By Shmuel Vasser (Dechert)
Swaps, like other financial contracts (repurchase agreements, securities contracts, commodities contracts, forward agreements and master netting agreements), receive special treatment under the Bankruptcy Code. Their acceleration, liquidation and termination is not prohibited as an ipso facto clause and the exercise of setoff rights is not subject to the automatic stay. Transfers made in connection with these contracts are also exempt from avoidance as preferences and constructive fraudulent transfers as well as actual fraudulent transfer under state law. But their scope is not always free from doubt. Are provisions that modify the debtor’s priority of payment upon bankruptcy protected as well? Are provisions that the swap incorporates by reference protected? Must the swap counterparty itself exercise the right to liquidate, terminate and accelerate the swap? The Second Circuit just answered these questions.
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