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Executory Contracts and Unexpired Leases

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Ipso Facto Clauses

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Ipso facto clauses, which allow termination due to bankruptcy, are generally unenforceable in bankruptcy.

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Rejection of Executory Contract

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Debtor may reject an executory contract, leading to a breach and allowing the other party to file a claim for damages.

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Adequate Assurance of Future Performance

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Debtor must provide proof of ability to fulfill contract terms to assume or assign an executory contract.

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Damages Resulting from Rejection

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Rejection of an executory contract or unexpired lease results in a claim for damages by the non-debtor party.

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Automatic Stay Impact on Executory Contracts

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Automatic stay prevents contract termination due to debtor's bankruptcy filing.

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Non-Residential Real Property Leases

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Debtor has a specified time period to assume or reject a non-residential real property lease.

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Timeframe for Assumption or Rejection

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The debtor must make a timely decision to assume or reject executory contracts and unexpired leases, subject to court extensions.

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Assignment of Executory Contract

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Debtor may assign the contract to a third party, with the third party assuming responsibility.

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Assumption of Executory Contract

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Debtor may assume an executory contract, making it fully enforceable and requiring performance from both parties.

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Unexpired Leases in Bankruptcy

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Debtor may assume or reject unexpired leases, with rejection treated as a prepetition breach.

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Executory Contract Trustee's Rights

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The trustee has the same rights as the debtor to assume, reject, or assign executory contracts and unexpired leases.

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Shopping Center Lease Provisions

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Special rules apply to the assumption or assignment of shopping center leases to protect other tenants and the landlord.

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Cure of Defaults

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Debtor may cure, or fix, defaults to facilitate the assumption of an executory contract.

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365(n) Rights for Intellectual Property Licenses

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Under section 365(n), licensees can retain rights to intellectual property even if the licensor rejects the executory contract in bankruptcy.

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Residential Real Property Leases

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Debtors have limited ability to assume unexpired residential leases, often bound by state tenant laws.

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