Commercial Tenant Bankruptcy: Legal Strategies for Landlords and Tenants Minimizing Risk and Maximizing Recovery Under the Bankruptcy Code

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1 presents Commercial Tenant Bankruptcy: Legal Strategies for Landlords and Tenants Minimizing Risk and Maximizing Recovery Under the Bankruptcy Code A Live 90-Minute Audio Conference with Interactive Q&A Today's panel features: Brian A. Jennings, Partner, Perkins Coie, Seattle James B. Jordan, Partner, Sutherland, Atlanta Thursday, July 30, 2009 The conference begins at: 1 pm Eastern 12 pm Central 11 am Mountain 10 am Pacific The audio portion of this conference will be accessible by telephone only. Please refer to the dial in instructions ed to registrants to access the audio portion of the conference. CLICK ON EACH FILE IN THE LEFT HAND COLUMN TO SEE INDIVIDUAL PRESENTATIONS. If no column is present: click Bookmarks or Pages on the left side of the window. If no icons are present: Click View, select Navigational Panels, and chose either Bookmarks or Pages. If you need assistance or to register for the audio portion, please call Strafford customer service at ext. 10

2 Commercial Tenant Bankruptcy: Legal Strategies for Landlords and Tenants Strafford Publications July 30, 2009 Brian Jennings Perkins Coie LLP 1201 Third Avenue, 48 th Floor Seattle, WA (206)

3 A. The Automatic Stay All collection actions must stop as soon as the tenant files for bankruptcy including unlawful detainer actions. (11 U.S.C. 362). The landlord may collect back rent from guarantors of the lease, even when the tenant is in bankruptcy. (11 U.S.C. 362, 524(e)). 2

4 B. Ipso Facto Clauses Many leases give landlords the right to terminate or declare a default due to the tenant's financial condition. These are called ipso facto clauses. Typical ipso facto clause triggers include: Filing a voluntary bankruptcy; Having an involuntary bankruptcy filed against tenant; Becoming insolvent Admitting in writing that tenant is insolvent Making an assignment for the benefit of creditors; or Tripping some other financial condition covenant 3

5 B. Ipso Facto Clauses (cont'd) Section 365(e)(1), governs ipso facto clauses in executory contracts and unexpired leases: [An] unexpired lease of the debtor may not be terminated or modified... Solely because of a provision in such contract or lease that is conditioned on (a) the insolvency or financial condition of the debtor; (b) The commencement of the bankruptcy case; or (c) The appointment or taking possession by the trustee. 4

6 C. Assumption or Rejection (Cont'd) Scenario Rejection Tenant: "I don't want the space" Assumption Tenant: "I want to keep the space" Assignment Tenant: "I don't want the space, but I know someone who does" Tenant Court authorized breach of the lease Generally commits to vacate the premises by a certain date Must cure all defaults (both pre- and post-filing) Must show ability to pay going forward (but no guaranty) Must cure all defaults (both pre- and post-filing) Must show that the assignee has the ability to pay going forward. Landlord Gets the space back Unsecured claim subject to a cap (discussed below) May have administrative claims for postpetition use Gets back rent and rent going forward If tenant later rejects the lease, will have administrative claim for post-petition rent (up to 2 years) Gets new tenant and back rent Generally has no consent rights for new tenant "Use" clauses generally will be honored, subject to some limitations. 5

7 C. Assumption or Rejection (Cont'd) 1. Lease Assumption/Rejection Deadline: If lease is not assumed or rejected within first 120 days of case, it is deemed rejected One 90-day extension is allowed for "cause" Additional extensions require the written consent of the landlord Possession must be turned over immediately upon rejection 6

8 C. Assumption or Rejection (Cont'd) 2. Non-monetary Cure Provisions: Non-monetary defaults under leases must be cured prospectively Payment for losses caused by non-monetary default must also be paid as part of the cure 7

9 C. Assumption or Rejection (Cont'd) 3. Rejection Damages Cap: Damages are capped at "the rent reserved by such lease, without acceleration, for the greater of one year, or 15 percent, not to exceed three years, of the remaining term of such lease" Damages excluded from the cap: those not arising from rejection of the lease 8

10 C. Assumption or Rejection (Cont'd) 3. Rejection Damages Cap (cont'd) Example: Lease term remaining: 5 years Monthly Rent: $1,000 Cap 1 (one year) = $1,000 x 12 = $12,000 Cap 2 (15%) = $1,000 x 60 x.15 = $9,000 The cap will be $12,000, the greater of the two calculations 9

11 C. Assumption or Rejection (Cont'd) 4. Administrative Damages Cap Scenario: lease is assumed by court order then subsequently rejected. Administrative claim is limited to two years of monetary obligations under the rejected lease. The remainder is an unsecured claim Must be paid in full in order for the debtor to confirm a plan. 10

12 C. Assumption or Rejection (Cont'd) 5. Assignment of Shopping Center Leases In order to provide "adequate assurance of performance" in connection with assignment of a lease in a "shopping center," debtor/assignee must prove: Financial condition of assignee is compared to that of the tenant at date of lease execution Assurance that any percentage rent will not decline substantially 11

13 C. Assumption or Rejection (Cont'd) 5. Assign of Shopping Center Leases (cont'd) Assignment: Is subject to all provisions of the lease, including radius, location, use, or exclusivity provisions, and Will not breach any such provision contained in any other lease, financing agreement, or master agreement relating to such shopping center. Assignment will not disrupt any tenant mix or balance 12

14 C. Assumption or Rejection (Cont'd) 6. Assumption/Rejection Procedures It is common for debtors to seek court orders establishing guidelines for assuming or rejecting contracts. Examples: In re Eddie Bauer Holdings, Inc., Case No (MFW) (Bankr.D.Del. 2009); In re Gottschalks, Inc., Case No (KJC) (Bankr.D.Del. 2009). 13

15 C. Assumption or Rejection (Cont'd) 6. Assumption/Rejection Procedures Rejection procedures often include the following terms: Debtor must file and serve notice of intended rejection; If no objection is filed within certain time period (usually a shortened period, such as 10 days), the lease is deemed rejected on specific date (e.g., the date the rejection notice is filed or some number of days thereafter) If the landlord objects, a hearing will be scheduled The procedures often address the treatment of personal property at the location See attached order from Gottschalks case 14

16 C. Assumption or Rejection (Cont'd) 6. Assumption/Rejection Procedures Assumption procedures often include the following terms: Debtor must file and serve notice of intended assumption, together with its calculation of the "cure" amounts; If no objection is filed within certain time period the lease may be assumed upon payment of the proposed cure costs If the landlord objects, a hearing will be scheduled 15

17 E. Post-Petition Performance Once a tenant has declared bankruptcy, it must timely perform its post-petition obligations under the lease until it is assumed or rejected. (11 U.S.C. 365(d)(3)). Includes payment of rent, late fees, interest, and attorneys fees. A bankruptcy court's ability to eliminate these duties is limited to offering a 60 day extension for payment after the order for relief is entered. 16

18 E. Post-Petition Performance When rent becomes due postpetition but includes both the prepetition and postpetition periods, courts disagree as to whether 365(d)(3) requires full payment: Some courts require debtors to pay rent in full as it becomes due: see e.g., HA-LO Industries, Inc. Some courts, however, require only prorated rent to be paid: see e.g., Ames Department Stores 17

19 E. Post-Petition Performance When rent becomes due prepetition but includes postpetition period: the debtor need not pay the post-petition portion in order to be current for purposes of 365(d)(3). However, the prorated post-petition portion of rent may be allowed as an administrative expense. 18

20 E. Post-Petition Performance When taxes become due postpetition but include both prepetition and postpetition periods: Some courts hold that 365(d)(3) requires debtor to pay as administrative expense only those taxes allocated to the post-petition, pre-rejection period: see e.g., Handy Andy Other courts require debtor to pay all taxes that become due postpetition under the lease, regardless of whether they are attributable to prepetition or post-rejection period: see e.g., Montgomery Ward, Koenig Sporting Goods 19

21 E. Post-Petition Performance Post-Petition Performance / Stub-Rent Cases In re Montgomery Ward Holding Corp., 268 F.3d 205 (3 rd Cir. 2001) Matter of Handy Andy Home Improvement Centers, Inc., 144 F.3d 1125 (7 th Cir. 1998) Ha-Lo Industries v. Centerpoint Properties Trust, 342 F.3d 794 (7 th Cir. 2003) In re Koenig Sporting Goods, Inc., 203 F.3d 986 (6 th Cir. 2000) In re UAL Corporation, 291 B.R. 121 (Bankr.N.D. Ill. 2003) In re Ames Department Stores, Inc., 306 B.R. 43 (Bankr.S.D.N.Y. 2004) In re Goody's Family Clothing, Inc., 401 B.R. 656 (D.Del. 2009) In re Stone Barn Manhattan LLC, 398 B.R. 359 (Bankr.S.D.N.Y. 2008) 20

22 E. Landlord Claims Landlord Claims Typically Include: Prepetition Defaults Administrative claims for postpetition obligations Lease rejection claims In some cases, interest and attorneys fees 21

23 E. Landlord Claims Landlord Claims Typically Include: Prepetition Defaults Administrative claims for postpetition obligations Lease rejection claims (subject to the cap) In some cases, interest and attorneys fees 22

24 E. Landlord Claims Administrative Claims for postpetition obligations: Depending on the jurisdiction, the landlord's claim for debtor's postpetition occupancy of premises may or may not be presumed to be the contract rate. Landlord's claim for debtor's failure to comply with lease likely will not be considered an administrative claim In re TreeSource Industries, Inc., 363 F.3d 994 (9 th Cir. 2004): landlord's damages arising from tenant's failure to remove concrete slab and restore premises according to lease was prepetition, unsecured claim. 23

25 E. Landlord Claims Effect of credit support on damages cap: Security Deposits: considered property of the bankruptcy estate and, therefore, credited against the landlord's damages cap. Third Party Guarantees: the rejection cap does not affect a guarantor's obligations under the lease. The guarantor's claim for reimbursement is, however, subject to the cap. 24

26 E. Landlord Claims Effect of credit support on damages cap (cont'd): Letters of Credit: landlord may draw on letter of credit without violating automatic stay. However courts are split as to whether the proceeds implicate the rejection damages cap. 25

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54 James B. Jordan Sutherland Asbill & Brennan LLP 999 Peachtree Street, NE Atlanta, Georgia Commercial Tenant Bankruptcy: Legal Strategies for Landlords and Tenants Sponsored by Strafford Publications July 30, Sutherland

55 Best Practices for Mitigating Risk of Loss-Landlord Pre-petition termination of lease Enforcing rights to receive current rents Security deposit set-offs Appointment to creditors committee Bankruptcy proof credit enhancement GOB sales Structuring tenant improvement allowances in the face of rejection possibility Sutherland Asbill & Brennan LLP

56 Best Practices for Mitigating Risk of Loss-Landlord Pre-petition termination of lease Valid termination pre-petition results in lease not being an asset of the bankruptcy estate (11 U.S.C. 362(b)(10); See, e.g., In re Triangle Laboratories, Inc., 663 F.2d 463 (3d Cir. 1981) Consult lease for termination procedures Consult local law requirements Strategy: Tension between keeping lease out of bankruptcy and maximizing landlord s claims Sutherland Asbill & Brennan LLP

57 Best Practices for Mitigating Risk of Loss-Landlord Enforcing right to receive current rents Minimize unsecured claim in bankruptcy May require enforcement action at a time when the landlord prefers simply to be paid Allocation of payments to current rent obligations may reduce preference exposure Sutherland Asbill & Brennan LLP

58 Best Practices for Mitigating Risk of Loss-Landlord Security deposit set-offs Consult lease provisions Effect on bankruptcy claim How effectuate set-off Sutherland Asbill & Brennan LLP

59 Best Practices for Mitigating Risk of Loss-Landlord Appointment to the creditors committee Advantages: more muscle to increase recovery Disadvantage: fiduciary duty owed to all class claimants Sutherland Asbill & Brennan LLP

60 Best Practices for Mitigating Risk of Loss-Landlord Bankruptcy proof credit enhancement Guaranties from third parties If guarantor stays out of bankruptcy, collection activities are not subject to the automatic stay (subject possible to Section 105 discretionary injunction) Enforcement of secured claims against collateral owned by guarantor similarly is not subject to the automatic stay Letter of credit Not subject to automatic stay as the obligation is the lender s and not the debtor s Possibility of Section 105 injunction Importance of issuer standards given problems in lending community (see Exhibit A) Sutherland Asbill & Brennan LLP

61 Best Practices for Mitigating Risk of Loss-Landlord Letter of Credit (cont d) How preserve right to call on letter of credit with debtor in bankruptcy? LOC Issuer $ Beneficiary (Landlord) Reimbursement obligation Default Notice Required? Account Party (Debtor) Sutherland Asbill & Brennan LLP

62 Best Practices for Mitigating Risk of Loss-Landlord Requirements of draw on LOC: Most LOCs require that a default exist under the Lease, with all notices having been given, etc. What if the default has not been perfected prior to the debtor-tenant filing for bankrucpty? Draw condition tied to default notice to debtor: automatic stay prohibits Draw condition tied to filing of bankruptcy of debtor: violate ipso facto clause? Probably not. See Liberty Mutual Ins. Co. v. Greenwich Ins. Co., 417 F 3d 193 (1 st Cir. 2005) As a result, can LOC state that no notice to Debtor is required if prohibited by automatic stay? Sutherland Asbill & Brennan LLP

63 Best Practices for Mitigating Risk of Loss-Landlord GOB sales Disfavored by landlords Applicable lease provisions (no GOB/ bankruptcy sales, signage restrictions, etc.) Structure of typical GOB sale arrangements Court order to sweep away problems (see Exhibit B) Sutherland Asbill & Brennan LLP

64 Best Practices for Mitigating Risk of Loss-Landlord Structuring tenant improvement allowances in the face of rejection possibility (See Exhibit C) Issue: Must landlord continue to fund tenant improvements while waiting for tenant to decide whether to reject? Lease provisions giving landlord the right to suspend obligations pending rejection decision are likely invalid for violating ipso facto clause Alternative Structure: Arrangements to extend credits which may be exempt from the ipso facto clause Sutherland Asbill & Brennan LLP

65 Exhibit A The Letter of Credit shall be issued by a commercial bank acceptable to Landlord and (1) that is chartered under the laws of the United States, any State thereof or the District of Columbia, and which is insured by the Federal Deposit Insurance Corporation; (2) whose long-term unsecured and unsubordinated debt obligations are rated in the highest category by at least two of Fitch Ratings Ltd. (Fitch). Moody s Investors Service, Inc. (Moody s) and Standard & Poor s Ratings Services (S&P) or their respective successors (the Rating Agencies) (which shall mean AAA from Fitch, Aaa from Moody s and AAA from Standard & Poor s); and (3) which has a short term deposit rating in the highest category from at least two Rating Agencies (which shall mean F1 from Fitch, P-1 from Moody s and A-1 from S&P) (collectively, the LC Issuer Requirements). If at any time the LC Issuer Requirements are not met, or if the financial condition of such issuer changes in any other materially adverse way, as determined by Landlord in its sole discretion, then Tenant shall within five (5) days of written notice from Landlord deliver to Landlord a replacement Letter of Credit which otherwise meets the requirements of this Lease and that meets the LC Issuer Requirements (and Tenant s failure to do so shall, notwithstanding anything in this Lease to the contrary, constitute an Event of Default for which there shall be no notice or grace or cure periods being applicable thereto other than the aforesaid five-day period). Among other things, Landlord shall have the right under such circumstances to immediately, and without further notice to Tenant, present a draw under the letter of credit for payment and to hold the proceeds thereof. In the event the issuer of any letter of credit held by Landlord is insolvent or is placed into receivership or conservatorship by the Federal Deposit Insurance Corporation, or any successor or similar entity, or if a trustee, receiver or liquidator is appointed for the issuer, then, effective as of the date of such occurrence, said Letter of Credit shall be deemed to not meet the requirements of this Section, and, within five (5) days thereof, then Tenant shall within five(5) days of written notice from Landlord deliver to Landlord a replacement Letter of Credit which otherwise meets the requirements of this Lease and that meets the LC Issuer Requirements and Tenant s failure to do so shall, notwithstanding anything in this Lease to the contrary, constitute an Event of Default for which there shall be no notice or grace or cure periods being applicable thereto other than the aforesaid five-day period; or, alternatively, Tenant shall, within such five-day period deliver cash to Landlord in the amount required above Sutherland Asbill & Brennan LLP

66 Exhibit B Sutherland Asbill & Brennan LLP

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84 Exhibit C Sutherland Asbill & Brennan LLP

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