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In the Spotlight: Shopping Center Lease Assignments -- Bankruptcy Changes Could Hamper Debtors
Certain amendments to Title 11, United States Code (the 'Bankruptcy Code') implemented by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (the '2005 Amendment') received little notice, but one such change made to '365(f)(1), a section commonly utilized by debtor/ tenants to invalidate anti-assignment provisions contained in commercial leases, could have a wide-ranging impact in retail bankruptcy cases.
De Facto Anti-Assignment
Section 365(f)(1), as amended, reads as follows:
Except as provided in subsections (b) and (c) of this section, notwithstanding a provision in an executory contract or unexpired lease of the debtor, or in applicable law, that prohibits, restricts, or conditions the assignment of such contract or lease, the trustee may assign such contract or lease under paragraph (2) of this subsection.
11 U.S.C. '365(f)(1) (emphasis added to highlight amendment).
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