119 STAT. 100
PUBLIC LAW 109–8—APR. 20, 2005
value of such property as of the date of the filing of the petition without deduction for costs of sale or marketing. With respect to property acquired for personal, family, or household purposes, replacement value shall mean the price a retail merchant would charge for property of that kind considering the age and condition of the property at the time value is determined.’’. SEC. 328. DEFAULTS BASED ON NONMONETARY OBLIGATIONS.
(a) EXECUTORY CONTRACTS AND UNEXPIRED LEASES.—Section 365 of title 11, United States Code, is amended— (1) in subsection (b)— (A) in paragraph (1)(A), by striking the semicolon at the end and inserting the following: ‘‘other than a default that is a breach of a provision relating to the satisfaction of any provision (other than a penalty rate or penalty provision) relating to a default arising from any failure to perform nonmonetary obligations under an unexpired lease of real property, if it is impossible for the trustee to cure such default by performing nonmonetary acts at and after the time of assumption, except that if such default arises from a failure to operate in accordance with a nonresidential real property lease, then such default shall be cured by performance at and after the time of assumption in accordance with such lease, and pecuniary losses resulting from such default shall be compensated in accordance with the provisions of this paragraph;’’; and (B) in paragraph (2)(D), by striking ‘‘penalty rate or provision’’ and inserting ‘‘penalty rate or penalty provision’’; (2) in subsection (c)— (A) in paragraph (2), by inserting ‘‘or’’ at the end; (B) in paragraph (3), by striking ‘‘; or’’ at the end and inserting a period; and (C) by striking paragraph (4); (3) in subsection (d)— (A) by striking paragraphs (5) through (9); and (B) by redesignating paragraph (10) as paragraph (5); and (4) in subsection (f)(1) by striking ‘‘; except that’’ and all that follows through the end of the paragraph and inserting a period. (b) IMPAIRMENT OF CLAIMS OR INTERESTS.—Section 1124(2) of title 11, United States Code, is amended— (1) in subparagraph (A), by inserting ‘‘or of a kind that section 365(b)(2) expressly does not require to be cured’’ before the semicolon at the end; (2) in subparagraph (C), by striking ‘‘and’’ at the end; (3) by redesignating subparagraph (D) as subparagraph (E); and (4) by inserting after subparagraph (C) the following: ‘‘(D) if such claim or such interest arises from any failure to perform a nonmonetary obligation, other than a default arising from failure to operate a nonresidential real property lease subject to section 365(b)(1)(A), compensates the holder of such claim or such interest (other than the debtor or an insider) for any actual pecuniary loss incurred by such holder as a result of such failure; and’’.
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