fontainebleau was in no hurry to settle its original lawsuit.

Bank of America had also petitioned the bankruptcy court to revise a plan proposed by Fontainebleau to use $201 million in cash for ongoing operating expenses while the case is being adjudicated.

While construction has essentially ground to a halt on Fontainebleau, the company says it needs money to pay vendors, insurance premiums, payroll and other bills.

Judge Jay Cristol overruled Bank of America’s objection to the cash collateral motion, allowing Fontainebleau to continue making its payments. The judge allowed Fontainebleau access to $8.2 million of the $210 million available. A hearing was scheduled for June 30 to determine whether the developer will have access to the rest of the money.

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