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A Clash Between 'Free and Clear' and Tenants' Rights Under Bankruptcy Code Section 365(h)
With the recent carnage in the retail industry, including Sears, The Mattress Firm, Nine West, Claire's, The Bon-Ton Stores, The Walking Company, Brookstone, and many other retailers of all shapes and sizes, a lot of attention goes to the fate of landlords when their tenants seek bankruptcy protection. A recent case that brings balance is Revel AC Inc. v. IDEA Boardwalk, LLC, No. 17-3607 (3d. Cir. 2018), a New Jersey dispute decided in November of 2018.
A Casino and Resort Project Falters
Revel was the developer of a resort, Revel Casino Resort, that was to be the most luxurious resort in Atlantic City, but, as one can guess, this dream never came to be as the resort had to close its doors during a second run in bankruptcy.
The resort spanned 6.2 million square feet with 820 feet of boardwalk frontage. It featured a 47-story, 710-foot high tower, the tallest building in Atlantic City. The Revel Casino Resort's amenities included 1,399 rooms, outdoor facilities, retail boutiques and a wide variety of entertainment amenities, including 11 dining venues, two nightclubs, a day club, five indoor/outdoor pools, a 5,500-seat theater, 160,000 square feet of customizable conference space and a spa. The resort's outdoor amenities include a two-acre landscaped rooftop deck with outdoor pools, and a “pine grove” with over 30,000 live trees and plants. In a nutshell, it was poised to be a premier entertainment destination for Atlantic City revelers.
Construction of the Revel Casino Resort began in 2007. Morgan Stanley initially financed the project, but after several years of delays abandoned it, writing down most of its investment. An investor group headed by Revel's CEO took over. With new financing from JP Morgan and other lenders, construction was completed in April 2012. Revel quickly landed in bankruptcy in 2013 and reduced its funded debt. However, shortly after this debt reduction, Revel had to seek bankruptcy protection again. On June 19, 2014, Revel AC, Inc., and its affiliates filed voluntary petitions for relief under Chapter 11 of the United States Code.
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