On May 17, the FDIC issued a proposed rule that would require certain insured depository institutions to submit a contingent resolution plan outlining how they could be separated from their parent structures and wound down in an orderly and timely manner. Institutions with assets greater than $10 billion that are subsidiaries of a holding company with total assets of more than $100 billion would be subject to this proposal.

On April 23, the FDIC published additional Q&As on the Statement of Policy on Qualifications for Failed Bank Acquisitions (“Policy Statement”) issued in September 2009. The Q&As clarify that there is no requirement that investors must have held their ownership for a specific amount of time.

The FDIC voted to extend the safe harbor provided under 12 C.F.R. § 360.6 until September 30, 2010, from the FDIC’s ability, as conservator or receiver, to recover assets securitized or participated out by an insured depository institution. When the safe harbor was initially adopted in 2000, the FDIC provided important protections for securitizations and participations by confirming that, in the event of a bank failure, the FDIC would not try to reclaim loans transferred into such transactions so long as an accounting sale had occurred.

I. Introduction Readers may be familiar with the use in the UK of Schemes of Arrangement to achieve closure of insurance and reinsurance business.

I. Introduction

When entering into a reinsurance agreement, a ceding company and a reinsurer may also enter into a related reinsurance trust agreement  

Making a will is regarded by most individuals as a necessary irritant ranking in popularity somewhere below a visit to the dentist or doctor. Following the unprecedented instability in the global financial markets since 2007, “systemic” risk (posed by the potential failure of large or complex cross-border financial institutions) was identified by regulators and legislators as one of the key areas requiring better supervision, in order to prevent a similar crisis in the future.

A recent decision in the U.S. Bankruptcy Court for the Southern District of Florida, In re Tousa,[1] has received widespread attention for its near wholesale rejection of insolvency “savings clauses,” and the resulting order requiring lenders to disgorge hundreds of millions of dollars. The decision raises numerous practical problems for participants in the secondary loan and derivatives markets, and more generally for commercial lenders and borrowers.

Background

In an October 13, 2009 decision involving bankrupt homebuilder TOUSA, Inc. (“TOUSA”), the United States Bankruptcy Court for the Southern District of Florida (the “Court”) avoided as fraudulent transfers certain liens given and debt obligations incurred by several of TOUSA’s subsidiaries to a syndicate of lenders who provided $500 million of new loans to TOUSA. In addition, the Court ordered those lenders, and others that received the proceeds of the new loans, to repay hundreds of millions of dollars to the bankrupt estates of these subsidiaries.

The recent Scottish Court Opinion on Scottish Lion’s proposed solvent scheme of arrangement,1 in which it was held that to sanction a solvent scheme there must be a “problem requiring a solution” and, in effect, unanimous creditor approval, was followed by a short hearing on Wednesday 14th October in which Lord Glennie said that he would dismiss the petition for the scheme.

On September 15, 2009, in an order read from the bench, the Honorable James M. Peck, Bankruptcy Judge in the United States Bankruptcy Court for the Southern District of NewYork, and the presiding judge in the Chapter 11 proceedings of Lehman Brothers Holdings Inc. (“LBHI”) and other associated Lehman Brothers United States entities, held a key provision of the standard ISDA Master Agreement unenforceable in a bankruptcy context.