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Table of Contents
Jurisdiction | United States |
Table of Contents
Overview......................................................1
Chapter One: Pre-Bankruptcy Strategies.......5
I. Pre-Petition Termination of the Lease................................6
A. Introduction.......................................................................................6
B. The Concept of "Termination" Pertaining to Real Estate Leases...............6
C. Strategy Pointers: Risks and Benefits from Termination..........................11
1. General................................................................................................................................11
2. Starting the Cap on Damages................................................................................................11
3. The Importance of a Notice of Default...................................................................................12
4. The Need for State Court Judgment/Barrier to Reviving Terminated Lease..............................12
II. Challenging the Termination of the Lease as a Fraudulent Conveyance..................................................14
A. Cases Holding that Lease Termination Is a Fraudulent Conveyance........14
B. Cases Holding that Lease Termination Is Not a Fraudulent Conveyance .. 17
III. Pre-Petition Rent Payments as Preferences........................19
A. Introduction....................................................................................... 19
B. Cases Finding Rent Payments to Be Avoidable Preferences .................... 19
Chapter Two: The Debtor's Obligations to the Landlord Prior to Assumption or Rejection of the Lease..................................................23
I. Introduction...................................................................24
II. The Debtor's Duty to Timely Perform Its Lease Obligations Pending Assumption or Rejection....................................25
A. Rationale for the Rule ......................................................................... 25
B. The Duty to Perform Lease Obligations Is Independent of the Standards for Administrative Claims..........................................27
C. The Contrary View on Post-Petition Lease Obligations..........................30
D. What Is an "Obligation" under the Lease?...........................................30
E. When Does an Obligation Arise? "Proration" vs. "Performance"...........31
1. The Proration (or Accrual) Rule...
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Request your trial- American Bankruptcy Institute
- Retail and Office Bankruptcy: Landlord/Tenant Rights
- Front Matter
- About the Author
- About the Editor
- Acknowledgments
- Foreword
- Table of Contents
- Overview
- Chapter One Pre-Bankruptcy Strategies
- Chapter Two The Debtor's Obligations to the Landlord Prior to Assumption or Rejection of the Lease
- Chapter Three Lease Assumption
- Chapter Four Lease Rejection
- Chapter Five Calculating the Landlord's Lease-Rejection Damages Claim
- Glossary of Bankruptcy Terms Used in this Guide
- Table of Authorities
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