Vol. 5, No. 8, August 2009, Tumbling Dice
Fontainebleau Cancels Conventions As Lawsuit Changes Landscape
The lawsuits keep rolling in. Now, Miami businessman Jeffrey Soffer’s construction company, Turnberry West Construction, is suing Soffer’s resort, Fontainebleau Las Vegas, in order to move to the front of the line in terms of which creditors should be paid first in the resort’s bankruptcy case.
Soffer had struck a deal with lenders in 2007 when agreeing to financing terms that the banks’ liens would be honored before the liens of Fontainebleau’s companies, according to the Las Vegas Sun. The terms of the financing state that the agreement between Soffer and his lenders will be governed by New York state law.
However, Soffer is now arguing that the financing agreement should be governed by Nevada law, which states that construction liens must be paid before lenders’ liens. The case is currently being heard in Miami, which complicates the issue further, as Fontainebleau and the majority of its lenders are based in Nevada. Though New York law has governed the financial terms of the project. Confused yet?
Turnberry West has been sued by multiple subcontractors in recent weeks, as it has not been paid by Fontainebleau and is therefore unable to pay anyone else.
As the bankruptcy drama continues to play out in a Miami bankruptcy court, Fontainebleau has cancelled events it had scheduled to host early 2010. Several companies have booked space at the unfinished resort due to its close proximity to the Las Vegas Convention Center. The Las Vegas Convention and Visitors Authority told the Associated Press that it would help companies find other accommodations.
While recent bankruptcy court filings indicate that Fontainebleau Las Vegas creditors think the resort defaulted on its loan obligations, Fontainebleau developers have counter-filed with strategies to cut costs.
One such plan is to change elements of the property’s design. It is unclear if Fontainebleau is over-budget, and if so, by how much. Lenders have accused the property’s developers of knowingly misrepresenting the project’s financial troubles, which led to creditors pulling the remaining funds necessary to complete the resort.
In the Fontainebleau’s filing, developers said that Soffer, who controls the property, may inject his own cash into the resort in order to finish construction.
The dispute between the banks and Fontainebleau continues as both sides allege the other reneged on established loan agreements. Fontainebleau has requested that the bankruptcy court issue a summary judgment and order creditors to release $656 million in financing for the project.
“Even if Fontainebleau’s tortured reading of the credit agreement were correct (which it is not), the motion (for summary judgment) should still be denied because there are compelling reasons to believe that, long before it issued the March notice of borrowing that is the subject of this motion, Fontainebleau had materially and repeatedly breached the credit agreement that it now asks this court to ‘enforce’ against the lenders,” Fontainebleau’s creditors stated in a filing two weeks ago.
Bank of America is saying that the resort needs much more than $656 million to complete construction. Bank of America Senior Vice President Henry Yu filed a court declaration that detailed an April conversation in which Fontainebleau officials said they needed $1.5 billion to complete the project.
According to Yu’s statements, Fontainebleau would open next year with $3.2 billion in debt, which would far outweigh the worth of the resort upon opening.
Fontainebleau and its lenders must participate in mediation moderated by a third party. That mediation began last month.