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October 5, 2023

Bankruptcy Basics for Retail Landlords

Issue 20—"Common Issues and Filings in Retail Tenant Bankruptcies"

Throughout the first 19 issues of Bankruptcy Basics for Retail Landlords, we’ve touched on a number of different filings in retail bankruptcy cases that landlord creditors should be aware of.  Here are concise summaries of certain of those filings, each of which may have a significant impact.

Assumption or Assumption and Assignment of Retail Leases

Retaining or assigning a commercial real estate lease must include a cure of all defaults and a showing of adequate assurance of future performance (proving the tenant or the proposed assignee can perform under the lease going forward and certain lease provisions wouldn’t be violated). Another issue to look out for is the assumption of accrued but unbilled liabilities, such as real estate taxes or common area maintenance charges. Lease assumption motions are typically filed by reorganizing retailers, whereas lease assignment motions are often filed in connection with a sale of the company or lease auction.

Rejection of Retail Leases

Rejection occurs when the tenant does not want to retain a commercial real estate lease and cannot assign it. Lease rejection is similar to termination and allows the tenant to avoid performing their future lease obligations while usually leaving landlords with only general unsecured claims. Issues include the proposed rejection date through which post-bankruptcy rent must be paid, abandonment of personal property and ability to dispose of abandoned property, and the claim filing deadline.

Store Closing/Going-out-of-Business (GOB) Sales

Whether a vehicle for a complete liquidation or part of a lease optimization strategy, motions to conduct inventory liquidation sales are routinely granted despite lease provisions that may prohibit them. The tenant and its liquidator will propose guidelines to govern the sales, but landlords should look to quickly negotiate modifications through a separate side letter agreement with the liquidator.

Sale and Bidding Procedures

This motion seeks to establish a process by which the company or its assets can be sold to the highest bidder through an open process that includes a bid deadline, dissemination of adequate assurance information, and potentially one or more auctions. Issues include whether there’s sufficient time and information to effectively evaluate a proposed assignee.

DIP Financing/Cash Collateral

Frequently a “first-day” motion, retail debtors almost always seek financing for their ongoing operations and authority to use their lenders’ cash collateral. Landlords should assess what is budgeted to be paid (including “stub rent” and “go-forward rent”), whether liens are proposed to be on leases, and whether there are appropriate limitations on accessing retail real estate in the event of a financing default.

Disclosure Statement/Plan Confirmation

Plan confirmation is often sought in two steps through a motion for approval of the disclosure statement—which contains information about the plan—and procedures to establish a plan confirmation timeline, including the voting deadline and hearing on the plan. Among other things, landlords should review the process and date by which any remaining lease decisions must be made, cure dispute procedures, and the impact of voting and potentially opting out of releases of nondebtor third parties.

The next issue of Bankruptcy Basics will explain what happens after a plan is confirmed. Hint: The case is not quite over.

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