Bankruptcy 101: Ipso Facto Clauses

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Bankruptcy Basics for New and Non-Bankruptcy Attorneys

This entry is part of Nelson Mullins’s ongoing “Bankruptcy Basics” blog series that is intended to address foundational aspects of bankruptcy for non-bankruptcy practitioners and professionals.  This entry will discuss how ipso facto clauses are treated in bankruptcy.

Imagine you are the vendor to an entity that has just filed for protection under chapter 11 of the Bankruptcy Code.  Your contract documents include the following default provision:

Termination for Bankruptcy. This Agreement may be terminated at any time during the Term by either Party upon the other Party’s filing or institution of bankruptcy, reorganization, liquidation or receivership proceedings, or upon an assignment of a substantial portion of the assets for the benefit of creditors by the other Party.

Based on this provision, you presume you have the ability to terminate the Agreement, right?  Wrong.

Why, you might ask, can you not terminate despite the clear terms of the contract?  Bankruptcy Code section 365(e)(1) is the answer, which reads:

Notwithstanding a provision in an executory contract or unexpired lease, or in applicable law, an executory contract or unexpired lease of the debtor may not be terminated or modified, and any right or obligation under such contract or lease may not be terminated or modified at any time after the commencement of the case solely because of a provision in such contract or lease that is conditioned on—

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