Q&A with Attorney Cheryl Van Steenwyk of Newmeyer & Dillion Addressing Retail Tenant Issues in Bankruptcy
During these first eight months of 2008, the retail real estate industry has seen bankruptcy filings continue to pile up. Filings over the last few months include retailers that together have the potential to pack quite a punch to the vacancy of many landlords' malls and shopping centers; such as Linens 'n Things, Steve & Barry's, Mervyns, and Boscovs.
The bankruptcy filing of discount fashion apparel retailer Steve & Barry's in particular appears to have triggered concerns over retail bankruptcies. The company filed Chapter 11 on Jul. 9 and at the time, operated 276 stores in 39 states. The retailer grew fast over the past few years, known for backfilling large, hard-to-lease spaces at B malls across the country. On August 4, Steve & Barry's accepted a "stalking horse" asset purchase agreement with BH S&B Holding LLC, a newly formed subsidiary of investment firm Bay Harbour Management. Under terms of the agreement, Bay Harbour would acquire Steve & Barry's store leases, merchandise, and intellectual property rights for $163 million.
Bay Harbour said it intends to keep Steve & Barry's store network and distribution facilities operating as normal, but put direct pressure on landlords, saying it would only continue to operate stores where "an appropriate package of renegotiated leases and other conditions" are accomplished.
Bay Harbour is an investment advisor known for purchasing distressed companies with the intention of a turnaround, but its well-known retail industry involvement is limited to Barney's New York.
Since Steve & Barry's filing and the identity of its potential buyer were announced, Landlords have banded together to raise certain objections with the bankruptcy court including whether or not the new buyer will be able to pay off rent debts, its ability to continue to operate the stores, keep stores open through the holidays, limiting liquidation signage at the stores, and other issues.
To help clarify the issue and discuss the typical outcomes landlords face in a retailer bankruptcy, CoStar conducted a Q&A with Cheryl Van Steenwyk, a partner specializing in business and real estate law at Newport Beach, CA-based Newmeyer & Dillion, LLP. For 20+ years, Van Steenwyk has been part of groups handling landlord / tenant issues, including past tenant bankruptcy issues for landlords including Westfield, Macerich, Developers Diversified Realty, and more.
CoStar Advisor: How does the start of a retailer bankruptcy usually look to landlords?
Generally, a retailer will become delinquent in rent. If they're getting notices to pay rent or quit, they'll usually try to make that landlord happy and stall other landlords. However, tenants often won't pay rent on stores they're likely not planning to keep, even if they are getting notices.
Depending on where they file - a lot of times a tenant will file on the second day rather than the first of the month, because some courts hold that the rent was due on the first and if a tenant files on the second it doesn’t have to pay the rent that month. Under bankruptcy code, the landlord is only entitled to get paid current rent during a retailer's bankruptcy proceedings, until the tenant makes a decision on whether it will assume or reject the lease.
Prior to the most recent bankruptcy law changes, a tenant only had 60 days to assume or reject leases, but could file endless 60-day motions to extend. Now they get 120 days to assume or reject and that can only get extended, with good cause, for an additional 90 days; the decision can only be extended beyond that if the landlord agrees in writing.
CoStar Advisor: What happens if the tenant assumes a lease?If the Tenant decides a particular lease is valuable and assumes it, the tenant is obligated to cure all defects. That could mean they have to pay that pre-bankruptcy rent in a lump sum or they have to come to an agreement with the landlord to a timeline of paying that rent.
CoStar Advisor: What happens if the tenant rejects a lease?If a tenant rejects a lease, that rent owed pre-bankruptcy becomes part of the landlord's unsecured claim. Generally a retailer, and especially the larger ones, has secured creditors that are going to receive payment prior to unsecured creditors. Landlords are unsecured creditors -- even the Simon's and General Growths, etc.
CoStar Advisor: If a lease is rejected, does the landlord’s back rent claim get paid?Yes. Part of it depends on what the retailer is ultimately doing. If the retailer is going to reorganize and try to continue on, a landlord holding a rejected lease can file a claim for rejection damages, which is usually the greater of one year's rent in charges or 15% of the owed rent plus charges over the balance of the term, not to exceed three years.
With regards to payouts, a system is set up where everybody who is owed money -- landlords, unsecured vendors, etc - goes into a group of unsecured creditors and the debtor and/or its consultants will figure out the lump sum of the unsecured claims it has and will decide the total money that is potentially available to give to the unsecured creditors after they pay off all their secured creditors.
They'll do a mathematical formula that says each unsecured creditor gets 5% or 10% or of their claim, for example. And yes, getting 5% to 10% is not uncommon. Sometimes landlords will get pennies on the dollar or a little more than that. It’s a rare circumstance when they get their full damage claim.
CoStar Advisor: How long does it usually take before a landlord find out how much they'll get paid on their claim?For most bankruptcies it’s probably 12 to 18 months before you receive payment. However, it can be longer or shorter.
There are some unusual circumstances where a retailer started as Chapter 11 and then reverts into Chapter 7 liquidation and sometimes trustees will go after people who lent money and maybe made false representation - then, money can come trickling in several years later.
In addition, there is a presumption that the bankruptcy debtor was insolvent for 90 days prior to its filing. Some lawyers representing retailers or trustees will go back against those who received significant sums of money in the 90 days preceding the bankruptcy filing and file preference actions to recover some money back into the estate. This can add to the time it takes for creditors to get paid off.
CoStar Advisor: How does the lease assumption / rejection process typically go?The decision on whether or not to assume or reject a lease is more based on the particular retailer's criteria. They know what their stores have done year-to-date, what those stores did previously and whether it’s a good or bad location. Factors going into that are, with the larger anchor retailers...Do we own the land or lease it? Is this a market where there's been a lot of new development and we're in an older location or center? Is our building fresh or not fresh? What's our parking? Who are our competitors? Is this an area that's growing or declining? It's really a decision made on a location-by-location basis, based upon how that retailer sees their potential future.
Most retailers will go to their landlord and say they're going to have to reject their lease unless the landlord reduces their rent. There will be intensive negotiations going on. Whether or not a landlord will agree to rent concessions or any other type of concessions will generally depend on the landlord's view of what they want to do with their property. Using Mervyn's as a potential example, If the landlord wants to control 65,000 square feet in their shopping center, Mervyn's isn't likely to get concessions.
CoStar Advisor: Let's say the landlord turns the tenant down on their request for concessions and then the tenant rejects the lease. Does the landlord still have the same rights to their claim?Yes. The only issue is that they now have a rejected lease and a fixed claim amount versus a potentially operating tenant and getting less income.
CoStar Advisor: In what situations does a landlord typically seek to take back control of a bankrupt tenant's space?Larger anchor tenants generally either own their own stores and the land surrounding them, or they pay very low rent to occupy such space because they're perceived as being a draw to the shopping center. To the extent that a landlord can recapture space and control space, especially within a regional enclosed mall; they're going to attempt to do that because it gives them a lot more options.
If they don't control that property, the bankrupt tenant could potentially put it out to the highest bidder. However, anybody who buys the property has to comply with the covenants, conditions and restrictions that are part of the overall shopping center agreement. But the owner of an enclosed regional mall typically doesn't want an unknown entity coming in.
Note: In February 2008, before Mervyns filed bankruptcy, Macerich acquired a portfolio of 43 Mervyns stores for $430 million in a 20-year sale-leaseback transaction. The company said they specifically made the acquisition because they didn't want a traditional buyer to become the owner of Mervyns stores in its centers. For more on that, follow this link.If a landlord has a retailer that is looking for somebody to buy them, an investment company for example, the landlord doesn't always know if they're going to buy their leases and operate as that same retailer...landlords may rather take control of the space, perhaps have it go dark for a period of time, rather than have an operator they don't want in there.
With some of these locations, landlords have tenants who prior to their filing were deemed to be desirable, top-notch tenants that have spaces in key locations of a shopping center. In the case of a mall where the space might be right near the center court, for example, the landlord may rather want to set that up as a potential concierge or gift wrap -- especially over the holiday season, than have a discounter retailer in there, for example.
The landlord's decision of whether to gain control of a store is a fine line to walk. It depends on the center and the landlord's plans for the center. There are probably a lot of developers who prior to this downturn had remodeling plans laid out for the next 3-5 years and those have been pushed out now, but ultimately, they still want to control that space.
CoStar Advisor: Let's use Sharper Image as an example -- they filed bankruptcy at the beginning of this year, said they would close 90 of their 184 stores and then on May 29 a joint venture between well-known liquidators, Hilco and Gordon Brothers, as well as Bluestar Alliance, Windsong Brands and Crystal Capital, purchased Sharper Image for $49 million. The group proceeded to close and liquidate the remaining stores. So now Hilco and DJM (Gordon's real estate subsidiary) are disposing of Sharper Image's leases. When another entity buys a bankrupt retailer, like in this case, what happens regarding the rights the landlords hold? This is where it gets a little tricky. It goes back to the question of why a landlord might not grant the tenant's concession request. A landlord might not give concessions if they think potential purchaser is a liquidation firm, because really what those firms want to do is come in and find a tenant for that space.
Sharper Image, for example, had 'better' locations -- that increases the value to the liquidator.
When a liquidator takes control and looks to assign a lease - the use provisions of the leases, which are there to protect the landlord, can create an issue. Technically, to assign the lease it has to be shown that the use is going to remain the same. The problem arises on whether or not its realistic to obtain another tenant that can conform to the use provision the bankrupt tenant had.
If the liquidator comes in with a tenant that doesn't fit that use provision, then the landlord has to decide if they want the proposed tenant or if they want to fight it based on non-conformity to the use provision. Then the judge will make a determination as to whether or not anyone could realistically comply with the use provision and if not, then the landlord could get stuck with a potentially undesirable retailer for that location in their center.
CoStar Advisor: So if the landlord rejects the liquidator's proposal to bring a fitness center into a former Sharper Image space (theoretical example), the judge could decide that Sharper Image's use isn't realistic because the liquidator likely won't be able to find anyone who would fit the use, and the judge could rule that the landlord has to accept the fitness center?
That's right. The judge could say that there's nobody who could meet the use clause -- it depends how finely nailed the use clause is. If the use clause is women's apparel, you could find lots of tenants to fit that use; but if the clause is very specific, such as the 'sale of electronics and gadgets', for example, you might not be able to.
CoStar Advisor: When an entity buys out a bankrupt retailer, and let's say they want to continue operating the chain, like Steve & Barry's suitor, Bay Harbour Management, says it intends to, what happens regarding the rights landlords hold?Landlords tend to become more concerned in the buyout scenario, depending on who the purchaser is, because the question becomes whether or not it is an entity who will continue to operate as the tenant or if it's an entity that is going to look to shop the leases and flip them to a tenant the landlord might not want.
In the situation where an entity is purchasing all of the assets and is indicating a desire to continue to operate, that new purchaser has to give adequate proof of future performance. Which is where landlords often raise objections. Here is a company saying they're going to buy, but the landlord doesn't know anything about them, so they request to be shown that this potential buyer has sufficient assets to cure, buy and perform under the terms of the leases. Landlords will often request financial statements and confirmation that the buying firm will continue to operate, etc.
CoStar Advisor: What about the fact that its getting close to the holiday shopping season? Is this an issue for landlords dealing with tenants in bankruptcy now?
In these months leading up to the holiday season, landlords will often request that the potential buyer provide for "holiday protection," meaning they're requesting that the tenant stay open and operating through January 31. Realistically, if a tenant isn't open by Sept. 1 - with the exception of seasonal tenants - they're not really going to be able to get into the space, do all of their tenant improvements and open in time to be a viable tenant over the holiday season. Especially with fairly large spaces, landlords can't have the tenant decide Nov. 1 they're closing, because they would have a large space that is dark over holidays.
CoStar Advisor: Another issue that's risen in the Steve & Barry's case is signage - some landlords are asking that the retailer not be allowed to post liquidation signage in the stores. How often does this issue arise and what usually happens?
The major Landlords will always seek to require that the debtor comply with the signage requirements in the respective leases, which generally prohibit oversized signs within a certain distance of the storefront, which are not professionally done and which mention bankruptcy, liquidation, store closing etc.
For the most part in the retail bankruptcies, lawyers have worked out general parameters, which each side can live with on signage. Each side gives a little with regard to size, wording, location, however, at the onset, until someone raises the objections, a debtor or the liquidator who is called in to handle the sales will usually push the envelope and try to get away with as much signage as it can.
CoStar Advisor: If the bankruptcy court approves a sale of the retailer to an entity, is the new owner still responsible to pay off the claims the bankrupt tenant owes?The new buyer still has to make a decision on whether to assume or reject each lease. So the landlord has a new operator in there, but that new operator still has to make the decision to assume or reject.
A lot of times, as part of a purchase and sale, there will be almost simultaneous decisions where the tenant and buyer know they're going to reject leases. So maybe only certain leases will get transferred to the new buyer and the other leases will be rejected; meaning the new owner could buy only part of the chain.
Sometimes the bankrupt retailer will potentially pull leases from the sale package, because they would have cut a deal with a particular landlord. Then a third party doesn't get control of that landlord's real estate.
Then, the money from the new buyer would go into the bankrupt retailer's estate to pay off its secured and unsecured creditors. A lot of times it’s really the secured creditors who are probably going to get paid off and the unsecured creditors see very small amounts.
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CoStarLabels: Retail Trends