Commercial Tenant Bankruptcies and Unexpired Leases: Protecting Landlord and Debtor Interests

Recording of a 90-minute CLE video webinar with Q&A


Conducted on Wednesday, August 25, 2021

Recorded event now available

or call 1-800-926-7926
Course Materials

This CLE course will guide bankruptcy practitioners through the maze of time-sensitive and strategic decisions to be made when a commercial tenant files bankruptcy interrupting the landlord’s income stream. The panel will review Bankruptcy Code section 365’s specialized procedures, enhanced protections for certain landlords, current issues related to the tenant-debtor’s post-petition rent and other obligations, rejection damages issues, and best strategies for both sides in weathering recent real estate cycles.

Description

Leased business premises and the rent they generate may be critical for both a debtor-tenant and commercial landlord alike. The Bankruptcy Code drags the unwilling landlord into complex legal proceedings and alters the contractual balance of power with the tenant, which now has the authority to assume, assume and assign, or reject its executory leases, sometimes within tight time frames. Recent amendments and laws enacted in 2020 and early 2021 have wrought further changes in the how landlords and debtor tenants negotiate with each other.

However, the Bankruptcy Code provides certain “quid-pro-quo’s” for landlords. Before assuming a lease, all defaults must be cured, and the tenant must provide “adequate assurance of future performance,” an often-litigated concept. Additional protections are afforded to shopping center landlords. Contractual disputes under the lease may be moved to or commenced in bankruptcy court.

Rejection of a lease leaves a landlord with a general unsecured claim for damages. Damages are capped under section 502, but disputes erupt over exactly which components of rejection damages are subject to the cap.

Retail tenants have continued to struggle with BAPCPA's deadline to assume or reject its leases; however, recent COVID-19 relief legislation provided a further extension of that deadline to provide debtor-tenants with more breathing room.

Listen as our experienced panel of bankruptcy counsel guides you through the maze of bankruptcy rules for assumption, assumption and assignment, or rejection of leases in tenant bankruptcies and discusses strategies for landlords and tenants to protect their rights and interests in their leases.

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Outline

  1. Debtor's lease obligations during a bankruptcy case
  2. The deadline for the debtor to assume, assume and assign, or reject leases
  3. Assumption and assumption and assignment of leases: cure of defaults and adequate assurance of future performance
  4. Assumption and assumption and assignment of leases: additional protections for shopping center leases
  5. Rejection of leases: 502(b)(6) cap on damages

Benefits

The panel will review these and other crucial questions:

  • Is a debtor obligated to pay the amounts due as specified in its leases during a bankruptcy case? What if there are insufficient funds to satisfy other post-petition administrative expenses?
  • Which defaults have to be cured for a debtor to be permitted to assume or assume and assign a lease? Which don't?
  • What does the court look for in determining whether a debtor has provided adequate assurance of future performance in connection with the assumption or assumption and assignment of a lease?
  • How has the COVID-19 related extension of a debtor's deadline to assume, assume and assign, or reject its leases impacted the negotiations between the parties? What advantages do landlords have in these negotiations?

Faculty

LeHane, Robert
Robert L. LeHane

Partner
Kelley Drye & Warren

Mr. LeHane focuses his practice on corporate restructuring, creditors’ rights and landlord representation in...  |  Read More

O’Brien, Daniel
Daniel O’Brien

Senior Vice President
Hilco Real Estate

Mr. O’Brien provides Hilco Real Estate clients nearly twenty years of experience in the commercial real estate...  |  Read More

Raviele, Jennifer
Jennifer D. Raviele

Special Counsel
Kelley Drye & Warren

Ms. Raviele focuses her practice on bankruptcy – specifically on representing creditors in Chapter 11 and Chapter...  |  Read More

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