Real Estate Committee Newsletter

vol 5, num 1 | January, 2017

Real Estate

AN ABI COMMITTEE NEWSLETTER

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► IN this issue:

In re Delaware Sports Complex LLC
The Interplay Between Sections 363 and 365:
Trap for the Unwary Lessee, Tool for the Trustee, or Both?
Registration Open for the 36th Annual Spring Meeting

In re Delaware Sports Complex LLC

William J. Amann
Braucher & Amann Attorneys at Law
Manchester, N.H.

Three men had a vision to develop a sports complex in Middleton, Del. They formed a limited liability company called, fittingly, Delaware Sports Complex LLC (hereinafter “DSC”).

DSC was eager to develop its 170-acre sports complex — perhaps too eager, because it entered into a lease one (1) year before the LLC had been legally created. However, the lease contained a term wherein DSC represented and warranted that it was a duly formed and created Delaware LLC.

The lease provided an early termination clause, which the town asserted in its notice of default. But the debtor, even if there was a default, had an opportunity to cure the default. P

The Interplay Between Sections 363 and 365: Trap for the Unwary Lessee, Tool for the Trustee, or Both?

Deborah M. Kennedy
Perkins Coie LLP
Denver

A recent opinion issued by the Ninth Circuit Court of Appeals in the case of Pinnacle Restaurant at Big Sky LLC v. CH SP Acquisitions LLC( In re Spanish Peaks Holdings II LLC)affirmed a holding that would allow, under certain circumstances, the sale of commercial real estate in a bankruptcy case to be free and clear of all liens, claims and encumbrances, including leasehold interests that are generally protected under § 365(h) of the Bankruptcy Code. The Ninth Circuit adopted a minority approach that finds no conflict between § 363 (dealing with free-and-clear sales) and § 365 (dealing with the rejection of leases).

Registration is open for the industry's premier conference - ABI's Annual Spring Meeting! At this year's event attendees will have the opportunity to mix business and pleasure with a variety of opportunities to attend educational sessions, networking events, and optional programs - all in the heart of the nation's capital.

This year, the Real Estate Committee will be pairing with the Business Reorganization Committee to host a session titled "Key Issues and Emerging Trends in Hospitality Defaults". Speakers for this session include:

Scott Underwood, Moderator - Buchanan Ingersoll & Rooney PC; Tampa
Allison R. Day - Genovese Joblove & Battista, PA; Miami
Elise S. Frejka - Frejka PLLC; New York
Eric E. Walker - Perkins Coie LLP; Chicago

Register now and check back often for added events!