In re River Road Hotel Partners, LLC

520 B.R. 691, 2014 Bankr. LEXIS 4566, 60 Bankr. Ct. Dec. (CRR) 62, 2014 WL 5488259
CourtUnited States Bankruptcy Court, N.D. Illinois
DecidedOctober 30, 2014
DocketNo. 09 B 30029
StatusPublished
Cited by2 cases

This text of 520 B.R. 691 (In re River Road Hotel Partners, LLC) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re River Road Hotel Partners, LLC, 520 B.R. 691, 2014 Bankr. LEXIS 4566, 60 Bankr. Ct. Dec. (CRR) 62, 2014 WL 5488259 (Ill. 2014).

Opinion

MEMORANDUM OPINION

JANET S. BAER, Bankruptcy Judge.

This is a dispute over an approximately $2.6 million restructuring fee. River Road Hotel Partners, LLC and its affiliates (the “Debtors”) retained FBR Capital Markets & Co. (“FBR”) as a financial advisor pursuant to both an engagement letter dated August 13, 2009 (the “Engagement Letter”) and the Court’s retention order dated September 17, 2009 (the “Retention Order”). In the Engagement Letter, the Debtors agreed to pay a restructuring fee based on the percentage of indebtedness involved in any restructuring (the “Restructuring Fee”). The Retention Order made payment of the Restructuring Fee' contingent upon the consummation of a restructuring contemplated by the Engagement Letter.

The Debtors filed a plan that sought to sell encumbered assets free and clear of liens without allowing the secured lender, Amalgamated Bank, to credit bid its claim in the sale. The Debtors’ plan was unsuccessful, and ultimately the Court con-finned a plan proposed by Amalgamated Bank. The confirmed plan created Bletch-ley Hotel at O’Hare LLC (“Plan Transferee” or “Bletchley”). Pursuant to the plan, Bletchley is responsible for the payment of all allowed administrative expenses in this case.

After FBR filed its final fee application, which included a request for the Restructuring Fee, Bletchley objected, thus giving rise to the present dispute. At issue is whether the restructuring that took place in this case, which was pursuant to a plan submitted not by the Debtors but by Amalgamated Bank, was a restructuring for which FBR is entitled to the Restructuring Fee.

The matter is on remand from the district court, FBR Capital Mkts. & Co. v. Bletchley Hotel at O’Hare LLC, No. 13 C 746, 2013 WL 5408848, at *3 (N.D.Ill. Sept. 24, 2013) (the “District Court Decision”), which affirmed the bankruptcy court’s denial of summary judgment for FBR and reversed the sua sponte grant of summary judgment for Bletchley. In accordance with the district court’s mandate, this Court held a three-day bench trial to determine whether FBR is entitled to the Restructuring Fee. For the reasons set forth below, the Court finds that FBR is entitled to the Restructuring Fee.

JURISDICTION

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and Internal Operating Procedure 15(a) of the United States District Court for the Northern District of Illinois. This is a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (B).

BACKGROUND

The Court incorporates the background section of the District Court Decision. To provide context for this ruling, certain relevant facts are repeated below, together [694]*694with additional facts pertinent to this Memorandum Opinion.

This case arises out of the Debtors’ chapter 11 filing in connection with their ownership of the Intercontinental Hotel at O’Hare Airport. The Debtors retained FBR, and FBR performed contracted-for financial services. It is undisputed that for its work, FBR was entitled to a monthly fee and expense reimbursement. However, when FBR applied for the Restructuring Fee, Bletchley claimed that FBR was not eligible to receive that fee because the restructuring in this case was based on a third party’s plan. Bletchley argued that the agreement regarding the Restructuring Fee was unclear and that parol evidence explained that FBR was not entitled to the Restructuring Fee because the plan confirmed was neither the Debtors’ plan nor the result of FBR’s efforts.

FBR filed a motion for summary judgment and also moved in limine to preclude Bletchley’s parol evidence. Counsel for the Debtors, David Neff (“Neff’), filed a declaration in connection with FBR’s motion for summary judgment in which he indicated his understanding was that “FBR was entitled to the restructuring fee under the Engagement Letter only if the restructuring occurred through a Debtor-sponsored plan.” Bankruptcy Judge Bruce W. Black found the Retention Order ambiguous and relied on the Neff declaration to grant summary judgment sua sponte for Bletchley. Judge Black then denied FBR’s motion in limine to preclude parol evidence as moot. The district court affirmed in part, reversed in part, and remanded the matter for trial. ■ The district court found that the agreement regarding the Restructuring Fee, which consisted of both the Engagement Letter and the Retention Order, was ambiguous and that the agreement’s interpretation presented a genuine issue of material fact. In light of the remand, the motion in limine is no longer moot. After briefing and oral argument, the Court took the motion in limine under advisement and heard the parties’ evidence at trial.

On remand, this Court has been tasked with making findings in response to the following question of fact: Is FBR entitled to a Restructuring Fee even though the plan confirmed was a plan sponsored by a third party?

FINDINGS OF FACTS

The story begins in August 2009, with the negotiating and drafting of the Engagement Letter. Brian Taylor (“Taylor”), a managing director at FBR, drafted the Engagement Letter at the direction of Kevin Phillips (“Phillips”), the senior managing director and head of the financial restructuring group at FBR. (Trial Tr. vol. 1, 30:22-24, 35:2-8, 35:20-23, Mar. 24, 2014; Phillips Dep. 8:20-25, Oct. 2, 2012; FBR’s Ex. B.)

The compensation structure outlined in the Engagement Letter evolved from the form in whicliKt was initially proposed into its final form. In addition to a retainer, each draft of the Engagement Letter contained three different kinds of fees: a monthly fee, a restructuring fee, and a financing fee. The first draft provided for a $165,000 retainer, a monthly fee of $165,000, and a restructuring fee equal to 90 basis points of the aggregate principal amount of any existing obligations involved in the restructuring. (Trial Tr. vol. 1, 36:15-24; FBR’s Ex. C.) In the second draft, the retainer and monthly fee were each lowered to $150,000; the restructuring fee remained the same. (Trial Tr. vol. 1, 41:17-18; 43:2-13; FBR’s Ex. D.) The. third draft further reduced the retainer and monthly fee in exchange for a higher restructuring fee. (Trial Tr. vol. 1, 44:2-9; FBR’s Ex. E.) The retainer and monthly fee were each lowered from $150,000 to [695]*695$20,000. The restructuring fee increased from 90 basis points to 125 basis points. (Trial Tr. vol. 1, 47:15-48:1.) In the final draft of the Engagement Letter, the monthly fee was decreased to $10,000 and the Restructuring Fee was increased to 135 basis points. (FBR’s Ex. A.) The retainer was increased to $50,000 with the proviso that FBR would apply that retainer to the first five monthly fee payments. (Trial Tr. vol. 1, 62:10-16.) There was no relevant change to the financing fee among the drafts.

FBR’s representatives testified that FBR would not have agreed to the $10,000 monthly fee if the Restructuring Fee had not been increased to 135 basis points. (Trial Tr. vol. 'l, 64:10-19; FBR’s Ex. A.) Taylor testified that because FBR was cutting the monthly fee, it considered what the total compensation might be over the course of the engagement. (Trial Tr. vol.

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Related

In re John Q. Hammons Fall 2006, LLC
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In re River Road Hotel Partners, LLC
536 B.R. 228 (N.D. Illinois, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
520 B.R. 691, 2014 Bankr. LEXIS 4566, 60 Bankr. Ct. Dec. (CRR) 62, 2014 WL 5488259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-river-road-hotel-partners-llc-ilnb-2014.