Smooth Sailing for Designation Rights Sales
The Ames Department Stores Cases
Ames announced in August 2002 that it would close its remaining discount stores and liquidate. At the time of the announcement, it had anchor stores throughout the Northeast, the Mid-Atlantic states and into the Midwest, with most stores located in community and strip shopping centers. In contrast to national big-box retailers like Kmart, Montgomery Ward or Hechinger, Ames's lease disposition process did not result in the sale of designation rights to distressed real estate buyers or national shopping center owners. Instead, the right to market the largest group of Ames leases was sold in November 2002 to Shaw's Supermarkets. Shortly after the approval of the Shaw's transaction, Ames agreed to sell designation rights to 18 other locations to Shaw's regional competitor, The Stop & Shop Supermarket Co. The Stop & Shop sale was proposed as one to be completed without further competitive bidding in view of the substantial $20 million price offered by Stop & Shop, plus its commitment to assume more than $350,000 in monthly carrying costs on the stores until ultimate disposition.
The proposed Stop & Shop transaction met with multiple objections by lessors who were counterparties to the leases in question, including objections to the legal underpinnings for the sale of designation rights in bankruptcy cases. The transaction was approved in a December 2002 memorandum decision by Bankruptcy Judge Robert E. Gerber, who ruled that "the sale of designation rights is fully permissible in bankruptcy cases, and...there is nothing in either bankruptcy or non-bankruptcy law that prohibits this plainly salutary means for making available for the benefit of creditors the underlying economic value in a debtor's leases."5
Designation rights transactions have transformed the lease-assignment process in retail cases over the last several years, and there seems to be no question that they will continue to be an important tool for realizing value for creditors.
The court adopted the definition of designation rights as "the right to direct the debtors to assume and assign unexpired leases...to third parties qualifying under the Bankruptcy Code, after such non-end users locate ultimate purchasers of the unexpired leases."6 The court further explained that the subsequent assumption and/or assignment of a lease under this arrangement is effected by the debtor and is subject to compliance with the lessor protections of §365 of the Code, including those applicable to shopping center leases.
In support of the sale, Ames submitted several orders approving designation rights sales in bankruptcy cases from 1996 through 2002, including Best Products, Bradlees, Caldor, Grand Union, Hechinger, Jumbo-sports, Kmart, Montgomery Ward I and II, Service Merchandise and Sun TV. The court acknowledged these orders as having some persuasive value7 and followed the rulings in the Ernst Home Centers case8 approving the sale of designation rights.
The court's approach to the landlords' challenge to Ames's proposed sale of designation rights was to analyze the nature of rights being sold and then consider whether rights were impermissibly vested in a party without fiduciary duties to creditors. Its conclusion was that the bundle of rights held by Ames constituted saleable property in the economic sense and that there was nothing in the Code that negated that conclusion.
The court began by considering whether the designation rights qualified as property of the estate under §541 of the Code. Under the Second Circuit's ruling in the Prudential Lines case9 that Congress wished to bring anything of value into debtors' estates under §541, the Ames court found that the bonus value in the leases was plainly property of the estate under §541(a)(1). The court observed further that it was doubtful that the result would be different in any other circuit.10 Section 541(a)(6), covering proceeds of property of the estate, provided additional support for the court's conclusion, a position previously espoused by the courts in Ernst Home Centers. Finally, invoking §541(a)(7) of the Code covering any interest in property that the estate acquires after the commencement of the case, the court found that the debtor's power under §365(f) to assign leases over landlords' objections was a mechanism that allowed it to realize on the underlying economic value in its leases and to secure the value as proceeds of the leases.
The objecting landlords argued that the Third Circuit's ruling in the Cybergenics case11 removed Ames's rights from the ambit of §541(a)(1) because a debtor's ability to realize the value of its leases depended solely on its statutory powers to assume and assign leases under §365 of the Code, and that power did not belong to the debtor as of the filing of the petition. In short, they contended that the sale of designation rights was simply a sale of a federal power to a non-fiduciary, a result not permitted under Cybergenics.12 The Ames court rejected the Cybergenics argument for three reasons. First, under the proposed arrangement, Ames retained the sole right to seek later assignment of any of the leases to end-users, albeit subject to direction by Stop & Shop. Second, the most important part of what Ames was selling was not its rights under the Code, but the underlying value in the leases, an asset that existed before the chapter 11 cases were filed, even though the value of the leases would only be realized post-petition. Third, the court distinguished Cybergenics as involving distinctions between the rights of debtors and creditors, not distinctions between a debtor's property interests prior to the case and its enhanced powers to realize on that property interest as a debtor-in-possession (DIP) under §365 of the Code. Cybergenics, the court noted, expressly disclaimed any attempt to rule on the relative rights of debtors and DIPs. Moreover, the sale of designation rights was not solely an assignment of the power to compel lessors to accept assignments of leases under §365(f), but was only a means for realizing the underlying economic value in the leases.
The final objection dispatched by the court in Ames was that the debtor was improperly seeking to transfer the fundamental powers of a DIP to a non-fiduciary. The court rejected this contention because Ames retained the right to seek to assume, reject or assign leases, and because it had exercised its business judgment by negotiating for an immediate sale and possible future assignment of the leases. In sum, the court found that the designation rights transaction was simply an example of the nearly infinite ways to structure a transaction that makes business sense for creditors and the estate and involves a proper exercise of business judgment.
A number of issues still can be expected to arise in connection with designation rights transactions. The Ames court noted13 that disputes over "going dark" or use provisions can and should be dealt with at the time of the assignment of individual leases after approval of the designation rights sale. However, the length of the designation period and any rights of the debtor and the purchaser to extend the period after expiration are issues on which landlords have legitimate interests. A balance needs to be struck between the debtor's desire to maximize value by extending the period during which the designation rights purchaser can take advantage of the Code to overcome certain lease provisions and the landlord's interest in maximizing the value of its shopping center or surrounding property.
The transparency of the lease assignment process may be markedly different under some designation rights arrangements than would be the case if the debtor marketed the leases under §365. Courts should carefully review provisions that permit limited notice and eliminate public filing requirements for future assumptions, assignments or rejections negotiated by the designation rights purchaser.
The nature of the arrangement between the debtor and the designation-rights purchaser for payment of carrying costs during the designation period can have a significant impact on the rights of landlords and other property-related creditors. The debtor and the designation rights purchaser may attempt to define carrying costs in a manner that effectively limits the rights of property-related creditors or excludes certain obligations. The debtor may seek to shield itself from requests for payment of administrative expenses related to the property by pointing to the designation rights purchaser's obligation to bear those costs. However, the purchaser's agreement to indemnify the estate should not negate the possibility of creditors seeking payment from the debtor in the first instance. Additionally, property-related creditors should seek to obtain a direct right to enforce the carrying costs provisions against the designation rights purchaser in the bankruptcy court. Unless the court approves such a direct right of action, the rights of administrative creditors will be more difficult to enforce than if the debtor had remained in possession and bound by §§365(d)(3) and 503(b). It may also be the case that the debtor will have few funds available to pay administrative creditors until it receives the final profit-sharing payment under the designation rights transaction. This need for clarity in terms of payment and remedies takes on even greater significance with designation rights for fee-owned properties where the designation-rights purchaser should be expressly obligated to pay taxes and property-related expenses to provide adequate protection for mortgagees or for the estate should the property ultimately be put back to the debtor.
Designation rights transactions have transformed the lease assignment process in retail cases over the last several years, and there seems to be no question that they will continue to be an important tool for realizing value for creditors. As this technique gains even greater acceptance and application, care should be taken to protect the rights of creditors and landlords who are held at bay while the real estate professionals complete their work.
8 In re Ernst Home Ctr. Inc., 209 B.R. 974 (Bankr. W.D. Wash. 1997), appeal dismissed, BC Brickyard Assoc. Ltd. v. Ernst Home Ctr. Inc. (In re Ernst Home Ctr. Inc.), 221 B.R. 243 (B.A.P. 9th Cir. 1998). Return to article
12 The objecting landlords withdrew any arguments based on Official Comm. of Unsecured Creditors of Cybergenics Corp. v. Chinery (In re Cybergenics Corp.), 304 F.3d 316 (3d Cir.), reh'g. en banc granted and opinion vacated, 310 F.3d 785 (3d Cir. Nov. 18, 2002). Return to article