Issue link: https://mbozikis.ufcontent.com/i/1422521
102 contract as terminated or it may retain its rights under the contract to such intellectual property as those rights existed prepetition. 11 U.S.C. § 365(n). d. Assumption and Assignment In certain instances, a trustee may determine that an executory contract or unexpired lease is advantageous but that the trustee is unable to perform the contract or lease or believes the sale of such contract or lease would be more beneficial. In such an instance, a trustee may assume the contract pursuant to the rules discussed above and then assign it through a sale to a third party. An executory contract or unexpired lease can be assigned pursuant to Section 365(f) notwithstanding a provision in the contract or lease or applicable law that may prohibit the assignment of such contract or lease. 11 U.S.C. § 365(f)(1). To assign an executory contract or unexpired lease, a trustee must comply with the provisions for assuming an executory contract or unexpired lease and provide adequate assurance of future performance. 11 U.S.C. § 365(f)(2). This is due to the fact that Section 365(k) provides that assignment relieves the trustee and the estate from any liability for breaches occurring after the assignment. Moreover, an executory contract or unexpired lease can be assigned notwithstanding language in the contract or lease that would terminate or modify the agreement due to an assignment. 11 U.S.C. § 365(f)(3). However, Section 365(c) provides that assumption or assignment is prohibited when: (i) nonbankruptcy law allows the nondebtor party to refuse performance from or refuse to perform for a party other than the debtor (i.e., a personal services contract) and the nondebtor party does not consent to such assumption or assignment; (ii) the contract is an agreement to provide a loan, debt financing or other financial accommodation to, or for the benefit of, the debtor, or to issue a security of a debtor; or (iii) the contract is a lease of nonresidential property that has been terminated before the bankruptcy filing.