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    Let the Seller Beware? Debtor’s Attempt to Monetize its Own Default May Impact Sellers of Credit Default Swaps
    2018-11-29

    The Sears bankruptcy case made headlines this month in the complex world of credit default swaps (CDS). A credit default swap is a contract pursuant to which the seller receives payment from a buyer in exchange for which the seller must compensate the buyer in the event of a default or other specified credit event.

    Filed under:
    USA, Derivatives, Insolvency & Restructuring, Patterson Belknap Webb & Tyler LLP, Credit default swap, International Swaps and Derivatives Association
    Authors:
    Brian P. Guiney
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    Nonconventional CDS Credit Events Part 2: Other Cases of Interest and Suggestions for Amendments
    2017-03-31

    Part 1 of this series described the recent decision of the ISDA Americas Determinations Committee to declare that a “failure to pay” had occurred with respect to iHeartCommunications Inc., notwithstanding that the only non-payment had been to a wholly owned subsidiary. The non-payment was orchestrated to avoid a springing lien that would have been triggered had all the notes of a particular issue of iHeartCommunications debt been paid in full. It did not reflect on the creditworthiness of iHeartCommunications.

    Filed under:
    USA, Derivatives, Insolvency & Restructuring, Kramer Levin Naftalis & Frankel LLP, Credit default swap, International Swaps and Derivatives Association
    Authors:
    Fabien Carruzzo , Abbe L. Dienstag , Stephen D. Zide , Daniel King
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Enforceability of Subordination Provisions in Synthetic CDOs - Lehman Revisited
    2016-08-16

    On June 28, 2016, Judge Chapman of the U.S. Bankruptcy Court for the Southern District of New York ruled in Lehman Brothers Special Financing Inc. v. Bank of America National Association, et al.(Adv. Proc. No. 10-03547 (Bankr. S.D.N.Y.

    Filed under:
    USA, Derivatives, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Bankruptcy, Surety, Collateral (finance), Swap (finance), Liquidation, Default (finance), Collateralized debt obligation, Title 11 of the US Code, Bank of America, International Swaps and Derivatives Association, Lehman Brothers, United States bankruptcy court, US District Court for SDNY
    Authors:
    Fabien Carruzzo
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Lehman Bankruptcy Court issues safe harbor decision
    2014-01-06

     

    Filed under:
    USA, Derivatives, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Amicus curiae, Liquidation, Bankruptcy of Lehman Brothers, Title 11 of the US Code, International Swaps and Derivatives Association, Lehman Brothers, United States bankruptcy court
    Authors:
    Kathryn M. Borgeson , Mark C. Ellenberg , Lary Stromfeld
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    S.D.N.Y. Bankruptcy Court continues to construe Bankruptcy Code’s safe harbor provisions narrowly
    2011-06-07

    In two recent decisions, the United States Bankruptcy Court for the Southern District of New York has interpreted narrowly certain of the Bankruptcy Code’s safe harbor provisions.  

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Shareholder, Injunction, Swap (finance), Leveraged buyout, Default (finance), Collateralized debt obligation, Mortgage-backed security, Title 11 of the US Code, Wells Fargo, International Swaps and Derivatives Association, Lehman Brothers, United States bankruptcy court, US District Court for SDNY, Trustee
    Authors:
    Mark C. Ellenberg
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Lehman bankruptcy court rules safe harbors do not override setoff mutuality requirement
    2010-05-06

    On May 5, 2009, Judge James Peck, the Bankruptcy Judge in the Lehman Brothers bankruptcy cases, held that the safe harbor provisions of the Bankruptcy Code do not override the mutuality requirements for setoff under section 553(a) of the Bankruptcy Code. As a consequence, the Bankruptcy Court prohibited Swedbank, a non-debtor counter party to a swap agreement, from setting off pre-petition claims against Lehman against funds collected for Lehman’s account postpetition. See In re Lehman Bros. Holdings Inc., Bankr. Case No. 08-13555 (JMP) (Bankr. S.D.N.Y.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Waiver, Safe harbor (law), Swap (finance), Debt, Concession (contract), Title 11 of the US Code, International Swaps and Derivatives Association, Lehman Brothers, United States bankruptcy court, US District Court for SDNY
    Authors:
    Mark C. Ellenberg , Leslie W. Chervokas
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Lehman bankruptcy court holds ISDA swap counterparty in violation of automatic stay/counterparty seeks modification
    2009-09-29

    In a recent ruling from the bench, Judge James M. Peck of the United States Bankruptcy Court for the Southern District of New York held that Metavante Corporation’s suspension of payments under an outstanding swap agreement with Lehman Brothers Special Financing Inc.

    Filed under:
    USA, New York, Derivatives, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Condition precedent, Debtor, Safe harbor (law), Swap (finance), Default (finance), Systemic risk, Title 11 of the US Code, International Swaps and Derivatives Association, Lehman Brothers, United States bankruptcy court
    Authors:
    Mark C. Ellenberg , Leslie W. Chervokas
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Insolvent lenders and market disruption
    2008-10-21

    In the current economic climate, there are a number of key issues facing borrowers in the event of lender insolvency or default.

    Committed facilities/term loans

    Provided they are fully drawn and the borrower is not in breach itself, the impact in the short term may not be too severe.

    Filed under:
    United Kingdom, Banking, Insolvency & Restructuring, Gowling WLG, Libor, Debtor, Breach of contract, Accounts receivable, Market liquidity, Swap (finance), Debt, Cashflow, Default (finance), International Swaps and Derivatives Association
    Location:
    United Kingdom
    Firm:
    Gowling WLG
    ISDA 2018 US Resolution Stay Protocol
    2019-05-09

    On July 31, 2018 the International Swaps and Derivatives Association published the ISDA 2018 US Resolution Stay Protocol (the US Protocol). The US Protocol is intended to enable parties to ISDA Master Agreements and similar Protocol Covered Agreements (PCAs) to contractually recognize the cross-border application of special resolution regimes applicable to global systemically important entities and their affiliates.

    In this article, we provide a broad overview of the US Protocol and relevant resolution stay rules, then describe the effect and operation of the US Protocol.

    Filed under:
    USA, Banking, Derivatives, Insolvency & Restructuring, DLA Piper, Federal Deposit Insurance Act 1950 (USA), International Swaps and Derivatives Association, Securities Investor Protection Corporation
    Location:
    USA
    Firm:
    DLA Piper
    ISDA 2018 US Resolution Stay Protocol - key questions and answers
    2018-09-25

    On July 31, 2018, the International Swaps and Derivatives Association published the ISDA 2018 US Resolution Stay Protocol. The US Protocol is intended to enable parties to ISDA Master Agreements and similar "Protocol Covered Agreements" (collectively, PCAs) to contractually recognize the cross-border application of special resolution regimes applicable to global systemically important entities and their affiliates.

    In this alert, we provide a broad overview of the US Protocol and relevant resolution stay rules, then describe the effect and operation of the US Protocol.

    Filed under:
    USA, Banking, Derivatives, Insolvency & Restructuring, DLA Piper, Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (USA), International Swaps and Derivatives Association
    Authors:
    Marc A. Horwitz
    Location:
    USA
    Firm:
    DLA Piper

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