If the trustee is to assume a contract or lease, the court will have to insure that the trustee’s performance under the contract or lease gives the other contracting party the full benefit of his bargain. This case, however, presented a very different situation in which the Chapter 11 debtor did not take any action during the Chapter 11 case to assume or reject the executory contract (here a license agreement permitting the non-debtor party to manufacture, promote, and sell a horizontal grinder on an exclusive basis for five years). Upon being so notified, the creditor may, at its option, notify the debtor that it is willing to have the lease assumed by the debtor and may condition such assumption on cure of any outstanding default on terms set by the contract. (g)(2). A purchaser that treats the contract as terminated is granted a lien on the property to the extent of the purchase price paid. Section 365(b)(3) represents a compromise between H.R. Debtors are provided the right to decide to assume, to assume and assign, or to reject executory contracts.This decision is required as part of the plan of reorganization process, which normally occurs at the end of the Chapter 11 … § 365(a). If a contract is rejected, the non-debtor party can only file a claim as an unsecured creditor. If an executory contract is assumed, any default must be cured or adequate assurance given that the default will be promptly cured. The court held that the rejection was proper and that, under the statute, it constituted a prepetition breach of the promotional agreement. there are major airports served by an air carrier that has leased a substantial majority of the airport’s gates; the commerce in the region served by such a major airport can be disrupted if the air carrier that leases most of its gates enters bankruptcy and either discontinues or materially reduces service; and, it is important that such airports be empowered to continue service in the event of such a disruption.”, If there has been a default in an executory contract or unexpired lease of the debtor, the trustee may not assume such contract or lease unless, at the time of assumption of such contract or lease, the trustee—, Paragraph (1) of this subsection does not apply to a default that is a breach of a provision relating to—, For the purposes of paragraph (1) of this subsection and paragraph (2)(B) of subsection (f), adequate assurance of future performance of a lease of real property in a shopping center includes adequate assurance—, The trustee may not assume or assign any executory contract or unexpired lease of the debtor, whether or not such contract or lease prohibits or restricts assignment of rights or delegation of duties, if—, Subject to subparagraph (B), an unexpired lease of nonresidential real property under which the debtor is the, Notwithstanding a provision in an executory contract or unexpired lease, or in applicable law, an executory contract or unexpired lease of the debtor may not be terminated or modified, and any right or obligation under such contract or lease may not be terminated or modified, at any time after the commencement of the case solely because of a provision in such contract or lease that is conditioned on—, Paragraph (1) of this subsection does not apply to an executory contract or unexpired lease of the debtor, whether or not such contract or lease prohibits or restricts assignment of rights or delegation of duties, if—, The trustee may assign an executory contract or unexpired lease of the debtor only if—, Except as provided in subsections (h)(2) and (i)(2) of this section, the rejection of an executory contract or unexpired lease of the debtor constitutes a breach of such contract or lease—, if such contract or lease has been assumed under this section or under a plan confirmed under chapter, if before such rejection the case has been converted under section, If the trustee rejects an unexpired lease of real property under which the debtor is the lessor and—, If the trustee rejects a timeshare interest under a timeshare plan under which the debtor is the timeshare interest seller and—, If the trustee rejects an executory contract under which the debtor is a licensor of a right to intellectual property, the licensee under such contract may elect—, to retain its rights (including a right to enforce any exclusivity provision of such contract, but excluding any other right under applicable nonbankruptcy law to specific performance of such contract) under such contract and under any agreement supplementary to such contract, to such intellectual property (including any embodiment of such intellectual property to the extent protected by applicable nonbankruptcy law), as such rights existed immediately before the case commenced, for—, If the licensee elects to retain its rights, as described in paragraph (1)(B) of this subsection, under such contract—, If the licensee elects to retain its rights, as described in paragraph (1)(B) of this subsection, then on the written request of the licensee the trustee shall—, Unless and until the trustee rejects such contract, on the written request of the licensee the trustee shall—, to the extent provided in such contract or any agreement supplementary to such contract—. L. 100–506, set out as a note under section 101 of this title. Pub. The remainder of the subsection specifies different times for cases that are converted from one chapter to another. However, if the other party to the contract or lease requests the court to fix a time, the court may specify a time within which the trustee must act. A party with a contract to purchase land from the debtor has a lien on the property to secure the price already paid, if the contract is rejected and the purchaser is not yet in possession. “(2) If such lessee or timeshare interest purchaser remains in possession as provided in paragraph (1) of this subsection, such lessee or timeshare interest purchaser may offset against the rent reserved under such lease or moneys due for such timeshare interest for the balance of the term after the date of the rejection of such lease or timeshare interest, and any such renewal or extension thereof, any damages occurring after such date caused by the nonperformance of any obligation of the debtor under such lease or timeshare plan after such date, but such lessee or timeshare interest purchaser does not have any rights against the estate on account of any damages arising after such date from such rejection, other than such offset.”. That is, the clause is not invalidated in toto, but merely made inapplicable during the case for the purposes of disposition of the executory contract or unexpired lease. L. 98–353, § 402, amended par. (n). provides adequate assurance of future performance under such contract or lease. Topics: L. 103–394, § 501(d)(10)(B), substituted “1208, or 1307” for “1307, or 1208”. 19-10844 (bls) re: d.i. The stay under section 362 and the injunction under section 524(a)(2) shall not be violated by notification of the debtor and negotiation of cure under this subsection. Deletion of language in section 365(f)(3) of the Senate amendment is done as a matter of style. Pub. The House amendment makes clear that in the case of a bankrupt lessor, a lessee may remain in possession for the balance of the term of a lease and any renewal or extension of the term only to the extent that such renewal or extension may be obtained by the lessee without the permission of the landlord or some third party under applicable non-bankruptcy law. Characterization of contracts to make a loan, or extend other debt financing or financial accommodations, is limited to the extension of cash or a line of credit and is not intended to embrace ordinary leases or contracts to provide goods or services with payments to be made over time. (n)(1)(B). Generally, such management or promotional agreements are considered to be executory contracts under 11 U.S.C. In a case under chapter 11 in which the debtor is an individual and in a case under chapter 13, if the debtor is the, “The amendments made by this section [amending this section] shall be in effect for the 12-month period that begins on the date of enactment of this Act [. This provision does not apply to defaults under ipso facto or bankruptcy clauses, which is a significant departure from present law. (c)(3). (o). Section 365(c)(2) and (3) likewise represent a compromise between H.R. L. 109–8, § 404(a), amended par. The Bankruptcy Code authorizes the trustee or a Chapter 11 debtor-in-possession to reject an executory contract, if doing so is in the best interests of the debtor. Subsecs. not interfere with the rights of the licensee as provided in such contract, or any agreement supplementary to such contract, to such intellectual property (including such embodiment), including any right to obtain such intellectual property (or such embodiment) from another entity. 2009), the Chapter 7 trustee rejected a promotional agreement executed prepetition by the debtor, a professional boxer, and a boxing promoter. Section 365(f) is derived from H.R. Assignment by the trustee to an entity of a contract or lease assumed under this section relieves the trustee and the estate from any liability for any breach of such contract or lease occurring after such assignment. (3) and (4). If the debtor in a case under chapter 7 is an individual, the debtor may notify the creditor in writing that the debtor desires to assume the lease. Prior to amendment, par. An executory contract not assumed is deemed rejected. See In re National Gypsum Co., 208 F.3d 498, 504 (5th Cir. L. 103–429, § 1(2), which directed the amendment of subsec. Subsec. In Taylor, the appellate court affirmed that the music-publishing agreement the debtor had with Delightful Music, Ltd., was an executory contract and that the debtor-in-possession could reject it under § 365. (4) read as follows: “Notwithstanding paragraphs (1) and (2), in a case under any chapter of this title, if the trustee does not assume or reject an unexpired lease of nonresidential real property under which the debtor is the lessee within 60 days after the date of the order for relief, or within such additional time as the court, for cause, within such 60-day period, fixes, then such lease is deemed rejected, and the trustee shall immediately surrender such nonresidential real property to the lessor.”. 1 While the term "breach" is not defined in the Bankruptcy Code, the Supreme Court noted that it has the same meaning as used "in contract law outside bankruptcy." Section 363(h) of the House amendment represents a modification of section 365(h) of the Senate amendment. Pub. As contained in the House amendment, the provision prohibits a trustee or debtor in possession from assuming or assigning an executory contract of the debtor to make a loan, or extend other debt financing or financial accommodations, to or for the benefit of the debtor, or the issuance of a security of the debtor. Pub. Section 365(e) is a refinement of comparable provisions contained in the House bill and Senate amendment. 1994—Subsec. (n). If the purchaser remains in possession, he is required to continue to make the payments due, but may offset damages that occur after rejection. Section 365(a) of the Code requires court approval for the assumption or rejection of an executory contract by the trustee or debtor in possession. the appointment of or taking possession by a trustee in a case under this title or a custodian before such commencement. If not assumed, the contract or lease is deemed rejected. (a) generally, making minor changes. L. 99–554, § 283(e)(1), struck out “or an assignee of such contract or lease” after “debtor in possession”. bankruptcy, L. 98–353, § 362(b), added subsecs. Subsections (b), (c), and (d) provide limitations on the trustee’s powers. L. 100–506 effective Oct. 18, 1988, but not applicable to any case commenced under this title before such date, see section 2 of Pub. If a personal service contract is rejected, it is considered breached under § 365(g) as of the date immediately preceding the date the bankruptcy petition was filed. 9th Cir. 1990—Subsec. Contrary to popular belief, rejection of an executory contract or an unexpired lease pursuant to section 365 of the Bankruptcy Code does not rescind or undo such contract or lease. The primary issue is whether the rejection of the contract would benefit general unsecured creditors. Subsec. (4). If the timeshare interest purchaser retains its rights under subparagraph (A), such timeshare interest purchaser may offset against the moneys due for such timeshare interest for the balance of the term after the date of the rejection of such timeshare interest, and the term of any renewal or extension of such timeshare interest, the value of any damage caused by the nonperformance after the date of such rejection, of any obligation of the debtor under such timeshare plan, but the timeshare interest purchaser shall not have any right against the estate or the debtor on account of any damage occurring after such date caused by such nonperformance. The Code states, however, that a personal service contract may not be assumed or assigned without the consent of all the parties. (c) generally, substituting in par. chapter 11 case no. Subsection (b)(3) permits termination of leases entered into prior to the effective date of this title in liquidation cases if certain other conditions are met. (p). Section 365(a) of the Bankruptcy Code provides that a trustee (or debtor-in-possession) may, subject to court approval, assume or reject any executory contract of the debtor. 8200 as passed by the House and the Senate amendment. Except as provided in subsections (b) and (c) of this section, notwithstanding a provision in an executory contract or unexpired lease of the debtor, or in applicable law, that prohibits, restricts, or conditions the assignment of such contract or lease, the trustee may assign such contract or lease under paragraph (2) of this subsection. Cal. Upon rejection, the debtor no longer can be compelled to perform the debtor's unperformed remaining obligations under the contract, leaving the counterparty with the sole remedy of a breach of contract damage claim against the bankruptcy estate, which ordinarily will constitute a general unsecured claim … (o). A note is not usually an executory contract if the only performance that remains is repayment. (m). L. 99–554, § 257(j), (m)(1), inserted reference to chapter 12. Thus, in order to assure a landlord of his bargained for exchange, the court would have to consider such factors as the nature of the business to be conducted by the trustee or his assignee, whether that business complies with the requirements of any master agreement, whether the kind of business proposed will generate gross sales in an amount such that the percentage rent specified in the lease is substantially the same as what would have been provided by the debtor, and whether the business proposed to be conducted would result in a breach of other clauses in master agreements relating, for example, to tenant mix and location. § 365, provides that, subject to court approval and certain limitations discussed below, debtors can assume or reject any executory contract or unexpired lease. the trustee assumes such contract or lease in accordance with the provisions of this section; and. Subsec. Pub. The purpose of this subsection, at least in part, is to prevent the trustee from requiring new advances of money or other property. Subsection (b)(5) provides that in lease situations common to shopping centers, protections must be provided for the lessor if the trustee assumes the lease, including protection against decline in percentage rents, breach of agreements with other tenants, and preservation of the tenant mix. Pub. This includes pre-petition defaults! Pub. The purpose of this subsection is to make it clear that a party to a transaction which is based upon the financial strength of a debtor should not be required to extend new credit to the debtor whether in the form of loans, lease financing, or the purchase or discount of notes. (d)(5) to (10). performance by debtor and contracting party. L. 100–506 added subsec. 20, 2005, and not applicable with respect to cases commenced under this title before such effective date, except as otherwise provided, see section 1501 of Pub. Pub. The rejection, however, would relate only to those aspects of the executory contract that remained unfulfilled as of the date the Chapter 11 petition was filed. L. 109–8, § 328(a)(2), struck out par. This article focuses on cases brought under Chapter 11 of the U.S. Bankruptcy Code,6in which the licensor is the bankrupt party and has an ongoing interest in the intellectual property licensed to the licensee. L. 98–353, § 403, amended par. Section 365(b)(4) of the House amendment indicates that after default the trustee may not require a lessor to supply services or materials without assumption unless the lessor is compensated as provided in the lease. Anne B. Hemenway on Thu, Aug 18, 2016 @ 11:08 AM, Anne Hemenway—Senior Attorney, National Legal Research Group. if such contract or lease has not been assumed under this section or under a plan confirmed under chapter, if before such rejection the case has not been converted under section, immediately before the date of such conversion, if such contract or lease was assumed before such conversion; or. provide to the licensee such intellectual property (including any embodiment of such intellectual property to the extent protected by applicable nonbankruptcy law) held by the trustee; and. Subsec. Pub. The provision adopts standards contained in section 365(b)(5) of the Senate amendment to define adequate assurance of future performance of a lease of real property in a shopping center. Section 365(c)(2) is derived from section 365(b)(4) of the Senate amendment but does not apply to a contract to deliver equipment as provided in the Senate amendment. 8200 as passed by the House. (p). Under Chapter 7, a trustee may not assume a personal service agreement without the artist's consent. L. 98–353, set out as a note under section 101 of this title. Thus, the tenant will not be deprived of his estate for the term for which he bargained. 1990). not interfere with the rights of the licensee as provided in such contract, or any agreement supplementary to such contract, to such intellectual property (including such embodiment) including any right to obtain such intellectual property (or such embodiment) from another entity. The Court reasoned that under section 365(g), a debtor’s rejection of an executory contract has the same effect as a breach of that contract outside bankruptcy. § 365, 2421 Ivy Road, Suite 100 / Charlottesville, VA 22903-4673, Human Resources Legal Research and Consulting Group, Jury Research Division of National Legal Research, Books Authored by NLRG Research Attorneys, Personal Injury and Insurance Law Legal Research, Trusts & Estates, Wills, and Tax Law Legal Researc, performance by debtor and contracting party. L. 103–394, § 501(d)(10)(D), substituted “a Federal depository institutions regulatory agency (or predecessor to such agency)” for “the Federal Deposit Insurance Corporation, the Resolution Trust Corporation, the Director of the Office of Thrift Supervision, the Comptroller of the Currency, or the Board of Governors of the Federal Reserve System, or its predecessors or successors,”. Restrictions with respect to assignment of an executory contract or unexpired lease are superfluous since the debtor may assign an executory contract or unexpired lease of the debtor only if such contract is first assumed under section 364(f)(2)(A) of the House amendment. Pub. Subsec. such lease is of nonresidential real property and has been terminated under applicable nonbankruptcy law prior to the order for relief. A personal service contract, such as one between an artist and a manager or between a recording group and a record company, may be rejected or assumed under the U.S. Bankruptcy Code. 1301)”, could not be executed because the phrase “(49 U.S.C. “The question is whether the debtor-licensor’s rejection of that contract deprives the licensee of its rights to use the trademark. Most executory contracts can be rejected under Code §365 upon a showing that rejection is a reasonable exercise of the debtor's business judgment. Subsec. Notwithstanding any other provision of this section, if there has been a default in an unexpired lease of the debtor, other than a default of a kind specified in paragraph (2) of this subsection, the trustee may not require a lessor to provide services or supplies incidental to such lease before assumption of such lease unless the lessor is compensated under the terms of such lease for any services and supplies provided under such lease before assumption of such lease. of the source of rent and other consideration due under such lease, and in the case of an assignment, that the financial condition and operating performance of the proposed assignee and its guarantors, if any, shall be similar to the financial condition and operating performance of the debtor and its guarantors, if any, as of the time the debtor became the. Except for commercial real property leases (which are treated differently — stay tuned for another post on that topic), executory contracts must be assumed or rejected within 60 days of the filing of the bankruptcy petition in a Chapter 7 liquidation case and prior to the time a plan of reorganization is confirmed in a Chapter 11 case. if the term of such timeshare interest has commenced, then the timeshare interest purchaser may retain its rights in such timeshare interest for the balance of such term and for any term of renewal or extension of such timeshare interest to the extent that such rights are enforceable under applicable nonbankruptcy law. L. 99–554, § 283(e)(3), substituted “362(b)(10)” for “362(b)(9)”. (d)(6)(C). News., LLC, 424 B.R. 2005). The subsection permits the lessee to remain in possession of the leased property or to treat the lease as terminated by the rejection. Pub. L. 109–8, § 328(a)(3), redesignated par. L. 102–365, § 19(d), substituted for period at end “; except that the trustee may not assign an unexpired lease of nonresidential real property under which the debtor is an affected air carrier that is the lessee of an aircraft terminal or aircraft gate if there has occurred a termination event.”. Tenant will not be deprived rejection of executory contracts in chapter 11 his estate for the bankruptcy estate ; otherwise it... Constituted a prepetition breach of the subsection permits the lessee to remain in possession or may treat the.! Represent a compromise between H.R ” rights under the contract is rejected, the court can grant more,! Adding pars prepetition breach of the entry of an executory contract title, is. Directed the amendment of subsec and 11, contracts, Anne Hemenway—Senior Attorney, National Legal Research Group, bankruptcy! Days after July 10, 1984, see section 552 ( a ) ( e ) remainder of the price. 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