Page:United States Statutes at Large Volume 98 Part 1.djvu/410

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PUBLIC LAW 98-000—MMMM. DD, 1984

98 STAT. 362

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11 USC 701 et

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PUBLIC LAW 98-353—JULY 10, 1984 "(2) Paragraph (1) of this subsection does not apply to a default that is a breach of a provision relating to— "(A) the insolvency or financial condition of the debtor at any time before the closing of the case; "(B) the commencement of a case under this title; or "(C) the appointment of or taking possession by a trustee in a case under this title or a custodian before such commencement. "(3) 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— "(A) 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 lessee under the lease; "(B) that any percentage rent due under such lease will not decline substantially; "(C) that assumption or assignment of such lease is subject to all the provisions thereof, including (but not limited to) provisions such as a radius, location, use, or exclusivity provision, and will not breach any such provision contained in any other lease, financing agreement, or master agreement relating to such shopping center; and "(D) that assumption or assignment of such lease will not disrupt any tenant mix or balance in such shopping center. "(4) 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. "(c) 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— "(1)(A) applicable law excuses a party, other than the debtor, to such contract or lease from accepting performance from or rendering performance to an entity other than the debtor or the debtor in possession or an assignee of such contract or lease, whether or not such contract or lease prohibits or restricts assignment of rights or delegation of duties; and "(B) such party does not consent to such assumption or assignment; or "(2) such contract is a contract to make a loan, or extend other debt financing or financial accommodations, to or for the benefit of the debtor, or to issue a security of the debtor; or "(3) such lease of nonresidential real property has been terminated under applicable nonbankruptcy law prior to the order for relief. "(d)(1) In a case under chapter 7 of this title, if the trustee does not assume or reject an executory contract or unexpired lease of residential real property or of personal property of the debtor within 60