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Revisions to Bankruptcy Code Sections 365 and 366
Lessors of commercial property and providers of utility services should benefit from several key changes to the Code. Revisions to Sections 365 and 366 will provide lessors and utilities, respectively, with protections not found in the prior version of the Code.
Section 365
The revised Code includes several important changes related to the treatment of executory contracts and unexpired leases. Landlords of nonresidential real property should welcome the complete revision of ' 365(d)(4). That section will require a debtor that is a lessee to assume or reject a lease before the earlier of 120 days after the date of the order for relief or the date of entry of an order confirming a plan. A debtor, trustee or landlord may seek court approval to extend that time period for up to 90 days, for cause. Significantly, courts may grant a subsequent extension of the assumption/rejection deadline (beyond the first extension of 90 days) “only upon prior written consent of the lessor in each instance.” 11 U.S.C. ' 365(d)(4)(B)(ii). Absent such consent by the landlord, the debtor or trustee must decide to assume or reject the lease no later than 210 days after the date of the order for relief.
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