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Commercial Landlord's Guide to Dealing with Issues in Bankruptcy

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Commercial Landlord's Guide to Dealing with Issues in Bankruptcy

  1. 1. Commercial Landlord’s Guide to Dealing with Bankruptcy Issues for Allegheny County Bar Association, Real Property Section FEBRUARY 9, 2012, Pittsburgh, PAby Salene Mazur Kraemer, Esquire & Eric L. Bradley, Esquire *ALL COPYRIGHTS RESERVED 1
  2. 2. Outline of DiscussionA. AssumptionsB. Prior to a Tenant Filing Bankruptcy 1. Preferential Transfers 2. Fraudulent TransfersC. Subsequent to a Tenant Filing Bankruptcy1. Automatic Stay2. Time Within Which to Assume or Reject3. Performance During Time Within Which to Assume or Reject4. Rejection5. Assumption6. AssignmentD. Other Considerations / Practice Points1. Letters of Credit and Security Deposits2. Non-Bankrupt Guarantors3. Distraint/Landlord’s LienE. Q&A 2
  3. 3. A. Assumptions: • Chapter 11 (Reorganizations) • Bankruptcy of Commercial Tenant 3
  4. 4. B. Prior to a Tenant Filing Bankruptcy1. Preferential Transfers or Fraudulent Transfers.2. Ipso Facto Clauses 4
  5. 5. B. Prior to a Tenant Filing Bankruptcy1. Preferential or Fraudulent TransfersPreferential Transfers• §547 of the Bankruptcy Code• 90 to 1-year look back• Antecedent Debt• Secured interests• Guarantors as defendants• Settlement agreementsDefense:• Ordinary course• New Value• Contemporaneous Exchange• Kiwi Defense 5
  6. 6. B. Prior to a Tenant Filing Bankruptcy1. Preferential or Fraudulent TransfersFraudulent Transfers• §548 of the Bankruptcy Code• 2 year look back• Under-market rentalsDefense:• Received reasonably equivalent value• Debtor not insolvent 6
  7. 7. 1. Preferential or Fraudulent Transfers (continued) Practice Tips!•Make sure rent timely paid•Reasonable and consistent credit monitoring•Uniform collection policies•Obtain credit enhancements (security deposits, letters of credit, suretybonds, third-party guaranties•Obtain Security Interest in Collateral•Terminate the Lease Pre-petition 7
  8. 8. B.Prior to a Tenant Filing Bankruptcy2. Ipso Facto Clauses 8
  9. 9. B. Subsequent to a Tenant Filing Bankruptcy 1. Automatic Stay 4. Rejection 2. Time Within Which to 5. Assumption Assume or Reject 6. Assignment 3. Performance During Time Within Which to Assume or Reject 9
  10. 10. B. Subsequent to a Tenant Filing Bankruptcy1. Automatic Stay.• §362 of the Bankruptcy Code,• Prohibits: Collections for unpaid rent, delivery of notice oftermination, eviction proceedings• Drawing on Letter of Credit and Security Deposits• Relief from the Stay Standard – lack of adequate protection; or – a showing that Debtor has no equity in the project and that property is not essential to an effective reorganization 10
  11. 11. C. Subsequent to a Tenant Filing Bankruptcy(cont.)1. Automatic Stay. (continued)• Main Concerns (i) taking back possession of the leased premises, (ii) getting all of the Debtor’s property out of the premises, (iii) collecting any unpaid rent (pre-petition damages) and future rent (iv) relet the space• Post-petition expiration of the Lease?• Filing a Proof of Claim/Checking A Debtor’s Schedules 11
  12. 12. C. Subsequent to a Tenant Filing Bankruptcy(cont.) 2. Time Within Which to Assume or Reject.• Bankruptcy Code § 365(d)(4) = must decide to assume or reject withinfirst 120 days of the filing of the bankruptcy case. • Can be extended by 90 days for cause without Landlord’s consent or more than 90 days if the Landlord consents in writing. • Pre-packaged plans• Be mindful of post-petition transfer liability. Bankruptcy Code § 549 12
  13. 13. C. Subsequent to a Tenant Filing Bankruptcy 3. Performance During Time Within Which toAssume or Reject.• Bankruptcy Code § 365(d)(3) Obligations: “Trusteeshall timely perform all the obligations of the Debtor” arisingafter the petition is filed and before the lease is assumed orrejected.” -Extension -What obligations are included? -Non-compliance 13
  14. 14. C. Subsequent to a Tenant Filing Bankruptcy(continued)• Administrative Claim Pursuant toBankruptcy Code § 503(b) – Full contract amount v. storage value? 14
  15. 15. C. Subsequent to a Tenant Filing Bankruptcy(continued)–When Does an Obligation Arise? : Is a Claim Pre-petition or Post-Petition? •Proration Rule •Billing Date Rule -Stub Rent 15
  16. 16. C. Subsequent to a Tenant Filing Bankruptcy (continued) 4. Rejection. • If the bankrupt Tenant does not elect to assume the lease prior to the expiration of the 120 day (or 210 day if extended) period (either by a motion or through a plan), the lease is deemed rejected. • TEST: “reasonable business judgment”: (1) generally benefits the bankruptcy estate and collective creditors, (2) relieves the estate from a burdensome lease, and/or (3) aids the Debtor’s reorganization efforts. • Considered breach immediately before Petition Date. • Three possible claims follow rejection (pre-petition, future rent, and administrative claim) 16
  17. 17. C. Subsequent to a Tenant Filing Bankruptcy (continued)4. Rejection (continued). Bankruptcy Code § 502(b)(6) states that a rejected leaseclaim is limited to any unpaid rent (without acceleration) due,plus the greater of (1) one year’s rent, or (2) a sum equal to15% of the remaining rent due under the lease, not to exceedthree years’ rent. Bankruptcy Code § 502(b). 17
  18. 18. Bankruptcy Code § 502(b)(6)Lease Rejection Damages = the sum of (1) prior unpaid rent (without acceleration) then due under the applicable lease [which is not limited]; plus (+) (2) the lesser of (A) three years of rent under the applicable lease, or (B) the greater of (i) one year’s rent under the applicable lease, or (ii) a sum equal to 15% of the remaining rent due under the applicable lease for the remainder of the term. 18
  19. 19. Bankruptcy Code § 502(b) (continued) TWO CAP METHODS (1) Rent measurement cap method (used by majority ofcourts) which calculates 15% of the total rent due over theremaining life of the lease; or (2) Term measurement method (applicable in PA), wherethe 15% cap is measured is by rent due under the first 15% ofremaining lease term. In re Allegheny Int’l., Inc., 145 B.R.823 (Bankr. W.D.PA. 1992). 19
  20. 20. Bankruptcy Code § 502(b) (continued)• Are damages, other than rent and “rent reserved”, subjectto the 502(b)(6) cap? – Debtor’s failure to repair premises – Debtor’s environmental remediation 20
  21. 21. C. Subsequent to a Tenant Filing Bankruptcy(continued)5. Assumption. A Debtor must assume or reject a lease within 120 days of thepetition date or, if extended 90 days, then within 210 days of the petitiondays (that’s about seven (7) months after filing). Three (3) prerequisites:• All defaults must be cured.• Adequate assurance that Landlord will be compensated for any lossesassociated with such defaults.• Adequate assurance that Tenant will perform in future. 21
  22. 22. C. Subsequent to a Tenant Filing Bankruptcy(continued)6. Assignment. If the lease has been assumed (see above requirements), a bankruptTenant may assign the lease despite restrictions on assignment containedin the lease. Bankruptcy Code § 365(f)(1).• Anti-assignment provisions are VOID in bankruptcy.• Proposed assignee must be able to provide “adequate assurance”.• Use and exclusive use clauses in the lease will be enforced.• Special rules for shopping centers. 22
  23. 23. D. Other Considerations1. Security Deposits and Letters of Credit• Property of the Estate?• Offset to Claim against Debtor• Relief from the Automatic Stay• Should security deposit or letter of credit be applied to the502(b)(6) claim cap to further reduce the allowed claim? 23
  24. 24. D. Other Considerations2. Non-Bankrupt Guarantors.3. Distraint or Landlord’s Lien.4. Confession of Judgment 24
  25. 25. PresentersSalene M. Kraemer, Esq. Eric L. Bradley, Esq.MAZURKRAEMER BUSINESS LAW Principal3205 Pennsylvania Avenue, Suite B. Dickie, McCamey & Chilcote, P.C.Weirton, WV 26062 Two PPG Place, Suite 400salene@mazurkraemer.com Pittsburgh, PA 15222BLOG: www.mazurkraemer.wordpress.com (412) 392-5322TWITTER: @salenekraemer (412) 392-5367 (facsimile)FACEBOOK: http://www.facebook.com/#!/pages/In- EBradley@dmclaw.com Plain-English/167415046667515 www.dmclaw.comLINKEDIN: http://www.linkedin.com/in/salenekraemer LINKEDIN: http://www.linkedin.com/pub/eric- bradley/2/229/550 25

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