In recent months, Seward & Kissel has helped many clients address real estate loan and lease related difficulties largely driven by the COVID-19 pandemic.  Resolving these issues requires a multi-disciplinary approach that implements the expertise of several practice groups at Seward & Kissel, including Real Estate, Corporate Restructuring & Bankruptcy, Litigation and Tax.  With no end in sight to the complex problems created by the pandemic and associated economic distress, particularly related to commercial real estate, S&K has created the Commercial Lease and Loan Restructuring Task Force, comprised of S&K attorneys from the various requisite disciplines.  The Task Force provides a one-stop solution, and has demonstrated expertise in all aspects of lease and loan workouts, including:

  • Lease renegotiations for both landlords and tenants, including the analysis of lease and ancillary agreement provisions relevant to the COVID pandemic.
  • Drafting and negotiating subleases to address post-pandemic space utilization requirements.
  • Liability minimization for tenants and lease guarantors.
  • The potential impact of bankruptcy proceedings on the landlord-tenant relationship and representation in any in-court bankruptcy process.
  • Lease-related litigation, including litigation concerning force majeure provisions and foreclosure actions.
  • Tax implications of lease and loan restructurings.
  • Commercial real estate loan restructurings, including the negotiation of forbearance agreements, waivers, and amendments for both borrowers and lenders.
  • Guiding lenders through a borrower bankruptcy process, including DIP financing/cash collateral, adequate protection issues, section 363 sales and plan negotiation and confirmation.

Representative Matters
  • Represented JV partnership/mall owner in negotiations with lender regarding potential restructuring of loan transaction.
  • Represented tenant in evaluating rights and obligations related to pre-pandemic lease agreement for tenant to acquire more space.
  • Represented landlord in renegotiating long-term lease agreement with chapter 11 debtor in one of the largest bankruptcy filings of 2020.
  • Represented board of directors of co-op in assessing implications of potential chapter 11 on rights and obligations with respect to commercial tenant under ground lease.
  • Represented tenant in negotiating rent deferral and abatement agreements for its twelve retail locations in Manhattan.
  • Represented tenant in negotiating the pandemic-related surrender and termination of its lease of Class A office space in a flagship building in midtown Manhattan.
  • Represented lease guarantor seeking to minimize personal liability under a Good-Guy Guaranty of Lease following a pandemic-related lease default.
  • Represented landlord of a multi-building suburban office park administer pandemic-related tenant defaults and lease abatement and deferment agreements.
  • Represent tenant in negotiating ten-year lease extension and expansion in Manhattan at new post-pandemic market rates and terms.
  • Represent tenant in transitioning to work-at-home format by subleasing its full floor of Class A office space in midtown Manhattan.
  • Represented subtenant with respect to negotiating a sublease for pandemic relocation space in El Segundo, California.