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February 23, 2023

Bankruptcy Basics for Retail Landlords

Issue 11— "Retail Real Property Leases: Lease Amendments"

As noted in earlier issues, in most cases, a landlord and debtor will negotiate a lease amendment in connection with the debtor’s potential assumption of a lease. The debtor will prioritize financial issues, such as forgiving and reducing rent and other lease costs, extending or reducing the lease term, and eliminating or delaying required renovations to the premises. A landlord will often have to concede on enough of the debtor’s demands to keep the debtor from rejecting the lease; however, the landlord should be able to obtain valuable lease concessions as well.  

Generally speaking, most debtors in larger cases will engage a real estate consultant to negotiate lease amendments. These real estate consultants are very good at the negotiating process, but they have a well-known playbook that frequently includes impossibly tight timetables, a demand that all lease amendments must be “on their form,” and further demands that no other lease terms are to be negotiated. A landlord should be able to confirm, through counsel, the actual level of urgency, and a landlord should have confidence that it does not have to use the debtor’s form of lease amendment and that any lease terms may be negotiable.

A release is the most obvious thing that a landlord should secure in connection with any lease amendment. Whether it is a general release or one limited to specific matters, a landlord forgiving accrued rents or granting prospective rent relief should, at a minimum, secure a release of a debtor’s claims for any prior overpayments, refunds, or adjustments to variable lease charges such as percentage rent, taxes, and common-area maintenance charges. If the debtor insists on mutual releases, the landlord must ensure that it excludes the debtor’s indemnity obligations—this exclusion will keep the debtor and, more importantly, the debtor’s insurance carrier, obligated with respect to any premises liability claims.  

Many other tenant-favorable lease provisions could be targeted by a landlord in these negotiations, including exclusive use rights, “no-build” zones, and pylon sign rights. A landlord also may want to shorten the term of the lease and eliminate extension options. Another provision that a landlord may want to address is percentage rent, which could be adjusted to have a lower “unnatural” breakpoint and a higher percentage rent rate so that percentage rent will be more likely to be paid by the debtor and thus help to mitigate some of the landlord’s financial losses.  

A landlord may consider adding new lease provisions, including relocation rights and termination rights exercisable by the landlord, to allow for more flexibility. These relocation or termination rights may be conditioned so that the debtor can prevent relocation or termination by agreeing to restore full rents under the original lease provisions. Finally, a landlord may want to address subsequent defaults and the measure of damages by conditioning the ongoing rent relief on the debtor’s full performance of the modified lease terms and reinstating the original lease rates if the debtor subsequently defaults.
A landlord should keep in mind that a lease amendment and the resulting lease assumption is not final until there is a bankruptcy court order approving the assumption of the lease as modified by the amendment; thus, there is always the possibility of an attempt to re-trade the deal. Sometimes this occurs when the parties’ assumptions prove to be incorrect—for example, a standalone plan of reorganization may turn into a sale of the company, or a debtor may underperform projections to such an extent that its lenders require further lease concessions as a condition of additional lending. Furthermore, negotiations may involve some gamesmanship by the debtor and/or its real estate consultants. They may attempt to take a fully negotiated—but not yet executed—lease amendment and seek additional concessions by blaming demands from the debtor’s real estate committee or board of directors or from third parties, such as the creditors’ committee or lenders. Real estate consultants have also been known to change negotiators to reopen discussions or even to claim that previously agreed-upon terms were not properly authorized all in an effort to extract more value from landlords.

If a lease amendment negotiation is unsuccessful, the debtor may decide to reject the lease, leaving the landlord with “claims” for pre-bankruptcy rent and rejection damages. This topic will be covered in the next Bankruptcy Basics issue. 

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