Developer Lauth's bankrupt units win round in court

September 5, 2009

Developer Lauth Group Inc. in recent weeks has won critical courtroom victories that likely will allow company principals to retain control of three subsidiaries in Chapter 11 bankruptcy.

Judge Basil H. Lorch in late August approved a request for the company to pay up to $150,000 for an outside real estate firm to look over its books and evaluate a financing offer that could keep Lauth afloat.

The company’s largest creditor, Chicago-based Inland American Real Estate Trust Inc., blasted the financing proposal, saying the deal’s terms are much worse than an earlier proposal in which Lauth insiders would provide their own so-called debtor-in-possession financing.

Inland attorney Catherine L. Steege said in court that Lauth only brought up the alternate proposal in a bid to push the judge to go with the offer from company insiders.

That offer calls for a $15 million loan at 15-percent interest; the insiders also would get warrants to acquire up to 25 percent of the company’s remaining equity, go to the front of line to be repaid, and earn reimbursements for expenses and legal fees.

The insiders said in court filings they are offering the proposal because the company doesn’t have enough hard assets to serve as a “borrowing base” for a more traditional loan.

Steege said CEO Robert L. Lauth Jr. and other insiders are recruiting outside investors to participate in their financing offer rather than seeking the best deal for existing Lauth creditors.


The judge earlier in August had offered interim approval of the insider financing proposal after the parties—including Lauth principals and their spouses—agreed to drop a proposed $500,000 breakup fee they wanted to pay themselves if the deal fell through. A final hearing on that matter is slated for Sept. 25.

“There’s really no independent third party,” said Steege, a partner with Chicago-based Jenner & Block LLP. “This just smells really, really bad.”

Earlier, Inland had complained that Lauth hadn’t offered a third-party proposal to provide funding in bankruptcy, pointed out attorney Ross M. Kwasteniet, a partner in Chicago-based Kirkland & Ellis LLP who represents Lauth.

Kwasteniet said the company offering to invest—a hedge-fund-affiliated firm he would not name—is interested in “kicking the tires and making a proposal” and asked for a “modest” work fee.

The judge sided with Lauth, but also ordered the company to inform Inland of any other financing offers and to allow a third-party review of any such offers. During the same hearing, the judge denied a motion by Inland to dismiss the case because Lauth did not have the authority to put the entities into bankruptcy.

That motion had been pending since shortly after Lauth filed for Chapter 11 bankruptcy protection for three subsidiary companies in May. Lauth has said it filed in part to block a move by Inland to take control of more than 40 office, industrial and retail properties after it defaulted on a loan from Inland.

Inland maintains that Lauth lacked authority to file for bankruptcy protection for Lauth Investment Properties LLC, LIP Development LLC and LIP Investment LLC since Lauth was no longer in control of the subsidiary above the entities that filed, LIP Holdings LLC.

The three Inland representatives on the five-member LIP Holdings board had voted to declare a default after Lauth failed to make two consecutive interest payments related to a $250 million Inland investment. Inland says that April 27 vote gives it control of LIP Holdings and all the associated properties.

But Lauth pointed to a section of the original agreement with Inland that requires approval from at least one Lauth representative and one Inland representative for major company decisions, including a change in control. The judge agreed with the company’s interpretation.

“Under the plain language of its own LLC agreement, LIP H may not take over LIP I or take any other action constituting material discretion under the Mezzanine Loan without the approval of at least one Lauth manager,” the judge wrote.

Inland also is suing Lauth principals Robert Lauth, Michael S. Curless, Gregory Gurnik, Lawrence Palmer and Thomas Peck in a separate case that alleges fraud, conspiracy and racketeering.

The company accuses the Lauth executives of diverting more than $18 million of the Inland investment for unauthorized purposes and of secretly rewriting contracts to let themselves off the hook for personal guarantees of $310 million on dozens of now-struggling real estate projects.

Another lender, San Francisco-based Wells Fargo Bank, also has sued Lauth principals over attempts to move around assets and leave creditors holding the bag after the company’s failure.

Lauth has denied the allegations in both cases.•


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