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Not So Fast: An Option to Purchase Real Estate May Not Always Be Rejected by the Debtor in Bankruptcy

A recent bankruptcy court decision determined that a debtor cannot reject an unexercised option for the purchase of its real estate, raising a potentially significant bar to any debtor extricating itself from an under-market...more

Bankruptcy Court Holds Debtor-Assignor Is Not Off the Hook for Pre- and Post-Assignment Damages Under Lease Assigned...

If you really want to be released from your lease obligations and those of your assignee, you need to get a landlord release at the time of assignment. An assignor tenant’s lease obligations survive an otherwise permitted...more

Negative Amortization Chapter 11 Plans as a Potential Bridge Over the Economic Recovery Gap

Hospitality debtors with substantial equity but prolonged depressed revenues due to COVID-19 may find negative amortization, a tool used sparingly pre-pandemic, helpful in the restructuring of mortgage debt under a chapter 11...more

Bankruptcy Code Amendments Aimed at Allowing Extended Rent Holidays for Small Business Debtors Pose More Questions Than They...

While the recent Bankruptcy Code amendments allow small business debtors to extend their deferral of lease obligations beyond the first 60 days of the bankruptcy case, the amendments raise and leave unanswered important...more

Bankruptcy Court Denies Retail Debtor’s State-Law Based Arguments to Avoid Paying Rent During Chapter 11

A recent Chuck E. Cheese decision rejects the debtor’s/tenant’s request to avoid paying rent based upon state law equity arguments. CEC’s leases expressly do not permit rent relief even if force majeure is triggered....more

Bankruptcy Court Rules Bankruptcy Code Does Not Permit Extended Rent Holiday for Retail Debtors

A recent Chuck E. Cheese decision denies the debtor’s/tenant’s request to defer paying rent after the 60-day “rent holiday.” The Bankruptcy Court applied the “plain language” rule to hold that section 365(d)(3)’s rent...more

The Letter of Credit Conundrum: When a Debtor’s Default May Be Preferable to Its Late Payment

“Can an unsecured creditor be better off when the debtor defaults rather than paying off the debt? Yes: Law can be stranger than fiction in the Preference Zone.”—Ninth Circuit Untimely payment by tenants and other obligors...more

Court Holds COVID-19 Executive Order Triggers Lease’s Force Majeure Clause, Excusing Some Rent Obligations

Illinois Governor’s Executive Order prohibiting sale of food or beverages for on-premises consumption held to partially excuse restaurant tenant’s rent payment obligations. Bankruptcy Court finds that Executive Order...more

How Chapter 11 Solved One Multifamily Condo Regime’s Dual Challenges of Mounting Liabilities and Unpaid Dues

Multifamily condominium regimes with mounting liabilities and unpaid dues during COVID-19 may find answers in bankruptcy to the obstacles posed by individually titled units. We created and implemented a strategy that allowed...more

A Single Asset Bankruptcy from the 1990s Gains New Relevance during COVID-19

Three Flint Hill may provide valuable lessons on the use of bankruptcy to reduce real estate debt to match present property values. Chapter 11 strategies may exist for valuable real estate assets that are not producing...more

Nonconsensual Third-Party Release Limits: Substantial Financial Contribution Won’t Buy Non-Debtors a Release From Claims That...

Reorganization plans providing for non-debtor releases (i.e., releasing non-debtors from claims by creditors of the debtor) have been regularly challenged in recent years, frequently by the United States Trustee and other...more

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