1.0 Law & Legal CLE Credit A/V Approval # Recording Date September 6, 2017 Recording Availability May 22, 2018

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1 1.0 Law & Legal CLE Credit A/V Approval # Recording Date September 6, 2017 Recording Availability May 22, 2018 Meeting Location Date Time Topic King County Bar Association 1200 Fifth Avenue - Suite 700 Seattle, WA Wednesday, September 6, :00 PM to 1:15 PM Retail Leases in Distress AGENDA 12:00 PM Introduction 12:10 PM Presentation: Retail Leases in Distress, by Deirdre Glynn Levin, Hackett, Beecher & Hart The presentation will explore trends in retail bankruptcies and the rights of tenants and landlords to leases when the tenant is in distress and is considering options, including bankruptcy. Can (and should) the landlord evict the tenant who has filed for bankruptcy? How long does the tenant get to stay in possession and on what terms? What if the landlord objects to a tenant s choice to "assume" the lease? 1:15 PM Adjourn SPEAKER BIOGRAPHY: Deirdre Glynn Levin, Hackett, Beecher & Hart - Deirdre is an accomplished, successful commercial and business attorney with significant experience developing thoughtful, pragmatic solutions to the legal issues faced by business clients. She counsels growing and established companies on governance, corporate structure (including dissolution), contract negotiation, dispute resolution (through both litigation and alternative remedies) drafting and enforcement. Deirdre advises businesses on establishing systems for risk management, minimizing uncollectable accounts, and negotiating improvements to contract compliance in a complex regulatory environment. Prior joining Hackett, Beecher & Hart in 2017, Deirdre worked for two years as In-House Counsel, and from she was a Senior Associate at Keller Rohrback s Seattle office in its commercial litigation

2 and debtor-creditors rights practice. Ms. Glynn Levin previously served as a career law clerk for federal bankruptcy judges in Seattle, Tacoma, and San Francisco. She has had the unique opportunity to serve simultaneously as bankruptcy and appellate law clerk to the Hon. Philip H. Brandt during his term on the Ninth Circuit Bankruptcy Appellate Panel and the U.S. Bankruptcy Court Western District of Washington. Deirdre has had extensive pro bono service. She served for six years as a Hearing Officer for the Washington State Bar Association, served on the Executive Board of the WSBA Debtor-Creditor Section, and is presently Chair of the Communications Committee of the WSBA Business Law Section.

3 HOW DO I EARN CREDIT FOR SELF-STUDY OR AUDIO/VISUAL (A/V) COURSES? For pre-recorded A/V (self-study) programs, although the sponsor should apply for accreditation, lawyers need to report the credits earned for taking the course. To add an approved course to your roster, follow the procedures below: Go to the "mywsba" website at Log in. Click on the "Access MCLE" link in the "MCLE Info" box on your home profile page. Click on "Add Activity." Search to find the approved course in our system. (See search suggestions on the screen.) Adding a Recorded Course Select Recorded Course from the Add New Activity screen. This will prompt you to search for the activity in case the activity has already been accredited in the MCLE system. You can search by Activity ID or by specific Activity Details. For the Activity Details search, you can use keywords for the title, sponsor name and date. After entering your search criteria and selecting Search at the bottom of the screen, a list of possible activities will be provided. You can select the correct one by clicking the Activity ID. This will take you to the specific activity. Entered the date(s) on which you began and ending viewing this recorded activity. Then claim the correct credits for which you attended this activity in the Credits Claimed fields and click the Submit button at the bottom of the page. You will receive a confirmation message at the top of your screen stating, The activity has been added to your roster.

4 RETAIL LEASES IN DISTRESS Presented by Deirdre Glynn Levin, for KCBA Real Property, Probate and Trust Section September 6, 2017

5 Retail Failures Continue To Rise In 2017 Source: Shutterstock 2

6 Empirical Research Analysis of 80 retail bk. filings from 1/1/06 to 6/30/15 evaluating companies $50,000,000+ in liabilities (excluding restaurants, grocers 55% retail liquidation rate abid/635/articletype/articleview/articleid/1795/alixpartn ers-retail-bankruptcy-study.aspx#sthash.ifvtnp7w Best interest of creditors test saleable inventory Retailers; specialty retail; big box; tech 3

7 Strategies Damage control market dependent Retail lease terms may be drafted to address adequate assurance Lessor and Lessee good-faith engagement (mitigate, delay or avert) - 90 day preference period Discretionary: Motions - Adequate Protection; Relief from Stay (unlawful detainer) 4

8 Purpose of 11 U.S.C. 365 Applies only if lease was not terminated prepetition (expired by its own terms or by operation of law) For a lessee which is current: section 365 is intended to relieve the estate of the debtor s burdensome obligations, while... providing a means whereby the debtor can force others to continue to do business with it at a time when the bankruptcy filing might otherwise make them reluctant to do so. 5

9 Timing Under 11 U.S.C. 365(d)(4) Provides the Debtor-Lessee with an initial 120-day period to assume or reject a commercial lease Court may grant a 90-day extension for cause shown; cause not defined in the Bankruptcy Code Further extensions require prior written approval of Lessor 6

10 11 U.S.C. 365(d)(3) A Debtor is required to keep current on lease obligations as well as obligations for real property taxes (to the extent that those taxes accrue postpetition) Relief from stay? As a practical matter, a court may not force a Debtor to pay post-petition rent immediately, even on a lessor s motion, if the court believes that such immediate payment will jeopardize the Debtor s reorganization 7

11 Assignment of Lease Bankruptcy Code overrides anti-assignment provisions Tenant, with court approval, can assign the lease to another party interested in the location Scenarios: third party intends to acquire some or all of the debtor s business operations, or where the lease is below-market 8

12 Shopping Center Leases Section 365(b)(3) special provisions Shopping center (undefined term) Provisions in the Bankruptcy Code provide lessors with further tools to prevent assignment of the lease where the proposed assignee would disrupt the tenant mix of the shopping center 9

13 What Criteria Must Be Met Before A Lease May Be Assumed? Provide adequate assurance of future performance under the lease Promptly cure any default or provide adequate assurance of cure Compensate or provide adequate assurance of prompt compensation of any monetary loss 10

14 Adequate Assurance (of Future Performance) Commercial leases may be drafted to address adequate assurance, which may include: Specific time periods to cure defaults Specific time periods to pay other pecuniary losses Significant security deposit or letter of credit Financial statements showing minimum net worth and working capital amounts Personal guarantors 11

15 Factors in Evaluating Adequate Assurance Payment history; lease term; non monetary breaches; management Presence of guarantee and security deposit Evidence of profitability and cash flow projections General trend and outlook in Debtor s industry macro economics Whether unexpired lease at or below prevailing market rate 12

16 Post-Petition Issues Rejection is a breach of the lease - rent claim for the period after a lease is rejected has the lower status of a non-priority unsecured claim Do schedules properly identify lease obligations? Store closing procedures - damage to the premises walls, floors; fixtures; HVAC; security codes; health and safety; stripping 13

17 Claim Calculation Do bankruptcy schedules properly identify lease obligations? The cap: damages for termination are limited to the sum of unpaid rent at the time that the petition was filed plus the greater of rent for one year or 15% of the rent due for the remainder of the lease term but not to exceed three years Severe limitation for shopping center leases which are longer in duration that most commercial leases 14

18 Other Considerations Reimbursement of TI s paid back through higher rent over term of lease? Loan funds for TI s to pay for the improvements and have the tenant repay those funds as a separate obligation 15

19 Competing Administrative Claims 20 Day Vendors and Professionals Section 503(b)(9) - Vendors who deliver goods to the debtor within 20 days of the petition date are entitled to an administrative claim for the cost of such goods. Class of administrative claim holders like lessors administrative rent claim. 16

20 Give Some Thought: Evolving marketplace: retail failures of all sizes expected to continue Assess performance and liquidity avoid the attitude of denial - reports of the lessee s financial condition periodically and on demand; limit use of the cure period Opportunity for outside counsel, brokers and consultants working creatively with both sides to manage leases Strategic counseling and negotiation 17

21 THANK YOU If you have questions please contact: Deirdre Glynn Levin Hackett, Beecher & Hart 1601 Fifth Avenue, Suite 2200 Seattle, WA Telephone: