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| A. Executory Contract Issues | 1 |
| 1. Am I Dealing With An Executory Contract or Unexpired Lease? | 1 |
| 1.1 Countryman Definition and Other Tests. | 1 |
| 1.2 Contracts Terminated Before Bankruptcy. | 5 |
| 1.3 Expiration Of The Contract After Commencement Of The Case. | 7 |
| 1.4 The Catapult Problem. | 7 |
| 1.5 Consequences If The Contract Is Not Executory. | 9 |
| 1.6 True Lease or Security Device. | 10 |
| 1.7 Designation Rights. | 11 |
| 2. May I Assume Or Reject The Contract/Lease? | 12 |
| 2.1 Bankruptcy Law Superceded? | 12 |
| 2.2 Exempt Property? | 15 |
| 2.3 Business Judgment Rule. | 15 |
| 2.4 Trustee vs. Debtor. | 16 |
| 2.5 Deadline. | 17 |
| 3. Assuming The Contract/Lease. | 17 |
| 3.1 Curing or Providing Adequate Assurance of Curing Defaults. | 17 |
| 3.2 Compensating or Providing Adequate Assurance of Compensation for Actual Pecuniary Loss. | 20 |
| 3.3 Providing Adequate Assurance of Future Performance. | 20 |
| 3.4 Ipso Facto Provisions. | 20 |
| 3.5 Anti-Assignment Provisions. | 23 |
| 3.6 Non-Monetary Defaults and Penalties. | 25 |
| 3.7 Cross-Default Provisions And Severable Agreements. | 29 |
| 3.8 Financial Accommodations and Loan Commitments. | 30 |
| 3.9 Shopping Center Leases. | 33 |
| 4. Non-Residential Real Property Leases. | 36 |
| 4.1 Timely Performing Obligations Arising Under the Lease. | 36 |
| 4.1.1 What obligations? | 36 |
| 4.1.2 When do the obligations arise? | 39 |
| 4.1.2.1 Pro-ration Approach. | 39 |
| 4.1.2.2 Billing or Contract Approach. | 42 |
| 4.1.3 What happens if payment is not made? | 43 |
| 4.2 60 Days to Decide; Extensions. | 45 |
| 5. Obligations Arising Before Assumption Or Rejection Outside the NonResidential Lease Context. | 46 |
| 5.1 In General. | 46 |
| 5.2 Personal Property Leases. | 48 |
| 5.3 Employee Compensation. | 49 |
| 5.4 Landlords. | 51 |
| 6. Consequences of Assumption. | 51 |
| 6.1 Later Default An Expense of Administration. | 51 |
| 6.2 Assumption Bars Preference Suit. | 51 |
| 6.3 Order Authorizing Assumption As Bar To Later Claims Of Breach. | 52 |
| 7. Consequences of Rejection. | 53 |
| 7.1 Date of Rejection. | 53 |
| 7.2 Rejection Is Not Termination. | 55 |
| 7.3 Damages. | 57 |
| 7.4 Claim Resolution. | 61 |
| 8. Special Contracts. | 62 |
| 8.1 Intellectual Property. | 62 |
| 8.2 Debtor as Lessor Of Non-Residential Property. | 63 |
| 8.3 Partnership and Limited Liability Company Issues. | 64 |
| 8.4 Banking Obligations. | 67 |
| 8.5 Collective Bargaining Agreements. | 67 |
| 8.6 Pension Plans. | 68 |
| 8.7 Retiree Benefits. | 68 |
| 9. Appeals — Mootness. | 69 |
| B. What's New In Assumption and Assignment of Intellectual Property Licenses | 70 |
| 1. Prior Decisions Governing Assumption and Assignment of Intellectual Property Licenses | 70 |
| 2. Recent Decisions on Assignment or Assumption of Copyright Licenses | 73 |
| 3. Recent Decisions on Assignment or Assumption of Patent Licenses | 76 |
| 4. Recent Decisions on Assignment or Assumption of Trademark Licenses | 77 |
| C. BAPCPA Amendments Regarding Executory Contracts and Unexpired Leases, and Recent Cases Under Section 365 of the Bankruptcy Code | 79 |
| 1. Limitation of Extensions of Time for Assumption or Rejection | 79 |
| 2. Restrictions on Assignments of Shopping Center Leases Strengthened | 81 |
| 3. Curing Non-Monetary Defaults | 82 |
| 4. Personal Property Leases | 83 |
| 5. Aircraft Gate Leases. | 84 |
| 6. Residential Real Property Leases | 84 |
